The real no go zone and sex discrimination in marriage

by Ugh

Greetings everyone from a cold as all get out French "no go" zone, aka Berlin.  Looks like that, while I was kinda busy, SCOTUS really does want to decide whether states can discriminate on the basis of sex in granting marriage rights.  Of course, it didn't quite put it that way (and, uh, NYTimes?  maybe you should put the actual questions earlier in the article than halfway through? just sayin).

So I guess we will see if my prediction on the outcome comes true.  I see a 6-3 decision on the result, and then 5 (4 "liberals" + Kennedy) agreeing on majority reasoning, Roberts writing on the stupid questions presented as if they are the real issue in the case, and then the other 3 dissenting.  

What say you?  Or, what's going on in your no go zone?

Comments

[wj]

There are actually two question before the Court:
1) is it constitutional for a state to prohibit gay marriage?
2) can a state refuse to recognize the marriage of a gay couple which was legally performed in another state?

On the former, I expect that the Court will hold, 5-1-3, that it is not. Which is to say, I expect that Roberts will basically concur in the result, but write a totally separate opinion which does so only sort-of and in passing. This as a result of his assigning himself to write the majority opinion . . . and then the other 5 Justices discovering that they only concur rather than cosigning what he has written. They reference Loving v Virginia, while he does not.

On the latter, I expect that the Court will hold, either 8-1 or unanimously, that it cannot. That all of the states have to accept the legality and legitimacy of marriages performed in other states.

[Doctor Science]

Curse you, Ugh, I was just about to post -- and use the words "no-go zone", too. I've got it saved in drafts, I'll put it up late tomorrow.

[Hartmut]

So, you are in the French Sector of Berlin?
That's more of a native no-go zone. The real Istanbul and Teheran exclaves are in the Eastern part of the American sector (Kreuzberg) and the Northernmost part of the British sector (Northern part of Spandau*). ;-)

If ye wanna go gay, Schöneberg should be the place to start, I think. Just follow the rainbow flags.

*in one area everything but the street signs seems Turkish but iirc it's peaceful and safe even at night (which cannot be said about certain other parts of town).

[russell]

wj's prediction sounds about right to me. maybe 4-1-4, but 5-1-3 also sounds about right.

i'm just amazed at the degree to which this is all still a thing. i.e., that folks are so upset by gay people that they will take stuff like this to the SCOTUS.

in other, perhaps related, news, the battle for the hearts, minds, and cakes of the nation rages on.

i suppose, if you have to make a pro-gay cake, then you probably should also have to make an anti-gay cake.

but can't we all just get along?

apparently not.

were it me (talking about the cakes now), I would take the cake order, and just misspell it. "dog hates gays". oops, sorry, my dyslexia is kicking in!

over and over again, if need be. i'm a true patriot, i would be willing to spoil hundreds of cakes for freedom, if that's what it took.

i wonder if east orange NJ was considered a papist garlic-eating no-go zone when my grandmother and great-grandparents moved there after they went through ellis island, back in the nineteen-aughts?

you know those italians - bomb-throwing terrorists, every one of them.

plus ca change.

[Ugh]

Sorry Doc!

Hartmut - I'm at the Waldorf, which sector is that? (I guess I could look it up)

[wj]

russell, I can sort of understand where at least the older of them are coming from. I am sufficiently a child of the era in which I was born that the mere thought of gay sex makes my skin crawl. It doesn't seem like a reaction I am likely to get over. Which didn't keep be from concluding early on that gay marriage was the right thing to do.

Not too surprisingly, I figure that, if I can get past my visceral reactions on the subject, so can the rest of those on Medicare. And I get impatient when they go into hysterics instead.

[russell]

I can understand folks being uncomfortable with the idea of gay sex. I feel that way if I think about, frex, Michael Jackson and Priscilla Presley. So, I don't think about it.

What I'm more puzzled about is the inability to just let it go, to the point where folks will take it to the SCOTUS.

It's a big country, lots of different kinds of people live in it. Sometimes you just have to shrug your shoulders, scratch your head, and move on. Seems to me, anyway.

[hairshirthedonist]

I'm gathering that we're headed toward the conclusion that not fighting tooth-and-nail against same-sex marriage doesn't force one to vividly imagine (icky) gay sex against his or her will.

I was saddened when my parents divorced, and I had no desire to think about them getting busy, despite my wanting them to stay married. See how that works?

[wj]

Not saying that I don't agree with you both. Just that some people apparently either cannot compartmentalize, when it comes to discussions of gay marriage. Or can't keep their mind off the subject at all.

I'm only speculating on why, when the subect arises, their reaction is so great.

[jeff]

sex is such a touchy subject but I just had to share this:
https://www.youtube.com/watch?v=vd3D2gsPUR0&x-yt-ts=1421828030&x-yt-cl=84411374#t=31

[Marty]

Anyone who has been married for 10 years should be completely able to consider marriage without considering sex.

[Brett Bellmore]

"What I'm more puzzled about is the inability to just let it go, to the point where folks will take it to the SCOTUS."

Well, for me it's largely a procedural thing. I don't like constitutional law being radically changed without amendments. And it seems awfully convenient that, just around the time the ERA goes down to defeat, suddenly people 'discover' that the 14th amendment had the same implications as the ERA 'all along'.

