December 20, 2007

Talk About "The Other"

by PG

I'm not sure what amuses me most about this New York law:

NY CLS Dom Rel 13-aa (2007). Test to determine the presence of sickle cell anemia
1. On and after the effective date of this act, such test as may be necessary shall be given to each applicant for a marriage license who is not of the Caucasian, Indian or Oriental race for the purposes of discovering the existence of sickle cell anemia and notifying the applicant of the results of such test.
2. No application for a marriage license shall be denied solely on the ground that such test proves positive, nor shall the absence of such test invalidate a marriage.
3. The provisions of this section shall not apply to any person who refuses to take such test because of his religious beliefs.
1. Is it the use of the term "Oriental" in 2007?

2. Is it defining the class of people to be tested not by the ethnic/ genetic group most likely to carry the gene, but by the groups the legislators assumes were unlikely to carry it? On first reading the statute, I assumed "Indian" to mean South Asians, but that would imply that every person carrying predominately Native American genes -- which includes many Latinos -- is getting tested for sickle-cell. So "Indian" probably means Sitting Bull, not Gandhi. Does that mean South Asians have gotten lumped back with Orientals or Caucasians? (South Asians are distinguished from East Asians both historically and genetically.) Or am I going to have to get sickle-cell tested before getting married?

3. Is it requiring African Americans to get tested for sickle-cell anemia before getting married, presumably even if they say they've gotten the tube-tie and the snip-snip, but not requiring tests for anything else?

Relatedly, did you know that Nebraska prohibits people with venereal disease from getting married there? I'm kind of surprised that this isn't unconstitutional, given that the Court has recognized at least opposite-sex marriage to be such a fundamental right that prisoners can't be deprived of it. I guess now serial killers can feel superior to people with syphilis and gonorrhoea. Speaking of VD, it makes a great stocking stuffer!

UPDATE: Puerto Rico beats Nebraska by including "A person suffering from physical impotency for the purpose of generation" among those "incapacitated to contract marriage." (31 L.P.R.A. 232) PR must be the one place actually taking seriously the nattering about the necessity of possible procreation for marriage, instead of just using it as a justification for denying same-sex marriage.

December 20, 2007 03:06 AM | TrackBack

Note, however, that most jurisdictions treat impotence as rendering a marriage voidable (i.e., grounds for an annulment). If I had to guess at the reason for handling it that way rather than as an impediment to getting married at all, it probably hearkens back to a time when medical science was much less able to predict who was truly impotent. Also, people were theoretically expected not to be sexually active before marriage anyway, and thus unable to evince their fertility or lack thereof.

And perhaps Puerto Rico is different because of Spanish influence on its legal system?

Posted by: Tom T. at December 20, 2007 11:28 PM

I see what you're saying, but there's a significant difference between making something a ground for annulment or divorce, and making it a barrier to getting married in the first place. The first allows an unhappy party to escape the marriage; the second never allows the parties to discover whether they would have been unhappy together. Suppose a woman uninterested in sex/ offspring wants to marry a nice impotent gentleman? In Puerto Rico, she cannot. This is not the same as someone who married a man and then discovered he was impotent, which was not what she wanted at all, and now wants to marry an unimpaired man.

Not allowing someone to get married at all, ever, to anyone, is a significant impairment of what has been recognized as a fundamental liberty.

Posted by: PG at December 21, 2007 02:50 AM

Oh, I agree. I'm just noting that other states do connect marriage to procreation, but certainly P.R.'s way of doing it is more onerous.

Posted by: Tom T. at December 21, 2007 09:08 PM

I'm not sure the other states are connecting marriage to procreation so much as they are kind of connecting it to honesty. Other grounds for annulment tend to be concerned with information that was not available to one party at the time of the marriage, and that otherwise would have prevented the marriage -- whether for legal, religious or practical reasons. For example, one cause of action to obtain an annulment in NY is fraud, i.e. that the party seeking the annulment consented to the marriage under false pretenses. That claim is lost if the parties voluntarily cohabited as husband and wife while the party seeking the annulment knew about the facts constituting the fraud. These facts can include hiding information about alcoholism and other substance abuse.
This is quite similar to the ground "physical incapacity," because one can use that ground "only where an incapacity continues and is incurable, and must be commenced before five years have expired since the marriage." In short, if someone has accepted the "physical incapacity," and remained married for five years, then like the person who accepts the fraud, she cannot go back and say she wants to void the marriage.
For reasons that post-date marriage, incurable insanity can be a ground for annulment.
I don't think NY State is saying with its annulment grounds that sobriety, procreation and sanity are fundamental to marriage, just they're sufficiently important and hide-able from a prospective spouse that they're likely to be reason for that spouse to seek dissolution of the marriage.

Posted by: PG at December 21, 2007 11:25 PM

Again, I agree. We're just differing a bit on how much of a line there is between "fundamental" and "unusually important."

Posted by: Tom T. at December 23, 2007 02:32 PM
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