If there was any doubt that Judge Vaughn Walker would allow his personal views of homosexuality trump legal reasoning, he removed that with his ruling today overturning California’s ban on same-sex marriage. Fortunately, the reasoning is so jaw-droppingly stupid that it will be overturned on appeal when it reaches the Supreme Court. Since Walker is (presumably) not a stupid man, he has to know that his ruling is weak and has no basis in actual reason. The only explanation is that he decided that sending a message of support to his friends in the gay community was more important that applying coherent legal reasoning to interpret the law.
Admittedly, this is a serious accusation. Yet I think it can proven with a simple test: Ask Judge Walker if his reasoning applies to polygamous marriage. In the decision he handed down, Walker find no rational basis for denying this fundamental right to same-sex couples. But every one of his reasons applies equally to polygamy.
I am not claiming that his reasoning leads to an argument ad absurdum. That would be a lateral move from one absurdity to another. What I’m claiming is that, if he is consistent, Walker would have to conclude that his rational basis criteria effectively overturns not only the ban on same-sex marriage, but the ban on polygamy.
Here are key excerpts from his opinion. (I assure you that this summary (which was compiled by the Wall Street Journal) comes from the actual opinion and not from The Onion.)
Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society. (Page 85)
This one is straightforward: replace “polygamous partners” for “gays and lesbians and it would be equally as applicable.
Proposition 8 has had a negative fiscal impact on California and local governments. (Page 90)
Even for an opinion riddled with idiotic reasoning, this justification is exceptionally ridiculous. Almost every law passed has a negative fiscal impact on California. That does not make them unconstitutional. Nevertheless, if preventing homosexuals from marrying has a negative fiscal impact, the same must hold true for denying polygamists the right to marry.
Proposition 8 increases costs and decreases wealth for same sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs. (Page 91)
The same holds true for polygamists.
Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. (Page 93)
The same holds true for polygamists. Both research and common sense support the idea that children function better when they have both a mother and a father. In a polygamous marriage, the child would generally not only have a mother and father but a spare parent as well. Imagine the benefit of having both parents at work and yet still having a parent who can stay home with the children.
Since many children in America already have multiple stepparents, why would it be any more detrimental to their psychological health to have all these parents living under the same roof?
Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. (Page 95)
The evidence is exactly the opposite of what Walker concludes. But it’s not like he really cares about facts anyway. Nevertheless, the same mythical social science studies could be used to support polygamous marriage.
The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child. (Page 105)
No they didn’t. Walker is either ignorant or dishonest. But again, we could apply the same reasoning to the stigmatization of polygamists.
Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals. (Page 113)
Even Walker isn’t dumb enough to believe that gender no longer forms an essential part of marriage. But if that’s the reasoning we are using, then the multiplication of genders would not change the conclusion.
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex. (Page 121)
Since polygamists would be marrying someone of the same sex, this reasoning is applicable.
Proposition 8 . . . enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies.
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. (Page 132)
Unlike gay marriage, polygamy has been widely practiced throughout history. There are few civilizations, religions, or cultures where polygamy has not taken root.
In fact, almost ever religion has, at some point in their development, accepted the legitimacy of polygamy. All of the major world religions—Judaism, Islam, Hinduism, Buddhism, Christianity—have condoned the practice of taking multiple spouses. In contrast, none of them has ever tolerated, much less openly accepted, same-sex marriage.
The same holds true for most every culture on earth. Out of 1170 societies recorded in Murdock’s Ethnographic Atlas, polygyny (the practice of men having more than one wife) is prevalent in 850. Even our own culture, which has an astoundingly high divorce and remarriage rate, practices a form of serial polygamy.
The reasons for favoring gay marriage while excluding polygamy are completely arbitrary and based on personal preference. If you truly believe that gays have a legal right to marry then you have no grounds for barring polyamorous groups from doing the same.
This leaves proponents of same-sex marriage with two choices. They either have to accept that polygamy is just as legitimate as gay marriage or they must admit that there is no inherent “right” to expand the definition of marriage. In the past, they’ve been hesitant to defend the practice because it is politically unpopular. However, as studies have shown, most homosexual do not have an actual objection to polyamourous relationships, so we can expect that their political clout continues to grow, they will feel more comfortable admitting that they don’t really oppose polygamous marriage.
Walker may be willing to admit this already. He is able to say, with a straight fact, that there has never been a rational basis for denying homosexuals the right to marry. And if it is true, as he claims, that same-sex marriage fall within the purview of the equal protection clause, then polygamy must also have to be included.
But If it is not an inherent Constitutionally protected right, then the citizens retain the ability to decide the legal status of matrimony—whether gay, straight, or polyamorous. The people could even lobby their legislatures to allow same-sex marriages while excluding polygamous unions since the legislative branch has a greater degree of latitude in making arbitrary distinctions than does the judiciary.
Of course if they did, Judge Walker would conclude—based on his rational basis criteria—that the legislature did not have a proper basis on which to legislate. For him, unelected judges—not the people, not the rule of law—are the final arbiters of what is proper and reasonable.
If this is the standard then he should at least be consistent: If the courts have the authority to decide if a woman can marry another woman, then they must afford the same right to a woman, a woman, and a man.
August 5th, 2010 | 6:33 am
You are right that the charge you make against the Judge is serious. It is also wrong. Among the findings of fact:
38. Marriage benefits both spouses by promoting physical and psychological health.
Does this apply to polygamy? You give no evidence.
39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.
Same question.
44. Sexual orientation is commonly discussed as a characteristic of the individual.
Nobody says that polygamous tendencies reflect some deep individual characteristic.
There’s a lot more in the opinion as well. But this is enough to refute the allegation that “every one” of the reasons he cites apply equally well to polygamy.
August 5th, 2010 | 6:43 am
So what’s wrong with polygamy? God certainly approves of it, at least if we can believe the plain words of the Bible. Look at all the Old Testament heros who had multiple wives.
Even King David, the greatest King ever, the man God made a covenant with, had multiple wives. In fact, there’s a passage in First or Second Samuel where the prophet Nathan lists all the good things God has done for David and one of them is giving David the late Saul’s wives. What better sign of God’s approval can you ask for?
If polygamy is good enough for God, where do you get off dissing it?
But of course, we know what happened here. By New Testament times, Israel was engulfed in the Greco-Roman world and the Greeks and Romans were very much against polygamy. They thought it was crude and uncouth. Since they were the very people Paul was aiming his new Christian religion at, God’s will had to bow to Greco-Roman prejudice.
Well, shame on Paul, but there’s no reason we have to repeat his error.
August 5th, 2010 | 6:49 am
“Fortunately, the reasoning is so jaw-droppingly stupid that it will be overturned on appeal when it reaches the Supreme Court.”
I couldn’t let this go, either. So letting people live their lives without government interference is “jaw-droppingly stupid”, eh? You must be one of them socialists I been hearing about.
Unfortunately, you’re probably right about the Supreme Court. I think the majority of the justices are going to side with the government and their Catholic religion and impose their defective god-defying personal morals on the people when this case gets to them.
August 5th, 2010 | 7:00 am
Here’s the passage where God gives Saul’s wives (wiveS – plural plus David already had multiple wives):
2 Samuel 12:7 Then Nathan said to David, “You are the man! This is what the LORD, the God of Israel, says: ‘I anointed you king over Israel, and I delivered you from the hand of Saul. 8 I gave your master’s house to you, and your master’s wives into your arms. I gave you the house of Israel and Judah. And if all this had been too little, I would have given you even more.
