He describes himself as I said:
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”.
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.
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.
Could you please enumerate one or more of those specific social purposes?
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
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.
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.
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…
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.
Hmm … do you need to amortize their depreciation in value over time?
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.
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.
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?
In Baker v. Nelson, which was decided subsequent to Loving, the justices did not agree with your certainty.
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?
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.
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.
Yes, it is.
Yes, it does.
Maybe in light of the general reasoning of Lawrence, but certainly not in its specifics:
Dismissal for want of a federal question are precedential. A ruling that SSM bans violate the Constitution wuld need to overrule Baker.
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.