Uncle and Niece May Face Charges

An angry wife asked, “Can I press charges on my husband and his niece for incest in California?”

I caught my husband, 41 and his niece, 27 having an on going affair for quite some time. There are several witnesses to such disgusting act. The niece is my husband's brother's daughther. Can I press charges on them, since I read that incest is illegal in California and its a felony?

California does not criminalize adultery, but since California still criminalizes consensual sex between close relatives, it is left up to the local police and District Attorney. If this woman filed a police report, it could happen. Someone could be sent to jail for consensual sex. Hopefully, the authorities would do the reasonable thing and instead simply refer her to a divorce attorney, rather than wasting the criminal justice system's resources on consensual sex.

While I’m against cheating, I don’t think it should be a criminal matter and I don’t think any sex between consenting adults should be illegal. But certainly the law, as it is now, could come into play.

California also has no-fault divorce and community property. As such, if this woman’s husband earns more than she does, he would likely have to pay her if she divorced him, and see certainly should if she is so upset that she wants him criminally prosecuted.

She got some responses to her question, with some people mistakenly believing there was no law broken. Others clarified.

AFFA…

I wish to inform you that under California Code 285 your spouse may be held guilty of incest. In this regard you may file a complaint with law enforcement agencies. You will require evidence to be provided to police so that they may take necessary legal action.

Sunlover…

FC 2200 defines the relationships which are prohibited to marry and this, in turn, defines what would be considered incest.

2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.

As such, an uncle cannot marry his niece in CA and that such a sexual relationship (involving ONLY intercourse - not other sexual acts) would be incestuous and a crime per PC 285.

Can you believe such a law is on the books in California? Then again, so is Prop H8. Both should be scrapped.

Kill Proposition 8

It is looking good for (some) same-sex couples in California after yesterday’s Ninth U.S. Circuit Court of Appeals hearing on Prop H8.

Attorney Theodore Olson, representing opponents of Proposition 8, argued that the measure is unconstitutional and denies "the fundamental right of...citizens to marry."

Fundamental rights can’t be denied.

Two same-sex couples filed a federal challenge, saying the law violated 14th Amendment constitutional protections of due process and equal protection.

On August 4, U.S. District Judge Vaughn Walker agreed, ruling that the voter-approved ban on same-sex marriage violated the equal protection clause of the U.S. Constitution.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker, who was appointed to the federal bench by former President George H.W. Bush, wrote in his 136-page opinion. "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

Same-sex marriage works for some. Opposite-sex marriage works for others. Monogamous marriage works for some. Polygamous marriage works for others. Some people don’t want to get married at all. Everyone should have their freedoms. Consenting adults should not be denied their right to marriage based on age, race, gender, sexual orientation, number of spouses, or relation.

Same-sex marriage is currently legal in five states and in the District of Columbia. The five states are Massachusetts, Connecticut, Vermont, Iowa and New Hampshire.

Vote with your feet, because while this report says…

Walker's landmark ruling led to a swift federal appeal that could ultimately reach the Supreme Court.

...Some analysts have said that the ruling could be written in a way that keeps the Supreme Court out of it and only restores the freedom to marry to same sex couples in California. It would be great if the ruling applied nationwide and was backed up by the Supreme Court, but we’ll have to wait and see what happens. In my dreams, the Supreme Court takes up the case and rules for full marriage equality nationwide, but I don’t think that is likely. What is more likely is advancing to full marriage equality based on this freedom to marry and other precedents.

Prop H8 in Court Again Today

Canada has granted the freedom to marry to same-sex couples and a court there is now dealing with the possibility of increasing the freedom to marry to polycules. Meanwhile, Proposition 8 (Prop “H8”) is back in US federal court as we fight for the freedom of same-sex couples to marry in more places in the US.

