There’s been a lot of fussing over this statement, written by some LGBT activists, which calls for a broader debate over what kind of families will be recognized by the government. Here’s a sample:
To have our government define as “legitimate families” only those households with couples in conjugal relationships does a tremendous disservice to the many other ways in which people actually construct their families, kinship networks, households, and relationships. For example, who among us seriously will argue that the following kinds of households are less socially, economically, and spiritually worthy?
· Senior citizens living together, serving as each other’s caregivers, partners, and/or constructed families
· Adult children living with and caring for their parents
· Grandparents and other family members raising their children’s (and/or a relative’s) children
· Committed, loving households in which there is more than one conjugal partner
· Blended families
· Single parent households
· Extended families (especially in particular immigrant populations) living under one roof, whose members care for one another
· Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households
· Close friends and siblings who live together in long-term, committed, non-conjugal relationships, serving as each other’s primary support and caregivers
· Care-giving and partnership relationships that have been developed to provide support systems to those living with HIV/AIDS
Marriage is not the only worthy form of family or relationship, and it should not be legally and economically privileged above all others. While we honor those for whom marriage is the most meaningful personal – for some, also a deeply spiritual – choice, we believe that many other kinds of kinship relationship, households, and families must also be accorded recognition.
I’m pretty much in agreement with this entire statement. The world isn’t limited to two-person couples who want to get married; there are other kinds of families, and they are also deserving of legal and economic support. Frankly, to me this seems like a no-brainer.
But obviously not everyone feels that way. Anti-gay-rights activists – from relatively moderate opponents of equal rights, like Elizabeth Marquardt, to full-on anti-gay extremists, like the folks at the American Family Association, are claiming that this statement shows the “real agenda” of “tak[ing marriage] apart.” Here’s Elizabeth’s take:
What do I find both amusing and infuriating about all this? The dance. The same people who want to extend marriage to same-sex couples are quite often the same people who want to take the thing apart, redefining and inflating it in ways that attempt to cover all sorts of human needs with virtually no regard for one of the most basic: the need for children, whenever possible, to be raised by the mom and dad who made them. For a while, the “take the thing apart” folks have been operating full steam ahead in academia and fringe advocacy but getting little attention elsewhere.
But what the “Beyond Marriage” statement calls for is not an expansion of marriage (although it leaves open the question of expanding marriage to same-sex couples), but for legal recognition of non-marital families, in ways other than marriage.
How is saying “forms of family other than marriage deserve recognition” anti-marriage? This is a consistent (although not universal) logical flaw in the so-called “marriage movement”; they see family as a zero-sum game, and believe that if any family form other than their own is given any respect or recognition, that will cause dire harm to their own families.
It’s true, as Elizabeth says, that most children will be best off being raised by their own parents. But nothing in the “Beyond Marriage” statement denies that. Once again, Elizabeth sees a zero-sum game where none exists: recognizing and caring about support systems for children raised by same-sex parents, or in shared households, does not require in any way that we stop caring about or stop providing legal and economic support for children being raised in conventional nuclear families.
It’s also notable that Elizabeth herself supports “civil unions” for same-sex couples (although she rarely mentions this support except when she’s arguing against marriage equality). So when the Beyond Marriage folks propose that family forms other than marriage be given legal recognition, that’s “taking the thing apart” and bad; but when Elizabeth proposes that family forms other than marriage be given legal definition, why is that any different?
The American Family Association statement is, as you’d expect, a good deal less intelligent and sophisticated:
Pro-Homosexual Marriage Proponents Go Public With Their Agenda
We have repeatedly said the agenda of those pushing homosexual marriage will lead to polygamy and a total devaluation of marriage. Not content with “the narrow terms of the marriage debate,” the pro-homosexual advocates are now declaring, “Legal recognition for a wide rage of relationships, households and families – regardless of kinship or conjugal status.” They also demand, “Access for all, regardless of marital or citizenship status, to vital government support programs, including but not limited to health care, housing, Social Security and pension plans, disaster recovery assistance, unemployment insurance, and welfare assistance.”
In short, they want to totally redefine our society by eliminating the very concepts of marriage and family, and the battle to redefine traditional marriage is just the beginning. The proponents of homosexual “marriage” admit it and they have posted their manifesto online.
The big error the AFA makes, that Elizabeth doesn’t, is to implicitly assume that all homosexuals share an “agenda.” This is, of course, a common view of bigots. A non-bigoted person, when seeing that queer group X produces a statement which in some ways disagrees with the statements put out by queer group Y, would come to the conclusion that queer group Y and queer group X disagree on some issues. In contrast, a bigot like the AFA writer assumes that all queer groups agree on everything, and any apparent disagreement indicates that there is a unified “real agenda,” and that statements from queer groups that don’t agree with this “real agenda” are lies. (Oh, those tricksy trisksy queer groups!)
But note also what Elizabeth and the AFA share in common: the zero-sum mentality, which falsely assumes that the very act of recognizing or respecting “alternative” family arrangements will do terrible harm to “conventional” families.
UPDATE: Check out this response to the AFA and other hard-right anti-gay groups at Good As You.
UPDATE 2: Amanda at Pandagon comments:
Naturally, conservatives are claiming that this is evidence that progressives are trying to tear down traditional marriage. But what I noticed about the family types that conservatives are giving the hairy eye to and claiming shouldn’t have full rights as bona fide families is that they are often family arrangements that are made by people who are not WASPs and/or people who don’t have the financial means to divide up into households based around a straight couple, a gaggle of kids, and a white picket fence.
In other words, conservatives oppose opening up the meaning of the word “family” for reasons other than strict sexism, but in fact have very classist motivations. They want special rights for family living arrangements that are often only available to people of means. The fetishizing of the housewife is the biggest clue that this is about proclaiming that people of means are morally superior to people without, but beyond that, everything about the culture wars starts with the assumption that middle class WASP culture is morally superior to all others and that everyone else should aspire (or be forced to aspire) to the lifestyle of our social superiors.
Now I’m not saying that people who do have nuclear families are morally inferior by any means. Just that they are not morally superior to other people, and yet it’s still largely assumed that the nuclear family is the morally superior option, even though the expense and burden of it is too much for some of us. It’s the 21st century and it’s still so widely assumed that male-dominated nuclear families are so morally superior to the rabble that it’s still traditional for politicians to trot out the wife and kids in front of the camera to assure Americans that they are morally strong enough to be leaders. Single mothers, people who live with friends, people who live with extended families all need not apply.
[Crossposted at Creative Destruction, where the moderation is lighter and all the children are above average.]
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And they continue to espouse this fallacy that the whole point of marriage is to properly raise children. If anything that diminishes heterosexual marriage: the marriages of couples who, for whatever reason (financial, biological, environmental, tempramental) choose not to have kids. “Sure,” they say, “those heterosexual couples can get married, but let’s all be clear that their so-called reasons for it (like, I don’t know, loving each other) are not really the reason people need to be getting married. Love is nice and all, but raising kids is what marriage is all about.”
Sounds like diminishing marriage to me.
You know Barry, I kept reading it and not understanding why the anti-gay marriage crowd could object being that it was worded to very deliberately take other unions away from the marital status and into a familial status while leaving marriage alone. I was relieved to see you reiterating as much so I knew I wasn’t just missing something in the fine print.
The fact is, it’s pretty obvious that the agenda becoming clear is much more that of the anti-gay marriage crowd, which is to discriminate.
Raising kids isn’t what marriage is all about. Marriage is a pretty big construct; kids are an important node within that construct, but they aren’t the whole enchilada.
Raising kids is what state recognition of marriage is all about. The state has an interest in the perpetuation of the species in a stable and persistent manner.
Raising kids is what state recognition of marriage is all about. The state has an interest in the perpetuation of the species in a stable and persistent manner.
Ok, I’ll bite. If raising kids is what state recognition of marriage is all about, why are couples who are clearly incapbable of conceiving–and probably incapable of raising– children together allowed to marry (ie couples where both partners are over 80, etc)? And why deny recognition to couples who clearly are raising kids together (ie gay couples raising children, genetically related or not, together)? I could be wrong about this–I’ve never been married–but I don’t think that a promise to attempt to raise children together is a requirement to get a marriage license.
Regardless, Robert, the “Beyond Marriage” statement is about why state recognition of other relationships, such as familial and caretaking relationships, is important.
Amp was kind enough not to link to some of the other “OMFG teh queers!” posts at Family ‘Scholars’. Elizabeth is one of the more moderate and honest posters there.
