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Post by Rat Of Steel on Jul 18, 2011 15:20:55 GMT -5
You're right, this is a scenario I didn't consider. I was only considering the "traditional" form of polygamy as an sylvana pointed out. But still, the trio could leave city hall with a marriage in some form (with one person excluded) because their fundamental right to marry is being denied based solely on the number of people. "Number of people" is not a biological or immutable barrier to getting married, like sex or sexual orientation. That last sentence sparked the question: in a 3-person marriage, if A married B and C, would B also necessarily be married to C? Or could A and B marry without B being married to C (this is actually the "traditional" polygamous set-up). Imagine the permutations possible with A, B, C, D, and E! A is married to all but E and B is only married to A, C and D whereas C is married to A and B. D is married to A, B, and E, and E is married only to D. And what if A later wants to marry F? Does he need permission from the other people he's married to (B, C, and D)? Or if A just marries F can he do it without anyone else's permission? What if F has a viral STD? Does he also need permission from E, because E is married to D who is married to A? NOW does everyone see why this set-up is COMPLETELY different from gay couples getting married?? Since the U.S. government has such a hard-on for corporations, we could overcome these logistical difficulties by hiring 10 or so of the sharpest-minded people in the profession of corporate law to do a massive brainstorming session regarding how legally recognized plural marriages would work. They could iron all this out in a year or three, if the money were right.  |
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Post by malicious_bloke on Jul 18, 2011 16:38:18 GMT -5
You're right, this is a scenario I didn't consider. I was only considering the "traditional" form of polygamy as an sylvana pointed out. But still, the trio could leave city hall with a marriage in some form (with one person excluded) because their fundamental right to marry is being denied based solely on the number of people. "Number of people" is not a biological or immutable barrier to getting married, like sex or sexual orientation. That last sentence sparked the question: in a 3-person marriage, if A married B and C, would B also necessarily be married to C? Or could A and B marry without B being married to C (this is actually the "traditional" polygamous set-up). Imagine the permutations possible with A, B, C, D, and E! A is married to all but E and B is only married to A, C and D whereas C is married to A and B. D is married to A, B, and E, and E is married only to D. And what if A later wants to marry F? Does he need permission from the other people he's married to (B, C, and D)? Or if A just marries F can he do it without anyone else's permission? What if F has a viral STD? Does he also need permission from E, because E is married to D who is married to A? NOW does everyone see why this set-up is COMPLETELY different from gay couples getting married?? Since the U.S. government has such a hard-on for corporations, we could overcome these logistical difficulties by hiring 10 or so of the sharpest-minded people in the profession of corporate law to do a massive brainstorming session regarding how legally recognized plural marriages would work. They could iron all this out in a year or three, if the money were right. Invent a bullshit "marriage insurance" scheme where couples/groups get evaluated on their risk of divorce due to some nonsense formula. All married units legally have to pay a premium to one or other of the big corps that grow up around the new business. You'll soon see same sex/poly relationships legalised as part of the process of revenue generation. |
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Post by Oriet on Jul 20, 2011 13:41:39 GMT -5
This is not quite comparable with gay rights because gays are actively being denied marriage. As are polygamists. It's just that instead of being denied the right to marry the single person they love, it's being denied the right to marry the people they love. Sure they could just pair off for marriages (leaving the odd number person out), but that's pretty much the same as saying a gay person could marry a person of the opposite sex they want; in both cases, one of the loved people is left without legal ties to the other(s). You're right, this is a scenario I didn't consider. I was only considering the "traditional" form of polygamy as an sylvana pointed out. But still, the trio could leave city hall with a marriage in some form (with one person excluded) because their fundamental right to marry is being denied based solely on the number of people. Same as my above response to Sylvana. Being multiple people is not an immutable, biological trait? Are you saying people can somehow combine into one, à la Dragonball Z style fusion or something? I am otherwise failing to see your point, as you seem to be leaving at least one person still left being unable to marry the one(s) they love. Only if you're making it overly complicated as you are. I thought I already said that all involved in the relationship have to know and be accepting of the (addition to) the multi-party relationship. If person A and B are married, and B wants to marry C, then whether or not A wants to be in that kind of