I’m cautiously optimistic. I'd like to court to quickly decide that the lower court’s ruling was correct and again lift the ban on the freedom of (some) same-sex couples to marry in California. It remains to be seen if this will go up to the Supreme Court. It would be great if this would bring this freedom to marry to all of the other states that currently have bans, too. What would be best of all is if we got full marriage equality out of this, but that is a longshot.

Opponents of Proposition 8 contend it violates the due process and equal protection rights of gays and lesbians under the U.S. Constitution by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.

Let freedom ring.

US Election

If I'm following the results right, Hawaii, Maryland, and California all elected Governors who support giving same-sex couples the freedom to marry. That can make a positive difference in each of those states, and with California, it can make a positive difference in the current federal case that could result in the nationwide freedom to marry for same-sex couples. Elsewhere, some of the antigay candidates for Senate (Delaware comes to mind) and Governor (New York) lost. Overall, the House of Representatives will probably be much less friendly to marriage equality, and the Senate slightly less friendly than it is now, but that can be changed two years from now. Or, President Obama or a court could act before then. Judges in Iowa who gave same-sex couples the freedom to marry were recalled, but I doubt that's going to mean that things will actually move backwards in Iowa.

Am I missing anything important?

Each election is a chance to advance marriage equality. It isn't too early to think about 2012 or any state races that will happen before then.

Proposition H8 Update

Potentionally good news for the freedom of marriage for same-sex couples and perhaps full marriage equality for all. Opponents of California’s Proposition 8 (“H8”) submitted arguments to the federal appeals court in the case, asking the court to uphold the decision of the previous court that found Prop H8 to be unconstitutional on due process and equal treatment grounds.

See this story…

Lawyers Theodore Olson and David Boies, representing the couples, cited U.S. Supreme Court cases that called marriage a fundamental right and "the most important relation in life."

"Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals," the attorneys wrote.

From this story…

Proposition 8 is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians (id.)—who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, or religiously unacceptable.

The same surely applies to polygamous and consanguineous marriages, which have a rich historical tradition.

From this story…

Just as the U.S. Supreme Court struck down a Virginia ban on interracial marriage without creating a new right to interracial marriage, the court could overturn California's gay marriage ban on the grounds that all persons are free to decide whether or whom to marry, Olson wrote.

We certainly agree: All persons should be free to decide whether or whom to marry. We’re glad Olson agrees with us, and we home the panel will, too.

Restored Freedom to Marry on Hold in California

The federal appeals court has put a hold on same-sex marriages in California before they could even start taking place again. They want to take a look at the case first. Let's hope they decide in December to let this freedom to marry resume in California. Let's keep working towards full marriage equality so thatsame-sex couples can marry, but also others can marry who do not currently have the freedom to marry.

Mixed News Out of California

Judge Walker, who ruled that same-sex marriage is a right, refused to keep the state from allowing same-sex couples to marry. That’s the good news. The bad news is that he just said it can’t happen until next week – so no marriages for same-sex couples today or for almost a week, most likely. He did this to give an appeals court time to place their own hold on issuing the licenses pending the appeal of Judge Walker’s decision in the lawsuit.

Let’s hope the higher court doesn’t put a hold on this freedom to marry, so that same-sex weddings can resume in a few days.

And then, may this freedom never be taken away temporarily or permanently, and may this freedom to marry go nationwide, and may the freedom to marry increase until we have full marriage equality, so that same-sex couples can marry even if they happen to be sisters, and so that people can marry more than one person if that is what they want.

California Prop H8 Loses So Freedom Wins

It’s a good day. A federal judge has ruled in favor of extending (again) the freedom to marry to same-sex couples by siding with those suing California over Proposition 8. Same-sex couples were granted the right to marry in California for several months in 2008 before “Prop H8” was passed.

Congratulations to the same-sex couples who will be able to marry as a result of this ruling.