August 5th, 2010 | 7:16 am
…Or for that matter a man, a man, and a woman. Sexist ^^. I’m neither a lesbian nor a polygamist, nor even american, but personally I’d have to think that both same sex and, yes, polygamist marriages are eventually (once we as a species work past our inbred, societal, or spiritualist prejudices and traditions) are going to end up recognising both of these arrangements. I’ll go further. I’m aware that in some Islamic societies they recognise marriages that are defined by length of time (eg, 1 yr, 10yrs). I would think eventually this kind of marital definition would eventually come round too (and I’m not even Muslim). There’s probably even weirder (to my experiences) marriage practices out there. It’s a wide world. It’s not reasonable to restrict the legal recognition of human relationships to just man/woman. The male/female definition of marriage as it stands in judeo-christian law based societies of today is faltering and failing in practise simply because the definition and recognition of it hasn’t kept up with societal trends. It definitely won’t keep pace where those societies are trying to cater for the traditions of peoples from all corners of the world. What recognition under law will the Fa’afafine of Samoa have of their relationships? I don’t think we’ll get to this point in my lifetime, but for the supposedly more forward thinking of us (for example – a non-partisan institute on societal/religious affairs) we should be starting to wonder how we’re going to get to that point with the least amount of social unrest, or how to frame any such future laws so that the weak or vulnerable in our societies would best be protected from harm from any kind of marital concept which might be practised.
I think the question for you is – why do you think polygamy is “jaw-droppingly stupid”?
August 5th, 2010 | 7:45 am
I agree with the conclusion of your argument. One thing puzzles me, however: you state that Christianity has “condoned the practice of taking multiple spouses.” I was unaware of this. Could you provide a reference?
August 5th, 2010 | 8:28 am
Laws against polygamy apply equally to all people. NO ONE can marry more than one person at a time. There is no equal protection claim under the 14th amendment.
Bans against same sex marriage uniquely single out gay couples for discrimination. They alone are prevented from marrying the person of their choice. No other unrelated, consenting adult couples are prevented from marrying the person of their choice. Thus the law is not applied equally.
It’s really not that difficult. I know opponents imagine they have a real zinger of an argument with this one, but they don’t. It’s a fail. Just like everything else about the arguments and evidence they brought to trial.
August 5th, 2010 | 8:55 am
You know, one of these days, FT needs to do an article researching homosexual epistemology and how it relates to the sexual liberation debate. Because the logic used by nearly every gay person I’ve seen in this debate, including this sitting judge, is so jaw-droppingly stupid that I can’t see how even they could buy what they’re selling.
August 5th, 2010 | 9:00 am
Thank you for this analysis.
This question of same-sex marriage and polygamous marriage came up in the Iowa Supreme Court Case (arguments on Youtube). “Will allowing same sex marriages lead to allowing multiple-partner marriages?” ( http://www.youtube.com/watch?v=-723ns_tRhY ). In the ruling ( http://data.lambdalegal.org/in-court/downloads/varnum_ia_20090403_supreme-court-decision.pdf ), this exchange was not mentioned.
In the arguments, it is curious how the appellees’ attorney argued that polygamous marriage wouldn’t be automatically made legal (positively blessed by the state http://www.youtube.com/watch?v=Ii6TIQIXwzE http://www.youtube.com/watch?v=tOo9CXm6Xbk ) if same-sex “marriage” was made legal. He essentially said that since only two opposite-sex people can now marry, there is case law that applies to two person arrangements. If polygamy was made legal the case law would have to be newly argued or invented. In other words, just changing sex on a marriage certificate is nothing but words on paper that can be easily worked into the existing case law. Talk about a non sequitur.
What about an aunt and a nephew or niece “marrying”? What about two siblings? Not what marriage traditionally is, well, you have no rights to dictate your moral qualms about it (I’m being facetious).
August 5th, 2010 | 9:04 am
Yeah, Dave, that’s great. Considering polygamists by and large are religious conservatives who have lots and lots of children, I’m perfectly fine with it.
August 5th, 2010 | 9:09 am
Bans against same sex marriage uniquely single out gay couples for discrimination. They alone are prevented from marrying the person of their choice. No other unrelated, consenting adult couples are prevented from marrying the person of their choice. Thus the law is not applied equally.
Absolutely untrue. Polygamists and pederasts are banned from marrying the person of their choice as well. Yeah, I went there.
It’s really not that difficult. I know opponents imagine they have a real zinger of an argument with this one, but they don’t. It’s a fail. Just like everything else about the arguments and evidence they brought to trial
Doesn’t have to be a zinger, it’s just a matter of pointing out that the logic your side uses also applies to polygamists, pederasts, and all sorts of other unsavory unions.
August 5th, 2010 | 9:14 am
On the plus side, Joe, in another generation or two this’ll be largely moot vis-a-vis your designer baby sketch. Hard to see many parents (other than militant gays) choosing to have gay babies instead of straight ones.
August 5th, 2010 | 9:25 am
Sean’s exactly right and, of course, the vaccum we’re creating by totally abandoning our Western Judeao-Christian identity will be nicely filled by … Islam and something called sharia law. Oh, there will be much work for brickmasons!
August 5th, 2010 | 9:26 am
You could replace “gays and lesbians” with “flesh-eating aliens” in the judge’s decision as well – that doesn’t inavalidate his argument. Your rhetorical circus isn’t “logic” at all. Eventually, Constitutional protections for the rights of individuals will be shown to secure the right of marriage for everyone equally. And you won’t stop it, because the law is clear and every generation is putting away intolerance and bigotry more and more.
August 5th, 2010 | 9:27 am
You could replace “gays and lesbians” with “flesh-eating aliens” in the judge’s decision as well – that doesn’t invalidate his argument. Your rhetorical circus isn’t “logic” at all. Eventually, Constitutional protections for the rights of individuals will be shown to secure the right of marriage for everyone equally. And you won’t stop it, because the law is clear and every generation is putting away intolerance and bigotry more and more.
August 5th, 2010 | 9:28 am
The whole opinion is a sham because its based on applying a rational basis test to a set of factual findings that are highly contested. Most, if not all, of the significant points noted in favor of extending marital rights to homosexuals – benefits of marriage to homosexual couples, capacity to raise children, likelihood of long-term relationships, etc. are all challenged in the social science research. Perhaps not by the AMA or the APA, which has certain political and ideological commitments, but by reputable social researchers doing good work. And isn’t it rational for a law to be founded on the rejection of one set of data and the acceptance of another?
It seems to me that we have a complicit judge and a complicit state-defendant, neither acknowledging or making the arguments necessary to preserve the law; essentially, it’s rigged, not a genuine trial. Pray the Supreme Court does not take these findings seriously but evaluates the arguments and finds that reasonable people could view the facts differently.
August 5th, 2010 | 9:48 am
38. Marriage benefits both spouses by promoting physical and psychological health. Does this apply to polygamy? You give no evidence.
There is not evidence that marriage benefits same-sex couples in that way either. But if the assumption is that there is something inherent in marriage that promotes physical and psychological health, there is no reason to assume it would not also apply to polygamy.
39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses. Same question.
