Massachusetts District Court Judge Joseph Tauro issued two decisions in companion cases Thursday striking down Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law. It’s the first time any federal court has declared any part of DOMA unconstitutional. One decision, Gill v. Office of Personnel Management, did so on equal protection grounds (via the Fifth Amendment). The second decision, Massachusetts v. Dep’t of Health & Human Services, did so on federalism grounds. In this post I’ll concentrate on the equal protection decision. In a separate post I’ll have some reactions to the federalism decision. (The decisions do not affect DOMA Section 2, which allows states to refuse to recognize SSMs from other states.)
Gill was filed last year by Gay & Lesbian Advocates & Defenders, the same group that sued Massachusetts for same-sex marriage and won a huge victory in 2003 in Goodridge. It was brought on behalf of seven same-sex married couples and three survivors of same-sex spouses who applied for, and were denied, various federal benefits to which opposite-sex married couples would have been entitled. The various benefits are described at pp. 6-14 of the opinion, but are only a few of the 1,138 benefits identified by the U.S. Government Accountability Office that arise from federal law alone.
Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples. The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples. Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.
What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.
Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.
Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones. Op. at 23-24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996. But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24-25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.
The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25-26.
The third rationale — promoting traditional morality — is insufficient after Lawrence. Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.
And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26-27.
That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question. Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it. Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding. Op. at 28-35.
A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue. The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35-37.
What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context. Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5-6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).
The relatively recent enactment of DOMA, the legislative history, and the specific purpose of excluding gay couples, may make an animus conclusion more likely in the case of Section 3 (or Prop 8, or a state DOMA) than in the case of a simple, long-standing state definition of marriage. Add to that the passage of DOMA against a tradition of almost total federal deference to the states in recognizing marriage, and you have the possibility of a holding limited to the DOMA context.
I say “possibility” because I think that reading of Gill is probably not the one either side in the debate will readily adopt, and not the one that will prevail. Gill is the potentially more radical of Thursday’s decisions for SSM in the sense that its rationale could be used by other federal courts to strike down state marriage and state DOMA laws (and could provide one more paragraph in Judge Vaughn Walker’s expected decision striking down Prop 8, coming soon to a blog near you). Thus, it also stands a better chance of being reversed by the First Circuit or, failing that, by the Supreme Court.
HHS, the federalism decision, is more limited for SSM since its rationale wouldn’t apply directly to state marriage or state DOMA laws. But its potential effects on federal control over federal programs, especially those administered by the states, raise large questions of their own.
Either way, I have a hard time believing that DOMA Section 3 will be struck down without some input from the Supreme Court. And taken together, the decisions today present a bit of an irony: what the court giveth to the states in HHS (the full power to decide for themselves the meaning of marriage, as against Congress) it taketh away from the states in Gill (the full power to decide for themselves the meaning of marriage, as against federal courts).
On the whole, I don’t think Gill is one of the stronger judicial opinions supporting SSM. Its reasoning is too cursory. It doesn’t rely on the more obvious and to me more defensible argument: that discrimination against gays and lesbians is constitutionally suspect, deserving strict scrutiny. And unless reversed by the First Circuit, Gill could turn out to be a short-lived and expensive victory for SSM when it reaches the Supreme Court (assuming the Prop 8 case doesn’t get there first).
J. Aldridge says:
I’m still waiting for a convincing argument to how the Constitution empowers Congress to legislate over marriage requirements within the states. Marriage laws were never considered protecting persons in life, liberty or property in the administration of justice. Regulating who can get married and under what conditions isn’t a denial of any law of due process in the protection of life, liberty and property under the 5th or 14th.
July 9, 2010, 2:44 amGayPatriot » Tenth Amendment Jurisprudence Serves to Invalidate DOMA Provision says:
[...] at Volokh, Dale Carpenter weighs in on the ruling, He doesn’t “think Gill is one of the stronger judicial opinions supporting SSM.” And Dale always offers sound [...]
July 9, 2010, 3:40 amBABH says:
The Constitutional right to marry has been considered a liberty interest since at least Loving v. Virginia (1967).
July 9, 2010, 5:01 amRodger Lodger says:
Does anybody care to explain the precedential reach of this decision? Normally a district judge binds nobody but himself. What about the remedy — does it just favor plaintiffs, or anybody who lives in Massachusetts, or something else? And supposed the U.S. does not appeal the judgment — then what? Thank you.
July 9, 2010, 5:52 amRodger Lodger says:
Another q: is the DOJ legally obligated to appeal?
July 9, 2010, 6:42 amMartinned says:
Who says that it does?
July 9, 2010, 7:31 amJoe says:
I guess this might be a partial support to Jack Balkin (Balkinization, quoted in NYT) warning that this ruling is doomed. I rather be more optimistic.
The government here rested on a weak, post hoc rationale that — if the judges desire — can provide a limited focus to the decision: the feds, very selectively and clearly based at least in large part on animus (not even shown in interracial cases — I would harp on this, since it’s glaring) to single out one type of marriage in respect to the “status quo.” The rationale is in fact — as suggested here — irrational, since entering the field does just what it claims it wants to avoid — to get mixed up with the same sex marriage debate.
It seems to me less intrusive to let the states on their own serve as laboratories in this area. While doing this, they shouldn’t have to be deprived of federal health funds or money to supply for death benefits for vets — to cite the facts of other case. Yes, the ruling had a broader EP component, but the core focus on what the federal government did. It is striking that DOMA took place because of a Hawaiian ruling that was dealt with in-house, so to speak, while the Full Faith and Credit recognition issue was handled over the years by the traditional rule that states need not recognize out of state marriages (such as first cousin marriages) that violate local social policy.
So, the 1CA should decide narrowly and let the states recognize same sex marriage w/o blatantly discriminatory federal policy hindering the process. Federalism as it should work — Kennedy will be proud.
July 9, 2010, 10:31 amMichael Ejercito says:
As Assistant Attorney General Tony West pointed out in his brief in Smelt v. United States, other courts upheld DOMA, across more than one circuit. It is up to the Supreme Court to settle these differences in precedent between the circuits.
And even before that, though the right was never held to constitute a right to marry whomever you please (Reynolds v. United States, Davis v. Beason, Murphy v. Ramsey)
July 9, 2010, 10:57 amGMUSL '07 Alum says:
Dale, why does “discrimination” against gays and lesbians warrant strict scrutiny (despite any constitutional amendment granting rights to gays or forbidding discrimination on the same), but sex-discrimination only warrants intermediate scrutiny despite the suffrage amendment?
(Apologies for the scare quotes, but everybody is treated exactly the same under this law — any unmarried man of age can marry any sufficiently-unrelated and unmarried woman of age, without regard to their sexual orientation. All individuals, both straight and gay, may not marry a person of the same sex. That gays may want such marriages while straight individuals do not is important, but it does not establish discrimination any more than the trans-fat bans discriminate against trans-fat lovers)
July 9, 2010, 11:26 amJoe says:
No need to stop at Loving — Meyer v. Nebraska (1923):
Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
And even before that, though the right was never held to constitute a right to marry whomever you please (Reynolds v. United States, Davis v. Beason, Murphy v. Ramsey)
The question therefore is if “bilateral loyalty” (Griswold) includes only unions between men and women. We already know the test is not “whomever you please” given age requirements and so forth. Polygamy cases — no “bilateral loyalty” there — doesn’t quite decide the question. Loving itself showed the limits of state discretion there.
