Up to now, the Supreme Court has punted on the issue of gay marriage. That’s pretty typical actually. In the 1960s, a very liberal Supreme Court jumped into all kinds of issues, like those involving race, abortion and the death penalty. That court thought that the public was moving left quickly and liberals felt that the court could speed up the process by just jumping to the end legally.
The results were a disaster for the left.
Those decisions resulted in a massive backlash which not only stopped society’s leftward drift cold, but started a four decade push back which has almost completely set the clock back to the way it was before the liberal court started tinkering. Even a lot of liberals, like Justice Ginsberg, have recognized this and they have become wary of trying to drive society through the courts. Thus, the court has become much more cautious about trying to change American society by legal fiat. Ergo, the court will be (and has been) very cautious about imposing gay marriage.
That said, from a legal standpoint, gay marriage is inevitable. Here’s why.
When the federal government hands out rights and benefits, it cannot discriminate. Marriage, as it currently exists, is a right (with associated benefits) created by law, and if Congress wanted to end it, it could. There is no natural right to marriage. Indeed, the only form of “marriage” the government recognizes is the legal relationship established under law in which two adults are given a special connected status that entitles them to certain tax treatments, to collect certain benefits, and to engage in certain activities. These are rights and benefit single people are not allowed to collect.
And before we continue, it’s worth understanding why this is allowed, because this obviously discriminates against single people. The answer is that the government is allowed to discriminate where it can demonstrate a sufficiently high justification for that discrimination. In the case of marriage, there is a presumption that encouraging people to marry is good for society for any number of reasons and makes society function more smoothly. Those reasons are sufficiently compelling to justify the government granting the institution of marriage and giving it special privileges, even if that discriminates against non-married citizens.
So how do gays fit into this?
As I said, when the government hands out a right/benefit, it cannot discriminate in whom it gives that right/benefit to without a really compelling reason. And “morality” is not a compelling reason. Compelling reasons tend to involve economics, the orderly administration of society, or the prevention of personal injury. So what is the compelling reason to stop gays from marrying?
It’s easy to see why children can’t marry. Marriage requires two people who are capable of exercising independent judgment and giving valid consent. Children are presumed to lack that capacity because of their immaturity. Thus, it is justified to discriminate against children by legally preventing children from marrying. It’s also easy to see why you can’t marry someone in a coma... lack of consent. Thus, it is justified to discriminate against the unconscious by legally preventing coma patients from marrying. It’s easy to see why you can’t marry a blood relative... the proven genetic damage to children resulting from inbreeding. Thus, it is easy to see why it is justified to discriminate against people who are related by legally preventing them from marrying.
It’s also easy to see why laws banning interracial marriage were struck down. Those laws were premised on “morality,” i.e. some people claimed it was immoral to allow people of different races to marry. But morality is not a valid basis for legal discrimination because “morality” is simply opinion about what conduct people who subscribe to that definition of morality find acceptable or objectionable. The law demands more. It demands a showing of societal effect separate and apart from “your view of what society should be like.” Since there was no other reason to prohibit interracial marriage except “morality,” the court struck those laws down as unlawfully discriminatory.
With gays, it’s the same thing. Other than morality, which is disputed and not a basis for legal discrimination in any event, what is the justification for allowing the government to discriminate against people who want to marry others of the same sex? Allowing this would not sanction a crime. It would not disrupt society. There is no injury concern. It would have minimal economic consequences, and it’s not clear that the benefits don’t outweigh the negatives. That leaves the court with no valid legal basis to support discrimination. Thus, the court is highly likely to strike down the limitation within the law which says this marriage must involve opposite sex partners.
In a way, this is the same legal problem as if the government decided that plumbers could not marry each other. There is no economic, criminal, personal injury, or orderly society reason to justify such a law. Thus, it would be struck down.
That’s why the court will ultimately grant this right.
But this won’t work for polygamists. Why? Because polygamists are not seeking to be granted the “right” to marry, they are seeking to expand the right itself. In other words, whereas gays and interracial couples claimed that they were being unfairly excluded from the right Congress created, polygamists would be arguing that Congress should have made a different right, one that allows for all kinds of group arrangements.
That’s a very different issue and courts don’t let you do that... you can’t expand a legislatively created right by court order. Said differently, if the federal government decides to hand out cars, you can stop it from discriminating against you in the handing out of cars, but you can’t force it to hand out houses instead.
The only way polygamists can force such a change would be by proving a general “right to marry” within the Constitution, which would then require Congress to pass laws affirming that right. But that won’t happen. For one thing, there is nothing in the Constitution which even suggests such a right. For another, the Supreme Court has repeatedly refused to find such a right when people have argued for it. Also, granting such a generalize right would be too disruptive of society; the Supreme Court simply doesn’t grant such broad, unfettered rights, even when they are in the Constitution... which this is not.
This is why (1) the Court will take its time in issuing a ruling on gay marriage, but (2) when it does, it will grant such a right, and (3) it won’t grant polygamists the same rights.
Thoughts?
47 comments:
Well, it's nice to know leftist judges recognize the need to back away a bit. God help us if they ever change their minds.