This one is obvious. If two paychecks are better than one, than three paychecks (or four, or five, or. . .) are better than two. Even the opponents of polygamous marriage have to concede this point.
44. Sexual orientation is commonly discussed as a characteristic of the individual. Nobody says that polygamous tendencies reflect some deep individual characteristic.
Sure they do. That is exactly what polyandrous couples say. In fact, many homosexuals even argue that polyandry is part of their sexual-makeup. Polygamy is simply institutionalized non-monogamy. It would be hard to dispute that many people are naturally oriented (disoriented?) to have multiple sexual partners.
But this is enough to refute the allegation that “every one” of the reasons he cites apply equally well to polygamy.
No, it’s not even close to a refutation. Your points merely show a bias against polygamous couples. Why do you want keep people who love each other from getting married?
Dave Mullenix So what’s wrong with polygamy? God certainly approves of it, at least if we can believe the plain words of the Bible. Look at all the Old Testament heros who had multiple wives.
Where in the Bible does it say that God approves of polygamy? The fact that the OT heroes engaged is certain behavior is certainly not evidence that God approved.
Here’s the passage where God gives Saul’s wives
I don’t know of any OT scholars that believe that passage proves God approves of polygamy.
Kate I think the question for you is – why do you think polygamy is “jaw-droppingly stupid”?
I never said it was. I think the judicial reasoning is “jaw-droppingly” stupid, but I never said that about polygamy. Personally, I think any man that wants to wives can’t be all that bright, but I’m sure there are smart reasons for endorsing polygamy.
Christopher Esget . . . Christianity has “condoned the practice of taking multiple spouses.” I was unaware of this. Could you provide a reference?
I should clarify that I meant that Christians and Christian sects have condoned it. That does not, of course, mean that it is condoned by orthodox Christianity. But a recent example, from Time magazine, is a Catholic missionary and priest that thinks polygamy in Africa is a good thing.
ADA Laws against polygamy apply equally to all people. NO ONE can marry more than one person at a time.
This is exactly the form of argument that Judge Walker dismissed. Many proponents of traditional marriage have pointed out that laws against same-sex marriage apply equally to all people. NO ONE can marry a person of the same sex.
Bans against same sex marriage uniquely single out gay couples for discrimination.
Bans against polygamy uniquely single out polyandrous couples for discrimination.
No other unrelated, consenting adult couples are prevented from marrying the person of their choice.
Polygamists, who already have one spouse, are prevented from marrying the person of their choice.
August 5th, 2010 | 9:53 am
Indeed, the Fundamentalist Mormons have even a stronger claim for multiple marriage partners than gays do. After all, they may reasonably argue that, not only is there a lack of rationale basis to deny them multiple marriage partners, but that the First Amendment guarantees them the right to the free exercise of their religion. What rationale basis now does the state have to deny them the free exercie of their religion?
August 5th, 2010 | 10:01 am
Dave Mullenix,
Only the most superficial reading of the OT could lead one to conclude God approves of polygamy. It was never commanded, and it never turned out well. Though it was a culturally accepted practice, the multiple OT examples all serve show that it’s not a good idea. It takes special effort to twist 2 Samuel 12:7f around to the conclusion you got from it.
ADA,
Laws defining marriage as man-woman also apply to all people equally.
Really? They alone? There are absolutely no other restrictions on marriage? Interesting. Oedipus would have been surprised.
August 5th, 2010 | 10:04 am
@Dave Mullenix,
Actually, Moses just tolerated polygamy, as did God. Multiple verses within the Bible state this. Secondly, multiple verses within the Bible illustrate that polygamy led to misery, so as to leave no doubt in the minds of readers (even in OT times) that polygamy was to be avoided.
Each case given of polygamy in the Bible showed extreme strife within that family unit, beyond the normal strife shown within other families.
Third, Jesus never condoned polygamy or same-sex marriage for that matter and there are no scriptures that show that He did. In fact, in each scripture where Jesus spoke on the matter of marriage he only supported one man and on woman marriage. To say otherwise is to use an argument from silence.
If this is good enough for Jesus then it IS good enough for you.
August 5th, 2010 | 10:25 am
@ADA,
Gays, while not kept from marrying, are kept from marrying the person of their choice. And thus, Vaughn’s ruling wasn’t about equality but about redefining marriage.
Laws against polygamy -while applying equally to all people – are nonetheless equally discriminatory against all people.
If there is no equal protection under the 14th amendment for polygamists, then there is no equal protection under the 14th amendment for same-sex couples. Gays are kept from marrying the person of their choice, and polygamists are kept from marrying the person(s) of their choice.
How can someone truly be in a consenting adult same-sex marriage if they cannot marry a person of the same sex, and how can someone truly be in a consenting adult polygamist marriage if they cannot marry person(s) of the opposite sex.
In fact, same-sex marriage is a more radical departure from traditional marriage than consenting adult polygamy is. Consenting adult polygamy still has the male/female format, though altered slightly, whereas same-sex marriage has a male/male, female/female format.
In light of the aforementioned, it would truly be the height of bigotry for gays to want marriage to be expanded and altered to allow same-sex marriage for them but not expanded and altered to allow marriage for others that are currently in the “denied” position that they are in.
August 5th, 2010 | 10:34 am
Siblings are also kept from marrying individuals of their choice
August 5th, 2010 | 10:37 am
I can easily think of two reasons: sexual jealousy and the inherent inequality of a polygamous relationship.
Same issue with psychological well-being which you ignored.
You made the claim that literally every one of these reasons apply “equally” to polygamy. But that’s simply false.
Dispute the factual record with regard to homosexuality if you want — and I know you want to, but then that takes more time because you have to actually dig up citations and do research. But don’t go around saying the reasons cited in the opinion apply “equally”
to polygamy unless you have pretty clear evidence that polygamy does not lead to sexual jealousy, high rates of domestic problems or disputes, and other such problems.
And before you fire back and try to shift the burden of proof, I’m not saying I’m prepared to prove these are problems with polygamy. What I am saying is that one would need to do actual research before saying the arguments advanced in favor of homosexual marriage apply “equally” to polygamy. Absent such research and supporting arguments, your claim is unsupported.
August 5th, 2010 | 10:46 am
“Laws against polygamy apply equally to all people. NO ONE can marry more than one person at a time. There is no equal protection claim under the 14th amendment.”
But this is exactly the argument made by anti-gay marriage advocates when they say that the 14th amendment doesn’t discriminate against gay people because they can enter straight marriages.
No-one had really addressed this question yet: if it is arbitrary and unjust to restrict marriage to one man and one woman (and FWIW I think that it might be), why is it not arbitrary and unjust to restrict marriage to only two people?
If gender is irrelevant, why are numbers not irrelevant?
If marriage has no fixed and unchanging teleology, and can be redefined as social mores change, why is polygamous marriage unacceptable? If you think that it is, then fine, but if you don’t, how do we answer the question?
And it is no good just saying that polyamory is not a deep-seated or intrinsic orientation. Fifty years ago we thought that about homosexuality.
I speak, BTW, as a supporter of gay marriage who freely admits that he cannot answer the polygamy question in any satisfactory way. I would bet good money that by the middle of this century most Western governments will recognise some form of polygamous marriage.