If raising kids is what state recognition of marriage is all about, why are couples who are clearly incapbable of conceiving–and probably incapable of raising– children together allowed to marry (ie couples where both partners are over 80, etc)?
For the same reason that dumb people are allowed to apply to Harvard: it doesn’t cost the institution much, it makes people happy, and it allows for the occasional distant outlier.
· Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households.
I find this statement confusing. It’s impossible for a same-sex couple to create a child on their own. A lesbian couple would need a male as, at the very least, a sperm donor; a gay couple needs a woman who has conceived a child (whether she uses one of that couple’s sperm or not). What are they talking about here?
RonF: Two gay males and two lesbians. You do the math.
I’m not entirely sure that the above IS true. It certainly is bandied about as if it were, as if it were ALWAYS true, but is it one of those assumptions used in place of real thought? Have there been studies done that I’ve missed?
The fact is, America is made up of many types of families, a large (though not exhaustive) list is in the post. I agree that recognizing those types of families that fall outside of some mainstream religious construct is a good thing.
However, that recognition won’t happen as long as we allow those with restrictive religious views to set both the discourse and the agenda. Especially as that agenda is often based on unquestioned assumptions such as “marriage is for the creation of children” and “only one man and one woman comprise a real (or sacred or traditional) family.”
So, I have a question then. What is the governmental interest in “marriage” of any sort? Is it for the continuation of the species? (Do we really need the government’s help with that?) Is it for the betterment of individuals to join together, pooling resources? Something else?
Ron so didn’t watch Queer as Folk!
Robert, I disagree with your statement completely. The state has an interest in familial relationships due to all of the reasons the statement pointed out – when people are taking care of each other as families, it saves the state from having to take care of them. Trying to pigeon hole it to the state only having an interest in straight couples and instead of non-traditional families is at best either extremely short/narrow visioned, or at worst disingenious and discriminatory.
It’s pretty easy to waffle on in vague terms like this, but interests me is what happens when they’re forced to draw a line somewhere and make some real choices? When it comes down to it this (and marriage) is basically about recognising some forms of relationship and not others, granting people in recognised relationships rights that other people don’t get, and redistributing money from one lot of people to another.
They disagree that marital relationships should be privileged above others. But they do think some relationships should be privileged above others. What’s interesting is really which ones and how, rather than the ‘strategic vision’. I know what the status quo is, but the alternative is still pretty blurry.
And I’m sure Elizabeth can stick up for herself. But…
It’s not. But the key quote is that they’re campaigning for “the separation of benefits and recognition from marital status”. They’re trying to replace marriage as a means of getting a state recognised relationship with something else. Regardless of whether that’s a good or a bad thing, that’s where the anti-marriage accusation is coming from.
it doesn’t cost the institution much, it makes people happy, and it allows for the occasional distant outlier.
So, what would allowing gays and lesbians to marry cost the state or anyone else? Many of them want to raise children.
Robert, as long as you’re going to have to admit that the “a few won’t hurt” argument applies to same-sex marriage, you’re going to have to admit that it’s a brand-new argument. Traditionally, we didn’t applaud when the elderly or the infertile married, and inability to procreate was a reason to declare a marriage invalid, or to prevent it taking place in the first place.
it doesn’t cost the institution much, it makes people happy, and it allows for the occasional distant outlier.
Oh, please. What shameless sophistry. Gay marriage doesn’t cost “the institution” (how does one measure the “cost” to a convention like marriage, anyway?) any more than the non-breeding heterosexual couples do.
It’s amazing how well you guys ‘n gals are laying out the arguments you think I’d present, without actually waiting for me to present them. Well solipsized!
To my understanding, marriage has traditionally been about *property* — and children (as well as wives) were considered the/some man’s property. The state’s interest in marriage is to assure that there is a clear line for male inheritance of land and possessions.
This falls in line with presuming that any children born into the marital union belonged to the male spouse keeping the inheritance lines unconfused.
Yeah, for one thing, Robert doesn’t oppose state recognition of same-sex marriage (although IIRC he seems to want to strip the name marriage from the state institution, so everyone would get a civil union from the state, and then get married (or not) using whatever religious/cultural institution they chose), so all the arguments about how what he just said conflict with his opposition to state recognition of SSM don’t actually make any sense at all.
Am I remembering your position correctly, Robert?
Yes, that’s a fair summation. It seems evident to me that there is no legitimate state interest in refusing recognition and extension of rights to any adult couple. (I also don’t see a legitimate state interest in barring poly- marriage.) In terms of the civil authority, it seems clear that the Constitution does not permit the privileging of opposite-sex (or two-person) relationships. (It’s cool to discriminate against people who want to marry kids or what have you on the grounds that the state interest in protecting children from abuse trumps the right to associate. The state has much less standing to protect adults from abuse, so the potential pitfalls of poly-marriage don’t arise, in my opinion, to the level where it’s any of the government’s business.)
That’s entirely separate from the cultural question. I don’t recognize same-sex relationships as being morally, spiritually or physically equal to opposite-sex relationships, and the beauty of it is, I don’t have to. My cultural values should be reflected in the cultural institutions with which I affiliate, and they are, by and large. Your values can be reflected in YOUR cultural institutions, and we’re all free to consider everyone else Godless heathens who will burn in hell for all eternity, or hateful bigots spewing vile exclusionism, or whatever other comforting Othering we like.
The cultural institutions are more important than the state institutions. On labeling and terminology, I’m going to go with demographic weight and give the word “marriage” to the churches and other cultural institutions rather than the state’s version. .
With a little hard work, I can alienate every single human being on Earth with my position. You gotta love it.
Oh fine, Robert. Go ahead and alienate every single human being on Earth. Ignore all us married human beings. And single non-humans. Not to mention people on other planets. Ironic that you would restrict your “alienating” to terrestrial creatures.
Bigot.
By ignoring you, I alienate you EVEN FURTHER. Ha!
BTW, RonF, my comment above sounds soooo snarky today. It was meant to be tongue in cheek. Oops! Sorry.
In terms of the civil authority, it seems clear that the Constitution does not permit the privileging of opposite-sex (or two-person) relationships.
Robert, you’ve been around for more than one iteration of Con Law 101, so I’m beyond assuming that you’re posting this out of ignorance.
There is no “numerosity” protected class in the Constitution; there is no Equal Numbering Amendment in any state’s constitution. You’re not going to find states that allow three-person groups to adopt children, or that has a ‘polyamorous partnership’ legal track that is marriage-lite. That’s why couples-only marriage is not on the same plane, Constitutionally speaking, as same-sex marriage. But you knew that.
and give the word “marriage” to the churches and other cultural institutions rather than the state’s version
You’re free to believe whatever you wish, but I’m afraid you’re culturally outnumbered on this one.
Q Grrl; so what is meant is that one or both of the gay couple members provide sperm for one or both of the members of the lesbian couple? And then who provides (physical, financial, emotional, moral, etc.) support for the child? Are they all involved, or just one or the other couple? Or is that a case-by-case thing? Oh, and I didn’t think it was too snarky, but thanks anyway!
Kim; nope, never did see the show. My TV habits are pretty much news/sports/history channel/cop show-&-Law and Order type stuff. My wife has put on some of the Will and Grace reruns, but I think the characters are way too stereotypical and I average about one laugh an episode. Of course, that’s also my reaction to Everyone Loves Raymond. I find a lot more genuine wit in Frazier, and I at least thought they might be gay for a season or two.
Robert is trolling. He’s doing not a half bad job of it, either.
The unspoken assumption driving restrictive legislation is that free association needs to be limited for the “protection” of society ( i.e. those who arent’t like us).
That may be a simple reaction – rationalized – to the call for artificial divisions in society to be disallowed as capricious and unfair.
Raising kids is what state recognition of marriage is all about.
By which you mean HETEROSEXUALS raising kids. Same sex couples raising kids don’t get marriage rights, in case you hadn’t noticed. Which I’m sure you have, but you just skipped over that part because it would poke a hole in your “For the sake of the CHIIIIIDRUHHHHNNN” argument.
So what’s the return volley going to contain? Let’s read the top 10 responses from the standard anti-SSM handbook
1) Children are best raised by a mother and a father (insert specious claims using studies about single mothers as as proof )
2) Granting same sex couples with children marriage rights are going to encourage homosexuality, which is wrong and icky.
3) Same sex couples with children are exploiting those children. They’re just greedy. They don’t deserve rights
4) God says it’s wrong, and as long as I stick to that, I don’t have to have a reason. Isn’t democracy great? It allows the majority to condemn oppressed minorities as anti-democracy when they complain!
