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June 26, 2015

Comments

Activist judges!

I think Roberts wanted his ACA opinion out right before Obergefell because he knew that the phrase "activist judges" would be thrown at the ACA ruling and the phrase would lose all meaning if it was applied for too long to a case where the Court agreed with the executive branch's interpretation of a statute. In Obergefell it at least has some sort of connection to reality.

Well, don't forget it's not just about Eve and Lilith; since partner-relations must be about inequity, with one dominant partner and one subordinate partner, Adam and Steve unfortunately underscores the troubling notion that there's no reason that men can't be the subordinate. Homosexuality is bad because it involves men rejecting the full package of traditional masculine gender roles (because how could men be in a relationship with a man, or even have sex with one unless they want to be womanly?), and if it's possible to pick and choose those, some idiot's going to claim that maybe hetero-normative men are picking and choosing to include "active initiative and leadership" in male roles rather than biology/God dictating that thus was it ever, and thus ever will it be...

(I mean, perish the thought of a partnership of equals, obviously.)

Nombrilisme,

the idea that hetero-normative men would be dominant in separate-sex pairs and marriages is, simply ideological. It may be true in certain methods of copulation in technical sense but has never been more than an ideal in social sense.

Think about Xanthippa: Socrates was hen-pecked. She was the dominant partner who was keeping the finances and everyday life in order while her husband was walking around the town irritating people.

The same with Luther: unless Catharina von Bora had kept the house in order, Luther would have ended in poor-house instead of being able to concentrate on writing, inter alia, about the duties of the the good father of a family.

Anyhow, you would be hard-pressed to find greater heroes of individual conscience, unyielding under mortal threat, but these great souls allowed themselves to be lead by their wives in practical and family matters.

In my own life, I've found these examples valuable.

NomVid, historically homosexual couples were usually unequal and in some cultures being the dominant part was accepted for a free man but not the other. So, a free man could have sex with an unfree male provided he took always the penetrating part. In Norse law it was OK to say that a free man had dominant homosexual intercourse (no insult) but the charge of having played the 'female' role required instant demand of a duel or the charge would be considered valid and the charged man would lose his legal status*. Nice for bullies to blackmail someone: 'Either you do what I want or I will publicly claim that you got penetrated by a man and then you can choose whether I will kill you (since I am the better fighter) or you leave the country and lose everything'.
In Greece the pairs were (ideally) in a mentor-pupil relationship.
The gay regiment of Thebes was rather uncommon in being actually equal but no one would have dared to doubt their masculinity given their fearsome reputation as warriors.

*independent of the truth. To not answer a charge of Ergi (unmanliness) meant to be ergi and that was a crime in the legal sense.

A good decision.

the idea that hetero-normative men would be dominant in separate-sex pairs and marriages is, simply ideological. It may be true in certain methods of copulation in technical sense but has never been more than an ideal in social sense

It is not "simply ideological," and it is in no way just some sort of abstract ideal in a social sense. It was for most of U.S. history (and in some parts of the world still is) a concrete matter of law. Within my lifetime and memory, a married woman couldn't get a credit card in her own name:

1. ... In the 1960s, a bank could refuse to issue a credit card to an unmarried woman; even if she was married, her husband was required to cosign. As recently as the 1970s, credit cards in many cases were issued with only a husband's signature. It was not until the Equal Credit Opportunity Act of 1974 that it became illegal to refuse a credit card to a woman based on her gender.

It wasn't that long ago that U.S. states removed gender distinctions from the rights and responsibilities of their marriage laws (and yes, the removal of gender distinctions in marriage was one of the developments that opened the way for same-sex marriage). In my own state of Maine, in the early nineteenth century, many of a woman's legal roles, rights, and responsibilities were taken away from her and given to her husband when she married. If, as a single woman, she had been the executrix of a will, then that particular role was not given to her husband, but was taken away from her "as if she were dead." (That is almost an exact quote from the statute, which I don't have time to dig up right now.)

Think of the cakes the world is no longer safe for:

http://talkingpointsmemo.com/livewire/weekly-standard-gay-marriage-scotus-assimilated

In my non-legal opinion, the really important Amendment for this decision was the Nineteenth, women's suffrage.

Philosophically, perhaps. But legally, the 19th Amendment is very narrowly drawn - it covers voting and nothing else.

Perhaps that was exactly to avoid giving women equality in anything except voting? Certainly other legal gender inequalities have persisted long after that Amendment came along.

JanieM, aren't you and Nombrilisme Vide strenuously agreeing? I can think of nothing more "simply ideological" than a "concrete matter of law."

JanieM, aren't you and Nombrilisme Vide strenuously agreeing? I can think of nothing more "simply ideological" than a "concrete matter of law."

What are you talking about? You seem to be implying that I framed my comment as a disagreement with NV, but I didn't, and I don't see how you got that out of it. I was quoting and disagreeing with Lurker, who seemed to be disagreeing with NV, although Lurker's comment was oblique enough so that it's possible I misinterpreted it.

I am particularly struck by the view, in Chief Justice Roberts dissent, that Loving, etc. "did not, however, work any transformation in the core structure of marriage."

Yet somehow I don't see that view in arguments of the respondants nor in the dissents to Loving. They certainly seem to have thought that it did, indeed, change the core of marriage, and not for the better.

Scalia describing the Court: Not a single South-westerner or even, to tell the truth, a genuine Westerner(California does not count).

Time to retire, Nino.

For those without time to wade thru the whole thing, here is my take (as a non-lawyer) on the various dissents.

Roberts, et al., object primarily on the grounds that marriage is about procreation.

Scalia agrees, but also sees the majority opinion as a threat to democracy.