That being said, I'm not sure which logical fallacy the bulk of this article falls into--the closest thing I can come up with is special pleading. Your own premises (regarding gay marriage) invalidate your conclusion (regarding polygamy).
T-Rav, This is how it's going to go down because this is how the law works. And it's not illogical at all actually. Gays and polygamists are asking the courts to do different things. Gays want to knock down a restriction. Polygamists want to redefine a right. Knocking down a restriction is a lot easier than expanding a right. This is how the law plays out time and again.
Can I still be grossed out if I see two guys kiss?
Kidding aside, this is a very persuasive argument. I was wondering if SCOTUS was waiting for enough states to legalize it and then pick a case where one state didn't recognize the union from another state?
Andrew, nothing you have said about why gays will (and implicitly should) get the "right" to marry can't be applied equally to polygamists. Obviously, if morality can't be used as a reason against one, it can't be used against the other; meaning that your statement "it would be too disruptive of society" is in practice meaningless. The gay-rights movement has convinced everyone that SSM won't affect straight people in the least; there's no reason to think that, if we ever see a polygamist movement, it will do the same and won't for a second be stopped by arguments of how society will be affected.
Similarly, while I personally have no doubt that the negatives of legalized polygamy would outweigh the positives (if any), and might create an economic headache, it's not obvious that this would be a different order of magnitude from the niceties of SSM. Finally, the distinction you throw up--"Gays want to knock down a restriction. Polygamists want to redefine a right."--is purely semantic. You give no evidence as to why there is supposedly a qualitative difference between what the two groups want; as a result, the conclusion smacks of "I'm okay with gay marriage, so it'll become legal, but I'm not okay with polygamy, so it won't."
That's why I say it's guilty of special pleading (which I'm not really sure that's the specific fallacy, it seemed to me to fit the case best), because it really just seems like you're saying there's a difference because you want there to be one.
Sure, I am. LOL!
I think SCOTUS is waiting to see how far the momentum takes things before they act. Right now, it looks like you will get gay marriage in almost all states outside the South within the next 5-10 years and then the South within 10-15 years after that (youth numbers are overwhelmingly in favor). If that's the case, then there's no reason to act until it looks like the momentum stops because that will lessen the chance of a backlash forming.
In terms of persuasive, let me be clear -- this isn't my opinion about why the court should reach this decision, this is my opinion about why they will reach the decision. That said, legally speaking, I do think it's persuasive as well on both points (gays and polygamy). I have no problem with private parties discriminating against whomever they want, but I think the government should be much more strictly limited.
T-Rav, You've misunderstood what I've said because there is a significant difference. It's not semantics. It's about burdens and what each group is requesting.
The gay argument is this...
1. The state has created a right called marriage whereby two adults get special treatment under the law.
2. In creating that right, the state has imposed a limitation upon those seeking to claim that right, i.e. that the two adults must be different genders.
3. The state has the burden to prove why such a limitation is valid. It has not produced such evidence to show a valid basis to justify the state discriminating in that manner because there is no quantitative difference between gays or heterosexuals marrying from a societal standpoint, i.e. letting gays marry doesn't impose a greater burden on society than letting a man and woman marry. Ergo, please eliminate that limitation.
The polygamist argument is different. They are arguing that the right itself is insufficient and needs to be expanded to allow more than two people to marry. They are saying, "It is discrimination that the Congress didn't also create a right for three or more people to claim this special relationship as well."
The burden of proof for that is on them to prove that they had a right to get a similar benefit. They can't do that. For one thing, as I note in the article, creating or expanding rights are things that courts specifically leave to the legislature unless they are guaranteed rights found under the constitution, and there is no right to marry in the constitution. Thus, their attempt will fail right there as they can't meet the burden.
But even if you doubt that, there's still the problem that discrimination against polygamists is easy to justify on the basis of costs imposed on society. Indeed, there is a massive difference in the effect which would justify letting the government discriminate against polygamists, and that is the problems associated with letting an unlimited number of people claim marital status. For example, it would crush the benefits system and the tax system by allowing dozens of people to start claiming each other as dependents. It would let criminal enterprises marry each other to hide behind marriage shield laws. It would make a mockery of immigration laws as one person could conceivable become a citizenship factory. Etc. None of that is true with gay marriage.
T-Rav, In fact, to add a point, the polygamists will themselves make the argument which kills their cause. When opponents say that theoretically everyone in the country could marry and thereby destroy social security and criminal law if this is allowed, the polygamists will respond by stating that "naturally, the institution of marriage will need to be limited to some rational number of people."
By saying that, however, they are admitting both that (1) there is no natural right to marry anyone you wish, and (2) that it is a matter of pubic policy to decide what the maximum number should be. Public policy means Congress... not the courts. In effect, they will admit that from a legal standpoint, this is an issue for Congress to decide and that Congress can set the number at two if they determine that's in the public's interest.
Andrew, here's the problem with what you're arguing:
You're making it seem as though marriage per se was not, until today, an option for homosexuals. Which is not true. Any homosexual man or woman has always been just as free to marry as you or I; only their spouse has had to be the opposite sex. Of course, they would say that's a meaningless freedom because they don't want to be with a member of the opposite sex; but that's a matter of desire, not right. In this respect, homosexuals have always enjoyed full legal equality with straight people.
