I wonder if Mr. Tolley approves of the Nazi Party? I would assume not, and yet…
As Mr. Tolley is probably aware, the Supreme Court has ruled that, when it comes to civil rights, the Nazis have a right to equal treatment under the law. Yet I doubt he feels compelled by this legal fact to treat the Nazi Party with the same respect he’d treat (say) the Democrats or the Republicans.
Ordained ministers of the Church of Jesus Christ, Christian (a racist, white supremacist church) perform weddings just other ministers do, and the resulting marriages are equal in the law to all other marriages. Does Mr. Tolley feel that this legal equality has forced him to respect the CJCC as much as he respects his own church? I somehow doubt it.
When we say Nazis and White Supremacists have equal legal rights, we are not “proclaiming to future generations” that it “really doesn’t matter” if those children become Nazis or not. We are not declaring that the Nazi party and church are just as good as any other party or church. We are not storming into the schools and ripping up textbooks that dis the Nazis.
All we’re saying is that, legally, Nazis and White Supremacists are entitled to the same legal rights as everybody else. Legal equality is not an endorsement, nor is it approval; it’s legal equality, nothing else.
Of course, I am not saying that same-sex couples are Nazis or White Supremacists. (I’m fairly certain that most Nazis and W.S.s oppose SSM). But the Nazis are useful to illustrate the principle. SSM opponents often claim that legal equality is the same thing as endorsement, and that’s simply not true..
What do we proclaim by allowing Britney Spears to marry and divorce in under three days?
Oh, right, that she’s a fine spokeperson for the republican party…
No real comment, I’m just really enjoying this series. It’s a fine rhetorical pistol-whipping you’re giving Mr. Tolley, Amp. Very fine indeed.
—Myca
But I’m sure Nazis would approve of marriage among the Schultzstaffel, so they do indeed approve of some form of SS Marriage. (sorry, bad pun)
Good posts though, Amp.
We are thus proclaiming to future generations of children that it really doesn’t matter to us if they are brought up without either a mother or a father.
What a shallow and insipid statement on the part of Tolley. I don’t care if a child was raised without a mother or a father; I care more about the fact that the kid is treated well, cared for and loved, happy, and secure.
People used to “care” that someone was born out of wedlock; this “caring” led to charming epithets like “bastard” and a whole heap of prejudice and judgements against a child.
What I care about are eradicating the bigoted attitudes of folks that pitch hissy fits over other people’s private lives.
Opponents of same-sex marriage are going to appreciate the concept of freedom in a few years. They’ll be super-glad that their churches have a right to turn same-sex couples away instead of having the law force them to perform them. Thanks, freedom-loving liberals for that freedom of religion thing!
We are thus proclaiming to future generations of children that it really doesn’t matter to us if they are brought up without either a mother or a father.
So, is he saying that having both a mother and a father (present) at all stages of life is so important, that we must create laws that ensure this will always happen? What about children who have a parent die? Will the surviving parent be forced to marry again (heterosexually)? Must it occur within a specific timeframe? This is just for the betterment of the children, of course.
Is just HAVING (and regularly seeing) a mother and a father the essential part? What if a father beats up the mother and his children? If the mother chooses to divorce the father, must she marry again to ensure that the children still have a paternal figure in their lives? Is the alternative that the children must have contact with an abusive father, so that they maintain the male role model?
To me, it seems a problem is not “lack of (either) father or mother [or maternal/paternal influence/role model]” but something that is a problem is: children who have parental figures in their lives who are not legally allowed to be called “parents” because of no SSM! If we really care about kids, really, honestly, isn’t that the answer?
Amp is clearly right from a technical perspective; the fact that you (or government) acknowledge a person’s equality before law is not the same thing as saying that private actors must embrace that person.
But….
What was the real benefit of the Brown v. Bd of Education decision? From a technical perspective, the decision ruled that public schools could not intentionally segregate students based on race. Today public schools are more segregated than ever. But SOCIAL NORMS about racial discrimination have been inalterably changed. Arguably, the real power of the Brown case was to influence social norms, not school segregation.
Thus, when opponents of SSM express concerns about recognizing SSM, they are acknowledging a fact that Amp glosses over: When a state issues marriage licences to SS couples, rightly or wrongly, many people will see this as NORMALIZING SSM.
Yes, it’s true that recognizing the free speech rights of pornographers is not the same thing as making heros of pornographers. But as the movie “People vs. Larry Flynt” illustrates, this was a collateral result. If no one had drawn battle lines around this issue, a state could issue marriage licences just as it issues drivers’ licences, quietly and without any symbolic content. But because battle lines have been drawn on this issue, is will now be hard for government to recognize the mere equality of homosexuals without symbolically signaling approval. Thus, even people who might agree that homosexuals should have equal rights before law may now feel compelled to oppose SSM simply due to the symbolic issues at stake.
So I embrace Amp’s rational argument. If only rationality were the issue….
who cares if the government approves of homosexuality or not? it isn’t like they’re forcing anybody to be gay.
“To me, it seems a problem is not “lack of (either) father or mother [or maternal/paternal influence/role model]” but something that is a problem is: children who have parental figures in their lives who are not legally allowed to be called “parents” because of no SSM! If we really care about kids, really, honestly, isn’t that the answer?”
“who cares if the government approves of homosexuality or not? it isn’t like they’re forcing anybody to be gay.”
The issue that everyone is missing is a basic standard of conduct. Where is the line drawn. During the Loving case — where it was ILLEGAL for a white person to marry a color person which is not the case the current scenario of SS couples who are free to marry without being prosecuted — many OpEd peices were written about the denigration of marriage. The same statments maded then — where does it stop, incest, pedophilia, polygamy, etc. — are being being made now. In the late sixties the polygamists and homosexual revolutionaries adopted similar platforms — NORMALIZE the behavior, make it seem like it is the guy/gal next door and we will make inroads to normalizing homosexuality/ polygamy. The homosexuals who wanted to lower the age of consent also adopted this platform. One of the major initiatives was to usurp the media and beam persons who “act” like homosexuals, polygamists, and lovers of minors into people’s homes. This would desensitize people to these cultures. Leading homosexual groups were the only one’s who were able to gain power in the television and movie industry. Therefore they were the only one’s out of the three groups who were able to NORMALIZE and desensitize Americans. Nevertheless, the “unfounded” arguments made regarding the fallout of Loving have begun to come true. So the question is — where does it stop and why. “Who cares if the government approves of homosexuality?” Substitute polygamy, 13 or 10 or 9 y.o. consent laws, etc. for homosexuality and then answer the question. Most SSM advocates duck the question (which by the way is right out of the “Gay, Lesbian, Bisexual, Transgendered talking points). Two ways to duck the question — 1. “If insestual heterosexuals (insestual homosexuals are already allowed to marry in Massachusettes) want equal rights, then they can fight for it themselves; 2. pedophilia is sick, anyone who would prey on a child . . . consenting adults (which is defined by many governments to be over the age of 16 — why not reduce it, 12 year olds deserve the same rights as 16 year olds, right?
