Monday, March 16, 2015

Tribe and Dorf Amicus Brief in the SSM SCOTUS Cases

by Michael Dorf

N.B.  The following essay is being cross-posted today on Notice & Comment, the blog of the Harvard Law & Policy Review, which is the official law review of the American Constitution Society.
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Equality and Liberty in the Same-Sex Marriage Case

Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted defeat and did not appeal. Some—like those in Virginia—saw the light and became vigorous advocates for the rights of their gay and lesbian citizens.

But other state officials sought relief in the highest court in the land. They asked the Justices to stay the orders that allowed same-sex marriages to go forward, claiming, inter alia, that if the Court were ultimately to rule against a right to same-sex marriage, it would be very difficult to unwind the marriages that occurred in the interim. Last fall, the Court denied the stay applications, thus sending a very clear signal that at least five Justices intended to recognize a right to same-sex marriage when the issue came before them.

And now the issue is before the high Court. In light of the Court’s refusal to block the thousands of interim same-sex marriages, it is essentially a foregone conclusion that the plaintiffs will prevail in the cases consolidated under the caption Obergefell v. Hodges. The remaining question is how the Court will reach that conclusion.

There are essentially four options. First, the Court could conclude that the justifications offered for the same-sex marriage bans are so weak that they are not even rational—and thus fail the most forgiving test in constitutional law. Judge Richard Posner’s opinion for the U.S. Court of Appeals for the Seventh Circuit in Baskin v. Bogan provides a template for this approach. Responding to the argument that same-sex marriage bans somehow address the problem of accidental procreation by heterosexuals, Judge Posner snarkily observed: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Second, the Court could hold that sexual orientation is a suspect or semi-suspect classification analogous to race or sex, thus requiring heightened scrutiny. Because the same-sex marriage bans are not even rational, a fortiori they fail heightened scrutiny.

Third, the Court could follow the path it blazed in Loving v. Virginia, in which it struck down a state ban on interracial marriage on equal protection grounds but added a separate and independent basis for the ruling: marriage is a fundamental right. Just as laws that discriminate based on the race of a spouse violate that right, so do laws that discriminate based on the sex of a spouse.

Fourth, the Court could follow the approach set out by Justice Kennedy in his majority opinions in Romer v. Evans, Lawrence v. Texas, and Windsor, which eschew formal reliance on the doctrinal boxes of suspect classifications and fundamental rights, instead evaluating the bans against the Constitution’s core guarantees of equality and liberty. As in those earlier landmark rulings, so in Obergefell, the Court could be expected to reject the challenged laws as inconsistent with the dignity of gay and lesbian Americans.

Which path is best? There are advantages and disadvantages to each. Because LGBT Americans continue to face discrimination outside the context of marriage, I would like to see the Court apply heightened scrutiny to sexual orientation distinctions—and thus I have joined with other constitutional law professors in filing an amicus curiae brief urging that approach.

But as recognized by Loving and other cases, it is not necessary to choose between equality and liberty. The Constitution protects both, and while there are circumstances in which these values can conflict, they are not generally zero-sum. As Justice Kennedy explained for the Court in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”

Accordingly, in addition to the amicus brief urging heightened scrutiny under the Equal Protection Clause, Professor Laurence Tribe (who also signed that brief) and I have filed another amicus brief just on our own behalf, urging the Court to find that same-sex marriage bans violate the fundamental right to liberty as well. In that brief, we respond to an argument made by Judge Paul Niemeyer in his dissent from the Fourth Circuit ruling for a right to same-sex marriage in Bostic v. Schaefer: that the Constitution protects a fundamental right to heterosexual marriage because, until recently, government had not sanctioned same-sex marriage.

Judge Niemeyer’s argument attempts to revive an approach to fundamental rights that Justice Antonin Scalia has advanced for a quarter century but that his colleagues have decisively and repeatedly rejected. Relying in part on an argument set forth in our 1990 article Levels of Generality in the Definition of Rights and our 1991 book On Reading the Constitution, Professor Tribe and I explain in our brief that defining fundamental rights in terms of narrow historical traditions does not achieve the objectivity claimed for this approach, because there is no single dimension or direction to tradition. More basically, as cases like Loving illustrate, specific historical traditions may themselves be inconsistent with the Constitution’s protection of equality and liberty.