Looks to me like a decision by the legal community to render the states' refusal to ratify the ERA moot. I don't like that.

Procedurally, if the states had voluntarily adopted SSM, or it had come as a result of the ERA being ratified, I'd have no beef. I just don't like the way it was accomplished.

I also think there's a lot of dishonesty on the implications of how this was accomplished, going forward. I can't see how bans on polygamy can stand, if the reasoning behind SSM legalization is sustained, unless it was just a issue specific rationalization which was never intended to be taken seriously.

In all honesty, the case for legalizing polygamy was always enormously stronger than for SSM, it being a long standing, traditional form of marriage, widely practiced throughout history to this day, and not a late innovation. It really, genuinely was part of what "marriage" meant, unlike SSM, and only fell as a result of religion based animus.

[dr ngo]

I've been married 45 years. I disagree.

[dr ngo]

(that was disagreement with Marty, not Brett)
(in this case, anyway)

[wj]

Brett, the question wasn't about those who have rational (dispassionate) reasons to think the Court should stay out of the issue. It was about those who get hysterical when any issue involving gays comes up. (Gay marriage just happens to be their focus at the moment. But it is hardly an exclusing issue for them.)

[russell]

I'm missing something.

What's the connection between same sex marriage and the ERA?

[Brett Bellmore]

What did I say to suggest "the Court" should stay out of the issue?

I think "the Court" should absolutely take this on, and deliver a serious beatdown to the lower courts. Tell them in no uncertain terms that they are not a permanent constitutional convention, and that ratifying the ERA is up to the states, not the judiciary.

Not going to happen, of course, but that, not "the Court" staying out of the issue, is the natural implication of my position.

[wj]

Pardon my typo. I meant to say "the courts" -- lower case and plural.

[Brett Bellmore]

"What's the connection between same sex marriage and the ERA?"

The courts are accomplishing SSM by treating the 14th amendment as though it meant what the opponents of the ERA warned it meant. The ERA was proposed and pushed precisely because the 14th amendment DIDN'T have the meaning now being attributed to it.

What we're seeing now is a determination to render the ERA's defeat meaningless, by reinterpreting the 14th amendment to mean the same thing.

[ASCII]

Does it really take a new constitutional amendment to drive home the point that "any person" means EVERYONE?

Perhaps it does.

[Snarki, child of Loki]

I'd like to hear Brett's take on Loving v. Virginia.

[hairshirthedonist]

What we're seeing now is a determination to render the ERA's defeat meaningless, by reinterpreting the 14th amendment to mean the same thing.

Or it was a determination not to interpret the 14th properly that led to the proposition of the ERA (to render the improper interpretation meaningless). Now that we've got the 14th straight, no need to force the issue.

(I just made that up. This is fun!)

[hairshirthedonist]

And who's being discriminated against without legal polygamy?

[wj]

Obviously, folks who are incapable of making a decision and sticking to it. Or with committment issues.

[russell]

What we're seeing now is a determination to render the ERA's defeat meaningless, by reinterpreting the 14th amendment to mean the same thing.

That's odd. I thought that what we were seeing now was a request for the SCOTUS to resolve differing lower-court opinions on the constitutionality of same-sex marriage bans.

Isn't that exactly what the SCOTUS is supposed to do?

As an interesting historical aside, I note that torturing the original meaning of the first clause of the 14th Amendment was how we came by our current understanding of corporate personhood.

That's OK, but construing "all persons" to include "women" or "homosexuals" is a bridge too far.

I will never understand the conservative mind. I think I prefer it that way.

[Patrick]

Polygamists, presumably. It isn't a crazy argument.

While I acknowledge the point, unlike Brett, I do not see it as a reductio. If polygamy bans should stand, they should at least satisfy rational basis review. If they can't, that's as good as an admission that they're terrible laws.

[hairshirthedonist]

I don't really care that much about polygamy being legal or not. I just don't see that it's particularly relevant to the question of same-sex marriage as it concerns equal protection. People aren't born polygamists.

By Brett's logic, any law prohibiting anything is discriminatory against anyone wanting to do that thing. (Think of the poor murderers.)

[hairshirthedonist]

I should take that back partially. Brett never really explained why he was bringing up polygamy in a discussion about same-sex marriage, so I can't say that this was his logic.

[wj]

We could try a little analysis here. There are a fair number of examples of homosexual couples staying together for decades, even without the ability to get married. Nice stable couples. And those are the folks that gay marriage is all about.

But what do we see in the case of polygamy. I know of several cases of a menage a trois lasting for a long time. But larger groups? Other than those with religious mandates for it (e.g. fundamentalist Mormons), every case I know of where a group of 4 or more tried to make it work ended in well under 2 years in massive bad feeling all around. Which is enough to make me at least suspect that it is not a viable family structure. (Anyone with observations, preferably personal acquaintances so we know what we are talking about, feel free to offer them.)

Not to mention that, as HSH notes, people are born gay, and apparently stuck that way. But they aren't born polygamists.

[Brett Bellmore]

How do you know people aren't born polygamists? Not that I see how it's relevant to the question. Why somebody wants to do something is just precisely irrelevant, if they have a right to do it. After the Supreme court decides this case, if it goes as I expect, straights will have just as much right to engage in SSM as homosexuals have a right to marry the opposite sex today.

Because the law doesn't hinge on why you desire to do something, if a right is involved.