If you are able to answer these questions then you can answer the question as to why the government allowing SSM is a government endorsement of homosexuality. What is the harm of that? I don’t know and I don’t care. By the way I have no dog in this fight. I could care less (sufficiently desensitized) who the hell gets married or not. If some 37 year old man wants to marry my 16 year old son then so be it — as long as they love each other and the 37 year old man has a good irrevocable trust drafted with my son as beneficiary.
There is a world of difference between granting a basic civil right to two consenting adults and legalizing polygamy and child rape.
Your assertions that powerful homosexual groups were able to “desensitize” us come off as paranoid. Yes, that’s why it hasn’t been until the mid nineties that we’ve even had openly gay charecters on TV, and only more recently had television shows about gay people. Oh, the horror! That we actually see gays and lesbians as normal people!
The guy who sexually harrassed me in high school–straight.
The ex boyfriend who stalked and threatened me at work in college–straight.
The guy who harrassed me and followed me on the train home from work–straight.
The guy who refused to take no for an answer when I said I wasn’t interested–straight.
The guy who yelled at me and threatened me when I was at a bar with my friends (whom I hadn’t seen in a while), because I wasn’t “friendly” enough–straight.
That is the behavior that is normalized in popular culture. Guys who don’t take no for an answer are romantic leads–who cares what the woman wants? Guys who make crude comments and sexually harrass women are often portrayed as cute–its us silly females who have a problem, not them. Men who berate and harrass women who don’t respond to them they way they like are only showing us the error of our ways. I mean, give me a break. There doesn’t seem to be a high standard of conduct for straight men–and precious little concern about it. How about we worry about how that crap is normalized, instead of pitching hysterical hissy fits over gays and lesbians marrying?
I have no problem with NORMALIZING gay marriage or homosexuality. It certainly beats normalizing BIGOTRY, DISCRIMINATION and HOMOPHOBIA.
Substitute polygamy, 13 or 10 or 9 y.o. consent laws, etc. for homosexuality and then answer the question.
Such “slippery-slope” arguments are irrelevant. They’d have to make their way through the legislative/judicial process along with everything else; they’d have to rely on their own merits and would face many obstacles that aren’t related to same-sex marriage (such as the concept of power in relationships, why we don’t allow children to do everything adults can do, and the legal consequences of offering marriage benefits to more than two people at a time).
Until they do, they do not need to be considered as a reasonable opposition to same-sex marriage. The line here is clearly drawn to allow SSM and nothing else.
I mean, such logic would require us to make it OK to murder, just because the death penalty is legal.
The homosexuals who wanted to lower the age of consent also adopted this platform…Leading homosexual groups were the only one’s who were able to gain power in the television and movie industry.
Please tell me who belongs to these “leading homosexual groups.” At this point I assume you’re making it up.
I guess nobody has pointed out to JStevenson that many states ALREADY allow children to marry with their parents’ consent–15 in Mississippi, as I recall, and 14 in Utah if the girl is pregnant–and those marriages are perfectly valid in other states.
So if Mississippi or Utah are happy to export child-bride marriages to California, I think they can suck it up if a couple of fortysomething lesbians marry in San Francisco and expect the newlywed room rate in Salt Lake City.
“They’d have to make their way through the legislative/judicial process along with everything else; they’d have to rely on their own merits and would face many obstacles that aren’t related to same-sex marriage (such as the concept of power in relationships, why we don’t allow children to do everything adults can do, and the legal consequences of offering marriage benefits to more than two people at a time).”
In my post I asked for an answer not the typical “duck the question” talking points. The law allows for arguments to be made for similar situations. Just like the SSM crowd uses the “Loving” arguments to ensure ratification of SSM, the polygamist supporters will use the same arguments to support SSM.
What about the next step in the SSM movement — polyamorous relationships. For instance, a female couple want the state to recognize the biological fathers of their two children in their relationship, or the two gay men who want the mother of their children included in their relationship, or the gay couple that are supporting their “sick” older lover — why should these relationships be excluded from the term “marriage”? Several of my gay friends are in these types of relationships and we regularly talk about these issues. Why should these relationships be excluded?
“The line here is clearly drawn to allow SSM and nothing else.” Actually, all relationships are allowed — Lawrence v. Texas ended the last bastion of “Loving” type laws anti relationship laws. The issue now is government recognition/sanctioning of same-sex relationships. The line in 49 States is drawn at marriage between a man and a woman. Actually, in MA a man can marry his son, stepson, nephew. A valid argument can be made that if “two consenting adults” want to marry why should they not be able to. In most states “two consenting adults — one of which was sterile — cannot marry if they are father – daughter, uncle – neice. Why should this not be allowed? If your argument is about power, the law excludes uncle-neice relationships even if the neice is older than the uncle or the two are the same age and equals for all intents and purposes. Why should this be disallowed and family members of the same-sex allowed to marry?
Again, I have no dog in this fight. It is just interesting to see the posts that state “absurd” or “shallow and insipid statement” without working through the argument on the other side. It is interesting how the same arguments made by those who are anti-SSM are made by those who are Pro-SSM when they are arguing against the government approving other types of relationships. That is of course — “absurd”.
the polygamist supporters will use the same arguments to support SSM
Then they, and you, have not really read Loving. See, Loving held that the law was unconstitutional because it was race-based discrimination. State courts (like Hawaii’s) held that laws banning SSM were unconstitutional because they were gender-discriminatory.
On what basis is two-person marriage discriminatory?
Don’t say “religion,” because Employment Division v. Smith knocked that out of the water (thank you, Scalia). Incest would be a ‘compelling reason’ overriding Constitutional guarantees of privacy.
n my post I asked for an answer not the typical “duck the question” talking points.
I’m not ducking the question at all; the question is completely invalid as it relates to same-sex marriage. We do not ban things based on what might happen.
Basically, I believe there is no good reason to ban same-sex marriage–and I don’t think “all this other stuff might happen” is a good reason. I do believe there are good reasons to ban other kinds of marriage. And I wouldn’t mind discusssing those reasons on their own merits. But since you seem to be interested in using my opinions against same-sex marriage, opinions that, as I’ve said, would be irrelevant, I’d rather not.
Actually, all relationships are allowed–Lawrence v. Texas ended the last bastion of “Loving” type laws anti relationship laws.
Yes, you’re right. I meant to say, “The line here is clearly drawn to require government recognition of SSM and nothing else.”
Again, I have no dog in this fight.
I respectfully doubt it. Anyone who talks about “leading homosexual groups” taking over the airwaves probably has a pretty good idea of whether or not we should allow same-sex marriage.
Or perhaps I should just conclude that we should recognize all kinds of marriage no matter what and let you do the arguing for me, jstevenson.
“Basically, I believe there is no good reason to ban same-sex marriage–and I don’t think “all this other stuff might happen” is a good reason.”