July 9, 2010, 11:31 amShelbyC says:
This is a rather scary rational. Many people think gays don’t make as good parents for whatever reason, and based on whatever definition of “good”. If courts can base a rational basis test on a declared consensus of “experts” we’ve ceded way too much power to courts, and “experts”. Heck, just about every expert in religion that I know thinks god created the world.
I’d note, however, that none of the purposes listed above is a valid federal purpose.
July 9, 2010, 11:34 amLester Livio says:
Welcome to Polygamy folks! If Congress cannot regulate what marriage is, and states cannot deny consenting adults the right to marry under equal protection, why should Mormons and Muslims be denied the right to marry multiple spouses? This is called the law of unintended consequences! Bigamists of the world unite and appeal your convictions!
July 9, 2010, 11:37 amTheColu.mn » Blog Archive » Obama Admin Quiet On Possible Appeal of Ruling That Struck Down DOMA says:
[...] commentators – including the University of Minnesota’s Dale Carpenter (h/t Andrew Sullivan) – say any ruling [...]
July 9, 2010, 11:49 amMartinned says:
The Iowa ruling, which is still my favourite, explains: (p. 33-35)
(footnotes and references omitted)
July 9, 2010, 11:51 amMartinned says:
Indeed! Why accept expert testimony in court anyway? Why not let the jury decide whether the DNA test really proves what the prosecution says it proves, and whether this new-fangled “Darwinism” thing really has enough merit to have it tought in schools!
July 9, 2010, 11:54 amMartinned says:
Reading comprehension much? Just because there is no rational basis for a law banning SSM, doesn’t mean there is no rational basis for a law banning polygamy. I’d argue there very much is, in that such a law stops various kinds of abuse against women. (Not to mention the sons.)
July 9, 2010, 11:55 amLester Livio says:
Selective comprehension, right! Go ahead and list the rational basis. Be sure not to mention ethics or morality! Abuse is a relative term. I assume polyandry (a woman marrying multiple husbands) would be ok with you.
July 9, 2010, 12:02 pmSarcastro says:
This is a poor excuse for a parade of horribles. Welcome to marrying dogs, and raping children, folks! Also welcome to our species dying out cause everyone is gay and then monkeys take over!
July 9, 2010, 12:06 pmKate says:
As a foreigner curious about the U.S. Legal system, specially the workings of appellate courts, I must say I am pleasantly surprised by the legitimate debate I found in the comments for this article. Commentators are actually citing case law and reasoned arguments to support their comments, as opposed to “I’m gay and I want to marry whomever I want” or “Gays should not marry (and they are going to hell)”. Please accept a humble token of admiration from an observer.
…. and 1 minute after I posted I found the “…our species is dying out cause everyone is gay…” comment. (Sigh)
July 9, 2010, 12:06 pmzuch says:
One such expert of religion, one S.L. Clemens, had this to say:
Another expert, a J.B.S. Haldane, was explicit as well as to the attributes. The Creator had, he said:
Cheers,
July 9, 2010, 12:30 pmLester Livio says:
For your information, polygamy and polyandry are widely practiced around the world, including here in the United States…the rational basis analysis (rejection of morality) in Judge Tauro’s DOMA decision makes their legalization in the United States inevitable. What say you?
July 9, 2010, 12:40 pmL says:
In our defense, that was sarcasm.
July 9, 2010, 12:43 pmyankee says:
Not quite. Polygyny has been the dominant form of marriage for most of human history and is widely practiced around the world today. Polyandry, on the other hand, is very rare.
July 9, 2010, 12:51 pmL says:
If the only arguments you have against plural marriage are that it goes against traditional morality, then I hope the states have better advocates than you when and if they go to court to defend anti-polygamy statutes.
In the US in modern times, pretty much everything legal related to marriage is gender-neutral, except the paperwork, and the access. Gone are the days of dower and curtesy and such. In contrast, many of the laws related to marriage depend on there being exactly two people involved.
I think that’s the real solution to this whole “definition of marriage” argument. SSM opponents (even–no, especially–the “tolerant” ones who are okay with separate but equal civil unions) sometimes fret about courts or legislatures changing the definition of marriage. I would say that we, as a country and a society, have changed the legal definition of marriage to a basically gender-neutral institution, except that we have continued to restrict access to opposite-sex couples. Now that the definition has changed, courts and legislatures ought to end the discrimination.
On the other hand, we have not changed the legal definition of marriage, in the US, to include more or fewer than two individuals. Does this mean we should continue number-discrimination? I don’t know. But I would argue that it means we may, which is the constitutional question, and the stopper to your slippery slope.
July 9, 2010, 12:59 pmRandom Links on Various Topics « Random Musings of a Deranged Mind says:
[...] & Carpenter being unimpressed by the recent federal district court decisions striking down part of [...]
July 9, 2010, 1:07 pmyankee says:
We’ve done more than that, we’ve changed the very essence of marriage. At the founding of the Republic, the husband had the right to dominate and control his wife: he had the right to make decisions for the household and controlled his wife’s property. A wife was also her husband’s sex-slave since she had no legal right to refuse sex: this rule was not changed until the 1970′s, when feminists got marital rape bans enacted.
The modern conception of marriage as a relationship between equal partners is a wholly different institution from any that ever existed in Western history.
July 9, 2010, 1:29 pmThrobert McGee says:
Aaargh. Since that (in)famous “1,138″ list includes separate statutes relating to surviving spouses of Korean War veterans; and to survivors of coal miners who died from black-lung disease; and to survivors of Merchant Marines; and to non-Indian survivors of Native Americans who had mineral rights on reservation land (and so on, in excruciating specificity), it is farcically misleading to suggest that there are “over 1,000 federal benefits” being cruelly denied to married gays in Massachusetts.
July 9, 2010, 1:34 pmJoe says:
A wife was also her husband’s sex-slave since she had no legal right to refuse sex: this rule was not changed until the 1970’s, when feminists got marital rape bans enacted.
This is exaggerated and even if we take it literally, the wife could move outside of the marriage domicile to avoid it. A husband could not force himself into the home of let’s say her sister to have sex with the wife.
Spousal rape was not targeted. Or, was it that wives could be targeted for sodomizing husbands, but not vice versa?
July 9, 2010, 1:41 pmJoe says:
Aaargh. Since that (in)famous “1,138″ list includes separate statutes relating to surviving spouses of Korean War veterans; and to survivors of coal miners who died from black-lung disease; and to survivors of Merchant Marines; and to non-Indian survivors of Native Americans who had mineral rights on reservation land (and so on, in excruciating specificity), it is farcically misleading to suggest that there are “over 1,000 federal benefits” being cruelly denied to married gays in Massachusetts.
the fact that various benefits only help a relatively few number of people [e.g., spousal testimonial immunity is something my parents never -- to my knowledge -- had to take advantage of] doesn’t mean the benefits aren’t there. So, I don’t know what you are talking about.
Anyway, if there was only let’s say 20 core benefits, would it be less problematic on a 14A basis? This is silly.
July 9, 2010, 1:45 pmMichael Ejercito says:
The issue was addressed by the Supreme Court in Reynolds v. United States, Davis v. Beason, and Murphy v. Ramsey.
We still refer to husbands and wives, brides and grooms.
This is true. In this debate, I found out about the Supreme Court ruling in Murphy, something I had not learned before.
How would God be a malign thug?
In any event, Christian theology teaches that He has absolute, unfettered power to decide who receives eternal pleasure in Heaven or eternal torment in Hell.
