In a 5-4 opinion, the United States Supreme Court has decided, in Obergefell v. Hodges (pdf), that prohibitions against same sex marriages violate the Equal Protection and Due Process clauses of the United States Constitution. I’m happy with the result, but, after an initial read of the opinion, I don’t think it is a great model of legal writing – more high minded rhetoric than clinical analysis of the facts and law before the court. (In my mind, Judge Posner’s opinion in Baskin v. Bogan (pdf) was much better as a legal document.) Chief Justice Roberts’ dissent has a lot to work with in that regard.
That said, after all the critical noise about the deficiencies in the majority opinion, Roberts’ dissent is remarkably thin where all of these efforts to justify a same-sex marriage bans have been thin: the rational basis for such prohibitions. If you strip away his critiques of why the majority opinion is deficient, the following seems to be the sum of his explanation of why such bans are constitutionally permissible:
In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.
“We’ve always done it this way,” is cited as a sufficient state interest. I’d enjoy seeing John Roberts, as an attorney, argue that position to Judge Posner. I’m guessing he would not fare any better than Indiana’s Solicitor General did in front of the 7th Circuit.
In Indiana, when analyzing the state’s “defense of marriage act,” the rationale had to do with procreation. My post back in 2005 after the Indiana Court of Appeals decision:
[T]he Court of Appeals found that the legislature could enact such legislation to further its goal of encouraging procreation. And, since gay couples can’t procreate, they can be deprived of the benefits conferred on married couples. . . . The reasoning of the court seems specious. I would love to see how the Court reacted to legislation that prohibited barren or post-menopausal women from getting married or remaining married.
There is a tone of indifference in that 2005 post of mine of which I am not proud. I had more gay friends than I knew back then, and even more now. And they love as deeply as anybody. Mere tradition is an insufficient reason for barring them from forming the same sorts of legally recognized family units that society affords opposite sex couples. The rationales for maintaining such prohibitions, to the extent any are offered, so often seem like post hoc affairs — after the fact rationalizations where the real reason has more to do with habit than utility.
In any event, I’m happy about this decision on a number of levels — but especially for those gay friends of mine who were not allowed to get married yesterday but who are now free to do so.
I’m not familiar with the various legal arguments, but on Rachel Maddow I heard a Q and A between the advocate for gay marriage and one of the SCOTUS justices (Kennedy, I think). The justice asked that if we are focused on the idea that two people love one another as the justification for marriage, why can’t two people–a brother and a sister–use the same argument? I was disappointed not to hear the response. Does anyone here have an idea what that response could have been?
Stuart, I would be surprised if a SCOTUS justice would appear on a news show and discuss such a matter. Marriage is not a consanginous relationship in virtually any cultural.(That would be incest) It is a voluntary (nearly always) relationship between nonconsangious human beings. Thus arguments that if gay marriage is legalized men could marry dogs or women their horses is laughably misplaced. However, I have known many dogs, cats and a couple of horses whose company I preferred to most humans. But I digress…
One of the purposes of marriage is procreation, but many marriages are entered into for political or economic purposes and procreation is secondary or not at all relevant to many marriage relationships. This is especially so when states such as Indiana actually permit first cousins over the age of 65 to marry.
Not trying to be provocative here, but I checked the tape again, and it was Justice Alito who asked that during the court session, not the Rachel Maddow show. So, the response would be that regardless of whether they love each other, a marriage between brother and sister is incest, and that in itself is illegal for a number of rational reasons.
A little more interesting gloss on the gay marriage issue is drawing a logically consistent line roping of polyandry from the extension of the right to marry to LGBT people. A starting point would be gaining an understanding of the jurisprudential bases of the majority decision (But I am to lazy to read the case.). Law Professor Eugene Volkoh has a recent law journal article cutting and dicing up the “slippery slope” argument and its applicability to extension of legal recognition to polyandry. (I was never a big proponent of the slippery slope argument. It always reeked of make-weight, like “opeming the floodgates” to new litigants. I a;ways believed policy moved up or down the “slope” because people were pushing or pulling on the object on the slope.)
But a couple of good arguments come to mind to address the specter of polyandry, especially polygamy. The dyadic nature of marriage has always been the western paradigm. Polygamy is almost completely a non-western model, although certainly a biblical model. Polygamy tends to exist in highly stratified and brutally antidemocratic non-western societies. It exists to exalt wealth and DNA propogation to the partial exclusion of monogaous marriage aspirants. Polygamy is also a brutally oppressive sexist regime. It has almost no place in western culture, except among Mormons, a somewhat unusual sect in the pantheon of western Judeo-Christian religions. And even in America, Mormon polygamy is very marginalized and is rife with sexism and child abuse.
That could be an interesting article. I understand that Volkoh swings a big bat. Where was the article? I’d like to read it. (Not an attorney, but I can read, and if necessary, look up the words.)
Stuart, I found the article on his website. Just Google him, you will find his blog.
Thanks much.
For what it’s worth, Judge Posner has an article in Slate — he is not impressed by the dissenters.
Though of course I rejoiced it it, I was a little surprised at the tack Justice Kennedy’s majority opinion took……much more heavy on Due Process/fundamental right than classic Equal Protection. Not sure I understood all the stuff about them blending together. There is a degree of merit to the dissent’s observation about returning to pre-Lochner (or is it pos-Lochner?) substantive due process. Justice Scalia’s vitriol (which I don’t believe Justice Roberts joined) was unnecssary and unbecoming……saying that had he wrote such an opinion, he would put his head in a bag. I strongly suspect that many believe he did that a long time ago.