Thomas joins Roberts et al., but further holds that the Constitution is all about limiting government action. And that it cannot be taken as addressing government benefits.

NV, etc. please speak up if I have missed something major here.

as you should well know, the Constitution says nothing about a requirement for uniform geographical distribution of Justices, Nino. so, STFU.

I notice he isn't complaining about the lack of Protestants. ;-)

Funny you should say that JanieM, the full passage:

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner(California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Ahhh. I haven't read the opinion. cleek's comment can be extended to religion, just the same.

If you *have* read the opinion, maybe you can tell me whether Alito followed up this:

"It will be used to vilify Americans who are unwilling to assent to the new orthodoxy."

with a lament for the pain caused during all the centuries when the rest of us were vilified for being unwilling or unable to assent to the old orthodoxy.

Later Alito says:

By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn- about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Samuel Alito, most oppressed man alive.

Not a single South-westerner or even, to tell the truth, a genuine Westerner(California does not count).

If he's gonna exclude westerners based on how "liberal" they are, he's probably gonna have to exclude OR and WA as well.

In any case, complaining because the court fails to represent the demographics of the nation at large demonstrates a certain ignorance of history. Or, at least, a highly selective memory.

I.e., you're just figuring this out now, Nino?

By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.

Here in the good old people's republic of Massachusetts, we've had legal gay marriages for eleven years, one month, and nine days.

To my knowledge, the effect on people who have traditional ideas has been nil.

Eleven years is not an extremely long time, maybe the marginalization is yet to come. But given the horrors that have been predicted to follow on legal SSM, you'd think at least a few of them would have shown up by now.

Also, I am straight-up delighted to see JanieM back at ObWi. Hope all is and has been well with you, hope you'll stick around for a bit!

Ugh, thanks. I will have to read the whole thing this weekend.

As for Scalia, if it's so damned important to have balance, maybe he should retire and give some non-Catholic, non-eastern, non-HLS/YLS folks a chance at replacing him. I don't expect to see it happen, though. (And maybe he has forgotten that it wasn't so long ago that the idea of an "Italian" Catholic on the court would have been unthinkable. How many ways does he want to chop it?)

On a less snarky note, I doubt that the dominance of YLS/HLS on the SC will diminish any time soon. And I don't really know, but I don't get the idea that evangelical Christians are all that obsessed with the kind of elite educational attainment that puts you on that path.

Thanks, russell. We'll see...I'm not sure I can hold my crankiness in check well enough to stick around. ;-)

It would be great to see you sometime, though. I'll pop you an email next time I'm in your fair state.

Which reminds me that I want to make explicit mention of Mary Bonauto, whom Maine and Mass. sort of share, for her long and tireless work on this quest.

On a less snarky note, I doubt that the dominance of YLS/HLS on the SC will diminish any time soon.

Well, the devil Ginsburg did graduate from Columbia, even if she started at HLS. But yes, this seem unlikely to change, as I believe has been noted here before.

For my part, my leisure-time masochism queue is top-heavy with recreational software development ATM, so I'm not likely to read the decision before Sunday or so, if then.

Hmmmmmmmmmm....being "socially marginalized" is a constitutional issue.

The ideological pretzeltude of original intent never ceases to amaze.

This is slightly OT, but it does reflecct on how much our society has changed and is changing on these kinds of issues. Earlier this week there was an episode of a TV show called Royal Pains (it's about a doctor in the Hamptons; no idea where the title came from). Which episode was notable because one of the story lines involved a transgender individual, and the challenges she faced. (One line: "How long have you been a girl?") Not only treated relatively sympathetically, but with an actual transgender person playing the roll.

A couple of decades ago, even having a homosexual character in a TV show would never have happened. Today, it's pretty much a non-issue. And now, we are moving further.

JanieM,

law reflects the ideals of the society. I do not question the fact that the social assumption and ideal has been that the man should be the absolute head and ruler of the family. However, this is not the reality and has never been, regardless of legal fictions, which, by the way, have been - in historical perspective - abnormally misogynic in the Anglo-Saxon world between 1800-1960.

Even if the woman were legally unable to do any independent legal or economic transactions, that has very little significance if she has the de facto control of the household and her husband. And this depends mostly on the interaction between the two, in the privacy of their home. Laws have relatively little impact on that.

My own grand-mother-in-law would feign to be extremely demure wife, always taking the position "I must ask my husband" even in simplest matters. However, in actuality, the husband did not have any independent opinions and always agreed with his wife. This I've been told by my wife's family and what I saw of the two, it was true. Such behavior saves the husband's public face, but will not tell anything about the real power-relation.

wj, indeed.

Orange Is The New Black has a transgender black woman character, in a women's prison. IIRC, the only friction over this was in flashbacks to her pre-prison days. in prison, everyone seems cool with it. also, about half of the characters are lesbian, at least once in a while.

in MASH, Klinger cross-dressed in an attempt to be diagnosed as unfit to serve. but there was never any suggestion that he might be gay. that would've been too much for prime time. (though actually being gay might've worked better for Klinger than wearing dresses)

going back to wj's most excellent summary of the dissents, because I want to...

Roberts, et al., object primarily on the grounds that marriage is about procreation.

Sez the guy with no biological kids, only adopted ones.

I guess his marriage is invalid, then.

And I heartily endorse all the recommendations that Scalia self-deport from the Court in order to improve it's geographical, educational, and religious diversity.

NTTAWWT

Scalia's dissent, in handy video form:

https://www.youtube.com/watch?v=FK_oyQmE8Bo

Three's Company and Jack having to pretend to be gay to be allowed to live with two women in an apartment.

wj: "Scalia agrees, but also sees the majority opinion as a threat to democracy."