August 5th, 2010 | 10:50 am
After all, they may reasonably argue that, not only is there a lack of rationale basis to deny them multiple marriage partners
They may not reasonably argue that without addressing the actual reasons typically advanced against polygamy such as those I mentioned above.
but that the First Amendment guarantees them the right to the free exercise of their religion.
But not the right to break a religiously neutral law that applies to everyone, according to the Supreme Court decision Employment Division v. Smith. The court explicitly rejected the notion that it had to find a “compelling interest” in prohibiting something (in this case, use of a hallucinogenic drug) in order to justify the law.
August 5th, 2010 | 10:51 am
I posit the following questions:
1) Regardless of the 14th Amendment, Fundamentalist Mormons have a First Amendment right to practice their religion, which includes plural marriage. What basis or interest does the state now have to deprive them of their right to free exercise of their religion?
2) Since marriage no longer relates to the procreation of children, what basis does the state have to deprive siblings or any close relations from marrying one another? Is it acceptable for two gay brothers to marry one another but not a brother-sister?
August 5th, 2010 | 10:52 am
Dave Mullenix, are you Brettongarcia? If not, you two should get together and create a university course on fallacious support of absurd contentions (see responses to your comments above). It can be part of the Theology program at the University of Bizzarro World.
August 5th, 2010 | 11:02 am
Hey, I want to marry my dog, and I want her to have all of the rights of any other spouse.
And don’t give me that crap about her not being a person. Who are you to judge whether or not she is a person?
We want our rights, and we want them now! We are tired of being discriminated against! We deserve the right to marry, and to be treated with the same privileges as any other married couple.
What’s the name of the lawyer that argued this case in California? I wonder if he’ll take our case…
August 5th, 2010 | 11:10 am
…of course, he’ll have to take it “pro bone-o”
August 5th, 2010 | 11:10 am
The arguments being made here are not based in any type of fact…no one is promoting polygamy… polygamy is not an issue (except for those opposed to marriage for all)…it is not a slippery slope…there are fundamental differences between polygamy and marriage equality that you are choosing to ignore. What we do have here is irrational discrimination and a denial of ALL reliable, quantifiable data…plain and simple…call it anything you like but, the reality is this type of mindset is consumed with denying a whole segment of societies basic rights. You do not get to discriminate because of your own ‘ick’ factor. The majority does not get to dictate fundamental rights of equality guaranteed in our constitution by a popular vote. As far as the denials of bigotry (which the pro prop 8 side cannot yell loud enough) I am reminded of the Shakespeare quote from Hamlet…’ Methinks the lady doth protest too much’. Not one single gay person I know wants to destroy or change your marriage…why then do the foes of equality spend so much time spreading misinformation and just plain ole lies trying to portray gay people as less than human and unworthy? History has always shined on the side of more equal rights not less…this is and will be no different.
August 5th, 2010 | 11:20 am
Where will this eventually lead? IMHO, the Catholic Church will separate itself from performing civil marriages concurently with blessing a religious marriage. Sacramental Marriage will eventually separate from legal marriage. Also, governments may eventully cease performing legal marriages. Those wishing to marry entering into a binding legal contract that similar to the current prenuptial areement, said contract subject to state enforment.
August 5th, 2010 | 11:22 am
Mark,
As you know, Employment Division v. Smith was has been supseeded by statute. See Gonzales, 546 U.S. 418. An excerpt from the case syllabus is below. The government must now demonstrate that the application against polygamy: 1) furthers a compelling governmental interest and 2) is the least restrictive means of furthering this interest.
“Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, where, in upholding a generally applicable law that burdened the sacramental use of peyote, this Court held that the First Amendment’s Free Exercise Clause does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws, id., at 883-890, 110 S. Ct. 1595, 108 L. Ed. 2d 876. Among other things, RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U.S.C. § 2000bb-1(a), except when the Government can “demonstrate that application of the burden to the person–(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest,”
August 5th, 2010 | 11:35 am
In response to Bill Phelps’ comment, let me point to Stuart Koehl’s “On the Square” article, An Independent Witness to Marriage.
August 5th, 2010 | 11:47 am
Joe is completely right, and proponents of same-sex marriage have already admitted this. This is kind of old news. For instance, beyondmarriage.org has published an executive statement titled: BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR FAMILIES & RELATIONSHIPS July 26, 2006
You can find it at http://www.beyondmarriage.org/full_statement.html
There are many intellectual signatories to the statement, among them Gloria Steinem, New York Times writer Barbara Ehrenreich, Catholic feminist theologian Mary E. Hunt, Tikkun Magazine editor Rabbi Michael Lerner, philosopher Judith Butler and Princeton University professor Cornel West.
The thesis of the statement is:
We seek access to a flexible set of economic benefits and options regardless of sexual orientation, race, gender/gender identity, class, or citizenship status.
Among the fun arrangements would be:
-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
Thus, Joe’s logic is impeccable, and it has already been endorsed by many intellectuals, 4 years ago. To disagree with Joe is to disagree without a rational basis!
August 5th, 2010 | 11:49 am
What about Man-Boy love rights? What about Sister-Brother marriage rights? So called “progressives” cannot choose to grant rights to some yet cruelly discriminate against other. Equality is too far away from being achieved.
August 5th, 2010 | 11:51 am
Your reasoning, while not jaw droppingly stupid, is not legally correct. The law was found unconstitutional under the equal protection clause, which prevents laws being applied differently to different groups of people. The law against polygamy applies to everyone – every class of people – straight/gay, black/white, man/woman, etc. Prop 8 however created two classes of people – straight and gay – and then told one of those classes that laws (marriage) applied differently than them. This invokes an equal protection analysis, which the judge argued it failed. Its mostly a noteworthy case because the judge applied the “rational basis” standard – which is the lowest bar for a discriminatory law to jump over – and STILL found it unconstitutional.
August 5th, 2010 | 11:53 am
Bryan,
You claim that Homosexuals have no intention of “destroying” traditional marriage then why is that prominent homosexual activists have publicly stated that their aim is to ultimately do away with the institution of marriage?
August 5th, 2010 | 11:58 am
I’m not a lawyer nor an amateur constitutional scholar, but surely there’s a difference between Reason and legal reasoning?
I think you’re premature in concluding Walker’s decision was “jaw-droppingly stupid.” So far, over at the very sensible Volokh Conspiracy legal blog http://www.volokh.com, they haven’t come to that conclusion, at least not yet. There’s a bit more effort to clarify what his legal reasoning is, ranging from assumptions to conclusions, and how it relates to the Constitution.
I’m not sure why you think your conclusion — that Walker’s reasoning could just as well apply to giving polygamy constitutional protection — is evidence of his stupid reasoning. I’m pretty sure it WOULD apply just as well, and I suspect that neither Walker, nor those cheering his decision, would have a problem with that, given their shared assumptions.
August 5th, 2010 | 12:09 pm
Quotes taken from:
Michael Kinsley “The solution is to end the institution of marriage, or rather, the solution is to end the institution of government monopoly on marriage. And yes, if three people want to get married, or one person wants to marry herself and someone else wants to conduct a ceremony and declare them married, let ’em. If you and your government aren’t implicated, what do you care? If marriage were an entirely private affair, all the disputes over gay marriages would become irrelevant.”