[hairshirthedonist]

How do you know people aren't born polygamists?

How do you know that they are? Do you deny the certainty with which we know people are born with a gender of some kind (regardless of whether or not it conforms to the traditional, binary all-male/all-female dichotomy)?

Are you seriously suggesting that polygamists are born as polygamists the same way I was born as a male?

Same-sex marriage is being considered as a matter of equal protection, as in two people not being allowed to marry because of their genders, or at least the gender of one of them.

Why should the law prevent me from marrying one Brett Bellmore simply because I happen to be male?

[hairshirthedonist]

Funny thing - look at a map showing countries where polygamy is legal. See how it lines up with those majority-Muslim states Brett says can't do liberty.

[russell]

If there are enough people who want to make polygamy legal, they are free to do all the things that gay people have done to advance their cause.

Lobby legislators, challenge existing laws, bring lawsuits if need be.

Present their case to the public at large. Explain, and demonstrate, why the various concerns people have about polygamy are really not cause for concern. Spend years and decades advocating for their point of view.

Perhaps they will win the day.

The relevance of that question to the question of same-sex marriage escapes me, just as the relevance of the ERA to the question of same-sex marriage escapes me.

Apparently, it's red herring day.

[hairshirthedonist]

Yes. Where is the push for this important issue?

[Patrick]

Polygamy won't be able to argue strict application of equal protection because marital status isn't protected in the same way as sex. That being said, rational basis is rational basis, and supporters of a law should do done soul searching if they can't come up with one. From the simple fairness based position, gay marriage should be legal because no rational basis exists for it not to be, and it's a valid constitutional concern because of extant discrimination against gay people. And if you accept that argument, it's hard to see why polygamy shouldn't get its foot in the door via the same reasoning.

[hairshirthedonist]

And another thing!

Let's not pretend, since we're all about rights, that polygamy, as actually practiced, hasn't been mostly about the subjugation of women rather than an empowering force for all people equally.

[wj]

Maybe I'm just dense. But if someone is born homosexual they cannot fall in love (lust?) with someone of the opposite sex. If assuming, for the sake of discussion, that someone can be born polygamous, they can still fall in love with one person -- indeed, they would pretty much have to start there.

So homosexuals are being discriminated against when it comes to marriage, because they cannot marry someone they love. Whereas polygamists are, at most, being prevented from marrying all of the people they love, but can still find someone they love to marry.

In sum, it's a whole different level of discrimination. Which makes it easier to find a rational basis for prohibiting polygamy than for prohibiting same sex marriages.

[Ugh]

If states are permitted to discriminate on the basis of sex in such a fundamental thing as marriage, in what area couldn't they discriminate on the basis of sex? Could they bar women (or men) from holding civil service positions? Being lawyers? Driving?

Why can't a compelling case be made that the continued discrimination against women after the ratification of the 14th Amendment was more about cultural mores, willful blindness, religious practices, and out and out subjugation, rather than what the text of the 14th Amendment actually says (thus leading to things like the 19th Amendment)?

Stated differently, isn't possible in the 14th Amendment that The People, when push came to shove and had to think hard about what text will be permanently written into the Constitution, were willing to write down their actual legal principles, even though they weren't willing to live up to them in practice?

See, e.g., The Sedition Act of 1798.

[Countme-In]

Wait ... WHAT? hairshirthedonist and brett bellmore are tying the knot and moving to Yemen?

"Oh," said Curly, "bigamy!".

And I'll bet both of the wives will make them sorry they were born altogether.

I was born single, became a serial monogamist, and now have returned to my birthright.

Can you be born a closeted polygamist?

Wouldn't you need a walk-in closet for that?

[Morat20]

Rational basis for polygamy is easy.

"We can't do reciprocal rights in a polygamous marriage as a matter of standard law".

Simple example: Power of attorney. My wife is unconscious? I have the power to make medical decisions for her due to my marriage. And she has the power to do so for me.

If you have, say, a group marriage -- three healthy people and a fourth unconscious prepping for surgery, who makes the call?

The 'law' part of marriage, the actual 'contract' bit that you need the valid marriage license for? It works because it's two people making equal exchanges and equal agreements.

I think you can win on rational basis entirely on 'We seriously have no idea how to do this in a remotely workable way'.

[Snarki, child of Loki]

Count:
"Can you be born a closeted polygamist?

Wouldn't you need a walk-in closet for that?"

Well, I'm sure you could attract 'em with your charm and good looks, but if you're going to collect multiple spouses, you'll need the closet space if you want domestic harmony.

(just having outed myself as an old-fasioned sexist, there)

[Ugh]

If you have, say, a group marriage -- three healthy people and a fourth unconscious prepping for surgery, who makes the call?

Just do it on a LIFO or FIFO basis. Or designate it in the healthcare power of attorney.

[cleek]

the amount of work it would take to rework every personnel database (and all of their associated UIs) in the country is more than enough reason to forbid polygamous marriage.

won't someone think of the IT people?

[Morat20]

Just do it on a LIFO or FIFO basis. Or designate it in the healthcare power of attorney.
You could do it, if you hired an attorney to write up a lengthy contract spelling out divisions of power.

But those power divisions cannot be equivalent by nature, and you certainly can't make a standard boilerplate contract for it -- which is what marriage effectively IS on the civil side.