And I am sure that banning same-sex “marriage” has stopped at least one gay person from being abused by a “spouse”.
If rational basis was the standard used to review the right of marriage as defined in Murphy and Loving, the complete abolition of marriage would pass that standard of review.
July 9, 2010, 1:52 pmThrobert McGee says:
Of course it wouldn’t be less problematic.
But “Gay couples are denied approximately 20 federal benefits!!” does make for a rather less sensational pull-quote in sob-sister editorials — which is the entire point of citing the 1000+ figure.
July 9, 2010, 1:56 pmThrobert McGee says:
Ask a male praying mantis (or ask his neck-stump, anyway).
(Without looking it up, I’m pretty sure that the “malign thug” quote was an observation on the seemingly gratuitous Redness of Nature’s Teeth and Claws. But I could be mistaken about its provenance.)
July 9, 2010, 2:01 pmRob Berra says:
I’d be interested to hear one stronger than “tradition” or “changing would be inconvenient.”
What kinds of abuse does it prevent? I’m looking for things that are specific to polygamy, obviously. Naturally, Warren-Jeffs-style forced marriages and underage marriages are heinous and should not be allowed, but what abuses are inherent to polygamy itself?
If you oppose polygyny to protect women, would you be willing to allow polyandry? And is this “protection” more important than allowing fully-informed, competent, consenting adults to marry other fully-informed, competent, consenting adults? I’d think libertarians would say “no.”
How are sons, specifically, “abused” in polygamous marriages?
July 9, 2010, 2:03 pmKate says:
I stand corrected. Thank you again for an interesting discussion.
July 9, 2010, 2:12 pmMichael Ejercito says:
I wonder why this does not apply to marriage itself?
Domestic violence shelters have proof that women are harmed in marriages. Would Martinned believe this would justify the state abolishing the institution of marriage?
On the issue of same-sex “marriage” only Alessandra (who posted on the Hawaii Civil Union Thread) has even suggested domestic violence as a reason to ban same-sex “marriage”.
July 9, 2010, 2:16 pmRob Berra says:
Quite true. At the wedding I attended last weekend, both brides spoke happily of their new wives.
July 9, 2010, 2:26 pmL says:
July 9, 2010, 2:26 pmElfwreck says:
Nobody (here) has said that the state (indiv states, or Congress) can’t regulate what marriage is–just that they need a compelling reason to interfere with people’s right to marry as they choose.
Congress can’t regulate the right to free speech–except where the state has a compelling interest to do so, like security. It can’t regulate marriage–except for the safety of some citizens (age limits), health reasons (consanguinity laws), to retain other freedoms (no involuntary marriage), and so on. I can think of several reasons why polygamy causes problems the state has good reasons to avoid (and that’s aside from the ones caused by Mormon-style man-with-multiple-wives version). Consanguinity laws, even with same-sex marriages, will likely remain, because a major reason to allow marriages is to create a family relationship, and such already exists between people closely related by blood, so there’s no reason for the state to have to define permissible marriages based on who can & can’t procreate.
The state could prevent same sex marriages–with a rational reason why such marriages are harmful to state interests, or why preventing them is helpful to state interests. “They disgust people who don’t like gay sex” is not enough of a reason.
July 9, 2010, 2:26 pmL says:
Oof, missed a close tag there, sorry.
July 9, 2010, 2:35 pmShelbyC says:
Martined, as I’m sure you know we don’t allow any of these things for the purposes of rational basis analysis, nor should we. That’s the whole point. The court isn’t supposed to determine whether or not congress was correct, just whether or not parental outcomes can rationally be linked to the gender of the parents. And the fact that “experts” have even opined on this issue indicates that there is some debate surrounding it.
July 9, 2010, 2:42 pmThrobert McGee says:
It’s not that the male offspring of a man with multiple wives are necessarily “abused” by their own parents; it’s that, when polygyny becomes a widespread cultural practice, the society tends to develop a surplus of unmarried beta males with dim prospects for finding even one wife. So in that sense, the “sons” (i.e., the young men) of a polygynous culture tend to suffer.
Of course, sometimes the “abuse of sons” may be more literal — there’s a documented problem of Fundamentalist Latter Day Saints finding the flimsiest pretexts to banish teenage boys from the community (thereby keeping the “bachelor oversupply” problem in check). And to the extent this is done with the full approval of the boys’ parents (which it is), it does amount to son-abuse.
(A different way to deal with the beta-male surplus is to turn all those frustrated young bachelors into cheap cannon fodder by romanticizing jihad…)
July 9, 2010, 2:45 pmLymis says:
Polygamy advocates will have to make the case for themselves. It’s absurd to say that opening marriage to same-sex couples “requires” allowing polygamy. I fail to see it as the horror that it is usually presented as.
And can we just drop the “abuse of women” thing with regards polygamy? Yes, in the past, the traditions included forcing young women into plural marriages against their will. And that’s bad.
But it was also a time of forcing young women into single marriages against their will, with no contraception, no prenatal care, and no antibiotics. Marriage was often a death sentence even when only two people were involved.
The same changes that have improved the lives of wives in two-person marriages would still apply if polygamy were legalized – consent, the ability to divorce, protection from domestic abuse, minimum age to marry, the right to own property, and so on.
There is no reason to assume a modern polygamous marriage would be any more abusive than a two-person marriage. More complex, surely.
Similarly, all the doom-and-gloom scenarios about all the women getting married into families with one man, leaving rampaging mobs of unrelieved single men to destroy society, all assume that all multiple marriages will have only a single man, which is ridiculous.
July 9, 2010, 2:49 pmyankee says:
You’re right that a man could not commit another offense (such as trespass) to have sex with his wife, and he could not obtain a court order forcing his wife to have sex with him, but “self-help” was 100% legal. Even the MPC defined rape as the unlawful carnal knowledge by a man of a woman not his wife.
Within my own lifetime I can remember people criticizing the idea that a man could rape his wife as self-contradictory. Isn’t that what she’s there for?
July 9, 2010, 3:04 pmyankee says:
That one is true. Most societies that allow polygamy, both historically and today, have only allowed polygyny, but a hypothetical American polygamy regime would have to permit both polygyny and polyandry. It would probably even allow both at the same time (say, two men each married to the same two women).
July 9, 2010, 3:10 pmptt says:
Perhaps, eschewing the accuracy of an exact number, we should just say “gobs”.
July 9, 2010, 3:25 pmRob Berra says:
That’s what polyandry is for. Or line marriages.
July 9, 2010, 3:27 pmptt says:
I think Yankee is on to something. By providing a uniquely American twist to polygamy, you could simultaneously allow it for those few who really, really want it and discourage a far greater number from practicing it. Not only should we allow multiple wives and multiple husbands, we should condition addition of a new partner or divorce of a existing partner on the consent of a majority of the other individuals involved in the marriage.
July 9, 2010, 3:29 pmADF Alliance Alert » Dale Carpenter: The DOMA Equal Protection Decision says:
[...] Carpenter has this post at the Volokh Conspiracy discussing yesterday’s federal DOMA [...]
July 9, 2010, 3:30 pmzuch says:
The link was there to follow in my original comment. I suspect Mr. Clemens was in part put off by such as the massacre of Filipinos by the U.S. (and perhaps the fact that essentially all his loved ones predeceased him).
Cheers,
July 9, 2010, 3:33 pmzuch says:
Q.E.D.
Cheers,
July 9, 2010, 3:34 pmElfwreck says:
Majority? No, unanimous consent to add a new partner. (Not sure divorce works that way; you don’t need a majority for a divorce *now*.)