Judith Levine – “Because American marriage is inextricable from Christianity, it admits participants as Noah let animals on the ark. But it doesn’t have to be that way. In 1972 the National Coalition of Gay Organizations demanded the ‘repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit; and the extension of legal benefits to all persons who cohabit regardless of sex or numbers.’ Group marriage could comprise any combination of genders.”
Stanley Kurtz – “marriage will be transformed into a variety of relationship contracts, linking two, three or more individuals (however weakly or temporarily) in every conceivable combination of male and female … the bottom of this slope is visible from where we now stand.”
I think the fundamental issue here is the function of marriage. Is sex the only qualification for something that constitutes a marriage? I tend to believe that procreation and raising children with a mother and father constitutes a marriage. Yes, that may include polygamy, but I am not arguing against polygamy.
August 5th, 2010 | 12:21 pm
J.W. Cox I’m not a lawyer nor an amateur constitutional scholar, but surely there’s a difference between Reason and legal reasoning?
Legal reasoning is the application of reason within the contraints of the legal process (e.g., issues, evidence, precedents, statutory requiremnets, etc.) My charge Walker’s legal reasoning is terrible. For his claim to be true, the Constitution would have always have allowed for same-sex marriage. It’s just that no one discovered it until he came along.
I think you’re premature in concluding Walker’s decision was “jaw-droppingly stupid.” So far, over at the very sensible Volokh Conspiracy legal blog http://www.volokh.com, they haven’t come to that conclusion, at least not yet.
Most of the lawyers at Volokh support same-sex marriage so I’m sure they’re view differs from mine. They may indeed not think the opinion was dumb, though even if they did they are not likely to say so directly. One of the good things about that blog is that they don’t often engage in heated rhetoric. But the collegial approach has its limits. When we fail to point out the absurdity of absurd claims, it gives the impression that maybe they are legitimate.
I’m not sure why you think your conclusion — that Walker’s reasoning could just as well apply to giving polygamy constitutional protection — is evidence of his stupid reasoning.
That’s a good point and one I should have clarified. I don’t think Walker’s reasoning is stupid merely because it allows for pologamy. The problem I have with it is that he has handed down an edic that there is no (and hence, never has been) a rational basis for oppossing the legalization of same-sex marriage.
August 5th, 2010 | 12:22 pm
@Brian,
Polygamy bans were held not to violate the Free Exercise Clause in Reynolds v. United States, 98 U.S. 145 (1879). The federal statute that reinstated the pre-Smith standard would be interpreted in accordance with Reynolds. And in any case the federal statute does not apply to state law.
August 5th, 2010 | 12:39 pm
“Bans against same sex marriage uniquely single out gay couples for discrimination. ”
Wanna see what happens if two straight guys go down to the courthouse and try to obtain a marriage license? And pre-emptively, “Why would they want to” is not legal reasoning.
August 5th, 2010 | 12:48 pm
But have you not considered how a gay marriage ban will embolden those who wish to outlaw interracial marriage, or marriage between different denominations? Surely a strict standard of procreation would eventually dissolve the marriages of childless couples. Imagine the heartbreak of elderly spouses forced to separate after years of wedded bliss simply because their own children are grown and their home empty but for themselves.
Surely I cannot be the only one who foresees a terrible day when none are allowed to marry at all?
We stand at the top of a slippery slope indeed.
August 5th, 2010 | 12:49 pm
The lawyers defending Prop 8 did an awful job, and that is now part of the case record. And the SCOTUS can’t fix that bad job.
That’s the nub of it.
August 5th, 2010 | 12:51 pm
For what it’s worth, I have to disagree with Joe about the fate of this decision in the Supreme Court: I think it is very unlikely that Justice Kennedy would supply the fifth vote against the constitutionalization of same-sex marriage.
August 5th, 2010 | 1:26 pm
I think Carter’s logic is hard to escape, even if, as a practical matter, it is unlikely that polygamists will litigate as successfully as gays. The larger problem with the same-sex marriage movement is that it seeks to do more than secure a package of legal rights (some form of civil union would have sufficed for that); it actually seeks to call two different things by a single name. And this is quite simply impossible. Even if the right to same-sex marriage becomes the law of the land, people will come up with other words to distinguish between heterosexual and homosexual unions because people need different words to refer to different things. It’s just a fundamental law of human communication. On a linguistic level, same-sex marriage will do nothing more than multiply labels. We will have “traditional” marriage, whatever it may be called, and we will have “gay” marriage, whatever it may be called. Legally, perhaps, it won’t make a difference, but a legal decree only goes so far. It can’t remake the world.
August 5th, 2010 | 1:37 pm
When Rep. Bob Inglis asked Andrew Sullivan during Congressional hearings on DOMA in 1996 if he opposed group marriage, Sullivan said he did because it was “destructive.” On what grounds does he make such a claim? All relationships can be destructive, but that does not mean all of them necessarily are. Surely we cannot say that all poly relationships are destructive. What about those poly triads who have been together for 30 years?
When asked if group marriage was a basic right under the Canadian Constitution, Claire L’Heureux-Dubé, the former Canadian Supreme Court justice, said that “marriage is a union of two people, period.” The confidence with which she asserts this definition is pretty bizarre, as if this definition is deeply rooted in the history and tradition of Canada, when it was actually established as the new definition several years ago by her court. The reason group marriage is not covered, she explained, is that “I don’t see a parade of polygamists on Ste-Catherine Street.” So if a bunch of polygamists do start parading down Ste-Catherine Street, she will be okay with polygamy?
Joe is right- the only reason that folks on the Left are not pushing for group marriage is that it is not quite fashionable enough yet. It is all about caprice, and looking good, and being ‘on the right side of history.’ Obviously, whether or not one must logically embrace group marriage after embracing same-sex marriage depends on the principle used to get to same-sex marriage. Most people who argue for same-sex marriage do not use a principle that would preclude polygamy, although some (like Jon Rauch and Dale Carpenter) valiantly try. One of my co-workers at my job here in CT (where we have same-sex marriage as the result of a court decision) has a bumper sticker on her car that says “love makes a family.” How exactly does this principle preclude polygamy? Of course it requires it. If you take the next logical step, folks, you may not like where you are standing, but that’s where you are. When you embrace same-sex marriage, you abandon the intellectual resources that you need to oppose group marriage.
There are people who maintain that they are “poly” innately; they are born that way and cannot change. There is no reason not to take their word for it; after all, we take the word of gays and lesbians that they are that way by birth and therefore cannot change. Besides, even if you are not born that way, there is no condition that you actually be gay to enter into a same-sex marriage (just as there is no condition that you be straight to enter into an opposite-sex marriage).
Arguments from history, convention or tradition do not fly because slavery was once a tradition too. Arguments from nature do not fly, because ‘being gay’ is innate. Arguments from religion or morality do not fly because that would be, as Judge Walker says, ‘imposing a private moral view’ on everyone else. Arguments from what is best for children do not fly, because they don’t really need a mom and dad. Proponents of same-sex marriage reject all of these arguments in principle, and so they should not work for opponents of group marriage either.
As Justice Scalia wrote in his dissent in Lawrence, the nice thing about democratic process is that the people can take one step and not take the next logical step. The same is not true for the courts. Group marriage is coming, folks: as the proponents of same-sex marriage say, it is not a matter of ‘if,’ it’s a matter of ‘when.’
August 5th, 2010 | 1:52 pm
the bible approves of polygamy, but the U.S. is a godless nation and does not allow for the true practice of Christianity.
