I don’t think Scalia argued slipperty slope. He said that laws against sodomy and bigamy were based on moral choices made by the people through the legislature. So it wasn’t that outlawing anti-sodomy leads to gay marriage leads to plural marriage leads to inter-species marriage, but that if you overturn one, you have potentially overturned your rationale for preventing the others.
So again, don’t see anyone here giving me the distinction between Goodridge and Schplebornik (and his three fiancees) v. Oregon…
I’d rather see someone argue that anal and oral sex open the door for polygamy. If marriage is recognized as a union between two people, how are the three people that wish to marry each other being deprived of their due process rights via Lawrence?
Yep. In exactly the same way that striking down the miscegenation laws opened the door to gay marriage, striking down sodomy laws opens the door for polygamous marriage.
If the same schedule holds, they’ve only got about thirty years of fighting for their rights before they end up getting even a tiny fraction of them.
I love this particular argument. Gay marriage isn’t scary enough to most people anymore, so the social conservatives conjure up the spectre of polygamous marriage. Ignoring, of course, the fact that it’s taken decades of work, in and out of the courts, to even get this far. Getting any kind of legal recognition for minorities in this country is a difficult, painstaking process. The idea that somehow the coattails of the gay rights movement will sweep all sorts of marriage into law immediately is ludicrous.
You don’t hear as many clamoring, at least in part, because the current state of the law makes it dangerous to do so. There have been sucessful prosecutions of bigamy even when the participants had divorced each spouse before marrying another. Also, the law set down on a federal level through courts and legislature is quite clear and set against poly marriage.
The question of gay marriage is not as settled. There were not a host of laws against it. For me as a lay person, it seems much more like mixed race marriage. If not allowing a black person and a white person to marry each other is racial discrimintation, then how is not allowing a man ot marry a marry a man not sex discrimination? We may not have the ERA to the constitution but many states have made sex discrimimnation illegal under their constitutions. Can anyone explain to me how marriage between two of the same sex should be different under law than a couple of mixed race, assuming race and sex are both protected categories under state law?
It’s merely a matter of re-re-defining marriage. Marriage is (or, was if gay marriage is allowed) a union between a man and a woman. This has been the accepted definition of marriage throughout western history. It is only through a re-defining of marriage as being between two people generically that the question of gay marriage comes about. Why is it such a stretch to assume that same arguments used to remove the opposite sex clause of the definition can be used to remove the limit on number of participants? After all, isn’t it just as bad to deny three people their equal / due process rights as it is two?
i don’t think it is. i feel that if you are able to argue that position, you might as well argue for the abolishment of marriage altogether.
i think any compelling reason the state has for allowing special rights to married people at all are pretty much eliminated by not limiting the number of people in the marriage. presumably, they are granted special priveliges due to the fact that they are committing to one person, to be faithful, and form a stable relationship, wherein the two people involved take on some of the responsibility of the other person, making the couple more responsible members of society than the two individually. i think the more people added into the marriage, the less that is the case. and i think the state could use that to show a compelling interest in limiting the number of people in a marriage.
note that i am not arguing that the state can provide compelling interest that a marriage should include two and only two people. but i think it is easy to demonstrate why there is interest in limiting the number in general. since legislatures often need to be arbitrary when setting limits, there doesn’t appear to be anything unconstitutional about setting that limit at two.
can anyone provide compelling evidence against the constitutionality of limiting the number of people involved in a marriage?
I was married for over ten years in a marriage that was fairly traditional, one woman, one man. I don’t see why the state should have a greater interest in that union than in a union between me and my daughter’s genetic parent. Nor do I see the need that one union be dissolve before another can legally take place. Certainly my husband and I had no more or less business getting married than any loving gay couple. We loved each other very much, we wanted to spend the rest or our lives together, and we could never have children together. I am still married. I also have a girlfriend who gave me a beautiful daughter. Why should I not be able to marry her? My husband would permit it. We all have agreed to love our daughter and raise her with love to the best of our ability. Why is it not in the state interest to promote a legally binding union for the three of us?
I’d settle for eliminating the current laws that criminalize polyamory, whether or not the parties seek the civil benefits of marriage. I would prefer that the legislature not limit the civil benefit of marriage to those having only two people, but I don’t think there’s a constitutional requirement to do so.
Legalizing polyamory should be done because it is right to do so, but I do not believe the legislature is compelled to do so.
I’d argue the difference is this. Marriage is a government recognition and sponsorship (tax breaks, special rights, etc) of an exclusive sexual relationship. The USSC ruling basically put homosexual relationships on par with heterosexual relationships. Thus by extension it would seem that an exclusive homosexual relationship would be entitled to the same rights as an exclusive heterosexual relationship in as far as the government is concerned. Homosexuals get equal protection as heterosexuals. In a similar manner as it would presumably be unconstitutional to bar, say, Catholics from marriage. A bit of a stretch, nonetheless.