Note that Scalia has had no qualms about overturning many, many, *many* laws, and in all of those cases democracy meant nothing to him.

Barry, Scalia routinely starts with the conclusion he want, and then works backward to come up with an argument to support it. Ragardless of what positions he may have taken earlier in other cases.

Which is wonderful (and necessary) for a lawyer with a client. But less laudable in a judge deciding a case.

Back In The Day (not quite the Korean War of *M*A*S*H*, but close enough) being gay would certainly have kept you out of the Army, but it might not have sufficed to get you out of the Army, once in, without serious consequences (e.g., disciplinary action and/or "criminal" sanctions of some sort?). My take was that Klinger was trying to prove himself crazy, not gay - crazy being less invidious! After all, only a crazy man (who was obviously not gay) would dress up like a woman.

dr ngo,

it must be also remembered that calling someone a gay would have been exceptionally rude. The social convention was to assume, at least publically, any other explanation for the behavior. Thus, two men or women living together or spending all their free time together would be simply assumed to be close, but platonic friends. Only a sick person would soil them with an allegation so heinous as being gay.

For example, while 16th and 17th century Swedish criminal law required a mandatory death penalty for sodomy, there was only a single case on trial in the whole country during the 200-year-period. Even that case, apparently a serial homosexual rapist, was finally convicted as a non-sexual assault. During the same time, thousands of men were executed for copulation with animals. In fact, Swedish priests were forbidden to preach against the sin of homosexuality, lest it become known among the population. (Even the circular on the topic did not mention homosexuality but only "sins unknown to the people")

No doubt, there were gays and lesbians even then, but if the whole phenomenon is completely closed out of the public discourse and popular thought, it is probably quite possible to live as a gay couple almost openly, because no one is going to accuse you of something that does not exist.

"in MASH, Klinger cross-dressed in an attempt to be diagnosed as unfit to serve. but there was never any suggestion that he might be gay. that would've been too much for prime time. (though actually being gay might've worked better for Klinger than wearing dresses)"

Posted by: cleek

What it probably was meant to say was that Klinger was gay. It would have been very, very hard to put a recurring sympathetic gay character on TV in the early 1970's.

"It would have been very, very hard to put a recurring sympathetic gay character on TV in the early 1970's."

Liberace managed, somehow.

The wikipedia page on Klinger is interesting

https://en.wikipedia.org/wiki/List_of_M*A*S*H_characters#Maxwell_Klinger

Klinger first appeared in the episode "Chief Surgeon Who?". In that episode's original script, Corporal Klinger was written as an effeminate gay man. However, the writers subsequently decided that it would be more interesting to have Klinger be heterosexual, but wear dresses in an attempt to gain a Section 8 discharge.

Not sure now 'meant to say' works. He gets married (and divorced) during the run of the show and then marries a Korean (Rosilind Chao), who I guess divorced him to marry Myle O'Brien on Deep Space 9. Can you say a character is gay even though nothing in the show indicates he is such and perhaps the character himself asserts he's not? Textually, one could argue he is, certainly the whole notion of a 'beard' could be invoked, but at what point to you accept what the character says and what the people around him think he is?

When we advance rights via referendums and such, they say it's not legitimate because it has to come from the executive, legislature, or judiciary.

When we advice rights by executive decree, they say it's not legitimate because it has to come from the legislature, judiciary, or referendum.

When we advance rights by legislation, they say it's not legitimate because it has to come from the executive, judiciary, or referendum.

When we advance rights by judicial ruling, they say it's not legitimate because it has to come from the executive, legislature, or referendum.

What they mean is, it's not legitimate to them, ever. Nothing can ever truly express the will of the people if they don't like it.

If I could slippery slope here, for a moment:

http://www.politico.com/magazine/story/2015/06/gay-marriage-decision-polygamy-119469.html

FWIW, I don't think there are clear-cut legal principles that prevent extension to polygamy. And as I really don't care how people organize their life and relationships (as long as its consensual, etc), I'm fine with that.

Now that marriage equality has been safely extended to homosexuals, I'm honestly curious how many supporters of this decision themselves consider polygamy a bridge too far.

Ireland got a vote. Ireland CHOSE

We get Mullahs

Let's also be clear that when you jam specious SOTUS rulings down the throat of the people, it rarely settles anything.

How settled is the right-to-life issue and how long has that been?

By not allowing a democratic process, preferably referendum state-by-state, you just created a festering sore that will not heal.

For that reason, it's not going away.

"We get Mullahs"

That's right, and those Mullahs declared jihad against Roe v. Wade, but decided to cut their losses with Loving v. Virginia. THAT is why the issue has "festered".

"I think a great deal of the angst and vitriol from the opponents of equality used homophobia as a stalking horse for male supremacy."

I think you make stuff up.

If you have something more than your flapping gums to support this assertion, then let's have it.

We're all ears...

I'm honestly curious how many supporters of this decision themselves consider polygamy a bridge too far.

OK, here goes. I have known quite a few instances where a ménage à trois worked just fine and lasted for decades. (Just as numerous gay couples have.) So I don't think that's a bridge too far.

But every in instance where I've seen a group larger than that*, things ended in massive acromony in under two years. Every single one. I'm not saying that polygamy can't work -- just that my experience tells me that it doesn't work in practice.** So yeah, a bridge too far there.

* Hey, I'm in California. I've encountered a dozen or more. ;-)

** Perhaps it makes a difference that all of the ones I've seen included more than one man and more than one woman. Perhaps if one or the other gender has only one representative it would work better?