Justice Kennedy is sometimes criticized for the soaring rhetoric and doctrinal unorthodoxy of his most important opinions. But when it comes to minority rights, the criticisms miss the mark. Our most fundamental constitutional commitments—found in Section One of the Fourteenth Amendment—sought to uproot America’s original sin: slavery. But what was slavery, if not the negation of both the equality and liberty of enslaved African Americans? The boxes are artificial; Justice Kennedy’s rhetoric rings true.

By recognizing the thread that ties together the plaintiffs’ equality and liberty claims in Obergefell, the Court would be honoring our country’s most important tradition—the tradition of moving our practices closer to our constitutional values.

29 comments:

David Ricardo said...

Interesting and excellent summary of the issues.

Consider this statement from Mr. Dorf:

"Our most fundamental constitutional commitments—found in Section One of the Fourteenth Amendment—sought to uproot America’s original sin: slavery. But what was slavery, if not the negation of both the equality and liberty of enslaved African Americans? The boxes are artificial; Justice Kennedy’s rhetoric rings true."

Queston: Suppose the 13th Amendment had never been enacted but the 14th amendment had with the exact same text that currently exists. Would the 14th amendment alone have resulted in a Supreme Court decision that determined that slavery was unconstitutional?

Hashim said...

Apologies in advance if you addressed the following question in your amicus brief (not available on scotusblog for some reason):

W/r/t an alleged fundamental DP right to "marriage" (wholly divorced from the traditional definition of marriage), how can bans on gay marriage be distinguished from bans on polygamous marriages or incestuous marriages? Those latter bans are equally (indeed, much more) over- and under-inclusive if they must satisfy strict scrutiny. Plus, those marriages actually have stronger claim to fundamental rights protections, since many societies have, and still do, condone such marriages, whereas no society ever allowed gay marriages until the last 20 years.

In short, divorcing "marriage" from its traditional definition for purposes of fundamental-rights strand of DP analysis leads to absurd results that I can't believe AMK would support.

Samuel Rickless said...

Hash, there are ways to distinguish polygamous marriage and incestuous marriage from same-sex marriage. In a typical polygamous marriage, H marries W1 and W2, which means that mutual promises are made between H and W1 and between H and W2. But because W1 and W2 have not made promises to each other, the situation is unstable, not only with respect to the welfare of W1 and W2, but especially with respect to the welfare of any children of W1 and W2. This is so because circumstances may, and often do at some point, make life very difficult for W1 (or W2). When that happens, it may become impossible for H to discharge promissory obligations to W2 (and to the children of W2, if any) if H discharges promissory obligations to W1 (and the children of W1, if any). Perhaps, as I once argued in a short San Diego Law Review article, there is nothing wrong with menages-a-trois or menages-a-quatre, in which each party to the marriage makes a marital promise to each other party. But these menages are not the polygamous norm.

In the case of incest, we have fn. 4 to Justice Blackmun's Bowers dissent: "With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted." I think the point about consent reaches most (perhaps all) cases of problematic incest. There are also, of course, public health concerns in the case of most incestuous marriages. Cases of unproblematic incest are few and far between, and might be accommodated as special exceptions. Right now, my students are writing their final papers about the following (exceptional) case: "Brian and Cheryl are siblings who were separated at birth under tragic circumstances. As they grew up, neither had any inkling of the existence of the other. Both do well in high school and become members of Warren College at UCSD in 2014. They sit together in class, realize that they have a great deal in common, and, over time, fall in love. Before they are able to consummate the relationship, both Brian and Cheryl discover that they are siblings (never mind how). After some significant soul searching, Brian and Cheryl decide that their love for each other is stronger than any sexual taboo. Recognizing that any child they conceive together may be born with serious mental or physical disabilities, Brian (with Cheryl’s approval) undergoes voluntary sterilization."

t jones said...

Isn't there a much stronger rational basis argument for a polygamy ban than for a same sex marriage ban? For financial and administrative purposes, it makes far more sense to limit the advantages and obligations given to married individuals compared to unmarried individuals to groups of two. Joint income tax filing, increased standard deduction, default rules concerning property ownership and inheritance, presumptions regarding responsibility for the offspring of the marriage, spousal eligibility for gov't support, etc. It seems that a much stronger case can be made that it is rational to limit those benefits to groups of two, as opposed to allowing them for groups of three, four or more. No need to decide whether group marriage is or isn't more likely to be abusive, merely look at the differing financial and administrative burdens.
It's possible that the sibling/sibling or first cousins incest bans would have trouble surviving under this analysis (after all, we don't test unrelated couples for genetic risks before allowing them to marry), though the consent problem for parent-child marriages might support a narrower ban.

