Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28-36 of the opinion. Balkin is concerned because the Judge Tauro’s ”Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:
The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads.
Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:
(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)
That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:
a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.
The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.
Cornellian says:
Interesting. I was totally unaware of the Bongiorno case. Could this decision turn the Tenth Amendment into David to the Commerce Clause’s Goliath?
July 9, 2010, 1:00 amSteve says:
I’d agree that regulating marriage is traditionally a matter that has been left to the States (it’s right up there with land use and zoning, in my view, as far as matters which naturally belong to the States), but I don’t know if I’d agree that Section 3 of DOMA regulated the “States as States” since it only operates to define marriage in the context of federal statutes and regulations.
July 9, 2010, 1:12 amJ. Aldridge says:
Fixed.
July 9, 2010, 2:23 amGayPatriot » Tenth Amendment Jurisprudence Serves to Invalidate DOMA Provision says:
[...] from Volokh, we learn that some liberals are wary of rooting the decision in this oft-ignored provision: Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the [...]
July 9, 2010, 3:40 amStephen Lathrop says:
No lawyer here, so help me please answer this question. Seems like to make a state sovereignty case with regard to DOMA you have to be able to argue that:
1. Defining marriage is a sovereign privilege of the states, and
2. That privilege is unacceptably impaired if a particular state’s definition can’t be imposed on any party who comes in contact with married people, essentially making a marriage contract one that all other parties, however situated, must honor and cooperate in enforcing to the full extent of their ability to do so.
So where does that leave the fundamental argument in favor of same sex marriage, that the choice of a marriage partner is an entirely private one, in which the state has no legitimate interest? Maybe that puts a tool in the hands of same sex marriage opponents to say if that is a contract that binds me, you can’t deprive me of my right to join with others to alter the state constitution in response. And if it is a matter on which states are completely sovereign, how could federal courts say they couldn’t do it?
Seems like a Tenth Amendment state sovereignty argument might be one which same sex marriage proponents ought to approach with caution unless they are sure that state courts everywhere would take up their cause.
Probably I just don’t understand, but if someone who knows more could help out I would appreciate it.
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July 9, 2010, 5:48 amBrett Bellmore says:
Couldn’t help but notice that the Bongiorno test makes absolutely no reference to the central question the 10th amendment actually poses; Whether a power is delegated to the United States by the Constitution. I suppose that’s because, under current jurisprudence, there ain’t no such thing as a power not delegated…
July 9, 2010, 6:10 amPersonFromPorlock says:
My objection to gay marriage is that the Constitution is literally without fixed meaning if the government can redefine words away from their standard usages. If ‘privacy’ can mean whatever the legislature wants it to mean, for instance, then a constitutional guarantee of ‘privacy’ guarantees nothing.
That said, I would have no problem with substituting ‘union’ for ‘marriage’ in the pertinent laws and letting all and sundry – and their companion animals, if they want – have at it. And if people want to call those ‘unions’ marriage, that’s fine.
July 9, 2010, 6:35 amMartinned says:
Not all others, just the Feds. (Apparently.)
July 9, 2010, 7:27 amMoneyrunner says:
The premise of your argument is that court decisions should be consistent. It is my understanding that the purpose of the legal profession, the courts and the law schools is to develop a legal system that can take totally contradictory arguments while claiming adherence to the constitution to reach any preferred position. The concept that the use of the Tenth Amendment in this case will have any effect on the courts in future cases when the Tenth is conveniently put away is seriously naive.
And no, in case you wonder, I’m not being excessively cynical.
July 9, 2010, 7:56 amruuffles says:
Is there an opportunity for third parties to intervene like they did in the Prop 8 case? If not, couldn’t the Obama administration simply decline to appeal the ruling on 10th amendment grounds and leave it non-binding precedent? (and do whatever with the other ruling)
July 9, 2010, 7:59 amShag from Brookline says:
Consider that the word “expressly” is not contained in the Tenth Amendment regarding “powers not delegated to the United States by the Constitution …” that are reserved to the states.
July 9, 2010, 8:09 amConnecticut Lawyer says:
Leaving aside DOMA and the Tenth Amendment for the moment, the more interesting question, it seems to me, is whether a state is obligated under the Full Faith and Credit Clause to honor a marriage between gays performed in another state that recognizes gay marriage. Does Congress have a role in this? Does DOMA?
Consider, in this context, whether (assuming arguendo that Roe v. Wade is overruled some day and one or more states outlaws abortions) whether a state that recognizes abortion rights is obligated under the FF&CC to extradite abortionists to a state that has outlawed abortion.
I guess this relates to the current discussion under the “what’s sauce for the goose is sauce for the gander” point being made by our professor host.
July 9, 2010, 8:41 amShelbyC says:
Or settle? And agree not to enforce DOMA as part of the settlement? But supposedly the prez has an obligation to defend acts of congress.
July 9, 2010, 8:49 amOwen H. says:
Under what law can a state extradite someone from another state, for actions performed in that second state, that are legal in that state? Your argument makes no sense. You are claiming that states would have the power to charge people with crimes committed in other states, even though it isn’t a crime where it occurred. Next you’ll be having Georgia extraditing the operators of medical marijuana clinics in California.
July 9, 2010, 8:51 amSteve says:
Congress can define words used in federal statutes however it likes, since Congress writes those statutes. That doesn’t mean Congress can redefine words in the Constitution via statute, though. I’ll leave to one side the trollish behavior of comparing same-sex marriage to bestiality.
July 9, 2010, 8:58 amMartinned says:
Under section 2 of DOMA, no state has to recognise a SSM performed in another state.
July 9, 2010, 9:02 amruuffles says:
This kind of prosecution was a footnote in the last Supreme Court ruling of this term, Sears v Upton. One claim that the supremes declined to rule on was whether Georgia could prosecute for kidnapping that led to murder when the murder occured in Kentucky.
Anyways a better analogy for conservatives would be recognition of gun permits.
July 9, 2010, 9:16 amAlast says:
I think Justice Thomas has a new best friend on Facebook.
July 9, 2010, 9:23 amKen Arromdee says:
I was going to post almost the same thing.
There are plenty of examples where some power read into the Constitution by courts expanded out of control, but it’s always been cases where the government was motivated to rule that way anyway. The court precedent was just an excuse. I’m sure that if the original Commerce Clause case had concluded that the government could not regulate privately grown wheat, the precedent, being not helpful to government power, would have been narrowed into uselessness in the next few years.
July 9, 2010, 9:30 amCornellian says:
I wonder if conservatives and liberals would be willing to trade mandatory recognition of same sex marriages (i.e. legally performed in one state = recognized in all states) for mandatory recognition of gun carry permits. If the feds can mandate one, presumably they can mandate the other.
July 9, 2010, 9:33 amSuperSkeptic says:
Alright then, compare it to polygamy – is that better for you?
July 9, 2010, 9:33 amOrenWithAnE says:
They were going to get the latter without the former out of this Senate anyway. Why would they motivated to trade for what they are likely to be able to vote themselves next session? Not that I wouldn’t support such a thing as an unalloyed good, of course.
[ Also, the Senate provision only applied to States that grant CCW permits at all, so it would include NY and CA but not IL. ]
They can start charging all manner of associates with conspiracy to commit murder, if some element of the conspiracy took place in their State …
July 9, 2010, 9:49 amWJ says:
Can anyone explain how the judicial logic that said that marriage between one man and one man (or one woman and one woman) was in the Massachusetts constitution as some sort of civil right would not also, by the same logic, allow for marriage between any number of consenting adults, regardless of gender and/or direct relation to each other?
How could gay marriage imposed by judicial fiat not logically lead to polyagamy and polyamory(sp) ?
July 9, 2010, 9:55 amKamal says:
How about we compare it to marriage, since that’s what it is.
July 9, 2010, 9:57 amJaimeInTexas (an invisible man ... to the Keynesians) says:
The State claiming such a conspiracy must have enough evidence to support such a claim.
July 9, 2010, 9:57 amAlast says:
Red herring.
If I have to put my gender down on a form, and a government benefit depends on what gender I put on the form, that is discrimination based on gender.
If I have to put my race down on a form, and a government benefit depends on what race I put on the form, that is discrimination based on race.
The question that has to be asked is whether the discrimination in each instance is permissible.
SSM is gender discrimination… something you did not choose.
Prohibition of polygamy is based on a choice you made to marry someone already.
July 9, 2010, 9:57 amSmooth, like a Rhapsody says:
Cornellian:
July 9, 2010, 9:58 amHell if I am on the right I start with de-incorporation in toto and the explicit reversal of Wickard vs. Filburn in exchange for SSM…let the negotiations begin!
JaimeInTexas (an invisible man ... to the Keynesians) says:
Think of the Consitution prior to the adoption of the Bill Of Rights. Did the FedGov have the authority to confiscate/ban guns then? If no, why not?
July 9, 2010, 9:58 amDave M. says:
It appears this judge is taking a page from John Marshall’s playbook…
“You’re my political enemy, but guess what! You win the case!… (Only, the rationale of the opinion supporting the judgment is much more damaging to your politics than you might notice in your victorious exuberance.)”
July 9, 2010, 9:59 amKamal says:
Wasn’t part of the reasoning here that it’s clear DOMA servers no purpose besides discrimination? That seems to make the above statement invalid, and more of what you would expect to see spouted on fox than in a serious analysis.
July 9, 2010, 10:00 amSuperSkeptic says:
You use to word “marriage” like it has a fixed meaning, when this whole discussion is about the power of the federal government to change the meaning of the word (which was heretofore always defined by states – another fact which the federal government had heretofore always acknowledged) and therefore the institution at will.
July 9, 2010, 10:01 amSuperSkeptic says:
That is exactly my point: it most certainly could by the judicial logic used. The rebuttal of others seems to be that there is no likelihood of this, politically, so the logical implications should be ignored or that there is no such logical implication – which is either ignorant or dishonest.
July 9, 2010, 10:05 amKamal says:
The discussion is whether or not the government can tell me that I am unable to get married because of my gender, or because of the other person’s gender. The definition of marriage is not under attack.
July 9, 2010, 10:06 amSuperSkeptic says:
This is where you lose me… I gotta run tho…
July 9, 2010, 10:08 amKamal says:
Okay, even though this is an obvious red herring, i’ll bite. What’s SO wrong with polygamy that you feel you need to dictate your antiquated morality on society?
July 9, 2010, 10:10 amSuperSkeptic says:
What? The statute at issue literally changed the definition of marriage. You only assume that marriage definitions can only encompass two people.
July 9, 2010, 10:10 amKamal says:
I’m saying ‘definition’ is irrelevant. They could define marriage as a chocolate sunday. That’s completely in the government’s power. What they can’t do, is enact legislation that’s sole purpose is to discriminate and hurt a group.
July 9, 2010, 10:14 amRick Moore says:
I’m no lawyer, but after reading the justification for overturning DOMA as an unlawful interference with the state’s rights, couldn’t the same justification be used to overturn Roe v. Wade and return abortion to the states as a matter they can individually regulate?
July 9, 2010, 10:26 amMartinned says:
Now you’re getting the two rulings confused. The one you’re talking about here is the Equal protection one, Gill.
July 9, 2010, 10:34 amKamal says:
Part of the justification here is that DOMA serves no purpose besides discrimination. Roe V. Wade does more than discriminate against Christian morality.
July 9, 2010, 10:34 amMartinned says:
Roe is a constitutional ruling. A constitutional ruling can’t be unconstitutional, though it can be overruled. (But that’s not a 10th amendment issue.)
July 9, 2010, 10:36 amShelbyC says:
Isn’t that the purpose of all legislation?
July 9, 2010, 10:38 amKamal says:
Even in Massachusetts, it states the same argument.
July 9, 2010, 10:39 amJohn Steele says:
Well, as a conservative I am not willing to trade one off against the other. In my view, neither issue is a matter for the federal government. As a conservative, there are d*mn few things that are matters for the federal government — and the ones that are are set forth in the Constitution.
July 9, 2010, 10:39 amKamal says:
Glen?
July 9, 2010, 10:41 amShelbyC says:
??
July 9, 2010, 10:43 amKamal says:
I guess if you believe the dangers of same sex married equal that of shooting someone, that would be a good trade off.
July 9, 2010, 10:45 amKamal says:
You were making wild generalizations that have no basis in fact, so I thought you were pretending to be Glen Beck. If the purpose of all legislations is to discriminate against and hurt another group, democracy and republics would be evil and vile things.
July 9, 2010, 10:48 amhnf says:
superskeptic,
i’m having a lot of trouble understanding what, specifically, you’re trying to say. is it that the right to define marriage is exlusively within the power of the states, even when the term is used in federal legislation? or that marriage, once defined in any context whatsoever as including anything beyond heterosexual unions, will eventually include everything under the sun?
i can’t be sure, but it seems as though you’re simply against anything other than traditional marriage, and willing to use whatever currently convenient basis you can grab (i.e., “marriage is as defined by the states, so long as the states definition conforms to my own.”).
as w/re to these opinions, i think you’re failing to understand the logical consequences of your arguments. neither opinion, however, found a fundamental right to marriage (however defined), so i’m having a hard time seeing the relevance of your slippery slope argument.
July 9, 2010, 10:49 amJoe says:
I’m no lawyer, but after reading the justification for overturning DOMA as an unlawful interference with the state’s rights, couldn’t the same justification be used to overturn Roe v. Wade and return abortion to the states as a matter they can individually regulate?
It can in respect to federal regulation — what is at issue in these cases — that does not allow state discretion in the field. That is, for instance, banning D&X procedures. Roe itself was based on an individual right protected by the Constitution, and the 10A does not give power to the states to violate them.
As to Jack Balkin, I don’t buy it, and it’s tedious we will have to get more “Obamacare” talk in part because of his misguided preaching to liberals. He harped on the problems of court recognition that same sex marriage bans were unconstitutional in the past, largely on the “we aren’t ready for that” level, and his reasoning was suspect then too.
The rulings underline that DOMA was a truly novel federal decision to define marriage. It did not say that the feds could not regulate in the field at all. Obviously they can — the spouses of Revolutionary War vets received benefits, right? Clear precedent provides the power to regulate in the health insurance field as well. Social Security rulings were not overruled in the 1990s.
A similar federal precedent is not there in respect to singling out one type of marriage for this type of treatment; and in BOTH cases, an equal protection problem was cited. Thus, South Dakota v. Dole was cited and was deemed violated because of an unconstitutional equal protection use of the tax power. It is singling out one type of marriage to burdens states (here, MA provides health and vet benefits to same sex couples, and can’t get federal rebates for them, since DOMA blocks the way while spouses of first cousins are protected), it is not the regulation of marriage at all. The ruling doesn’t go THAT far.
I might be wrong, of course, but Prof. Balkin’s analysis seems sloppy and ripe for misuse.
July 9, 2010, 10:50 amShelbyC says:
Well, they’re pretty close, aren’t they? We’ve had pretty much exactly the same amount of destruction of traditional marriage in the states that have legalized gay marriage as we’ve had wild west shootouts in the streets in the states that have legalized CCW.
July 9, 2010, 10:51 amKamal says:
No, Glen, they are not. Me marrying a dude is not the same as you shooting someone in the head.
July 9, 2010, 10:54 amShelbyC says:
Isn’t the purpose of generalization generally to hurt the group of people who are doing things that you don’t want them to do?
July 9, 2010, 10:54 amShelbyC says:
And me getting a concealed weapons permit is not the same as you shooting someone in the head. Wow, more and and more similarities between gay marriage and CCW.
July 9, 2010, 11:00 amLester Livio says:
With the recent spate of decisions by the U.S. Supreme Court (Citizens’ United, McDonald, CLS, etc) and lower courts (the DOMA cases), the United States is fast becoming what Charles de Gaulle said France had to avoid at all costs: a nation of the “rule of judges” (and their intellectual bedfellows in the academy, I might add) rather than a nation of the rule of law. It is only a matter of time before a judge decrees that non-recognition of polygamy is a denial of equal protection. How do you spell Muslims and Mormons in legalese? Welcome to what I call “American juristocracy.”
July 9, 2010, 11:11 amBob in FL says:
I guess I’m confused. I thought the reason DOMA was passed, and what it addressed, was a spate judicial recognitions of gay marriage, often overturning explicit acts of legislatures or citizen referenda. The concern was that if Massachusetts allowed gay marriage — through judicial decree or legislative action — that would force Georgia, via the Full Faith and Credit Clause, to also recognize gay marriage. (And, once Georgia residents could fly up to Mass and come back with a valid, recognized-by-Georgia marriage certificate, what would be the point in not allowing it to take place in Atlanta?)
So…four judges in Boston could force a change in the state law of Georgia, Alabama, Airzona…which would seem to be the antithesis of the federalism principle that the 10th amendment supposedly supports. Hence, by explicitly preventing this, it appears to me that DOMA was in-line with the 10th amendment, not agin’ it.
Now, if this judge’s ruling is to be believed, the definition of marriage is reserved fully to the individual states, not the federal government. If so, then how are the judge’s (excuse me, I mean the 10th Amendment’s) purposes served by the status quo ante: If Georgia’s right to define marriage is sovereign, according to this judge, then how does effectively subordinating that right to the the most expansive ruling of any OTHER state judicial or legislative body in the Union preserve that sovereignty? That seems somehow self-contradictory.
Not being a lawyer (obv.) I have no hope of anything like the following: but it sure would be nice if self-negating rulings were legal nullities. Unfortunately, it too often appears they just become a part of Humpty Dumpty’s vocabulary:
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
July 9, 2010, 11:20 am“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – - that’s all.”
(Through the Looking Glass, Chapter 6)
epluribus says:
Rick Moore:
DOMA is an act of Congress. The Constitution limits acts of Congress to enumerated powers. Roe v. Wade is not an act of Congress. The Constitution does not limit Supreme Court decisions to enumerated powers. In Roe, the Court decided that state statutes prohibiting abortion are unconstitutional, not because there is no enumerated power to do so (state legislatures are not limited to enumerated powers) but because such statutes violate the constitutional right of privacy.
July 9, 2010, 11:25 amJCC says:
1) You’re confusing a single person applying for a “government benefit” with an application for “combined government benefit” in creating a legal entity. If I can’t apply for benefit XYZ as a male and someone else can apply for benefit XYZ simply because they’re female (like, oh, say… WIC), then THAT’S “gender discrimination.”