July 9, 2010, 3:35 pmRob Berra says:
Hel, I think I’ve heard that in the last *year.*
July 9, 2010, 3:50 pmRob Berra says:
Robert Heinlein “The Moon Is a Harsh Mistress,” “Friday,” etc.
July 9, 2010, 4:00 pmboomer says:
“Polygamy advocates will have to make the case for themselves.”
Indeed. It’s one of the bizarre parts of this debate that the only people who talk about supporting polygamy are those who oppose same-sex marriage.
July 9, 2010, 4:21 pmJohn Herbison says:
Assuming that to be true, keep in mind that the Apostle Peter listed busybodies alongside murderers, thieves and evildoers.
July 9, 2010, 4:47 pmJohn Herbison says:
I wonder. With regard to the standard of review, what kind of evidentiary record was developed in Gill? In that it was decided on summary judgment, I surmise that the materials submitted to the District Court were less comprehensive than the full bench trial record in Perry v. Schwarzenegger.
It seems to me that, with regard to the standard of review, Romer v. Evans cuts both ways. The rejection of animus or a desire to harm a politically unpopular group as a sufficient basis under even the most deferential, rational basis standard is helpful to gay rights advocates; however, SCOTUS declined to adopt strict scrutiny there–even though the Supreme Court of Colorado had applied strict scrutiny.
Keep in mind, Romer affirmed the result reached before the State court. What precedential effect does it have, then, that SCOTUS (at least implicitly) rejected strict scrutiny with regard to a State measure that disadvantages gays and lesbians?
July 9, 2010, 5:03 pmMatthew Carberry says:
Just as an academic exercise:
If there are benefits (monetary, legal, survivor rights, medical decisions) that accrue upon marriage but are not available in other blood relations and procreation is off the table as a controlling factor (we do allow unrelated people with all sorts of potential negative interactions and transmittable diseases to marry lawfully) on what real basis other than tradition does the state have a rational interest in getting involved in consenting adult incestuous (gay or straight) unions to the extent it prohibits equal access to those benefits?
It seems to me that the “slippery slope” argument really isn’t out of line. Once “tradition” is off the table there isn’t a lot of scientific basis to restrict marriage, other than convenience and administrative convenience typically doesn’t suffice to counter equal protection.
Personally I’d like to get the .gov out of the “marriage” business (including benefits) entirely or just create a totally secular and non-romance based partnership contract between any two consenting adults that provides the same benefits “marriage” does now.
Want a “wedding”? Pick a format and have at it, just make sure you get your partnership contract notarized and filed properly.
July 9, 2010, 5:54 pmJ. Aldridge says:
True, but the court closed its eyes to 500 years of understanding of the word “liberty” when it did so. Liberty under the 5A and 14A was the liberty from physical restraint without due process, not a liberty to do whatever one might choose or grounded in some fundamental right.
July 9, 2010, 6:08 pmAnd Now The Left Picks Up That Old Tenth Amendment « Around The Sphere says:
[...] Dale Carpenter: Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples. The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples. Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational. [...]
July 9, 2010, 6:10 pmRandy says:
“Be sure not to mention ethics or morality! ”
Sure. Because being gay is so unethical and immoral.
J. Aldridge: “Liberty under the 5A and 14A was the liberty from physical restraint without due process, not a liberty to do whatever one might choose or grounded in some fundamental right.”
Yeah, it’s not like anyone took that line about the ‘pursuit of happiness’ seriously or anything.
July 9, 2010, 7:31 pmBobVB says:
The obvious one – if finding sexual partners was not prohibited within the immediate family environments members could become predatory victims of other family members at very young ages. Even if this was only grooming for their eventual role as a sexual partner at the age of sexual consent the effect would be virtually irresistible. Protecting the individual’s right to make their own choices in this regard totally justifies the exclusion.
Further there have always been classes of individuals that have been proscribed from consideration for licensing the marriage contract, close relatives, the already married, those below a certain age. But these proscriptions have still left a large pool of other potential spouses to select from. In contrast, it is widely known and accepted that most people can only reasonably be expected to have a spouse of a particular gender. Telling a citizen they can license a spouse except one of that gender is giving them an effective pool of zero potential spouses. Once again, the difference between state regulation and effective abrogation of a right.
July 9, 2010, 8:20 pmMatthew Carberry says:
Bob,
So neighbors, adopted or step family members and family friends (all lawful potential marriage partners) can’t groom? I don’t think the numbers nor logic support that. Certainly not to the point to justify disqualifying those who just happen to want to marry of their own free will for whatever reason.
And, again, the other proscriptions you mention either don’t stand up to modern precedent (or are arbitrary) or are irrelevent. Potential procreation problems or inability/unwillingness to procreate are no longer disqualifiers for non-relateds, why should they, logically, be so for the related?
I already predicated “adult” and “consenting” so underage isn’t a good analogy and getting married when one is already married is a contract violation and illegal. We’re talking unmarried people who happen to be related but want the increased governments benefits that marriage provides.
Aside from tradition (and I suppose the potential for grooming to maybe take place) what logical or factually-based reasoning remains?
July 9, 2010, 9:50 pmOwen H. says:
Unanimous to add. Majority to remove another partner, partners can leave on their own.
July 9, 2010, 10:08 pmOwen H. says:
Not quite true. I support both, but I recognize that unlike SSM, poly marriage will require actual adjustments to the laws regarding marriage.
July 9, 2010, 10:11 pmBobVB says:
So neighbors, adopted or step family members and family friends (all lawful potential marriage partners) can’t groom? I don’t think the numbers nor logic support that.
Neighbors, extended family members, and family friends are social and outside the immediate – the government can and does intrude on what they do all the time and if this behavior is proscribed in the family then the entire family goes from potential groomers to family protectors from just these activities. By proscribing such marriages the family helps prevents grooming within families without undo intrusion into family privacy, and helps protect those below the age of consent from extra familial attempts of same.
And, again, the other proscriptions you mention either don’t stand up to modern precedent (or are arbitrary) or are irrelevent. Potential procreation problems or inability/unwillingness to procreate are no longer disqualifiers for non-relateds, why should they, logically, be so for the related?
Because the reasons for the incest ban are primarily social not genetic.
Aside from tradition (and I suppose the potential for grooming to maybe take place) what logical or factually-based reasoning remains?
One needs no more than the grooming one to justify the exclusion. Again, the argument isn’t about everyone has a right to marry anyone they want but rather that everyone has a right to marry someone. Excluding the closely related from a citizen’s pool of potential spouses is a tiny one considering we already exclude the already married, those below the age of consent, and the like. That still leaves the citizen with a vast pool of potential spouse to explore. Its when by state restrictions that pool is reduced to effectively zero that fundamental right problems arise.
And that’s the issue that is cause the court failures – a majority of citizens can already have an unrelated, of age, male spouse, a majority of citizens can have the same for a female spouse. Marriage equality is about letting all citizens have what a majority of citizens already enjoy, not about allowing any citizens to do something that no citizens are currently allowed. Equity vs Expansion, Regulation vs Abrogation of rights. Therein lies the differences.
July 9, 2010, 10:31 pmMatt Davis says:
Here’s a quick guide to why laws prohibiting polygamy needn’t be struck down as a logical extension of the invalidation of laws prohibiting same-sex marriage.