Joe said...

"how can bans on gay marriage be distinguished from bans on polygamous marriages or incestuous marriages"

Lol. How many times is the same question going to be asked?

How are those bans "much more" overinclusive?! The purposes of marriage and the problems with allowing it (e.g., consent and family divisions in case of incest) are HARDER to address than SSM? Even granting ALL should be protected, this overcompensates.

But, we are told the "traditional" definition has more support. Yet again, this should take into consideration coverture. That was "traditional" both here and abroad. The equalization of the sexes in marriage is ultimately a bigger change given its reach.

Incest bans don't have broad support in other societies. The exception here would be first cousins, which I'll grant to save time. A range of states allow first cousin marriages. And, as the briefs here note regarding recognition, same sex marriages are treated more harshly.

Regarding polygamy, the support is somewhat narrow, and as applied to our own constitutional tradition, even less so. A bilateral marriage provides a more equal standing to each side, in practice it usually favors patriarchy. And, again, the reasons against polygamy are sounder than burdens based on sex or sexual orientation.

Hashim said...

Both of your defenses of incest and polygamy bans would plainly fail strict scrutiny (the applicable standard under Mike's DP theory).

For both polygamy and incest, you primarily focus on the risk of "coercion" -- ie., marriages that aren't truly consensual due to pressure of one form or another. But not every such marriage will involve such coercion, and there are a slew of less-restrictive alternatives that the State could adopt to avoid such coercion while allow non-coercive marriages of this sort: e.g., requiring a judicial inquiry into the voluntariness of the marriage (like states do for guilty pleas); requiring a heightened age of consent (to avoid adults pressuring children); etc. A similar over-inclusivity applies to health risks, etc.

Likewise, these bans are more over-inclusive than bans on gay marriage for the following reason: I strongly suspect that, at least as a percentage matter, there would be more non-coercive polygamous/incestuous marriages than there are dual-infertility marriages (which are the only "over-inclusive" heterosexual marriages if the State's compelling interest behind marriage is channeling procreation into stable family units).

Anyway, the reason this question keeps getting asked is that the other side never actually gives a *legal* answer to it. Like you, people just keep saying that incest/polygamy are "different," without even trying to show how these differences are *material under strict scrutiny.* See, for example, the majority opinion in Fourth Circuit

Joe said...

"Justice Kennedy’s rhetoric rings true." Yes. Rhetoric in this area also can be found in opinions written by other justices. Fault can be found with Brown too.

Ultimately, Loving recognized that race is not a proper ground here, including as a means to deny a right to marry. Sex or sexual orientation isn't either. The best way there probably requires you to look at what the right to marry has entailed. Go down the list & you can see same sex marriage fits.

Polygamy and incest was raised there too. Check out the oral argument at Oyez.com. The right to marry can be expanded here to involve those too perhaps but it's a lot easier to show why interracial or same sex monogamous marriage of non-family members should be protected given the material available.

Prof. Dorf also signed on to a brief focusing on the problem of sexual orientation discrimination -- http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/14-556_Constitutional_Law_Scholars_Ashutosh_Bhagwat.pdf -- as he noted, the two threads work together.

Joe said...

which are the only "over-inclusive" heterosexual marriages if the State's compelling interest behind marriage is channeling procreation into stable family units

The "right to marry" is not in place merely to "channel procreation." It's sad how limits on same sex marriages make out as if marriage is so small. Outside of this issue, people generally realize marriage licenses are in place for more reasons, including for security for those who won't procreate any more or at all.

Turner v. Safley lists a span of reasons why the right exists. "Stable family units" are advanced by same sex marriage too, including if we recognize bisexuals who "accidentally procreate" more if not restrained by marriage.

This is a "legal" argument so I don't know what the heck you are talking about. The arguments provided go to the legal issues, including grounds for classification. This is so even if not expressly formulated in a legal way. You might not agree with the arguments, which are provided over and over again in these sort of threads. But, they are provided.

Regarding incest, consent is not the only concern -- family stability overall is an interest. Marriage overall is a right to form special bonds outside of the family, which backs up the legal rights provided here. Polygamy also is not merely not protected for reasons of consent. This also has been repeated repeatedly.

If Prof. Dorf wishes to summarize the well trod arguments, fine.

