Freedom to Marry

Correct me if I am wrong but it appears that the Proposition 8 and DOMA cases are being argued by opponents on the basis of a supposed absolute right to marriage contained somewhere in the constitution of the US.

This is quite different from a challenge that could have been made on basis of the "normality" of such marriages. 

If the argument that people have a right to marry whom they please without government interference is successful, it would seem inevitable that laws banning polygamy will be challenged. 

What is the social benefit derived from laws against polygamy? As a libertarian constitutionalist I do not understand the laws against polygamy as being other than derived from Judeo-Christian tradition.  pl

http://www.nytimes.com/2013/03/27/us/supreme-court-same-sex-marriage-case.html?_r=0

Comments

[Tyler]

Re: Social Benefit

A lot of it comes from there being avaliable brides for young men to marry, as opposed to young men just starting out having to compete with entrenched, older men for young brides.

Colorado City up in AZ had this problem, with the splinter sect of Mormons that made news a few years ago. Basically the older men were taking all the attractive young ladies for themselves and kicking out all the young men once they came of age.

Much like pederastry seems to go with homosexuality, child brides & forced marriages seem to go hand and hand with widespread polygamy.

As far as the SC 'argument' against Prop 8 and DOMA goes: Homosexuals have the same right as anyone else to marry, it just has to be with a different sex. What you're seeing here is creation of 'protected classes' out of thin air that the Dixiecrats tried to warn us about in regards to the unconstitutional Civil Rights Act.

[Babak Makkinejad]

Col. Lang:

Polygamy and polyandry are the first casualties.

It would be followed by Incest Taboo and later with the Injunction Against Bestiality.

The idea of political freedom is now extended to an experiment in Freedom to be Happy.

It is called Gommorah.

[Patrick D]

The Judeo-Christian tradition is reinforced by the secular, feminist presumption that polygamy is one man and multiple women and that arrangement is at the expense of the women.

I am troubled by the narrow scope of the objective and, imo, the silly assertion that marriage is a right by itself (thanks, SCOTUS). If an individual wants to exercise their right to marry but has no willing partner will the state be providing one? :)

The other, more valid issue, imo, is that married couples enjoy societal benefits from which others are excluded based on their marital status. If those benefits are held to be so important as to be rights, then why does someone have to be married to enjoy them?

My grandmother had 2 spinster cousins who lived in the same house and pooled their modest resources. Not only did they make a nice life for themselves, they raised a nephew abandoned when his parents' marriage collapsed.

There is tremendous social benefit to that kind of "life cooperation" among willing individuals. Laws should be structure to enable that behavior rather than focus on the red herring of marriage. Government should get out of the marriage business.

[schwifty]

US laws against polygamy seem to begin with the assumption that polygamy will, much more often than not, be a marriage of one man with multiple wives (polygyny). This does seem like a reasonable assumption, in part given the absence of religions that promote one woman with multiple husbands (polyandry). The reasoning is that such lopsided polygamy is socially zero sum: that for every additional wife a (presumably wealthy) man takes, there will be one fewer wife available for a (presumably less wealthy) man to marry, resulting in a sort of undercaste with all the social ills that come along with that.

This is quite the opposite social calculation of the argument for same-sex marriage. In that case, the right to marry and be recognized as a couple is being afforded to a group of people that did not have it at all before. It does not create scarcity in the marriage pool, rather just the opposite. Therefore it does not follow that allowing same sex marriage should lead government to recognize polygamous marriages on social grounds.

[robt willmann]

The issue to be decided is "whether the equal protection clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman". The case is number 12-144 and is called Hollingsworth v. Perry. It is directed at Proposition 8, which passed by initiative and referendum in California. Unfortunately, neither Texas nor the United States has initiative and referendum.

If you want something for the insomniac hour, you should be able to download all the briefs filed by the parties and the numerous amicus curiae (curious amigo) briefs here--

http://www.americanbar.org/publications/preview_home/12-144.html

When the oral argument is over, after a while, probably later today, an audio recording of the oral argument will be put on the Supreme Court's Internet webpage to listen to or to download and then listen to in rush hour traffic.

http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

[Herb Ely]

If I were arguing before the court, I would quote the following from Lewis Carrol on the question of the Court's ability to redefine the word "marriage:

"“When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean—neither more nor less.'