5) Ayn Rand said homos are sickos.
6) I’m a Libertarian, and so I disagree with marriage altogether, but what’s important is reducing laws, so you queers can just wait until the ultimate eventual Libertarian domination of society, as prophesied in “When Atlas Shrugged” which is the source of all truth.
7) Queers are disgusting (somehow this is at the core of all of the arguments here)
8) I’m a conservative queer, and I blame liberal queers for this. Blah blah blah ACT-UP blah blah horrible sickos at pride! If those groups stopped being so outrageous, Republicans would accept us, and my parents would love me again. I blame Robert Maplethorpe for my father disowning me.
9) This is all Clinton’s fault.
10 ) Queers will molest children.
Does the fact that the State gives specific privileges to married couples mean that it “… our government define[s] as “legitimate families” only those households with couples in conjugal relationships …”? I don’t think so. IIRC, various kinds of recognition and assistance is available to all the other kinds of relationships mentioned, especially those that involve the support of children.
By which you mean HETEROSEXUALS raising kids.
An excellent method of determining what I mean is to read what I write, and then ask me if it isn’t clear.
As opposed to the telepathic method. Which, I gotta say, isn’t producing very impressive results.
“An excellent method of determining what I mean is to read what I write, and then ask me if it isn’t clear. As opposed to the telepathic method. Which, I gotta say, isn’t producing very impressive results. ”
An excellent method of getting across your meaning to others is to clearly state what you think/mean, without expecting other people to fill in the blanks on your behalf.
So, do you or do you not support marriage rights for same-sex couples? If yes, then is this statement (“Raising kids is what state recognition of marriage is all about”) an argument in favor of SSM when gays/lesbians are raising children? If not, then how is this statement (“Raising kids is what state recognition of marriage is all about”) an argument against it, while also acknowledging that gays/lesbians *are* raising children, and would be better able to raise happy and healthy children with the legal protections of marriage?
Or did you just decide to throw that statement in because it sounds good?
Kali, you’re mistaking an observation about the theoretical underpinnings of state recognition of marriage, with an expression of opinion. I could be 100% opposed to same-sex relationships in all their forms and favor the death penalty for homosexuality, or I could be the biggest gay-marriage activist in the world. Either way, the reason for state recognition of marriages is the same.
Charles’ summation in 17, and my expansion in 18, clearly lay out my position.
An excellent method of determining what I mean is to read what I write, and then ask me if it isn’t clear.
No. The implication was clear. If you can’t write something that conveys clear meaning, the fault is yours, and clearing up any mistaken impressions is your own business.
Also, yeah, I think the sentence was deliberatley constructed to deny same sex couples raising kids as deserving the same legal validity that a married same sex couple gets.
Oh, and why is it you brought up adults marrying kids in this debate?
Josh, I’m not going to engage you further. Thanks.
So then the choice becomes ‘all or none’ perhaps, which are essentially the same thing.
Once you acknowledge that the state has some power to limit benefits to a group of people, it seems almost mandatory to also acknowledge that the deliniation betweeh haves and havenots will in many ways be arbitrary. There will ALWAYS be someone who is “left out” who is deserving; there will ALWAYS be a member of the “in group” who doesn’t deserve it.
Those complaints aren’t always apposite, though, unless you also plan to state you expect the goevernment to reach the optimal solution, notmerely an acceptable one.
My beliefs about the role and function of government lead me to conclude that it is permitted to make some sort of dividing line in terms of relationship status, and to give disproportional benefits to one side. I don’t necessarily think it’s GOOD, I think it’s PERMITTED.
I didn’t. I read the 14th Amendment to bar government from depriving anyone of equal protection of the laws. There’s a whole jurisprudence around this provision placing the burden on government to identify a legitimate governmental interest before it can discriminate on the basis of “suspect categories.” While I don’t know that courts have recognized threesomes as a protected class, I believe they have recognized practitioners of minority religions. So if someone says that god told him to marry multiple people, I understand that government would bear the burden to show why prohibiting this guy’s religious practices promotes a legitimate governmental purpose and is narrowly tailored to that purpose.
Well, I can’t say that I’m surprised, really. But buck up, Josh; there are other fish in the sea.
You’re not going to find states that allow three-person groups to adopt children, or that has a ‘polyamorous partnership’ legal track that is marriage-lite. That’s why couples-only marriage is not on the same plane, Constitutionally speaking, as same-sex marriage. But you knew that.
If you say so. Ten years ago, you’re not going to find states that allow gays to marry. Things change, and statutes aren’t principles.
I’m not a lawyer, or trained in the law, so I don’t know the whys and wherefores of how come the Constitution and the legal regime in place don’t always seem to gibe. I only know how to read and parse plain English, and the plain text of the Constitution would seem to bar the state from pretty broad categories of discrimination when it comes to marital law.
Nobody’s recapitulation of the 14th amendment seems pretty clear to me. The state has to show a compelling reason why people aren’t treated the same under the law. I don’t see how the state can do that in the case of same-sex marriage. I don’t see how the state can do that in the case of group marriage, either.
YMMV, but it seems like your concern that “they’re different, they really are!” is grounded more in desiring not to have an unpopular polygamy that you disapprove of lumped in with increasingly popular gay marriage that you do approve of, than in any principle or doctrine. I don’t have a dog in either fight; seems from here that the Constitution requires us to treat everybody the same, period.
(I eagerly await a Josh-esque attempt to spin this as me hating the fags.)
You’re free to believe whatever you wish, but I’m afraid you’re culturally outnumbered on this one.
Maybe in your neighborhood.
I’m not a lawyer, or trained in the law, so I don’t know the whys and wherefores of how come the Constitution and the legal regime in place don’t always seem to gibe. I only know how to read and parse plain English, and the plain text of the Constitution would seem to bar the state from pretty broad categories of discrimination when it comes to marital law.
There’s a simple explanation which will make you understand the discrepancy:
What governs our behavior is actually not the plain text of the constitution. Rather, we’re bound by the Supreme Court’s interpretation of the Constitution.
If you claim the constitution as authority for your position, then inherent in that claim is the establishment and powers of the supermes. Thus, ALSO inherent in that claim is an acknowledgement of the Supreme Court’s “final word” on what the constitution means.
That’s one reason why lawyers often tend to cite Supreme Court cases instead of the constitutonal language in many circumstance. My interpretation, and your interpretation, aren’t really all that relevant if we’re talking about law. It doesn’t matter what WE think the Constitution means. It matters what THEY think it means.
This leads to some pretty bizzare results. For example, you might think that the language “congress shall make NO LAW…” (emphasis added) means that Congress shall, in that area, be prohibited from making a law. You would be quite reasonable in thinking that.
But….. Surprise! “No law” doesn’t actually MEAN “no law” after all. And so it goes.
Isn’t Constitutional law fun? :)
Isn’t Constitutional law fun? :)
Fun for you guys, maybe. Until the revolution comes.
Sailorman, that (briefly pithy) comment was meant as shorthand for this:
I appreciate that there are points – many points – of the law where interpretation is necessary. Even commonsensical text needs a modicum of interpreting, and some byzantine laws are nothing BUT interpretation. That’s cool. I get it.
But when lawyers and judges interpret “interpret” to mean “redefine in obvious contradiction to the plain text”, they aren’t being clever. They’re undermining one of the fundamental principles of a self-governing people.
And if they persist in doing it, they will be replaced.
We need lawyers and judges. We don’t need any particular set of them. And lawyers and judges who interpret “no law” to mean “a whole raft of laws”, and who interpret “equal protection of the laws” to mean “grossly variable protection of the law according to the whim of a judge or the au courant opinions of social workers or cops or ministers or doctors” aren’t fulfilling their role in a constitutional order; they’re subversive of that order.
The alternative to a constitutional order is not a world most lawyers or judges would enjoy very much.
Robert, if you really care about the ‘plain text of the law’, why haven’t you read it? Here’s the entire 14th amendment:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Now, I don’t see anything in that ‘plain text’ supporting nobody’s or your re-reading of the law–that is, your claim that it bars broad categories of discrimination. I don’t even see the word “compelling” in there. That would go against the whole re-interpretation thing you claim to dislike.
So if someone says that god told him to marry multiple people, I understand that government would bear the burden to show why prohibiting this guy’s religious practices promotes a legitimate governmental purpose and is narrowly tailored to that purpose.
This is incorrect.