David Ricardo said...

Look people.

The issue with SSM is not that there is a constitutional right to SSM but that no state has presented a ratonal justification or any justification other than animus for banning such marriages (because there is no other justification, if there was somebody would have found it by now. There are enough conservatives out there that surely one of them must be smart enough to find it if it did exist.)

With respect to incest and polygamy there is a rational basis for prohibition. One may not agree with that basis, but it exists to the extent that it is sufficient to uphold the ban.

We need to move beyond Rick Santorum and his man-on-dog reasoning. Rick Santorum is not one of those smart conservatives I was referring to. Not by any stretch of the imagination.

Don Smith said...

The due process/fundamental right argument can conceivably lead to undermining bans on polygamy (although, if polygamy is allowed, then polyandry and polyamory must be allowed as well) and incest....well, less likely in incest. However, this would take years to accomplish - and the governmental interests involved are at least rational and might even survive strict scrutiny. That's why the best analysis comes from the Equal Protection clause.

Numerosity and consanguinity are not classifications that trigger heightened scrutiny under EP analysis. Gender does, however, and sexual orientation arguably should. Given the Chief Justice's conservative leanings, I would think he'd jump at the chance to write the majority opinion in the SSM cases, and base his rationale on the narrowest possible grounds (EP/Gender) that would neither (a) add a new protected class nor (b) lead within a few years to rampant polygamy in the absence of a strained definition of the fundamental right to marry.

Hashim said...

Joe/David: Courts don't get to decide what the State's interest in marriage is. If the State asserts that its interest is in channeling procreation into stable family units, pltfs must refute that argument by showing that the State's law is insufficiently tailored to that interest (or by arguing that interest is insufficiently compelling). And the traditional definition of marriage is exceedingly well tailored to that interest, even if it isn't perfect (because of dual-infertile couples and/or bisexuals). More importantly, it's far more tailored than your position: that the State's interest in marriage isn't about procreation, but more generally about "loving relationships," but the Govt then excludes countless loving relationships from coverage.

David Ricardo said...

Even accepting that "courts don't get to decide what the state's interest in marriage is" they do get to decide if the interest is pretext or insufficient to allow discrimination.

And the fact that a state allows almost all non procreationable opposite sex couples to marry and does not allow any non procreationable same sex couples to marriage is so blatant an exercise in illegal discrimination, bigotry and prejudice that the argument has failed spectacularly in almost every proceeding that its advocates has advanced it.

Joe said...

There is a "right to marry" recognized in this country and thus like for other rights, yes, the courts can stop the government from only honoring part of it. I second DR that even assuming the argument, it loses. As another person notes, Judge Posner handled that rather well.

There are other means than burdening same sex couples (and their children) to advance that interest. An inclusive marriage system advances that interest AND the other interests a "right to marry" entails. Again, Turner v. Safley has listed what these interests are. Finally, an honest accounting shows the discriminatory intent here.

Finally, my argument does not merely reference, full stop, a "loving relationship." Siblings, pets & friends are forms of that. Marriage in this country is a monogamous union among consenting adults that are not close family members. It is silly actually to phrase it that way since you obviously don't have to "love" someone to get married.

Marriage in this country is not merely in place to advance procreation, which involves same sex couples to some extent anyway. Everyone knows this, if they were honest about it. The makeweight arguments here are the sort that don't hold up.

Hashim said...

Hilarious: "marriage in this country is a monogamous Union among consenting adults that are not close family members." actually, in this country, and every other for all of history before 20 years ago, it also required opposite sex, precisely because those are the only procreative relationships. You've just gerrymandered your definition of marriage by arbitrarily jettisoning that requirement, while retaining the other reqs (monogamous, consenting, adults, unrelated) because they happen to comply with your moral sensibilities (or because you're waiting until after this case to argue they're invalid too). Any credible application of strict scrutiny that would invalidate opposite-sex req should invalidate the rest, as evidenced by fact that this is the only req that has always been required by every human society until recently. All the rest are far less indispensable to marriage, why is why numerous societies have and still do dispense with some or all of them.

Paul Scott said...

Hash,
I won't wait until later. Happy to state now I see no reason to oppose polygamy at all and I don't see a reason to outright ban incest. It seems to me the coercion that is a concern can be dealt with, at least initially, as part of the licensing.