2) Oh… so, the anti-SSM crowd is pushing for maintaining (or recreating?) gender discrimination? I thought it was sexual-orientation discrimination? Which is it? (Think carefully…. Any person of any gender can marry any other person of the other gender. That’s not gender discrimination; gender discrimination would be if MEN could marry any gender and WOMEN could only marry men.)
3) In case it’s not obvious, saying “I don’t qualify for marriage to Person X” is begging the question. The majority feels that marriage is something that occurs between males and females and that anything else is, was, and/or should continue to be, simply a metaphorical use of the term “marriage”.
July 9, 2010, 11:29 amMartinned says:
You only noticed that now? America has already been a place where lawyers rule the world since pretty much all the founding fathers were lawyers in one way or another. If not that, then since Marshall’s statement that “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”
Here in NL there was some serious litigation last year and this year about an orthodox christian political party (two seats in parliament), who don’t allow women to become members of their party (or stand for office, etc.) on religious grounds. The cases went all the way up to the Supreme Court, with most rulings, as well as the last and final one, going against the party. But none of the courts involved claimed the right to direct the party to change its statutes, or to direct the government to stop subsidising them. Given the highly political nature of the case, the courts were not willing, at this stage, to provide any other remedy than a statement of law.
July 9, 2010, 11:32 amMartinned says:
This case was about section 3 of DOMA, which dealt with the definition of marriage for various (>1400) federal law purposes.
What you’re talking about is section 2, which is undoubtedly (?) constitutional, and very much still the law of the land even in Massachusetts.
July 9, 2010, 11:35 amJoe says:
I thought the reason DOMA was passed, and what it addressed, was a spate judicial recognitions of gay marriage
No. It was the fear of such recognition. MA decided things in 2003 — years after DOMA.
In fact, the whole “problem” arose when one state’s court, based on its own constitution, was about to recognize same sex marriages as protected. The “problem” was dealt with by state constitutional amendment.
As to full faith and credit, states were allowed not to recognize marriages that violated long held social policy, and there is no reason to think this area was any different. This is why NY can recognize first cousin marriages, but some other state need not recognize them if state policy is opposed. DOMA was not necessary to apply this principle to this context.
If courts felt there was some Equal Protection problem as a whole based on the federal Constitution, simple legislation would not be able to override it anyways.
July 9, 2010, 11:36 amJCC says:
Just for the record, there are probably a good two orders of magnitude more people in the world who live in jurisdictions in which “marriage” includes polygamous circumstances than there are people where “marriage” includes (only) two members of the same sex. Arguing from a global/multicultural perspective, there’s probably a *better* case for allowing polygamy than there is SSM… but that issue was, of course, laid to rest back in the late 1800′s in America.
The notion that it’s some *giant leap* from alteration of the term “marriage” to include (only) two members of the same sex to alteration to include polygamous situations is absurd and rather disingenuous IMHO.
July 9, 2010, 11:37 amOwen H. says:
This isn’t about something that is a crime in both states. The claim is that a state where abortion was illegal could extradite someone from another state for performing legal abortions in that state, charging them with a crime for something that was legal where they did it.
July 9, 2010, 11:37 amOwen H. says:
Heck, it’s arresting me when I get home from the UK and charging me with driving on the wrong side of the road while I was there.
July 9, 2010, 11:40 amBob in FL says:
I guess I shouldn’t have brought Mass into the discussion, given the chronology (and probably not even the various referenda; CA has had two bites at that apple, Prop 22 in 2000 and Prop 8 2008, both well after DOMA). Wiki says it was potential action in Hawaii that prompted the act.
I was right that Georgia’s concerns, specifically, played a big role; it was Bob Barr that wrote DOMA.
As far as DOMA being unable to restrict the Full Faith and Credit Clause, that doesn’t appear to be the case. The Clause actually states (Article IV Sec. 1) “…Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
‘Course, not being a member of the guild, I don’t know how much previous judicial rulings have neutered that part of the Clause.
July 9, 2010, 11:51 amLester Livio says:
Juristocracy is getting more and more blatant…
What is an average citizen to do? I know what I will do the next time my county court clerk invites me to serve on a jury!
The Tea Party is looking more and more interesting!
July 9, 2010, 11:56 amzuch says:
Then state laws defining “marriage” as solely between a white and another white or between a non-white and another non-white (or between two people of opposite gender) are both superfluous and ineffective, eh?
Irregardless of this legalpickleconundrum, I think that the actual demonstrated fluidity of “meaning[s]” in languages should leave you a bit lessgayhappy about your ‘analysis’.Cheers,
July 9, 2010, 11:57 amzuch says:
Really? Why?
Cheers,
July 9, 2010, 11:59 amzuch says:
This is literally true (even if not the actual intent of such): Such statutes say nothing about the sexual orientation of the people, but simply prohibit on the basis of gender.
Cheers,
July 9, 2010, 12:04 pmDave in Georgia says:
Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.”
Works for me.
July 9, 2010, 12:06 pmSarcastro says:
Indeed! Why don’t judges go along with the people’s desires like the founders intended?
July 9, 2010, 12:07 pmzuch says:
Would the government have the power to recognise contracts entered into by two males or by two females, but not contracts entered into by a male and a female? Or the other way around? In not, why not?
Cheers,
July 9, 2010, 12:11 pmhnf says:
ok, this is very simple and not subject to interpretation. read the oath of office he swore to uphold upon becoming potus. how he actually does so involves some discretion, but he is bound to enforce and uphold the laws of the land.
July 9, 2010, 12:15 pmruuffles says:
Nope, just the Constitution:
Judges OTOH do have to uphold laws.
http://www.law.cornell.edu/uscode/28/453.html
July 9, 2010, 12:19 pmhnf says:
i don’t see an equal protection issue there. there’s no discrimination in that no group is subject to disparate treatment vis-a-vis any other group. precluding all persons from contracting w/ persons of the opposite sex doesn’t facially result in discrimination. i think it’s terrible policy, just like bans on SSM, but not necessarily a violation of EP.
July 9, 2010, 12:19 pmAnother guy named Dan says:
THat’s a big part of what makes Roe v. Wade such a bad decision regardless of what you think of the result. In order to reach what appears to have been a policy preference result, the justices used an expansive reading of the Fourth and Fifth amendments which has been rejected in every other context to synthesize the so called “constitutional right of privacy” that appears nowhere in the text.
The court then conveniently left out the fact that the police power to regulate the medical profession was not enumerated, and thus should have been left to the states in deciding that an abortion law that targeted doctors and not the expectant mother would also be unconstitutional.
July 9, 2010, 12:22 pmSteve says:
I think Loving v. Virginia pretty much disposed of this interpretation of the Equal Protection Clause.
July 9, 2010, 12:26 pmSteve says:
“In every other context”? What about Griswold, Eisenstadt, et al.?
July 9, 2010, 12:28 pmConnecticut Lawyer says:
Owen H,
I apologize for being less than clear. If abortion is illegal in State A, and a doctor performs an abortion there and flees to State B, which has a strong public policy of protecting the rights of women to obtain abortions, is State B required to extradite the doctor to State A under the FF&CC? How would you distinguish that case from the case where a gay couple gets married in State A and moves to State B, which has a strong public policy against recognizing gay marriage?
July 9, 2010, 12:29 pmold f*rt says:
Lester Livio: “It is only a matter of time before a judge decrees that non-recognition of polygamy is a denial of equal protection. How do you spell Muslims and Mormons in legalese?”
SuperSkeptic:”That is exactly my point:it most certainly could by the judicial logic used.The rebuttal of others seems to be that there is no likelihood of this, politically, so the logical implications should be ignored or that there is no such logical implication. …”
The Israeli Supreme Court, aka the High Court of Justice, gave a good answer to that many years ago. (I hope you are not one of those who feel that American courts should never look to foreign courts for guidance. But Israel, like many former British colonies, has a legal system based mainly on Anglo-American common law, and besides, what the judges said is merely common sense.) Polygamy is outlawed in Israel by criminal statute, although many Druze and Bedouin ignore the law, just as we have our polygamists in the West. But shortly after the law was adopted (in 1951, I think – I cannot find a reference to this case on the Internet, alas, so what follows is from memory), an Israeli Muslim sued to have the law overturned on the grounds that it violated his religious freedom. The Supreme Court ruled that while Islam allowed polygamy, it did not require polygamy, so there was no violation of plaintiff’s religious freedom. Plain and simple! I’m not sure what the learned Israeli justices would have made of a pre-1890 Mormon, from a time when Mormonism did require polygamy. But that is a moot point, since the LDS Church has banned polygamy since 1896. As far as America goes, nobody, even the most perfervid gay activist, is suggesting that either the legislatures or the courts change that part of the definition of marriage that limits it to no more than two people. (That’s people,not animals, which should satisfy those who are worried about bestiality…)
July 9, 2010, 12:29 pmL says:
I didn’t see anyone address this. The answer is that this is not the fundamental argument in favor of same sex marriage. It is actually a terrible argument in favor of same sex marriage.
The argument is not that the state cannot discriminate regarding who marries whom. The argument is that it furthers no legitimate interest of a state to restrict marriage to opposite sex couples.
Each form of discrimination has to be examined on its own terms. This is what makes the slippery-slope arguments so annoying, because they are so irrelevant. If you want to talk about polygamy (number discrimination?), we can talk about polygamy. If you want to talk about bestiality (species discrimination?), we can talk about bestiality. But if we’re talking about sex discrimination in marriage, we have to talk about that.
And if it is a matter on which states are completely sovereign, how could federal courts say they couldn’t do it? Seems like a Tenth Amendment state sovereignty argument might be one which same sex marriage proponents ought to approach with caution unless they are sure that state courts everywhere would take up their cause.Probably I just don’t understand, but if someone who knows more could help out I would appreciate it.
But look at the post again. No liberal constitution or conservative constitution. SSM proponents don’t get to opt in to or opt out of the Tenth Amendment depending on whether it furthers their strategy.
(Personally, I would argue that this discrimination–by states or by the US–violates the US Constitution. That takes care of any 10th Amendment problem, and any other problem as well. Of course I recognize this is probably not a mainstream view right now.)
July 9, 2010, 12:30 pmManju says:
Libertarian wet-dream ruling. Gay rights enabled via States Rights. You don’t get a gimmie like this too often. I wonder where Scalia, Thomas & Co will land on this one.
July 9, 2010, 12:31 pmyankee says:
Would precluding everyone from contracting with members of a different race be nondiscriminatory too?
Your hidden assumption seems to be that “discrimination” only takes the form of discrimination against one group in favor of another group. On this view, different-but-equal arrangements are not a form of discrimination if they are truly equal. I don’t think this view is sustainable.
July 9, 2010, 12:33 pmConnecticut Lawyer says:
Bob in Fl,
You should think about going to law school. You’ve hit the nail on the head. DOMA was, in part, an exercise of Congress’s power under the Full Faith and Credit Clause to clarify that States opposed to gay marriage would not be forced to recognize gay marriages performed in other States. The purpose was, precisely as you stated, to avoid a situation where one judge sitting in one state could force a radical change in social policy for every state.
IMHO, the FF&CC permits states to decline to recognize gay marriages performed in other states whether or not Congress weighs in via DOMA or otherwise, and eventually we’ll find out if the Supreme Court agrees with me.
July 9, 2010, 12:38 pmzuch says:
That’s the “Constitution”, not the statutes.
That doesn’t mean he has to defend them in court. Particularly if his conclusion is that the laws in question are not valid laws. It’s a bit dicier as to whether he can refuse to enforce laws that he thinks are constitutionally suspect; it might well be that his duty to execute his office requires such even as he seeks to have them struck down in court. And there is some notion that he’s given fairly wide discretion as to exactly how to enforce any laws (just as any law, local, state or federal, may be enforced with some discretion, within limits).
Cheers,
July 9, 2010, 12:43 pmwilky says:
I really don’t get the same sex crowd saying that they are the only ones being discriminated against. In about half the states, a man and woman can be married only if certain conditions are met, ie. first cousins
July 9, 2010, 1:10 pmKevin P. says:
So you’re comparing carrying a concealed gun, with a permit, to shooting someone in the head? Just to be clear…
You certainly seem to have a hole in your head, but it didn’t come from a gunshot.
July 9, 2010, 1:12 pmyankee says:
All the states impose requirements of some sort. Both parties must be unmarried, they may not be too closely related, they must have some minimum number of witnesses, they must have an officiant (except in Pennsylvania), they must pay a filing fee, etc.
July 9, 2010, 1:21 pmJaimeInTexas (an invisible man ... to the Keynesians) says:
Ahh, no! Roe v. Wade is an usurpation by the FedGov, just like prohibition (of the drug kind). It will be overturned as-soon-as the SCOTUS justices no longer make decisions based on whether it will hurt the SCOTUS “reputation.”
July 9, 2010, 1:23 pmShelbyC says:
Dunno why. But according to Seth Waxman based on some quick googling, the justice department “is bound to defend the constitutionality of all acts of Congress unless no reasonable arguments can be made in support.”
I’m not really making an assertion, just stating my understanding.
July 9, 2010, 1:34 pmJoe says:
As far as DOMA being unable to restrict the Full Faith and Credit Clause, that doesn’t appear to be the case. The Clause actually states (Article IV Sec. 1) “…Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
My point is that states ALREADY did not have an absolute requirement under FFCC to recognize all out of state marriages; I did not say that the feds somehow are “unable to restrict” pursuant to the clause itself.
Two points though. (1) The word “general” very well can be a problem, since DOMA singles out one category of marriage (2) The Equal Protection Clause limits discretion. So, the feds can’t pass an interracial marriage DOMA.
July 9, 2010, 1:36 pmManju says:
Heh. This is an excellent suggestion. Precisely the type of cunning divide and conquer mindset missing in principled-to-a-falut libertatian circles. Force the two statist sides to give up some authoritarianism in order to get a freedom they really want, and we end up with a nice libertarian middle ground.
Libertarians have no chance at potus or a majority in congress but brokering deals like this is defacto real power.
so the libertarians give up states rights (its not that importance anyway, at least compared to individual rights and equality under the law), the right-wing gives up legislating their morality, and the left will have to clench their teeth as gun rights are positioned as morally equivalent to gay ones.
I see Kamal is balking already at the offensive thought, but I’m sure if he thinks about it practically, he’ll realize its a pretty damn good deal. Take the damn deal, Kamal!
July 9, 2010, 1:43 pmJCC says:
That’s presuming that race issues *directly* correlate with gender. I can think of about 45 different ways why they don’t and why the burden of proof is on SSM advocates to establish that that’s indeed the case. Race and slavery has a unique history within America, and attempts to short-circuit debate by equating supposed-civil-rights-issue-XYZ with anything connected with race should and will get tossed out by the courts.
July 9, 2010, 1:46 pmJCC says:
Careful there… ;) The outcry over the DoJ’s response in this suit defending DOMA boiled down to “how dare you compare awesome-politically-correct gay marriage with evil-politically-incorrect incest”. But yes, you’re exactly right.
July 9, 2010, 1:50 pmAJK says:
So in other words, you agree: there’s no logical reason equal protection wouldn’t apply to polygamy; you just aren’t interested in seeing it happen.
July 9, 2010, 1:55 pmJCC says:
Again, there’s some question-begging going on.
There’s a difference between “a marriage that is against a law” and “something that is not a marriage”.
SSM advocates claim that marriage has always meant “two people entering a union” and that the set of laws regulating what marriages were allowed vs not (re: consanguinity, race) never included opposite-genderness until the last 20 years or so. They then try to establish a parallel between race laws and opposite-gender laws (while apparently leaving the consanguinity laws alone?) and claim that Loving v. Virgina should apply to both. Left un-answered is a) why marriage should be only “two people”, vs number being another set of laws, and b) why SSM marriage was not legal prior to the recent anti-SSM laws in areas where sodomy wasn’t illegal… and why Baker was laughed out of court.
Anti-SSM advocates claim that marriage has always meant “two people of the opposite sex entering a union” and that laws regulating what marriages were allowed vs not (re: consanguinity, race) were regulatory laws and never had to include gender because it was “duh, obvious.” Loving v. Virgina was decided on the basis of the history of racial discrimination in the US more than anything else, and incorporated the fact that almost 40 states had already reversed their anti-miscegenation laws and most of the rest didn’t enforce them. They argue that DOMA was there to re-iterate an existing common law determination and prevent regulatory FF&C acknowledgment (dealing consanguinity, race) from leading to same-gender inclusion by some sort of unlikely-at-the-time judicial fiat.
This is why you have one side arguing EP and the other side arguing that EP is irrelevant because it’s a definitional issue, not a regulatory issue.
July 9, 2010, 2:11 pmManju says:
well, I thnk you got things backwards. John Locke didn’t start out with a totalitarian state and then decide what freedoms to allow. No, he started out in a state of nature and then decided what to restrict. There’s areason for this.
our regime is designed to maximize freedom w/o becoming a sucicide pact. so we only worry about slippery slopes slipping one way. that gay marriage may lead to polygamy marriage isn’t an argument against gay marriage, anymore than its an argument against interracial marriage.
your argument reminds me of liberals worrying that misslie launchers are constituionally protected if we allow for gun rights. where’s the logical reason to ban one but not the other they whine. they fail to realize you have to justify the restriction, not the freedom, and if you can justify it then thats where the line shall be
through frankly i have no problem with polygamy. would practice it myself if i could.
July 9, 2010, 2:12 pmSteve says:
If I had said Loving disposed of the issue of SSM altogether, your response/rant would be on point. But all I said was that Loving conclusively refutes the argument that equal protection is not violated because “both genders have the right to marry someone of the opposite gender.” There may be a million good arguments why anti-SSM laws don’t violate equal protection, but that particular bit of sophistry is not one of them.
July 9, 2010, 2:26 pmMike P Wagner says:
Interestingly enough, you also don’t need an officiant in North Carlina – probably for the same reason. You can be married “By the Society of Friends, according to customs of the Society.” Since Friends don’t have ministers, there is no officiant (if I understand what officiant means).
One web page I found also apparently exempts Bahai’s. “By a local Spiritual Assembly of the Baha is in accordance to the usage of their religious community.”
Buncombe County Register of Deeds
I can’t find the statutes for this,but my marriage was under the care of the Chapel Hill Monthly Meeting of the Society of Friend. There was no official or minister present.
July 9, 2010, 2:27 pmSarcastro says:
[What's the class being discriminated against?]
July 9, 2010, 2:35 pmyankee says:
Oh, I didn’t realize that! I thought Pennsylvania was the only state that allowed self-uniting marriages. Good for North Carolina.