August 5th, 2010 | 2:21 pm
Reynolds,
The text of the RFRA specficially apply to states and the departments of states. So you are incorrect that the status does not applly to california law:
1) the term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;
(2) the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
August 5th, 2010 | 5:19 pm
Jo,
What “prominent” gay person has said that? You are completely misguided with that comment. You are creating a narrative to fit your belief rather than providing any factual information. Why would people be campaigning so hard to have the right to marry only to then “destroy” the very thing they want? It makes no sense…none.
August 5th, 2010 | 8:08 pm
“there are fundamental differences between polygamy and marriage equality that you are choosing to ignore.”
That is because all of those putative differences, to the extent they exist, are obviated by the underpinning legal principle that it is a denial of civil rights to deny any person the right to marry the consenting person “of their choice.” Since all posited objections to homosexual marriage have been obliterated by this overarching principle, it follows that all posited objections to polygamous unions must also be legally obliterated, if this principle is maintained.
August 5th, 2010 | 8:10 pm
Further, if this principle is not primary, then there is no “civil right to marry the consenting person of your choice,” and the judge is wrong. So based on this judge’s reasoning (not the mere fact of his ruling) there is no longer any possible legal justification for banning multiple marriage, whether a polygamous union of one partner marrying many others, or a polyamorous union of many partners marrying many others.
August 5th, 2010 | 8:23 pm
“The lawyers defending Prop 8 did an awful job, and that is now part of the case record. And the SCOTUS can’t fix that bad job.
That’s the nub of it.”
I fear that this is, unfortunately, correct. There have been better op-eds in the Daily Shopper than what will soon be before the Supreme Court.
August 5th, 2010 | 10:44 pm
@Ray – The OT of the Bible is full of things that would not have been possible without polygamy. Take the sons of Jacob’s second wife, Rachel — Joseph and Benjamin. Without Joseph, the family would not have been saved from a famine. Without the tribe of Joseph, there would have been no Joshua. Without the tribe of Benjamin, there would have been no Saul, no Esther, etc. If God hated polygamy so much, would he really have put the redemption of the tribe of Israel in the hands of so many descendants of such a marriage?
At to the question at hand, if people feel that polygamy is too much of a stretch, what about incest? I’m not talking about creepy, non-consensual incest between a father and a young daughter. I’m talking about the possibility of sisters marrying sisters, brothers marrying brothers, brothers marrying uncles, etc. In these examples of incest, procreation is not even a problem — should they be disallowed? Why should we deny these people the right to marry whom they choose? This is one person and one person — no problem of polygamy.
Even when procreation comes into it, there are other problems. Right now most states forbid even first cousin marriage — which actually has a lower risk of birth defects than women over 40 who have children (an increasing category for motherhood). Why? Why don’t these people get to marriage whom they choose? And suppose, for whatever reason, that procreation isn’t a possibility — why then do we deny mother-son couples, sister-bother couples, etc.? Many states have incest laws even preventing marriage in the case of step-relationships, so no blood is involved. Why do these people not get to marry whom they choose?
There have already been cases both in the US and abroad challenging incest laws. Those who think that this decision doesn’t lay the groundwork for overturning most of those laws is just hopelessly naive.
Similarly, though everyone wants to draw a big boundary between two-person and multi-person marriage, there is not a clear division. As someone already said, if I’m single, I’m allowed to marry whom I choose. However, once I get married to someone, I lose the right to marry whom I choose again. Why does a person have a right on one day and not have that right on the next day, just because they exercised that right once?
August 5th, 2010 | 11:03 pm
Brian: As you know, Employment Division v. Smith was has been supseeded by statute.
The Supreme Court considered and rejected the view that the RFRA could bind and constrain state and local government officials in City of Boerne v. Flores. Any text in the law to the contrary is simply invalid according to the Supreme Court. The State of California or any other state could ban polygamy without having to provide a compelling interest to a federal judge.
August 5th, 2010 | 11:11 pm
it actually seeks to call two different things by a single name. And this is quite simply impossible.
Chimpanzees and orangutans are both primates. Did I just do something impossible?
August 6th, 2010 | 12:18 am
Another response for Christopher Esget regarding Christianity condoning polygamy: I Timothy 3:2 includes the recommendation that overseers be “the husband of but one wife.” To me, this reads as an indication that polygyny was condoned among Christians, and possibly even among some overseers (since Paul had to explicitly make the recommendation that monogamy was a good thing).
August 6th, 2010 | 12:53 am
@Brian
City of Boerne v. Flores, 521 U.S. 507 (1997) declared RFRA unconstitutional as applied to the states. Since then it applies only to the federal government (and federally controlled territories like DC and PR). Thus state-level refusals to allow polygamy for religious reasons (FLDS, Muslim, or otherwise) do not violate RFRA, or the Free Exercise Clause. And as I mentioned before, even if RFRA did apply, it incorporated pre-1990 standards, i.e. Reynolds’ acceptance of a polygamy ban.
That said, Joe’s point about the Equal Protection argument is unaffected by Reynolds. And I don’t think it all that far-fetched that once gay marriage is part of the Constitution, polygamy will not be far behind. Eventually we may see a completely contractarian model of “marriage” and even its abolition as a civil institution in some states.
I also have to say that I share Prof. Garnett’s pessimism about Justice Kennedy on this issue. He rules from his heart a lot of the time, and this is one area where his feelings are pretty well known.
August 6th, 2010 | 3:39 am
What’s stunning to me about the ruling is just how narrow the considerations are, compared to how broad the conclusion is. That is, he concludes there is no rational basis for restricting marriage to heterosexual relationships – that’s a really sweeping claim, and to decide categorically on something so tied up with deep disagreements about human nature, the basis of rights, the source of moral and legal norms and the relationship between them – well, it takes a lot of hubris.
August 6th, 2010 | 3:44 am
Judge Walker is a Republican
He was nominated to the bench by both Ronald Reagan and George Bush.
Back then San Francisco’s powerful civil rights organizations and Democratic leadership greeted Walker’s nomination with howls of protest. They branded him hostile and “insensitive” to gay and lesbian rights because of his representation of the U.S. Olympic Committee in a lawsuit against the Gay Olympics over the use of the Olympics brand.
Liberals, back them, gave Conservatives every chance to keep him from serving on the bench 20 years ago but Conservatives fought and won to have him seated.
If conservatives are unhappy about his judgment TODAY they have someone to blame….THEMSELVES
August 6th, 2010 | 5:10 am
@ Mark
No, but you did miss the obvious point. A chimpanzee is not an orangutan.
August 6th, 2010 | 7:38 am
For those who contend, and as was held in this case, that the state can have no “rational basis” for refusing marriage licences to same-sex couples, I would recommend a glance at the very thorough and persuasive report presented by Mme Valérie Pecresse and her commission to the French National Assembly on 25 January 2006.on “The Family and the Rights of Children” (The title is not without significance) and subsequently adopted.
From their premises that “The primacy of the interests of the child ought to be guaranteed” (64) and that “Republican marriage should remain the foundational institution of the family – Le mariage républicain doit rester l’institution fondatrice de la famille ” (100) and that “Marriage is the form that best mantains the interests of the child” (100), the report concludes that “Male-female ‘otherness’ should continue as the basis of marriage – L’altérité homme-femme doit continuer de fonder le mariage”
By parity of reasoning, and based on its child-centred approach, the report also rejects Gay adoption or assisted fertility, even for those in Civil Solidarity Pacts. With remorseless Gallic logic, they insist that the three questions of marriage, adoption and assisted fertility are inextricably linked.