My point was that “all this other stuff might happen” was the same argument made by the lower courts in “Loving”. However, in “Loving” and “Lawrence” the courts struggled with the criminal sanctioning of private relationships which is completely unconstitutional. However in the “Biehl” (sp?) case in Hawaii, the court couched the equal protection argument as sex discrimination. Which is a strong argument for State Constitutional EP claims. The problem nonetheless is the rational step to allowing incestual relationships between brothers, fathers, uncles, etc. (of course the leap to beastiality is ludicrous and I will not indulge in the anti-SSM craziness of the Rel. Reich). In addition, the States interest in disallowing bigamy is now suspect — based on many men without women to tame their sexual aggression — bigamy disallows a man/woman to marry if they already have a living husband/wife (most laws are written with an “or” instead of “/”). This disallows all “marital” associations greater than two people.
Given the States “compelling interest” of ensuring each male has the opportunity to marry the States interest fails in disallowing bigamy in same-sex marriage. For example, presuming the population is split 50-50 (the same presumption made in upholding anti bigamy laws) if 25% of eligible women marry, then 25% of eligible men would be without partners. Another factor that could be considered is that 25% of men would marry other men. Because one cannot marry a half a person, someone would be out a relationship. The same argument against polygamy.
Nevertheless, allowing polyamorous relationships would ensure that everyone had the opportunity to be in a committed relationship — such as two men who want to include the mother of their children in their marriage would be allowed to do so. This would protect the child’s inheritance rights, the health care of all the parties involved in the child’s upbringing and many other hosts of benefits. Therefore, as you stated “I believe there is no good reason to ban [polyamorous] marriage”.
Further, what is the compelling state interest that allows “gender discrimination” in regards to incest. MA family code allows women and men to marry immediate family members of the same sex, but not immediate family members of opposite sex. The State’s interest in making the distinction cannot be based on BITC standard because, even if one or both of the “parties are infertile or do not desire to have children, they are still [not] allowed to marry”.
P.S. I do not believe the “government” (meaning administrative and legislative) should regulate marriage period. People should be able to enter into their own partnerships without the interference of the government. I am fully capable of determining for myself what relationships I want to enter into and I am fully capable of passing my views and morals to my children without the help of the government. So, regardless of my feelings of SSM, I do not care if the government allows it or not. Hence — no dog in this fight.
Yeah, the whole “slippery slope” argument….
I see some merit in it. Under “equal protection” jurisprudence, courts scrutinize the relationship between a regulatory classification and a legitimate state purpose. The MA Supreme Judicial Ct. could not find any legitimate state purpose advanced by allocating the benefits of state-sanctioned marriage on the basis of gender. And if we’re now going to start regulating on the basis of legitimate state purpose and not on the basis of tradition/religion/prejudice/whathaveyou, then there is some risk that laws will have to stop discriminating against other household arrangements as well.
Of course, this thought alarms some people. But the MA court didn’t put us on a slippery slope; it merely acknowledged that we stepped onto it long ago when we started regulating marriage. A rational response might be to get off the slippery slope and stop regulating marriage altogether. There are downsides to this proposal, too. But the Equal Protection clause seems to limit our options to two: don’t regulate, or regulate rationally.
Arguably, marriage law could gradually be recognized as a species of corporate/contract law – the regulation of people’s consensual relationships to one another. It’s already happening. Couples enter pre- nuptial and post-nuptial agreements, and estate planners organize “living trusts” and “family limited partnerships.” I’d be THRILLED to see family law rationalized, with the collection of legal benefits and obligations codified, all justified on the basis of legitimate state interests, and private institutions (churches, etc.) free to celebrate their own parallel ceremonies as well. But I’m not holding my breath.
Finally:
>>Again, I have no dog in this fight.
>I respectfully doubt it.
Generally I see no point in speculating on, or asserting, personal motive. The merit of a message is independent of the sincerity of the messenger. Where motive is concerned, I say don’t ask, don’t tell.
That said, let me entertain some conjecture about motive: I wouldn’t be surprised to hear that some people resist discussing the “slippery slope” argument out of fear that it would fuel an emotional backlash. After all, the word “miscegenation” (interracial marriage) entered our language in an effort to fuel such a backlash. It was not coined by abolitionists, but by slaveowners trying to appeal to the fears of northerners. Now, how should an abolitionist have responded to the concerns of northerners about miscegenation? “Yes, we support interracial marriage; we think it’s a wonderful thing that people who love each other can get married, regardless of race” That’s the right response in the year 2004. And I’d say it was the appropriate response in the year 1864; but it would not have helped the abolitionist cause during the racially-stratified 1800s.
I’m appalled that people would use popular prejudice against interracial marriage as a means of stoking opposition to abolition, and I’m appalled that people would use popular prejudice against other forms of voluntary association as a means of stoking opposition to SSM. Appalled, but not surprised. Similarly, I would not be surprised to learn that SSM advocates shun association with anything that might stigmatize their cause, just as abolitionists disavowed miscegenation. No one wants to be a tool for intolerance. Well, almost no one.
nobody.really — Bravo, well put. Many SSM proponents dismiss the slippery-slope theory and ignore its reality. Whether or not we “slip” back to the Greek and Roman societal mores is not my issue. Nevertheless, it is just as disingenuous of SSM proponents to dismiss the slippery slope argument as it is for SSM opponents to state that beastiality is rationally at the end of the slide.
Both sides of the issue balk when the argument goes to a logical end. For instance, when proponents of SSM marriage state that it is better for a child to be with two parents who love each other than no one at all — SSM opponents say “that is ridiculous” a baseless comeback. On the other hand, when opponents of SSM marriage validly state the issues of polyamorous and incestual relationships, answers are not given, i.e. that is not the issue or that is “ridiculous”. I agree that perhaps the issue is that no one wants to be a tool for intolerance or the basis for moral standards (depending on which side of the spectrum you are on).
I also believe that marriage should be out of the picture. Business of relationships, their benefits and responsibilities, should only be regulated to the extent of providing a “model for agreements”, a base from which to work, like the Uniform Partnership Act or Statutory Wills and Powers of Attorney. These enactments would provide civil unions with a model to build their agreements upon and in the absence of any agreement a standard from which everyone knows their rights and responsibilities. But, of course the government would be making a standard — however each person would be free to modify that standard through a written agreement.
Accusations of bigotry, dishonesty, and insanity. Earnest reference to Nazis and to heterosexual wife-beaters. Paranoid panting about devious conspiracies and scaremongering about the snatching away of children.
The drafty detour down the pro-SSM slippery slope in the comments was a nice touch. Almost made believable the frothy anti-male screed.
This is a comedy blog, right? Self-parody, surely.
The levels of irony in your post are amazing–suggesting that this blog is a parody in a post that is, in itself, clearly a parody of uptight men who think that a woman who criticizes even one man must hate all men.
Bravo!
answers are not given
Answers have been given, jstevenson, explaining why the “slippery slope” is not actually there. I’m not sure why you’re refusing to hear those answers.