YMMV, but it seems like your concern that “they’re different, they really are!” is grounded more in desiring not to have an unpopular polygamy that you disapprove of lumped in with increasingly popular gay marriage that you do approve of, than in any principle or doctrine.
Again, Robert, you know this is not correct, and you’ve been around trolling on many occasions when I’ve gone through the whole routine of explaining what equal protection law does and doesn’t do, and how a state can’t call something a Compelling Interest only some of the time and ignore it the rest of the time. YMMV, but it seems like your concern is not whether the judges and lawyers make a decision based on fair and sound legal principles, but whether you get the result you want.
That’s not the text of the 14th amendment, Mythago. Perhaps you aren’t finding anything that says what I think it says, because you’re actually looking at the 15th amendment.
The text of section 1 of the 14th amendment reads:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The other sections cover how representatives are apportioned, oaths of office, and the public debt. As such, they’re out of the scope of this discussion so let’s ignore them.
The section that I find supportive of my view is “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens…nor deny to any person within its jurisdiction the equal protection of the laws.”
YMMV.
It seems to me that it takes a pretty incredibly extreme interpretation of “deny to any person… equal protection of the laws” to claim that stipulating that the state recognizes marriages as being exclusively between two persons violates equal protection.
I don’t think that marriage can be trivially extended to poly forms (and extending marriage to same-sex couples is a trivial change in the law). Current US civil marriage is specifically structured as a 2 person relationship. Changing it to fit more than two people is not trivial, nor is there general agreement on how to change it to make it poly. Certainly, poly marriage is a viable system (I essentially live in one) and could be legally supported, but there are lots of different kinds of poly-marriage, with mutually conflicting needs.
However, returning to the original post topic, poly marriages are deserving of some form of legal recognition and state support. I think that the beyond marriage people take the right tack, as there are a wide variety of systems of support that should be recognized by the state in various ways. We could definitely use a small smorgasbord of state recognized relational forms, involving different degrees of mutual responsibility, extending beyond marriage. As those forms of recognized relationship instruments develop, it may be that some of them will form a functional basis for creating various forms of full poly-marriage. This seems a much more reasonable route to poly-marriage than trying to directly extend diad marriage to a poly form.
Robert,
The procedure for replacing the Supremes is ALSO in the constitution. President appoints; Senate approves.
Alternatively, if you get enough of congress to agree you could amend the constitution itself, to remove the court, change the justices, change the terms, etc. This process is not in and of itself subject to judicial review.
But as it stands right now, the Supremes interpret it.
So, as I said: If you’re going to stand there and harp about the Constitution, you only look foolish if you pick and choose your favorite parts as “binding” while ignoring the rest. It’s a little like the way that many religious fundamentalists state their “favorite” sections of the Bible as requiring literal interpretation, while conveniently ignoring the parts they don’t like.
Your view may be interesting. It may be worth discussing for fun. But in the context of what is LEGAL, it’s not worth much.
The short and simple explanation of the 14th is this:
Those “privileges and immunities” referred to are those already in the Constitution. In other words, the 14th does not CREATE any “new rights.” It merely ensures that the states may not violate U.S. Constitutional rights through state law. So if you want to claim a right under the 14th, you need to find that right somewhere else in the Constitution itself.
You’re right, Robert, I did a bad cut-and-paste. You’re still not reading the “plain text”; you’re imposing your own meaning on what the Amendment actually says. It’s hypocritical, to say the least, to claim that it’s OK to read the meanings you like into the Constitution but not meanings you dislike. “YMMV” is not an abbreviation for “I don’t care to know what the law says, I just know that I don’t want the government to recognize gay marriage.”
Those “privileges and immunities” referred to are those already in the Constitution. In other words, the 14th does not CREATE any “new rights.” It merely ensures that the states may not violate U.S. Constitutional rights through state law. So if you want to claim a right under the 14th, you need to find that right somewhere else in the Constitution itself.
I’m not sure that this is true, Sailorman. That is the stance that is currently being argued on the anti-marriage equality side, but try the same thing with, say, driver’s licenses and see what happens. After all, the privilege of driving is found nowhere in the constitution. And there are probably thousands of other privileges not listed anywhere in the constitution for which this argument wouldn’t work either.
But mythago, I DO want the government to recognize gay marriage. That’s what I’m saying; that the 14th amendment, in my view, prohibits the government from discriminating against gay people in marriage law.
Why, the 14th amendment DOES allow gay people to marry, just not people of their own gender. How does that violate the 14th Amendment? Anyone can marry a person of the opposite sex, right?
I’m still wondering how you get from the 14th Amendment to polygamy.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens…nor deny to any person within its jurisdiction the equal protection of the laws.”
Which doesn’t do much to support same-sex marriage. The major argument I keep seeing is, “Homosexuals should have the right to marry someone they love just like heterosexuals do.” But the right for heterosexuals to marry is not legally based on their emotional status, else they’d be allowed to marry their sister or father. It’s based on other criteria, one of which is that the people marrying be of opposite genders. Now, the fact that for certain reasons homosexuals don’t wish to do that is quite understandable, but that doesn’t mean that the marriage laws thus violate the 14th Amendment.
As nobody says, “I read the 14th Amendment to bar government from depriving anyone of equal protection of the laws. There’s a whole jurisprudence around this provision placing the burden on government to identify a legitimate governmental interest before it can discriminate on the basis of “suspect categories.”
There’s no legitimate governmental interest in prohibiting polygamy (or gay marriage).
That’s how.
But Robert, number is not a “suspect category.”
And arguably there is a legitimate government interest in blocking polygamy. (Associated with child abuse, warps the “marriage market,” screws up existing hetero marriages by changing their legal status, etc).
Or many not.
Frankly, I don’t feel that the debate about legal recognition of poly marriages has seriously happened yet (one sign that it hasn’t happened yet is that no one knows what legalized poly marriage is, in terms of what specific changes to the law are proposed). I strongly favor the idea that there should be some legal statuses available for various forms of poly partnerships; I’m on the fence regarding if poly marriage should be one such legal status.
There needs to be a real and vigorous debate about poly marriage, in which people from both sides are forced to put forward specific advocacies and defend them. Until that happens, I think I’m doomed to be a fence-sitter, because I can’t be for or against a policy that no one is advocating in a specific form, and that no one has really tried to show (or rebut) the harms of.
No such debate has happened yet; legally-recognized poly marriage has only been mentioned as a penumbra of the same-sex marriage debate. But that’s not a sufficient way to discuss the issue. It needs to be discussed as its own thing before the harms (if any) and benefits can be balanced, and before the government interest (if any) can be weighed.
Of course, as a practical matter, legal recognition of poly marriages isn’t going to happen anytime in the forseeable future. Courts aren’t the leading edge on matters like this; until a substantial proportion of the public (although not necessarily a majority) favors legal poly marriages, it’s pretty much impossible that they’ll happen legally.
Jake,
That isn’t the “stance that is currently being argued on the anti-marriage equality side,” it’s the stance that has been pretty firmly established by decades of Supreme Court precedent, which go WAY beyond the (fairly recent) marriage argument.
Sailerman,
You make it sound like the 14th Amendment applies only to state law, and never to federal law. Is that the case?
Actually, the argument is that “Homosexuals should have a right to make the non-related consenting adult of their choice their closest legal relative – their spouse – just like heterosexuals do.”
What legal marriage does is take two distantly-related or non-related people, and make them close relatives, legally. You can’t marry your sibling or parent because they’re already a close relative, and so it’s inapplicable. It would be like trying to dig a new lake in the middle of a lake.
Sailorman,
Are you saying that the anti-marriage equality folks aren’t arguing (at least as part of the larger argument) that the 14th ammendment doesn’t apply since marriage is not a privilege listed in the constitution? I don’t think that is what you are saying, but in your rush to dismiss me you sure made it look that way.
And you didn’t answer my question. How do you think it will work out in the legal arena if a state decides that single people can’t get a driver’s license because driving is a privilege reserved for people who are married? After all, where is the constitutional protection for driving?
Amp,
The 14th doesn’t need to expand federal law. The rest of the constitution does that.
What the 14th DOES do, generally speaking, is to apply federal Constitutional law to the states. Remember that the states are sovereign entities. The grant of rights in the Constitution only gives those rights with respect to the federal government; the 14th states those rights in terms of state government. So not only it is clear that there cannot be a federal law abridging freedom of the press; the 14th as interpreted means that there cannot be a state law either.
There are other things in the 14th as well, including the “equal protection of the laws” language. They’re important too, but I’m not as facile at explaining them.