Given the French tradition of laïcité, a body less liable to be influenced by religious prejudices than the National Assembly it would be difficult to imagine.
I am surprised that the supporters of Proposition 8 have not deployed its entirely secular reasoning. After all SOCUS does, not infrequently, cite foreign jurisprudence in its reasoning.
August 6th, 2010 | 11:02 pm
Pentamom wrote: ‘“Bans against same sex marriage uniquely single out gay couples for discrimination. ”
Wanna see what happens if two straight guys go down to the courthouse and try to obtain a marriage license? And pre-emptively, “Why would they want to” is not legal reasoning.’
You are correct. It’s the same-sex part that is the issue. If two straight guys want to make a legal marriage commitment to each other, they are also being discriminated against by not being able to marry the person they want. Judge Walker’s decision suggests the state of California has no interest in preventing their marriage.
August 6th, 2010 | 11:32 pm
Walker argues that the legal distinction between ‘husband’ and ‘wife’ have long ago become meaningless. Wives no longer give up their legal rights when they marry. Marriage is considered a partnership. The verb ‘to husband’ has fallen into disuse.
That is the environment that makes gay marriage possible. It’s juvenile to ask which partner gets to be the “wife”, because even heterosexual marriages are partnerships.
Polygamy, as most people envision it, belongs more to the old traditions of male dominance (especially legal dominance). It’s very traditional. Judge Walker’s ruling is a step away from that kind of polygamy, not towards it.
If there is a new kind of polygamy where a couple may want to take another individual into the marriage, where they will become 1/3 partners instead of 1/2, then let them make their case. There will be practical considerations, such as government benefits, and how to divide property if one of the three (or more) decides to divorce the rest.
Though it isn’t a cause I will fight for, I’d be interested in hearing what kinds of systems they would come up with that would fit into our world of gender equality under the law.
August 7th, 2010 | 1:44 am
I rather find Dale Carpenter’s 2006 article on this (or do we dismiss it here because everyone who writes at Volokh is pro-same-sex marriage) pretty compelling:
http://volokh.com/2006/08/23/some-practical-differences-between-same-sex-and-multiple-partner-marriages/
I also find it interesting that interracial marriage bans haven’t been discussed here. Why? I don’t know the answer but I would submit the same “slippery slope” arguments were thrown about by the bigots of that era as well (sadly that era wasn’t that long ago).
And I guess my next question is if the 1,000 or so laws that are conferred upon married couples in this country (federally, here, not really focusing on CA) yet excluded to others (including, yes, polygamists), then how would one argue that anything other than discrimination to other COUPLES who can’t enjoy these federal tax benefits etc, applies to multiple marriages?
In other words, the federal laws on the books are written for couples. I fail to see how this would be anything other than a morass to argue that multiple person marriages could argue they entitled to these benefits ,as they’re simply not written for this. Perhaps I’m focusing too much on the couple side of things, and that’s possible, but I’m throwing it out there.
Lots of interesting debate and insight here (save for Jo and Dog Lover and those who throw out the already dispensed-with arguments that ignore the consenting adults issue), even if I don’t agree with it.
August 7th, 2010 | 1:45 am
I’d also just say that I don’t really have a problem per se of polygamous marriage if the issues brought up in Carpenter’s piece are addressed, in that it’s consensual and equal among adults.
August 7th, 2010 | 2:17 am
dpr I rather find Dale Carpenter’s 2006 article on this . . . pretty compelling:
I have to say that I don’t find those reasons compelling at all—and I suspect Judge Walker wouldn’t either.
Carpenter’s argument boils down to “We’d have to make too many changes to accommodate polygamists. It’s not practical.” But none of that matters. If the polygamist has the right under the equal protection clause (as Walker argues) then the law has to change to allow that right whether its practical or not.
August 7th, 2010 | 11:55 am
It is obvious that some here have taken an eisegetical interpretation (reading into the scriptures what they want to) of the scriptures within the New Testamnet instead of an exegetical interpretation that takes the whole New testament into account.
Jesus said “Let a man leave his father and mother and cleave unto His wife.” Jesus quoted Genesis in this, an affirmed wife, not wives, thus condemning polygamy as a Biblically acceptable form of marriage. And Jesus said wife, not husband, too. Thus, Jesus Christ – God the Son – affirmed one man and one woman as the only legimitate from of marriage. No one should go against Jesus Christ, and that is what you do if you support same-sex marriage and/or polygamy.
Paul the Apostle affirmed this when he said that a Bishop is to be the husband of one wife. If a man gets a divorce and remarries other than what is allowed for in the scriptures in the New Testment (adultery and abandonment by one’s spouse) then a man cannot serve as a Bishop.
Don’t go againt Jesus and Paul the Apostle. That is dangerous spiritually, and condemnes one to being seperated from God.
August 7th, 2010 | 3:14 pm
Carpenter’s argument boils down to “We’d have to make too many changes to accommodate polygamists. It’s not practical.” But none of that matters. If the polygamist has the right under the equal protection clause (as Walker argues) then the law has to change to allow that right whether its practical or not.The answer is in your use of “the polygamist”. In same-sex marriage, there are two people wanting to commit to each other in a system that has evolved into an equal partnership. “The polygamist” doesn’t want equality, and the practical matters of protecting the legal equality of all will make the kind of polygamy made possible by taking Judge Walker’s ruling to another level won’t appeal to “the polygamist”.
The specter of FLDS-style polygamy isn’t really scary as a consequence of this ruling, because the slippery slope tilts away from it.
Whatever kind of polygamy remains will have to show its face and let the public decide whether it’s something to be frightened of. I don’t think we’ve seen it.
In short, marriage seems to have survived the shift from ownership of a woman by a man to equal partnership between a man and a woman. I suspect it will survive the shift to include partnerships between two men or two women. I don’t know if polygamy will survive the shift from ownership of women by a man to an equal partnership between one or more men and one or more women.
August 7th, 2010 | 10:06 pm
re: POST BY Dave Mullenix
August 5th, 2010 | 6:43 am
Also, in the New Testament (Gospel According to Matthew and perhaps elsewhere) Jesus reminds the people that if a married man’s brother dies, it is his duty by Mosaic law to take his brother’s widow as a second wife or a third or whatever circumstances dictate.
August 8th, 2010 | 3:38 pm
dpr writes: “I’d also just say that I don’t really have a problem per se of polygamous marriage if the issues brought up in Carpenter’s piece are addressed, in that it’s consensual and equal among adults.”
You’re aware that you are proving Joe’s point here, right? Once you assert that the state has a constitutional obligation to recognize as marriage any relationship anyone wants to engage in based on their personal sexual appetites, you abandon any “rational” argument against group marriage. Suppose there are four bisexuals, two of them men and two of them women, who want to get married to each other as a group. None of them can be truly “complete” with just a member of one other sex because they are all equally attracted to both sexes. On what grounds do you deny these loving partnerships the term marriage?
It sounds to me like you are just another bigoted polyphobe, trying to impose your private moral view on the rest of us.