July 9, 2010, 2:45 pmSuperSkeptic says:
It is not an obvious red herring. Again, it is the logical implication of the argument in favor of “same-sex” marriage that “polygamous” marriages should be permissible as well. And I do not hold the antiquated views you presume that I do. I am not anti-polygamy, either.
July 9, 2010, 2:49 pmBobVB says:
I don’t know about judicial logic but the regular kind recognize these as different kettle’s of fish:
Adult unrelated unmarried males and females were totally acceptable spouses to half the US adult citizens before Massachusetts, and now the majority can have them as spouses – all marriage equality is about is letting all citizens have the same rights that others already do.
In contrast no one is allowed to have more than one spouse at a time, no one is allowed to have a too closely related spouse, there is no equality issue. Further there is no indication that there is any class of people that can only be reasonably expected to marry more than one, or can only marry a close relative (like in the movie Cat People). There is ample evidence that there are citizens who can only be expected to marry just a particular gender.
And the current ruling is not about interstate recognition but the feds recognizing valid marriage contracts licensed by the states – they can’t pick and choose which ones they are going to recognized any more than there is a fed lower age limit, a fed familial relationship limit, etc.
July 9, 2010, 2:51 pmSuperSkeptic says:
Marriage status laws generally discriminate and hurt a group – the unmarried. I suppose we should abolish all such status differentials then under this equal protection rationale. Even better, I say.
July 9, 2010, 2:53 pmyankee says:
“The” argument? There are lots of arguments in favor of same-sex marriage (not all of them good ones): that it’s sex discrimination, that it’s discrimination against gays and lesbians, that it benefits the children of gays and lesbians (and thus benefits society), that people should be able to marry who they love, that God wants same-sex couples to be able to marry, and so forth and so on. Some of them can be extended to arguments for polygamy, and others can’t.
July 9, 2010, 2:58 pmSteven Willis says:
No one seems to have pointed out that Judge Tauro was appointed in 1972, apparently by President Nixon.
Except for the few pages on equal protection, I see the HHS case as exactly right. States have always determined issues of marriage and have done so inconsistently and for themselves. While marriage is not a “public act” and is thus not entitled to FF&C, that issue has nothing to do the the federal government’s recognition. If Mass. says two people are married – and if Mass. has jurisdiction to say so (ala Williams v. N.C. I and II) – then the federal government should recognize the marriage for federal purposes. Under the 10th Amendment, it should not be able to burden the State, as Judge Tauro held.
Hence, as a tax lawyer, I would advise two men domiciled in Mass. and married in Mass. to file a joint tax return. But, if they moved to Florida, I would advise them not to do so. If one remained in Mass. and the other resided in Florida, I would have to think about it – but probably would conclude no joint return is appropriate. In the process, I’d have to consider issues of residence versus domicile versus presence. At some point, so will everyone.
The polygamy issues strikes me as theoretically a real issue, but politically very unlikely. I cannot imagine a State recognizing polygamy in the near future; however, if one were to do so, I believe the federal government would have to recognize the marriage for federal purposes to the extent failure to do so unduly burdened the State.
July 9, 2010, 2:59 pmSuperSkeptic says:
Two things: (1) If we are going to define marriage at all, then it should be done by the states. (2) If we are going to apply equal protection rationales, then, yes, anything other than the currently established definition of marriage would have to give equal protection to other conceptions of marriage – or else they are discriminatory.
As to my first point, I can’t help it that my own cultural biases overlap with the states’ established power vis-a-vis the federal government, but yes, it is convenient for me. As to the second point you are not sure about, I am not against anything other than traditional marriage. Gays are cool. So are multi-wife-bangers in my book. I’m a libertarian. As to the “fundamental right to marriage” – who knows whether we have one or not (SCOTUS will tell us push comes to shove), but whatever that right’s scope is surely depends on the definition of marriage.
July 9, 2010, 3:02 pmBobVB says:
Well the most popular kind, polygyny is obviously unconstitutional as only the men are allowed to have multiple simultaneous marriage contracts in force.
As to true polygamy of the hippy commune variety I don’t know that anyone’s asking since that’s basically looking a the group as a corporation, and the SCOTUS says corporations are people that would actually involve less change than might be thought at first consideration.
July 9, 2010, 3:06 pmKamal says:
Did you read what I posted? I am saying the dangers of someone carrying a concealed gun, even with a permit, is more dangerous to society than allowing me to marry another man. That’s not debatable. And what is being offered as a trade is offensive. Should we have had to give conservatives grenades in order to support interracial marriage?
July 9, 2010, 3:07 pmSteven Willis says:
@BobVB:
I was responding to whether “polygamy” is a red herring-type issue. I believe it is not, theoretically, but is one politically.
I’m not convinced about whether a State could permit polygamy for men and not for women – but issues of gender discrimination strike me as appropriate for another thread. Here, I do not see equal protection and due process as appropriate issues. I refer only to the HHS decision.
Corporations are “persons”; however, they are not “individuals.” This makes a big difference in many legal areas.
July 9, 2010, 3:14 pmKamal says:
When it comes to protecting citizens, it should not be left up to the states any more than national defense is. As much as people like to pretend we are just talking about word definitions, we are actually talking about very substantial rights we are denying to a couple based on their genders. If you want to argue that marriage should not be recognized by the government (federal or local), i’d support you. Given that it is..
July 9, 2010, 3:16 pmptt says:
Here’s the man himself explaining why DOMA is wrong:
http://www.latimes.com/news/opinion/commentary/la-oe-barr5-2009jan05,0,1855836.story
July 9, 2010, 3:16 pmSuperSkeptic says:
Then there is no legitimate interest of the state to restrict marriage to couples. Annoying to you, perhaps, but highly relevant.
July 9, 2010, 3:19 pmptt says:
Something to take into consideration:
http://articles.sfgate.com/2010-06-03/business/21655089_1_domestic-partners-income-tax-community-property
July 9, 2010, 3:20 pmSuperSkeptic says:
I agree that the issue is very substantial, but its substantiality does not make it automatically federal.
July 9, 2010, 3:22 pmSuperSkeptic says:
True enough; I spoke (wrote?) carelessly. Bad thing for a lawyer. I was referring specifically to the equal protection argument, I believe, in that comment.
July 9, 2010, 3:24 pmyankee says:
I don’t see how the EP arguments against sSM bans extend to polygamy. Polygamy bans aren’t sex discrimination, and they aren’t sexual orientation discrimination, and you’re going to have a hard time arguing that desire to engage in polygamy should be a suspect classification. So how does it extend?
July 9, 2010, 3:33 pmBobVB says:
yes but let’s be clear – the middle eastern, old testament ‘polygamy’ is restricted to couples – its just the male can be in multiple couples at the same time. Each woman is only married to him, not to each other.
Obviously such gender discrimination is unconstitutional and the state’s would have a subsequent interest.
True polygamy which none are asking for that I know of would actually stand a better chance though the issues would be less urgent since proscribing some from marrying a particular gender effectively abrogates their right to marry, while by the very nature of a polygamous relationship those that advocate it show they are more than capable of marry men and women, and a limit to just one is just that, a limit on, not an abrogation, of their right to marry.
July 9, 2010, 3:34 pmjrose says:
I disagree. In my opinion, the state should be able to define the purpose of civil marriage (so long as that purpose is rational and not a pre-text for discrimination). Then, when the state attempts to restrict marriages that fall within that purpose, it needs to overcome some form of heightened scrutiny. But, when it attempts to restrict marriages that fall outside that purpose, great deference should be given to the state.
For example, the state can rationally believe the purpose of marriage is to encourage people to settle down with a lifemate without that being a pre-text against polygamists. Then restrictions on same-sex marriage must pass heightened scrutiny, but those against polygamous marriages would not.
July 9, 2010, 3:35 pmhnf says:
i’m not an expert here, so i’d like to hear the pov of someone who is. it seems to me that inherent in the duty to “uphold the constitution” there is, among other things, a duty to enforce the laws which congress has enacted pursuant to its constitutional authority given congress’s lack of an ability thereof under seperation of powers (and the executive’s exclusive authority to do so). that’s awkward phrasing, i know, but basically the duty to uphold the constitution translates into a duty to enforce the scheme contemplated therein.
July 9, 2010, 3:36 pmhnf says:
this is the comment i was referring to:
ruuffles says:
Nope, just the Constitution:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
July 9, 2010, 3:38 pmJCC says:
Isn’t that the entire point of contention here? That the two arguments back to back in these cases are undermining themselves. Either it’s entirely up to the states and not the proper domain of Federal involvement, or it’s a domain of Federal regulation and not up the states to define.
I still think all of this is missing the forest for the trees. The parts of DOMA that regulate what “effect” marriage laws have among the states are different from what the Federal government considers in areas where this is no State jurisdiction. How does it handle DC? Marriages performed (or attempted to be performed) in unincorporated territories? Can I fly out to the Palmyra Atoll and try to get married to another male? To my brother? Does a State have to recognize a marriage in Puerto Rico if it’s contrary to that state’s public policy (as determined by that State)?
All of these questions are areas where the Federal US gov’t has some level of jurisdiction… Just because the States may have to give FF&C (even if it’s not a Public Act) doesn’t mean the Federal gov’t *must not* set its own definitions and its own rules.
The only reason this is coming into play is because there *are* so many benefits and other things that the Federal gov’t does… As Balkin mentioned, one of the options going forward is to challenge the growth of Federal powers, something liberals probably don’t want to do.
July 9, 2010, 3:47 pmSuperSkeptic says:
After SSM, what is the rational (and non-discriminatory) basis for limiting the number of people in the marriage to 2?
(Beyond that, I find the whole “suspect classification” regime to be a bunch of bullshit… but that’s another story…)
July 9, 2010, 3:47 pmOwen H. says:
That’s easy. In one, the person committed a crime. In the other, they didn’t.
July 9, 2010, 3:49 pmDave M. says:
Because this was already discussed in the initial thread yesterday.
July 9, 2010, 4:00 pmSuperSkeptic says:
jrose,
Your contention regarding the States establishing the purposes of civil marriage from scratch is troublesome in many ways. The fact that we have marriage at all is by custom*. That’s the central fact and problem here. Any purported original definition of the proper purposes of an inherently discriminatory status system is … just … a pandora’s box to say the least (beyond simply the “scrutiny” issues…).
* “For, in truth, custom is a violent and treacherous schoolmistress. She, by little and little, slily and unperceived, slips in the foot of her authority, but having by this gentle and humble beginning, with the benefit of time, fixed and established it, she then unmasks a furious and tyrannic countenance, against which we have no more the courage or the power so much as to lift up our eyes.”
July 9, 2010, 4:01 pmL says:
I’ve underlined the word that makes you wrong. If you want to argue that the state has no legitimate interest in restricting marriage to couples, you go ahead and find someone to argue about that with (not me; I don’t have a strong enough opinion on the issue).
But you can’t say: “If the state has no legitimate interest in restricting marriage to opposite-sex couples, then the state has no legitimate interest in restricting marriage to couples.” It does not follow. Whether the state can legitimately ban polygamy is its own question – you have to line up the arguments in favor of the ban, and see if you can knock them down. Considering there are arguments in favor of a plural marriage ban that do not apply to an SSM ban, you can’t just go from legal SSM to legal polygamy in one step.
The only part that’s annoying is this assumption that the arguments for SSM and the arguments for plural marriage are somehow connected. There’s nothing annoying at all about you arguing in favor of plural marriage. Like I say, I don’t have a strong opinion on the issue.
July 9, 2010, 4:01 pmhnf says:
i think you’re incorrectly overlooking the fact that not *all* laws having a discriminatory impact are subject to rational basis scrutiny. first you have to have a recognized suspect class, so it’s actually that “regime” that should alleviate your concern. i think it’s pretty unrealistic to assume that if homosexuals are recognized as a suspect class so, in turn, will polygamists or animal lovers.
July 9, 2010, 4:02 pmL says:
Wait. Do you think that EP means discrimination isn’t allowed? Discrimination is discriminatory. Limiting marriage to two persons is discrimination. You don’t have to come up with a non-discriminatory basis to discriminate.
Discrimination is allowed if the discrimination survives the relevant standard of scrutiny. For plural marriage, I suppose it would have to withstand rational basis scrutiny.
July 9, 2010, 4:09 pmyankee says:
No, a suspect classification opens the door to heightened scrutiny. Rational basis is applied when the law applies a non-suspect classification.
July 9, 2010, 4:15 pmShelbyC says:
Isn’t it the class of people who want to have more than one spouse?
July 9, 2010, 4:18 pmSuperSkeptic says:
L, I was thinking more pre-textual, sort of, like facially neutral but obviously there to just keep out the icky poly-marriagers.
July 9, 2010, 4:21 pmMichael B says:
“… the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.””
The degree to which “the logic of his arguments” is intended to be “taken seriously” vs. “taken for purposes of tendentious effect in singular cases” such as the present DOMA case, is all too much on point – may well in fact be the most pivotal question at hand.
The ends justifying the means, etc. Both the legal reasoning and still more certainly the reasoning in general, applied by this judge, is dubious, is specious. Subsequent rulings will be able to use it as they wish – which in turn may be the intended effect as well.
(Which is why so much illogic accompanies so much of the commentary in this and related threads.)
July 9, 2010, 4:22 pmjrose says:
I’m arguing it is OK to be inherently discriminatory so long as the purpose is rational and not aimed at disadvantging a classification.
For example, if the state argues the purpose of marriage is to encourage the raising of children in a stable environment by their biological parents*, that strikes me as rational even though it inherently discriminates against gays. Similarly, if the state argues the purpose of marriage is to encourage people to find a lifemate, that strikes me as rational even though it inherently discriminates against polygamists. If however, the state argues the purpose of marriage is to encourage people to find an opposite-sex lifemate, that strikes me as irrational – a pre-text for the inherent discrimination.
* However, given the way the infertile and elderly are treated, that can’t be the only purpose to marriage.
July 9, 2010, 4:39 pmL says:
Ah. One argument (not my argument – I don’t have any arguments) is that allowing plural marriage would require a minor overhaul of family law. As opposed to SSM, which would just require printing new marriage license applications.
That is, there are a host of unanswered legal questions that would need to be answered if more than two individuals could be married. The radical change in marriage law that would result arguably supplies a legitimate interest in maintaining the status quo.
Another argument is incentives re benefits. As it is now, someone can enter into a sham marriage in order to get somebody on insurance, etc. It’s probably not a huge problem, because you only get one marriage (at a time), and a lot of people would probably rather use it on someone they truly love. And if there are some shams out there, it’s at least limited to one per person. But if you allow plural marriage, I could get all of my unemployed and student friends on my nice insurance. And so could you, and so could a lot of people.
A similar argument has been extended re SSM: that is, allowing gays to marry will cost more, because that’s just more people eligible for marriage benefits. And the response is, okay, we see why you want to draw a line, but how do you justify drawing that line there? You could also save resources by not allowing marriages for people under 30, or over 50, or by only allowing same-sex marriage. Arguably, it looks a lot less pretextual to say, “Everybody gets one” than to say “5 to 10 percent of you don’t get to get married (unless you want to marry someone you don’t love).”
July 9, 2010, 4:44 pmMichael B says:
The underlying social and political dogmas, assumptions, priorities, etc. – none of which are explored or even admitted by this judge – are the real issue at hand. Legal reasoning as such, is wholly, is entirely secondary in these types of cases. Nonetheless, jurists become accustomed to announcing in an ex cathedra manner, no matter the underlying quality and temper and substance of the case – i.e. no matter if it’s a zoning issue, or an absolutely fundamental issue as applied to the social, constitutional and institutional fabric.
If it were otherwise, the extended implications would also be fully admitted and explicated – e.g., as applied to prospects for legalizing bigamy, polyandry, and yes, for far more “outlier” or “deviant” customs as well.
July 9, 2010, 4:44 pmKiel says:
You can’t define a class of people by something they want. BEING black, Being Asian, Being Jewish, Being left-handed, Being phyiscally disabled, Being heterosexual – those are criteria by which you can classify a group of people who may or may not be discriminated against invidiously. No one, no matter how many people they WANT to marry, is born a polygamist and can claim some kind of class discrimination. Polygamists can, after all, get married, even in this country, if only to one person (at a time). And even in parts of the world where polygamy is legal, no one is required to marry more than one person.
July 9, 2010, 4:47 pmL says:
When judges find that certain forms of discrimination are constitutionally forbidden, what they often fail to consider is that some of us are really, really attached to these forms of discrimination.
July 9, 2010, 4:52 pmL says:
Hold on. What is it that makes me heterosexual, if not something I want, i.e., sex with women? (Wait – I’m married; better make that “sex with one woman.”)
July 9, 2010, 4:55 pmShelbyC says:
Hold the phone there. Aren’t heterosexuals (or homosexuals, for that matter) classified based on what they want?
July 9, 2010, 4:57 pmKiel says:
No, of course not. Maybe if what you are attracted to was under you conscious control, you’d have a point. Heterosexual (or homosexual or bisexual, etc.) is something you ARE, not something you WANT. Otherwise, you could only describe yourself as straight or gay or bi while you were having (or wanting to have) sex.
July 9, 2010, 5:02 pmboy george michael jackson says:
By that logic, no one, no matter how much they WANT to marry a person of the same sex, is born a homosexual and can claim some kind of class discrimination.
Homosexuals can, after all, get married, even in this country, if only to a person of the opposite sex.
Your logic applies with equal force to homosexuals. Excepting homosexuals, but not polyamorists, from that logic is just a form of special pleading on your part.
July 9, 2010, 5:02 pmhnf says:
so, to be a suspect class, membership must be attained at birth or not at all? how do you apply that to religious affiliation? what else is that but fulfillment of something “wanted”. surely you’re not suggesting that the court should engage in evaluating the merits of different desires (e.g., legitimate, frivolous, dire, etc.).
July 9, 2010, 5:06 pmboy george michael jackson says:
And being polyamorous is something you are, not something you want.
July 9, 2010, 5:07 pmShelbyC says:
The classification is based on who you generally want to have sex with. If you generally want to have sex with folks of the same sex, you are, ipso facto, gay. If you don’t, you’re straight.
July 9, 2010, 5:08 pmKiel says:
By that logic, no one, no matter how much the WANT to marry a person of the opposite sex, is born a heterosexual and can claim some kind of class discrimination.
Banality works both ways. But the fact remains that heterosexuals can marry, and homosexuals cannot.