(Incidentally, this is why comparing SSM to the striking down of bans on interracial marriage is misleading. Interracial bans were a perversion of that right, inimical to the actual purposes of marriage. Striking them down was the correction of an obstacle erected well after the creation of the institution, not one step in its ongoing expansion.)
Advocating gay marriage is not advocating the mere extension of the right to marry, therefore; it is a radical redefinition of that right. It is, in fact, much like your "cars/houses" analogy above, or like saying that now we will vote at the polls not only for our public officals, but on our nation's foreign-policy decisions as well.
That's why there is no substantive difference, ideologically, between SSM and polygamy--both amount to a complete redefinition of marriage, whether or not you're more comfortable with one than with the other. Moreover, making such a redefinition once drastically reduces the resistance to making it again in the future; if we decide that marriage is whatever we say it is, there's increasingly less reason to place any restrictions on it at all.
I'm going to bed now so I'll pick this back up in the morning.
I think that the polygamy issue is moot. Islamic couples who were married legally in Islamic countries and move to the US can exercise the same marriage system that they came to the US with as I understand it. (but I may be wrong)
-Inheritance can be worked out and though women who are living with a man without benefit of clergy don't enjoy community property rights per se, there is always Marvin v Marvin.
-I don't know that many people who marry anymore. The present pattern is that you move in, buy a house, have a kid and them make the big leap to get married - if you take things that far.
-Polyamorous and polygamist relationships can be carried out and still be mainstream after a fashion. How many reality shows are there on the subject?
Most states are opposed to homosexual marriage but I think that once that becomes accepted, it's not as big of a leap as you think to recognizing other relationships as legal. With ObamaCare costs forcing the exclusion of spouses from worker's medical benefits, the big insurance whine about various marriage arrangements won't matter.
---or they'll just live together and form trusts to protect property rights.
T-Rav, A couple responses.
1. What you say about gays having the same rights is not correct from a legal standpoint... nor is it relevant even if it was correct. Courts don't deal with rights in the abstract as you are talking. They deal with rights through specific cases that are brought to them. Thus, the question they will decide is: "Should the law be allowed to prohibit the marriage of Person A and Person B, who stand before us in this case."
Arguing that "Well, they could have married someone else" is not relevant to the court because that is not the issue before the court. This is just like freedom of speech cases (or any other type of case): the court will not dismiss a claim by saying, "well, you could have said other things, so we'll uphold the government's restrictions." No. The court will deal with the thing before it... can I say this, can I own this gun, can they take this license, or can I marry this person B. That means the sole issue the court will consider is whether or not the restriction that stopped the marriage of A&B valid. That's it.
And in that regard, all restrictions must stand or fall on their own legal merits when challenged. And in the case of gay marriage, there is no evidence I've seen yet that the court will accept to conclude that a same-sex restriction is valid. Hence, my prediction of what will happen.
As an aside, your argument about how gay marriage is different than interracial marriage is actually just semantics. You could have made the identical argument in support of prohibiting interracial marriage: "They are just as free to marry as you or I; only their spouse has to be the same race."
Moreover, your argument "that was a perversion of that right, inimical to the actual purposes of marriage" is not a valid legal argument. To the contrary, you are making a public policy argument, which is the very thing courts are not supposed to base decisions on. The wisdom or purpose of marriage, or how best to achieve it, is an issue for the Congress. The only concern of the court is "has the Congress overstepped its bounds in its actions," not "could we achieve what Congress should have done with a few changes."
2. There is a massive substantive difference between SSM and polygamy. SSM has the same practical effect as far as society is concerned as heterosexual marriage: two people gain the special relationship. Society is balanced for that. But allowing an unlimited number to claim those rights is not something society is balanced for. That opens the door to the bankruptcy of the benefits system, the frustration of the criminal justice system, destruction of the immigration system, and has the potential to make things like schools tracking who may take a child impossible. Those are the kinds of social costs Congress is allowed to consider and which will support a restriction.
LL, My article is just an outline of how I expect the courts will act on the issue and what their reasoning will be. If a legislature wanted to grant a right to polygamy, that would be different -- they would have that right.
I doubt, however, that it would be considered valid in other states for the same reasons outlined in the article.
As for marriage, I understand that marriage rates continue to fall, but divorce rates are falling in each group outside of Baby Boomers -- who have made the divorce rate for the over 50 crowd soar. I don't know what the future holds on that.
On Muslims, I haven't looked it up, but I am not aware of any right to have a polygamous marriage from another country recognized in the US. I suspect that most of these marriages are just like the ones in Utah -- one married couple and then a bunch of single women living with them claiming to be married, but not being married in a legal sense... all collecting welfare.
Andrew.....Good article. From a legal perspective. Yet a society is made up of more than laws, and even within those laws, there will be some who will probe, test and push until the original intent of a certain law has been twisted beyond recognition. This is part of the reason I think, why many people have such a low perception of lawyers, and by extension, those that "make" the laws..legislatures/Congress.