First, every state supreme court that has invalidated laws prohibiting SSM has done so on the basis of equal protection principles as well as substantive due process principles. Let’s proceed with the equal protection track, since it’s the stronger rationale and illumines some of the key ideas.
Equal protection principles in most state constitutions track with that of the 14th Amendment (and 5th Amendment). What equal protection commands is not that states treat everyone equally; rather, it commands that states treat similarly those similarly situated with respect to the purpose of the law. A court’s analysis on this front is complemented by an evaluation of whether the state’s classification is on the basis of some suspect trait (race, sex, national origin, etc.). If a classification is based on race, for example, a court will require that the state justify the law as necessary to achieve some really, really state interest because classifications based on race have traditionally and historically been a front for racism and prejudice. This part of the analysis comes into play when the court evaluates the state’s proffered purposes for the law.
This brings us to SSM and equal protection. State laws prohibiting SSM make classifications on the basis of sexual orientation. Those within the state who are straight are able to marry the person they love and want to spend the rest of their life with. The state will sanction their union and benefits will flow from it. Those within the state who are homosexual are only able to marry persons of the opposite sex. Though many gays and lesbians have done so historically in order to present a facade of a “normal” family life, their inability to marry the person they are romantically and sexually attracted to constitutes a significant burden (an indisputable point, even if you oppose SSM). Thus, a classification based on sexual orientation.
Now, the difference between what state courts have found and what the Supreme Court has held in cases like Lawrence and Romer is that state courts have held homosexuals to be a suspect class because of the same reasons that race and national origin and gender are suspect classes: there exists a history of discrimination based on that trait or characteristic; the trait is immutable (I know there’s some dispute on this re: homosexuality, but this factor isn’t dispositive on its own); the trait is a poor proxy for determining whether any given member of the class is able to contribute to society; and the class has historically been without political power. Since all (or most) of these things are satisfied with respect to homosexuals, state courts have scrutinized the states’ purposes behind the laws banning SSM with a bit more oomph than a traditional law regulating, for example, the licensing of hot dog cart vendors.
This brings us to polygamy. As always with equal protection analysis, the first step is to figure out what the classification is. When a state prohibits a man or woman from being legally married to more than one person at a time, both sexes are affected. So it’s not a classification based on sex. Nor is it a classification based on sexual orientation because the polygamy law will affect both straight and gay married couples equally in jurisdictions allowing SSM. Nor is it a classification based on religion because the LDS church no longer concerns itself with polygamy. So what is the classification? Simply put, the law discriminates or classifies on the basis of that which it is prohibiting, like any penal or criminal law. A law prohibiting robbery discriminates on the basis of those who commit robbery. A law prohibiting gambling discriminates on the basis of gambling – some voluntary act made by an individual. With equal protection analysis, it doesn’t matter if some important state function – like marriage – is involved. What matters is how the law makes a classification.
Therefore, since laws prohibiting polygamy makes distinctions on the basis of those marrying more than one person and those who are not, and not on the basis of some suspect trait, it is not a suspect classification and any conceivable state purpose behind a polygamy law will be scrutinized by a court with extremely relaxed scrutiny. Essentially, if there was any rational reason for a state to ban polygamy – and commenters have identified several – a court will defer to the state.
That’s about it. Let’s hope this ends the SSM -> Polygamy trope.
July 10, 2010, 12:28 amLester Livio says:
Are you suggesting that under American law the words “husband” and “wife” are null and of no effect? That the words “man” and “women” are no longer legally valid term in the United States? What a sweeping, misleading claim! More than thirty states have passed constitutional amendments defining marriage as a union between one man and one woman! So much for your claim that “we” as a society now view marriage as gender-neutral!
My point is that if “rational basis” (which rejects morality) is the standard for reviewing rationale for sticking with traditional marriage, it will have a lot of unintended consequences. What are we going to do after we abandon morality? Are you prepared to apply morality to plural marriage after you get rid of it in the case of same-sex marriage?
July 10, 2010, 12:42 amBobVB says:
There is nothing immoral about a citizen have an adult, unrelated adult as a spouse. There is no ‘same sex’ marriage there is just marriage, and individual fundamental right and if a majority of citizens can license a male spouse they all should be able to, ditto for females.
July 10, 2010, 12:44 amL says:
You’re right! It’s sweeping! It’s misleading! I’m glad I never made such a claim!
What I’m saying is there is no or almost no difference, under the law, between a husband and a wife. If I’m wrong, show me. Show me a law that treats a “husband” one way and a “wife” another way. I can find laws that do this that are no longer on the books (earlier I referenced dower and curtesy). But I can only think of one that is still in effect. Can you think of any? My state still has dower (don’t know how common that is), but it’s gender-neutral dower.
So much for the claim! The claim I didn’t make! I said that legally, marriage is essentially gender-neutral. If I’m wrong, show me. Point out for me the legal conundrums that would arise (or, in five states, have arisen), because same sex marriage is allowed. I can do this for you with respect to plural marriage, but you cannot do this with respect to SSM. That’s the claim I’m making. Obviously there are a whole lot of people out there who do not perceive marriage as gender-neutral. My point is that (apart from access to the institution) the laws treat it gender-neutral.
I have no intention to abandon morality. I’m all about morality. I love morality. I think we need more morality. In some cases, I might be able to even get behind using morality as a basis for legislation. Maybe. I just don’t happen to agree with you that there’s anything immoral about same sex marriage.
I’m also not convinced that there’s anything immoral about plural marriage, per se. Honestly, it’s not a subject I think much about, so I don’t really have much of an opinion of pros and cons.
July 10, 2010, 2:01 amShelbyC says:
It’s not the law making the classification. Any restriction on who can marry who, including age restrictions, requirement of the consent of the other party, etc, prevent people from marrying who they love. This is just another variation on the argument that the law treats unequally the class of people that want to engage in the behavior that the law prohibits, which is true of all laws and gets you plain old rational basis.
And the law requiring one partner treats people who only want to be with one person differently than people who want to be with two people.
July 10, 2010, 9:26 amMatt Davis says:
I wish I could tell you that this makes any sort of sense, but it’s flat-out wrong. You need only one read a few equal protection cases to see how you’re failing to grasp the key principles here. Clearly, one of the hardest parts of the legal analysis for equal protection is figuring out what the classification is. A law that prohibits marriage between persons who are under 18 classifies based on age. A law that prohibits marriage between persons who have not consented classifies on the basis of consent. Neither age nor ability to consent are suspect classifications, however, so the most meager form of rational basis scrutiny would be employed.
I’m happy to explain further if you still fail to understand how laws prohibiting SSM make classifications based on sexual orientation. Let me know.
July 10, 2010, 10:37 amjrose says:
Matt,
This case is about the federal DOMA, and thus sexual orientation isn’t a suspect classification.
July 10, 2010, 10:50 amMatt Davis says:
Quite right. Judge Tauro held that even employing rational basis scrutiny, the federal government couldn’t justify the classification it had created at the federal level between homosexual persons and straight persons. But my post had nothing to do with this case. Tauro’s opinion has no effect on state marriage laws. State courts generally decide on the constitutionality of the laws of marriage within any state. I posted to explain to commenters here with no legal background or knowledge of constitutional law why the legalization of polygamy does not necessarily follow from the legalization of same-sex marriage.
July 10, 2010, 10:55 amjrose says:
Matt,
1) I suspect some of the posters are arguing that this decision leads down the slippery slope. See for example, Eugene’s post arguing Tauro’s logic applies to state marriage laws.
2) Sexual orientation isn’t a suspect classification in Massachusetts.