Hey, I'm in California. I've encountered a dozen or more.

Something in the water? All the ones I've met have been in CA, as well.

just that my experience tells me that it doesn't work in practice.** So yeah, a bridge too far there.

To be clear, are you saying that you don't think it works, or are you saying it doesn't work and therefore should not be recognized by the state?

Myself, personally, I can't imagine a relationship with 3 people, let alone more. Seems really complicated. I just don't want to stop people that feel that's for them.

We're all ears...

Could you explain who this 'we' is first?

We're all ears...

Are you all ears because you're legion? That tone and the style of your handle look familiar.

I have personal and shreddingly painful experience of trying to make a more-than-two relationship work, so I'm beyond jaundiced about it, but if other people can make it work, more power to 'em. But that's not the same as outlining how it would work legally.

Evan Gerstmann addresses the question briefly in his 2004 book "Same-Sex Marriage and the Constitution." (Wonderful book! I would have to go back and reread it, and today's decision, to know how propethic his reasoning was.)

Gerstmann doesn't take a stand either way, but he highlights the fact that prior SC rulings on polygamy were "steeped in racism and nativism" and offers a fair and clear-eyed discussion of the relationship between the quest for SSM and the question of polygamy. He ends with this:

Nonetheless, it is possible to distinguish same-sex marriage from polygamy without resorting to unsupported, stereotype-based attacks. There certainly seems to be a difference between a right to marry who you want and marrying however many people you want. Multiple marriages raise several legitamate state concerns that same-sex marriage does not Eskridge has made a credible argument that polygamy threatens the social safety net by diluting social insurance; if a polygamist dies, presumably several spouses would have to divide his or her Social Security survivor's benefits, for instance. Polygamy could create confusion over issues of custody, who has final say over medical decisions...and so forth.... Finally and most importantly, a right to multiple spouses has no logical stopping point. If a person can have two wives, then why not twenty, fifty, or a thousand? ...
So, there can be a strong case made for the ban on polygamy. Still, polygamists have the same right as same-sex couples to go to court and demand that the state give real reasons -- not just stereotypes and unsupported generalizations -- for banning their marriage.

In other words, marriage laws are already written to handle pairs. With gender distinctions gone (Maine's marriage law makes reference to "spouse" and doesn't mention the words "husband" or "wife," and this was the case before SSM became legal in 2012), the framework for slotting in different kinds of pairings is already there. There is no current framework for slotting in trios and octets and etc., so all of that would have to be thought through and argued about and designed from scratch. It would be fascinating (if I had any emotional energy for it, which I don't) to see how many different ways people in more-than-two relationships would/could come up with to answer these questions. The very multiplicity of approaches might keep any coherent movement from forming for a long time.

In fairness, there may already be a coherent movement that's just not on my radar. Given that I'm kind of allergic to the topic, that wouldn't be surprising.

On the other hand, the astonishing speed at which trans topics have become the stuff of daily headlines leads me to guess that polygamy hasn't made much headway, or we'd be hearing about it, too.

I've known some successful poly relationships and some unsuccessful ones. What I see as hard for the law is coming up with reliable consistent principles to judge the division of assets, power of attorney, and like that. Nothing in modern marriage arrangements hinges on the sex or gender of the participants - it's all one person and the other person. Trines and larger groups, though...I don't think it's an impossible task, but I haven't yet seen any sort of viable general framework for marriage responsibilities within larger groups.

" haven't yet seen any sort of viable general framework for marriage responsibilities within larger groups."

Just treat it like a corporation.

To be clear, are you saying that you don't think it works, or are you saying it doesn't work and therefore should not be recognized by the state?

Thompson, like you, I don't see how a threesome would work. I just observe that, in multiple cases, it has worked.

And, also in multiple cases, larger groups do not appear to work. If someone comes up with cases where it has worked successfully, I'm willing to reconsider. But until and unless that happens, I can't see state recognition (i.e. marriage).

Note that, in neither case, do I argue for a legal basis -- for or against. I simply observe what works and what does not.

Just treat it like a corporation.

I don't know if Snarki is being serious or, well, snarky, but if he is serious I agree.

I've never really understood the problems associated with having multiple people involved (from a legal standpoint). For example, division of assets doesn't seem any more complex with 3 or 4 individuals rather than 2.

Regarding power of atty, it likely varies from locality, but my understanding is spouses typically don't have power of attorney unless there is a written agreement. IANAL, however, so I could be wrong.

Dividing assets doesn't seem like an insuperable obstacle. But then there are the kids.

wj:

Perhaps you could unpack that a little. I don't understand how this:

I can't see state recognition

is consistent with this:

Note that, in neither case, do I argue for a legal basis

It seems in the case of 4+, you are specifically arguing that such marriages should be (as they are currently) illegal.

Regarding your larger point, you've never seen 4+ work...should demonstration of previous successful relationships be a requirement for recognition of a universal right?

To my mind, the government doesn't have any business deciding which domestic arrangements are worthy of recognition. I'm happy for my gay friends to whom marriage is an important sign of acceptance. That's great. Now let's realize how ridiculous it is that some people's home lives are deemed more "valid" than others'.

I predict that many Republican oriented churches will normalize SSM, much like they did race and divorce. As a matter of fact, I think conservative churches and the conservative movement survived for so long, because of their tolerance and normalization of divorce.

They will change their narrative concerning their response and treatment of gay Christians. It will be a type of “Lost Cause” myth. That is to say, “It wasn’t that we were against SSM, what were really against was the government forcing us to do it. This was a church rights issue, where the government shouldn’t change our theology” or some such creative like that.

But then there are the kids.

