We’ve now have had two threads discussing this. IIRC the official mod position is
it depends
I’m idly curious as to who is bankrolling Ms. Davis in this effort.
Depends on what? The time of day? The weather? The color of your umbrella? The price of condensed milk in Malaysia? Would you mind revealing just a bit more of The Official Mod Position so it doesn’t look so damn fickle?
The Future Republic of Gilead.
Stranger
Pfffft. Kim Davis, Bible thumper, made the news, ho-hum. Distraction news. She has no case for county or state, let alone the dopey SCOTUS.
AIUI, her court loss and the considerable costs thereof stem from Kentucky state or county law. Such laws were made mandatory by Obergefell, but overturning Obergefell wouldn’t invalidate them, not even if Kentucky later decided to take them off the books. The legal opinions I’ve seen suggest that Kim Davis doesn’t have a hope in hell of reversing her court loss. All that overturning Obergefell would accomplish is regressing American society and causing pain and distress for a lot of innocent people.
Which would warm the cockles of the hearts of Ms Davis and her ilk, were they (the cockles) not frozen solid — not to mention shriveled to the point that the pre-Whohille Grinch’s looked humongous.
If you consider “X was historically…” a valid legal argument for overturning a Supreme Court decision, virtually every decision that granted someone a right they had previously been denied is on the table. And indeed some current Supreme Court justices have already indicated they’d like to “revisit” a number of them. Which seems pretty damn activist to me.
And marriage in America was “historically” between people of the same race too.
Historically and in many societies men have taken multiple wives. There has been a very limited allowance for that here based on religion; but if we are using “historically” as our guide, then shouldn’t any man anywhere have the right to multiple wives, regardless of his religion or lack thereof?
If we use “historically”, any person not conforming to the approved religion is, at best, untrustworthy scum with no rights and, at worst, a dead heretic.
So MAGA is good with it then.
It would certainly bring real benefits to mistresses everywhere, especially if the primary wife’s consent was not required. And it would be a boon to the wedding industry. And if powerful men have more wives than their share, it leaves a surplus of young men for the military-industrial complex to chew up. What’s not to like?
I think this is an excellent question that I don’t think anyone addressed. @We_re_wolves_not_werewolves, care to take a stab at it?
To be clear, marriage is a special kind of contract under the law which offers particular privileges (legal shield from criminal testimony, inheritance rights, special tax status, et cetera, alimony), requires court action to dissolve even if uncontested by both parties, and historically allowed a husband legal authority over financial and political affairs of the wife. So, it isn’t an ordinary contract involving the exchange of money, goods, or services; it is more akin to a business partnership with some very rigorous bylaws and unique legal exceptions.
The US Constitution says nothing explicit about marriage so any basis in federal statute law comes from the “full faith and credit” clause of Article IV, Section 1 and ‘Due Process’ and protection of ‘fundamental rights’ provisions of the 14th Amendment; everything else is state and common law, or derived from privacy and freedom of expression rights. Whether a state can or cannot reject petition of same sex marriage very much depends in whether it is classified as a ‘fundamental right’, but states are required to recognize the validity of same-sex marriages which are lawfully joined in other states (unlike civil unions which do not necessarily offer the same protections).
As a matter of social norms same sex marriage has become accepted as law or is in process of being legalized in much of the developed world, or else nations have given marriage-like protected status to civil unions. Of course. legal or no, same sex partnerships with a shared household, children (from previous marriages, partnerships, or adoptees of orphaned extended family) have existed throughout history and tacitly accepted in many cosmopolitan societies albeit without financial and custodial protections in law.
It is not for Kim Davis, a civil servant whose job is to issue licenses and documents per the law, to adjudicate what is or is not legally permissible either through the precepts of her religious beliefs or interpreted through the filter of ‘tradition’. She has no legal standing to do so, and frankly if she was in fundamental disagreement with the legal requirements of her job she should have resigned in protest. Fuck her and the people standing with her expressing her ‘right’ to arbitrarily impose her morals by blocking the lawful actions of others.
Stranger
Heck, for that matter, the vast majority of marriages, historically, were entered into before 1950. There you go: Justification that no marriage since 1950 should be regarded as valid.
It’s a bit of an oddly worded question, but that would be a sex based discrimination case, which would result in a court presumably applying “intermediate scrutiny” to see if it survives an equal protection challenge. For a law that discriminates based on sex to be upheld, the unequal treatment must “substantially relate” to an “important governmental objective”. This is a lower standard than the strict scrutiny that is applied for cases based on, e.g. race or religion. So, the state would have an uphill battle to articulate how such a law would meet the above requirements. My guess is that such a law would not survive such scrutiny.
The courts don’t generally consider just U.S. practice to define whether something is a fundamental human right, they have historically looked more broadly to human civilization as a whole.
And in human civilization as a whole, the vast majority of marriages were prior to 1950.
I’ve changed my stance on Kim Davis. I say approve her request provided the law also negates her marriage(s) which contradict Biblica standards is (are) also voided.
Aside: I had mistyped “Biblical” a “Biblican”. Now that I think about it, “Biblican” isn’t really wrong, after all.
Great. Now apply that reasoning to same sex marriage bans.