Amanda, the anti-male screed that appeared earlier in the comments did not aim at “even one man”. Another comment confessed envisioning one man as “a bunch of men” and the argument as a “temper tantrum”. Similar to the “hystrical hissy fit” imagined in the screed. This, in aid of attacking the arguments of the other side logically, as one fawning comment said.
Where you saw “levels of irony”, there was a single plane reflected in the mirror.
Frottles –
So you’re saying that if someone criticizes the way men are shown acting in popular culture (which was the main point of Sheezlebub’s post), that amounts to an “anti-male screed?” That doesn’t seem very logical; she was criticizing the way screenwriters depict men, and also the way specific men she’s known have acted. Nothing in her post was a criticism of all men.
* * *
Your earlier post wasn’t very logical, either. For instance, you pointed out that I made “reference to Nazis and to heterosexual wife-beaters” in my posts. If I had said that people who opposed SSM are equivilent to Nazis and wife-beaters, then you’d have a point – that would be quite stupid. But that’s not even remotely what I said. Instead, I was trying to appeal to a common morality – whether folks are pro- or anti-SSM, they can all agree that Nazis and wife-beaters are morally unacceptable. I then tried to use that common ground to make a point about the current debate. What’s wrong with that?
As far as I can tell, you’re saying that to mention free speech issues and nazis, or wife-beaters, in a non-ironic fashion is inherantly enough to prove that I’m wrong or ridiculous. But you don’t provide any logical argument explaining why you think this is so. Until you support your views with arguments, your post is nothing more than saying “you’re stupid!”
On the whole, your post seems more about expressing your general contempt for me and/or this website than about trying to put together a logical argument. That’s too bad. Reasoned, logical arguments are fun; generalized contempt, on the other hand, is very tedious. This is the internet, Frottles; people who express their contempt of total strangers but can’t put together a logical rebuttal are a dime a thousand here.
If my arguments are so obviously flawed, then refute them logically, in a respectful manner; I promise to respond in kind. If you’re not willing to do that, then please go away.
jtstevenson,
You have repeatedly stated that same sex incestuous marriages are permitted in MA. What is your basis for this claim?
Ampersand,
I rather suspect you are not stupid. You have provided thoughtful analysis in other posts. I’ve often quietly agreed with points made. My remarks were about this specific series of three posts and the noted comments that followed.
If you provided a logical argument, it was obscured by generalized contempt for the other side of a disagreement. And, as you noted, my observations did not address the argument, such as it might be, that was originally presented. If making observations is considered bad form, I hadn’t noticed.
Venting, as you and others appear to have done in this instance, is no crime, of course, and might even be cathartic and helpful for some, but it is poor argumentation. It has the look and feel of propaganda for the rank and file.
I’ll reread your three posts and if there is an argument that merits rebuttal, I’d be pleased to answer your invitation to do so.
Hm, I didn’t find Amp’s argument at all obscure. It was pretty simple, actually: we allow people whose lifestyles we find repugnant to have children and raise those children in their belief system, and by doing so, we are in no way saying to future generations, “What those people think is OK and we agree with it.”
Amp used the example of Neo-Nazis because pretty much all of us would agree that their beliefs are repugnant and we would never, ever want our kids to think we have the slightest respect for them.
I’m sticking to my belief that “slippery slope” questions are irrelevant. I don’t see what purpose they serve other than to discredit same-sex marriage, and since they logically can’t do that–legalizing same-sex marriage does not include the legalization of anything other than same-sex marriage–I don’t see how this position could possibly be disingenuous.
Why does it matter how I feel about polygamous marriage if I support SSM? The answer, I assume, is, “Because if we legalize SSM, we might legalize polygamous marriage.” But that doesn’t answer my question; why should the “might”s matter in the first place? To paraphrase nobody, the merit of the argument is independent of whatever else “might” occur.
In other words, who cares if as soon as we legalize SSM, somebody sues for polygamous marriage? Does that mean we shouldn’t have legalized SSM in the first place? Of course not.
Every single law that we pass or change is a precedent. Why is it that we don’t worry about the “slippery slope” when it comes to banning smoking? Passing tax cuts? Resolving to go to war? Seeing as we don’t–can’t–consider all the other things that might happen when it comes to these issues, I can’t see how it makes sense to consider them in the case of SSM.
I acknowledge that the legalization of SSM will be called upon in attempts to legalize other stuff. However, no one needs to consider the merits of that other stuff in order to support SSM.
On the other hand, when opponents of SSM marriage validly state the issues of polyamorous and incestual relationships, answers are not given, i.e. that is not the issue or that is “ridiculous”.
As I’ve said, I’d be glad to talk about my opinions regarding other kinds of marriages. But to use those opinions as reasons not to support SSM is unreasonable.
Just for the hell of it, let’s say I oppose polygamous (polyamorous? I can never keep the terminology straight) marriage because I believe that the legal burden of supplying marriage benefits to more than two people at the same time would outweigh any advantages it might have.
How does this relate in any way to my position on SSM? (Note: I’m not looking for a rebuttal of my hypothetical beliefs; I want to know what they have to do with SSM.)
Or let’s say I oppose incestual marriage because I believe there’s a different relationship dynamic at work between a parent and child than there is between two consenting adults, and that there’s a cross-cultural taboo against it. Or that I oppose adult-child marriage because I don’t think children are mature enough to make this kind of decision. What are the parallels to my position on SSM?
Or let’s say I support poly marriage, incestual marriage, or adult-child marriage because I believe anyone should be able to marry anyone they want. How does this invalidate my position on SSM?
Charles Post:
“You have repeatedly stated that same sex incestuous marriages are permitted in MA. What is your basis for this claim?”
Chapter 207 section 2 of MA Domestic Relations Code prohibits the “marriage of Woman to Certain Relatives.”
No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.
Pursuant to the law that has recently taken effect in MA a woman may marry, inter alia, her stepfather (father and grandfather is a ludicrous proposition) or her brother. Under section 1 a father can marry his stepson, nephew or, oddly enough, his daughter-in-law.
Therefore, homosexual incest is allowed in MA. My question is what is the basis for allowing this type of relationship and not that of a post menopausal woman to marry her stepson or nephew?
“Every single law that we pass or change is a precedent. Why is it that we don’t worry about the “slippery slope” when it comes to banning smoking? Passing tax cuts? Resolving to go to war? Seeing as we don’t–can’t–consider all the other things that might happen when it comes to these issues, I can’t see how it makes sense to consider them in the case of SSM.”
We do not consider all of the possibilities, but we do consider many of them. The Congressional Record is ripe with speeches and debates by our national representatives regarding the possible policy implications and future ramifications of each legislation. We also make slippery slope determinations in our everyday life (for anyone who takes responsibility for their actions). If I don’t pay this bill this month, people may think that I am irresponsible, my credit rating will decrease and other ramifications of this one action.
To ignore the possible ramifications of legislative action would be disingenous to the legislative process.
So the other 49 states have been happily toodling along recognizing father-niece Massachusetts marriages, so to suddenly be shocked, shocked that a man might sue to marry his nephew is silly. We ALREADY have marriages in some states that others consider incest.