Nominally, at least, there are court proceedings which are supposed to find the best custody arrangement for the child. I don't see why they would be suddenly incapable of sorting that out if there were more options.

It seems in the case of 4+, you are specifically arguing that such marriages should be (as they are currently) illegal.

What I think I'm trying to say is that one of the criteria in an argument for 4+ being legally recognized ought to be a demonstration that it can work in practice. In arguing for gay marriage, homosexuals had lots of examples of homosexual couples who had stayed together for decades. I haven't seen that for 4+.

I'm not saying that such a demonstration is sufficient. Just that it ought to be necessary.

the government doesn't have any business deciding which domestic arrangements are worthy of recognition.

However, the government has chosen to provide certain special benefits to married couples which are not available to others. Maybe it shouldn't have, but it has. So isn't it sort of required to determine who qualifies for said benefits and who does not? Otherwise it might as well just scrap the distinction and give marriage no benefits (or responsibilities) at all.

I don't see why they [court proceedings] would be suddenly incapable of sorting that out if there were more options.

Considering their somewhat spotty (to be kind) record in dealing with cases with only two parents, it isn't obvious that they would succeed with the increased complexity of more.

However, the government has chosen to provide certain special benefits to married couples which are not available to others. Maybe it shouldn't have, but it has.

Well, this is why we question what the government has (rather, we have) chosen to do, and we amend the law.

There is no reason whatsoever for the government to award special benefits to people who show an intention to engage in a committed personal (usually sexual) relationship. It might make sense for the government to set up the means to identify "next-of-kin." It might make sense for the government to make it easy for people to designate inheritance preferences. Child custody and support is something that government is good at doing for non-married couples - they do it all the time.

It makes no sense for government to confer a status on people who choose to have life partners.

I knew a person who lived for awhile in a domestic threesome.

It soon became a twosome for two of them and a onesome for one.

From threesome to lonesome.

this is why we question what the government has (rather, we have) chosen to do, and we amend the law.

Fine. If you think you can get the law amended on that, feel free. But I wouldn't bet the ranch on pulling it off.

And until and unless you somehow managed to make that amendment happen, you have to live with the law as it currently stands.

"Woody Peckerwood":

This is your warning. So far, your remarks are rude and unproductive. More like that, and you're out.

sapient:

There is no reason whatsoever for the government to award special benefits to people who show an intention to engage in a committed personal (usually sexual) relationship.

Yes, there is a reason: because they take care of each other.

People who are in a long-term, committed, loving relationship support each other financially, emotionally, and physically (medically). This is work, and the legal rights & responsibilities of marriage are there to make this work easier.

This work is necessary for any society, and it's especially necessary for a society (like ours) in which people are usually not living in an extended family.

People who are in a long-term, committed, loving relationship support each other financially, emotionally, and physically (medically). This is work, and the legal rights & responsibilities of marriage are there to make this work easier.

There are many human relationships that work this way. Loving relationships aren't always based on romance and sexual commitment, and aren't necessarily lifelong.

I have no experience with this, other than watching Bog Love, but I think that a number larger than three in a relationship would be easier than three. Three nearly always devolves into two against one. Four, five, six, that allows for parings and partnerships (not necessarily sexual, but important) to flourish within the group, thereby taking pressure off. This could just be my own gut reaction, because, as an introvert, I would rather hide in the crowd than be constantly involved in the politics of a triangle.

I meant Big Love!

sapient:

But it's clearly in the interests of society and of individuals to give special support to relationships that are intended to be long-lasting, and especially to ones that are "for richer and for poorer, in sickness and in health".

Although it's possible to have other kinds of life-long, deeply supportive relationships, marriage is the one our society is set up to expect, the one we have traditions and a legal system to support.

And they have to work together: when a nurse can only let one person at a time into an ICU, marriage lets them decide who has priority without having to actually make a *decision*. Again, these kinds of things are particularly important in a society like ours, where we're constantly exposed to strangers and having to make decisions with or about them.

Just that it ought to be necessary.

Why exactly should it be necessary? How many other universal rights hinge on a demonstration of successful usage?

Considering their somewhat spotty (to be kind) record in dealing with cases with only two parents, it isn't obvious that they would succeed with the increased complexity of more.

That's fair, and I certainly wouldn't argue family court has been an unmitigated success. But it's not obvious to me that it would be worse, either. Largely, I don't see how it would be more 'complex' beyond, possibly, having more then two possible custodians.

In the case of "Big Love", and of older and long-established Mormon polygamy systems, do any of you know how inheritance is expected to work? Which wife counts as "next of kin" for purposes of medical decision-making? Did the Mormons actually develop a body of family law before polygamy was outlawed?

AFAIK, in all established polygamous legal systems (with something like a body of law) all the marriages dissolve with the death of the (single) husband -- co-wives do not have legal obligations or connections to each other. If one wife dies, any property she may have goes either to the husband or to her biological children (or her family of origin), wives do not inherit from each other.

I don't see any way such a flagrantly unequal marriage system can be reconciled with the one we're currently using, especially as of today.

This is your warning.

This I expected. Even though I closely read and adhered to your rules, you don't really want discussion...unless it supports your particular ideology.

You seem to want "yes men".

Discussing why I think the SCOTUS decision will not the end of this issue and calling out a commenter throwing out made up stuff and asking for some support seems to be a sin.

I know it's your blog and you're the blog-god. However, spirited discussion...ON TOPIC...will only enhance your site.

You have a choice

And they have to work together: when a nurse can only let one person at a time into an ICU, marriage lets them decide who has priority without having to actually make a *decision*.