July 9, 2010, 5:11 pmKiel says:
Religious affiliation is a first amendment protection, not a fourteenth amendment equal protection. The founding fathers were aware of religion’s mutability and carved out a different class of constitutional protection accordingly.
July 9, 2010, 5:16 pmboy george michael jackson says:
It’d be bizarre for the Supreme Court to declare sexual orientation a suspect class when gender isn’t.
July 9, 2010, 5:17 pmOwen H. says:
I am polyamorous, have a polyamorous relationship, and I still recognize that there is a difference between extending marriage to same-sex couples, and poly-marriage. SSM involves exactly one thing; removing gender from the equation. It does not change the laws, rights, privileges, or anything else about the relationship. A poly-marriage would require very serious reworking of a lot of laws. A simple one- spouses have medical power of attorney. What do you do if there are more than one, and they don’t agree?
On the other hand, I am surprised that the folks using religion as a basis for denying SSM legal status aren’t in favor of polygamy all around. It’s all over the Bible, after all.
July 9, 2010, 5:18 pmboy george michael jackson says:
Right, which is why your logic is inane.
Indeed, which is why your argument that polyamorists can’t be born polyamorous because of their sexual wants is self-defeating.
July 9, 2010, 5:20 pmhnf says:
you’ve essentially said that suspect status cannot apply to anything achieved by voluntary behavior. it’s either endowed at birth or not worthy of class protection.
what about religious affiliation? political? i don’t think anyone would argue people are born either republican, democrat or independent.
July 9, 2010, 5:22 pmSarcastro says:
[That's not a very good class - that's like saying speeding laws discriminate against people that want to drive faster.
If it's not protected, then it's rational basis. I would expect that the historical evidence of abuse would be sufficient basis.]
July 9, 2010, 5:24 pmOwen H. says:
Nope. Things like gender get intermediate scrutiny. Gender is not a suspect class, but try passing a law saying only men can be licensed as doctors. That’s why Massachusetts ruled as it did when it legalized SSM, and part of why this judge ruled as he did; the ban was not based on actual, fact-based differences, but on animus.
Several states, such as California, include sexual orientation as a suspect class under their laws.
July 9, 2010, 5:25 pmhnf says:
i wasn’t arguing for or against recognizing homosexuality as suspect. just wanted to point out that suspect classification isn’t limited to status achieved irrespective of voluntary behavior.
July 9, 2010, 5:27 pmKiel says:
I would agree with you, generally. But the point is that this doesn’t translate into a coherent comparison with polygamy. Either you are attrected to men, or women, or both, and you arrange your life, liberty, and pursuit of happiness accordingly. No one is INCAPABLE of only being married to only one other person at a time. No one is asking polygamists or polyamorists to give up those things prior to getting married. Homosexuals, on the other hand, are told to fundamentally alter the object of their emotional and sexual desires (something no serious person believes individuals have any conscious control over) prior to obtaining a marriage license, something hetersexuals are not asked to do.
July 9, 2010, 5:28 pmShelbyC says:
I don’t see why desire to engage in polygamy is any less of a suspect classification that desire to engage in SS relations. But my biggest beef with the EP argument is how you justify not giving any benefits that married people get to, well, to people who aren’t married.
July 9, 2010, 5:31 pmKen Arromdee says:
And gay people can get married, if only to a person of the opposite sex. This is not an acceptable argument for gay people; why is it for polygamists?
July 9, 2010, 5:34 pmKen Arromdee says:
The same thing you do nowadays when there are multiple people with such power (for reasons other than being a spouse).
July 9, 2010, 5:35 pmKiel says:
I didn’t mention polyamory in that post. I only mentioned polygamy.
July 9, 2010, 5:37 pmShelbyC says:
Sure, that’s based on the fact that gays make different lifestyle choices than the people who have the most say in writing marriage laws. Gays have all the rights that everybody else does, but their desires cause them to make different choices, ones that a majority of the population has chosen to ban. What this illustrates is that equality isn’t enough, people also need the autonomy to make the choices that best fullfill them, and the govt should do its best to allow them to do that.
July 9, 2010, 5:40 pmhnf says:
the two (1st am. clauses and 14th ep) aren’t mutually exclusive. as far as i know, the court has never ruled on the latter because of the former. but that hardly allows for the inference that persons aren’t entitled to equal protection under the laws irrespective of religious affiliation. if, somehow, the free exercise clause was ever found n/a to a given case (if incorporation overturned–not that it would happen, but hypothetically) involving discrimination against a particular religious group, the group would undoubtedly be entitled to suspect classification and strict scrutiny under EP.
July 9, 2010, 5:46 pmKiel says:
Since when does the majority of the population have the right to ban innocuous lifestyle choices, especially when those bans only pertain to a historically persecuted minority? And what exactly do you mean by “lifestyle choices?”
Look, either gays are human beings and citizens of the US or they aren’t. If they are, then they have the right to get married and start a family just like all other human beings and citizens do. The law does not have to respect that the majority doesn’t want them to enjoy those freedoms.
July 9, 2010, 5:48 pmboy george michael jackson says:
Incorrect because a classification is suspect only under 14th Amendment equal protection analysis.
When a law is “challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations” by applying rational basis review unless “a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage.” City of New Orleans v. Dukes.
July 9, 2010, 5:49 pmJCC says:
Now you’re getting into ethics, but essentially yes. Religion is mentioned in the Constitution, which, extended, implicates the expression thereof of it as a protected class. Race and gender are immutable (barring genetic disorders). Race has a special place in terms of protection due to the history within the US. Gender would seem to be protected, but even that isn’t at the level of race (it took 60 years after the slaves were freed before sex was required to be removed as a precondition of voting).
The presumption that sexual preference is deserving of the same level of protection (at the Federal level) is flawed.
July 9, 2010, 5:51 pmboy george michael jackson says:
Same difference. The logic of your argument that polygamous people can’t be born polygamous because of their sexual “wants” is still inane and self-defeating.
July 9, 2010, 5:55 pmKiel says:
No – there’s a semantic difference. A polygamist is someone who practices some form of group marriage, regardless of whether they are polyamorous. Polyamorists may be born that way, but no one is born incapable of being MARRIED to only one person at a time.
July 9, 2010, 6:02 pmhnf says:
reading comprehension fail. don’t impute more than i actually wrote. any presumption that sexual preference is deserving of suspect classification is entirely your own. but, if systematic discrimination continues (or is perceived to continue, it may very well be at some point).
mutability is one characteristic that accompanies suspect classification; however, at no time has it been held to be an absolute prerequisite. that’s my only point: suspect classification isn’t necessarily limited to involuntary status/circumstances accompanying birth.
were it not for the first amendment clauses, which accompany affiliations generally made of free will such as religion and political affiliation, strict scrutiny would be applied to any law discriminating on the basis of religion or political speech
July 9, 2010, 6:02 pmJCC says:
Wait.. Is conscious control the requirement here? Good to know that all those pedophiles out there are in a protected class too. And I have no idea when I became afraid of heights (I’d love to change it if I could)… I guess that makes me protected, too. From now on, I shan’t be required to attend any Federal court that is above the second story in a building. :)
FTR, “something no serious person believes individuals have any conscious control over” is an unsupported premise; lots of serious people believe that sexual preference is not innate and thus can be modified with conscious or psychological effort. But even without conscious control, if it’s malleable then suddenly your at-birth medical condition is now just a behavior — like plenty of other things that don’t amount to a suspect classification.
Ex: I had a friend who was lesbian in college and is now happily married to her husband. Explain that.
And also, FTR, no one is being “told to fundamentally alter the object of their emotional and sexual desires…prior to obtaining a marriage license”. Does someone have to sign a declaration disavowing homosexuality before they can get married? (If they were, that would be clearly illegal.) You’re confusing the issues of homosexual behavior, the state of “being homosexual” (implying that you’re born that way), and “applying for a same-sex marriage”. Those are distinct.
July 9, 2010, 6:04 pmShelbyC says:
Well, unfortunately the majority has had the right to ban innocuous lifestyle choices since pretty much forever, right? (and by lifestyle choices I mean the right to make decisions about how to live your life, including marrying someone of the same sex. Gay citizens have exactly the same right to get married and start a family as everybody else does. But since people are different, having exactly the same rights as everybody else isn’t enough, is it?
July 9, 2010, 6:04 pmConnecticut Lawyer says:
A few random thoughts.
1) Sexual orientation is not a subject class under the Constitution. Point me to a supreme court case that says otherwise.
2) The Court has accepted an argument that the so-called right to privacy extends to sodomy. The theory is that intimate acts of personal love are protected by the right of privacy. From that you can argue that the intimate choice of a marriage partner ought also to be protected. If the only purpose of marriage is to provide for the happiness of the individuals involved, that’s not a terrible argument. The only problem is you can’t logically confine it to gay marriage: if marrying another guy is the key to my personal happiness, but marrying three women is the key to your happiness, it’s hard to see what the Constitutional difference is. Either the Constitution protects intimate choices necessary for personal happiness or it doesn’t. Or marriage is a social institution that serves other purposes (child rearing, procreation, property rights) and the courts are ill-equipped to second guess legislatures on the balances they strike to satisfy those other ends.
July 9, 2010, 6:05 pmJCC says:
Fair enough. However a LARGE number of the commentariat seem to be assuming that it is (or should be). If sexual preference is NOT to be taken as a suspect class, then the pure vitrol the pro-SSM side gives to the anti-SSM side makes even less sense. (Don’t even get me started on the number of times I’ve gotten called (lit.) “a racist” for having been in favor of Prop 8… wtf)
July 9, 2010, 6:07 pmJCC says:
Sorry, that should read:
the state of “being homosexual” (implying that it’s a continuing, statically present condition)
July 9, 2010, 6:10 pmyankee says:
Not quite; gender reassignment surgery is getting better every year. Depending on your state and what kinds of surgery you’ve had, you may be able to get your gender changed on your birth certificate and driver’s license. Social Security and the State Department will change your gender in their records as well, though I think they have different requirements in terms of what sorts of surgery you need to have had.
July 9, 2010, 6:11 pmboy george michael jackson says:
Except I used “polyamorous” in a sense synonymous with “polygamous”:
“po·lyg·a·my (p-lg-m); Zoology A mating pattern in which a single individual mates with more than one individual of the opposite sex.”
And so did you, since you were speaking of being born polygamous, not in the sense of being born married, but in the alternate sense of being born polyamorous.
You’re being pedantic, but your logic is still inane and self-defeating.
July 9, 2010, 6:15 pmKiel says:
No – having the right to marry the half of humanity you are NOT physically, romantically, or emotionally capable of being attracted to instead of the partner you actually walk into the City Clerk’s office with to get a marriage license is NOT having the same rights as everyone else. Sorry, I know that would be a convenient argument if it WERE true. It is unjust, unfair, discriminatory, consistent with humanity’s historical persecution of gays and lesbians, and will eventually be struck down as such by the courts as it was yesterday, will be overturned by the legislatures, or will eventually be voted into law by the people. Gays and lesbians are fighting for their civil rights and for the safety and security of their families and children. They will win. Good night, and good luck. :-)
July 9, 2010, 6:17 pmKiel says:
I wasn’t using the zoological definition. Since this is a legal blog, I was using the legal definition, which is:
1. the practice or condition of having more than one spouse, esp. wife, at one time.
July 9, 2010, 6:19 pmhnf says:
i think the distiction lies in the inherently public nature of marriage, which is essentially asking the state to recognize a publicly professed relationship, as opposed to acts referred to as sodomy, which have at most an extremely tenuous connection to anything outside the bedroom (at least between consenting adults). privacy rights (in all cases i can recall) allow for the exclusion of goverment, where marriage is voluntary submission to certain laws in exchange for recognition.
you may have acknowledged as much, in different words.
July 9, 2010, 6:23 pmShelbyC says:
Well, I hope they do. And when they do, they probably won’t realize, or even care, that they’re not more equal, but freer.
July 9, 2010, 6:25 pmM. Report says:
The historical, practical reasons for societies to restrict marriage to one man and one woman are conservation of capital and raising of offspring.
The unparalleled prosperity of the US, particularly
July 9, 2010, 6:28 pmthe Golden Bubble which lasted from 1950 to 2010,
has enabled people to perform both tasks poorly,
without obvious, immediate, serious negative effects on society. Wait ten years, twenty at the outside,
and take another look at the laws on marriage;
Everything Old is New again.
boy george michael jackson says:
That argument doesn’t follow, because the Court has said before that marriage is not a private act, but a public one. “It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. . . . The relation is always regulated by government. It is more than a contract. It requires certain acts of the parties to constitute marriage independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.”
Protection derives from the fact that opposite-sex marriage is a fundamental right, not from any privacy argument in light of Lawrence v. Texas.
July 9, 2010, 6:29 pmjrose says:
Makes sense, except because of how the state treats the infertile and elderly, the purposes must extend beyond those you listed. Maybe an additional purpose is to encourage people to find a lifemate? If so, same-sex couples have a great argument against the states that don’t let them marry.
July 9, 2010, 6:37 pmboy george michael jackson says:
Then you’re incoherent, since one cannot be born married to “more than one spouse at one time” any more than one can be born married to a person of the same sex.
I did you the courtesy of interpreting you sensibly, but it seems that you’re more interested in evading refutation than being coherent (not that incoherence rescues your argument from being inane — that it is incoherent is also why it is self-defeating). Thanks for playing.
July 9, 2010, 6:39 pmElfwreck says:
Right now, California allows first cousins to marry. Nevada, right next door, does not. Yet Nevada is required to acknowledge the marriages of first cousins that were performed in California, and indeed, first cousins in Nevada can cross the state line, get married in California, and return home, confident that the state that forbade them the ability to marry will have to recognize it anyway.
Nebraska does not allow marriages if either party is under 17 years old. New Hampshire allows a pair of 14-year-olds to marry if they have parental consent. And Nebraska is required to acknowledge that marriage, if the couple moves to or even visits Nebraska.
There’s no reason same-sex marriages should be treated any differently from any other kinds of marriages that can be performed in some states and not others.
July 9, 2010, 6:49 pmboy george michael jackson says:
Differential treatment of the infertile and elderly would be unworkable — and impracticality is one factor the Court considers when it comes to evaluating the constitutionality of any regulatory scheme. Besides which, enforcement (fertility testing?) would almost certainly be unconstitutional under Griswold and the Court’s privacy jurisprudence.
Moreover, the Court has noted that a classification does not violate equal protection “merely because it is not made with mathematical nicety, or because, in practice, it results in some inequality.” Lindsley v. Natural Carbonic Gas Co. So I don’t think the “infertile and elderly” argument is as strong as it looks on first blush.
July 9, 2010, 6:50 pmjrose says:
Firstly, it goes to the purpose of marriage, which comes before any consideration of permissible classifications. I’m not persuaded that permitting the infertile and elderly to marry is because of practical concerns. The state doesn’t merely tolerate those marriages. It happily encourages them with the same enthusiasm as other marriages.
Secondly, consider the hypothetical where a state doesn’t permit the infertile to marry, a person voluntarily (no privacy issue) declares himself as infertile, and wishes to marry. He sues. Who wins?
July 9, 2010, 7:01 pmyankee says:
No, FF&C has never been held to require a state to recognize an out of state marriage that violates the state’s public policy. For example, states that banned interracial marriages were not required to recognize interracial marriages performed in other states. However, (almost?) all states voluntarily recognize (most) out-of-state marriages that were valid in the jurisdiction where they were performed.
July 9, 2010, 7:20 pmOwen H. says:
Exactly. It can’t be done automatically under existing law.
July 9, 2010, 7:38 pmOwen H. says:
Pedantic or not, your definition is wrong. Polyamorous and polgamous are not synonyms.
July 9, 2010, 7:41 pmyankee says:
Differential treatment of the elderly would be really easy–you just have people put their birthdates on the marriage license application and reject them if they’re over, say, 60. You could also have people certify, under penalty of perjury, that to the best of their knowledge they are fertile. You could allow third parties whose rights are affected by the marriage to collaterally attack it as fraudulent on ground of intertility. There are a lot of things you could do.
July 9, 2010, 7:47 pmBobVB says:
Not true, unless you are saying that a polyamorists are totally unattracted to less than 2 concurrent spouses. It again falls back to the difference between regulation and effective abrogation. The state can regulate fundamental rights but it can not totally block their expression.
If you find a polyamorist class that can only emotionally commit to more than one concurrent spouse you’ll have a point – until then your logic is broken.
July 9, 2010, 7:57 pmJCC says:
One of the arguments in favor of SSM is that it’s essentially a state-sanctioned contract. You’d probably want to hope that the libertarian “remove state sanctioning of marriage and make everything boil down to contract law” concept doesn’t take hold… Why wouldn’t I be able to contract simultaneously with as many people as I want? What makes one-on-one so special?
July 9, 2010, 8:22 pmLen Sassaman says:
On the “why won’t this lead to polygamy (I think you really mean to include polyandry as well”, others have shown why it is a red-herring in this argument, but I’d like to say I hope that it does, in fact, lead to the legal recognition of marriages where the number of members is greater than two. It’s none of the government’s business whether you have two wives, two husbands… none of the government’s business what kind of family you have. When we start letting our government tell us “you can only love a certain type of person, and only one at a time, and you must have this form of marriage…” we’re surrendering everything it means to be free. Even if you are compelled personally toward a heterosexual, monogamous relationship you should feel threatened by this elimination of choice, this restriction of your freedom.
Frankly I’d like to see all civil and statutory references to “marriage” in both state and Federal law stripped and replaced with “union”, defined as a contract between two or more people, granting them the various legal implications currently associated with marriage. Leave the definition of marriage out of politics; it is an inherently religious question, and one that we, as American citizens, have the right to demand our government not dictate. If your preacher tells you that marriage is only between a man and a woman, who is the government to say otherwise? If another guy’s preacher wants you to move to Utah and have as many wives as you can support, who is the government to tell him that’s wrong? The government should have no position on what marriage is, nor should it have laws that reference it.
July 9, 2010, 8:29 pmBobVB says:
Several points:
1) You’ve left out one entity in that contract – the state. Civil Marriage (and domestic partnerships for that matter) contracts are between the 2 co-signers and the state. The most important features of the contracts are about how the state is going to treat and view the contractees. As such the state as the licensee can make arguments for limitations on the contract, just as they have for when the co-signees are of a particular gender combination. What’s currently happening is that the rationales for limiting the cosignees to male female signers only are failing, not that they don’t have a right to try and make them.