Which is plenty of rational basis. (It also covers bigamy, because you've -- again in the example -- given power of medical attorney to two people simultaneously with no legal basis to distinguish the two).

LIFO or FILO runs into the problem of non-equivalency. A second spouse is perforce lesser than a first. (Whether it's second married or second to arrive at the hospital).

[Ugh]

But those power divisions cannot be equivalent by nature, and you certainly can't make a standard boilerplate contract for it -- which is what marriage effectively IS on the civil side.

What do you mean you can't make a standard boilerplate contract for it? Just set up a default rule in the marriage law, "Unless the contracting parties decide otherwise, priority will be given to the first marriage, then the second, etc. In the case of simultaneous marriages, the parties will be required to designate a priority order as part of the marriage license application."

Or just require everyone to so designate. And I'm not so sure what's problematic about non-equivalency.

[wj]

cleek, it wouldn't actually be that big a hassle. Most databases these days are pretty flexible. You'd just have to add a field to indicate the number of spouses. And make variable the group of fields which designate a particular spouse, with the name pointng to the rest of the group.

The user interfaces would take a little more work. But nothing massive, I should think.

We aren't talking anything like the massive effort required for the Y2K fields. And that's even if most databases hadn't been made more flexible as part of that effort.

What new legal stuff would get added might be another story, however. Especially if the personnel databases were expected to keep track of who outranked whom among the spouses.

[CharlesWT]

Definition of rational basis review/test: Judicial abdication.

[Little Bobby Tables]

"won't someone think of the IT people?"

We think about them all the time, but plural marriages aren't a big deal. That is, if you've gotten to the "programming 101" chapter on "arrays of pointers".

[cleek]

You'd just have to add a field to indicate the number of spouses.

and then update all the code that uses those databases to expect N spouses instead of 0,1. easy peasy. and then update all the UIs to accept N spouses instead of 0,1. trivial!

why, just imagine how easy it would be to change all those DBs if people were suddenly able to have multiple birthdays, or multiple last names. bop on over to ye olde SQL Server management Console and make a new table. all done.

arrays of pointers
are super awesome, indeed. but i've never seen a program that can go from UINT spouseID to vector<UINT> without a bit of work from programmers. the fact that something is trivially easy to sketch out on a white board doesn't mean it's trivially easy to actually implement. which is why i wrote "the amount of work it would take..."

[wj]

I don't think anybody is arguing that it would be trivial. Just that it isn't going to be quite as massive an effort as you (seemed to me) to be saying.

Always bearing in mind that i think it would be a bad idea in the first place. But not because to the programming effort involved. Far more work would be required to sort out all the legal ramifications on everything from inheritance to divorce. Just for one example, is one individual departs, is everyone else still married to each other? Even if it was just that one person who was the common point?

And if not, who gets custody of the kids? Do you have to run DNA tests, to be sure which kids are whose? And that's only the beginning.... The programmers would be finished long before the legislators and the lawyers were well started.

[russell]

We aren't talking anything like the massive effort required for the Y2K fields.

The Y2K change involved changing the representation of one field to hold four digits rather than two. No doubt some algorithms that made bad assumptions needed tweaking.

Changing the cardinality of the relationship between entities in your data model is an enormously more complicated change.

Don't take my word for it, go look at your code. Just saying.

If masses of people insist on having plural marriages, we'll have to bite the bullet and get it done.

Other than fundamentalist Mormons and some niche populations in the pagan community, I'm not seeing a groundswell of demand.

[wj]

And even if it should happen, there will still be opportunities to have hysterics about marriages with animals. (Which, in fact, I have already seen as a probably consequence of allowing gay marriage.) Or some other nonsense divorced from reality.

[russell]

who will speak for the box turtles?

and what if we have to add "species" as a field associated with "spouse"?

it'll be pandelerium.

[russell]

WHAT IF WE HAVE TO ADD VETERINARIANS AS HEALTH CARE PROVIDERS UNDER THE ACA!!!!

I'm seeing those four horsemen saddling up, even as we speak.

[russell]

i feel myself heading for the Count's territory. it's getting hard to even talk about public policy nowadays, other than by making fun of it.

i see the tracks of your tears, buddy. i'm shedding a few myself, these days.

[sapient]

Other than fundamentalist Mormons and some niche populations in the pagan community, I'm not seeing a groundswell of demand.

Constitutional rights aren't a market issue; therefore, "demand" shouldn't be the driving force.

Just to clarify my own feelings on the subject (which I do here annually or so): the government doesn't have any business in people's domestic arrangements, certainly not in preferring some over others. I am far from libertarian in my politics, but how people arrange their households (whether based on sexual partnership, children's welfare, economic necessity, etc.), is none of society's business (unless, in fact, it's harming someone), just as reproductive choices aren't the business of the public. Appointing legal representatives, making a will, sharing property, etc.: people who are interested in doing these things can easily do so without civil marriage.

That doesn't mean that weddings should be abolished, or that people shouldn't have long-term commitments which they acknowledge in public. People should call themselves wives or husbands if they want, and should spend lots of money on white dresses and tuxes. It's all good. But they shouldn't get different tax treatment, or other special favors or penalties.

[CharlesWT]

What sapient said.

[russell]

Constitutional rights aren't a market issue; therefore, "demand" shouldn't be the driving force.