I agree that we're accustomed to marriage being the "default" thing, but I disagree that there can't be a very easy alternative. For example, it would be easy when, say, paying one's taxes, to designate the person who would be the "next-of-kin" or designated person to visit in ICU, etc. In fact, many people don't really have a deep relationship with their lovers (or marital partners) at a certain stage of life. Not that they don't intend to, or have all of the "right" feelings and wishes, but when it comes right down to it, not everyone can really trust their spouse with their end-of-life wishes.

I'm truly glad that so many people can rely on their institutional spouse to provide these basic things for them. It's a wonderful fulfillment of a promise and a dream. But I would not be at all surprised, if you interviewed married people, that many of them would opt for a different scenario - someone more objective, perhaps, to carry out their last wishes, etc. Marriage law is a default, and for many people not a good one.

Totally respect (and admire) people whose vows are so fully realized that this isn't an issue.

Largely, I don't see how it would be more 'complex' beyond, possibly, having more then two possible custodians.

To take just the most obvious, suppose that the group breaks up. While there are two biological parents of a child, suppose the person(s) who actually cares for and nurtures the child is another member of the group. Now, instead of just deciding which of two people (the parents) would be better for the child, you have to look at the entire group.

Consider further that the group splits into three new groups, And while the biological parents go one way, the two people who were actually raising the child go a second and third way.

That, it seems ot me, is a "more complex" case for the courts to sort out. And not merely a matter of deciding between two possible custodians. (And we haven't even started on who has visitation rights.)

spirited discussion...ON TOPIC...will only enhance your site.

The rest of us manage to have spirited discussions, and flat out arguments, without descending into rudeness and ad hominem attacks. Surely you could choose to do so as well. Or not.

"you just created a festering sore that will not heal"

I had one those once, but the doctor gave me some ointment and it went away.

Har Har har!

Yes, there are many folks who will consider the decision illegitimate because it wasn't decided by popular vote, and no, I don't think anyone thinks the issue is "going away".

that said, we're not ireland, we have our very own constitution, and ever since Marbury v Madison one of the things the SCOTUS has done is rule on the Constitutionality of laws.

I'm sure ten thousand lawyers are going over the decision as we speak, looking for the loopholes. a thousand bible thumping preachers are waiting for the next natural disaster, so they can blame it on the supremes.

All my gay married friends are damned happy tonight, though, and I raise my glass to them. they've waited a long time for this.

When the tinsmiths were making ears, this thug ordered two:

http://talkingpointsmemo.com/edblog/priceless--5

Perfect week for invoking John Calhoun.

Let's also be clear that when you jam specious SOTUS rulings down the throat of the people, it rarely settles anything.

Down the throat of the people? My oh, my. In that case let's have a nationwide vote, shall we?

How settled is the right-to-life issue and how long has that been?

Well, OK! Let's have a nationwide vote on that, too!

By not allowing a democratic process, preferably referendum state-by-state

Let's make it simple...nationwide vote. What's with the namby-pamby "state by state" crap? Shall the People decide or shall they not?

...you just created a festering sore that will not heal.

lips. flapping.

For that reason, it's not going away.

I'd say "Gone Baby Gone".

Try as I might, I couldn't find Scalia actually invoking Calhoun. Can someone point me to where this occurs? Thanks.

On other issues - tackled earlier by others, but I got to ObWi very late today (tonight):

I tend to side with DocSci against Sapient on whether the state has a legitimate interest in supporting marriage. Marriage has been in our society and every other one I've studied (above the most simple and isolated) an important element of social stability, in that it involves people committed to taking care of each other, for widely varying senses of "taking care." It's certainly not the only way, and if one were writing science fiction it would be entirely legitimate to envision a society organized on completely different principles, or even if one imagines a future utopia in which other institutions fulfill this function. But for humans, at this point in history, some kind of "family" seems a useful building block, and those few societies which have attempted to dispense with it have foundered.

Marriage and family are certainly concepts subject to revision, as we've just seen, and I'm certainly not about to argue that they are "natural" or "God-given" or any such malarkey as that, but they're the raw social material we have to work with, and in the absence of an articulated near-universal social and economic network the likes of which we've never yet seen, we dispose of them at our peril. It is not absolutely necessary for the state to endorse or register them, but it seems to me to be a legitimate public interest.

As for further revisions, the multiplicity of partners (beyond two) in polygamy would create - as others have noted - severe legal complications. Not insurmountable, but a couple of orders of magnitude above dealing with Y2K, I'd guess. It has been pointed out that legal contracts could obviate some of these problems, but those would be only available to the minority who can afford expert legal advice on such matters. Either we get a lot more lawyers - hardly a desirable aim, IMHO - or we effectively say that polygamy is only for the rich. This is not to say that polygamy should be anathematized, only that it doesn't seem to me good policy for the state to endorse it until a whole lot of kinks - in every sense of the word - have been worked out. But I'm open to persuasion on this point.

I'm not open to persuasion on Mr. W. Peckerwood. He's obviously spoiling for a fight, and inasmuch as we've just cleaned up this blog a little by banning one troublemaker - and one who was generally less obnoxious, bless his heart - I see no reason to welcome another. Mr. WP, if your views are so valuable, please start your own blog and see what custom you can attract, but quit trying to rain on our parade.

Specious? Can you actually make a case for that, or shall we just get more argument by assertion? Proof? You have provided NONE (wingnut caps).

Let's 'effing vote on this, for Christ's sake.

Late to the party yet again, but thought I'd weigh in here given the MASH and other gay-but-possibly-slash-hopefully-really-not-characters on TV references above:

It may be a reflection of how conservative American society has been that we've had the agonized hand-wringing that we've had over it, but Australia beat the States by a wide mile when it came to depictions of gay characters on TV.

