Look, not every person in a ss/r is strictly attracted to their same sex. There are also other innate characteristics that are not allowed, like violence and murder, or stealing food when you’re hungry.
1.) Soft and hard science has said over and over again that man is not wired for monogamy.
2.) Marriage itself is not an innate characteristic.
3.) Religion is not an innate characteristic, yet it is still protected. We don’t do witch hunts and persecute Catholics or burn out mosques or anything here.
It would seem that your moral repulsion to polygamy and your desire to keep the two marriage equality arguments as far as possible are hindering your ability to see the obvious.
I have said, numerous times both in these threads and in the past in other threads, that I have no moral problem with polygamy. If adults choose it of their own free will I am cool with that.
I do, however, find there to be distinct legal problems surrounding polygamy and that provides a compelling state interest in banning it. For SSM the state cannot say the same thing. SSM couples would be covered by the laws that already exist that cover marriage. No changes would be required.
Monogamy is not marriage. If you and your husband are cool with having other sexual partners there is nothing stopping you (legally) from doing that.
Further, in polygamous marriages around the world how many of them do you think the women are boning multiple men? You could argue that polygamy in the US would allow it to work both ways but almost never is it where both partners get to bone multiple partners and polygamy is not expressed as the desire to fuck numerous other people aside from your spouse.
You are correct. Marriage is not an innate characteristic. So what? Marriage is a social construct governed by society’s laws. When people want to participate in this activity and they are banned one has to ask why that particular group is disallowed. In the case of SSM homosexuals are prevented from marrying because they possess a sexual attraction to people of the same sex. Sexual attraction is an innate characteristic. When banning polygamy it is not done so based on any innate characteristic unique to that group.
You are right, religion is not an innate characteristic. It remains that part of the legal test to determine if a group deserves heightened scrutiny is whether that group possesses an innate characteristic. Don’t like it? Take it up with the Supreme Court. They felt that religion was a special case. If you can convince them that polygamists should be accorded the same level of scrutiny you are free to try. I would bet all my money that such an argument would fail before the Supreme Court though.
It seems like several barn doors are shut and barred with guards posted behind several horses at this point, but for whatever it’s worth, I’ll point out again that “innate characteristic” is not a required element of the test for a protected class, with religion as an exception. Having an immutable trait is one possible reason of several to give heightened scrutiny.
I’ll also point out that this thread was about a rational basis for not recognizing polygamy, and so a compelling interest wouldn’t be necessary.
It seems that an “immutable characteristic” is a primary way of claiming discrimination:
As has already been mentioned a “Rational Basis” test is a pathetically easy bar for a state to get past to declare a law constitutional under EP jurisprudence. It is a bit more than, “Cuz we said so,” but not a whole lot more. In this thread several rationales for the problems of polygamy (as a legal matter) have been put forward. A state would have no problem defending a challenge to polygamy laws under a Rational Basis test.
As such, if polygamists want to force a change in the marriage laws to allow polygamy, they would almost certainly need to argue they deserve heightened scrutiny. At the Rational Basis level I cannot see them succeeding.
I think polygamists stand no chance in court on this issue. If they want change they need to convince their legislators to change the laws in their state.
I’m not sure if you’re disagreeing with me or what, but that’s another link that doesn’t say what you appear to be saying.
[QUOTE=your cited article]
But the ultraconservative legal eagles like Staver are wrong about our founders’ list of rights being an expression of “immutability.”
…
So, with all due respect to the Civil Rights Act of 1964, I think it’s time for us to stop hanging onto “immutable characteristics” so hard. For some Americans, the benchmark 1964 definitions continue to serve those protected classes today. But our own interests may better be served by invoking the signature right of the Bill of Rights – the right to choose.
[/QUOTE]
The whole article is about how immutability isn’t the be-all end-all, which is also what I’m saying.
I’m not trying to be a jerk here, but you’ve posted plenty of things plenty of times, and I can read them fine the first time. It seems like I’m reading them and you aren’t, frankly. But what is your actual point?
Are you saying that because of that snippet, you think that there’s no such thing as a protected class that isn’t defined by an immutable trait? That is not the case. The language you just quoted does not say that’s the case; neither does the language you put in boldface. Even your Wikipedia link said explicitly that that isn’t the case. Just looking at the list of protected classes would suffice to show that that isn’t the case.
Note in post #105 the whole concept of heightened scrutiny came from one footnote in one case. How do you think these things come about? That the court has a special session where they sit down and write out how they approach various cases? It is a matter of case law from which future cases take their direction.
Yes, an immutable trait may not be the sole arbiter of whether something gets heightened scrutiny or not but lacking an immutable characteristic is going to make your task in gaining heightened scrutiny even that much harder (and it is not an easy thing to get in the first place).
I have noted how Civil Rights law lists an immutable trait as one component in determining discrimination.
Not sure why you are fighting that idea so strenuously. If you think you can make a rationale for discrimination that requires heightened scrutiny to apply without distinguishing a group as having an immutable characteristic you are free to try.
I am saying I seriously doubt your chances before a court without using that (and other metrics as noted). Even if you want to say polygamists are discriminated against the court will not care. The law discriminates all the time. To make the case for unfair discrimination you need to go beyond Rational Basis for this. To do that I think you’d have to show polygamists possess an immutable trait which makes it unfair to discriminate against them. Lacking that and trying to tell the court they should be on par with religion…well, good luck.