July 10, 2010, 11:10 amElfwreck says:
Currently, polyamory is not acknowledged as an innate psychological trait, but that could change. A potential facet of “orientation” is whether a person is romantically/sexually attracted to one person (at a time) or several. Many societies have a long history of criminalizing and shaming people who are drawn to multiple partners–even if all those partners are consenting adults.
And Mormons aren’t the only religion to have ever advocated polygamy, although I don’t know of any religions, other than some types of modern Paganism, that support true plural marriages, where all partners are equally married to each other and have the same status & rights within the marriage.
However, these arguments are weak at best. They may be relevant, but it’d be hard to prove systematic oppression and denial of basic rights to privacy & pursuit of happiness based on them.
And the state has many sensible reasons for keeping marriage limited to two people. Allowing more would add burdensome complexities to inheritance laws, custody battles in divorces, privileged communications (what would stop a criminal group from all getting married to avoid having to testify against each other?), medical permissions, health insurance coverage, tax codes, debt responsibility, property ownership, family leave allowances and a host of other issues. All of these could be addressed satisfactorily, but the fact that they exist, and solutions aren’t immediately obvious, allows the state to insist that, even if “those who want group marriage” are a suspect class (very questionable), there are solid, rational reasons for discriminating against them.
The issues involved in allowing SSM are:
1) Some government forms that currently indicate gender need to be changed to not indicate gender, and
2) Potential weirdness of incarcerated prisoners being housed with their spouses. (And potential weirdness in any sex-segregated housing, but prisoners is one of the few where the government has a legal interest in the behavior of the residents.)
The second option is not considered relevant enough to override the rights of the people who wish to marry someone of their own sex.
July 10, 2010, 11:11 amMichael Ejercito says:
It would be more efficient to encourage some women to indiscriminately put out.
It depends on the manner that same-sex “marriage” is recognized.
July 10, 2010, 11:29 pmjosil says:
I find advocates of SSM unusually silent about the constitutionality of polygamy. Is there a moral, ethical, or constitutional reason to object to polygamy any more than SSM? I’m ignoring questions of administrative convenience.
July 10, 2010, 11:56 pmMichael Ejercito says:
There is Murphy v. Ramsey
Of course, this citation also justifies banning same-sex “marriage”. In fact, it could be enough to withstand a challenge based on the Equal Rights Amendment , should such an amendment be ratified.
Really, this condundrum could be solved by ratifying an amendment stating,
Such an amendment would gut Murphy’s relevance to the right to marry, and keep polygamists out of the loop, unless they gain enough political support for ratification of their amendment.
July 11, 2010, 12:20 amReaderY says:
Is there a rational basis for the Civil Rights Act of 1964? The fact is, same-sex companies perform their functions as effectively as mixed-gender ones and their products and services are just as good. Shouldn’t that decide the matter under rational basis review?
An argument given for the rationality of civil rights laws is that the decision of some people to enter into same-gender employment arrangements somehow affects the ability of others who wish to work mixed-gender employment to do so. Indeed, only by assuming that when same-gender folks mind their own business they some how affect mixed-gender folks can the claim that banning gay (same-gender) business has some sort of rational relationship to the “civil rights” of straight-business folks be even plausible.
But the idea that there is a relationship between the arrangements that gay folk make among themselves and the arrangements that straight folk make is precisely what the court here has found irrational.
Indeed, the fundamental idea behind the Civil Rights Laws was that there could be an imbalance of preferences among the genders. Under this idea, one gender (say, hypothetically, the male one) might want same-gender arrangements more than then the other, and further that there could also be an imbalance of power so that one gender (say, hypothetically, the male one) is better able to effect its preferences in the unregulated market and thereby becomes able to shut large swathes of the other out entirely. But is precisely the idea that has been found to be simply too implausible a notion to be a rational basis for legislation in the domestic context. It’s simply too far-fetched. The District Court has so informed us.
But it is this precise irrational, farfetched idea — imbalance of preferences (more of one gender wants same-gender arrangements than the other) interacts with imbalance of power (one gender can better enforce its preferences in the unregulated market than the other) to lead to shutting out one of the genders with resulting civil disharmony — that was the entire basis for the Civil Rights Laws. If it is indeed too far-fetched an idea to be a rational basis for legislation, surely those laws cannot stand.
After all, the Heart of Atlanta Motel court held that Congress can do in interstate commerce only what can be done in the domestic sphere. If regulation of sexual preference in domestic relationship arrangements is unconstitutional, then Heart of Atlanta Motel teaches us that regulating sexual preference in commercial relationship arrangements must be unconstitutional as well.
After, “Civil Rights Laws” — despite their fancy title — are nothing more than anti-sexual preference laws that prohibit certain types of sexual-preference based arrangements. Their effect is to limit the civil rights of vocationally gay businesspeople, effectively shutting them out of interstate commerce entirely. Congress merely claimed that shutting gay-business people and their businesses out of interstate commerce would somehow enhance the “civil rights” of straight-business people. The fancy title was a mere marketing ploy to bolster the claim.
But that’s no different from the claim that Congress is making here in the area of marriage, and the District Court has refused to buy essentially the same marketing ploy.
If it is irrational to believe that shutting gay people out of marriage enhances the ability of straight people to enter into marriage, why in the world should it be rational to believe that shutting gay people out of commerce could somehow enhance the ability of straight people to enter into commerce?
And the contrapositive holds — if one accepts that shutting gay people [a/k/a sexists] out of commerce has a rational relationship to enhancing the ability of straight people of the opposite gender to enter into the world of commerce, than the same logic applied to marriage can’t be considered irrational.
Emotion, religion, and fluff aside, the claims are logically identical. It doesn’t matter that we have all gotten used to pejorative labels in one context “sexism” and sympethetic ones in the other “sexual preference”. The labeled is the same — preffering, for voluntary or involuntary reasons, to be around people of the same gender. Rational basis review is supposed to be based on logic, not the judges’ feelings or politics.
Most people bought the argument that “sexist” men ought to learn to live with female employees and bosses and that personal feelings of comfort and well-being shouldn’t trump the needs of society. Many have not bought the argument that “sexual-preference” men ought to learn to live with wives. But from a rational-basis point of view, it’s the same argument. Balancing individual preferences with the perceived needs of society is what legislatures do.
One may think the scales ought to tip further on the individual side in domestic matters than commercial ones. But this is really an argument for a higher standard of review, or a legislative argument. It is not a rational-basis argument. Under rational basis so long as there’s an argument in favor of both sides of the scales, it’s not for the courts to determine how things should be balanced.
July 11, 2010, 4:59 amReaderY says:
The constitution is committed to equal justice under law. This means judges must listen to arguments, and not be swayed by the people making the argument. They must listen to the arguments of obvious racists, obvious sexists, and obvious sodomists, no matter how natural and obvious it is to dislike them. And they must listen to skepticism towards the arguments of the obviously civilized race, the obviously rational-thinking sex, and obviously oppressed people of preference, no matter how natural and obvious it is to be sympathetic towards them. An argument good for one should also be good for the other. On matters of rational basis, it is not for the courts to say who’s right and who’s wrong, who is the oppressed and who is the oppressor.
July 11, 2010, 5:14 amLymis says:
Not accurate. The state laws prohibiting same-sex marriage make classifications based on gender, but make them for the purpose of discriminating against homosexual people.
Neither a straight woman nor a lesbian woman can marry another woman. Both of them can marry a man. They are treated equally based on their gender. But the intended and actual effect of that is to keep gay and lesbian people from marrying.
