No, I wouldn’t make it as a lower court judge. I think it’s the best-of-breed for judicial recognition of a federal constitutional solution, but I think that lower courts should not create new law like that. I know you and I disagree on the proper role of the judiciary.
As a Supreme Court judge… with the recognized power to carve out such exceptions… I’d be very tempted. It’s new law, yes, and from the bench, yes, but it’s so consistent with existing precedent that it’s hard to say it’s not almost mandated – that is, if you accept the reasoning of Craig v. Boren as valid, you’re almost compelled to follow its reasoning to the logical conclusion that intermediate scrutiny is the ocrrect standard for marriage bans.
I certainly agree that the actual application of three standards has turned into many more than three in practice, and that bothers me. But I’m also uncomfortable with the idea of ceding that power to the courts. What happens when the courts are full of people inmical to my interests?
Ah, we’ve been down this road before. Your view is not crazy, or fundamentally wrong – but it’s sharply at odds with what I believe the wisest approach to government is. Neither of us can claim to be objectively right. I do think that my approach forces the courts to apply a more objective approach than yours does, but the ultimate wisdom of either approach is not a matter of objective determination.
I don’t think we are fundamentally (pun intended) at odds over this issue of a fundamental right. We’re both saying that the court has called marriage a fundamental right, but often doesn’t act like it actually is. Let’s just leave it at that. I personally don’t think marriage is a fundamental right, but would have no problem applying that as law if the court declared it to be so and acted accordingly.
But, to explore your application of this principle further, would you consider any of these marriages to also be protected as a “fundamental right” at the federal level* in the same that SSSM is:
marriage between siblings
marriage between parent/child (both being adults at the time)
marriage between cousins
polygamous marriage (between consenting adults)
*ie, state law restricting it would be declared unconstitutional
I think that may be possible at some far future date, when understanding of human genetics and psychology are much further advanced then they are now. But your post implies that you think such a step could be taken now. Do you really think that’s possible?
To simplify my question, what do you think is necessary to qualify a group as a suspect class?
But nowhere in the Constitution is the three tiered approach required. Those test, in and of themselves, are a method used by the courts to make a determination of what the Constitution actually means. Clinging to, and requiring courts to cling to, three tests is, in my view, a tad silly. It is necessary, because SCOTUS has to give some guidance to the lower courts, but why is three the magic number of tests?
Cedeing the power to interpret the Constitution to the courts makes you uncomfortable? Scratch that, it’s a rhetorical question. You are absolutely correct that we’ve been down this road before, and I respect, if vehemently disagree, with your position.
If it looks like that, it is unintentional. I have a very high regard for both of them, and I am well aware of where they personally stand. I have no beef with either of them.
Actually, courts do not “often” act like marriage is not a fundamental right. The only time I can think of is in same sex marriage cases. I find that kind of inconsistency troubling.
The Supreme Court has declared it to be so, in Zablocki, Loving. Those cases, and Lawrence, seem to lead to the conclusion, and Bricker apparently agrees, that same sex marriage bans are unconstitutional. The lower courts have, and continue to, try and find away around it, of distinguishing it on the basis of “that’s the way it’s always been.”
Once again, I’ll quote Zablocki. They stated: “By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”
Not allowing incestous or polygamous marriages seems, in my very limited research, to further sufficiently important state interests and is closely tailored to effectuate only those interests. Not so with the ban on same sex marriages.
What is the state interest in limitting incestuous marriage? There have been numerous scientific studies that the threat of congenital defects is only marginally higher than for random mating. The science in this area is much more definintive than the science which supports homosexuality as being inborn.
Going with the ole’ slippery slope argument? I’m still waiting for more animal fucking rights groups in light of Lawrence, but I’m sure they’ll be along soon too. I’ll be completely honest, I haven’t done the research to speak on the issues of incestous marriages. One point, though, I think the studies you refer to only involve the sexual relations between cousins, not closer, such as siblings and parents, relations. And certainly the law against cousins marrying would, thus, be harder to establish a compelling interest for.
Also off the top of my head, I think Margaret Mead (sp?) and other scientists, have argued, quite well, that incest is a very necessary taboo to protect both the family and society. In addition, allowing incestous marriages would greatly harm intrafamilial harmony and create issues in the sexualizing of familial relationships.
Without having done extensive research, and, to be honest I don’t plan to, into the issue, it appears, on the surface that there certainly are sufficient state interests to continue to ban incestous (but perhaps not cousins) marriages.
Well, start with Reed. Gender classification is subject to review under the Equal Protection Clause.