With that said, though a lot is made of incest as part of a reason not to allow SSM (this is only true, of course, if SSM is based on strict scrutiny review under SDP) no State currently bans all incest (that would require banning all marriage). Most limit it at the first cousin level.

There may be a compelling State interest wrt incest and genetics (though the science on this largely does not support the concern - legislatures are allowed to be wrong), but I certainly agree with you that polygamy and SSM are closely related wrt SDP since both are banned out of animus.

Hashim said...

Appreciate the candor Paul. Doubt we'll see the same from the litigating pltfs.

As for incest and genetics, not only are the bans probably over inclusive given the existing science, but they're wildly under inclusive since many people who are far more likely to produce same or worse genetic issues are allowed to marry and procreate. (Under inclusion is also a fatal defect to coercion theory for both incest and polygamy.)

Joe said...
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Joe said...

I don't think "animus" etc. is the reason why NY allows same sex marriage while not allowing sons to marry mothers or polygamy.

The whole thing is something of a red herring. The barrier to same sex couples is the question. As the briefs Prof. Dorf join show, the barrier is unconstitutional.

Once equal protection was given to same sex couples generally, marriage rights should logically follow. They have the same aspects as couples recognized.

This was noted. Monogamy works with John marrying Sam or Samantha (white or black too). Polygamy is a different animal. It can obviously be upheld, but it's a different thing.

We can play -- like they did during Loving v. VA -- the "what if" game. Discrimination of same sex couples remains unconstitutional.

Joe said...

Hilarious: "marriage in this country is a monogamous Union among consenting adults that are not close family members."

Some, including Ruth Bader Ginsburg, got ridicule when arguing for equal protection of women too. In fact, not long "before twenty years ago," you could find a state where spousal rape was still at best barely illegal. Marriage has changed in various ways that once was likewise laughed at.

actually, in this country, and every other for all of history before 20 years ago, it also required opposite sex, precisely because those are the only procreative relationships

No. It required the opposite sex because traditionally people had stereotypical ideas about proper unions. Twenty years ago, there were over ten states that banned same sex couples from having sex. If treated equally, many couples even then would have been recognized as married. A brief, e.g., notes how the Quakers -- once they recognized the equal status of gays and lesbians -- started to marry them in the 1980s.

You've just gerrymandered your definition of marriage by arbitrarily jettisoning that requirement

Procreation wasn't an entry requirement though again same sex couples do "procreate" in certain ways and do raise children. Who you and others want to harm by denying marriage rights. And, needlessly, even granting the "interest" posed. Not funny.

while retaining the other reqs (monogamous, consenting, adults, unrelated) because they happen to comply with your moral sensibilities

No, by retaining the requirements that do not violate equal protection of the law.

(or because you're waiting until after this case to argue they're invalid too).

I'm sneaky that way.

Any credible application of strict scrutiny that would invalidate opposite-sex req should invalidate the rest, as evidenced by fact that this is the only req that has always been required by every human society until recently.

Tradition has repeatedly been shown to continue misguided and harmful practices. You might disagree with the arguments, but "credible" arguments have been given that differentiate classification by things like race/sex/sexual orientation/caste & incest/polygamy. Again, I'll grant first cousins for simplicity though it isn't reasonable for states to treat them better - as they do here - for purposes of recognition.

All the rest are far less indispensable to marriage, why is why numerous societies have and still do dispense with some or all of them.

As marriage is practiced in this country, monogamy is not "less indispensable" than not discriminating by personal characteristics like race, sex, sexual orientation or caste. Maybe not so much in certain other nations. The same applies to incest.

Joe said...
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Hashim said...

"As marriage is practiced in this country" is question-begging, because every State bans polygamy. We have no idea how marriage would be practiced in this country absent those bans, and we have a pretty good idea how they would be practiced in areas with large populations of fundamentalist Mormons or Muslims.

Again, it is not "credible" to merely "differentiate" by drawing any factual distinction that strikes your fancy -- you to have to differentiate *under strict scrutiny* by showing that imposing a blanket ban on polygamy/incest serves a *compelling govt interest* and is *narrowly tailored* because there are *no less restrictive alternatives.* Any such argument is laughable, given the myriad other ways of preventing coercion/genetic-problems short of an outright ban, and the myriad other ways that the State doesn't care about coercion/genetic-problems apart from polygamy/incest. Indeed, not once in any of your posts about have you ever tried to show otherwise, or dispute that is the requisite showing under strict scrutiny.