I think if we look at how and why western civilization (because that is what we are talking here) came up with the legal institution of marriage in the first place, was to address all the little bastards that would be running around out there, with mothers who had no means to support them. Society thought 'this can't be good us long term' so let's codify and make it a societal good that when a man and a woman procreate (or even the act of procreation that doesn't result in a child), we will bless and make legal and proclaim to all that these two are morally, legally and societally approved. Thus, men will want to stay with the woman who they procreate with. This of course assumes that most men would procreate with as many different women as they could if society sanctioned it.
So, over the ages, western society created a most basic societal ritual, with all the legal, moral and physical approvals in order to maintain a familial unit as the most basic building block of an orderly society.
When we start mucking with these age-old institutions in our current 'enlightened' state, I think we devolve further into societal turmoil, upheaval and anarchy. I think there comes a time throughout history, when many people see these most basic societal structures eroded, altered and 'transformed' to meet legal interpretations of what was not the original intent of the law, that they will rise up and attempt to destroy the destroyers of society.
This, I believe, is the pernicious. long term effect of "progressivism, socialism, leftism, enlightenment"....whatever term we want to place on these people, and their attempts to mold society in their image. Sure, legally we could do all you state above. But should we? I think we are messing with forces we have no idea what could be unleashed. It's human nature and we can't change it...only try and control it. Marriage between one man and one woman is a society's attempt to control the basic human urge to procreate while forming a decent society good for all.
Now, with that said.......I believe gays have always been with us. I personally don't care. I think it is a biological oddity that creates homosexuals...male and female. Give them all the legal rights if they want to live together. And the argument that who are we to deny "love?" Let's take the legalistic argument a little further. Who are we to define love? Marriage can't be defined by love, because I'm sure gays love each other just as much as straights. It can't be defined by law exclusively, as we get into the legalistic nuances of law. So, it must be defined by society. Who, what body, defines our society that we have fought for, defended, died for and struggled with for eons? I don't think it is a legislature (body of men). I think it is a group of people with shared morals who want what is best for the tribe, village, state, nation or civilization. When there are internal challenges to that shared vision, all hell will break loose and there is no telling where it will all end.
I think this whole gay marriage issue is one of the factors destroying what has, up to this point, been a pretty successful attempt at a shared moral code we've developed over time. Mess with the basic building blocks of that society and watch the whole structure collapse.
So, for the "enlightened progressive thinkers" among us to continue tweaking, changing and transforming our hard fought societal norms, it can only lead to disintegration.
Sorry for the stream of consciousness. Hope it added a little to the discussion.
Andrew -
You do bring up an interesting idea that I once thought about.
With no offense intended to anyone else, I have to ask...
...if people want the government to ban gay marriage, could the government conceivably ban, for example, marriage between left-handed people? A left-handed person could marry a right-handed person and vice versa, but two left-handed people couldn't get married. After all, it's just a behavior and, like homosexuality, it's not the norm.
Just a notion. :-)
Andrew, your response #1....frankly, it doesn't make a lot of sense. You say that I don't have a valid legal argument, but I could easily say the same about your claims against polygamy. If it's the courts' business to decide whether to grant marriage in this or that case, what is their rationale for extending it to gays but not polygamists?
Think it over. On what is the homosexual case for marriage based?
1. They're consenting adults, so it's their own business. -- No difference there for polygamists. Obviously the extra-creepy forms like forced marriage of 12-year-old girls (a la the FLDS) would still be out, but between adult men and women there would be no issue of consent.
2. They can be just as good at raising children and creating a stable household as any other family. -- Again, no difference. We've already seen the groundwork for this laid with those God-awful TLC reality shows, about how polygamists love each other and their children as much as anyone else, blah blah blah. You may write that off as a "public policy matter," but that's what will make the difference in an actual court case on the matter.
I could probably draw other comparisons, but you get my point. And what is this about polygamists claiming a right that "doesn't exist" in the Constitution? Homosexuals' claiming of the right was radical and unheard-of enough, yet they didn't need to seek the Constitution to get what they wanted.
Finally, you'll have to excuse me if I can't entirely trust your assurances on this point. Re a 2010 article:
Contrary to what gay groups argue, the government can discriminate in handing out privileges....Since allowing gay marriage would require the government to force millions of people to extend benefits against their will, act against their religious beliefs or pay more in taxes to support something they oppose, I cannot support such an extension given the lack of a compelling legal justification for giving gays such legal rights....Ultimately, accepting these arguments is truly the slippery slope that leads to legal chaos. Not to mention the practical problems....That's why I oppose gay marriage.
Who's to say you won't suddenly "discover" a legal justification for polygamy in another three years?
Patriot, Thanks. And that's what this is, an analysis of how the law will handle this. This isn't a philosophical piece. I actually think the law will come down 7-2 that way.
I certainly agree with you that the relentless push to change the way things have been can ultimately be destructive of society, with the caveat that there is nothing we can do to prevent it. Society is allowed to reinvent itself both by inventing new customs, by socially shaming or refusing to conform to old customs, and then through legislation.
And society does that every day. It does it in little and big ways, everything from people deciding not to liter to allowing gay marriage or who knows what. Indeed, when society at large wants something, it will get it -- either by law or just as a practical matter... like speeding, that is society thumbing down the nanny state.