Thus, the answer to “Well, what about incestuous marriage?” is that nobody objected to it until it sounded like a good excuse to beat up on the gays with.
and not that of a post menopausal woman to marry her stepson or nephew
As has been pointed out, the States have deliberately moved away from tying fertility to marriage, so inquiring into a woman’s menopausal status is a no-no.
If I gave the impression that the arguments used by pro-SSM crowd in invalidating other forms of relationships were not valid arguments, it was incorrect. My point was that it was disingenuous for those who are pro-SSM to use the same arguments that are used by the anti-SSM crowd in arguing against polygamous marriage or incestual relationsihps (historically multi-heterosexual marriage). When the same arguments are used against SSM it they are deemed “ludicrous”, “ridiculous” and “facist”. The question, as alluded to in “Baehr v. Lewin” (thank you mythago), why should the courts move the “line” to same-sex marriage and not to incestual marriage (as in marriage of two related consenting adults not of the same blood-line)?
The answer to that question has been: “I don’t see what purpose they [slippery-slope arguments] serve”; “There is a world of difference between granting a basic civil right to two consenting adults and legalizing polygamy and child rape.”; etc.
If SSM is to win popular support it must do so on stronger grounds than “marriage is already screwed up”, “I don’t care what polygamist want”, etc. There are good positions out there, but there must be a stronger reason that the line should not move further away from historical precedence. For instance, Hestia’s argument that society cannot support polyamorous relationships, but the case against homosexual incest is weak if not non-existent.
The real popular-support, warm-fuzzy reason is “They love each other. They’re grownups. Look how happy they are. How can you deny them this?”
The legal reason is that discrimination in marriage on the basis of gender is a serious Constitutional problem, whereas marriage on the basis of ‘number of people’ or on relationship isn’t.
The precedence line is that it has moved so far that SSM is a tiny blip, hardly a move at all.
I think pointing out there are worse crimes is a good approach: before you start picking on the nice lesbian couple, what about child brides in Utah? Or incest in Massachusetts? Shouldn’t we concentrate our anti-SSM resources there instead?
“So the other 49 states have been happily toodling along recognizing father-niece Massachusetts marriages, so to suddenly be shocked, shocked that a man might sue to marry his nephew is silly. We ALREADY have marriages in some states that others consider incest.”
I don’t think any state allows uncle-niece marriages. Section 1 of the MA code does not allow it either, however it does allow a man to marry his nephew — without filing a lawsuit.
I agree that we do have marriages in other states that others consider incest, however those marriages are not always considered valid in every State — despite the Full Faith and Credit Clause, some States do not recognize these marriages if performed in other States.
Mythago: “The legal reason is that discrimination in marriage on the basis of gender is a serious Constitutional problem, whereas marriage on the basis of ‘number of people’ or on relationship isn’t.”
Six days and 30 posts later — the argument for SSM is well put. Yes it has been stated that discrimination against gender is a Constitutional failure, however, the argument was diluted with statements of “irrational”, “not go there”, “child rape”, etc. Which turn the moderate populace away from support of the issue.
however it does allow a man to marry his nephew
I don’t think it does. Because the current law is sex-specific, you have an excellent argument that it should be interpreted in a gender-inclusive manner, i.e. since women can’t marry their nephews, neither can men. The only other possible interpretation is that since the law does not forbid men from marrying their nephews, women can now marry their nephews too.
IOW, the only reason the law said “women can’t marry nephews” rather than “men and women…” was that, at the time, it was impossible for a man to marry ANY male relative. Now that it is, both provisions will be interpreted in gender-inclusive terms, which fits with the intent of the statute.
Which states have refused to recognize marriages, valid in another state, due to incest laws in the refusing state?
Not to pick on MA, but it does not recognize marriages solemnized in other states in contravention of its laws. Ch. 207 Sec. 10. However, California has on the other hand, long ago judicially held that marriages performed in other States are valid even if they are invalid in California. See McDonald v McDonald, 58 P2d 163 (1936) and Cal.Fam Code 308.
These two camps of thought still depend on State jurisdiction.
State jurisdiction is trumped by the “full faith and credit” clause of the U.S. Constitution. That aside, which states have actually refused to recognize marriages that would be incestuous in the home state, say, first-cousin marriages?
Hestia had asked about “who are leading homosexual groups”. In 1972 there was a covention of lobbists representing “homosexual issues”. The Convention voted on and approved a well known and respected national agenda. It can be found here: “www.rslevinson.com/gaylesissues/features/collect/onetime/bl_platform1972.htm” which is not the only link. Also, you will find gay and lesbian milestones in the media at this link “www.religioustolerance.org/homosexu6.htm”.
MA would refuse to recognize incetuous marriages that were solemnized out of state. Again, only if MA had “original jurisdiction” over the parties or a party to the marriage. Otherwise known as domiciles of MA. However, I have not found a State, pre-DOMA, that would not allow a foreign incestuous marriage which would be void under its law.
jstevenson, I’m coming to the conclusion that you’re trying to tear down a pro-SSM argument that simply doesn’t exist, except maybe among a very few people. Almost all SSM proponents cite mythago’s reasoning. Could you point me towards some pro-SSM articles or posts that say the idea that SSM might lead to other kinds of marriage is ridiculous? What’s “ludicrous” and “irrational” is the assumption that what one says “might” happen should dictate how we should act. I think that’s what most pro-SSM folks mean when they use these kinds of words.
When you say, “the argument was diluted with statements of ‘irrational’, ‘not go there’, ‘child rape’, etc.,” it seems to me that you’re referring to the anti-SSM arguments. They’re the ones saying that SSM will lead “there,” when there is clearly no evidence that it will. Of course pro-SSM folks will call their bluff on that; it’s our responsibility, really.
I’ve been interpreting your posts as, “SSM proponents must declare whether or not they support other kinds of marriage, and if they’re not willing to do so, they’re being disingenuous.” Are you still speaking from this position? It sounds like you’ve changed your mind and are now saying that SSM proponents must only acknowledge that legal SSM might influence other laws, and I think most of us do.
Why should the courts move the “line” to same-sex marriage and not to incestual marriage[?]
This question means, “We should not change the status quo,” or else it means, “If we allow SSM, we must also allow other kinds of marriage.” Neither implication makes much sense to me.
For instance, Hestia’s argument that society cannot support polyamorous relationships, but the case against homosexual incest is weak if not non-existent.
OK, let’s say that there is no case against incestual marriage, as you suggest. Under your reasoning, that means we should legalize SSM, so it’s easier to make other kinds of marriage possible. Or let’s say you’re wrong, and there is a strong case against it. That means we can legalize SSM without affecting other kinds of marriage.
So either way, SSM proponents’ position is the correct one. Why, then, must we address “slippery slope” arguments, if the outcome supports our opinion either way?
Again, only if MA had “original jurisdiction” over the parties or a party to the marriage.