relationship with C is irrelevant, as since they are part of B's marital relation they have to know about, be accepting, and thus still be a part of B's marriage to C, even if A and C aren't having intimate relations. What this does is make is so that it is just a "group marriage," all or nothing kind of thing. They don't all have to have sexual, or other forms of physical, relations between all of the members of the group, but they do need to be aware of and accepting of the relationship between themselves, their partners, and whom their partner(s) is/are with. This also drastically simplifies it for things like taxes, insurance, visitation, guardianship, and the other 1,000+ rights and responsibilities that come with legal marriage. We already handle a bit of that with people who have kids from either, both, or neither (through adoption) parent as part of the same household, irregardless of the extent of the relationship between the children. (No, I am not saying that children and spouses should be treated the same way, merely using them as a basis of comparison for how law handles complex household dynamics.) I also see no reason why you had to bring STDs into the discussion, as that has no bearing on whether people should even be allowed to marry. It doesn't fly with same-sex marriage, and it doesn't fly with this one either. A greater concern for STD's is actually from flings, affairs, one-night-stands, and other such activities (from any partner) than through committed, closed relationships. [Edited to fix a typographical error.] |
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Post by Yla on Jul 20, 2011 14:31:23 GMT -5
This is not quite comparable with gay rights because gays are actively being denied marriage. As are polygamists. It's just that instead of being denied the right to marry the single person they love, it's being denied the right to marry the people they love. Sure they could just pair off for marriages (leaving the odd number person out), but that's pretty much the same as saying a gay person could marry a person of the opposite sex they want; in both cases, one of the loved people is left without legal ties to the other(s). Seconded. This claim has been brought up multiple times in this thread, and it's bullshit. As long as poly marriage is illegal, you have consenting adults who want to marry each other, and are not allowed to do so, without hard, factual reasons for that. Of course gay marriage and poly marriage aren't the same thing, but they aren't completely different either and still comparable in that regard. And the bigamy law mentioned is even worse. It meddles into people's bedrooms, as it isn't just about legal matters, but penalizes people cohabiting. |
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Post by RavynousHunter on Jul 20, 2011 14:35:55 GMT -5
Because Jesus just has to stick his dick into Lady Liberty's ass.
Where's Hades when ya need him?
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Post by Old Viking on Jul 20, 2011 14:49:43 GMT -5
A man with two wives can be nagged in stereo.
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Post by RavynousHunter on Jul 20, 2011 17:01:49 GMT -5
And a man who has 5 and 1 daughter can be nagged in Dolby 5.1 Surround Sound!
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Post by cestlefun17 on Jul 20, 2011 22:28:08 GMT -5
As I've said numerous times before, we all have the capacity to be sexually attracted to more than one person simultaneously. There is not one discrete group of people whose sexual attraction to their preferred sex ceases to exist once they get married and a minority of people whose sexual attraction does not. "Marital status" and "number of people" are both *self-imposed* barriers to getting married.
An immutable characteristic is a fundamental trait of the individual, like race, sex, etc. and cannot be reliant on other people. You don't have a "number of people" stamped onto your forehead or inserted into your brain. "Marital status" is also not an immutable characteristic.
This is completely arbitrary policy-making on your part. It does not necessarily follow as a matter of fact that this must be the way group marriages are entered into.
And while "being denied the right to marry the person/people you love" is an argument that is used in favor of same-sex marriage as well as here for polygamous marriages, "being in love" is not actually a substantial legal basis for compelling the courts to mandate government recognition of such marriages. Courts do not make policy: they can only make sure that the laws are being applied equally. As I've explained before, because legalizing polygamous marriages would require an upheaval of current marriage law, polygamous groups are not "similarly situated" (this is an actual legal term) to same-sex couples, and these changes must come through the legislative process as a matter of public policy, not civil rights.
Marriage laws, in gay equality states, are being applied equally: you have the right to marry the partner of your choice irrespective of any immutable (and thus protected) characteristic. The number of people you wish to marry simultaneously or your current marital status are not immutable characteristics of your person and are self-imposed barriers to your request for marriage.
Keep in mind that whether or not group marriages should be legislated as a matter of public policy is an entirely different debate.