As for making these changes legally, which is what this article is about, the issue there is how the law works. Our system is set up to make change somewhat difficult but not impossible. And largely, that has goes well... issues like slavery clearly could have gone better, but I think that as a people we have generally kept moving in the right direction with only some hiccups here and there.
The problem tends to arise when courts interject themselves before society has reached a broad consensus.
In this case, the consensus for gay marriage is inevitable and I think the court is hoping it never needs to inject itself at all. The courts prefer to rule on as a little as possible so as to avoid interjecting new laws, which always have unintended consequences. But the writing is on the wall.
As for the purpose of marriage, I agree that was the purpose of marriage when it was formed, but I think the purpose has changed over time. Marriage in the modern world is now about love rather than children or property. But whatever the purpose, the key to remember legally speaking is that the original intent won't matter in this case. Original intent only matters when you are trying to define something ambiguous, and that's not the case here.
Scott, Under the law, the government could define marriage that way if it could find a valid basis for such discrimination. But it can't. Just like I think there is no basis the law will recognize for allowing the government to discriminate against gays, there is no basis for allowing discrimination against left-handed or right-handed people... or plumbers, or blondes, or blacks.
That said, the people who are arguing tradition or morality certainly leave open that possibility. What they don't get is that morality isn't constant, like they wish it was. Morality is made up by the opinions and choices of the public. That's why it was "immoral" to allow blacks and whites to marry and now it's not. And if gays are to be handled under a morality standard, then the court will rule 9-0 fairly soon "Morality has changed and gays many now marry."
But of course, our system doesn't work that way because that's not how law is made, law is not a public vote and it doesn't care what you think is immoral. It is about burdens, rights, and a legal review of the legislative process.
Andrew:The answer is that the government is allowed to discriminate where it can demonstrate a sufficiently high justification for that discrimination.
Using that criteria, the state benefits of marriage were enacted and are associated with the promotion of the family for the raising of children - which has been proven to be beneficial to the society. Gay marriage does not promote that in any meaningful way as the number of gays who chose to adopt babies that wouldn't have already been adopted into families is insignificant.
IMO, the constitution doesn't say anything about marriage so maybe it's time to get the federal government out of it entirely. What have you got against Mormon polygamy anyway? If Romney had 16 wives think of the extra campaigning that could have been done.
T-Rav, What I have presented here is the legal case for how the court is likely to reach its decision. This is how the law works. As long as the state grants the right to marriage, it will basically be impossible to keep gays out. Polygamists are another matter because their claim needs to arise differently.
The things you are talking about are not going to affect the legal case. You are talking public policy. You are talking about whether or not society should do something. That is a matter left up to legislatures and the people, not courts. Courts only deal with whether or not Congress acted within its bounds. And as long as you insist that the government should embrace marriage, you will need to allow gay marriage as well.
As for the right that doesn't exist, there is no right to marry under the constitution. None. If Congress decided tomorrow to cancel marriage, it could and there isn't a thing the courts would do to stop them. That's why this isn't technically a "right to marry" issue in the sense that people think of rights. It's a "can the government discriminate in the handing out of a privilege."
As for my quote, the government can discriminate but only where discrimination is justified. And while I still don't like the idea that the government can force people to accept something they consider immoral, the problem is that so long as the government is handing out a right, it can't use prejudice as a basis to deny that right.
K, If you want to stop gay marriage, that's pretty much the only way -- get the government out of marriage entirely.
On this point: Using that criteria, the state benefits of marriage were enacted and are associated with the promotion of the family for the raising of children...
That's not going to work. For one thing, marriage is seen as a much broader institution than just procreation. It's seen as a stabilizing institution throughout society. For another, despite decades to prepare for this fight, the right has yet to come up with a shred of proof that gays are bad at raising kids. No evidence = failure of proof = losing argument.
Andrew, you're still contradicting yourself. On the one hand, you say that as long as the state grants the right to marriage, it will basically be impossible to keep gays out, and "as long as you insist that the government should embrace marriage, you will need to allow gay marriage as well." Then within a couple of paragraphs, you backtrack and say that the government can deny that right, just as long as it's not doing it for reasons of prejudice.
(Incidentally, I'm curious--when you refer to "the government," are you saying that any government that embraces marriage must necessarily allow gay marriage as well? Because this sounds perilously close to an endorsement of imposing gay marriage everywhere by fiat.)
The fact is, you can talk about paperwork and the definition of rights all you want, but in practicality, those aren't insurmountable obstacles. The real thing blocking polygamy's legalization is popular prejudice against it; and if polygamists can be shown to have loving relationships, and if their kids aren't obviously screwed up, then by the same logic through which gay marriage was endorsed, polygamy will inevitably follow.
I might also point out that in the same 2010 post I referenced, you also drew a distinction between marriage restrictions on interracial couples and restrictions on gay couples. Historically, the difference I described earlier is accurate.
T-Rav, That's not a contradiction. Rights are never unfettered. The government can always try to impose restrictions. But any restriction is imposes must overcome the required legal threshold to be valid.