It is abundantly clear that polygamy/incest are banned based on gross stereotypes and moral outrage, not because anyone seriously thinks that *no* such marriage could ever be legitimate, regardless of how clear a showing of voluntariness, and how clear the absence of any risk of genetic issues.

Scott said...

@Hashim: "actually, in this country, and every other for all of history before 20 years ago, it also required opposite sex, precisely because those are the only procreative relationships."

The reason that marriage has (while largely unstated until 20 years ago) been traditionally limited to opposite-sex couples is because until very recently, Western societies irrationally perceived homosexuality as one of the most pernicious of moral evils, barely able to be mentioned aloud and determinedly stamped out wherever it appeared. Under those circumstances, it's ludicrous to think that there could possibly be any sort of reasoned discussion about the position of same-sex couples with relation to the institution of marriage. The traditional exclusion of same-sex couples from marriage is an extension of the historical cultural animus against homosexuality, period. Any argument otherwise is simply a desperate attempt to find some timber to shore up an exclusionary definition of marriage now that the culture has shifted such that the traditional animus is no longer legitmate.

Hashim said...

Scott: I suppose it's possible that all societies for all of history have all been collectively irrational. I really look forward to a 5-4 vote of the SCt proclaiming that to be the case in their infinite (albeit recently discovered) rationality.

Of course, a jurist who has even an ounce of humility might stop to wonder whether if instead humankind hasn't been in the grip of collective irrationality for its entire existence, and if perhaps there's some sound moral reason for societies to confer preferred status on relationships that channel sex in a way that promotes the propagation of the species and avoids the harms from unwanted children.

By the way, what's your explanation for the fact that gays couldn't marry even in societies that were much more tolerant of same-sex relationships: e.g., ancient greece? They must have been extra-special irrational on your view. Or maybe they just realized, like everyone else used to, that marriage is fundamentally about children, not about adults.

In all events, none of this is really responsive to my initial point: even if opposition to homosexuality is irrational prejudice, opposition to polygamy/incest between truly consenting adults is even more so.

Scott said...

@Hashim: "I suppose it's possible that all societies for all of history have all been collectively irrational."

They've all been religious. Depending on your position, that's pretty strong evidence for collective irrationality right there.

"By the way, what's your explanation for the fact that gays couldn't marry even in societies that were much more tolerant of same-sex relationships: e.g., ancient greece? They must have been extra-special irrational on your view. Or maybe they just realized, like everyone else used to, that marriage is fundamentally about children, not about adults."

I'd argue instead that they had entirely different ideas about the social function of marriage and family. Believe it or not, views about those things do change. Individual freedom of spousal choice is fundamental to the way we view marriage in the 21st century West, but would have been largely unthinkable in most previous eras, where you married for economic, social, or political benefit, and often at the direction of authority figures in your kin group (especially if you were a woman).

And really, I'm not interested in your arguments about polygamy and incest. If someone with standing wants to challenge those laws, they're free to do so. In the meantime, they're irrelevant to the instant question.

Don Smith said...

In 2004, dozens of states that had never thought it was necessarily decided to amend their constitutions to permanently define marriage as the union of exactly one man and exactly one woman. They did this as an end run around their own state constitutions, which contained equal protection guarantees that could easily be interpreted to demand same sex couples be included in the definition of marriage, in the aftermath of Lawrence v. Texas, since gay sex was no longer a crime.

The motivation of these legal changes was animus. That is beyond serious dispute. What is disputed is the standard of scrutiny to which those laws will be subjected under Equal Protection analysis, Due Process analysis, or both.

Let's assume for the sake of argument (and it's a reasonable assumption) that the marriage definition laws are rationally related to some legitimate state interest, and that somewhere there is a state that can manage to articulate that interest without revealing animus or irrationality (i.e., religious distaste for deviant sex). If rational basis scrutiny is applicable, then the laws would be upheld....unless they were passed because of animus, in which case the Court would look to the ACTUAL rational basis rather than some post-hoc justification. This leads to a 5-4 decision written by Justice Kennedy, with no discernible standard of review (like his last two gay rights decisions).

Seeing as we cannot afford another ten years of litigation because the left wing of the Supreme Court can't seem to articulate an intelligible principle to decide future cases and controversies, I predict the Chief Justice will step in, vote with the liberals on the correct result, and assign the opinion to himself to keep Justice Wishy-washy from messing up another decision.