When I was a kid growing up in Perth, in the late '60s/early '70s, one show that rocked the nation when it debuted in 1972 was Number 96, which was a "soapie" capturing the lowered horizons, punctured hopes, bitchy vendettas, and all the other carryings-on among the inhabitants of a Sydney apartment building. Over 40 years ago, and a full 20 years before Melrose Place, the Western world was treated to this:

https://youtu.be/g53g3xAKXJ4

On prime-time TV - and yes, when I say prime-time TV, I mean it: I clearly remember seeing this as a 10-year-old - a man came out to the female star of the show. The actress who played her was a national pin-up (and less charitably, and so stereotypically Aussie, described as every straight bloke's "wank" of 1972), and it was doubly controversial at the time as her character was a virgin. Yet seen now, it was nothing next to the whopper that got served up seconds after - the one she wanted to give it up to had never had so much a "wank" for her.

I mention this for another reason - the gay character was not marginal to the show, and in fact became an even bigger part of it, and with few exceptions, accepted by the other characters and played a major part of the ongoing story within the run of the show.

As a sidebar - there was an American version of Number 96 very briefly in the late '70s, after I moved back to the States with my family, and which of course had to leach out everything that had made the original what it was. It sank without trace in the ratings in less than one season.

As another sidebar - spoken in a different context, but too irresistible to pass up in the context of things here - one of Winston Churchill's bon mots, along these lines:

Americans can always be counted on to eventually get around to doing the right thing, after thoroughly exhausting all the alternatives.

Just personal stuff, but if I were an adopted child of a homosexual married couple, I'd be mortified when they came to parents' day at school.

wj:

Now, instead of just deciding which of two people (the parents) would be better for the child, you have to look at the entire group.

To the extent that a court is the best place to adjudicate what's best for the child(ren) (for better or worse, its what we have), I don't see that being more complicated. If you have 3 split to 2-1, or even 1-1-1, the same sort of analysis has to take place. Which of the available environments is best for the child?

As difficult a question as it is for even 2 people, I really don't see how it's any more difficult in a 2-1 or 1-1-1 situation. Regardless of the number of custodial arrangements, each one can be evaluated and custody can be adjudicated.

Doctors Science:

marriage is the one our society is set up to expect, the one we have traditions and a legal system to support.

"Tradition" is not an overwhelming good argument for denying people recognition of how they organize their personal relationships. "Traditional marriage" has traditionally been rather exclusive, and that's not a good thing.

dr ngo:

the multiplicity of partners (beyond two) in polygamy would create - as others have noted - severe legal complications.

Again, I just don't see it. In terms of next of kin organizations, that can be readily specified on the marriage license itself...no expensive lawyers required.

Regarding finances, I again don't see a problem. Spouses can, and do, have separate finances and property. Unmarried individuals can jointly own things. Who jointly owns assets with who is none of my concern.

Regarding inheritance, again, these aren't especially daunting questions. If a person die without a will, there assets are divided among a surviving spouse and children, depending on a locality. Having 2 or more surviving spouses doesn't really make the math much harder. In the presence of a will, its even simpler.

Hi Woody! Welcome to Obsidian Wings. I can see you probably won't be around here long, so I'll make this short and to the point.

Today's the one-year anniversary of when my wife and I got married in the state of Indiana. Why bring this up? Because I'm a woman, and thus yesterday's decision by the Supreme Court was the best anniversary gift she and I ever could have hoped for.

You're free to have whatever opinion you like, you're free to think whatever you want about same-sex couples, and since I don't know you from anyone else, I'm free to not only not be offended by it, but smile and tsk tsk at how woefully out of touch you appear to be with the world.

Since you'll likely never be the adopted child of homosexual parents, you'll never have to worry about your feelings come parents' day at school. Of course, that assumes you were adopted right now, as you are, today. Being adopted and raised by a loving couple since shortly after your birth would probably paint a different picture on things though, so it's not all that useful to project on your possible past self what you'd be feeling. My guess is, under those circumstances, you'd be proud if either one of your parents showed up since parents taking an interest in their childrens' education is a huge problem, at least in the public school system here in Indiana.

Prior to yesterday's ruling, SSM was legal in 37 out of the 50 states here in the US. You might note that's more than half, thus constituting a majority. Mullahs had no say in this matter. Prior to yesterday, those were adopted through both voter choice and challenges brought against state laws. In both cases, these were people working within the system to bring about change. The decision by the Court yesterday did nothing more than speed up the process which had already been underway for the last 15 years.

Why are you so anxious to sit yourself on the pro-discrimination side of history? Why do you not support marriage equality? If it's because you find it icky, that's fine, but finding something 'icky' is a poor reason for passing laws that ban it. Is it for religious reasons? That's fine too, but understand your religious beliefs or the religious beliefs of any individual or group in this country do not dictate how laws are made, amended, and implemented.

By all means, regale me and the rest of the commenters here with your tales of how your natural-born human rights have been stripped away and now you have to marry a person of the same gender and...oh, wait. That's not what yesterday was about at all, just like Roe v. Wade wasn't about forcing all pregnant women to get abortions.

My wife and I spent seventeen years together living as a couple, doing everything married people do for one another, except actually, you know, getting married. Why take away our happiness when it infringes on neither your life, liberty, or your own pursuit of happiness?

I'll make it simple: you don't want to get married to someone of the same gender? Don't do it. You don't want to go to a same-sex wedding? Don't go. You don't want to buy a present for a same-sex couple? Don't buy it. Your life remains completely unchanged by this ruling.