For something like restricting free speech (a fundamental right), the government must show "a compelling state interest" before it can impose a restriction and the restriction must be "narrowly tailored to achieve the required purpose." If the government can show that, then it may impose the restriction. If it can't, then it can't impose the restriction.
For lesser rights, the test is that the government must show "a rational basis" for the restriction. That's the low end. That's where the commerce clause stuff happens and I think that's where the gay marriage issue will play out.
Thus, if the government can prove that it has a rational basis for preventing gays from getting this right, then it can keep the restriction in place. But a rational basis cannot be prejudice, morality or public sentiment. When the government considers rational basis, it is talking about things like the economic effect on society, prevention of crime, orderly society, etc.
"Government" would apply to both states and the feds in this case, though the run up to the analysis is a little different.
If the Supreme Court spoke in the manner above, it would only decide the issue as far as the federal government is concerned.
If the Supreme Court went a different way and found gays to be a protected class under the 14th Amendment, then it would apply automatically to all state laws. Failing that, gays would need to sue in each state. Then the issue would be resolved under state law, which would view federal law or the laws of other states as persuasive only (not binding). If the states went against them, then they could appeal to the Supreme Court who could decide that the state court got their own state law wrong, or they could ignore the issue, or they would need to go the 14th Amendment route -- which would have other negative consequences.
T-Rav and Andrew.....I actually think there is a greater societal good for polygamy than there is for same sex marriage (ssm). What better way to decrease the welfare rolls, increase legitimate children (get rid of the bastards), and reduce the strain on the rest of society than by having a breadwinner for more than one dependent?
I'll leave it to the lawyers and courts to figure out the proscriptions on the institution, but why the hell not?! It makes more sense to me than ssm. (I'm referring to your arguments against polygamy in a legal sense in an earlier comment Andrew)
Patriot, I don't see a legal way for lawyers or courts to create that institution. It really does require some holdings that just have never been accepted before -- like a fundamental right to marriage. So I think that will always be a question for the legislatures.
In that regard, there is a lot of polygamy around the world BUT in the US it's been a very, very fringey religious thing -- fringe Christians mainly. It's less than .01% of the population if that, and it's concentrated in Utah. I don't see it expanding, especially as it doesn't have the advantages gay advocates had about being able to argue biology and "we want to be just like you".
In terms of a benefit to society, I have my doubts. The places that allow it are sh*tholes. It fundamentally reduces the value of a person, most of the polygamists are on welfare. And you have the problem of where do you draw the line? Technically, you can't. And if you can't, then you raise all the issues I mention above.
Andrew, I like your points, because it's helped me see the conflation between the legal standing of marriage versus the societal implications of marriage. Essentially, I agree with you, but I think I see where T-Rav is heading. It's an argument that someone before me has already advanced, but I see the point, and I find it interesting.
What about the situation of a father marrying his son or daughter? I'm aware that there are laws against incest, so the courts would be obligated to respect them, but what if the relationship is transparently platonic?
Do the courts have a rational basis to discriminate in this situation? Even though marriage may allow the father's estate to avail itself of the estate tax exclusion of marital transfers to the spouse (son or daughter), they still compose a family unit under the law.
I'm assuming that there is enough evidence that the marriage isn't a mere device to avoid paying taxes. I'm assuming that there is platonic love, and the couple has no intention of committing any act that would violate any incest laws.
Is there a legal basis for not recognizing this type of marriage?
If you want to stop gay marriage, that's pretty much the only way -- get the government out of marriage entirely.
I've know gay couples who considered themselves married long before it became a national issue. I'm also sure there are some denominations/churches that would perform gay marriages. The cultural boundaries for gay marriage have been pretty much stripped away, so the only gay marriages that would be affected, I suspect, would be those of mainly financial convenience.
Thanks wahsatchmo. I'm glad this has been helpful for you. :)
What I wanted to do with this article is just explain from a legal basis only how this issue is likely to play out in the courts. There's a lot of confusion surrounding that in the media because people mix together various arguments advocates make to the public with the legal arguments they need to present. The things the advocates argue are rarely relevant to legal proceedings because courts are much more narrowly focused on small questions ("did Congress exceed its power" not "is this a good thing") and they don't really look at the kinds of broad and speculative arguments made in debates. When they reach decisions, they walk through a series of burdens and standards of proof to reach their decisions.
On incest, I think it's highly likely that the restriction would stand. IF... if this was considered fundamental right, then Congress would need a compelling reason to ban marriage between relatives AND the ban as written would need to be narrowly tailored to achieve that goal. So if the purpose was to prevent birth defects, then theoretically you can argue that a blanket restriction on all related marriages would be too broad if same-sex marriages could not produce children from the couple.
That could get the court to send the issue back to Congress to make the ban more narrowly tailored... which doesn't mean Congress couldn't find a way to ban incest marriages, but it would take some creativity at that point.
BUT... I don't think that will happen. I think marriage is in the lower burden because it's not a fundamental right. That means Congress only needs a rational basis for its action and it need not tailor its rule -- blanket restrictions are allowed. Since the courts have already held that banning incest is allowable, they would uphold the ban.