Wanting to decide the case on as narrow a basis as possible, thereby minimizing the negative long-term consequences for conservatives and neandrathals, the Chief will ignore due process/ fundamental right arguments, refuse to acknowledge sexual orientation as a suspect class for equal protection purposes, and invalidate the marriage restrictions solely because they classify on the basis of gender and cannot pass intermediate scrutiny.

Rational basis is irrelevant, and it seems unlikely that we will find a majority on the Court to agree on either a fundamental rights or sexual orientation discrimination rationale for striking down the laws at issue. But we can get at least six Justices to acknowledge the fact that these laws classify (and classification is discrimination) on the basis of gender, and are thereby subject to a standard of scrutiny that they cannot satisfy.

We get a narrow opinion from Roberts, possibly with a concurrence from Kennedy, and probably with a scathing dissent (read from the bench) by Scalia that boils down to "I told you so".

Let's see if I'm more psychic than psychotic in about 14 weeks.

Joe said...

It is abundantly clear that polygamy/incest are banned based on gross stereotypes and moral outrage, not because anyone seriously thinks that *no* such marriage could ever be legitimate, regardless of how clear a showing of voluntariness, and how clear the absence of any risk of genetic issues.

This is an incomplete summary of the situation. See below.

But, just to not miss what is immediately at stake, you did not show how there is a compelling interest to deny same sex marriages either, even if we take for granted the not credible idea that the states here protect marriage for the one single thing cited.

Again, it is not "credible" to merely "differentiate" by drawing any factual distinction that strikes your fancy

I'm not doing this. Your use of ridicule, exaggeration & patently false facts reeks of desperation or stereotyping.

For instance, the alleged sole interest to advance accidential procreation or however that's phrased. Senior citizens get married & the state recognizes other interests too in such cases, including companionship, assistance in old age and recognition of various benefits. This isn't an "overinclusive" example. It isn't "fancy." It is part of what marriage is there for. Again, same sex marriages fit into these criteria as much as marriages recognized among different sexes.

Joe said...
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Joe said...

"As marriage is practiced in this country" is question-begging, because every State bans polygamy.

We have to address marriage "in this country" since that is the system we are dealing with. The same applies for other liberties such as trial rights.

The places where polygamy generally is in place tend, e.g., to be patriarchal in nature and the equality that a "bilateral union" (to cite a Supreme Court opinion) has in this country is different than for polygamy. The novelty v. the hundreds of thousands of same sex unions in place now does help my case some. But, you cite other traditions quite unlike the U.S. to show how polygamy is clearly reasonable. This is "question begging" in itself, since the other traditions are very different is certain ways than today's society, thus the reasonableness is much less unclear. Anyway, note incest bans are more universial except for first cousins, which again I'll grant probably won't meet strict scrutiny (probably easier to defend than a ban on SSM though).

you to have to differentiate *under strict scrutiny* by showing that imposing a blanket ban on polygamy/incest serves a *compelling govt interest* and is *narrowly tailored* because there are *no less restrictive alternatives.*

This would be a matter of determining what the "right to marry" entails in this country, which various cases and history/practice helps show. As noted, polygamy very well might not meet those criteria, just as certain types of speech are not protected in the ambit of "freedom of speech." The same might be true regarding incest -- incest taboos even have your tradition presumption going for it. OTOH, same sex or interracial or different sex monogamy all easily fit the criteria spelled out, once stereotyping about same sex unions is taken out of the way.

Any such argument is laughable, given the myriad other ways of preventing coercion/genetic-problems short of an outright ban, and the myriad other ways that the State doesn't care about coercion/genetic-problems apart from polygamy/incest. Indeed, not once in any of your posts about have you ever tried to show otherwise, or dispute that is the requisite showing under strict scrutiny.

It is not "laughable" regarding incest and polygamy, especially if (as was noted before) incest bans protect familial integrity. Marriage is a special union formed by joining outside the family, which affects the rights and burdens that arose. A family already has a relationship. The actual ability to deal with consent is far from clear to me, the close relationship seems credibly inherently so close and entwined that consent would be hard to prove. Polygamy also is different from an 1:1 union, as practiced furthers patriarchy (gender equality is a compelling state interest) & in general is a different animal from monogamy.

Still holds: it is not harder to defend same sex monogamy than different sex polygamy or brothers marrying. It is "credible" to protect everything & some "animus" is involved (as it was in the 19th Century) but more too.

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