I hear you, and I don't disagree.

My point, to the degree that I actually have one about the plural marriage issue, is that the reason gay marriage is on the agenda and plural marriage not is that nobody's really asking for laws against plural marriage to be overturned.

Where, for "nobody", please read "not a lot of people".

Whether it's right, wrong, or indifferent, things just usually don't happen unless somebody pushes for them.

None of that is a comment on the substance of whether laws against plural marriage are constitutional, or not. It's just an observation of the reality.

I don't really have particularly strong feelings about the tax benefits of marriage, or the lack thereof. What is useful is public recognition of the contract, because it simplifies a lot of stuff when it comes to figuring out who's responsible for who, how property is handled if someone dies, etc etc etc.

As you point out, there are ways to arrange that without civil marriage. I'm not sure that going about things that way would be that much different than civil marriage - i.e., if we call it something else, what's the difference? but, I don't really have particularly strong feelings about it one way or the other.

But net/net, I agree that rights should not be, and as a matter of principle are not, conditional on some kind of demand, in the market sense.

But if they're not currently recognized, they probably won't be unless you ask them to be.

[hairshirthedonist]

Reading through the more recent comments has been a real hoot, that is, until SAPIENT came along and RUINED IT!!!

Way to go, sapient. Thanks a lot.

[Brett Bellmore]

"is that nobody's really asking for laws against plural marriage to be overturned."

Because the major religion in the US that had plural marriage as a tenant got attacked by the US army, and was forced by the federal government to officially change it's religious doctrines.

And the members of that religion who don't regard that change in church doctrine as genuine, and try to practice their religion as unamended by the government, have to be really quiet about it to avoid going to jail. And had no good reason to take that risk when the odds of prevailing in court were small.

But, once the Supreme court adopts a rationale for mandating acceptance of SSM which logically encompasses plural marriage, the odds won't look so small, and some of them will start risking it.

IOW, the fight for plural marriage starts the day after the Supreme court upholds the lower courts' SSM rulings.

Oh, and it will cause trouble to legalize plural marriage? Do you imagine it doesn't cause trouble every time somebody moves here from one of the many countries where plural marriage is legal, and the law here won't admit they're married to more than one person?

[Shane]

Somebody up above said current marriage is basically boilerplate contracts, and we can't do poly marriage because how do you write the boilerplate.

We've got no problem with multiple parties in actual contract law. Corps or Partnerships or what not. Just cos it may be tricky, or trickier, is no reason to outright ban something.

Plus, all the poly people I know of are ace at subtle, nuanced agreements and interrelationships. They'll be motivated enough to work out the specifics.

[Countme-In]

Back in the day, FIFO was an open question in the grotto at Hugh Hefner's Playboy Mansion.

Ask Bill Cosby.

People who try to be really quiet about their practice of polygamy usually end up having the U.S. Army called in anyhoo, just to break up the skirmishes among each of the wives' militias.

By the way, when we talk about polygamy, we do realize, gentleman, and I use the term advisedly (I'm still of the opinion that sapient is female, but I could be stood corrected) that we're talking about one guy marrying many women.

How about one woman marrying many men?

I can hear the gunfire now.

It kills me that Brett was advising the other day doing something about defanging Mohammad's tribe, not to mention his occasional perorations regarding immigration, and now he's hearting the polygamists among them against the depredations of government.

Once the oil money is made to dry up, believe me, the sheiks will rue the many wives.

In bars, I'm theoretically polyamorous. Then, after some preliminary conversation, I excuse myself to go home and feed the box turtle, who accepts me for what I am, a shell of a man.

[russell]

Brett, what's your point?

That if we allow same-sex marriage, polygamy is just around the corner?

If so, how exactly does that bear on the question before the court?

Or, is it that we can't allow same-sex marriage unless we also allow polygamy, because fairsies?

We aren't actually talking about polygamy. Or, weren't. Usually the red herring thing makes sense in some kind of way, but I'm just not seeing the point in this particular case.

Where is it you're trying to go with the polygamy thing? Would you mind spelling it out?

I excuse myself to go home and feed the box turtle, who accepts me for what I am, a shell of a man.

I take back what I said about heading for the Count's territory. I got nothing.

[russell]

Also, on the topic of mockery as the only viable form of political discourse nowadays, I offer this discourse on life as a plural wife, via Cracked magazine, one of my personal favorite go-to sources for thoughtful discussion of the topics of the day, with a wise-ass twist.

It's like The American Conservative, only with a whoopee cushion.

A spoonful of sugar helps the medicine go down.

[Hartmut]

Imo there are basically two reasons to go after polygamists with the force of law:
1) fraud
2) coercion/abuse
And neither is specific to the poly- part.
Where the state goes after fundamentalist Mormons these days* it is in most cases the latter (sexual child abuse) and occasionally the former (welfare fraud, falsification of legal documents). The state should do that even if polygamy was 100% legal.

*consensual sex between adults absent of marriage not being a crime anymore independent of number of people involved.

[Countme-In]

That's a great link, Russell.

The woman in question probably would have been happy to see the U.S. Cavalry show up and whisk her away from those smelly old man cultists, had the husband (as in "animal husbandry') not "performed a ceremony" to annul the whole thing anyway.