So the answer is that it would most like stand (95+%), but there is an outside chance that courts could decide that Congress needs to take a second look at the ban.
The short answer is that I don't think this will work for tax planning with children... but I can't say with 100% certainty that it can't happen.
K, Culturally speaking, I think gay marriage is here and it's not going away. The polls show that most people accept it and young people accept it overwhelmingly. It's the law in a dozen states with more adding it every year. Most corporations recognize gay partners for benefits at this point. The Feds now recognize gay partners. There are tons of churches who recognize it.
I suspect it will be "official" nationally much quicker than people realize.
I agree, the courts are going to shoot it down most often under the theory that it's a mere tax avoidance device.
From a societal standpoint (prevention of birth defects), I think they are on shakier ground, especially if the marriage is between father and son, or if there is evidence that no intention of procreation exists. Is there another reason to prevent a sexless marriage between non-procreating siblings?
Patriot, I think you're likely to see a lot of those kinds of arguments heating up if/when this becomes a major issue. And frankly, there would probably be some on the far Right who would be more okay with polygamy than with gay marriage.
To be clear, I don't know if this will become an issue in the near future, and I don't know whether the courts will side with the polygamists. But given the way in which gay marriage has been pushed through, I wouldn't bet against it.
wahsatchmo, Now that is another issue to consider as well.... even if the law allows these kinds of marriages, that doesn't mean the IRS will accept them. They have the power to call these sham marriages and that could be a real kick in the teeth if your whole tax plan is based on that.
From a societal standpoint, I actually suspect that gay marriage is an outlier. What gays have going for them is the story of "we are just like you, and it's all part of our biology." That seems to have worked really well to win over the public. I don't think any of the other people in line -- incest, pedophiles, polygamists, have a similarly compelling argument. Those other relationships involve violations of trust and I don't think the public will accept those. I guess we'll see though.
T-Rav, You can never predict the future, the best you can do is try to understand how the future will reach its decision and then develop your arguments to try to influence that. Thus, for example, now would be a great time to do a lot of studies on polygamy to document how it negatively affects women and children and society.
Andrew, on that much, at least, we can agree.
Clearly we're not going to change each other's minds on this, which I knew going in. I'm sure you think you have good reasons for this article, but I find them entirely unpersuasive. I guess at some point down the road, we'll find out who was right.
Andrew....I reject the whole "studies" argument for society accepting something or other. "Scientific studies" have been co-opted by the left to push their pov. Look at global iceage....global warming....climate change. Each had a plethora of studies and scientists to back them up. Most were b.s. and narrowly tailored to either leave out key data or conclude a bogus result.
So, if studies were done that showed polygamy really doesn't harm families, and in fact, those in polygamous marriages can actually be happier and more fulfilled than those in tradition relationships, this would probably be spun to either 1) suppress the results; 2) skew the actual data; 3) attack the group that funded the studies. Ex: FRC, Think Progress, etc.
Reality can be quite revealing though....according to the UCLA Williams Institute: The percentage of same-sex couples raising children in metro areas with a population above 1 million are the highest in Salt Lake City, Virginia Beach, San Antonio, Memphis, and Detroit. Each of these metro centers are in states with constitutional amendments banning marriage for same-sex couples. Among all states, Mississippi has the highest percentage of same-sex couples raising children at 26 percent.
So we'd probably find the same dynamic with polygamy if this country ever "legalized" it.
One major problem of Polygamy is that it creates large numbers of unmarried men and as a result are more likely to commit crimes.
But as societies advance they become monogamous.
http://www.sciencedaily.com/releases/2012/01/120124093142.htm
LINK
Also, polygamy seems to exist in a state of de facto decriminalization where they law only comes down if child brides are involved.
T-Rav, Yeah, I have good reason for the article, almost 20 years of arguing legal cases to appellate courts.
Patriot, The problem is that if you have nothing to offer, then you lose. That's how the law works. You need evidence to support a position. A study showing something is positive/negative is evidence. Argument is not evidence.
Kit, That's the case with most non-violent crimes. There just aren't enough cops and enough jails to arrest everyone who breaks every law. So cops and prosecutors emphasize certain crimes and ignore others unless you're flagrant about it.
As an aside, I'm seeing more and more leftist attacks on Obama. The NYT even attacked him for attacking Republicans while the shooting was going on.
Late to the discussion, but here are some points I've always questioned and I'm anything but a lawyer. BTW..I believe constitutionally, that the government has no right to ban gay marriages, but for different reasons.
-The argument that marriage is right created by the gov't seems backwards. Our gov't doesn't (or is not supposed to at least) create rights, but rather protect those that naturally exist and maintain an orderly society.
-Marriage has been occurring for thousands of years, long before our Republic existed. Let's for arguments sake, say it was a religious practice (which typically was the case) Our gov't at some point decided that encouraging marriage was for the good of society and thereby attached special privileges to it.
-Why then is it not possible that bans on gay marriage (or unfortunately, other types of marriages) would be argued as laws restricting religious practice, assuming there are churches willing to perform those marriages (which nowadays there many of them)?
-There are other factors to consider when talking about things like children and ability to consent, and the gov't has always been able to enact certain restrictions for protection of its citizens and societal function. However, I'm just surprised that this line of argument is not heard more often and not sure why.