July 11, 2010, 10:00 amLymis says:
How utterly absurd.
I am a married man. I am married to a man. I am his husband, he is my husband. The word “husband” most definitely still has meaning and effect – it accurately describes his relationships to me and my relationship to him.
The fact that our marriage does not include a wife doesn’t in any way void the meaning or effect of the word husband as it applies to us.
And the fact that we are married in no way changes the fact that we are both men, and subject to any laws that apply differently to men as distinct from women. If we were young enough, we’d both still have to register for the draft, for example. We’re both subject to any laws that tell us what restrooms to use. I can’t think of any other laws that might apply off the top of my head.
And it doesn’t change the fact that all the marriage around us have either one husband and one wife, two husbands, or two wives.
Come on, it isn’t that hard a concept. Unless of course, you’re still stuck in the “a man owns his wife, who is subordinate, subservient, and less than he is in the eyes of the law” idea – which the law left behind a long time ago. If so, keep up.
July 11, 2010, 10:07 amLymis says:
Well, messed that one up. Let me try again.
Not accurate. The state laws prohibiting same-sex marriage make classifications based on sex, but make them for the purpose of discriminating against homosexual people.
Neither a straight woman nor a lesbian woman can marry another woman. Both of them can marry a man. They are treated equally based on their orientation.
Any similarly situated (single) man can marry a woman, but the women (both gay and straight) are not allowed to do the same, simply because they are women. Because a man can marry a woman and a woman cannot, they are being discriminated against on the basis of their sex.
But the intended and actual effect of that is to keep gay and lesbian people from marrying each other. The law clearly doesn’t burden straight people in any way, but disadvantages gay people enormously – and is absolutely intended to do so. The reason for the discrimination is to harm gay people because of their sexual orientation.
If in fact LGBT people are a suspect class, the effect of the law being intended to harm because of sexual orientation is clearly enough to invalidate it. (Even if we aren’t there’s that animus thing.)
I contend that gay people clearly meet the standards for being a suspect class, but even if we don’t, it is still facially discrimination based on sex, and should at least require the intermediate scrutiny established for sex discrimination.
July 11, 2010, 10:21 amElfwreck says:
Moral/ethical? No. Practical/rational? Yes. Poly marriage brings up a swarm of legal complexities that aren’t affected by same sex marriage. These include, but are not limited to:
1) Inheritance law becomes a mess. More of a mess, I mean.
2) Custody battles in case of a breakup are nightmarish.
3) Identifying paternity for legal reasons is more complicated.
4) Health insurance coverage problems. (Health insurance companies are willing to cover 1 spouse. Not two. Not seven.)
5) Legal privileged communication–right now, mobsters do not marry each other to dodge out of testifying against each other.
6) Shared property hassles. Both upon death of one member, and in general–is a new member of a group marriage immediately an equal co-owner of all property in a shared-property state?
7) What does it take to divorce one member of a group marriage?
8) If an entire group divorces, how are shared assets split? Equally, or by time of marriage, if they didn’t all start at the same time?
9) Where do grandparents’ rights fit in?
10) Are bio-parents treated differently from other spouses? If so, how are they identified, and who has access to those records?
11) Family leave–does *everyone* in a marriage have the right to clam 6 weeks of family leave for a new baby?
12) Housing laws–is there a limit on how many married adults are allowed to live in an apartment?
13) Prisoners–visitation, conjugal visits, etc.
14) What happens if an adoptive couple marries the bio-parent(s) of their adopted child? Do any of their legal statuses change?
15) Debt collection issues.
16) Who owns copyright after one person dies? (Can lump this under “inheritance issues”, but it’s such a weird & complex aspect on its it deserves a separate mention)
17) Who is “aunt” and “uncle” and “cousin” for purpose of determining who’s off-limits for marriage?
18) Coercion–would allowing group marriages cause more “marry me or else I’ll ____” blackmail scenarios?
19) Would there be a limit on how many people may be in a marriage? What rights/responsibilities do they have to each other?
20) What happens to the tax code, both state & federal?
21) Line marriages–can a person “retire” from a marriage without dying, and without divorce?
And more. These are all answerable, some of them relatively simply. But the state has plenty of reasons for not granting group marriages–they would require the state to restructure plenty of other laws and reconsider lots of other legal relationships; there’s plenty of rational basis for denying group marriages–cost to the state of granting them is high.
Not sure whether it’d pass strict scrutiny, but I suspect not, because the cost of granting poly marriage is potentially *very* high. Our entire legal system assumes a “marriage” contains two people; changing that is a *drastic* difference.
Changing the genders is not. Legally, one gender is equivalent to another; there is no difference between the rights & responsibilities of a married man and woman, compared to two married men.
July 11, 2010, 10:33 amReaderY says:
To clarify, my above argument addresses the second rationale:
It may be unlikely to think that Civil Rights laws would work — to think that sexist employers would seek opposite-sex employees in order to make employment in mixed-gender environments more available to employees seeking it (and perhaps even more unlikely that if they did so, this would make employment of any sort more available to members of the opposite gender, a second inference upon this inference.)
Indeed, a key argument against the constitutionality of the Civil Rights Act of 1965 was that they required such a departure from the natural order of things and they way people naturally behave that their objectives were both inherently irrational and could not be achieved. Those who perceived racial and sexual preference in vocational associations to be the natural and normal human way thought it similarly unlikely that legislation would affect this sort of basic human behavior.
But the Supreme Court held that the Civil Rights Act of 1965 was not so implausible as to make it lacking in rational basis. Rational Basis review addresses only plausibility. “Likely” is for legislatures to decide. Courts, like the rest of us, are not prophets or superheros and simply cannot reliably tell what is likely to happen in the future. They have no more expertise or basis for doing so than any other citizen. The constitution places most decisions placing limits on what people can do today based on predictions of what is likely to happen in next century in the hands of legislatures, not courts. Legislatures are as likely to be wrong on their predictions as any other institution. But they have the benefit of being accountable to the people for their errors.
The district court in both cases, by placing faith in the certainty of both their personal vision of what humans “naturally” do in response to legislation and their personal ability to predict the future, and by constitutionalizing this private faith to the point of declaring people with different visions of what is natural for humans and how they will respond to legislation irrational, utterly failed to grasp this fundamental limitation on both their personal powers as human beings and their constitutional authority as judges.
There are people, possibly asmall minority of people, who get ground into the underside of the Civil Rights Laws. These are people prevented from maximizing their potential in life because, perhaps due to their genetic make-up, they find themselves able to feel secure and comfortable and creative only when working with people of the same gender. They might not today even realize they they could be working at much greater potential then they are at present, because they haven’t organized and developed the social consciousness necessary to argue their case, and if they did few today would believe them. When they do get to the point, the question of whether they are evil sexists who deserve everything they get, or whether they are themselves sympathetic people who might be deserving of some accommodation by society — will similarly not be one for the courts to decide. It will not be for courts to suddenly declare the Civil Rights Laws irrational and purposeless or motivated solely by political hatred. The rational basis and purpose remains what it was before: the question of how to adopt the new information into the scheme is a legislative one, not a judicial one.
The error in thinking both laws irrational is, from a constitutional point of view, identical in both cases. It doesn’t matter that one might agree with the result in one case but not the other.
July 11, 2010, 10:34 amMichael Ejercito says:
Why would they be a suspect class now, if they were not in 1868?