I like to imagine sequels to movies that I really like, just to see if the premise can stand the test of time. One example is the "The Graduate", which, if you recall, closes with that great shot of Elaine Robinson, she in her bridal gown, and anti-hero Benjamin Braddock sitting in the back of the bus, fresh from the latter spiriting her away from her wedding and the angry and dysfunctional Robinson family (hey, hey, hey Mrs ...).

It's a wordless scene, brilliantly conceived by Mike Nichols, back in the day when the camera was allowed to rest and spend some time with its subjects, and at one point while Benjamin is gazing off to the side, reveling, I think, in his triumph, she shoots him a glance, as if to say "OK, hopeless romantic, what now? At some point, we have to get off the bus, rent an apartment, get jobs, and go shopping for drapes."

My sequel, exactly one minute long, will take up precisely where that left off. The bus will come to an unscheduled stop, Elaine Robinson will disembark, hoist up her wedding gown and begin trudging back to the church to marry the man (yes, a pompous face man, but unlike Braddock, a man with a plan) she left there a few minutes before.

Run credits.

Marriage to one person is complicated. And because we don't live life, like Merlin ... backwards ... we know not what we do in the grand leap of faith.

I think this is true more of women than of men, given the traditional power balances between the two and as those balances tip as society liberalizes. I think women, as time goes by, become more practical and prone to regret, whereas men kid themselves, counter-intuitively, with a certain amount of, for want of a better word, romanticism.

Everyone's mileage varies, of course.

So, I can't imagine polygamy, of the kind talked of here, being particularly healthy or practical in the long run for anyone. Who is kidding whom?

So, yes, serial monogamy more or less may be the more natural state over our long lives (life is too short, on the other hand), though Mickey Rooney is dead now, so we can't get his opinion about how that works out.

I suspect there was some overlap in his serial-ness, but love found Andy Hardy over and over again.

[hairshirthedonist]

once the Supreme court adopts a rationale for mandating acceptance of SSM which logically encompasses plural marriage

Therein lies the rub. It's not necessarily the case that the SCOTUS will adopt a rationale which encompasses plural marriage when mandating acceptance of SSM (or striking down bans on it, which isn't exactly the same thing, but "mandating acceptance" does have a nice oppressive ring to it).

[Countme-In]

On the other hand, those who wish to allow the States to deny SSM, don't seem to have a problem with mandating denial of man dating.

How weird is that?

[russell]

Speaking purely personally, I think it would be very hard to establish and maintain the quality and depth of relationship I have with my wife, if I had to try to do that with multiple wives. At the same time, anyway.

Nor, for that matter, if I were one of a handful of husbands.

Although I don't know this for sure, I suspect that my experience is more or less the common one.

It seems to me - and I'm speaking only for myself - that the goals and expectations that most people have for marriage these days would be hard to achieve in a plural marriage arrangement.

Marriage as an institution is a somewhat different thing here, and now, then it has been in other places and times.

So, my personal prediction is that, even though a same-sex marriage ruling might establish a precedent that plural marriage advocates could use to gain legitimacy for their approach to things, I don't really see that in the cards.

If I'm wrong, it'll only be because a lot more people than I expect actually do want plural marriages. In that case, we should probably at least consider allowing them.

Even if only a few people want them, maybe we should consider it, it just seems less likely to happen as a practical matter. To me.

In any case, I don't see how any of that bears on the case before the court one way or the other.

[sapient]

So, I can't imagine polygamy, of the kind talked of here, being particularly healthy or practical in the long run for anyone. Who is kidding whom?

Just in case anyone thinks I advocate for plural marriage, it seems kind of icky to me. However, my view of ickiness is not relevant to someone else's lifestyle choice (unless there's harm being done). And, it seems to me that the marriage practices described in russell's link are misogynistic.

My biggest problem with "marriage" is that it doesn't work for many people. Many of those people believe that they're failures if they don't keep trying to live up to the myth. Getting rid of "marriage" as a legal institution wouldn't solve this problem, but maybe we wouldn't hear as many lectures on the curse of single parents, the "problem" of divorce, etc.

[hairshirthedonist]

I'd say, "what sapient said" if I had stronger feelings about the broader issues of civil marriage. It's not an argument I'd bother taking up, but, at the same time, it's not one I have a particlar desire to refute.

It's perfectly sensible, IMO. I just don't think it's going anywhere, and I think the vast majority of the sufferring under what was the status quo of legal marriage in the US has been endured by same-sex couples. That's why I feel strongly enough to argue in favor of same-sex marriage, in particular.

I remember a few years back when Maine or NH (???) took up a vote on same-sex marriage. I think it was JanieM, who used to be a regular here, who lived in whatever state it was. My position at the time could have been summed up more or less as "civil unions for everyone," with church marriages having no bearing on the legal recongnition of the union.

She made a comment to the effect that we're not going to roll back civil marriage for opposite-sex couples. It's far more realistic to bring same-sex couples into the existing legal framework than it is to make a new one, and, in the meantime, people can't live their lives the way they want to and are sufferring for it. And I thought, "Yeah, my nifty little abstract notions about how civil marriage ought to work don't really mean sh!t compared to making things right for a lot of people as soon as possible. So fnck that. Same-sex marriage it is."

[hairshirthedonist]

Damn. I was referring to sapient's earlier comment with "what sapient said," not the one posted while I was typing.