2) A common fare of near future sci-fi novels is the idea of privately contracted, renewable marriage contracts that do just involve the individuals. But they also occur in socialist type utopias where basic needs are individual rights and no one need license a marriage at all to get basic human needs fulfilled. Shoot, people could do it today just by incorporating themselves, but you would still be missing the most important player in the current day marriage contract – the state itself.
July 9, 2010, 8:34 pmLen Sassaman says:
@BobBV — before you apply your most recent comment to my post (directly prior, in response to @JCC), let me state that what I was packing into “granting them the various legal implications currently associated with marriage” could be expanded to “an explicit contract with the state affording them the same rights and privileges currently implicitly and implicitly contractually granted by the state to married couples, both individual and jointly.”
That’s one problem I see; in many states the contract with the state is implicit, whereas with others, it is explicit. While it’s worked fine for years, here’s an opportunity to clear that relationship up a bit.
July 9, 2010, 9:26 pmBobVB says:
An explicit contract with the state would would clarify some of the problems of having more than 2 cosignees in a contract. For example one of the ‘rights’ that married (and domestic partners) have by virtue of their state contract is they can not be compelled to testify against a spouse in a court of law. The state could make compelling arguments as to why that should not be part of polygamous relationships, putting an undue burden on the state and open to abuse by those with criminal intent, e.g. a gang all marries one another.
Further there are problems with responsibility. In Washington state if your spouse gets involuntarily committed to a mental hospital then the spouse gets the bill. Ok someone in a licensed polygamy gets committed – who gets the bill? Is there a presumptive corporate entity of the other other contract holders and it gets the bill? Would this explicit contract require a marriage ‘contact’ address, even a marriage tax id number?
This does boil down to a ‘want’ vs a ‘need’ and the ability for all citizens to exercise their fundamental rights. What has changed in public perception of sexual orientation from being a choice to a characteristic, if people can only reasonably be expected to marry a particular gender spouse then obviously the state can’t say one citizens with such a need can license a contract and another citizen with the exact same need can not. Polygamy would be a harder argument – few people actually practice it (exclusive polygyny and polyandry are unconstitutional) and most start out with a single spouse so the argument that it is a ‘need’ fails and turns it more into a ‘want’ which need not be accommodated. Some people might ‘want’ to marry their best friend’s wife – the state says they need to shake it off and look elsewhere, but what the state couldn’t say is they have no right to any wife at all.
July 9, 2010, 10:04 pmPeter B says:
Bullshit. Some states already require blood tests for marriage licenses.
July 9, 2010, 10:20 pmBobVB says:
And some states require proof of infertility for some marriages to be licensed.
July 9, 2010, 10:34 pmOwen H. says:
Wow.did you hurt yourself stretching that far?
Exactly.
Why? They don’t need them now.
Where is that amendment found?
Last I checked, ALL marriages are about “want”, not “need” (excepting of course situations where they “need” to get married quickly to avoid awkward questions).
July 9, 2010, 11:21 pmBobVB says:
Not at all – its a valid concern the state could make, it would be up to the advocates of polygamy to address it.
Exactly what exactly. You are saying that a polygamous marriage contract would be a corporation?
Because the state has to deal with someone, either an individual or a corporation representing a group of individuals. With 2 person marriage they have a person to deliver the bill to – who do they deliver the bill to when there are multiple spouses?
From the equal protection clause – I am using the examples that are exclusionary – obviously you can’t give a right to just one gender. Middle eastern, mormon, etc polygyny is special rights for men and a whole different kind of polygamy – men have multiple contracts with individual women, the female spouses are not legally entangled with each other and they are not allowed to have multiple contracts themselves. If the state could make arguments against more than 2 in a single contract, they could really have a hay day with arguments against everyone being able to have as many different 2 person contracts they wanted. Imagine the web of contracts that could spawn…
Again, the state has the right to make arguments as to why they limit licensing of the marriage contract, the difference is now that ones restricting the gender of one citizen’s spouse when the majority of other citizens can have that gender spouse are failing. The state has the right to argue, that doesn’t mean they’ll win.
No more so than any of your fundamental rights are – people have a fundamental right to marry, just not one to marry any particular individual. The right can be regulated but it can’t be effectively proscribed.
July 10, 2010, 1:05 amLen Sassaman says:
Owen H.:
Well, they have a right to one wife, but that’s kind of arbitrary. What if they love both women the same, plan to have children with both women, and raise a family as a three-adult household? What if the two women are in a relationship, and they view it as a spiritual (punt to the Churches, though still symbolized in whatever legal union mechanisms are implemented) as well as contractual union binding the three together? These people are being denied their ideal marriage, whereas the person who only wants one spouse is not, and there’s no good reason in modern, First World countries why greater-than-two-person marriages are not legal.
If you want some examples of situations where it becomes less of a want, and more of a need, they’re the same ones that apply to marriage in general: assume that the “marriage” of Alice, Bob, and Carol consists of Alice and Bob as legal partners, and Alice-Carol and Bob-Carol are just common-law. Alice and Bob end up in a car accident and both need someone to make medical decisions for them. Carol cannot, because she is not family.
Speaking of family, this leaves no mechanism in place to deal with divorce, child custody issues, and so forth. Our existing legal structure is ill-suited to handle these questions that would inevitably arise in cases where a group marriage is practiced, with or without legal blessing.
Family reunification is also an issue. I was able to get my wife a residence permit to live in Belgium (she’s American.) Our girlfriend, however, was stuck needing to obtain a visa on her own merits, and the difficulty of this, and the long-distance between us, led to her breaking things off with both my wife and I. So maybe I don’t “need” a second partner, maybe my wife doesn’t “need” a girlfriend, maybe I didn’t “need” to get married in the first place — unless, of course, I wanted to live on the same continent as my spouse. It’s too bad our other spouse wasn’t officially recognized as such; prejudice against those practicing alternative family structures resulted in us losing a member of our family. (And for those of you who haven’t been through it, breaking up with someone whom you love sucks whether you’ve got another partner’s shoulder to cry on, or not. Heartbreak is heartbreak.)
July 10, 2010, 1:09 amBobVB says:
Wow, you’re just talking and agreeing with your strawmen now.
Who are they being denied their marriage? You don’t think marriage comes from the state do you? I’ve seen a woman marry a bush before, I know a second wife of an Islamic man right here in Washington state. No we are talking about what marriages the state will license and equal access to government. The state is under no obligation to license every possible marriage with a contract, but if they do then all citizens should have access to that contract.
That doesn’t mean it has to license everything and every possible permutation. That’s what’s changed – is that people acknowledge that sexual orientation exists and since it does then all those who would want to license with a spouse should be able to, regardless of their own gender.
Again, you seem to be thinking of allowing everyone to have a male or female spouse is something new – it isn’t. A majority of people already can do both – marriage equality is about everyone being able to do what others can already do – doesn’t have anything to do with letting anyone do what no one is allowed to do.
Sure she can, she has a medical power of attorney.
Still its obvious you are hoping that marriage equality will somehow open the door to polygamous relationships, but it won’t. That would be a whole new ballgame as it wouldn’t be talking about just allowing all citizens the same rights as others but creating new ones. I personally don’t see it happening but you are obviously free to try.
July 10, 2010, 1:47 amLen Sassaman says:
The state is under no obligation to license every possible marriage with a contract, but if they do then all citizens should have access to that contract.
I agree with this.
Again, you seem to be thinking of allowing everyone to have a male or female spouse is something new — it isn’t.
I’m not sure what I said to give you that impression.
A majority of people already can do both — marriage equality is about everyone being able to do what others can already do — doesn’t have anything to do with letting anyone do what no one is allowed to do.
You’ll note that in my first reply, I agreed that legalization of two-party marriage regardless of the gender of the parties wouldn’t lead to polygamy/polyandry. They are two separate issues, with two separate arguments for each. The argument for legalizing gay marriage is a much stronger one, too, for the reasons you and others have brought up.
But it disturbs me when politicians, pundits, and yeah, even commenters here toss off “polygamy and bestiality” as the (either inevitable or improbable depending on your position on the issues and your ability to separate fact from fear) result of accepting that homosexual marriage is part of our culture.
I’m basically attempting to turn this around, and say “I do not see why poly* marriage is a bad outcome, even though I don’t see it as an inevitable outcome,” and further, “it’s disgusting that anyone would equate the rape and physical abuse of non-consenting creatures with a form of family unit that humans have practiced for millennia, since pre-history.” It’s somewhat of a tangent from the main discussion, which is why you might have misunderstood my overall premise.
I notice you skipped over my point about family reunification.
So yeah, ultimately I agree with you that equal marriage rights for gay and lesbian couples is a different issue, that poly* relationships have fewer supporting arguments of the “rights of a protected class” nature. But yes, I do have hope that the people of our world’s countries reassess their centuries-old notions on sexuality and marriage, and become comfortable with the non-traditional and varied household arrangements that “marriage equality” would bring (particularly when you factor in gay and lesbian families with children). I think it will not be long before most nations look back on the days when gays couldn’t marry with the same sort of enlightened horror that we now consider the times prior to the women’s suffrage movement, labour reform, or the 1960s civil rights movement in the USA.
I would like to think that such a society would also see the senselessness of restricting the number of people in a marriage to two, and the pain and sorrow that this has caused people arbitrarily, and that such a society would be more open to exploring other relaxation of limitations on our freedoms with respect to personal life decisions.
So the door I see is not a legal one, like the Republicans crying “Oh noes, gay marriage will lead to bestiality — or worse, polygamy!” see; it’s more a measure of progress on the social aspect.
and arbitrary pain
[One random note to add — I wish you were right that medical power of attorney is a sufficient replacement for marriage when it comes to dealing with hospitals, but it just simply isn't in practice. I can dig up cites if you really want, but there are many cases of hospitals turning away one's same-sex partner, despite them having power of attorney, and in some cases, the matter wound up not getting settled until the patient was dead. Usually the hospital has been found to be in the wrong, but what good does that do you when you were denied the last 4 hours of your partner's life?]
July 10, 2010, 2:20 amold f*rt says:
As the guy who originally made the comment about polygamy, I agree that on the face of it, the same logic that requires recognition of SSM would seem to apply to recognition of polygamy. But just because sosmething is logical does not mean it is a good idea. (Google “jealousy between co-wives”; for those whose time is limited, the Bible gives quite a few examples, and history seems to indicate that the jealousy factor applys to gay relationships as well as to straight ones.) I don’t even have to mention the other difficulties caused by polygamy brought up by other commenters. My apologies to those who think it would be cool to have three or four wives (I admit the idea is tempting sometimes…), but much as I love Robert Heinlein’s novels, the real world is something else again. I think Western civilization and some other civillizations are quite right in banning polygamy, and,as other commenters have noticed, I cannot see any equal protection or suspected class argument that would really apply. Still, I expect the argument to be used again and again, as it is so effective in spooking the other side….
July 10, 2010, 5:10 amOwen H. says:
July 10, 2010, 8:05 amL says:
You’re conceding too much here. For the umptieth time, the “logic that requires recognition of SSM” does not require recognition of polygamy.
I think people think the “logic that requires the recognition of SSM” runs like this:
*1. The state has no business restricting access to marriage.
–
*2. Therefore, gay marriage should be legal.
That “logic” certainly requires polygamy, and the usual parade of horribles. But that’s not the argument–or not the good one, anyway. The argument (or one version of it) is this:
1. It furthers no legitimate state interest for the state to restrict marriage to opposite sex couples.
2. The state should not restrict marriage unless it furthers some legitimate state interest.
–
3. Therefore, the state should not restrict marriage to opposite sex couples (i.e., gay marriage should be legal).
That argument does not represent the top of a slippery slope or the thin end of the wedge or the abandonment of morality or the end of Western Civilization as we know it. It doesn’t lead inexorably to polygamy.
Now, if you want to argue:
1′. It furthers no legitimate state interest to restrict marriage to exactly two persons.
and add to it 2 from above, then you will get:
3′. Therefore, plural marriage should be legal.
But understand, 1′ is a totally separate premiss from 1. 1 can be true without 1′ being true (or vice versa or both true or both false). But 1 won’t help you get to 3′. For that, you need 1′ (or *1, but *1 is not the argument most people are making, because it doesn’t hold up unless you are some kind of anarchist or superhardcore libertarian).
July 10, 2010, 10:23 amBobVB says:
Actually they would and do examine all marriages based on the potential of fraud and abuse. The military examines all marriages of lower ranked people to insure they aren’t getting a license just so they can get off post house allowances. That a criminal enterprise could ‘marry’ itself out of being compelled to testify against another member would definitely warrant the state’s scrutiny.
Currently the sole other party is on the hook – so you are saying they would deliver a bill to all the other spouses? Sounds a bit confusing…
And letting all marry but limiting it to just couples doesn’t violate any right, any more than excluding the already married does today.
Yes it would be, glad I didn’t (you didn’t either).
The ‘need’ is the need to marry, the ‘want’ is a particular individual. The state must recognize the ‘need’, but can regulate the ‘want’. They can exclude close relatives, those already married, those below age of marital consent, from consideration no matter how much the individual might ‘want’ to marry them, but what it can’t do is so restrict their potential spouse pool that they are effectively proscribing the ‘need’ entirely
July 10, 2010, 10:48 amBobVB says:
Well in the US when people use the term ‘polygamy’ the are actually referring to polygyny as practiced by various religious cults and societies where gender equality doesn’t exist as it does here. The idea that only men can have multiple spouses and this is achieved by having multiple 2 person contracts, i.e. the females are not legally connected, is obviously incompatible with the equal protection clause.
Actually true polygamists are pretty rare and in my experience aren’t clamoring for legal recognition – having to reestablish the contract each time someone gets divorced with its distributions of community property would be a nightmare considering how often 3rd and 4th spouses come and go in the relationships I know of.
July 10, 2010, 11:06 amJCC says:
P1: The state allows any person to marry a member of the opposite sex.
P2: All citizens have access to marriage, regardless of their sexual orientation.
C: Status quo fits your proposal. Next subject.
If SSM is to be *added*, then fine… debate its adding.
July 10, 2010, 12:36 pmL says:
So many problems.
1. Would you accept this level of freedom for, say, the right to keep and bear arms? Let’s say the state passes a law banning all arms except, I don’t know… poleaxes. A poleaxe is an arm. If you have the right to keep and bear a poleaxe, you have what the 2A protects, the right to keep and bear arms. The right is satisfied. “Next subject.” Should we consider as relevant the facts that you (a) might not particularly want a poleaxe and (b) might want some other, more effective arms? Should we consider that maybe satisfying the letter of the 2A might not be sufficient, but that some compelling reason should exist to restrict access to a fundamental right?
2.
P1. If your argument that the “Status quo” is good enough (because everyone is allowed to marry someone) is a good argument now, then it was a good argument for Virginia in Loving.
P2. This argument was not a good argument for Virginia in Loving.
C. It is not a good argument now.
3. I sometimes wonder if those straight people who put forward this idea of, well, “gays aren’t being discriminated against because they can marry someone of the opposite sex just like anyone else” would consider it constitutional or legitimate if only gay marriage were legal. Obviously they wouldn’t like it, obviously they’d vote against it, and so on. But amid their protests, would they concede graciously that, no, they’re not being discriminated against because they could marry someone of the same sex just like anybody else? Would they argue that forbidding opposite-sex marriage is within the constitutionally permitted powers of the state? (Honestly, I think some of them would, to their credit with respect to consistency if nothing else.)
4. The whole idea that old f*rt and Len Sassaman put forward in the first place, that “all citizens should have access to the contract” is problematic anyway. If you get right down to it, nobody really agrees with that. The real question is, can we justify restricting access to the “contract”? And on what grounds? The onus should be, as it always should be, on those who favor discrimination. I know it’s natural to think that those who wish to change the law should bear the burden, but when the issue is discrimination, the proponents of discrimination should bear the burden, even if they are arguing for maintaining status quo. Since the proponents of discrimination can’t come up with any good justification, the discrimination should end.
July 10, 2010, 1:09 pmBobVB says:
Ah I see the confusion, no the state only licenses marriage contracts FOR marriages, it doesn’t create them. The state can no more make you ‘married’ than it can make you ‘tall’ or ‘smart’, it just licenses a contract in support of marriage and not all citizens with male spouses can license that contract, ditto females. They have license to the contract with anyone other than a reasonable spouse – no one would consider that appropriate.
Since the condition of it being an ‘opposite sex’ spouse completely excludes many married couples from licensing that contract the state still has to justify why it is doing so. As I’ve said, its not that the state doesn’t have the right to argue for exclusion, what’s happening is their arguments are failing. I think its because the zeitgeist now takes as common knowledge that most people can only be reasonably expected to marry someone of a particular gender, and to allow some to do so and others not is, apparently, unjustifiable.
In California and Washington the court has ruled that the ‘rights’ are separate from the contract name, so all now have the right to marry just through a variety of licensed contracts. Some say that is adequate, others do not.
July 10, 2010, 1:21 pmMichael B says:
That’s deep, “L” – first psychologize, trivialize or entirely elide the issues presented – then dismiss it, tout court. After all, you’re right, hence why bother to actually reason against anything that was addressed? Here are the issues that were addressed, all of which you avoided:
1) ad hoc, ex post facto reasoning, i.e. the ends justify the means, hence why bother with Constitutional processes?
2) The fact that subsequent rulings will be able to use this judge’s reasoning pretty much as they wish, or more simply avoid it altogether – there is nothing in his decision that can be thought of as closely argued reasoning.
3) Likewise, the fact that underlying social and political dogmas, assumptions, priorities, etc. are the real issue at hand. Legal reasoning as such, is wholly, is entirely secondary in these types of cases.
4) And following on the heals of (3) – if it were otherwise, the extended implications would also be fully admitted and explicated — e.g., as applied to prospects for legalizing bigamy, polyandry, and yes, for far more “outlier” or “deviant” customs as well.
None of which you addressed, “L”.
July 10, 2010, 3:08 pmChris Travers says:
Look up “linguistic drift.” Unfortunately words don’t have fixed meaning and evolve over time.
July 10, 2010, 3:49 pmChris Travers says:
And Roe has already been substantially overhauled.
July 10, 2010, 4:07 pmChris Travers says:
So, you would prefer states not to have to recognize eachother’s decisions on marriage lawin contentious cases if the alternative is undermining state gun control efforts?
July 10, 2010, 4:10 pmChris Travers says:
Yeah, I was going to say…. I thought that was the difference between the common law system and a civil law system…..