The folks over at the Volokh Conspiracy, who are more or less supportive of gay marriage, have a fairly extensive discussion of slippery slope-type arguments. They conclude that, yeah, maybe the people warning of a slippery slop may have had a point.
(“more or less supportive” means that they support gay marriage, but question whether it should be brought about by judicial rulings or legislative action.)
It’s all about visitation rights. Imagine a whole posse of wives coming to visit an elderly, ailing Mormon… and the hospital staff cannot legally keep them out.
Well, I actually don’t have to pay malpractice premiums, since I’m a corporate lawyer in-house. If I screw up, they just fire me.
Oh, and if you read the very next paragraph to the one you cited, minty you will see that when discussing what is covered by the “right of privacy” in the Mass. Constitution, they cite nothing but S. Ct. cases construing the “right of privacy” under the U.S. Constitution. And I don’t see any citations to Mass. decisions showing that the right to marry, procreate, have sex, cohabit, etc. have been construed any broader than what the S. Ct. has set forth.
So nice try, but your zinger fails upon rigorous legal analysis…
Because allowing gay couples to marry barely changes the functional aspects of marriage AT ALL.
Gay couples can commit, can raise kids, can perform all the functions that straight couples can. In short, they are as much capable as being a credit to the actual institution itself as anyone else is. To allow three people to marry would radically alter the functional form of the institution in a way that gay marriage doesn’t come close to doing.
To say that marriage is defined as being between a man and woman is no stronger an argument than saying that it is defined as being between people of the same race. It may well have historically been like that. But that particular distinction has little bearing at all on the actual practice of the institution, the legal requirements and responsibilities.
schplebordnik, can you quote what part of the decision you believe shows Scalia to be prescient?
If the argument is simply that “sodomy is a moral choice, polygamy is a moral choice, therefore if you allow one then you must allow the other”, then allowing people to burn the flag must mean that we allow people to make human sacrifices.
laigle
No, it put homosexuals on par with heterosexuals. IThere’s a difference between saying that the State can’t give special preference to heterosexuals, and saying that it can’t give special preference to heterosexual relationships.
NetLord
Is there a law saying that wives can visit their husbands any time they want?
Sorry, your flag burning/people burning analogy isn’t apropopos. The Court has for quite some time construed conduct as speech, but never conduct that amounts to either assault or battery. And assault and battery law are content neutral and don’t involve those always-ambiguous “moral” choices.
The point about Lawrence is that it says that since marriage is already a fundamental right (established a long time ago, most famously in Loving v. Virginia) and Lawrence establishes that there is a privacy right to engage in sex where, as in Lawrence:
“The present case does not involve minors. It does not
involve persons who might be injured or coerced or who are situated in relationships where consent might not
easily be refused. It does not involve public conduct or
prostitution.”
“The petitioners are entitled to respect for
their private lives. The State cannot demean their existence
or control their destiny by making their private
sexual conduct a crime.”
Again, I don’t see how, under that rationale, the state may demean the existence of people who wish to engage in 3- or 4- or n-way private sexual activities by making their private sexual conduct a crime (although frankly, I am not aware of any state that does, except for those few states – like Virginia – that have antiquated anti-fornication statutes).
If the state can’t demean homosexual sex by making it illegal, and – as in Loving – can’t impinge upon the right of citizens who to choose to marry, it seems that Goodridge must follow under the US Constitution (which the Mass. court found, via the essentially coextensive Mass. Constitution). Same rational applies to plural marriage. I see no way not to compel that result, except for resorting to the same form of “moral” choices that were struck down in Lawrence.
schplebordnik, many states make it illegal to be in a poly relationship. Some, like Illinois, only make it illegal if it’s “open and notorious”; the meaning of this is not clear as there has not been a prosecution in over 60 years. Others, like Utah, flatly make it illegal: they will impute a common law marriage (even though Utah has otherwise abrogated common law marriage) and charge you with bigamy. On the other hand, people have been charged in Oregon with fornication within the past few years. More states than you realize have laws against fornication and adultery.
The problem with “tolerating” poly relationships the way you suggest is that a relationship is more than fucking in the bedroom with the doors closed. Marriage is both a public and a private matter. What you’re telling poly people is “yeah, you can have your little sexual shenanigans, but keep them to yourself. Don’t you dare publicly acknowledge your love for your partners; the right to do that is reserved to couples consisting of one man and one woman.” In some states that demand is backed by the threat of prosecution for noncompliance.