Jake, I’m not saying anything about anti-marriage folks; I’m not one and I honestly have no idea what their exact position is. You implied that my view of the 14th was somehow related to marriage. I merely noted that the 14th comes up all the time and has for ages; the rules regarding its general application were developed in other areas. There’s a
I didn’t answer your question because it’s not really relevant. Still, if you feel strongly about it…. There is no constitutional protection for driving per se. But because car travel is the primary means of travel for most people, and because travel IS a protected right, it’s possible that the supremes would find such a license ban to be problematic.
“There’s no legitimate governmental interest in prohibiting polygamy (or gay marriage).”
Wow, that’s a sweeping statement, backed up by nothing. Putting polygamy on the same plane as gay marriage? At the very least it is arguable that women and children are harmed by polygamy as practiced, so how can you conclude so confidently that there’s “no legitimate governmental interest in prohibiting polygamy”. On the other hand, gay marriage does not harm anyone, and if someone thinks it does, then they need to show how rather than just saying that it is wrong.
Kali, that’s all in the realm of opinion. You opine that polygamy is bad for women. Someone else could opine that (at least) male homosexuality is bad for anyone who practices it. So “gay marriage” harms the people who are encouraged in their gay-osity.
Or whatever other half-assed justification you want to pull out. There’s little or no proof of any of this stuff. It’s opinion. You disapprove of polygamy and approve of homosexuality (I assume) and so there’s obviously some compelling government interest at stake in the former case but not in the latter; whatEVer. Hell, given AIDS, I imagine it would be a lot easier to prove that male homosexuality is bad for people and thus shouldn’t be endorsed in the marriage contract.
I disapprove of both polygamy and homosexuality, but I don’t see where either one is the government’s business. I don’t remember petitioning the federales to please police my love life. It seems that at least my position is consistent: government, butt out.
Josh, I’m not going to engage you further. Thanks.
Somehow I figured you’d duck out after backhandedly comparing same sex marriage to pedaresty.
I tend to agree with Robert, for once, but I do see one important difference between gay marriage and polygamy. We know what it would mean to legalize same-sex marriage — we may not know for sure what effect it would produce, but at least we know how to do it legally. We’ve already changed our marriage laws in the US to remove all practical legal difference between spouses. So we could legalize gay marriage by changing a few words. Whereas the existing legal or traditional models for polygamy seem harmful to women and more alien to current US law. I’d have to think a bit more about just how to legalize polygamy before we could consider doing it.
Jake,
It isn’t the 14th amendment that gives you those nebulous right, it is the 9th amendment (and perhaps the tenth). The 14th amendment gives Federal teeth to the unenumerated rights of the 9th amendment.
Robert,
While I agree with you that it would be difficult to convincingly argue that polygamy is fundamentally bad for women and children (for one thing, more parents = better for some number of parents larger than two), you then write:
WTF?!?
hf,
Indeed, most forms of traditional polygamy, which are almost always polygyny, run counter to exactly the current legal form of marriage in the US in exactly the way that SSM doesn’t. Modern US marriage does not legal distinguish rights and responsibilities on the basis of sex. There is no legal distinction between the rights and responsibilities of a wife and the responsibilities of a husband. This obviously runs totally counter to polygyny, where a husband has responsibilities to multiple wives, while wives have a different set of responsibilities to each other than they do to their husband.
While I’m sure you can come up with a form of polygamy that fits better with our current concept of marriage, it is unlikely to be one which is acceptable simultaneously to me and Amp, to Dr. B, to Robert (who favors line marriage out of loyalty to Heinlein), to a southern Utah Mormon splinter sect, and to a Saudi Muslim.
Again, I think that if poly-marriage were going to gain legal recognition in the US, it would come as a gradual extension of exactly the sort of policies that the beyond marriage folks are advocating, not directly as an expansion of marriage. And even with such policies, I think the creation of actual polygamous marriage institutions in the US is almost certainly not going to happen.
Like too many people, you mistakenly conflate the effects of having sex and getting married.
1) There is not any reasonable doubt that polygamy is associated with systems in which adult men abuse younger women. This fact is extremely well-documented by sociologists, journalists, and by police.
Right now, police are able to do something about it, because polygamy is illegal. Of course, the ban hasn’t stopped polygamy entirely, but it has allowed some girls to be rescued, and that’s good. If polygamy is made legal, it will no longer be possible to arrest people for polygamy, and one tool for halting these abusive practices will be gone.
Does that mean polygamy should inarguably be illegal? No, but it does mean that unless you’re alleging that there’s some giant conspiracy between scholars, reporters, and cops to make up stories of abusive polygamy where none actually exists, your claim that these arrangements do harm is just Kali’s opinion is nonsense.
In contrast, you claim that because of the prevalence of AIDS spread by intercourse among gay men, it’s easy to prove that gay marriage is harmful. But there’s no evidence that gay men will choose not to have sex if they can’t get married, and considerable evidence to the contrary. Furthermore, there’s a chance that marriage would encourage monogamy, in which case marriage could actually be beneficial, from an AIDS prevention point of view.
You want to pretend that there’s absolutely no difference between poly marriage and same-sex marriage, because that suits your view that we’re just being irrational to pretend the two things are different. But your case is in a shambles at every level.
* * *
Although you refuse to acknowlege this, “numbers” aren’t a protected class. Do you seriously argue that if Charles and I jointly apply for a job with the Social Security adminstration, we should be able to sue for employment discrimination if they say they’re just looking for one person to fill that job, not two to fill it jointly?
Should large apartment buildings be legally forbidden from discriminating based on how many people will live in an apartment (just as they’re now forbidden from discriminating based on if tenants are Jewish or not)? Should restaurants be legally required to seat parties without regard for numbers (just as they are now required to seat without regard to race)?
The common right-wing claim that “numbers” ever have been or ever should be a protected class magically appears when SSM marriage is discussed, and disappears – poof! – the moment any other area of law is discussed. That’s because the claim that numbers are or should be a protected class is, frankly, laughable. I’ve yet to see a single conservative who makes this argument seriously argue for “numbers” being a protected class in any other area of law.
(What’s different here is that you don’t oppose SSM, and most of the people bring up the “two people have a constitutional right to be treated as one person!” argument are anti-SSM. But the logic is full of holes either way.)
There’s no legitimate governmental interest in prohibiting polygamy (or gay marriage).
You know, I’ve read the plain text of the 14th Amendment several times now, and I don’t see the phrase “legitimate governmental interest” in there anywhere.
In the real world, where most folks agree that Marbury v. Madison was not the work of a crazed activist court, gender is a suspect class that requires ‘intermediate scrutiny’; number of partners and sexual orientation are not suspect classes. And since marriage laws are created at the state level, they must pass muster under both federal and state constitutions.
As for polygamy, the pseudo-Mormon types would not really want the law to recognize such marriages, if they thought about it for five minutes. That’s because under existing Equal Protection analysis, any state that allowed one man to have many wives would have to allow one woman to have many husbands.
As someone who grew up with a wildly dysfunctional set of Heinlen inspired poly-experiments, my only wish for poly marriage is that, should one person leave, there’d be some sort of legal process in place which would go through the process that divorce does with two: money, child support, custody, etc. The to-ing and fro-ing was somewhat emotionally and financially brutal. I’m not a huge fan of poly due to my experiences, but really having some sort of greater legal framework may have helped.
I wonder if business law could help provide a model.
Charles:
WTF?!?
HIV has absolutely devastated the male homosexual population. (And some other populations too, but in the American context its mainly gay and bisexual males.) This study, for example, found sharply reduced life expectancies for gay and bisexual men in Canada. This is non-controversial; male homosexual behavior in the aggregate is unhealthy owing to pathogenesis. (There are doubtless many individuals for whom this is not true; vigilant and cautious individuals who have small numbers of sexual partners or who practice monogamy, always use barrier protection, avoid some highly pathogenic sexual practices, and so on.)
Amp:
Like too many people, you mistakenly conflate the effects of having sex and getting married.
This is a fair point. But without this conflation, the association still stands. There are a lot of men for whom homosexual activity is not the only viable outlet for their sex drives, for whom homosexual behavior is optional. (I’m one of them.) People who have choices respond to incentive structures, and a society which normalizes homosexuality and permits SSM is a society which is not discouraging those men from making that choice. Which means that a society endorsing SSM is a society where there will be somewhat more homosexual behavior, with concomitant negative health outcomes.