[Morat20]

We've got no problem with multiple parties in actual contract law. Corps or Partnerships or what not. Just cos it may be tricky, or trickier, is no reason to outright ban something.
Again, as I said, you could with a lawyer arrange a poly marriage (I pity hospitals and anyone else you're involved with, as they're gonna have to read the contract whenever you show up).

The problem is that marriage -- both in actual law and in practice -- is an equivalent exchange of powers and rights.

If you go FIFO and say "First wife gets all the power, second husband gets none" you've lost equivalence. First husband has powers and rights second husband does not.

A great deal of solid, established law and practices (and tax codes) rests on the assumption that the difference between man and wife is "gender". All other rights and responsibilities are equal.

Which is why gay marriage boils down to a simple question of whether it's sex discrimination (because the difference between gay and straight marriage is solely gender) whereas poly marriage adds in layers of complexity that the law has no accommodation for.

I'm perfectly happy with polygamy, I've got friends in a triad relationship they've made work for a decade now. B

But legally speaking -- and jumping back to the simple medical case -- if Bob's in the hospital in a coma and his two wives disagree on treatment, how do you handle it?

If you say the first woman he married makes the call, that means the second woman is "lesser" in the eyes of the law. Bob might be able to make medical decisions for her, but she can't for him.

While these are solvable problems -- multi-party contracts exist, and people might cheerfully surrender some of their equality -- that sort of thing takes a lawyer and multiple meetings to hammer out to ensure all parties are fully cognizant of the situation and what they're agreeing to. It's going to depend heavily on multiple, independent decisions by the three or more involved.

I'm pretty skeptical about somehow solving that in a standardized, one-size-fits-all pattern like stock marriage.

And I'm pretty sure any state government (or the Feds) could simply call it intractable and not what the system is set up for.

Being unable to set up some standard poly-marriage setup for all the rights, responsibilities, and tax crap that comes with marriage is a pretty rational basis for not doing it. Specifically, being unable to set it up in a way that treats all individuals as equals.

[Countme-In]

"but maybe we wouldn't hear as many lectures on the curse of single parents, the "problem" of divorce, etc."

Polylecturing on multiple subjects simultaneously at the drop of a hat is the real problem.

Talk radio .... the usual suspects, etc.

When Sarah Palin declares "God Bless Our Snipers", she has no idea whom I want sniped.

[wj]

Just curious about something. I suspect thta many of us know people who are a) homosexual, and b) in an on-going relationship. It colors what we think of gay marriage -- doesn't determine it, but does color it.

But how many of us know (or have known) groups of 3 or more who are in an on-going relationship? As in, sleeping together and/or living together. As noted above, at one point or another I've known a couple dozen groups who tried it. The threesomes sometimes work. The only larger on which did actually involved two legally married couples . . . but one of the guys was gay, and that marriage was basically platonic. (It was the early 1970s, and being out of the closet was still seriously problematic even in the San Francisco area.)

Anybody else got some actual first hand observations they could share?

[Hartmut]

Maybe each marriage exceeding two people needs odd numbers for each sex, so disputes could be solved by majority vote (with a quuorum for each sex too of course) ;-)
Two of the three wives and three of the five husbands have voted for X, therefore X it is.

[russell]

My biggest problem with "marriage" is that it doesn't work for many people.

I hear you. And, as an institution, it does have a privileged place in law etc.

So, if it doesn't work for you, and/or if some other less traditional situation is your personal best fit, you may find yourself in a kind of vague place, socially and legally.

[Brett Bellmore]

"But how many of us know (or have known) groups of 3 or more who are in an on-going relationship?"

Thanks to "common law" marriage, you can't escape bigamy prosecution by just shacking up. This makes the situation somewhat different for polygamists than it was for homosexuals, in that just living together as though you were married didn't amount to a crime for them, even if the state didn't legally recognize the marriage.

[Snarki, child of Loki]

Any kind of plural marriage should be treated (legally) to first order as a form of incorporation.

It's not like people don't know how that works, and how to deal with it. The "setting up a corp" is (AFAIK) mostly boilerplate. So the "medical POA" goes to whoever is running HR.

Dissolving or winding down a corp is much messier than setting one up, I expect.

[wj]

Brett, I am not familiar with the law elsewhere. But at least in California, if the individuals involved are not legally married to anybody, there is nothing illegal about a group setting up housekeeping. And bigamy only gets prosecuted when fraud is involved (i.e. one individual, usually a man, representing that he is unmarried when he actually is). Likewise, someone committing polygamy (under the definition in your link) would have committed fraud because he would have necessarily represented in his second marriage license application that he was unmarried.

In short, at least here, when there are legal consequences what is being prosecuted is fraud. Laws elsewhere may vary, of course.

[Brett Bellmore]

Well, yes, depends on the state. Utah's laws are particularly harsh, at the insistance of the federal government: Polygamy is banned in the state constitution, that was a condition of their getting statehood. In fact, the state constitution declares this prohibition can't be repealed without the permission of the federal government!

It's amazing what can make it's way into a state constitution when federal troups are involved in drafting it.

[hairshirthedonist]

Somehow, these 19th Century, Mountain West polygamists remind me of this:

Jebediah Springfield led a band of wagons from Maryland and headed westward with his partner Shelbyville Manhattan on a quest to find "New Sodom" after misinterpreting a passage of the Bible. They later parted over political differences; Manhattan wanted to found a town where people could marry their own cousins, while Springfield wanted a town devoted to chastity, abstinence, and a flavorless mush he called "root-marm". Manhattan went on to found the rival town of Shelbyville.