-Steve
Steve, There is a school of thought that there are certain "natural rights" whether or not they are mentioned in the Constitution. Both left and right have flirted with this, but it's never been accepted by the courts. On the left, this has drifted into "human rights" and on the right it's remained more "natural rights," meaning rights developed through religion and human experience.
Our system doesn't recognize these. Our system looks to the Constitution, and it breaks our rights into two groups:
The first group are fundamental or guaranteed rights. These are rights specifically granted to us under the Constitution. This includes things like freedom of speech.
The second group are rights created by Congress rather than required by the Constitution. These are often called liberty rights because they exist at the discretion of the Congress.
The difference between the two is that Congress can repeal the second, but not the first. And attempts to restrict these rights will be reviewed under different standards: compelling state interest versus rational basis.
In terms of eliminating the right to marry being a violation of the First Amendment's protection of religion, you need to realize that there are two types of marriage in our country. There is religious marriage, which is done through the church and which is recognized by that church itself. BUT the government doesn't recognize that as marriage, which is why you still need to register your marriage with the state. It is that registration which creates the second type of marriage -- civil marriage. That is the only type of marriage the government recognizes.
So if the government eliminated "the right to marry," it would only eliminate the civil marriage it recognizes. In other words, it couldn't stop churches from marrying people nor could it stop those people from holding themselves out as married. In fact, trying to ban those marriages would violate the separation of church and state. BUT the government can ignore those marriages, i.e. they are legally meaningless.
As for why this line of reasoning hasn't been heard more often, I think it's because it's sexier to take the more grandiose and extreme positions -- IT'S A RIGHT! v. YOU ARE DESTROYING MARRIAGE! Those are great political arguments, but weak legal arguments. And keep in mind that legal arguments tend to be technical, difficult and complex, and that is a hard argument to use to rally your supporters -- "We need to overcome this burden of proof!" That doesn't exactly excite the troops.
"As an aside, I'm seeing more and more leftist attacks on Obama. The NYT even attacked him for attacking Republicans while the shooting was going on."
HAHAHAHAHA!!!!!!!
Kit, Those were my thoughts exactly! :D
Canada has already decided that polygamy will remain unlawful in this country. The law against polygamy (S.293 CC)was challenged in court by a fundamentalist religious sect that practised polygamy. Chief Justice Robert Bauman took 4 months to hear from 13 groups, both pro and con polygamy. After examining all the Affidavits he ruled on Nov. 23, 2011, that polygamy contravened women's right to equality with men, that it harmed their children and impoverished them, and that it would make for a dangerous social situation since Nature has made the sexes almost equal in number. There are not even two women for every one man, which would result in men fighting one another for the chance to have a wife and family of their own. This case can be checked on the Internet. Canada has decided that the ancient patriarchal practice of polygamy has no place in the 21st century, and must be relegated to history.
Anon, Thanks for adding that. That's an interesting point. And it's interesting that a place Americans think of as permissive and progressive would reject polygamy. It doesn't surprise me that they would cite women's equality as the basis either. I think feminists would be very opposed to polygamy.
All told, I'm not 100% sure that argument alone would be sufficient in the US, but it does make a strong argument, and I would definitely lead with that. To make sure, I would then cite the problems I mention above about the effect of marriages of unlimited size as a reason why our Congress could ban polygamy.
"Because polygamists are not seeking to be granted the “right” to marry, they are seeking to expand the right itself. In other words, whereas gays and interracial couples claimed that they were being unfairly excluded from the right Congress created, polygamists would be arguing that Congress should have made a different right, one that allows for all kinds of group arrangements."
I guess this depends on your definition of marriage. As I see it Marriage has two elements. When is a union based on an expression of love where people tell society they will live together. The second is a social contract where two people affirm to themselves and society that children they being into the world will have them as biological parents. The latter is vitally important if you want children to know who their close relatives are to avoid inbreeding.
The first is a something that the gender of the partners is not important. The last is something that at least with gay marriage is not relevant. Two members of the same sex cannot bring children into the world together. They can adopt or go to a test tube but only one can be a biological parent.
The answer to this question lies in which is more important. In today's society Love trumps all and we even assume the latter is somehow lessened or not legitimate without their also being love. That however is relatively new to our modern society. In the past, even as recent as the 18th century many marriages were arranged.
If love is all that matters how do we defend not allowing polygamy. I saw a show on Fox, I think it was Stossel about this Porn Star who had a wife and a girlfriend. His Pornstar wife had a lesbian Pornstar lover and she lived with him and they share him. They were going over the living arrangement. Now if this man has children with both women how are the courts going to adjudicate this. I mean what if this guy does not leave a written will. Would the girlfriend be left with nothing and if so would that be fair.
Whether or not polygamy is legal in the state of California these three people essentially have engaged in a polygamous relationship. It would be easy I think to argue in court that the man was married to two women using common law.
To my mind if we insist marriage is about two people bringing children into the world then Gay Marriage is no longer a car and not a house. Without the societal change to emphasize Love over siring children I don't think this issue would even be addressed. I don't know.
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