So it is your opinion, then, that EP does not apply to many citizens of the country - those who are not part of a suspect classification. That’s an intriguing view of the Constitution.
Well, to be honest, you are misrepresenting the law, misrepresenting anti-discrimination laws and their effects, misrepresenting decisions and refusing to even acknowledge factual points rather than opinions made by people who know a lot more about EP law than you. Why would I possible impugn a less than savor motivation to that?
The arguments you have been making are precisely the arguments made by those who fight tooth and nail to prevent any advances in civil rights for homosexuals.
Well, you’ve stated what it does to women and said to Big T, “Sure there is”, when he said, “There is no coherent moral argument that homosexuality is acceptable but polygamy is not.”
It seemed in this debate that you had a moral objection to people who practice non-Western marriage arrangements. Thanks for clarifying. (:
Corporations have contracts more complicated than multi-partner marriages would. You’re making a problem where there is none.
SSM couples have had some groundbreaking cases concerning family law and children. You can’t deny that.
This is not exactly true, as in the case of Green, and twenty-six states have adultery laws on the books.
Who cares? How many women are richer than their husbands? How many husbands pop out kids? Should we force men and women to equal amounts housework as well?
You can’t legislate based on that. Saying that “well, most women who choose this will end up in polygamous marriages” is just as stupid as banning o/s marriages on the account of, “women are at a disadvantage.”
Again, it sounds like you have a moral aversion to polygamy. That’s nice and all, but your argument would fall flat in court.
Discrimination is not always based on innate characteristics. It doesn’t matter. Strike your argument number two.
Religion holds up to strict scrutiny easier, yes, but as we saw in Lawrence, you’re going to have to give me a more compelling argument than, “It’s not normal here” and “for the children!”.
You’re denying people the fundamental right to form their own family unit. Why are you fighting this so much? Do you really hate polygamy? Denying any group a fundamental right is unconstitutional.
Sorry, but SCOTUS’s opinion that polygamy is ‘for Asiatic and African countries’ and is a ‘blight’ on our ‘civilized nation’ isn’t going to hold over a hundred years later.
No it isn’t. Comments like this undermine your case. It is usually unconstitutional, but may be justified by a compelling government interest.
Note this isn’t an argument either than there is (or isn’t) a fundamental right that is infringed by the ban on polygamy, or that there is (or isn’t) a compelling government interest in its continued prohibition.
As it has been practiced in the world and as it is currently practiced in the world I do not like it. I think it is damaging in a variety of ways and, in particular, damaging in its effects on women.
As a thought experiment I have no problem with it. I agree that consenting adults should be allowed to live that way if they want to.
Thing is, consenting adults can and do live that way right now in the US (you even said so yourself). “Marriage” is a legal construct which grants various rights and obligations. If all you want to do is have several husbands (i.e. live with several men you call husband) you can do that right now. What you cannot do is expect husbands 2+ to gain any legal recognition of the marriage. They cannot make health decisions on your behalf if you are incapable, they cannot get rights to your estate (unless you explicitly write them into your Will), they cannot collect your Social Security benefits after you die and so on. (Which makes me wonder what happens to your husbands if you die…are they still bound to stay together and raise your children…do they scatter…do they have to do paternity tests to see who is the father of who and each walks off with that kid…who gets the house, etc.?)
If you want to form your family unit with multiple spouses you can do that today (except, I guess, in Utah).
The legal issues surrounding polygamy are very difficult. Having two people divorce is a headache, more people compound the problem dramatically. You have said it is like forming a corporations form more complex contracts yet you are thin on details of how such a marriage arrangement would work. If you get sick and cannot make medical decisions for yourself how does it work when you have multiple husbands? Who decides for you? That is just one of many, many issues.
Till you can start a thread spelling out the details of a functional and equitable polygamous relationship you have no chance of convincing society that it should be allowed.
To be clear I do not mean you can legally marry multiple spouses but there is nothing stopping you from shacking up with five guys (except, as noted, in Utah apparently).
Please read about Tom Green AND other state laws and get back to me. This is false and I have proved it many times, yet you keep claiming your BS is true.
Y’know, there were only two sentences in villa’s post. The second said he wasn’t making any arguments about constitutionality; only correcting a misapprehension about how strict scrutiny works.
Your response was to tell him that his arguments fail.
I’m only speaking for myself, but that makes for an extremely frustrating conversation. It seems like it’s irrelevant from some of your perspectives whether you’re actually on the same page as everyone else in terms of what the terminology means. There’s a lot of nitty-gritty jargon in GD that I don’t know what it means, or particularly care about, too. But if that’s the case, why keep using it?
[QUOTE=CitizenPained]
Denying any group a fundamental right is unconstitutional.
[/QUOTE]
This is patently false, and I corrected it. I stated specifically I was not seeking to provide compelling state interest, yet you somehow get from that my arguments fail?
Personally, I think you are probably wrong in thinking there is a fundamental right to recognition of multiple marriages, and I also think there is a significant state interest at play here. But I have deliberately stayed out of that argument.
I’d be open to being convinced I was wrong on it, however. But that becomes less and less likely the more you show you don’t understand the law involved when you make false remarks like that quoted supra.
What false facts have I posted? Where have I even talked about cohabitation laws? I actually disagree with cohabitation laws.
And what on earth is the relevance of this to any comment I have made?