Mine, on the other hand, just got a whole lot more fun. Shame you won't join in the celebration, but that's your choice. :)

Areala, you should really post more often. That was great.

And happy anniversary!

Congratulations, Areala!

Daddy and Big Daddy Peckerwood, who took their son's surname despite what came to be unreturned affection after the dreadful mix up at the adoption agency, overcame their own mortification when called to their son's school to answer why the one they doted upon was keeping all of the cake to himself and not sharing with the other children.

Confronting Woody, who later became infamous in the annals of onanism, and his denials, Big Daddy remarked: "There ain't nuthin more powerful than the odor of mendacity."

Returning home, they instructed Aunt Maggie:
Maggie, we're through with lies and liars in this household. Lock the door!"

An interesting take on the confluence of ramifications resulting from the Burwell and Obergefell decisions:

http://www.balloon-juice.com/2015/06/27/olbegefell-implications-for-health-insurance/

By Balloon Juice's Richard Mayhew, who works in the medical insurance industry and is must reading on the nuts and bolts of Obamacare and the attacks thereof.

I'm personally happy that the government is in the business of recognizing marriages, as my wife would have little chance of being able to live and work legally in the United States otherwise.

That also brings up another legal issue with polygamy that no one has discusses. How does it interact with immigration policy? Could one marry an arbitrarily large number of foreign nationals and sponsor them all for green cards?

I wondered about where domestic partner benefits might go in the wake of this ruling, but I honestly don't think they're going anywhere. There are lots of people in this country who co-habit but have no desire or inclination to get married (a co-worker of mine was one of those until her boyfriend died), and I doubt most companies will be eager to rock the boat for those folks, especially if their reasoning is, "Well, now that anybody can get married, why don't you just get married?", is just inviting another legal battle on the grounds that marriage is a choice, not something your employer can force upon you in order to receive the same benefits as the rest of your co-workers.

Also, there are states like Indiana where just because same-sex marriage is legal, that doesn't mean gay couples have equal protection under the law. Companies in Indiana can discriminate against members of the LGBT community freely, because sexual orientation is not a protected class under the law, and is a legally-valid (if @$$holish) reason for denying an application for a loan, to rent an apartment, etc. So we can't assume one of the newlywed can walk into work on Monday and fax off a change of benefits form to their HR department to automatically receive medical coverage just because SSM is now legal. Trying that could wind up getting a person fired depending on the corporate culture which, unlike the military, can still be very much "don't ask, don't tell" when it comes to who you're living with.

How does it interact with immigration policy? Could one marry an arbitrarily large number of foreign nationals and sponsor them all for green cards?

Probably pretty much the same way it does now. Green cards through marriage get screened by USCIS. I think suddenly marrying 20 foreigners would probably raise red flags during the interview process.

if I were an adopted child of a homosexual married couple, I'd be mortified when they came to parents' day at school.

Well, Woody, look on the bright side. You might be mortified, but your classmates would likely think it a complete non-issue. Which is to say, the discomfort would all be in your head; nothing to do with your social interactions with the rest of the world.

As difficult a question as it is for even 2 people, I really don't see how it's any more difficult in a 2-1 or 1-1-1 situation.

thompson,
agreed that it isn't that much more difficult for a group of three. But suppose you have a group of 8. (And yes, I did see one of those in real life. It's not a purely theoretical example.) At that point, the situation is surely more complex and deciding what exactly is the best for the child is a lot harder.

My guess would be that the level of difficulty rises with at least the cube of the number of individuals (technically, the number of adult individuals minus 1, since we are comparing to a couple). That's purely a guess and I know it. Still, the increase in difficult is more than just linear -- although even that would be bad enough.

Regarding finances, I again don't see a problem. Spouses can, and do, have separate finances and property.

thompson,
Yes, it is not unheard-of for a couple to have a pre-nup. If they are wealthy and can afford the lawyers to draw up the documents. But have you heard of a case when the couple was middle class? I sure haven't. Even though most of the attempted groups I have seen were middle (or even lower middle) class. Lawyers are just too expensive for most people to indulge in -- especially when they are blissfully hoping that the issue won't arise, which is how most people enter marriage.

And, of course, if the group grows gradually rather than forming all at once (which seems to be usual for groups larger than 4), you would have to go back to the lawyers each time. At yet more expense.

Congratulations, Areala! And many happy returns of the day (even though today will clearly be hard to beat).

How does it interact with immigration policy?

Ufficio,
I'm thinking it wouldn't be that much more difficult. You still have to look out for "marriages of convenience," just as you do now. But beyond that, why would it be a big deal -- assuming that polygamy had been legalized (which I have serious reservations about on other grounds).

Sorry for the flood of posts. But by the time I get up here on the West Coast, the rest of you have been up and commenting for hours.

"How does it interact with immigration policy? Could one marry an arbitrarily large number of foreign nationals and sponsor them all for green cards?"

I sense a huge business opportunity...

Actually, another unexplored ramification is those SS couples that have been together long enough so that they now INSTANTLY qualify for "common-law marriage".

Which probably would include Areala, except they she's already (congrats!) tied the knot.

This, dear friends, is how SSM get rammed down the throats of hetero guys that are just sharing an apartment. I suggest they lie back and think of England.

If you only read this blog (and I'm sure that's true for some of you), you'd think there's only one side of this issue.

It's just not true

Discussing the whole issue apparently not in good taste. It appears that only if you agree with the group-think are your posts appreciated.

OK...so here goes.

Yeah! Yeah for all of those with defective libidos. Yeah for all of the poor people who now will not see, nor receive any treatment for Gender Identity Disphoria.

I'm actually kinda saddened

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