Well, despite all the invective directed at Justice Scalia a few months back, his dissent in Lawrence v. Texas appears to have been amazingly prescient. The Massachusetts Supreme Court has today ruled that marriage in that state shall henceforth
“construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
I’m sorry, but why limit it to “two persons” and “to the exclusion of all others”? Does not the rationale of Lawrence compel the conclusion that if two women love one man (or vice versa, but as a guy, I like the first scenario better), the state should not prevent them from achieving happiness by sharing him in wedded bliss? Hell, it worked fine in Utah for about 50 years until the “Defense of Marriage Act” of the 19th Century compelled Utah to outlaw plural marriage as a condition of joining the Union.
Can someone please explain to me why a Mormon couple in Massachussets who wishes to to practice plural marriage in that state oughten not head to the county court right now to get that right enshrined in law? And how the Massachussets courts wouldn’t be compelled to allow that?
And recall, I’m a lawyer, so make those arguments airtight…
"Well the Massachusetts decision had nothing to do with Lawrence "
Um, have you read the decision? Because if you had, you’d see that Lawrence is cited as authority for the decision. And don’t give me the old “it’s a decision interpreting the Mass. Constition” argument – clearly, they are interpreting the “right of privacy” in both the US and Mass. Constitutions to be coextensive.
schplebordnik, it’s not clear to me what you are asking. Are you arguing that the Lawrence case means anyone can do anything they want regarding marriage?
Personally I wouldn’t have a problem if you married your goat OR your red herring (IF she loves you that is…no coersion allowed). However, I think that plural marriages have legalistic problems that go far beyond same sex unions. Things like child support if the plural marriage breaks up, custody, allomony, etc. It would be a mess to be honest.
I’m an ‘to each his/her own’ kind of guy, and I’m sure something could be worked out. But I wouldn’t hold my breath for plural marriages any time soon. Maybe a hundred or so years down the pike we can re-address the issue. Right now I think the fight is to allow for same sex unions with legal status.
I’m not really arguing at all. I do not see, however, how one can legitimately argue, after Lawrence, that there is a constitutional right for same-sex couples to wed and receive the benefits of marriage under state law, while also arguing that a state may prohibit three of-age, consenting individuals from forming a marital union amongst themselves.
I’m waiting for someone to show me the way. If everyone agrees that the US and Mass (or whatever state you are in) must be construed to allow polygamy (and consequently, to strike down all bigamy statutes), then I guess we don’t got ourselves here a “Great Debate.”
schplebordnik, I’m with you, opening the law to same sex marriage should also extend to plural marriage. The ONLY reason against it is that of religion. People are only slowly learning now that marriage is more of a business contract than a statement of love, and should thus be treated as such.
But as a lawyer, do you know if the current legal bases of marriage would work in a poligamist case? If the husband is in a coma, who can decide to pull the plug? What if the two *wives *dissagree?
Cmason32, while I respect your right to love both your cow and your goat, are you sure you want to give them control over your life-support machine?
doc-“well, his living will specifically states, ‘one moo means let him live, and two moos means we pull the plug’ and I definately heard two moos.” That sounds wat too much like a Far Side cartoon, why did Gary Larson have to retire?
I thought that the gay marriage issue is one of equal protection. In other words, the government does not have a compelling interest to discriminate against gay people and prevent them from getting married. In this instance, all gay people are asking for is to have the same rights as heterosexual couples who also want to marry.
As such, I don’t see how polygamy warrants any equal protection argument.
First of all, it’s not a huge issue. There are nowhere near the number of peple clammoring for triple marriages as there are gay couples who want to marry.
But further, the cases are just not the same. The question is whether a legal protection extended to couples can be restricted to only couples of whom we approve, not whether the arrangement can be other than couples. It’s like saying that allowing a black person to become president means that now two people can jointly run for the office of President as one candidate. Elect all the members of GWAR to be President! The sole proprieter of my store is the entire cast of Freinds!
actually i believe both decisions were based on due process clauses, in that (as you said) there is no legitimate interest on the part of the state to prohibit same-sex marriages.
i’m not an expert on the legal rights imbued upon a couple by marriage, but i believe it would not be to difficult to show that there is in fact legitimate interest against plural marriages.
insofar, at least, as there is legitimate interest on the part of the state to recognize marriages at all. everyone could be married through one big marriage chain, for instance, and everyone would be given the rights of legal union. if there is a compelling state interest that those rights should be reserved for a certain sector of society (married couples), i think it would be much easier to show reason for limiting the number involved in the union than it would be to show for limiting the union to a man and a woman.
Nah, Lawrence wasn’t an Equal Protection case, it was decided on Substantive Due Process as a result of the privacy issue. Reading Goodridge it is hard to say if it is or isn’t Equal Protection (probably because the Mass. Constitution is differently worded).
How about this juicy quote from Goodridge:
“In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) (“Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise”)”
Hey, if there are already three in the mix, why not four. Or the tie-breaking fifth?
Pardon me, but my verbatim recall of Scalia’s dissent in Lawrence v. Texas seems to be a little shaky around midnight. May I safely assume that it was of the slippery slope school of jurisprudence?
Did he warn that if the government recognizes a sixteen year loving union between two “innies” as an official marriage that that is somehow going to lead to plural marriages? Why is that more likely to happen with two “innies” or two “outies” than with one innie and one outie? What is it about a homosexual marriage that is somehow bound to be less exclusive?
You know, this is all the fault of the government and the church. If there had never been such a thing as legal marriage or the sacrament of marriage between a male and a female, then we wouldn’t have been on this slippery slope that has led to homosexual marriage. We could all just have had the standard S.O. or even S.O.D./O.F.F. (Significant Other Designate Or Factotum Fraternalis).