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Post by Oriet on Jul 21, 2011 11:41:24 GMT -5
As I've said numerous times before, we all have the capacity to be sexually attracted to more than one person simultaneously. There is not one discrete group of people whose sexual attraction to their preferred sex ceases to exist once they get married and a minority of people whose sexual attraction does not. "Marital status" and "number of people" are both *self-imposed* barriers to getting married. An immutable characteristic is a fundamental trait of the individual, like race, sex, etc. and cannot be reliant on other people. You don't have a "number of people" stamped onto your forehead or inserted into your brain. "Marital status" is also not an immutable characteristic. Those are actually arguments for polygamous marriage, not against it, as you're saying exclusivity to a single person, which is a trait necessary for monogamy, is not part of human nature. Do you even listen to your own arguments or try to understand your opponent's point of view, or do you just react negatively in whatever fashion cause you don't like something? Except what I laid forth is not arbitrary. When a person goes to rent or buy an abode, it has to be made very clear whether it's an exclusive or shared (such as through time share) residence, or how other contracts have to be renegotiated any time there's a major change to them, such as the inclusion of another party not part of the original contract. Such precedence for being fully knowledgeable about all parties involved in the contract and for all members to be in agreeance with all parts of the contract is already the definite precedence, so the only way for it to be "arbitrary" is to deviate away from that model without very clear reason why. I guess you haven't noticed, but a lot of civil rights are protected through the legislative process instead of just the courts. Court cases do help form them, but just take a look at things like anti-slavery laws, giving women the right to vote, changing the voting age, removal of poll taxes, allowing non-whites to vote, and the rest of the Bill of Rights was done through legislature, not the courts. And that's what I've been arguing about, not what the current law is (as that's what the courts uphold) but rather what those laws should be, which means changes through legislation. I think you need to understand judicial review of the equal protection clause. You're looking only at part of strict scrutiny, as you're blatantly ignoring religious views, which is part of it, and is definitely a mutable trait. Other forms of scrutiny are intermediate scrutiny, where sex, gender, and orientation (though orientation is slowly being covered by strict more than intermediate), which is about immutable characteristics, and then there's also rational basis, which covers everything else such as age, disability (which aren't exactly immutable), classism (wealth level), political affiliation, etc., whether they're immutable or not. In other words, your stress on whether or not something is immutable is simply a red herring through a gross misunderstanding of the law. It is entirely meaningless to the discussion, or any discussion about what should or should not be considered a basic human right. At most the mutability of something will indicate which level of scrutiny should be used, but even that isn't consistent, and still doesn't affect whether it should be scrutinised or not. No, it is not an entirely different debate, it is exactly the debate that has been going on! You just don't want it to be that debate, but that doesn't change that it is what is being debated. Now, if one wants to direct more at what the case in the OP is about, that's actually about cohabitation laws, not marriage, but since the first couple posts it's not what the thread has been about. |
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Post by lighthorseman on Jul 21, 2011 11:47:39 GMT -5
Short version... if people want to marry more than one person at a time (assuming all parties freely give their informed consent, obviously) why the hell not? It doesn't hurt any one else, live and let live, and stop trying to legislate morality. Fuck's sake!
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Post by cestlefun17 on Jul 21, 2011 12:36:34 GMT -5
As I've said a million times before, just because something is "human nature" does not compel the government to recognize it. I'm talking about what constitutes a suspect class in United States jurisprudence. Polygamists do not meet these qualifications because we all have the capacity to be polygamous.
Incorporating this into marriage law is a matter of policymaking, which the courts do not entertain. The courts can only concern themselves with making sure that the laws, as already written, are applied equally.
I have always believed that it is much more preferable to have same-sex marriage legalized through the courts, because it is in then a matter of civil rights and not legislative policymaking. All of those things you mentioned are now protected by various amendments to the Constitution (amending the Constitution is a matter of policymaking and thus something the courts cannot do) and whether or not our current understanding of civil rights would preclude the necessity of these amendments due to the pre-existing 14th Amendment's right to equal protection is purely hypothetical and not something the courts need entertain.