August 9th, 2010 | 6:04 pm
One thing I am getting from the ruling is that no rational basis exists in law to protect the values, traditions, or national identity of the American people against “the Constitution.”
There is a custom in Sudan, for example, where an elderly wealthy woman can have children by marrying several young women to mate with her male relatives. Its not lesbianism but a provider – dependent relationship.
If such a woman immigrated here and petitioned the court to recognize her marriage, on what rational basis could the state refuse to recognize that kind of marriage?
Most likely the only reason the state could give is this, “its the will of the people [as opposed to being merely a State constructed institution, contra Walker] that marriage is between one man and one woman.”
Does that mean the state is being arbitrary? Or does it mean the state did its duty by upholding the will of the people whom it represents?
In Walker, the will of the people was dismissed as simply being an artifact of “private morality.”
But if “a private morality” is collectively held by the people and recently ratified at the voting booth by the people, how can it be dismissed as “a private morality.”
Rather, it should simply be viewed as, “the will of the people.”
That said, a question occurs. If the people were to amend the US constitution so that marriage is between one man and woman, can a constitutional amendment be ruled non-constitutional by the court, or does it have to be voted out by the people?
August 9th, 2010 | 7:19 pm
Mr. Carter, though we certainly disagree philosophically, we agree on the correlation between same sex marriage and multi-partner marriage. Stanley Kurtz published his slippery slope theory in 2003, whereupon polyamory immediately became the political football in the same-sex marriage debate. Interestingly, no one asked what we polyamorists what we want. Today there is virtually no community demand for legal marriage rights. Many polyamorists eschew traditional marriage for the seriously flawed institution it is.
Of course, this doesn’t change the fact that if same-sex marriage is made legal, there is no rational argument to deny the same rights to groups of more than two consenting adults. And many of those who oppose allowing same-sex marriage will at this point throw in the red herring assertion (Bill O’Reilly) that there will be no rational reason to deny marriage between adults and children (Incest) and adults and animals (Bestiality), which is hogwash. No one has advocated for that because everyone knows that when we talk about same-sex and multi-partner marriage we are talking about committed relationships between consenting adults. Children and animals cannot by law give consent. Such relationships are gravely harmful to the victims, and there is no rational reason to include them in the debate.
Again, as to that upon which we can agree, it’s too bad that same-sex marriage proponents felt it necessary as political strategy to deny the reality that any reasonably astute person, including their opponents, would recognize. I have always recognized it as the hypocrisy and betrayal that it is of we polyamorists to be treated so dismissively by those who should be our allies and when we as a community have always supported their right to marry, and will continue to do so as a matter of fairness.
August 9th, 2010 | 7:33 pm
The primary problems here are twofold:
1. On a moral level, you are assuming that polygamy is a bad thing. If it works for the family in question, and no one is abused or forced into it, there’s nothing to say that it is morally wrong from a ceremonial or household point of view.
2. The question of whether the state can outlaw a marriage arrangement rests on whether the state has an abiding interest. In the case of polygamy, I posit that there is a state interest that would make it materially different than marriage between two individuals. Marriage comes with rights that affect hospital visitation, power of attorney, inheritance, parenting rights, and access to health benefits. Each of these, when applied to more than a single partner, creates very significant issues in terms of the law’s dealings with marriage partners. In each case, the state would have a strong interest in keeping polygamy illegal. None of these arguments are true for homosexual couples in a marriage contract.
Your column was completely off-base. Sorry.
August 10th, 2010 | 2:46 pm
A couple of points FYI…
Despite an apparent lack of awareness on the part of some who have commented here, interest in egalitarian polyamory has exploded in recent years. Media interest and coverage has done so as well. See http://vb.ly/2cok and http://vb.ly/2com As a result, many more people are practicing this non-religious form of responsible non-monogamy than ever before.
Polyamory (as opposed to religious polygamy) is neither patriarchal nor misogynistic. Poly familes are just as often made up of more men than women as any other configuration. Polyamorous relationships require an egalitarian approach to function so that everyone’s interests, desires and concerns are equally valid and taken into consideration.
August 10th, 2010 | 2:51 pm
Because the arguments used to against Prop 8 (and/or) in the Judge’s decision could also be used for Polygamy, does not make the Judges arguments stupid, especially since the right to marry whether it be someone of the same sex or multiple people is fundamentally the same constitutional right. The same rights which will be won with a different future case.
August 11th, 2010 | 4:51 pm
In response to Peter:
I find your analysis off base.
As referenced above, Judge Walker struck down Prop 8 under a rational basis standard under the 14th Amendment; when dealing with fundamental rights (as SSM is now defined as being), the true standard is whether the government has a “compelling interest” in violating the rights in question, AND whether the steps taken by the government are “narrowly tailored” to preserve those rights in the face of the government’s said compelling interest. The argument made above was that that Prop 8, in Judge Walker’s (flawed, in my opinion) reasoning, couldn’t stand up even to this lower standard of scrutiny.
The things you mentioned (hospital visitation, etc…), as well as the complexity of other issues that present with SSM and Polygamous marriages such as intestate succession, marital property divisions in divorce, and so forth, which would need to be modifying in the face of legal polygamy, strike me (and I think would strike a court, as well) as less-than-compelling state interests; that is, some state legislature throwing its hands up into the air saying “aw, shucks, figuring out new intestacy laws for polygamous marriages is HARD, you guys” is not a compelling enough interest to overcome the outright ban of polygamous marriages by the state, if we follow SSM legalization reasoning.
To be frank, I don’t think I’ve heard a principled argument in favor of SSM and against polygamy to date. I’m not saying that such an argument doesn’t exist — I’m just saying that I haven’t heard one.
And there is a distinction that I think needs to be drawn and considered in this whole debate — are we talking about *one* marriage with more than two individuals in it, or are we talking about the right of an individual to enter into separate, discrete, multiple marriages? Or, is this even a distinction that makes a difference?
August 12th, 2010 | 7:31 pm
What makes Walkers argument stupid is that religion is immutable under the U.S. constitution due to the 1st amendment; whereas same sex relations is not, but walker took it upon himself to nil and void the immutability of religion by declaring it irrational while simultaneously affording the immutable classification to same sex enthusiasts; all in direct opposition to over two hundred years of Jurisprudence.
August 14th, 2010 | 1:53 pm
Many reviews of the case portray the Prop8 defense as poorly handled.
However, a National Review Online article by Ed Whelan explains why it was competent and how bias simply dismissed the defense.
For details, see the link:
http://www.nationalreview.com/bench-memos/243083/judge-walker-and-supposed-lack-evidence-marriage-s-procreative-purpose-ed-whelan
Here is a brief excerpt:
As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?” (3039:16-18.)
Cooper responded to Walker’s question:
Your Honor, these materials are before you. They are evidence before you.… But, your Honor, you don’t have to have evidence for this from these authorities. This is in the cases themselves. The cases recognize this one after another. [3039:19-3040:1]
Walker: “I don’t have to have evidence?” [3040:2]
Cooper: “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]
August 14th, 2010 | 3:17 pm
By all means read the appeal written by Prop8 proponents.
Its a powerful treatise.
It not only answers the argument but also explains, successfully, I think, why the Walker decision was flawed.
After reading it, I felt the Walker decision would most likely be overturned.
Find it at:
http://www.nationalreview.com/articles/print/243684
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