1) I suspect that the debate is not yet over. Yes we have a SCOTUS ruling but they have reversed themselves in the past. A 5-4 decision is not very decisive.
2) Like Carlito I’ve wonder about how the ruling would affect polyandry. It is easy, at least in mind mind, to draw an extension from “if two LGBT love each other then they should be allowed to marry” to “if three people love each other then they should be allowed to marry”. I know one threesome (MFF) with children that might go this route if they were allowed to do so and one threesome (MMF) with grown children that might have done so in previous years when their kids were growing up. As it is one of the threesome is left out legally.
I am not sure if polyandry-as-marriage will ever get much traction. The number of threesomes I know is less than the number of LGBT people I know. The threesomes (or more) seem to “hide” and don’t have much political power. But just like LGBT they may step out of the closet some day. Institutionalizing polyandry should keep it from being abusive (see Carlito’s final comments about the Mormons).
Another argument I have heard against polygamy and polyandry is that the current government benefits regime is predicated on a dyadic marriage. Allocating benefits in plural marriage may be very problematic.
My mistake. I used the word polyandry thinking it referred to male and female multiple marriages. It does not. It means relationships where women have more than one husband.
I’ve read that FLDS polygamists “stick it to the government” by having a lot of the sister wives apply for benefits as single mothers.
I have heard this, too, So much for conservatism.
I haven’t quite finished the Volokh articles, but as an additional thought, it’s probably an uphill battle to show that polygyny is not dysfunctional. When I engage in personally destructive behavior, the government is not usually involved. When my behavior is destructive to someone else, that’s something else. There are literally piles of documentation showing the disastrous impacts on kids as well as adults. And add one or two persons more to an already complex relationship, and then consider the contractual issues. Oy! We would need to double the number of attorneys.
Doesn’t it “take a village to raise a child”?
Personally I see no problems with multiple *loving* people raising children together. However the societal stigma can take a toll. “Put down your father and mother on this form” “But I have two fathers, what do I do?” “Weirdo!”
Of course the same hurdle can/was true for children of LGBT couples. Does one has to be the “father” and the other the “mother”? Now that LGBT marriage is mainstream then the societal stigma should be reduced and maybe the paperwork changed. It now becomes a question as to if LGBT people can be loving parents and loving to each other in the long term. The answer to that is, we hope, “as much as any hetro couple”. Could be the same for polygyny marriages. Divorces are can be ugly no matter how many or few people are involved.
The 7-year-old of the MFF trio I mentioned in my first message seems to be a well adjusted girl. Bright, outgoing, does well in school. Their 1 1/2-year son … well it is too early to tell but I suspect that he will turn out fine. There is a definite physical mother of the two females but all three raise the kids.
It’s always good when everyone in a village takes responsibility for kids, but I suspect that was more true 40 years ago than it is now. Neighbors hardly know one another. Also, everyone in a village isn’t married to one another. Threesomes and foursomes have peculiar sexual dynamics and not everyone is treated equally or with equanimity unless everyone in the group is really special. These can become rats’ nests and incubators for all kinds of nefarious outcomes. Let your imagination go, and you will get there. I hope that 7-year old turns out fine, but the numbers are against her. Even so, making policy on the basis of one group is not a good policy.
One Hoosier, a self-described writer and academic, makes a plea for recognizing polygamy. It is apparent from reading his missive that he has not read the sound and legally based arguments against polygamy and polyandry.
http://www.politico.com/magazine/story/2015/06/gay-marriage-decision-polygamy-119469.html?ml=po#.VZMZb0Z0v30
Reading Volokh’s Hofstra article, he states some pretty solid reasons why this isn’t going anywhere. Disapproval runs pretty deep in the culture. Polygamy (polygyny or polyandry) has no natural allies, and is chiefly practiced by separatist Mormons and some Muslim groups who are unlikely to exert political influence because they lack a large network of supportive friends. Furthermore, polygamy has few supporters on the left or the right. It has none of the political or legal heft that the gay rights people have carefully built and currently possess..
And we haven’t begun to mention the psychological and sociological studies that discuss the disruption to lives and the damage to kids and women.which have stemmed from polygamous relationships. And just consider the news stories you have heard about these “families” over the past few years. Not exactly Brady Bunch stories. Always some nutty guy who “marries” 14-year olds. This is not one of those “two people who love one another so give them a break” issues.
I just don’t think this train is moving out of the station in this country. I don’t think that John Roberts’ fears were legal. They were psychological.
Following up on the policy arguments against polygamy, these polygamous communities exile boys so that there are more young girls available for the pedophiles.
http://www.theguardian.com/world/2005/jun/14/usa.julianborger
Ah, man, this is just awful. It does not serve the advocates of the practice and only disgusts people who might be undecided on the situation. And there are 10,000 in this cult? I guess some of the people can be fooled all of the time.
Like I say, anyone who wants to win on the polygamy issue has to overcome the hump of stories like this.
In today’s Slate, Stephen Macedo makes some interesting observations about John Roberts’ comments about looming polygamy. He says that the law has come to focus on equality and equal relationships, in marriage as well as other areas. Same sex marriage carries out that sort of mission, even better than monogamous opposite-sex relationships, but polygamous relationships are, almost by definition, unequal. People around the world have recognized this fact, and as countries are formed, as with India, polygamy is written out. In Africa, 36 nations have ratified the African Union’s protocol on human rights which holds that “monogamy is encouraged as the preferred form of marriage”. It appears that the world, as history, is bending toward justice and equality.