I should hasten to say, that I don’t think any of this is evidence against permitting SSM. It’s simply supporting material to my contention, vice Kali, that it’s a question of opinion whether the government should “protect” people from the negative outcomes of some relationship structures by banning those structures. Whether adult people need protection or not is not a question that we can readily draw a bright-line on, given the complexities of life and the deeply personal nature of the tradeoffs involved. It’s going to boil down to opinion; “I worry about the plight of the women in polygamy, but I think that adult gay men can make their own mistakes” is a perfectly reasonable opinion, but that’s all it is.
There is not any reasonable doubt that polygamy is associated with systems in which adult men abuse younger women. This fact is extremely well-documented by sociologists, journalists, and by police.
And all of those systems exist in a context where polygamy is illegal and its practitioners are persecuted by government agencies – and so they seek shadows and social interstices and keep their lives a secret. (Or, conspire together to form communities where the illicit becomes the requirement, and outsiders are forbidden.) This is an obviously unhealthy and unnatural environment in which to practice any social form. Of course sociopathic and misogynistic individuals are going to be attracted to a social practice which must be done in secret – it protects them from the consequences of public knowledge of their acts. All the decent would-be polygamists refrain from polygamy, because decent people don’t like to live outside social sanction.
What the outcomes would be from a polygamy or polyandry practiced in the open, under the harsh sunlight of public scrutiny, is a complete unknown. Poly relationships exist in a relational “black market”, with predictable consequences. You can get what you want in the black market regardless of what other people think, but the downside is that there isn’t much quality control and there’s no regulatory body to which you can appeal abusive behavior.
You want to pretend that there’s absolutely no difference between poly marriage and same-sex marriage, because that suits your view that we’re just being irrational to pretend the two things are different.
There are multiple differences between poly marriage and same-sex marriage; I don’t know where you’re getting this. You’d be irrational to pretend that they’re the SAME in most characteristics. The only similarity which I am claiming exists is this one: neither one ought to be the government’s business.
Do you seriously argue that if Charles and I jointly apply for a job with the Social Security adminstration, we should be able to sue for employment discrimination if they say they’re just looking for one person to fill that job, not two to fill it jointly?Should large apartment buildings be legally forbidden from discriminating based on how many people will live in an apartment…Should restaurants be legally required to seat parties without regard for numbers (just as they are now required to seat without regard to race)?
No, I don’t argue these things. These uses of “number” as a class are instances where number is germane to the physical environment and requirements of the good, service, or relationship. The SSA only needs one employee. Apartments can safely accommodate only a certain number of people. Restaurants have a particular capacity. And so forth.
Number, as applied to relationships, is completely immaterial. How many people can you love? I’ve never found an upper bound. How many people can love a child? Again, no upper bound.
Arwen: I’m really sorry about your bad experiences. Frankly, that’s about what I’d expect from a poly situation; the positive exceptions like Charles’ lifestyle are much rarer than the negative experiences. If poly relationships were socially sanctioned and subject to regulation (instead of existing essentially in the relationship black market mentioned above) there might be better outcomes. Your idea of business law is probably on target; if poly relationships were able to be recognized in law, then contracts could be entered into and enforced, which would provide the negative feedback for casual exits that might cause greater forethought in the participants.
On a (hopefully final) note (cheers from the readers!): I appreciate the nuance and sophisticated analysis which many advocates of SSM bring to the table in attempting to distinguish SSM from polygamy in terms of what the government can and cannot do. However, I also believe that the “man on the street” is somewhat dismissive of that nuance and distinction. If people are free, they’re free. If we want a nosy busybody government that tells us who we can love and how we can marry, then fine; but we must also accept that such a government is often going to trample on our own personal rose bushes, and not just those of those awful polygamists and bunny-humpers and Catholics and what-not. If we want a non-busybody government that keeps the roads functional and punishes the wicked but otherwise butts out of people’s relational lives, that’s fine too – but then we have to accept that the awful polyandrists and Catholics and rockfuckers are going to have their freakshow allowed to march down Main Street, too.
It’s intellectually possible to draw distinctions, to pick out small groups of the sexually non-mainstream and justify their behavior, while pushing all us other deves into the shadows. I don’t think it’s emotionally or politically possible. If the bottle is uncorked, the genie’s coming out.
Unsolicited advice: if you want freedom, embrace it for everybody, and not just your own personal preferred groupings. You’ll have more allies, even if some of them are not quite as popular as you like. Trying to push the less attractive members of the freedom coalition to the back of the bus doesn’t make you look cleaner; it makes you look hypocritical. My two cents, offered for free, worth what you paid for it.
Charles,
You are absolutely correct about it being the 9th ammendment. And that is also part of the point that I was trying to make in my dialogue with Sailorman. That his reliance on the 14th ammendment does not support his argument wrt marriage.
That is, he was saying that since marriage isn’t a right specifically given in the constitution that it isn’t protected by the 14th ammendment. Now, if the 14th ammendment was the only ammendment to the constitution he might have an argument. But, as there are at least 13 other ammendments – and the text of the 9th directly contradicts Sailorman’s implied argument that since marriage isn’t a right given in the constitution that there is no constitutional protection against discrimination in marriage, his position that the 14th is the end-all is, IMO, laughable.
But this has been debated to death here a year or more ago. IIRC, I argued the 9th ammendment – but I could be mistaken.
That’s because under existing Equal Protection analysis, any state that allowed one man to have many wives would have to allow one woman to have many husbands.
In reality would that happen? Are men more likely to enter into a multiple husband one wife relationship, than women would be to enter into a multiple wife one husband relationship?
Robert, if the concern is AIDS, that’s an argument in favor of SSM. First, because the rate of HIV infection is lower among lesbians, so we have an incentive to encourage female homosexuality; second, because the culture in which AIDS spread in the gay male community is one where marriage is not an option, so there’s no legally-sanctioned alternative to sexual behavior that puts one at high risk for AIDS.
Unsolicited advice: if you want freedom, embrace it for everybody, and not just your own personal preferred groupings.
Even more unsolicited advice: you’re not going to persuade anybody by using a strawman (SSM means polygamy!!! OMFG!!!) and then pretend that anyone who doesn’t agree with you is The Oppressor. You seem to conflate “this is not unconstitutional” with “and it’s a terrible thing that must never happen.”
Pietro Armando? Time flies.
Mythago, I’m inclined to agree with you about SSM reducing the overall incidence of HIV – an increased social pressure for fidelity and an increased social acceptance of monogamy, leading more people to adopt partners instead of partiers, are one likely outcome of widespread SSM. But SSM, as an instance of social condoning of homosexuality, is also likely to lead some hypothetical bisexual young men to adopt homosexual sexual behavior as part of their sexual repertoire – opening them up to HIV risks they likely would never be exposed to if they restricted himself to non-IV-using female partners. The population of people who will swing a particular way if society approves but who will refrain if society doesn’t is non-trivial.
And that’s all beside the point – which is that it will be opinions, not bloody-obvious empirical facts, that determine which classes of relationship are suspect and which are A-OK.
because the culture in which AIDS spread in the gay male community is one where marriage is not an option, so there’s no legally-sanctioned alternative to sexual behavior that puts one at high risk for AIDS
Uh…right.
“Let’s get married.”
“We’re not allowed to.”
“Damn it! Well, then, let’s have some monogamous sex as part of our unsanctioned relationship.”
“No, we can’t do that either. We have no choice but to hit the clubs and bareback fifteen young studs before dawn. Grab the poppers.”
“Your logic is irrefutable. Let’s roll.”
Even more unsolicited advice: you’re not going to persuade anybody by using a strawman (SSM means polygamy!!! OMFG!!!) and then pretend that anyone who doesn’t agree with you is The Oppressor.
Where are you getting this? I have explicitly disavowed an equation of SSM with polygamy; the ONLY arena in which I find them comparable is that they both seem to me to fall outside the state’s legitimate sphere of authority.
I’m not sure where this eminently orthodox libertarian thought transitions in your mind to “OMFG teh Oppressor”, so maybe you could explain that one.
I acknowledge that I don’t have one of the simple and obvious positions on this topic, but the simplify-distort-and-attack is wearying. I expect it from some people, but not from you.
Jimmy Ho Writes:
August 12th, 2006 at 5:08 pm
Pietro Armando? Time flies.
Che si dice? Where’s Don?
This is a minor point, but it’s going to bug me if I don’t comment on it…
The link leads to a study in which data was collected from 1987 to 1992 – which is not at all reflective of what’s going on nowadays. To see why data that old is no longer applicable, look at this graph of causes of death among Canadian men through 1997 – AIDS related deaths plummeted very sharply after 1995. Another graph, this time of AIDS related deaths in Boston, shows that a similar pattern is true in the USA.