[Snarki, child of Loki]

wj: I'd guess it gets trickier when you add "commonlaw marriage" to the mix.

[jeff]

"Anybody else got some actual first hand observations they could share?"

Back in the 80's my best friend and I fell passionately in loved a very smart lady. Life was great for a couple of years (no conflicts or jealousy) but she had a desire to be married and found another guy who made the offer. Sadly that did not work out well for her. I wonder to this day what might have been if polygamy in America was an option.

[CharlesWT]

Looks like some states will take their marriage marbles and go home.

Oklahoma bill would put an end to marriage licenses: Oklahoma state Rep. Todd Russ, R-Cordell, has filed a bill that would put an end to marriage licenses in the state. Under his plan, a religious official would sign a couple’s marriage certificate, which would then be filed with the court clerk.

[Countme-In]

"It's amazing what can make it's way into a state constitution when federal troups are involved in drafting it."

Yes, left to their own devices, the states might spend their time prosecuting sodomy and Sharia.

hairshirt, that's a great story.

I can imagine the conversations in the wagons down the line after a few weeks on the trail:

"So, let's get this straight now. The two clowns upfront say we must observe strict abstinence and chastity rules ...

" .... yes, but you can marry your cousins!"

"Kind of takes the fun out of marrying the cousins, doesn't it?"

"Well, you've a good point there, and besides, if I have to choke down another meal of this gruel they've mandated for us, I'll just spit."

"Makes a body wonder which part of the Bible they've been reading. Did you notice they've got their pretty female cousins shackled together in the wagon behind us?"

"Maybe we'll be attacked by wild Indians and the Federal cavalry will rescue us, do you think."

"Unless the Indians are Comanche, and then I believe we'll be able to dispense with the chastity and the abstinence pretty quick."

[Countme-In]

CharlesWT:

Yes, that law in Oklahoma seems awfully tough on conservative Oklahomans and the religiously unaffiliated livestock they tend to marry.

They won't be able to put straw down in their hotel honeymoon suites.

Texas, not to outdone, wants to go after their government employees who carry out the law by issuing licenses.

http://www.theblaze.com/stories/2015/01/13/in-texas-marriage-is-sacred-major-punishment-for-any-public-employee-who-issues-gay-marriage-licenses-under-proposed-bill/

If I were Obama, I'd saddle up the Federal troops and send them into both States for a little a*skicking in favor of all those who wish to get married and those who issue the licenses.

[Countme-In]

Vlad Putin is invited to visit both states and address their conservative legislatures on matters of love.

EIEI - Oh! with an oink-oink there.

[wj]

So will the situation in Oklahoma, assuming the law passes, be that there will be no marriages which are not conducted by a religious official? Something tells me that will run up against the Establishment Clause, as generally interpreted by the courts.

[russell]

"Kind of takes the fun out of marrying the cousins, doesn't it?"

I got the flu and I feel like 10 miles of bad road, but the Count can always put a smile on my face.

assuming the law passes, be that there will be no marriages which are not conducted by a religious official?

Time to bring back jumping the broom.

[wj]

Time to bring back jumping the broom.

Do you suppose self-styled conservatives will refuse to allow something a little more modern -- like jumping the vacuum? I mean, they've been around for a century by now....

[Countme-In]

Who does the vacuuming in a polygamous family?

[sapient]

Who does the vacuuming in a polygamous family?

Hmmm. The concept of taking turns seems unfamiliar.

[bobbyp]

But legally speaking -- and jumping back to the simple medical case -- if Bob's in the hospital in a coma and his two wives disagree on treatment, how do you handle it?

They handle it in the same manner as all such problems are handled in the libertarian nirvana: They take it to court. Thus does the "watchman state" merely "adjudicate" in lieu of "legislate". Lengthy appeals are merely "frictions" that can be assumed away.

"What sir? You wish to breath? But that is my air. See this title I have? If you don't like it, sue me."

Life is simple in heaven. Everybody has wings and all snowflakes are special.

[bobbyp]

Who does the vacuuming in a polygamous family?

The help.

[bobbyp]

See, the funny thing about Brett is this. All liberal court decisions with which he disagrees are "legislation masquerading as jurisprudence". All conservative jurisprudence (cf Lochner) that libruls would disagree with are based on "original intent", "plain language", or appeals to some imagined "natural rights", and he tells us, nay he demands of us, that we jump through all the hoops to pass a specific Constitutional Amendment.

I think we should lay the same crap back on him. Corporations are "persons"? Not so fast. You have to get a Constitutional Amendment passed first (as alluded to above).

"Marriage, n: the state or condition of a community consisting of a master, a mistress, and two slaves, making in all, two."

-Ambrose Bierce

[Countme-In]

Corporations in Oklahoma are people, and if domiciled in that state, may have to seek marriage OKs from religious organizations when they merge with each other.

I wonder if they'll have to go to Reno to sell of a division or spin off a new issue, their dear children.

[CharlesWT]

What's At Stake for Gay Marriage at the Supreme Court?: Right now, 39 states have legal same-sex marriage recognition, but there’s a hitch.