'The question is,' said Alice, 'whether you CAN make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master—that's all.”

“Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. 'They've a temper, some of them—particularly verbs, they're the proudest—adjectives you can do anything with, but not verbs—however, I can manage the whole lot of them! Impenetrability! That's what I say!'

'Would you tell me, please,' said Alice 'what that means?'

'Now you talk like a reasonable child,' said Humpty Dumpty, looking very much pleased. 'I meant by "impenetrability" that we've had enough of that subject, and it would be just as well if you'd mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.'

'That's a great deal to make one word mean,' Alice said in a thoughtful tone.

'When I make a word do a lot of work like that,' said Humpty Dumpty, 'I always pay it extra.'

If the court declines the case, it will be Alice. If it redefines, it will be Humpty Dumpty.

[turcopolier]

All

I am not in favor of same sex marriage, but you all are avoiding the issue. I mentioned "social benefit" because I am interested in what argument can be made for the continiuance of laws against polygamy, bigamy, polyandry or or any other form of marriage if the winning arguments in these two cases is a "right" to marry as you wish. Claims that polygamy results in forced marriages are flawed. In out species' history many monogamous heterosuxual marriages have been forced in this sense but nevertheless thought to be valid. Poor batchelors would be disadvantaged? Perhaps, but that hardly would invalidate the right to polygamy. Poor people are disadvantaged by being forbidden to own slaves. An economic argument is specious. No, IMO laws against polygamy will fall if same sex marriage is ruled inherently legal on the basis of an absolute constitutional right. pl

[Babak Makkinejad]

You are correct, no such counter argument can be made.

I suggest, again, the creation of a new State called Freedonia in which family law does not exist, laws against drugs do not exist, and only contract law is enforced.

All those who wish to live their lives in Hell can hopefully decamp there.

And when a woman shows up with her two sons as her legally and duely married husbands - I am sure that assorted liberals and other do-gooders will find that to be the epitome of human advancement and progress.

[turcopolier]

babak

"Fredonia?" Yes we are headed for anarchy and chaos. As Jefferson said, "The best government is thje least possible." The question is what is "the least possible." It is amusing how much liberals are for freedom unless their particular hobby horse is kicked in the balls. pl

[William R. Cumming]

Huge confusion over the Sacrament of Marriage and Civil Unions. SCOTUS unlikely to clarify IMO!

If you remember that Women were largely considered property in Western Civilization and could not own property upon marriage then all explained. This started to end about 1840 in the USA.

[Patrick D]

I understand the logic, Colonel. I don't see who will be taking those arguments through the court system though. Striking down those laws requires a reasonably-sized, motivated front to campaign for it with some popular appeal to generate broader support.

I don't think polygamy has constituencies up to the task.

[schwifty]

The slavery analogy isn't coherent. The slaves themselves are the victims. Leaping past that fact to then ponder the fairness of the market conditions for their potential buyers would indeed be specious, but that doesn't mean that there is an equivalence there with either same sex or polygamous marriage.

Perhaps the government should not be in the business of doing so, but it economically promotes the social stability that marriage affords, which goes to your "social benefit" question. From a taxpayer's point of view, there is a zero sum difference between subsidizing one pair of people and subsidizing three or more at a time. That is not to say that the 14th amendment shouldn't trump that, only to point out that there are reasons other than "Judeo-Christian" ones (King Solomon keeps coming to mind) for outlawing polygamy. If equal protection should and will protect polygamy, then perhaps the government should then extricate itself from the resulting "mess" by reevaluating its fundamental relationship to marriage and civil unions in general.