Would this not argument also be used to justify prohibiting women from “marrying” women, even if men are permitted to marry either men or women? After all, the more women “married” to other women, the fewer women available for men to marry, so once again you have a surplus of unmarried beta males.
One might claim that women who would “marry” other women would not marry men. And yet would this a similar rationale be applied to polygamy? After all, women who would entyer polygynous arrangements would not settle for monogamy any more than lesbians would settle for men.
July 11, 2010, 11:36 amSSM in Calif says:
My partner of 30 years and I were legally married in California during the brief period when SSM was legal in this state. Since that time, curiously, civilization has not collapsed and American society continues down its biggoted, hate-filled, ignorant path…
July 11, 2010, 12:31 pmLymis says:
“Why would they be a suspect class now, if they were not in 1868? ”
Why are black people 100% people instead of partial people like they were in 1776?
Because sometimes, it takes people a while to catch on to the idea of equality. Being a suspect class doesn’t grant any extra rights. It is a recognition of the fact that the majority is more likely than not to be willing not to extend the same rights as everyone else takes for granted.
Gay people are no less citizens now than they were in 1868. Or 1776. But the recognition of that fact is still dawning on a lot of people.
July 11, 2010, 2:12 pmElfwreck says:
No studies show a greater percentage of homosexual men than women, or vice versa; this would indicate that gay men & women would enter ssm in roughly the same numbers, restricting the number of straight marriages roughly equally. (Also–no studies indicate that restricting ssm causes more mixed-sex marriages.)
However, if polygyny is allowed and polyandry isn’t, then more women than men would be unavailable for marriage. If multiple men were also allowed to be husbands to one wife, this imbalance wouldn’t exist–but there are plenty of other legal complexities from group marriages, which would need to be addressed before it could reasonably be legal.
I assure you that many women who want polygamous marriages, whether polygynous, polyandrous or cenogamous, are prone to legally marrying one person. Many of them have households that their social community acknowledges as a group marriage, regardless of legalities. They settle for legal monogamy because that’s at least part of what they want; gay people do not settle for opposite sex marriage because it contains almost nothing of what they want from a marriage.
July 11, 2010, 2:44 pmOwen H. says:
So your complaint is that they aren’t explaining their position on an unrelated issue. “Unusually silent”? You must go to some interesting parties, because that doesn’t even come up often in the poly community.
July 11, 2010, 9:06 pmMichael Ejercito says:
It has something to do with amending the Constitution.
Sort of like how the Constitution once allowed states to deny suffrage on the basis of sex (Minor v. Happersett) but does not anymore.
And it takes a constitutional amendment to increase (or decrease) constitutional protections, as shown by the example of women’s suffrage.
July 12, 2010, 1:09 amPaul Kasman says:
Wow, that is some very deep thought. Thank you for contributing.
July 12, 2010, 11:13 ambadlaw says:
Sure, because most of us haven’t legalized SSM. California has gotten progressively (oh the irony) worse since ’08.
Just saying.
July 12, 2010, 4:36 pmPeter B says:
All American citizens are already protected by the Due Process requirements of the 5th and 14th amendments. You can’t write laws that only pertain to one group and specifically exclude another for no rational reason.
If you want to exclude gays and lesbians from having equal access to the laws, then the burden is on you to eliminate them from the EXISTING protections of the constitution, not the other way around.
July 12, 2010, 5:18 pmMichael Ejercito says:
You mean like denying women the privilege of voting simply because they were women?
Somehow the 5th and 14th Amendments were insufficient to do away with that.
What about requiring men, but not women, to register for the draft?
Somehow the 5th Amendment was insufficient to do away with that.
What about allowing underage girls to have sex with underage boys, but not underage boys to have sex with underage girls?
Somehow, the 14th Amendment was insufficient to do away with that.
Sure, the burden would be on those who want to exclude gays and lesbians from freedom of speech or the right to keep and bear arms or the right to be free from unreasonable searches and seizures.
But the Constitution does not guarantee the right to “marry” someone of the same sex. And as far as I know, laws against same-sex “marriage” apply to all, save for pre-existing same-sex “marriages” enacted before the ban in some jurisdictions.
In fact, I am not sure the 19th Amendment is sufficient to prevent Congress and the states from forbidding gays and lesbians to vote.
July 12, 2010, 9:18 pmJamieWard says:
That’s not at all true.
The Constitution doesn’t guarantee the right for a white person to marry a black person either, but somehow the Supreme Court found that it was all tied up in the FUNDAMENTAL RIGHT business.
Well, I’ve been following your insane rants for a while, and that’s the stupidest and perhaps the most bigoted thing that you’ve said yet. Let’s see what else we can try to deny to gays and lesbians: Maybe they shouldn’t be able to breathe, or walk down a public street, or buy groceries.
I guess the requirement of Due Process and Equal Protection escape you completely.
July 13, 2010, 1:12 amMichael Ejercito says:
Have you ever read Minor v. Happersett?
According to the Supreme Court in Washington v. Glucksberg,
Which “marrying” someone of the same sex is clearly not.
July 13, 2010, 3:00 ambadlaw says:
To piggy-back on what ME said, you should understand they weren’t taking a side in a contentious culture war. Even though intermarriage was a taboo and unaccepted by many people, in the vast majority of states it was already legal, specifically because it was, at its core, marriage in the way we’ve traditionally understood it.
Overturning anti-miscegenation statutes simply allowed more men and women to marry each other. So you can’t just treat these two issues the same since they both deal with “marriage”. To my knowledge, and I could be wrong, but no case has dealt with marriage as a definitional issue. The Lovings’ marriage was a felony in their state, but they were still married. The Plaintiffs in Griswold were already married. The Defendant in Zablocki v. Redhail would’ve been able to marry except for his not being issued a marriage license based on a law mostly unrelated to the “fundamental right to marry” anyway.
July 13, 2010, 3:14 pmMichael Ejercito says:
I should also add that the very first time a challenge based on the definitional issue of marriage came before the Supreme Court, the Supreme Court upheld the definition of marriage. From Reynolds v. United States:
And what was the reasoning that civil governments had to determine the scope of marriage?
Hmmmm….It seems as if moral disapproval of polygamy was a constitutional justification for banning polygamy against a First Amendment challenge.
And in Murphy v. Ramsey, the Court ruled:
And then we have Davis v. Beason:
All of these cases indicate that moral disapproval is a good enough reason to uphold laws against a First Amendment challenge.
July 13, 2010, 7:08 pmTranx says:
As an ACTUAL lawyer, I can tell you all of these rulings are more than 100 years old, most have been overruled either in part or in full. There is and old and inappropriate ruling for almost anything that you would want to argue. That doesn’t make it good law.
If moral disapproval was a valid basis for laws, you wouldn’t be able to buy ‘Hustler’ at the newsstand and you wouldn’t be able to rent ‘Debbie Does Dallas’ at the corner video store. Half of the Internet would be taken offline.
Sorry man, nothing in your post is even remotely accurate.
July 15, 2010, 1:07 amMichael Ejercito says:
When have Reynolds, Murphy, and Davis been overruled?
Which parts of those rulings have been overruled?
And John Stagliano would not be on trial for obscenity…oh wait, he is.
July 15, 2010, 10:55 amTranx says:
Obviously a complex question. Our legal system and constitutional law have both evolved considerably since the 1800′s. You might want to consider the more recent decisions from the court that would preclude a law’s basis resting solely on morality and moral disapproval.
July 15, 2010, 5:38 pm