Sure. But nobody’s saying that a state must recognize its citizens violating its laws; the problem is that states are saying they will not recognize, say, a lifelong Massachusetts same-sex couple that marries in Massachusetts and then moves to the refusing State. Whereas currently, a Massachusetts aunt-nephew couple, or a Utah couple that married legally when the wife was 15 and the husband 50, can move to any other state and be welcomed with open arms.
In 1972 there was a covention of lobbists representing “homosexual issues”.
In 1972? How is this still relevant? Did you notice that virtually none of what they wanted actually happened? And that none of it had to do with Hollywood? And, in case you weren’t aware, “milestones” does not mean “agenda.” Society changes, you know. It doesn’t require a concerted effort on any group’s part. In fact, usually the media caters to the majority audience.
So what was your point, again?
“I’ve been interpreting your posts as, “SSM proponents must declare whether or not they support other kinds of marriage, and if they’re not willing to do so, they’re being disingenuous.” Are you still speaking from this position? It sounds like you’ve changed your mind and are now saying that SSM proponents must only acknowledge that legal SSM might influence other laws, and I think most of us do.”
Initially I took no position. I merely intended to point out that the slippery slope points are valid and should be attacked. As evidenced today by the debate we are currently having, the slippery slope forcasts of proponents of miscegenation laws were correct. What is important to acknowlege is that what “might” happen SHOULD dictate how we should act.” Given probabilities of a possible outcome should influence – not dictate – our public policy. The possibility that children would be exploited dictate public policy for a minimum age of marriage. The possibility that a child “might” be deformed influence our public policy against incest.
“So either way, SSM proponents’ position is the correct one. Why, then, must we address “slippery slope” arguments, if the outcome supports our opinion either way?”
I am not saying that if someone is pro SSM then they are for all other types of marriage (that would be ludicrous). What I am saying is that a strong argument for SSM should not discount the possible ramifications of moving the line from where it is currently drawn and must recognize the clear historical possibilities of other relationships again changing the “legal” ramifications of marriage.
As I said before, I don’t think the government should involve itself in the marriage business anyway. However, I do believe that if the government is going to sponser a major cultural change the possible and probable ramifications of such change should not be ignored. The possible and probable ramifications of a cultural change were debated in Loving, Brown, ERA, and other major cultural revolutions, what “might” happen was argued at length. In the end it was found that the risks to society of the “might’s” were outweighed by the benefits of the legislated cultural change. Nevertheless, the might’s were not ignored nor was the consideration of them described as irrational and irrelevant.
Mythago: I agree, I have only found vague references in the A.L.R. to refusal to accept foreign marriages. According to the A.L.R. regarding “Loving” type laws, there are three areas where the State has refused to give “full faith and credit” to another State’s public acts in regards to marriage. 1) polygamy, 2) incest “in general notions of Christiandom”, 3) where public policy dictates. Otherwise, the state of the marriage will dictate. Nevertheless, absent Federal law the States will give full faith and credit to most of the public acts of other States. In the case of DOMA — it is a federal law which Constitutionally Congress may pass, provided it does not violate another provision of the Constitution.
It will be interesting to watch. Whatever, the outcome there “might” be major unintended precedents set that could damage the cause of either side of the SSM issue.
what “might” happen was argued at length
And, as with SSM, so much of the “might” arguments were baseless and irrational. It’s worth noting that we never did get a Federal ERA.
“as with SSM, so much of the “might” arguments were baseless and irrational.”
I am sorry, but that prompts me to ask again — Is it irrational to consider the issue of why two consenting adults, who are stepbrother-stepsister cannot marry when a uncle-nephew can? What about a prohibited uncle-nephew marriage, if two people who love each other can marry — there is no compelling reason to disallow this marriage.
It’s not irrational to consider the issue. It’s irrational to insist that if we allow SSM, we must inevitably hit a slippery slope leading to incest, polygamy and man-on-dog. With the ERA we got arguments that gays would marry (hmmm….), that marriages would dissolve because the threat of alimony was what kept them together, and so on. With interracial marriage we got arguments about race-mixing that are just embarassing to recount.
As far as incest goes, what is there about same-sex marriage that would prompt a new legal analysis of why two step-siblings can’t marry? Presumably there are already reasons those laws exist (or don’t). Why should saying marriage is sex-discriminatory change that?
Please correct me if I am wrong. The gender discrimination argument was advanced on the theory that it is discriminatory if Bob cannot marry Jim but Sally, Jen and Barb could marry Jim. The sole basis of that denial is public policy. Bob is now allowed to marry Jim. There is no public policy argument to deny sara (Helen’s stepdaughter) from marrying Helen (the incest public policy argument of societal burden from children with a shallow gene pool is inapplicable in this instance). Nevertheless, most state laws do not disallow this type of relationship anyway. It would be gender discrimination under Behr analysis to disallow Harry from marrying his stepdaughter just because he happens to have the same genitalia.
“Public policy” is not an argument; you have to say what that policy is.
What is important to acknowlege is that what “might” happen SHOULD [influence] how we should act.
No, it shouldn’t. Not when there’s absolutely no evidence that the “mights” will happen as a result of SSM. And especially not when the “mights” have to go through the legislative and judicial process themselves.
The possibility that children would be exploited dictate public policy for a minimum age of marriage. The possibility that a child “might” be deformed influence our public policy against incest.
Surely you understand that the exploitation of children would be a direct result of legalizing adult-child marriage, and the deformation of children would be a direct result of legalizing incestual marriage. Nothing else beyond the legalization of those particular marriages needs to happen in order for children to be harmed.
Other kinds of marriage, however, would NOT be a direct result of legalizing SSM. If you make it OK for men to marry men and women to marry women, there is no chance that adults will be able to marry children–unless you pass laws legalizing these kinds of marriages, too. The only way SSM affects those laws is…not at all. If you disagree, please explain why. How will legalizing SSM make it easier to legalize other kinds of marriage?
It would be gender discrimination under Behr analysis to disallow Harry from marrying his stepdaughter just because he happens to have the same genitalia.
(I assume you mean “stepson.”) Frankly, I can’t think of any reason that an adult shouldn’t be able to marry his or her adult used-to-be-stepchild. And I wasn’t aware that such a marriage would be illegal anywhere. Please point out the law that says, “You can’t marry the unrelated-to-you child of your former spouse.”
mythago brings up a good question: What exactly were the “mights” in past rulings, and which ones have actually taken place? I’ve looked through your posts, jstevenson, and unless I missed something (I may have), I can’t see that you’ve provided any substance for your claim that past “mights” have come to pass.
Also, if they exist, do we acknowledge any of them to be bad decisions? If not, then we should absolutely legalize SSM: It “might” open the door to equal treatment that isn’t available now.
Hestia:
“Other kinds of marriage, however, would NOT be a direct result of legalizing SSM.”
Incestual marriages will are a direct result of SSM marriage. Whether you like it or not there are people out there that would love to marry their nephew/daughter/mother. As of now the only laws preventing such a union is the prohibition against SSM.