In my WAG the court will rule that it does not have standing, and let the states "experiment" with this for a while longer:

http://static1.firedoglake.com/42/files/2013/03/same-sex-marriage-and-marijuana.png

[turcopolier]

schwifty

there is no good social reason for laws against bigamy. you are grasping at straws. I have lived in societies where polygamy is practised. they function quite normally. your claims are just bigotry. i don't give a damn about the slavery thing. Once agsin, you are grasping at straws. why do gay people have a right to marry and not bigamists? if marriage is an absolute right before the law then it simply is. period. pl

[kao_hsien_chih]

I don't really see legal barriers to polygamy once an absolute right to marry is recognized. It is a well known fact that the number of polygamous "couples" in US who are merely unrecognized by the law, of multiple religious/cultural persuasions, is quite large. It is also true that a large majority of these families are quite happy and stable, according to their own customs, and that these are, often, not prosecuted, notwithstanding laws against polygamy. I don't see any "good" (legal) reason to not give them legal blessing, if the same sex marriages are to enjoy the protection of the laws, independent of my personal views on this matter.

[Babak Makkinejad]

Marriage is not a sacrament in Islam or in Judaism; it is a contract.

The Civil Union legal machninary are already making it possible to marry more than one woman - the Muslim marriage contract can be copied verbatim into the Civil Union contracts.

Jews from the Cohen family descent that are permitted to take 2 wives can likewise take advantage of Civil Union machinary to the same end.

The Civil Unions are discriminatory against Christians, I should think.

[Babak Makkinejad]

That is not the issue:

Can a man marry his son?

His father?

His brothers and sisters?

In other words, on what basis would you outlaw pluralistic incestous groupings of perverts?

They could be in a "Loving, Nurturing, Happy" condition according to their own customs.

And "God Loves Them".

[Stephanie]

Hard to see why scarcity in the marriage pool should be a legal reason to prohibit polygamous practices, unless your position is that the state has an interest in ensuring there are enough presumably reluctant women around for beta males and that it’s legal for the state to enforce that interest in opposition to the individual’s “right to marry.”

I’m not unduly worried about polygamy or polyandry becoming legal any time soon, since practitioners have no combination of grassroots activism and deep-pocketed power brokers working for the cause to bring pressure to bear on politicians. But I don't see any strong legal argument that the “right to marriage” and its attendant benefits should be limited only to gays and straights in pairs, if their status as “consenting adults” is the chief criterion.

[schwifty]

I've not made any claims or arguments that polygamy shouldn't enjoy 14th amendment protection. I'm not sitting here "grasping" at trying to have it both ways, i.e. same sex marriage but not polygamy under the 14th. I'm really not sure where you get the idea that polygamy is anathema to liberals in general, i.e. a kick in the nuts to their "agenda." I've only described what distinguishes polygamy from same-sex marriage in terms of "social benefits" as the government seems to understand them, and as you originally posed the question. If the court outcome is the conclusion that you predict, then I've "claimed" that the government might eventually also be forced to reevaluate the benefits it confers upon married people in general, since they'll no longer automatically just be couples. This is the extent of the "claims" that I've made.

I am curious as to which societies you see functioning "normally" with polygamy? Do they not have a disproportionately large share of young, poor, unmarried males? Does what you've experienced not support the notion that polygamy and its supposedly zero-sum effects on the population fosters a male underclass? Honest questions, as for me I've never encountered actual polygamy. I can't say it would particularly bother me if I did.

If you believe that societies function quite normally with polygamy, and that there is thus no social reason to prohibit polygamy, but you also believe that polygamy and same sex marriage should both be considered equal (perhaps even equally moot) under the 14th, then on what grounds can you oppose same sex marriage while accepting the notion of polygamy?

[walrus]

I forgot who said it, but a major social upheaval will destroy feminism in a microsecond. The "liberation" of women depends on the technological miracles of contraception, abortion and medically assisted Childbirth. That is all. More to the point, it is technology and access to resources that permit all these "lifestyle" choices to exist.

"Gay marriage" is great when you have retirement accounts and nursing homes, but with no children exactly who is going to look after you in our declining years? The monogamous concept has suited Western societies for a long time because the division of labour that used to be inherent in such a partnership coupled with available resources, maximises survival of the tribe.