I’m sure it was an innocent error on Rob’s part. Nonetheless, data about mortality among gay & bi men during the peak of the AIDS epidemic cannot tell us anything about current healths risks facing lesbians and gay men, and should not have been used.
But SSM, as an instance of social condoning of homosexuality, is also likely to lead some hypothetical bisexual young men to adopt homosexual sexual behavior as part of their sexual repertoire
“Likely”? Far less likely than that disapproval leading such hypothetical bi men to decide they’re better off marrying a woman and sneaking around with men, if men are what they want.
And, again, if AIDS is your fear, we need to encourage female homosexuality.
We have no choice but to hit the clubs and bareback fifteen young studs before dawn.
Whenever I hear this from a straight person who is well aware of Mardi Gras, singles bars, lap dances and frat parties, I wonder where this disapproval really comes from. Hey! Only heteros get to sleep around, you perverts!
If marriage is not an option for you, you will never consider it as part of your life, never look at the person across the table and wonder if they are The One, never see yourself having a relationship like most other adults. At best you can have shacking up with paperwork.
but the simplify-distort-and-attack is wearying
Gee, that’s what I thought back when you were accusing people of hypocrisy for not agreeing that polygamy is sanctioned by the 14th Amendment. Need some saline for that mote?
Mythago:
Gee, that’s what I thought back when you were accusing people of hypocrisy for not agreeing that polygamy is sanctioned by the 14th Amendment.
More distortion. I said that people in favor of SSM risked looking hypocritical if they did legalistic handstands to explain why relational freedom was great for gays, notso hotso for (say) old-school Mormons.
What is so threatening about this line of argument, that you can’t simply substantively address it (as your elucidation of Constitutional jurisprudence is an honest and welcome attempt to do) without this added layer of game playing?
Amp:
AIDS related deaths plummeted very sharply after 1995
Yes. It is my understanding that this was a demographic artifact, caused by the fact that the old gay male population susceptible to AIDS was now, essentially, all dead. Subsequent deaths are basically the ongoing toll of new infections among the young gay male population; of the approximate 40,000 new infections each year, 70% are of males and 60% of those are thought attributable to homosexual contact. The trendline, unfortunately, is not good. Since 2000, the annual infection rate has increased by about 15%. The number of deaths each year is holding relatively steady at 16,000 annually or so, from a pool of perhaps 1.1 million HIV+ individuals, as retroviral therapy more-or-less keeps up with the virus; I’ve seen both pessimistic and optimistic assessments of how long we’ll be winning that race. An infection rate of 40k per year and a death rate of 16k per year are certainly an improvement over the devastation of the 1980s and 1990s, but it’s still not a pretty picture.
Whoops – in my rush to be graciously pedantic, I forgot to do the gracious part: Amp is entirely correct that the big expected lifespan deficit for gay and bisexual men seen in the mid-1990s has dwindled since that time.
As Robert noted,
…but I’d been too busy to respond. But I’m back now. Bigot.
Surely there are other lawyers in this discussion?
Cornell Law School is kind enough to provide a brief overview of the 14th Amendment’s Equal Protection clause here. According to Cornell, “Traditionally the Court finds a state classification constitutional if it has ‘a rational basis’ to a ‘legitimate state purpose.’” That is, when someone sues government for discriminating, government bears the burden of articulating a law’s purpose, of defending the purpose as a legitimate concern of government, and of articulating a “nexus” between the law and the purpose.
Why all this rigamarole about “rational basis” and “legitimate state purpose” and “nexus” that isn’t in the text of the 14 th Amendment or elsewhere in the Constitution? Well, it arises from judges trying to apply (or avoid applying) the 14 th Amendment. As Cornell notes, “[t]here is no clear rule for deciding when a classification is unconstitutional.” In an effort to respect the role of the other branches of government (or in an effort to avoid responsibility for overturning many popular but arguably ill-conceived laws), judges have limited the application of the Equal Protection clause. Courts are generally deferential. They have found a legitimate state purpose in regulating such amorphous things as aesthetics and “public morals.” And courts can be even more deferential in accepting alleged relationships between state purposes and laws. A law outlawing blue matches as a means to preventing forest fires would probably pass constitutional muster. It’d be pointless, but it’d be legal.
So what is the legit. gov. purpose in barring plural marriage? Dunno; it’s government’s burden to say. Arguably government has an interest in social stability, and a two-person marriage would be more stable than a larger marriage. That might be a sufficient argument to pass the “rational basis” test.
But the analysis doesn’t end there. As Cornell notes, “[t]he Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights….” First Amendment rights include freedom of religion. And some religions provide for plural marriages.
Now, what does strict scrutiny entail? According to Cornell, “it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest….” The fact that a law is subject to strict scrutiny does not mean that it is unconstitutional. It just means that courts will be less deferential to the government’s rationales.
Some people argue that plural marriages are associated with spouse abuse. Assuming the government could document such a claim, that may be sufficient grounds for finding a compelling state interest in discriminating against plural marriages. Or it may not. Maybe all forms of marriage are associated with spouse abuse. Maybe, as was argued regarding the spread of AIDS, the abuse would occur regardless of the existence of the plural marriage, making the abuse issue irrelevant to the question of plural marriage. Maybe there are more narrowly-tailored ways to dealing with abuse than to outlaw the practice of plural marriage.
Robert eloquently distinguishes between policies in which numbers are relevant and polices in which they aren’t. Obviously Robert isn’t a lawyer.
If he had been a lawyer, he would have saved his eloquence to the end of the discussion. Instead, he would have kicked off by noting that, at least in theory, the protections of the 14 th amendment do not extend merely to “protected classes,” and that in any event, judges decide whether or not to acknowledge the existence of a new “protected class.” And he would have noted that courts often give claims of religious discrimination heightened scrutiny.
Next, Robert would have noted that the 5 th and 14 th Amendments apply to government discrimination, not discrimination by private parties such as landlords and restauranteurs. Robert might have acknowledged that some forms of discrimination are barred by federal civil rights laws, but that these laws were adopted pursuant to the Commerce Clause, not the 5 th and 14 th amendments.
Regarding the two people applying for a single (public) job, Robert would then have remarked that this provides a fascinating Equal Protection question: May the government discriminate against a job application submitted jointly by two people who were willing to split all the work and compensation? Dunno. As I note above, courts would likely be deferential to governmental arguments about administrative convenience. (“How would we split the health insurance?”) But Robert just hates to let these things go, and so he’d crank this into a hypothetical protected class argument:
What if in the winter the job would require Amp to work after sundown on some Fridays, and this violates Amp’s religious beliefs, but Charles was willing to fill in for Amp on those days? Now the rejection of the job application is the rejection of a reasonable accommodation made to Amp’s religious practices. Robert would note how government doesn’t make people work on Saturday or Sunday, which looks suspiciously like an accommodation of majority religious practices – a topic that Robert is always sensitive to. Ooo, I think we’ve got a case here.
Or what if Amp and Charles, two single dads, apply for a single data-entry job, seeking to split the work and the compensation in order to have more time to be with their respective children? Robert would argue that the traditional 8-5 job was designed around certain traditional sexist assumptions about home life, and that there is no legitimate state purpose in mandating this type of home life. With the sexism angle, we might get intermediate scrutiny from the courts.
Finally, Robert could reinsert his argument supporting discrimination on the basis of numbers when it is relevant, and opposing it when it is not.
But honestly, Robert, that’s enough now.
That’s been my hypothesis. A marriage looks in many respects like a common law partnership. Indeed, lawyers now organize “family limited partnerships” for owning family assets. A business’ organizing documents address – sometimes specifically, but often with ritualized generalities – how people will work together, allocating benefits and burdens. Like wedding vows, no? I expect there is not a Secretary of State anywhere in the USA would refuse to register a limited liability company filed on behalf of a trio of cohabiting lesbians organized for the purpose of “providing domestic services and such other purposes as may from time to time arise.” No, this LLC wouldn’t provide its owners with mutual Social Security Survivor Benefits, etc., but it might provide a forum in which to hash out divorce-type arrangements.
Does “freedom for everyone” mean that parents have the freedom to raise the kids as they see fit, or that the kids are free from the parent’s arbitrary decisions? “Freedom for everyone” is a better bumper sticker than a policy.