July 10, 2010, 4:15 pmChris Travers says:
It’s not a giant leap socially, but it’s a big hurdle legally. Polygamous marriages simply cannot be structured in the way we currently structure monogamous marriages.
However, a better question is whether Lawrence v. Texas will at some point require the court to strike down laws banning de facto but unofficial polygamy. If that’s the case, it could require some changes to common law views of marriage in some states (including, btw, Utah).
July 10, 2010, 4:20 pmOwen H. says:
July 10, 2010, 4:20 pmOwen H. says:
P1 The state allows anyone to marry a member of the same race.
July 10, 2010, 4:23 pmP2 All citizens have access to marriage, regardless of their race.
Chris Travers says:
Loving is not exactly a good case for SSM simply because racial considerations are held to a much higher standard than just about anything else. Otherwise Brown v. Board of Education would have done away with separate but equal mens’ and womens’ restrooms.
July 10, 2010, 4:24 pmChris Travers says:
Actually, there’s a simple reason: separation of powers.
The president is obligated to uphold and enforce acts of congress within his means because that’s what the executive branch as a whole is supposed to do. For the President to simply say “I’m going to concede and not fight for DOMA” is basically putting the President as a second legislature. It’s bad enough with executive orders. However, that would move us pretty strongly towards autocracy.
July 10, 2010, 4:28 pmyankee says:
Yeah, I don’t think those bans are sustainable under Lawrence. But maybe Justice Kennedy thinks cohabitating with multiple people is ickier than homosexuality.
July 10, 2010, 4:34 pmChris Travers says:
Well, usually the meeting appoints someone to sign the paperwork. It really depends on what you mean by officiant. I would assume that the Clerk of the meeting qualifies.
The larger issue is that Quakers have recognized a sort of rapid sort of common-law marriage where the couple gathers their friends together and basically says they are married. This leads to a question of whether one could be married according to the customs of the Society without any members of the Society being actually present.
July 10, 2010, 4:35 pmChris Travers says:
Ah. so you are changing your mind. Now you want concealed carry permits to be recognized across state lines?
July 10, 2010, 4:39 pmyankee says:
To buy your argument you have to believe not merely that gender-segregated restrooms satisfy intermediate scrutiny, but that they aren’t a form of sex discrimination at all and only have to satisfy rational basis. (And if separate restrooms aren’t sex discrimination and only get rational basis, why do they even have to be equal?) I don’t know if there’s any precedent on this issue.
July 10, 2010, 4:41 pmJCC says:
I can’t describe how fundamental a point this is. IMHO it’s the entire crux of the controversy, actually. SSM != anti-miscegenation laws; racial EP != other applications of EP.
In the days after Prop 8 passed, I had a number of friends who were basically distraught… They were Obama voters and fundamentally could not understand how Obama could win the Presidency in CA at the same time that Prop 8 failed. After patiently explaining the 70-30 AA split in favor of Prop 8 ad nauseum, I realized that it was (almost literally) *incomprehensible* to a large number of liberals and progressives (especially college-aged; i.e., born well after the 60′s) that the SSM “civil rights” fight wasn’t essentially the same as the racial civil rights fight.
They simply didn’t understand how it was possible that a large majority of African-Americans rejected both SSM and even the proposal that SSM equated to, say, EP in voting rights.
Sad. And scary. Hopefully they’ve grown up since :/
July 10, 2010, 4:43 pmChris Travers says:
the EP pretty clearly doesn’t apply in the same way to same sex and polygamous marriages because the arguments whether the couples are or are not similarly situated in relation to the benefits and protections are different. I’d conclude that the EP case is stronger for SSM, and that courts are simply not equiped nor prepared to recognize polygamy as deserving all of the same protections that monogamy is granted.
July 10, 2010, 4:46 pmChris Travers says:
Can the state conclude that the purpose of marriage is to encourage people to settle down and have kids?
July 10, 2010, 4:48 pmJCC says:
If there were any place in the US that had separate (but equal!) restrooms for “whites” and “coloreds”, there’d be protests and boycotts up the ying-yang until they got dragged into court — and I’d probably be right out there protesting with them.
They fact that segregated gender bathrooms are *everywhere* and that there aren’t massive riots *everywhere* is prima facie evidence already.
I’d be surprised if this doesn’t come out in an oral argument somewhere, if not in these cases than in others. To apply Loving you need the (race disc.) (gender disc. and/or sexual-preference disc.) path cleared, and IMO that fails miserably.
July 10, 2010, 4:52 pmChris Travers says:
Where do you draw the line, though? What is different between wanting more than one spouse and wanting a spouse of the same gender? What’s different between wanting to engage in group sex and wanting to engage in sex with someone of the same gender?
I just don’t think that works.
Now, I can think of a lot of good reasons why recognizing SSM won’t have any impact on the polygamy question, particularly that many legal benefits of marriage assume no more nor less than two people. The difference in structure would be enough that courts really are unprepared to tackle that so it would be left to the legislatures if it were to be recognized at all.
July 10, 2010, 5:08 pmyankee says:
Well, it’s prima facie evidence that it’s well-accepted, but the fact that a social institution is well-accepted doesn’t mean it doesn’t get any form of heightened scrutiny. The view that separate bathrooms aren’t any kind of sex discrimination and don’t get heightened scrutiny proves far too much: the government can’t just arbitrarily segregate things by sex as long as it passes the rational basis test.
Edit/clarification: Separate bathrooms being a form of sex discrimination doesn’t mean they’re unconstitutional, it just means they have to satisfy intermediate scrutiny, which they do.
July 10, 2010, 5:08 pmChris Travers says:
So if one is attracted to multiple women simultaneously, that would be categorically the same as being gay?
July 10, 2010, 5:10 pmChris Travers says:
Sure. BTW, ancient Sparta makes a great case study which is very challenging to the current concept of sexual orientation identity. I suspect that most people here would react with some horror to a society which expected men to share wives with their allies and also engage in homosexual activities. However, what would a Spartan citizen think of our sexual morality today? “What? You mean I can only have sex after marriage with one woman? No men? How horrible!”
IOW, to what extent does culture shape our sexual orientation? That’s an extraordinarily interesting question and one we currently don’t have any solid answers to.
July 10, 2010, 5:17 pmyankee says:
Maybe if you weren’t attracted to women, but were only attracted to groups of women as corporate bodies.
July 10, 2010, 5:19 pmChris Travers says:
I don’t really see that as working very well. For that to work, you’d have to suggest that gays are inherently INCAPABLE of carrying out marital duties to someone of the opposite sex. Even in classical Greece and Rome, where homosexual activity was far more common than it is today, that was not seen as precluding or even interfering with the duty to have a heterosexual marriage aimed at procreation. So I think it’s wrong to try to make that point.
BTW, I am a supporter of same sex marriage because I think it’s a matter of personal liberty. I’m also a fan of extending Lawrence v. Texas to strike down bans on de facto polygamy. However, I don’t think gay marriage has any impact on the question of whether states would have to recognize polygamous marriages as marriages.
July 10, 2010, 5:23 pmChris Travers says:
Well, I think the 14th Amendment kicks in here by demanding that the court look into whether a marriage would be similarly situated. If it would be, I could see the EPC argument. If not, no EPC argument.
It’s pretty clear that there is an open argument in courts as to whether same sex and opposite sex marriages are similarly situated or not. This could even depend on other matters of state family law, so the answer might be different in different states even leaving out Constitutional differences in those states.
But polygamous marriages don’t strike me as similarly situated. All manner of things (joint property, custodial arrangements over eachother, etc) get really screwy when extrapolated beyond one spouse. That is not to say it might not be taken up by some legislature somewhere, but it would have to be by a legislature. A court couldn’t do it.
July 10, 2010, 5:31 pmChris Travers says:
I’m just saying Loving isn’t directly on point. I am saying that the courts need to look at the issue clearly and carefully, and consider all the points. After careful consideration, as a policy matter, I think SSM should be legally recognized. However as a legal matter, though IANAL, my sense from reading different decisions reaching different results in different states is that it’s quite possible that the very structure of marriage benefits could mandate different results in different states currently.
Indeed, I think that states which discriminate against gays less in areas like adoption and foster parenting are more likely to find equal protection issues with banning SSM than ones where that stands alone.
Probably everyone here is going to think this is horrible, but I think that’s as it should be. In cases where the ban stands alone, it should be struck down. In cases where it’s tied to lots of other things, the courts should act more cautiously and defer more to the legislature.
July 10, 2010, 5:54 pmChris Travers says:
I can be a supporter of SSM while believing quite firmly that a study of the history of human culture does not support the idea that people are immutably gay or straight.
July 10, 2010, 6:01 pmOrenWithAnE says:
Around here there are unisex bathrooms *everywhere* and there aren’t massive riots *everywhere* so what does that prove?
Nothing, in my opinion.
July 10, 2010, 7:02 pmChris Travers says:
It proves that most people don’t think that separate but equal rest rooms for men and women are the same as separate but equal rest rooms for whites and blacks.
July 10, 2010, 7:11 pmyankee says:
Was that ever in dispute?
July 10, 2010, 7:23 pmjrose says:
Yes, but by observation (elderly and infertile) the state’s purpose is not limited to kids.
July 10, 2010, 7:23 pmChris Travers says:
Ok, suppose they provide that infertile heterosexual couples get financial incentives for adopting foster children since they mirror what the legislature finds to be the natural childrearing environment and have no children of their own?
Suppose the state furthermore conditions large parts of state welfare benefits relating to children to the marital status of the parents?
Suppose the state will not let single people adopt children?
The point is, a state could conclude that the procreative and childrearing functions are important and structure their family law around that, while not excluding elderly and infertile couples, but excluding same sex couples. Anything wrong with that?
It seems to me that if the state just says “marriage is for procreation and therefore same sex couples can’t marry” and does nothing else that one has to question whether that declaration is simply pretextual. If the legislature is serious, they will bolster that with other elements to their systems of family law.
July 10, 2010, 7:40 pmChris Travers says:
I brought it up by saying “race is different” in relation to the applicability of Loving v. Virginia to the SSM question. My point is that race is different from most EPC applications and therefore I wouldn’t suggest that Loving is very much on point.
July 10, 2010, 7:43 pmjrose says:
All of those additions to family law still do not establish that the state’s purpose in offering marriage is limited to raising kids because you still end up with childless married couples (who choose not to adopt inspite of the above additions) that the state enthusiastically offers marriage to. There must be some additional purpose.
So, I while I have no problem with “a state [...] concluding that the procreative and childrearing functions are important and structure their family law around that,”, I do have a problem when the state “[does] not exclud[e] elderly and infertile couples, but exclud[es] same sex couples.”
July 10, 2010, 8:04 pmjrose says:
I agree in large part. But, Loving is on point when dismissing the preposterous argument offered by JCC that “[t]he state allows any person to marry a member of the opposite sex, [a]ll citizens have access to marriage, regardless of their sexual orientation,” and therefore Equal Protection is satisfied.
July 10, 2010, 8:09 pmSuperSkeptic says:
It can supposedly conclude anything it wants, and that’s my biggest problem with jrose’s proposal. It is a great way for any post-hoc rationalization of any marriage situation/definition to disguise itself as a legitimate purpose ab initio – again, because what we are dealing with here is an inherently discriminatory custom.
July 10, 2010, 9:10 pmjrose says:
I disagree. The post-hoc rationalization that marriage is solely about raising kids doesn’t pass muster because of the state’s other actions.
July 10, 2010, 10:10 pmL says:
Okay. I’m going to avoid the obvious “elderly and infertile” response, because I’ve been beaten to it, and I think it’s half a red herring. Let’s say that the state concludes that the purpose of marriage is to encourage people to settle down and have kids. And I’ll concede that that’s a legitimate state interest. Now Step 2. The state has to show that banning gay marriage is rationally related (or, depending on the level of scrutiny, substantially related) to that goal. Does banning gay marriage encourage people to settle down and have kids? Well, I think it’s pretty clear that it discourages people from settling down. As far as having kids, it only works if you assume that the gay people whom the state is preventing from getting married are instead turning to opposite-sex partners and getting pregnant or getting them pregnant. In other words, it’s a fantasy. And of course, gay people have kids (though not the old-fashioned way), and I don’t think it’s a stretch to say that a gay couple is more likely to have kids if they’re married, even if it’s only a little more likely.
It’s the court’s role to determine whether a statute is constitutional or not. The parties are allowed to give the court their arguments, but the executive can’t meaningfully concede. The executive can refuse to fight for DOMA, but the court is not going to rule DOMA unconstitutional as a default judgment. Enforcing a law is one thing, and there’s a duty there, although there’s some discretion too. “Upholding” a law is something else.
Okay.
July 11, 2010, 1:08 amChris Travers says:
That’s an easy one. Look up “bisexual erasure.” The point is that for people who are Kinsey 1-5, it may well have some effect.
July 11, 2010, 1:19 amChris Travers says:
That still makes overriding a president’s veto futile if the president is free to decide a law is not to be enforced anyway, does it not? Furthermore it would mean that any subsequent administration could decide to throw away whatever laws his base didn’t like anyway.
No. The role of the Executive is to enforce the laws. This means that some discretion is necessary, but laws can’t be ignored wholesale.
July 11, 2010, 1:24 amChris Travers says:
I think you are stretching. If large parts of the state purpose of marriage is not applicable to one group, then it seems to me that such a group is not similarly situated, and hence the EPC doesn’t apply.
The thing is, in Massachusetts, the court found that state policy regarding childrearing was pretty much agnostic to the marriage question, so it was not rational to conclude that such was a rational purpose for excluding same sex couples. Some courts in other states have gone the other way. So I think that even under the simplest of circumstances, it’s a hard issue where accomplished state supreme court justices can thoughtfully disagree. But when you add more efforts by the state to tie these, I think the correct decision under a rational basis review becomes quite clear in that the law would be upheld. Of course if any sort of hightened scrutiny is placed, that changes.
July 11, 2010, 1:30 amL says:
The male Kinsey 3 looks at his boyfriend and says, “I love you and everything, but since it is against the law in our state for us to get married, I’m leaving you for Tina.” The Kinsey 3 marries Tina, they have 2.5 beautiful children, and live happily ever after.
Seems like a little bit of a stretch to me.
Right, but I wasn’t saying a president is free to decide a law is not to be enforced. I said the president has a duty to enforce laws. Although, as we agree, some discretion is involved. I said a president doesn’t have to argue that a law is constitutional. If no court has found it unconstitutional, then there’s the duty to enforce. But there is no duty to take any particular position with respect to the law’s constitutionality, or to enforce it after it has been found unconstitutional.
July 11, 2010, 1:35 amChris Travers says:
The question really should be whether the gay couple is similarly situated to the straight couple relative to marriage. If not, no EPC issue.
My view is that rational basis review is a very deferential standard, and assumes the law is valid unless proven otherwise. Proving it otherwise depends on whether the state courts agree that a state interest is legitimate, and whether given the totality of context, the ban is rational. The ban being a bad idea or even being unfair isn’t enough to topple it.
July 11, 2010, 1:48 amChris Travers says:
Maybe a bit of a stretch, but maybe some time a few years later they separate, he hooks up with Tina, and eventually they decide to get married. That doesn’t seem like a stretch at all to me.
How does our adversarial system work then? I think part of enforcing them means to argue that they are valid within a reasonable interpretation, and to defend those before the court.
One obvious example of this approach would be to look at hte oral arguments in Holder v. Humanitarian Law Project where the state argued that the matter should be resolved via statutory construction in order to avoid the Constitutional issues.
July 11, 2010, 1:52 amOwen H. says:
Didn’t we just have a lot of people jhere cheering the prosecutor that was going to refuse to prosecute certain gun laws, based on the belief that they had been rendered unconstitutional?
What about a decision to not vigorously prosecute certain drug violations in states with medical marijuana laws?
July 11, 2010, 8:27 amOwen H. says:
Pennsylvania does not require you to be a member of the Society of Friends to use a self-uniting marriage license. The only signatures required are those of the couple and two witnesses.
July 11, 2010, 8:29 amOwen H. says:
Gender-specific bathrooms pass intermediate scrutiny because they are based on biological differences. That’s why it’s also ok to specify a ratio of wmens’ rooms to mens’ rooms in building codes, based on need.
Racially-segregated bathrooms would pass even intermediate scrutiny, much less heightened.
So the comparison with SSM boils down to, do the restriction pass intermediate scrutiny?
July 11, 2010, 8:34 amL says:
Again, it has to be because the law forbids him to marry his boyfriend.
No, the state enforces laws all the time without arguing they are valid. I’ve read a bunch of transcripts of murder trials, and the prosecutor never once (in the ones I’ve read) argues that the statute forbidding murder is constitutional. Ditto rape, arson, assault, uttering & publishing, etc. No doubt if the validity of the law were questioned, the prosecutor would argue they are valid, but no, I don’t think there’s any obligation to. And if the executive wanted to take the position the law was not valid, it could and arguably should still prosecute – the position would be that the defendant has met all the elements of the crime and should be found guilty, assuming the statute itself is constitutional.
Right, nothing wrong at all with the government arguing that a law should be upheld as constitutional. What I’m arguing is that there’s no duty to do so.
July 11, 2010, 8:56 amjrose says:
I’m proposing a different way of approaching the problem, consistent with Zablocki, which held that marriage is a fundamental right which triggers strict scrutiny. But, Zablocki didn’t tell us the scope of that fundamental right, and that is where the state’s purpose comes in.
We must first determine the purpose of marriage before we engage in “similarly situated” or “level of scrutiny” analysis. Having completed the purpose analysis, when the state prohibits a would-be marriage within that purpose, strict scrutiny applies. On the other hand, if the state prohibits a would-be marriage outside that purpose, either the plaintiffs aren’t similarly situated, or rational basis applies.
I disagree. Plaintiffs are similarly situated, and strict scrutiny ought apply, so long as the would-be marriage is within one of the purposes of marriage.
Consider the hypothetical where a state doesn’t permit the infertile to marry, a person voluntarily (no privacy issue) declares himself as infertile, and wishes to marry. He sues. Who wins? By your analysis of “large parts” of the purpose, the plaintiff loses (he is not similarly situated). By my “one of the purposes” analysis, he wins.
July 11, 2010, 9:29 amjrose says:
The argument is same-sex marriage tarnishes the special place that marriage holds, and thus fewer straight people feel the desire to marriage. It’s a crap argument, but good enough for rational-basis review.