The right could still be taken away by an appeals court or the Supreme Court, but let’s hope the Supreme Court rules for freedom. Is it too much to dream that the Supreme Court will go further and rule for full marriage equality? Let’s not wait for that. Let’s build on today’s decision to move towards full marriage equality. It’s great that some same-sex couples can now marry, but why should that not include a same-sex couple that happen to be sisters? Or why shouldn’t a man who is in love with two other men be able to marry both of them? Love is love.

More Marriage Rights For Same-Sex Couples

In California, it is possible that a federal judge will strike down a ban preventing same-sex couples from marrying. The trial is resuming. Let’s demand the judge strengthens the right to marriage in a way that knocks down other laws in addition Proposition 8, so that other people who are currently prevented from marrying will have their freedom. If not, I hope he will at least knock down "Prop H8." The bigots would appeal to a higher court, but it would be a start.

Referring to the federal prohibition on recognizing same-sex marriages, Walker asked the plaintiffs bluntly, ''Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?''

It would be great if DOMA could be struck down, too.

The question is particularly relevant nearly 3,000 miles away, where another federal trial court judge – U.S. District Court Judge Joseph Tauro – is directly considering whether a portion of DOMA is constitutional in a challenge brought by Gay and Lesbian Advocates and Defenders in Boston.

One way or another, we’ll advance marriage equality in the US, the way we advanced rights for people of color.

In Germany, a court recognized a Canadian marriage between two men, but unfortunately they will only call it a civil partnership.

Andreas Boettcher, a 37-year-old German event manager, married his Spanish partner, a dancer and choreographer, in Montreal in July 2006. He asked a Berlin administrative court to recognize the relationship as a marriage after local authorities listed him as "single" on his registration card in November, despite his Canadian marriage certificate and a family registry entry from Spain that names him as the husband of his partner.

The best news comes from Iceland, where same-sex couples got marriage rights on Friday.

Unfortunately, in all three places, laws against marrying more than one person and against consanguineous marriage are still in effect.

Down with H8 - Up With Marriage Equality For All

It is almost time for closing arguments in the trail against California Proposition 8, or “H8”. In the Washington Post, John D. Podesta and Robert A. Levy express their hope that a federal court will overturn Proposition 8. They write about gay couples, and I agree that gay couples should have the freedom to marry. However, I am disappointed that they do not express concern for other people looking for marriage equality.

Although we serve, respectively, as president of a progressive and chairman of a libertarian think tank, we are not joining the foundation's advisory board to present a "bipartisan" front. Rather, we have come together in a nonpartisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation's character. This is not about politics; it's about an indispensable right vested in all Americans.

I agree, and that is why we need full marriage quality.

As the country evolved, the meaning of one small word -- "all" -- has evolved as well. Our nation's Founders reaffirmed in the Declaration of Independence the self-evident truth that "all Men are created equal," and our Pledge of Allegiance concludes with the simple and definitive words "liberty and justice for all." Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

All should mean all.

Our history will soon be written by young people who are seizing the reins from the baby boomers. They seem prepared to reject laws that serve no purpose other than to deny two committed and loving individuals the right to join in a mutually reinforcing marital relationship.

I agree with this, except for the unnecessary restriction of “two.” Committed and loving individuals, no matter how many, regardless of gender or blood relation, should have the right to marriage. How about showing some solidarity? While Kris Perry and Sandy Stier should be able to marry and Paul Katami and Jeff Zarrillo should be able to marry, so should Linda, Melissa, and Matthew. Let’s fight so that all of them will get the right to marry. Do not participate in the oppression of triads, groups, sibling couples, parent-adult child couples, and others who should have the right to marry.

Marriage Equality in California

A federal court is now hearing a case on California's ban on same-sex marriage (Perry vs. Schwarzenegger). On the positive side, there are people working hard to fight for the freedom to marry. Unfortunately, they have neglected to stand up for a full and complete freedom to marry.

I know it is unlikely, but I would very much like to see the court decide to remove all bigoted restrictions on the freedom of marry, so that the mother and her adult children I will be writing about could share in the happiness of marriage together.