As of now, in MA, an uncle can marry his nephew (of consenting age). Disallowing him to marry his neice (of consenting age) is discriminatory based on gender. Legal precedent ruling that SSM in Ma is gender discrimination per se, also makes this gender discrimination per se. A law suit would not have to be filed based on the holding of the MA high court. The trial court would be derelict in finding against the petitioner in such a case.
Nevertheless, incestual SSM marriage is legal without any judicial or legislative rangling. It would certainly be unconstitutional under the MA courts for the legislature to prevent such a union (no compelling interest).
As a libertarian, I am for equal rights of people who engage in homosexual acts. To say there is nothing that would happen betrays sound reasoning, which entails careful consideration of the risks of various courses of action. If the risks involved are outweighed by the rewards, great. But to ignore the risks as irrelevant or irrational is dangerous. But, anyone who radically believes in an issue generally loses all reasoning and forsight of the ramifications of their cause. That goes for radicals on both sides of the same-sex marriage issue.
Incestual marriages will are a direct result of SSM marriage.
Actually, SSM marriage may have the effect of preventing incestuous marriages that are now permitted. The people of Massachusetts may suddenly notice that they have been allowing Aunt to marry Nephew, and will expand the law (You can’t marry your siblings’ children) rather than contract it (Instead of only marrying your siblings’ opposite-sex children, you can marry any of them).
They actually do not allow Aunt to marry nephew, but Aunt can marry neice. Under an equal gender rights argument this is discrimination. I can marry my niece, but not my nephew, just because of my gender. Of course, there is a compelling state interest in preventing deformed births, which are a reasonable direct consequence of allowing heterosexual incestual marriage. That does not obviate the fact that SSM would directly result in incestuous marriage.
They actually do not allow Aunt to marry nephew, but Aunt can marry neice.
I’ll try to explain this again.
A law forbidding Aunt from marrying Nephew, but permitting her to marry Niece, is gender-discriminatory and likely unconstitutional. To fix this problem, the law can be changed in one of two ways.
1) Abolish all prohibitions against incestuous marriage.
2) Expand the law to be gender-neutral, i.e. “Aunts and uncles may not marry their nephews or nieces.”
I think #2 is about a scrillion times more likely than #1.
On the uncle/nephey marriage issue: I’m assuming the current problem arises because the original statue defined incest, and called out who cannot marry whom. The legislators did not bother to mention that uncles could not marry nephews because, prior to the Superior court ruling, this wasn’t possible anyway, right?
Don’t statues affected by a Supreme or Superior court rulling nearly always rewritten after major constitutional rulings to account for bizarre unintended results? Isn’t it likely the state will rewrite include all classes of incestual marriages? And the Superior court would uphold the new statutes?
Aha. I see. You’re saying that since the law explicitly states that an aunt may not marry a nephew, but it doesn’t explicitly state that an aunt may not marry a niece, then SSM will automatically lead to incestual marriage, and already has in MA. Of course you’re assuming that if two related individuals wanted to marry, they’d just be able to do so, when in reality a justice would probably refuse to marry them and thus force the issue into the court system anyhow, so it’s such a highly unlikely situation that I shouldn’t even be giving it any creedence.
But.
A federal law legalizing SSM might very well include a clause that says something like, “Applies to non-relatives only,” just as the current marriage law says, “Applies to a man and a woman only.” (If it did, then we would have a federal SSM law that allows gays and lesbians to marry, trumps MA’s laws, and solves the incestual-marriage problem all at once–so clearly we must legalize SSM.)
In fact, Congress might pass a law banning incestual marriage before they pass a law legalizing SSM–if you recognize the potential problems involved, surely the anti-SSM politicans know about it.
And hey, MA has, according to you, already legalized (some kinds of) incestual marriage, so clearly it wasn’t a problem for them, since their ruling implies that the advantages of SSM outweigh the risks involved. As the world hasn’t fallen apart, I stick to my assertation that it isn’t SSM’s problem and doesn’t need to be considered.
I charge you with inventing an extremely improbable hypothetical situation. Well, here’s a few of my own that perhaps you can address: Legalizing SSM would be legalizing marriage between two men or two women–but it doesn’t say those men and women have to be from earth! Or, for that matter, alive! Or even real! We might have people marrying corpses and aliens and fictional characters all over the place! What about identical twins? Twins share DNA. Humans have unique DNA. Therefore, it might legalize polygamous marriage to twins. Hey, you have to consider it all, right?
Seriously, Mythago’s idea seems the most likely, and sanest, one: “The people of Massachusetts may suddenly notice that they have been allowing Aunt to marry Nephew, and will expand the law…rather than contract it.”
And what lucia said.
Apart from this largely academic discussion, I am sure they will attempt to re-write the statutes. However, as a legislative assistant, I would advise the legislature option 2 would not survive Constitutional scrutiny based on based on the Goodridge case and the Opinions of the Justices to the Senate, 440 Mass. 1201 (2004).
In Goodridge the Court considered three state interests proposed by the Attorney General. The first two were disposed of by the Court on the basis that heterosexual couples may not be able to procreate or may choose not to procreate, which does not limit their ability to marry. The third issue was disposed of by stating the law does not distinguish public financial support of opposite-sex couples on the basis whether they are financially stable. Based on the interests put forth by the State the Court said that the law did not even meet a rational basis standard.
The legislature could not ban same-sex incestuous marriage of two consenting adults. The Court in Goodridge stated that “the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare.” (Those interests are stated above). The interests proposed by the State do not meet a rational basis standard that would dictate them taking away the right to same-sex marriage of related persons.
I believe that a statute banning same-sex incestuous marriages does meet the rational basis standard. It’s a matter of, for lack of the correct term, power dynamics, the same reason a step-parent is prohibited from marrying a step-child.
The legislature could not ban same-sex incestuous marriage of two consenting adults.
Yes, they could. Goodridge does not eliminate current consanguinuity laws in MA, which already dictate that marriage to relatives is void. Currently they only apply to opposite-sex marriage because that’s all that exists; if SSM were to be legalized, it would change the definition of marriage instead of adding a new “kind” of marriage, so the consanguinuity laws would cover it, too.
It’s the biological relationship between, not the genders of, the participants, that’s the problem when it comes to incestual marriage, and legalizing SSM would not change that relationship. So the court system would almost certainly say that the reason an aunt may not marry a nephew is because he is the child of her sibling, and that same reasoning would invalidate incestual same-sex marriages, too.
The interests proposed by the State do not meet a rational basis standard
Where on earth do you get that idea? “Rational basis” is a very easy standard to meet.
SSM laws involve “heightened scrutiny,” a much harder standard to meet than rational basis. Generally, unless a law is completely whack-o, it will meet the rational basis test.
Bah, hit Post by accident there.
If laws against adult incestuous marriage do not meet the rational basis test, then they never did, and SSM is irrelevant. That is, if the state did not have a rational basis for banning Aunt-Niece marriage, they also never had a rational basis for banning Aunt-Nephew marriage.