July 11, 2010, 9:32 amLymis says:
All the people claiming that same-sex marriage forces polygamy are missing a critical point.
Loving declared that marriage was a fundamental right of the individual.
Lawrence simply included gay people in the presumption of privacy and the right to make decisions about intimate relationships that straight people already had.
Since the claim seems to be “Allowing same-sex marriage requires allowing polygamy in a way that not allowing it does not,” someone needs to explain why polygamy is currently not mandated by Loving and Romer.
In fact, the majority of the reasons given for privileging straight marriage over same-sex marriage all support polygamy – in many case they support polygamy more than one-man, one-woman marriages – more adults in the household, more childbearing, the possibility of having multiple breadwinners and a stay at home parent, religious tradition (including explicit Biblical support), and so on.
So, for anyone screaming “Gay marriage is a slippery slope to polygamy” – if the laws limiting marriage to two people are not sufficient to prevent polygamy, please give an explanation other than tradition as to what is preventing polygamy now that would change with marriage equality for gays?
Not why it is or isn’t a good idea. What’s stopping it now that gay marriage would change?
July 11, 2010, 10:34 amL says:
I felt less of a desire to marry my opposite-sex partner because of the fact that SSM is illegal in my state. For the same reason that, if I were going to join a country club, I would be less likely to join if that country club didn’t allow black people to join. It wasn’t enough to keep me from getting married, but if I had postponed my wedding, it would have been for that reason. I realize that my anecdote doesn’t really have a bearing on whether this reasoning is “good enough for rational-basis review,” but.
July 11, 2010, 10:41 amBobVB says:
Good point and illustrates a fundamental difference in view points we see here:
Those who refer to the situation as ‘adding’ SSM and see it as if it were something different, and
Those who refer to it as ‘marriage equality’ and see it as just correct past inequity in equal treatment of the citizens.
I’m in the latter camp of course – I see it as allowing all citizens to have male and female spouses since a majority of citizens can already have male or female spouses – giving the same rights to all citizens that a majority already have. Nothing new has been created.
Those that see it as being an addition of a new kind of marriage see it as opening a door to adding other new types of marriages.
July 11, 2010, 11:15 amOwen H. says:
My wife and I were very ambivalent about choosing to marry, and the ban on SSM was a big part of it. We did so primarily for legal reasons, seeing as we’d been together for 11 years, had bought a house and had two kids already.
July 11, 2010, 11:20 amChris Travers says:
Wouldn’t that likely necessitate (at least in some states) courts to force the states to recognize polygamy without being able to let any party in such a marriage know exactly what the scope of responsibilities and rights would be?
July 11, 2010, 11:54 amChris Travers says:
In that case it does. No same sex marriage means an easier time separating from his boyfriend than from Tina. Therefore he is more likely to marry Tina.
There’s also an open question as to how culture shapes sexual orientation. If we look at ancient Sparta for example, nearly everyone would have been bisexual by today’s standards.
July 11, 2010, 12:01 pmBobVB says:
No, cultural required activities don’t define sexual orientation. Sexual orientation is about attractions, not acts. In Sparta it was customary for soldiers to establish these sexual dominance roles between instructor and student, with no indication there was any actual attraction at all (well other in the common male ‘I’m not looking for relationships only receptacles’ kind of way.)
If we know anything, its we can not even apply modern concepts of sexual interaction to the cultures of that time period – if anything the cultural requirements of the time would act to mask determining what we would now consider ‘sexual orientation’ as they framed sexuality by what a person did, not who they did it with or why.
And talking about determining what marriage is for, don’t lose track that the state does not marry people, it merely registers a contract for married people. For much longer than it hasn’t most marriages were a result of personal commitment between the spouses or their families and requiring nothing more.
So the question really is ‘what purpose does the state accomplish or intend to accomplish by contracting marriages?’ since people would still marry whether the state licensed such a contract or not.
July 11, 2010, 12:17 pmChris Travers says:
That’s not quite correct. Only O’Connor’s concurrence would have drawn that line.
July 11, 2010, 12:22 pmjrose says:
The state can plausibly claim the purpose of marriage (in addition to raising kids) is to encourage single people to find a lifemate. Polygamy falls outside the scope of that purpose, and thus polygamists are either not similarly situated, or rational-basis review applies to the prohibition against polygamy.
July 11, 2010, 12:22 pmChris Travers says:
That’s not the picture Plutarch paints.
July 11, 2010, 12:25 pmChris Travers says:
What state interest is served in that? Just to be clear, I don’t think a line that requires judicial recognition of polygamy will be acceptable simply because a judge would be requiring recognition of a contract of tremendously unclear scope, essentially being unable to tell the parties what to expect when entering the relationship.
July 11, 2010, 12:37 pmBobVB says:
Actually he is an excellent illustration of the differences – he makes it clear it was socially customary to pursuit ‘beauty’ with sexual ardor. You can’t look at what they recorded through our modern eyes accurately. Only a few are recorded to have broken the customs of the times (social dominance = active, inferior position = passive), and those few could have been what we would consider the truly bisexual or gay but they are the exceptions. Historical ‘BFFs with benefits’ is not an accurate way of determining what we would consider sexual orientation, particularly with the massive time differences and with them lacking even the vocabulary to have recorded the issue clearly. Again, they didn’t even define sexuality by who you did it with but what you did. That fact alone obviously would mask any accurate portrayal of what we consider sexual orientation – both sides of the debate pointing to ancient greece and early roman cultures are just adding noise to the debate, not clarity.
Yes such a society would make expression of bisexuality in those that were so more pronounced (what do the latest studies show, about 2.5% of men identify as gay, another 2.5% have sex with men but don’t consider themselves gay, 5% have had attractions to other men but not acted on it?) But from the historical record we have no way of knowing if that other 90% back then either didn’t engage, or did so out of perfunctory senses of social convention. If the internet has taught us anything, those that want to do something themselves are very prone to writing as if everyone is just like them.
Again, Sparta is historically interesting, but really doesn’t help current debate about sexual orientation for either side.
July 11, 2010, 12:47 pmBobVB says:
People who are married are statistically happier and healthier – both mentally and physically – which benefits the state. By legally viewing them as financially entangled it creates a more financial stable unit with less chance that the state will have to provide assistance (which is one reason why the married poor are now forgoing licensing their marriages in record numbers).
July 11, 2010, 1:11 pmChris Travers says:
The unspoken assumption here is that people are born with a specific sexual orientation. However, since we don’t have a known mechanism, we can’t rule out that early childhood adoption of culture plays a very strong role, just as we know it does in many other areas of interpersonal relationships. Heck, we can track the impact of early childhood experiences on parenting patterns even in chimpanzees. In essence what you are doing is assuming your conclusion and interpreting the data through that filter. I don’t think that works.
I might be willing to accept that there might be biological factors, but I don’t think you can at all rule out cultural ones as well.
July 11, 2010, 1:15 pmChris Travers says:
Ah, so the primary purpose of marriage is to make people healthier? Really?
How does restricting marriage to two people further that goal? Why not let either party marry others too so they will be even more happy and healthy?
I really think a structural approach is better than a purpose-based approach. It completely avoids these problems.
July 11, 2010, 1:17 pmyankee says:
I don’t think this works. The judge could hold that the ban is unconstitutional, but the only available remedy is money damages rather than “specific performance.” Or the judge could order the legislature to enact a polygamy statute, as was done for same-sex marriage in Goodridge.
July 11, 2010, 1:21 pmBobVB says:
Actually I haven’t even discussed the origins of sexual orientation, only said you can’t draw any useful conclusions from Sparta.
I agree, but you’d have to find more current examples. Recently someone trying to argue a cultural origin pointed to the Samoan practice of fa’afafine where boys are raised in feminine roles that almost universally show an attraction to men as adults. Unfortunately for their assertion their own links showed the researchers observed that it was boys were were engaging in gender atypical behavior as children that were selected for fa’afafine indoctrination, i.e. they were selecting the gay boys. That they occasionally ‘miss’ more explains the few who are attracted to women, not that generic males have been ‘turned gay’ by cultural influences.
Although the mechanisms are not yet crystal clear the fact that few gay men deviate from lifelong perception of their sexual orientation is a strong indication that something other than culture is going on, as does the example of years in prison engaging in homosexual behavior doesn’t change sexual orientation on release – to paraphrase a comment about the ‘machine model of man’ “the longer the proponents of cultural influences talk the more often they prove themselves wrong.”
And ‘even if’ unless a case is being made that accepting same gender marriage will someone how promote same gender activity whatever the origins is pretty much irrelevant to the state’s obligation of equal treatment under the law.
July 11, 2010, 1:30 pmBobVB says:
Please no strawmen – I never mentioned it as a ‘primary’ merely as a state benefit as you requested. The ‘primary’ reason we license marriages is because of tradition with its roots in the Catholic power grab in the 13 century and suddenly required all marriages to be registered with them. Again, people would marry regardless of the state licensing a contract or not just as they did throughout most of history.
But avoiding real problems out of convenience of argument is divorcing the discussion from the reality on which it is based. We license marriages out of legal tradition, people marrying is beyond government, government merely reacts to that reality. Acting as if governments really ‘marry’ people is convenient but inaccurate and makes any conclusion derived as useful as wondering what ‘Spartacus would have done if he had a Piper Cub.’ What we have to do is figure out how this legacy legal tradition dovetails with government mandates of equal treatment and primary purposes of government serving the people and not the other way around.
Again, its trivial to exclude any exclusive polygyny or polyandry legally particularly as practiced by the middle eastern, biblical, protoMormon groups – can’t have only one gender of citizen able to have multiple marriage contracts and the other not. True polygamy with many people under one contract with equal footing would be harder to exclude but to my knowledge there are none asking for it. If i were the state I would argue that the special considerations given to married couples are an acceptable burden to society in light of the benefits it derives from licensed marriages but those burdens would increase exponentially with the number of participants, e.g. having one spouse not required to testify against a single other person is an acceptable cost, but giving such immunity to all members of a larger group is too great a burden for society to bear.
But redefining the argument into a simple one for simplicities sake isn’t going to result in a useful solution in my opinion.
July 11, 2010, 1:48 pmChris Travers says:
Please define life-long. Does that mean that 3 year olds are aware of their sexual orientation? The fact is that there is a window of growth into the brain and how culture and language are related to that ends at about age 6. So, I’d be inclined to restrict questions to what was going on at that point in life.
The fact is that culture (including language, which is a part of culture) affects all kinds of things. How we think and who we marry are two clear examples (this is even clearer as more recent studies have begun to disprove some of Choamsky’s hypotheses about how children learn language).
It’s also clear that female sexuality is more fluid and subject to change than male sexuality is, but it’s not yet clear why.
Again, I’m not saying things are clearly all cultural. I think that what sort of person each of us is attracted to is based on a complicated set of factors including some that are biological, cultural, and non-cultural environmental.
July 11, 2010, 3:25 pmjrose says:
In addition to echoing BobVB’s response, I’ll add the state can plausibly believe one lifemate is sufficient to achieve the goals of happier, more productive citizens.
I also agree your argument concerning the nature of the polygamous contract might be successful.
July 11, 2010, 3:34 pmChris Travers says:
Throughout most of human history, male adultery was at least tolerated and polygyny was the norm (the major exceptions being Greece, Rome, and the Germanic tribes, but all of them recognized a role for concubines). If the government is merely recognizing a natural pattern, polygamy really ought to be recognized.
Again, that argument would very heavily weigh in favor of recognizing polygamy. But the fact is that the goal of marriage law isn’t just to recognize a normal, natural pattern but to help shape it. Marriage law may be built on top of some natural tendencies but it isn’t just a reflection of those tendencies.
Why? The only argument I can see here is that the government couldn’t RECOGNIZE only polygyny or polyandry. I see no reason why recognizing both would run afoul with the EPC. However, if both spouses had to consent to the new marriage, that would still allow cultural biases towards polygyny to work in some cases.
July 11, 2010, 3:34 pmChris Travers says:
BobVB:
Just in case you are wondering my actual viewpoint:
1) I think bans on de facto polygamy should be struck down under the logic in Lawrence v. Texas, and that it should only be presently illegal to seek to have the state recognize plural marriages.
2) I think that allowing SSM is good policy and may be required by courts under at least some circumstances (depending on specifics of State constitutional and statutory law). I don’t think it’s a fundamental Constitutional right however. I’d go so far as to say the courts on the whole have done a pretty good job so far both when they’ve upheld and when they’ve struck down the ban.
3) Federalism is a Good Thing, and 50 different state Constitutions can mandate 50 different results.
4) Courts cannot mandate recognition of polygamy because the issues are simply too complex. I am not opposed to legislatures looking at it, however.
July 11, 2010, 3:44 pmChris Travers says:
The judge isn’t really in a position to do much in the way of ordering legislation– I think any time a judge does this, the judge is stepping out of the judicial role. First, you run into the 11th Amendment in terms of monetary damages, so you run into issues regarding what happens if the legislature simply fails to pass a law. What if the issue is that compromises on structural issues just aren’t forthcoming?
At least with SSM, the court can rule that the ban against same sex couples getting married doesn’t change the the structure of marriage, and he could then order the clerk to issue a marriage license. The rights and responsibilities would not be substantially different, so both people know what they are getting into ex ante. With polygamy, I don’t think think that works. It requires major structural changes, and so that neither party would have any idea what to expect ex ante. That’s not really a valid contract anyway in my book.
I keep coming back to structural analysis here because I think it allows judges to separate this out. The EPC simply demands that like is treated as like. The question then becomes is SSM like OSM. If it is, then you have to look at EPC issues. Where it’s not, you don’t. If it would make no real difference to the state’s agenda in terms of general public policy and legal structure of marriage to recognize SSM, then SSM must be recognized. On the other hand, if it makes a big difference, then it’s up to the legislature to decide what to do. However, in any case, polygamous marriages are not like monogamous marriages, so any change there really needs to be up to the legislature.
To my mind, this is just a separation of powers issue. Who makes the policy and why? Obviously, this sort of thing doesn’t allow for a simple answer where all the decisions should be made by one branch of government.
July 11, 2010, 3:56 pmBobVB says:
yes that recent media sensation twins that have different gender sensibilities was recognized by their mother that early. Personally I know that many things that reflect my eventual sexual orientation were some how ‘important’ even at that time. I can remember a black and white TV clip of a masculine leading man in partial dress and its filed away in my head like a snap shot – that was important information and was stored. Millions of children saw that same program and probably couldn’t remember it as adults, but I do. In discussions with other gay men they all have stories of similar ‘important’ memories that make the personal revelation that they were gay later in life also be accompanied with a resounding ‘DUH!’
Not really a mystery just not clear on the mechanisms. We know that the base line body model is female, men are souped up women, there are two critical neurological pathway in the areas that seem to be associated with sexual orientation with males having enhanced overlays over the base female structures. How well that overlay action covers up the basic female responses would depend on the strength of the template, epigenetic factors during the time of the actual restructuring, and other factors. Simply put, if women can be attracted to men by genetic means then of course men can be too and add in the gender non-specific sexualizing effects of testostrogen and you end up with men with very strong attraction to other men.
Women on the other hand do not have the full genetic complement of men – while many of the sexual attraction mechanism must be in the somatic chromosome set, they are still missing the Y chromosome, and with that they are missing the sexualizing effect of high testostrogen. By a genetic origin model of sexual orientation you would expect males to be more rigid and females more flexible.
Oh I agree, sex is just an act – you can do it because you want to with anything – ask any adolescent boy. But responses to pheromones, all of the non-sexual neurological response similarities between gay men and straight women, there are very strong indicators that biology is a strong influence, even to the point of eclipsing the others into rareties. (one thing you notice in the ex-gay movement is the pure hellish lives they were living when ‘gay’ and that in reality their ‘gay’ period was more a neurotic ‘acting out’ behavior rather than sexual orientation.)
Again I agree. Canada was going to, (did they) decriminalize polygamy which I remember a few fundamentalist news boards presented as acceptance. Right now anyone can be polygamous as long as they don’t claim their their partners as husbands and wives here in Washington, and it does seem that its only criminal if someone makes a slip of the tongue.
So back to the old question does the state need to recognize all marriages or does it merely need to be equitable with what it does recognize?
As to your assertions of polygamy I feel you are conflating mere ardor with affection with orientation. Sure guys what to spread their seed far and wide but those that want harems are not prevented from having them and yet they are pretty rare.
Again, I agree, but regardless it has to acknowledge the fact that potentially all citizens have this natural tendency to pair-bond with at least one other citizen. The government can’t really say that anyone has an effective pool of zero contractable spouses which it does if it says that only some of those who marry a gender can license the contract and others can not.
No, people could no more enter into a voluntary polygyny (or polyandry) relationship than they could sell themselves into slavery. Their right to marry is fundamental, as is their right to liberty – they don’t have the right to rescind it, e.g. if a protoMormon had two wives that promised they wouldn’t get married to another man, they could change their mind – if the husband has a right to multiple marriage contracts so do they and that’s a right they can not give away. Plus the idea of a right to muiltiple contracts could be argued against by the state and a protoMormon would not want a true polygamous marriage, if that were the case the wives would have mutual political power in the group and be able to divorce him. ;)
July 11, 2010, 5:59 pmRandy says:
Chris Travers raises many interesting points to which we have no definitive answers. In the west, we assume that everyone is born either as gay or straight, and for the few that are bisexuals, we just sort of dismiss them as irrelevant. However, our society is certainly not the only one.
In many mediterranean cultures, like in Italy and Greece, many men consider themselves straight, and even have girlfriends or are married, yet they have sex with other men. They insist they are not gay, and are only just having fun or whatever, but they are having sex with men.
Throughout the middle east, it’s quite common for men to have younger boyfriends on the side, even while married. AGain, none would consider themselves gay, as that is strictly taboo. But they are having sex with men.
In other places, such as Cambodia, young men grow up virtually isolated from eligible young women. So the men go out and go to the movies with their male friends, go out dancing, drinking, and of course have sex with each other. There are no other women (or the only other women available are prostitutes). Now, they eventually get married and are not supposed to have sex with their wives only, but they grew up having all their fun sex with men, and so it continues, despite the fact that being gay is taboo.
In Thailand, the youngest male of every family is raised as a woman, and mostly she (the proper term) has sex with men as she gets older.
I have no idea what to make of this, other than the fact that our ideas of sexuality, of putting all people into one of two boxes, probably isn’t accurate and certainly isn’t the only way of looking at sexuality. It calls into question what role genetics and culture play in how we look at sexuality.