Now Boren. Enunciates the intermediate standard of review, and gives us this explanation:
What’s the lesson of Boren? On its face, yes, it limits its consideration to gender-based differences. But if we adopt the reasoning - especially the commentary about “outdated misconceptions” and the “weak congruence” between the quality in question and the the characteristic or trait that the quality purported to represent, there is no principled reason to declare that the precise reasoning could not be brought to bear on same-sex marriages.
It is so nice to see you saying the very things you’ve so recently, and thoroughly, derided me for saying. Guess you just have to be replying to another lawyer, huh?
He’s saying it to defend making sexual orientation subject to intermediate scrutiny, though, while you said to to argue that it would pass the rational basis test.
No, I haven’t referred to any slope, slippery or otherwise, but you are dancing awfully close to strawman territory with your implicit linking of my post to beastiality.
Yes, Claude Levi-Strauss is the other anthropologist you’re thinking of, and it would be especially important to include him since MM’s research has come under considerable fire recently. But saying that allowing incestuous marriage would undermine the stability of society sounds an awful lot like what opponents of gay marriage are saying. It might be true in a small village, but certainly not true in a country the size of the US. Basing US law on decades old research on primitive societies strikes me as absurd, but it also strikes me as playing right into the hands of those who would wish to regulate a whole host of sexual practices (including, but not limitted to homosexuality).
Getting back to the genetic defect issue, there are other classes of people who would have a much higher chance of producing children with fatal genetic defects even than siblings. If a state were to enact laws forbidding people afflicted with achondroplasia* to marry, would you agree that there is a sufficient state interest involoved? Children from such unions have a 25% chance of death at or shorly after birth, and a 50% chance of achondroplesia-- which, by itself, presents a whole host of genetic problems, such as heart defects, that go well beyond shotened stature.
Then, I suggest you start a new thread about incest and allowing siblings to marry. Otherwise, it certainly does sound like a slippery slope argument.
I’ve never understood how allowing homosexuals to marry undermines the family relationship. Perhaps you could enlighten me. The harm to family relationships due to incest is much more pronounced and drastic than that of allowing your gay neighbors to marry.
Why?
To those who can’t see the difference between homosexuality and incest, perhaps it might be confusing. To other, more rational people, I don’t think it is.
To be honest, I don’t know. enough about it to form a valid opinion. Sorry.
OK, I think I see where you confusion is. I have no problem with incestuous or polygamous marriage, so I’m not setting those up as boggymen that the “slippery slope” will inevitably lead us to. Also, the sippery slope argument is only a fallacy if the connection between the two things is tenous. What I’m saying is that the exact arguments leading to gay marriage lead directly to those other types of marriage. You don’t need a slope-- they are all on the same level. What puts them on a different level is supersition and religious considerations (neither of which should matter when it comes to the law).
It’s the exact same argument that you are making about the equivalence of interracial marriage and SSM. It’s not that we are being led, by degree, down a slippery slope, it’s that there is little or no rational reason to treat the two differently.
I have neve understood either argument (gay or incest) regarding stability of the family, so I can’t explain either one to you. We already have laws against underage sex. Once the siblings are adults, what should it matter? You are confusing legalizing sibling sex for minors (which would udermine family stability) with legalizing sibling sex/marriage for adults.
Because families in primitive societies rely on an extensive network of adult relatives (aunts, uncles, grandparents, etc) to raise children. We’ve adandoned that type of familial arrangement long ago. What’s true in Pago-Pago, is not necessarily true in the USA.
The only difference is that one group has a large adcocacy group. I’m not saying that SSM should be made illlegal because it will lead to incestuous marriage, I’m saying MAKE THEM BOTH LEGAL. I suggest it is your argument against sibling marriage which is not rational, in that you find the “ick” factor of incest to be sufficient to ban it, but dismiss the “ick” factor others raise about SSM.
What’s to know other than the stats I’ve given? If 25% death rate isn’t high enough, what is?
Actually, it seems to me that the exact arguments leading to straight marriage, leads to straight, incestuous marriage. One is a man and a women who love each other, and are above the ago of consent wanting to be married, while the other is….
a man and a women who love each other, and are above the ago of consent wanting to be married, and who ignores the dangers of kids being born retarded, or with blood diseases.
I don’t think I follow your point. So what if they’re ignoring it? Maybe they don’t care, or maybe they aren’t planning on having biological kids. What business is it of mine?
As I say, it’s by no means a given. If a court WERE to reason thusly, I don’t think any of us would leap up in astonishment at an obvious departure from sanity. But by no means do I suggest the result is MANDATED. You could chose to distinguish Reed and Boren by reading them narrowly to apply to their facts, or you could read them expansively to apply their reasoning to this situation.
In general, I’m not a fan of expansive reading, as you know. But of the alternate ways that we might see judicial recognition of a federal right to SSM, I think my suggestion is the most palatable.
Guess you just have to be replying to another lawyer, huh?