You're Freakin' Me Out

chairm, edio, opine, paternity, presumption, same sex, gay, traditional, marriage, homophobia, homosexual,
Chairm, over at the Opine Editorials, is really starting to freak me out. Let me put it this way: I showed a gay friend chairm's latest, What is the basis for the presumption of paternity?, and his reaction was, "He thinks about gay sex way more than I do- and I have gay sex!"


The cultural, traditional, and legal presumption of marital paternity is based on the sexual relationship of husband and wife. And? for those of you who haven't seen this out of an Opiner before, lucky you!, the way paternity works in a marriage in the US is that it is assumed if a couple is married. In other words, any child the wife gives birth to is automatically assumed to be the husband's.

This rule was developed at a time when no medical tests existed to prove paternity. In addition, a husband could not testify that he had no access to his wife at the time of conception. A husband could rebut the marital presumption only by proving his impotence or his absence from the country.

By the late nineteenth century, U.S. courts began to allow the defense of impossibility to rebut the marital presumption. The question of paternity became a fact that could be rebutted by clear and convincing evidence that procreation by the husband was impossible.

This isn't exactly a hard and fast rule anymore, as shown above. We have DNA tests now.

The criteria for rebutal of the presumption are based on the opposite-sexed nature of human procreation and conjugal relations. no, they're not. they're based on DNA testing or the idea that if one was incapable of performing a sex act at the appropriate time, one probably wasn't the father. I suppose this is based in the nature of procreation, in the sense the argument is about the result of said procreation, but no, not really.

However, this does not apply to same-sexed sexual behavior from which there arises no possible presumption of paternity to rebut nor to recognize. i can't even figure out where this is going. clearly, we're not discussing gay males, unless chairm knows something i don't know. we must be discussing lesbians. first of all, exactly how many married lesbians does chairm suppose will be having illicit hetero sex and then ending up pregnant, to their spouse's dismay? i'm going with not that many.

If society were to treat the sexualized male-female relationship the same as the sexualized male-male and the female-female relationship types, how could the marital presumption of paternity be sustained without discriminating (justly or unjustly) on the basis of sexual behavior? making marriage contain the idea of same sex as well as hetero marriage solves the entire problem. paternity/maternity ends up the same in a same sex marriage as in a hetero marriage, and no one is being discriminated against. and we're done. problem solved.

or not. When it comes to the presumption of paternity, must society be shackled by a fear of being anything but indiscriminate? If yes, why? Does that mean abolishing this presumption? wow, way to raise problems that don't exist, and then create problems from those problems. why should society be anything but nondiscriminatory? why abolish the presumption? marriage is marriage is marriage, the presumption applies. done.

If not, then, what, if anything, could be the alternative nonsexual and non-behavioral basis for this presumption, at law? okay, we already dealt with this. see above.

Perhaps the marital presumption of paternity (which is aimed at the class of sexual relationships which are male-female) could survive the imposition of SSM, if it ever came to that, through the reanimation of the once disputed doctrine of seperate but equal. or, we could just declare all marriages equal, presumption applies and we're done. i just don't see the problem with this.

Abolish it or retain it, the marital presumption of paternity is a knot that SSM arugmentation has yet to resolve. because there is no knot, except in your own head. asshat.