# Federal bankruptcy court blasts Defense of Marriage Act **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528 "2011-06-15T04:40:33Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 9:46pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/61 "2011-06-15T21:46:26Z")
> [@Whack-a-Mole](#): > > Scalia describes himself as an Originalist: He describes himself [as I said](http://en.wikipedia.org/wiki/Originalism#Original_meaning): > [@](#): > > The most robust and widely cited form of originalism, “original meaning” emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like “due process” and “freedom of the press” had a long established meaning in English law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone’s Commentaries on the Laws of England; see Matters rendered moot by originalism, infra) to establish out what particular terms meant. See Methodology, infra). > > Justice Scalia, one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category: > > ``` > The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. > > ``` This is to distinguish from the idea of seeking the “original intent” of the founders, which is what most people think of when they see the term “originalism”. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 9:49pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/62 "2011-06-15T21:49:51Z")
> [@TriPolar](#): > > What prevents a contract being limited to two parties? I meant that within the context of the analysis I gave in post 51. Polygamy is not a “lifestyle choice” in the sense that it is impossible to love more than one other person and it isn’t inherently damaging to society. > [@Voyager](#): > > And the Prop. 8 defense tried to make that case, and failed rather miserably. While the defense was fairly incompetent in their choice of witnesses, it is unclear that there is much of an argument for harm to be made. Indeed. It was almost as if they thought their case was self evident, and that they needn’t do anything other than press it as so. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [June 15, 2011, 11:43pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/63 "2011-06-15T23:43:00Z")
> [@LonesomePolecat](#): > > The institution of marriage arose because it served specific social purposes which same sex marriage would not serve. Could you please enumerate one or more of those specific social purposes? ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [June 15, 2011, 11:51pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/64 "2011-06-15T23:51:08Z")
> [@John\_Mace](#): > > Indeed. It was almost as if they thought their case was self evident, and that they needn’t do anything other than press it as so. I don’t think they thought their case was self evident, if they thought it was, I doubt they would have demanded the case not be broadcast. To me that’s not the actions of people who believe their cause is self evident ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 16, 2011, 1:21am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/65 "2011-06-16T01:21:27Z")
> [@TriPolar](#): > > What prevents a contract being limited to two parties? Privity. A contract is, by legal definition, a bilateral agreement. There are lots of agreements which are, in principle, multiparty contracts, but courts almost invariably construe them as a set of bilateral contracts. Even when they don’t, they essentially find them to be implied-in-fact contracts between noncontracting parties, and they only do that for the purpose of establishing whether liability can exist under the arrangement of the not-really-contracted parties. Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband\* and the second/third/whatever wife. Not the husband, wife and other wife. \*or wife and second husband, or whatever. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 16, 2011, 2:04am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/66 "2011-06-16T02:04:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband\* and the second/third/whatever wife. Not the husband, wife and other wife. > > \*or wife and second husband, or whatever. A potential end run around privity for plural marriage might be a partnership, or even an LLC, which I guess could be something like partnership with a pre-nup. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 16, 2011, 2:11am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/67 "2011-06-16T02:11:22Z")
But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That’s only really useful in terms of how _others_ would relate to the participants in a group marriage. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 16, 2011, 2:50am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/68 "2011-06-16T02:50:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That’s only really useful in terms of how _others_ would relate to the participants in a group marriage. It would also provide for a means of “divorce” with or without dissolving the fictional entity. Courts know how to dissolve such entities, and the partnership/shareholder agreement and/or bylaws allow an opportunity for an equivalent of a “no fault” divorce. Of course, I suppose the disposition of children as corporate assets could be a little tricky… ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 16, 2011, 3:06am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/69 "2011-06-16T03:06:43Z")