In fact, Congress might pass a law banning incestual marriage before they pass a law legalizing SSM–if you recognize the potential problems involved, surely the anti-SSM politicans know about it.
A federal law defining marriage (even incestuous marriage) is violative of State’s rights under the Tenth Amendment. I am sure we will have a Supreme Court decision on that within the next five years. Additionally, I did not say incestuous marriage was a problem, I just said it was a VIABLE ramification on the slippery-slope.
“MA has, according to you, already legalized (some kinds of) incestual marriage, so clearly it wasn’t a problem for them, since their ruling implies that the advantages of SSM outweigh the risks involved.” Of course, because people who state that various issues do not need to be considered in making an argument — the legislature did not contemplate the ramifications of their decision. It was not consciously enacted, it was a direct result of the Goodridge decision.
“Legalizing SSM would be legalizing marriage between two men or two women.” This probably would not happen — public interest is outweighed. However, in Utah there are several cases using the Behr, Loving, and Goodridge decisions to overturn polygamous marriage. Your hypo would be a direct result of a outcome for the Plaintiffs in those cases. The precedent set by Behr, Lawrence, and Goodridge is the catalyst for their claims (there goes that slippery slope again). I don’t think they will win, however, the door has been opened for attack. Here is a good column on polygamous marriage and their attempt at recognition: http://writ.news.findlaw.com/hamilton/20040729.html
As for your other hypotheticals, they are far more remote than incest and polygamy to address as viable ramifications of redefining marriage.
Mythago and Jake – The Court in Goodridge stated that the laws states interests supporting limiting marriage to opposite sexes did not meet the rational basis test. The court gave several reasons. The basis for prohibiting incestuous marriage are power dynamics and medical issues regarding children.
In the case of SSM between consenting adult relatives neither of these are met. First issue, if the two parties are consenting adults then the power issue is remote. Additionally, the law would ban brother-brother relationships. No power issue there. If an Aunt wants to marry her niece, what power dynamics are at play? There would be scant evidence of this, just like the argument that all gay men are promiscuous does not meet any standard. Nevertheless, minor consent laws already accomplish the state’s interest in the power dynamics matter. As for the second interest, the state allows heterosexual cousins of the first degree to marry and they can have children. Men cannot have children without a woman (at least not yet, Google “artificial eggs”). Again, no rational basis in preventing uncles from marrying nephew’s. If it can’t meet that standard, most certainly not strict scrutiny. “. . . they also never had a rational basis for banning Aunt-Nephew marriage.” I think I answered that question.
Hestia: “current consanguinuity laws in MA, which already dictate that marriage to relatives is void.” Incorrect, only some marriages between relatives is void. There is no basis to expand that rule. The Courts have already ruled cousins can marry.
“It’s the biological relationship between, not the genders of, the participants, that’s the problem when it comes to incestual marriage.” That is correct and the potential offspring from that biological relationship is why it passes the strict scrutiny test. Not the fact that they are biologically related.
The basis for prohibiting incestuous marriage are power dynamics and medical issues regarding children.
You’d be better off looking for cases where laws prohibiting incestuous marriages were challenged, and seeing what the courts’ rationale was for upholding the law in those cases.
Power dynamics can still apply to incestuous marriages between adults. First, because not all marriage laws require adults: states may allow persons younger than the marriage age to marry with parental consent, or if the bride is pregnant. It would be a little odd to say that a girl can marry at 14 with parental consent or 16 without, and then permit the parent who wishes to marry her to give that consent.
Second, because it might encourage sexual misconduct: if you can legally marry your niece, why can’t you have sex with her if she’s “almost” an adult?
There is no basis to expand that rule. The Courts have already ruled cousins can marry.
Non sequitur. As has been explained over and over, the expansion would be to eliminate the gender-discriminatory provision of the law (OK to marry same-sex relatives but not opposite-sex), not to broaden the categories that constitute incest (cousins).
and the potential offspring from that biological relationship is why it passes the strict scrutiny test
What strict scrutiny test? Strict scrutiny applies to race, not gender, unless you’re talking about a state constitution that has an ERA or otherwise specifically mentions gender along with race in its equivalent of the Equal Protection Clause.
“Second, because it might encourage sexual misconduct: if you can legally marry your niece, why can’t you have sex with her if she’s “almost” an adult?”
Could that be the same argument anti-SSM types make when advocating against SSM: “Allowing homosexuals to marry will encourage them to have sex with minors. With SSM 40 year old gay men will be allowed to marry 16 year old boys and have sex with their new spouses. That is why we cannot have SSM” You should be ashamed of yourself Ms. Mythago :-( Touche!
“What strict scrutiny test? Strict scrutiny applies to race, not gender, unless you’re talking about a state constitution that has an ERA or otherwise specifically mentions gender along with race in its equivalent of the Equal Protection Clause.”
MA Constitution did not address whether SSM marriage would receive strict scrutiny only that it did not meet the rational basis test. That is what I quoted. As for strict scrutiny, I was addressing your comment regarding “heightened scrutiny”. Nevertheless, MA SSM holding was based on their ERA which is more expansive than Fed Due Process and Equal Protection.
Incorrect, only some marriages between relatives is void.
You’re misinterpreting me again, or ignoring the context of the argument; either way, it’s very irritating. Surely you can understand that I didn’t mean all marriages between relatives are illegal, just the ones that are, you know, actually illegal.
If cousins are already allowed to marry, then obviously SSM won’t change that fact. But if an uncle is not allowed to marry his niece, chances are that the courts will automatically change that law, in the light of SSM, to include uncles marrying nephews, too.
the potential offspring from that biological relationship is why it passes the strict scrutiny test. Not the fact that they are biologically related.
No. It’s the relationship itself, not the offspring, that’s at issue. The biological health of children is dependent on the biological relationship of their parents.
If you were correct, then we would also ban marriages that might result in children with incurable diseases. Since we don’t, it can’t only be the possibility of unhealthy children that’s the problem.
the legislature did not contemplate the ramifications of their decision
This is exactly my point. You’ve been suggesting that they should consider everything, but clearly it doesn’t matter. In order for this line of argument to make sense, you must show that the result of MA courts ignoring this potential conflict is some kind of legal chaos. That hasn’t happened, because the nature of your hypothetical is so outrageous. Therefore, it shouldn’t be considered.
At what point does your idea of a slippery slope turn into something the courts, SSM proponents, and/or the legislature should ignore? Should they be required, as you imply, to consider my concern that people will now be allowed to marry aliens and corpses and fictional characters? If not, why not?
Could that be the same argument anti-SSM types make when advocating against SSM
No. Any adult can hang out waiting for the “countdown,” but family members are generally in proximity to children in a way strangers aren’t.
Again, do you have citations for cases finding that incestuous marriage does or does not meet a ‘rational basis’ test?
Just because someone “might” be able to marry their younger cousin is no reason to deny a whole class of people their civil rights.
Have not had a time to search that link — on the way.
Regardless, there’s no reason SSM should encourage incestuous marriages–as your cites showed, those already exist and have apparently existed with zero complaint before.
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