And my argument is that laws affecting polygamous marriages would fall under rational basis scrutiny. Strict scrutiny is used when laws affect a suspect class or when they affect a fundamental right, such as freedom of religion. This is why laws affecting religious worship would be judged under strict scrutiny, even though religion is a mutable characteristic.
What level of scrutiny should be applied to a law is of the utmost importance in U.S. jurisprudence and is usually the first question answered before any decision on the merits is reached. The factors pertaining to what level of scrutiny is warranted have been laid out in several Supreme Court decisions and immutability is an incredibly important factor.
Whether or not a law is constitutional, and whether or not it is a good/bad law are two different discussions. My issue was with all the posters comparing the "right" to polygamist marriage the same as being the right to a same-sex marriage. I have therefore only been addressing why the two are not the same. Maybe I do think polygamist marriage should be legalized; maybe I don't: I'm only saying that I don't believe the Constitution, using existing case law, mandates it.
The focus has shifted to polygamist marriage because we all agree that the complainants should win on privacy grounds so there isn't really anything more to discuss on that issue.
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Post by Oriet on Jul 21, 2011 18:10:19 GMT -5
As I've said a million times before, just because something is "human nature" does not compel the government to recognize it. I'm talking about what constitutes a suspect class in United States jurisprudence. Polygamists do not meet these qualifications because we all have the capacity to be polygamous. Everyone has the capacity to change their religion, either away from or to a specific one, yet we see it as something very firmly protected. I also don't think everyone has the capacity for polygamy, as many people simply have way too much jealousy and exclusivity, but again I don't think the capacity or lack there of is important to the discussion. What about for the people for whom polygamy is religious in nature? Saying they can't have a plural marriage directly restricts their freedom to practice their religion, and from what I have seen there has been no secular reason ever given for why that limitation should remain. And no, I do not consider "but it would be hard!" to be a reason, as it's at best a whiny excuse. Alright, show me exactly where it says immutability is even a factor. I want to see it. I want to see justification for why they give protection to religion, which is itself highly mutable, but would hold that against other things. Quite frankly I do not think it is nearly as much of a factor (if it is even one at all) as you're trying to make it out to be. Here's the thing, even with their differences I don't see how same sex and plural marriage would have any difference as far as rights are concerned. Why is marriage being restricted in such a way? Why is it restricting peoples freedom of religion and freedom of association in such a limiting manner? The constitution doesn't state marriage as being only between heterosexual people, nor does it even state it's only between two people, as in fact it says nothing about marriage at all. Which is exactly my point, there are no constitutional restrictions placed on it, beyond the age of majority for being able to enter into contracts, about whom or how many can enter into it. Keep in mind that all a marriage is is a legal contract between individuals, and we already have enormous precedence to allow for multi-party contracts. Why is marriage any different? |
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Post by RavynousHunter on Jul 21, 2011 19:21:34 GMT -5
Because sex.
(The above post was made in jest because I both can't and won't be arsed to come up with an actual argument.)
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Post by erictheblue on Jul 21, 2011 19:31:55 GMT -5
I think you need to understand judicial review of the equal protection clause. You're looking only at part of strict scrutiny, as you're blatantly ignoring religious views, which is part of it, and is definitely a mutable trait. Which are not an Equal Protection issue. Religious protection is given strict scrutiny because of the Establishment Clause of the First Amendment. Orientation is reviewed under rational basis. It has not been upgraded to either strict or intermediate scrutiny. I do have a question that I have not seen answered. (It's possible I missed an answer.) You said polygamy can be legalized by legislative action, which is, of course, true. My question is... how? In what manner should the laws be changed? Keep in mind, polygamy affects more than just criminal law. Family law and estate/probate law are also effected in significant ways. What kind of laws should be created? How should they be written? The biggest difference between same-sex marriage and polyamous marriage is in areas outside criminal law. |
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Post by cestlefun17 on Jul 21, 2011 20:46:06 GMT -5
There are two different things that will trigger strict scrutiny: 1. The law burdens a suspect class. 2. The government encroaches on a fundamental right. If either of these two things are occurring, then strict scrutiny is used. Because the right to religious freedom is in the 1st Amendment, it is a fundamental right, so even though one can choose one's religion, laws that hamper this will trigger strict scrutiny.