Another questionable Scalia decision: Blatchford v. Native Village of Noatak. Here’s the text of the 11th Amendment in its entirety: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Now a reasonable reading of that text would say that it prohibits a state government being sued by the residents of another state or country. But I read it forwards and backwards, up and down, and I see nothing in that text that says a state government can’t be sued by the residents of that state. But, according to Antonin Scalia, that’s the original meaning of the text. He says the 11th Amendment gives a state immunity from lawsuits filed by its residents. Or in his words: _Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), **we have understood the Eleventh Amendment to stand not so much for what it says** , but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (plurality opinion); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 290 -294 (1973) (MARSHALL, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention.”_ **We understand an amendment to stand not so much for what it says** - If anyone can find a more anti-constructionist line in any Supreme Court decision, I’d like to see it. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [June 16, 2011, 3:09am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/70 "2011-06-16T03:09:24Z")
> [@Oakminster](#): > > Of course, I suppose the disposition of children as corporate assets could be a little tricky… Hmm … do you need to amortize their depreciation in value over time? ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 16, 2011, 12:00pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/71 "2011-06-16T12:00:46Z")
> [@Saint\_Cad](#): > > I heard an argument that at the time of the Constitution, the marriage between a man and a woman was so engrained that the Founders would have considered marriage between a man and a woman an unenumerated right. SSM, not so much. At the time of the Constitution, it was totally OK to buy and sell slaves, and only white male property owners were allowed to vote. So I’m going to go ahead and take what the Founders considered “engrained” about marriage and throw it in the trash along with all their other beliefs that have no place in a modern civilized society. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [June 16, 2011, 2:05pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/72 "2011-06-16T14:05:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband\* and the second/third/whatever wife. Not the husband, wife and other wife. > > \*or wife and second husband, or whatever. We’re outside of common law, but once SSM is legalized, then wouldn’t a plural marriage be between all parties? I’m guessing that ‘sister-wives’ don’t consider themselves married to each other (only to the husband), but in a SSM world, I’d thnk that would change (assuming the legality of plural marriage). Although, as a complicating factor, I guess that within the plural marriage, Andy could be married to Bill and Christie, while Bill and Christie don’t marry each other. And, I guess, Christie could also be separately married to Don and Donna (who may or may not be married to each other). The potential combinations and permutations I think would make the legal recognition unlikely. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 16, 2011, 3:16pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/73 "2011-06-16T15:16:44Z")
> [@John\_Mace](#): > > I meant that within the context of the analysis I gave in post 51. Polygamy is not a “lifestyle choice” in the sense that it is impossible to love more than one other person and it isn’t inherently damaging to society. > [@Really\_Not\_All\_That\_Bright](#): > > Privity. > > A contract is, by legal definition, a bilateral agreement. There are lots of agreements which are, in principle, multiparty contracts, but courts almost invariably construe them as a set of bilateral contracts. Even when they don’t, they essentially find them to be implied-in-fact contracts between noncontracting parties, and they only do that for the purpose of establishing whether liability can exist under the arrangement of the not-really-contracted parties. > > Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband\* and the second/third/whatever wife. Not the husband, wife and other wife. > > \*or wife and second husband, or whatever. > [@Oakminster](#): > > A potential end run around privity for plural marriage might be a partnership, or even an LLC, which I guess could be something like partnership with a pre-nup. > [@Really\_Not\_All\_That\_Bright](#): > > But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That’s only really useful in terms of how _others_ would relate to the participants in a group marriage. Ok, to clear this up, privity would mean a contract is normally between just two parties? That seems to define that a ‘marriage contract’ or ‘civil union’ could be between just two people and not include plural ‘marriage’ or ‘unions’. If so that is even more of a reason that the matter of marriage should only be addressed in the law in terms of a contract, based on existing contract law, without special circumstances based on the traditional marriage concept. Which I thought was the basis for civil marriage as started in Europe before this country was formed. Does anyone know how this is currently addressed in other countries? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2011, 3:17pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/74 "2011-06-16T15:17:07Z")
> [@horhay\_achoa](#): > > In Loving v. Virginia, the right to marry was determined to be a fundamental right, so any law restricting that right would need to meet strict scrutiny, which means there must be a compelling state interest. It is hard to see what the compelling state interest is in forbidding same-sex marriage. In Baker v. Nelson, which was decided subsequent to Loving, the justices did not agree with your certainty. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [June 16, 2011, 4:58pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/75 "2011-06-16T16:58:04Z")
So the right to marry is not a fundamental right, Bricker? Or… does the word ‘substantial’ have some meaning that I am not familiar with in law-talking? Sort of like ‘ceremonial deism’? Does, perhaps, Baker need to be re-examined in the light of Lawrence v. Texas? Does, perhaps, Baker need to be taken for a very minimal sort of precedent, as it’s a dismissal, rather than a full ruling? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2011, 5:10pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/76 "2011-06-16T17:10:56Z")