For all the research we have done on sexuality, we really know nothing at all about it. Which means that any laws purporting to deal with it are inherently unfair and impracticable. To me, and to any fair person, it shouldn’t matter WHY a person has any particular sexuality — it merely matters that they do. And in a free society, one should be able explore and fully realize that what they are, whether it’s because of genetics, environment or choice.
July 11, 2010, 6:13 pmChris Travers says:
Assuming you are talking about identical twins here, wouldn’t that discount a pure genetic/biology theory? But silly me for assuming the American Psychological Association had it right. They say:
I’d argue that culture affects both environment and cognition…. Again, I don’t discount a role for biology. I don’t just think there’s enough evidence to say “it’s purely biological” and indeed there’s a lot of counter-evidence (differences in sexual orientation of identical twins is significant here).
I think your argument is with my conclusion though because you are afraid of its implication. Frequently, assumptions that homosexuality is not fixed at birth in the political sphere suggest that therefore it’s just a neurosis (that’s a position I don’t adhere to). I’m saying it’s more complex, and I’m saying the cultural questions are legitimate regardless of how we decide to answer them.
I can’t change what my native language is, but that doesn’t mean I had one when I was born.
No. I’m looking at it from a perspective of social patterns, patterns of relationships, and the like. If marriage is about recognizing a normal human pattern, then most of the world for most of history has recognized polygyny, so we should too. Obviously the EPC would require generalizing that to polygamy. If, on the other hand, marriage is about shaping society, then all of the social questions are fair game, including what bans on same-sex marriage might mean for Kinsey 4′s and whether it encourages THEM to settle down and procreate (because the option for more legal entanglement is there for heterosexual relationships than for homosexual relationships).
That’s a strange interpretation of the 13th Amendment or the 14th Amendment. It also suggests that to ensure liberty we must destroy it. At any rate the EPC states:
I completely fail to see how allowing people to freely choose their marital arrangements violates the guarantee that we will be equally protected by the laws. Moreover I think you overlook the question of remedy. The obvious remedy is to have no-fault divorce proceedings. That way, if the husband feels slighted when his wife marries another man, he can just divorce her without arguing fault, and she’s not penalized for that choice. That seems to me to be the best way out. BUT it doesn’t reduce the cultural biases in, say, Islamic groups that would push towards polygyny exclusively.
The EPC doesn’t guarantee equality in contracts, and in fact a significant amount of inequality is allowed in contract law. Otherwise no software license would ever be enforcible. It only guarantees that the government will not make arbitrary distinctions in the legislation or administration of law, particularly when that is aimed at denying a group legal protection.
I thought I agreed that courts were in no position to force recognition of polygamy. So who would be making that argument? The state after it passes laws to allow multiple marriages? Certainly the state isn’t going to ask the court to strike down it’s own laws….. That wouldn’t work. I think that’s irrelevant to anything we are discussing.
July 11, 2010, 6:47 pmChris Travers says:
I’d agree with this, btw. And thanks for your fascinating post.
July 11, 2010, 6:58 pmChris Travers says:
BTW, my answer to the cultural question is simple:
I think that history makes fairly clear that societies where homosexual activity is tolerated or fairly normal are not necessarily disadvantaged by the result. I see no reasonable argument that can be made that would suggest that homosexual activity is per se bad for society.
Nonetheless there are open questions as to the role of marriage in fostering a positive environment for procreation, and it’s role in replacing the population of the state as we get older and pass away. I think, as it stands today, these questions should be answered in terms of assuming that personal liberty is currently more important than the longevity of the state. However, I am not willing to commit to such an answer for all of posterity. If at some point in the future, procreation becomes a real issue, then this will need to be addressed. It’s not an issue in the US today, though, so personal liberty should be the basis for public policy.
July 11, 2010, 7:05 pmBobVB says:
July 11, 2010, 7:23 pmChris Travers says:
I understand that, but identical twins share an identical genetic environment, the initial cell is the same, so the starting point is identical, and the uterine environment is identical. So that means a strictly biological theory doesn’t necessarily hold up.
As far as that goes I’d agree with that. The argument is largely how we get there. I’d suggest that letting government define the purpose of marriage by declaration would in fact allow that sort of distinction to be made arbitrarily. I.e. if government is free to say, “the purpose of marriage is to encourage procreation” then the government is free to ban SSM. That’s what’s wrong with purpose-based analysis— it doesn’t get to the heart of equal protections issues. Instead, what I’m saying is that courts should look at the marital rights, responsibilities, etc. and ask if same sex couples are similarly situated to that bundle of rights and responsibilities. If not, no EPC violation. If they are (and that’s a structural analysis), then the government has to be able to explain how this fits into a broader set of public policies. If they can demonstrate that, the courts should defer to the legislature. If they can’t, then it should be struck down by the courts. That is assuming the state Constitution doesn’t require more scrutiny than rational basis.
Him: Our marriage is broken as long as she continues to be married to that man…… I will not take her back as long as that is unresolved….
or even
Him: Our marriage has failed due to irreconciliable differences. I want her to be married only to me. She’s decided not to be.
What possible rebuttal can be made there?
Sure there would be a division of community property, but here in Washington State, marital misconduct is irrelevant to that division. It could still be exciting (as in snail races are exciting) but it wouldn’t penalize her for her decision.
Obviously community property would need some adjustment as well for multiple marriages.
How would they have standing to make such an argument?
Standing on that case is a no-brainer. The people who wanted their signatures withheld had standing. However, do I have standing to challenge your polygamous marriage on the grounds that somehow your ability to get married to multiple partners violates my federal rights? On what theory?
Also what Constitutional clause, exactly would be violated here? And how? Is polygyny involuntary servitude? Is it the state depriving a person of liberty or due process? Or equal protection of the laws? I doubt it.
In fact I don’t see how the state is necessarily required to ban anything it doesn’t want to ban.
July 11, 2010, 8:20 pmRandy says:
Chris “I think that history makes fairly clear that societies where homosexual activity is tolerated or fairly normal are not necessarily disadvantaged by the result. I see no reasonable argument that can be made that would suggest that homosexual activity is per se bad for society.”
Actually, in societies where women are oppressed, so are the gays. Where gays are oppressed, so are the women. It seems that mysogyny and homophobia go hand in hand.
As you elevate the status of either, you do so for both. This is very upsetting to some people, who prefer a masculine dominated society, or those institutions that have a role in perpetuating it.
July 11, 2010, 8:55 pmBobVB says:
No even identical twins can be very different and the uterine environment is not identical, just who has the shorter feed to the placenta would be enough to make a difference. Epigenetic factors allow for quite a bit of variation – genetic clones are not identical.
Well pedantically I would say they can’t define marriage because all they do is offer a contract in support of marriage – they can’t marry people. Secondly that’s what the Washington state courts decided – that the legislature can limit access to a contract for whatever reason they want, what they can’t do is limit access to the rights and statutes that that contract involves – hence the ‘everything BUT marriage’ Washington domestic partnership bill.
In what way? The women have to share all they make and he only has to share his through some hellish formula that takes into account some share of his earnings? Want grounds for a federal challenge there’d you have it.
Enter into such a marriage and then claim federal rights violations, right?
July 11, 2010, 11:27 pmAlso what Constitutional clause, exactly would be violated here?And how?Is polygyny involuntary servitude?
In the sense it is a basic right you can’t give away – if men have a right to multiple contracts so do women. It is the same in that it is an onerous inequity that can’t exist. I would go further in that no man could enter into a contract with the woman with the exception of her refraining from exercising this right anymore than a man could marry a woman and actually expect her to ‘honor and obey’ him unilaterally. There can’t be state legislated polygyny or polyandry, only polygamy.
Chris Travers says:
Legally, sure. But I fail to see the reason one couldn’t waive that right.
The state obviously must recognize both or neither. However, that doesn’t get to the shape of recognition (whether between multiple contracts or some sort of larger corporate form). Obviously if the state recognizes polygyny and not polyandry, that’s a clear EPC violation. But if the state recognizes both and lets that be a contractual matter, I don’t see the EPC violation.
And vice versa if the relationship was polyandrous. No reason to challenge on federal level if the existing wives (and/or husbands) had to assent to the new spouse’s inclusion. That would seem acceptable to me. Any objection from you?
As for a pure biological framework for sexual orientation, you still have to deal with cases (such as those Randy pointed out) where at least apparent bisexuality is a lot more common than it is here. You are dividing the world into gay/straight while refusing to address the fact that frequency of men having sex with men varies quite a lot from culture to culture.
Put it another way…. I think there is some strong evidence that there is a biological basis for having a native language. In fact there are cases where children who are linguistically cut off from others will develop their own language (one interesting case is Nicaraguan Sign Language). Moreover, once I am above a young age (maybe 3 or so) I cannot change my native language. But you can’t get from there to the idea that from birth I’m an English-language speaker.
July 11, 2010, 11:51 pmChris Travers says:
Just noting that if the other spouses didn’t have to agree then it would be essentially a unilateral renegotiation of the rights and responsibilities of marriage and I think that would pose substantial problems. But if they had to sign saying that they are a party to this decision and agree, then that issue goes out the window.
July 12, 2010, 12:01 amBobVB says:
I don’t understand that – you could no more waive your right to marriage as others have it than you could your liberty or your right to free speech. Its a fundamental right. If it could be waived then legislatures or even voluntarily would have done so as conditions of incarceration years ago.
How would licensing two inequitable relationships somehow prevent an EPC violation? All it would be is both men and women could be inequitable relationships in contracts sponsored by the state, the two errors would not somehow add up to a whole since the EPC would be applied to each contract individually. Or are there examples of other state sponsored contracts where citizens are put one above the other based on their gender?
I am? Not at all. Currently with only one spouse a person has to pick one out of a pool of potentials – it doesn’t really matter if that pool is of a single gender or a dozen does it? They still have to pick one. Denying a bisexual both is no different that denying someone multiple monogender ones.
And I’m not obsessed about the origins of sexual orientation as much as you are – again if religion gets a pass everything else does too since there is nothing more social and non-biological. There may be a dozen ways to get from point ‘A’ to point ‘B’ its irrelevant to the rights issue. Again, if any citizens can license with a male spouse then they all should be able to, ditto females. The reasons why that should be is just background to reinforce the need for equal treatment, but need not even exist to justify it.
July 12, 2010, 12:17 amBobVB says:
July 12, 2010, 12:20 amBobVB says:
July 12, 2010, 12:20 amChris Travers says:
People waive their free speech rights all the time.
Well, in my view the state would license potentially polyandrous marriages to women and potentially polygynous marriages to men. Whether either side waives their right to marry again would be a contractual matter, but further marriages would require the asset of all interconnected spouses for no other reason that it would change joint property interests.
Clarification: I was talking about cultural impact on bisexuality as one reason why the cultural questions are legitimately in play. It wasn’t directly about the structure of marriage.
Basically I was saying that if sexual attraction is fully inborn, then we should see rates of men having sex with men vary very little from culture to culture, but that’s not what we see. Instead there is substantial variation in bisexuality across cultures.
So the question (back to SSM) is what happens with the combination of SSM and the gradual decline of taboos about homosexual activity. Suppose I’m right and we start seeing perhaps a majority of people being openly bisexual. That’s an interesting question and I don’t think it’s out of bounds. Certainly if it becomes a problem (namely birth rates fall drastically), there are solutions. However, it seems to me that most cultures which have addressed this have done so by assuming that same-sex relationships should exist in parallel rather than as a replacement for procreative marriages (which leads one to some sort of arrangement similar to polygamy), but of course another possibility would be to re-taboo same-sex marriage as socially irresponsible.
I don’t see this as a current problem so it’s not something that I think folks should be overly worried about in setting policy today. After all, we can only play “what if” so much. But I think it would be wrong to disregard the possibility.
July 12, 2010, 1:08 amBobVB says:
Well then its a different situation – biblical, protoMormon, Islamic the wives are not legally entwined – each is married solely to the husband, the women are not married to each other.
Sexual orientation isn’t sexual attraction, actually the incidence of sexual orientations is pretty stable across cultures – people can have sex more many reasons other than sexual orientation.
Considering the high number of gay and lesbian parents out there I don’t think it would be an issue. The 20% of opposite gender married individuals that never pass on their genome would be a far greater concern for some time to come. The swedish solution seems to actually be the best if your concern is procreation – disconnect having children from any obligation to marry at all and make it as easy and rewarding as possible for women to bear and raise children. Our populations are falling because that’s what happens in urban societies – children go from being an agrarian worker asset to a financial liability. Society wants more children the solution is making the costs of child rearing a social responsibility. I mean if I had to chose between having a kid and an iPad I know which one I’d choose ;)
July 12, 2010, 1:28 amChris Travers says:
In this case they wouldn’t be either. However since their husband’s property would be affected, they get a right to veto new marriage contracts because it affects their own. Simple. (Technically Mormons have always required this anyway.)
I don’t think you can necessarily say that. If you look at the Kinsey scale, for example, even if people are engaging in male-male sex while in a heterosexual marriage, I’d think that would put that person in the Kinsey 2-4 range, which strikes me as a good definition of bisexual.
Or do you consider a Kinsey 2 to be straight and a Kinsey 4 to be gay?
July 12, 2010, 11:08 ammarkm says:
An SSM ban prevents a small minority, people who can only love their own sex, from marriage. (Except for sham marriages, but I don’t think anyone will post in support of those.) The only legitimate argument is whether this is permissible discrimination – it is distinguishable from Loving vs. Virginia in that the 14th Amendment bans discrimination on the basis of color but does not mention sexual orientation – but by now there are precedents for extending equal protection to many other groups than are listed in the 14th.
A ban on polygamy does not prevent anyone who can love more than one person from marrying. It just limits them to one at a time. And I suspect that this group is no minority, but rather it includes almost everyone.
Second, there is a government interest in banning polygamy. Think about the fat medical benefits most government workers get, including their spouses and children. Some states are already on the verge of bankruptcy from these plus pensions. Now imagine that instead of one spouse and however many children the two had, you’ve got to cover six spouses and 36 kids… Likewise, multiply the surviving spouse’s pension shares for both government workers and Social Security.
Now, the better way to handle this would be,
(1) The government isn’t concerned with marriage at all. Whether it’s a conventional marriage or six same-sex siblings plus their dairy herd, no permission slip from the government is required – or available. Finding a church willing to perform the latter wedding might be difficult, but you all could just move into the barn without any formalities. (Give or take some issues about informed consent in the case of the cows.)
(2) So, eligibility for partner and “family” medical benefits and survivors’ pensions would not be based on state-certified marriages, but would have to be spelled out in employment contracts. I’d expect that most employers would choose either to limit coverage to one partner, or to charge more for extras.
(3) (Also, tax and other governmental policies would not have advantaged employer group policies over other ways of paying for medical care.)
But since I can’t find Galt’s Gulch…
July 12, 2010, 6:41 pmMichael Ejercito says:
McDonald and Citizens United was about the Court upholding the Second and First Amendments, respectively.
You forget that limiting marriage to one man and one woman is a legitimate constitutional justification. (Murphy v. Ramsey)
By the way, just a few years after Loving, an appeal came before the Supreme Court claiming that denying same-sex “marriage” violates the First, Fifth, Ninth, and Fourteenth Amendments. Guess how Chief Justice Earl Warren (the author of Loving) and Justice Thurgood Marshall voted on the appeal.
July 12, 2010, 9:40 pmChris Travers says:
However, I’d hope that de facto polygamy would be struck down via the logic at issue with Lawrence.
IMO the only reason why the court wouldn’t mandate recognition of polygamy is just that the issues are too complex. The structure of the benefits means that polygamous families are not similarly situated to monogamous ones. Hence no justification needed and the 14th Amendment doesn’t apply.
July 14, 2010, 12:50 amOwen H. says:
In other news, Argentina has legalized SSM, the first Latin-American country to do so.
July 15, 2010, 11:26 amKevin from California says:
Under Article 4, Section 1 of the Constitution the States: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
Congress has a constitutional right to pass DOMA type laws. The purpose of DOMA was to insure that Alabama didn’t have to recognize gay marriage just because Hawaii did. Without DOMA the various States would have to recognize the marriage rights of people married in other States. Congress is completely within its’ jurisdiction under Article 4 to enact Section 2 of DOMA which says the States don’t have to recognize the same sex marriage laws of other States. The Judge is wrong in his decision on this issue. But, he is absolutely correct when citing Section 3 of DOMA as a violation of not only the 10th Amendment but also to 1st, 9th and 14th Amendments. Section 3 is totally discriminatory and unconstitutional.
Utah was only allowed to join the Union after it passed a law outlawing polygamy. Utah has the right to pass a legal polygamy law and unless the Congress enabled a general law allowing the States not to recognize polygamy it’d have to be recognized by the other States. That’s the way the Constitution works. It’s truly a thing of beauty!
What I’m waiting to see is how this plays out with Medical Marijuana. California has a Constitutional amendment allowing qualifying Californians the right to legally possess Medical Marijuana. Without a “Defense of Medical Marijuana Act,” under Article 4 the various States are legally obligated to give Full Faith and Credit to those laws. If a Californian (Medical Marijuana State) is traveling through say, New York (legislation is pending,) with Medical Marijuana in his possession, New York must recognize the Californians right to his medically recommended, constitutionally approved and legally obtained Medical Marijuana.
July 21, 2010, 5:10 pmNoah says:
I’m not sure it’s quite that simple. Full Faith and Credit must be distinguished on the basis of other States’ judgments, as opposed to statutory laws. The sister state has a stronger burden to overcome if it wants to ignore a judgment than a law.
July 25, 2010, 5:04 amIndyJoe says:
I don’t like your gender discrimination logic. If one gender is allowed to do something (say, have sex with or marry a man) and the other is not, then I would view it clearly as discrimination based on gender.
The fact that both genders have gender-based restrictions does not negate the discrimination, and in the case of orientation one can’t even make a “seperate but equal” argument.
July 30, 2010, 10:45 amMichael Ejercito says:
Laws against bigamous cohabitation would most likely not be enforced unless underage people are involved for precisely this reason. The likelihood of the Supreme Court overturning laws against bigamous cohabitation depends on the likelihood of a prosecutor actually prosecuting bigamous cohabitation between adults and then appealing the issue all the way to the Supreme Court.
Of course, Lawrence has no bearing on whether or not the government has a duty to recognize a relationship, so the rationale behind Murphy and Davis is still good on that issue.
July 30, 2010, 1:56 pm