As Jefferson initially drafted it, the Declaration of Independence condemned the practice of slavery; Jefferson later stripped out those provision as part of the negotiations to get the Declaration adopted. And the black abolitionist Frederick Douglass opposed efforts to have the 15 th Amendment grant women the right to vote, arguing that this provision would make the amendment unadoptable. For better or worse, I am not aware of any freedom struggle that did not involve pushing someone to the back of the bus.
I think the religion as a protected class argument is fairly weak. The courts have a well established tradition (as I understand it, I am certainly not a lawyer) of distinguishing between central activities of a religion (such as the use of wine for communion) and activities which are merely sanctioned by a religion (such as the use of marijuana in Rastafarianism). While this distinction has also been fairly clearly used to favor mainstream religions and to snub marginal religions, I don’t know of any religion which mandates polygamy as a central religious rite, rather than merely permitting polygamy as religiously lawful. As such, polygamy is not likely to be afforded any special protection by the courts.
Furthermore, no new structures, no fundamental changes in how the law functions, are required to have state recognized SSM. The same is certainly not true for polygamous marriage. I suspect that this difference has significant effects on whether it is constitutional to not have state recognized polygamous marriage. No person is denied access to the institution of marriage by disallowing polygamous marriage, people are merely denied access to an institution that doesn’t exist (legally recognized polygamy). I continue to entirely fail to see how the absence of a legal institution can be considered a denial of equal protection under the law.
I agree with the beyond marriage folks that new state recognized institutions of relationship are desirable and beneficial, and I think we should work to create such institutions. I think some of those institutions might benefit polygamous relationships (even the hated splinter Mormons), and I think that is a good thing. However, I think that anyone who attempted to seek the creation of such institutions by law suit would be very foolish and would stand little chance of success. Demanding access to an existing institution is radically different from demanding the creation of a new institution, or so it seems to me.
What is so threatening about this line of argument, that you can’t simply substantively address it
I have. Repeatedly. What is so endearing to you about this line of argument that you are unwilling to hear anything other than your strawman construction?
Surely there are other lawyers in this discussion?
Yes. There are even some who have been following the whole discussion, and caught the fact that Robert was claiming courts ought to look only to the ‘plain text’ of the Constitution. Said ‘plain text’ contains nothing about scrutiny, rational relationship, legitimate government purposes, etc.; unless you’re Justice Scalia, you can’t really claim to be a strict originalist only some of the time.
The ‘rationally related to a legitimate government purpose’ test is a very, very low bar; as long as the government can come up with a plausible reason and isn’t too hypocritical, the law will be upheld. That’s why people challenging laws against SSM do better attacking those laws on the basis of their prima facie gender classification (heightened scrutiny) than anything to do with sexual orientation (rational relationship).
Is anyone going to reply to my point in post number #11? Short Version: they want “the separation of benefits and recognition from marital status” so (regardless of the rights and wrong of the plan) – to me at least – it seems that bigots are spot on in charactering this as an “end marriage” agenda.
Nik, I disagree. They’re not calling for an end to marriage; they’re calling for marriage to continue, but to no longer be the exclusive route for legal recognition of when adults choose to make their own families.
If I say “we shouldn’t have only Marvel Comics. We should have DC and Marvel Comics,” that’s not calling for the end of Marvel Comics.
I don’t see it. It just seems to me that by calling for “the separation of benefits and recognition from marital status” that rather than wanting marriage not to be the exclusive route for legal recognition, they instead don’t want it to be a route for legal recognition at all.
If they don’t mean that, what do they mean by “separation of benefits and recognition from marital status”? If you can get benefits and recognition from mariage, then surely they’re not separate? And if you can’t, then surely the “end of marriage” folks have a point?
Nik, that sentence you quote can be interpreted that way on its own, but not in the context of the whole statement.
Read as a whole, the only reasonable reading of the BeyondMarraige.org statement is that they are calling for marriage to be one of a number of options. There is no legitimate reading which can interpret them as calling for the legal status of marriage to be eliminated. Here’s a few quotes (emphasis added by me):
Do you really think there’s any plausible interpretation of the above statements in which they are calling for marriage to be eliminated as a legal option, rather than becoming one of multiple options?
However, I think that anyone who attempted to seek the creation of such institutions by law suit would be very foolish and would stand little chance of success. Demanding access to an existing institution is radically different from demanding the creation of a new institution, or so it seems to me.
Isn’t that what happened in Mass.?
No.
Pietro,
To expand a little on Mythago’s answer (although Mythago’s answer is pretty much all that is really needed):
Here is the opening of the majority decision in Goodridge:
Goodridge et al. asked specifically for access to the institution of civil marriage, with all its rights and responsibilities, and the court agreed that, marriage being such a central and important institution, the state could not deny it’s citizens access to the institution on the basis of their partners’ sex.
They did not ask for a new institution, they asked for access to an existing institution. They asked for no change to that institution other than a change to the restriction of who is permitted access to the institution.
It is true that their opponents in the legislature tried to create a new and lesser institution so that they could still be denied access to the institution of marriage. This attempt was rejected by the court, and failed in the legislature. No new institution was created.
Got it?
Problem, Charles, is that opponents of SSM refuse to see the real wrench we made from ‘tradition’ (wives have rights! WTF!), and see allowing a same-sex couple to marry as a horrible change–even though it’s not really a change to the legal structure of marriage.
pietro:
The crucial part you may not know is that the Mass Constitution is different from the U.S. constitution in ways which permit the Goodridge decision. The language on which Goodridge was based is not the same as the U.S. Constitutional language.
“What the outcomes would be from a polygamy or polyandry practiced in the open, under the harsh sunlight of public scrutiny, is a complete unknown. ”
You know, there’s a world outside 21st century USA. If you look at that world, you would know very well what these outcomes will be, and have been. Historically, socially sanctioned and out in the open polygyny has been abusive and exploitative of women and girls. It continues to be today in those countries that sanction it. Polyandry is a different story. I know some polyandrous societies that are relatively egalitarian.
Historically, socially sanctioned and out in the open polygyny has been abusive and exploitative of women and girls.
Are any of those societies places where women and girls aren’t, as a matter of course, abused and exploited, regardless of what type of marriage or family structure they find themselves in?
Kali,
Adding to what Robert just said, historically and cross-culturally, marriage has been an exploitative and abusive institution towards women and girls. We are currently working towards developing an institution of monogamous marriage that is not exploitative and abusive (we only outlawed marital rape nationwide in the past decade, and many of the state laws are still weak).
I definitely oppose legalizing (although I favor decriminalizing) polygyny (or, despite its marginally less abusive history, polyandry), because reinstating gender as a key component of marriage would be a huge step backwards for us. Non-gender specific polygamy, even if it is polygynous in many cases, seems distinctly preferable.
Mythago,
It’s true, and perhaps I should have stated my case slightly differently to an anti like Pietro.
Pietro,
No matter how much of a transformation of marriage you think Goodridge was, Goodridge et al neither asked for nor gained a new and separate institution. They asked that the institution be changed to allow them to be admitted to it. The gender aspect of the entrance requirement was the only change they asked for or received.
I’ve decided not to allow this thread to become a discussion of same-sex marriage or of Goodridge. There are dozens of “Alas” threads that are more suitable for discussing those subjects.
Which is why I haven’t let your more recent comment through, Pietro – it was all about SSM, and had no references at all to the subject matter of this post.
(I’m not saying that people can’t mention these subjects – but they shouldn’t be the main or only subject of your post.)
“Are any of those societies places where women and girls aren’t, as a matter of course, abused and exploited, regardless of what type of marriage or family structure they find themselves in?”
Polygyny is an important component in that matrix of abuse and exploitation. That women and girls are abused in other ways doesn’t change that. Regardless, your claim that “What the outcomes would be from a polygamy or polyandry practiced in the open, under the harsh sunlight of public scrutiny, is a complete unknown” is bunk. Because we do know what polygyny has been like under those conditions. On the other hand, we do not have any data suggesting that gay marriages will harm anyone. On the contrary, gay marriages can theoretically be beneficial because of the many reasons already stated in this thread.
“Non-gender specific polygamy, even if it is polygynous in many cases, seems distinctly preferable.”
I do not think that we (even in the west) have reached a point of gender equality where polygamy will not tilt towards a polygynous, exploitative of women/girls mode in practice, even if it is gender-neutral in theory.
At any rate, polygamy won’t be one man/many women, because that would be discriminatory on the basis of gender. I think even SCOTUS would have a hard time finding a justification for not also allowing polyandry.