> [@Little\_Nemo](#): > > Another questionable Scalia decision: Blatchford v. Native Village of Noatak. > > Here’s the text of the 11th Amendment in its entirety: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” > > Now a reasonable reading of that text would say that it prohibits a state government being sued by the residents of another state or country. But I read it forwards and backwards, up and down, and I see nothing in that text that says a state government can’t be sued by the residents of that state. > > But, according to Antonin Scalia, that’s the original meaning of the text. He says the 11th Amendment gives a state immunity from lawsuits filed by its residents. Or in his words: _Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), **we have understood the Eleventh Amendment to stand not so much for what it says** , but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (plurality opinion); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 290 -294 (1973) (MARSHALL, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention.”_ > > **We understand an amendment to stand not so much for what it says** - If anyone can find a more anti-constructionist line in any Supreme Court decision, I’d like to see it. Sure. Hans v. Louisana stood for exactly the same thing. So Scalia found the same thing in the 11th that the authors of Hans did. Right? So it’s pretty clear by now that you won’t be either supporting your outrageous claim or admitting it was in error. Par for the course. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 16, 2011, 5:18pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/77 "2011-06-16T17:18:08Z")
> [@psychonaut](#): > > Then why couldn’t it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I’m not trying to be snarky. I’m honestly interested in knowing how one arrives at the limits of what is “reasonable” in their interpretation of this amendment.) As others have pointed out, multiple-partner marriages are much more complex. You could extend marriage to same-sex couples with a crayon: in the law books, cross out “man” and “woman” and “husband” and “wife” and substitute “partner.” Boom, you’re done. But for multiple marriages, there are all sorts of issues to figure out. Bob is in an irreversible coma, and the doctors ask Bob’s survivors from his plural marriage whether to pull the plug. Linda and Charles say yes; Nancy and Wayne say no. What happens? Bob dies without a will. What happens to his property? Forget Charles and Wayne; they’ve left the marriage. Now it’s just Bob and Nancy and Linda. When Bob dies, are Nancy and Linda automatically divorced? Does it depend on whether they’re straight or bi? Nancy divorces Bob and Linda. She wants visitation rights with Linda’s children, no blood relationship to herself. Linda desperately doesn’t want any contact between her kids and Nancy. What happens? You may have straightforward answers to all these questions, but you can also see (one hopes) that any answer is controversial, and would probably end up litigated. And there are many, many more weird situations that could arise in a plural marriage that are not covered by current law. I’m all about legalizing plural marriages, eventually. But the legal structure just isn’t there right now. Let’s get SSM taken care of, and then move on to the thornier cases. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 16, 2011, 5:18pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/78 "2011-06-16T17:18:48Z")
> [@E-Sabbath](#): > > So the right to marry is not a fundamental right, Bricker? Yes, it is. > [@](#): > > Or… does the word ‘substantial’ have some meaning that I am not familiar with in law-talking? Sort of like ‘ceremonial deism’? Yes, it does. > [@](#): > > Does, perhaps, Baker need to be re-examined in the light of Lawrence v. Texas? Maybe in light of the general reasoning of _Lawrence_, but certainly not in its specifics: > [@SCOTUS in Lawrence v. Texas](#): > > That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. > [@](#): > > Does, perhaps, Baker need to be taken for a very minimal sort of precedent, as it’s a dismissal, rather than a full ruling? Dismissal for want of a federal question are precedential. A ruling that SSM bans violate the Constitution wuld need to overrule _Baker_. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 16, 2011, 5:23pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/79 "2011-06-16T17:23:02Z")
> [@Left\_Hand\_of\_Dorkness](#): > > As others have pointed out, multiple-partner marriages are much more complex. Plural marriages, apart from the issues you mention, also as practiced tend to be associated with many societal ills, such as sexual abuse and mistreatment of male children. There is therefore a significant governmental interest in their regulation, which simply isn’t present with SSM. Now we can argue over whether that interest should lead to all plural marriages being banned, but it is a very different situation to that of SSM. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 16, 2011, 5:44pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/80 "2011-06-16T17:44:46Z")
> [@villa](#): > > Plural marriages, apart from the issues you mention, also as practiced tend to be associated with many societal ills, such as sexual abuse and mistreatment of male children. > > There is therefore a significant governmental interest in their regulation, which simply isn’t present with SSM. Now we can argue over whether that interest should lead to all plural marriages being banned, but it is a very different situation to that of SSM. These same problems occur in traditional marriages. There is no distinquishing characteristic of plural marriages, or two party marriages, that justifies a significant governmental interest in their regulation. As demonstrated by the lack of all but minimal governmental regulation of traditional marriages. [Previous page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=3) [Next page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=5)