If we go to the Middle East perhaps the available resources and environment dictated that the Alpha male and breeding herd model maximised survival.

In a post industrialised America it is possible that polygamy and group marriages might be useful survival strategies or have I been reading too much Robert Heinlein?

As for homosexuality, I think I understand that the ancient Greeks regarded this as unexceptional and that it was part of some student / teacher interactions.

Then of course there are those Penguins........

http://en.wikipedia.org/wiki/Roy_and_Silo

[turcopolier]

schwifty

I have lived among many Muslim peoples, tribal Amerindians in the backwoods parts of South and Central America and a number of SE Asian tribal peoples who practise polygamy. A lot of these people are poor. This has nothing to do with polygamy. They are poor because their economies have never been developed. Pious Muslims have a strict code of sexual behavior. That has nothing to do with polygamy. I am not in favor of same sex marriage because I am unconvinced of the supposed science that advocates of the gay political cause claim validates their view that homosexuality is a normal human behavior. I don't care if penguins want to bugger each other. Cite your science rather than politiczl advocacy. pl

[harry]

I would suggest that tha nature of modern marriage itself does not lend itself to polygamy, because it is essentially an economic union.

Consider the case where we argue that marriage is based on the principal of union and partnership. Such that on the disolution of the marriage, the economic results of the marriage are split equally. Well how exactly would that work in a 3 way partnership? Would one partner get 1/3rd? What if 2/3 partners chose to leave? Would that mean that they shared 50% or that they would take 2/3? I suggest that modern marriage is inherently a 50:50 partnership. Which means there is no scope for a third party.

Perhaps we could reintroduce the notion of concubine to allow multiple coupling. Of course, wiewed this way, same sex marriage is not a problem.

[Matthew]

Col: We have forgotten the wisdom of Oliver Wendall Holmes from The Common Law"(1881): "The life of the law has not been logic; it has been experience."

Marriage is an institution derived from cultural experience. Applying logic to this institution is a futile exercise.

An example of the futility of applying logic to marriage is to argue for a "right" to marriage. Justice Breyer ridiculed the defender of Proposition 8 because the defender mentioned the state's interest in facilitating procreation. Breyer rejoined: But elderly couples marry and they will not procreate. (Hence, why not gays? Don't they have the same rights as elderly heterosexuals to childless unions?)

Sounds convincing. But then what do we say when an elderly brother and sister want to marry? Without procreation, what is the logical objection to an incestious union?

Or how about a woman's right to choose? A woman has a right to choose abortion, but the biological father has no right to demand one. And the women who carries the baby to term can force the biological father to pay child support even if he didn't want to be a father. Logic? Equality? No, we say the child must be supported and this trumps the biological father's right to demand termination. When faced with a balancing of equities, the law makes a value choice.

Alas, value choices are political choices. Courts are terrible fora for those.

[turcopolier]

harry
Tut. Tut. We are talking about a claim of inalienable human rights not economic convenience. pl

[kao_hsien_chih]

I think that is basically my point. If we are trying to force a purely "practical and logical" interpretation of what is allowed under "the law," in the guise of "marriage," without any guidance of morality and societal norms, I don't see any potential legal barrier to most forms of "marriage." Polygamy and incest would be the first to be challenged, the former more than the latter, because the number of those who practice polygamy "under the radar" in US is quite large, and most of them apparently do involve "happy and loving families." The real challenge is where the line on "morality" and "social norms" ought to be drawn...if one can be drawn at all without an appearance of too much arbitrariness. Yes, one could say homosexual marriage is "moral" but father-son incest is not. But that would be simply someone's opinion, no more valid than the former, provided, that is, one is willing to take this line of thinking...

[kao_hsien_chih]

At most, this implies the possibility of a massive legal industry dealing with partial dissolution of polygamous marriages, not something that suggests its impossibilities. I'll be surprised if there isn't one already in various parts of the world where people are reasonably prosperous and are given to taking their disputes to courts but still practice polygamy.