Now marriage is also a fundamental right, but the barriers to a polygamous group getting married are fully controlled by them. There is not a discrete group of people whose sexual attraction to their preferred sex ceases to exist (except to their partner) the moment they get married, and another discrete group whose sexual attraction continues to exist. Everyone fully controls the number of relationships they enter into at any one time. Celibates are fully in control in choosing to enter into no relationships; monogamists are fully in control when choosing to enter into only one relationship; and polygamists are fully in control in choosing to enter into several relationships.
Because this barrier is entirely self-imposed, you cannot blame the government for restricting your access to your fundamental right. You also have a right to travel freely throughout the United States. But if you put a brick wall in front of your front door, you cannot then sue the government claiming it is denying you your right to travel freely.
A capacity for being in a polygamous relationship and not preferring a polygamous relationship are two different things. Polygamous people do not have a special trait or characteristic that the majority of people don't have: they fully choose and are fully in control of how many relationships they enter into at any one time, just like everybody else. Their status as a polygamous is fully dependent on their relationship with other people and not on any inherent characteristic of their individual self.
Perhaps this could be a reason for not putting polygamists in jail, but our secular government absolutely cannot recognize religious sacraments. If a polygamous group gets married in their religion, that has no bearing on government recognition. The government doesn't even recognize the religious sacrament of marriage between two people. The government has its rule for marriages; each religion has theirs. If the people getting married happen to meet the qualifications for both, then wonderful. Just because you get married in a church doesn't mean the government must automatically recognize it. You still must fill out the legal form, and the person officiating at your ceremony must be recognized by law as someone whose officiating status grants legal recognition to the marriages performed before him or her.
A secular reason can easily be proffered especially under the rational basis test, which is highly deferential to the government. You might not AGREE personally with the reason, but so long as it is rational it will withstand the scrutiny. To offer just one reason off the top of my head, marriage laws as currently written, in indicating a single next-of-kin, remove all controversy in regards to property inheritance, medical decision-making, etc., etc., and which would only be complicated by plural marriages. You might say that plural-married people can fill out extra paperwork to alleviate this, but this is what marriage is supposed to prevent in the first place. You might not agree with this reasoning, but it is perfectly rational.
To pick just one of the many possible Supreme Court cases at random:
Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), is an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, see supra at 355-356, it is nevertheless true that such divisions are contrary to our deep belief that "legal burdens should bear some relationship to individual responsibility or [p361] wrongdoing," Weber, supra at 175; Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control of an individual. See UJO, 430 U.S. at 173 (opinion concurring in part); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 566 (1947) (Rutledge, J., dissenting). REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265.
And again, while religious worship is not an immutable characteristic, it is a fundamental right, and thus still subject to strict scrutiny.
Because marriage is not just a legal contract. It's a legal contract that enters people into an entire legal institution. There are so many laws tied to marriage beyond a simple contract. I am not an expert in marriage and divorce law, which is an entire field unto itself. But same-sex couples are similarly situated to opposite-sex couples: what is or is not hanging between their legs does not in any way complicate the system as it is already in place. This just isn't true for plural marriages. If we allow this, then we must change the entire legal institution of marriage to accommodate it. There are many many ways this could be done, and it is not for the courts to decide the best policy for doing it.
And yes, the Constitution does not place restrictions on marriage, but that does not mean that marriage is restriction-less. The 10th Amendment grants all powers not vested in Congress to the States, or to the people. States write marriage law, and so long as they do not infringe on the 14th Amendment's right to equal protection of the law (which is adjudicated under the aforementioned system of tiers of judicial scrutiny), then they are valid.
This is only partially true. The Supreme Court has never given a definitive ruling on what level of scrutiny should be applied to laws affecting gay people, and therefore standards vary from circuit to circuit. The 9th Circuit is the only circuit to my knowledge that has a clear-cut precedent of using intermediate scrutiny, based on their interpretation of the Supreme Court decision in Lawrence v. Texas.
There are an innumerable number of ways to re-construct the entire legal institution of marriage. I personally would rather not see polygamous marriages legalized in any circumstance, but this is a debate I'm not interested in getting started in at the moment.
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