At the San Francisco Chronicle Mark Sherman has what I think is a pretty fair analysis of the Supreme Court’s options in deciding the fate of the Defense of Marriage Act and California’s Prop. 8. I think he’s a bit sanguine about the prospects of overturning Prop. 8 by proposition but otherwise it struck me as a reasonable analysis.
Here’s a prediction: if the court strikes down both the DOMA and Prop. 8 within 60 days there will be suits filed somewhere challenging some state’s laws against polygamy.
Bainbridge had a nice piece up on this. He thinks, or the guy he quotes, that the justices are very aware of history in these two cases. That Kennedy in particular will see this as a legacy issue.
Steve
I have no predictions, and I’m not sure the outcomes are as interesting as the approach. Sherman’s comment about the inevitability of a proposition victory for California same-sex marriage proponents highlights the absurdity of these cases. In the context of all of the important issues that the SCOTUS does not address each year, whether the Prop fails or stands is a mote in the eye of Justice.
“whether the Prop fails or stands is a mote in the eye of Justice.”
That depends on whose eye we’re talking about, no?
Since California civil unions provide all of the same rights, protections and benefits of marriage, we are talking about subjective, psychic harm, which the Court usually does not address.
I dunno, PD. Given the interest and heat, I think this is something more than a Big-Endian/Little-Endian fight.
Don’t forget DOMA. If they overturn DOMA the states will have a harder time justifying anti-gay marriage laws. Given that this affects maybe just 2% of the population, it is not a huge decision. It is a topic dear to both sides of the political spectrum so it has large symbolic importance.
Steve
It’s even less than 2%. Of the LGBT population, repeated opinion polls have found that about 50% are even interested in marriage. As you say, it’s an issue of symbolic importance.
The heat is not from the underlying issue, its about whether the Court will decide the issue in a certain way. I think I’ve gotten a gay-rights activists to admit over at OTB that this is not the battleground she would choose (that would be anti-discrimination laws).
“The heat is not from the underlying issue”
Ah, c’mon. The opponents of SSM argue at the top of their lungs that allowing SSM would usher in “the end of civilization” — short version: All your children will become gay.
Everything about the discussion is over-heated and exaggerated: the benefits, the importance, the hazards. Honestly, same-sex marriage doesn’t particularly bother me.
What does concern me is the idea that equal protection guarantees a satisfying sex life in the context of marriage. If that idea prevails I don’t see any rational basis for any laws governing who should marry whom or in what quantity, i.e. laws against polygamy, age of consent laws, etc.
Polygamy has so much potential for abuse and real changes in our social structure that I think it is a different issue. The potential for sexual slavery increases with polygamy. What do you do with all of the horny young guys who cannot get married? The traditional method of handling this was to go to war, and God knows we love our wars, but we really dont need more of them.
Steve
“who should marry whom or in what quantity” and for whatever duration. An agreement to marry for a set term is one of the limitations on marriage is our society.
What concerns me is the notion that a marriage is whatever two (or more) people agree to, which changes marriage from being an institution greater than its participants. I think most same-sex couples buy into the idea of a marriage as an institution they wish to be subject to, but I think a lot of activists really don’t. They find it anachronistic and unrooted from their own organization of ideas.
Not from a legal standpoint given the premises I’ve suggested above. And I don’t think you can cross-ruff back and forth between that and social policy. You’ve got to choose one.
You can always do with them what we do with them in Chicago: let them shoot it out with each other in the streets. Lots of collateral damage but you can’t make an omelet without breaking eggs.
I’ve suggested, but don’t think I’ve convinced anyone, that polygamy as a sequential, non-bilateral arrangement has some inherent problems with stability and consent.
As to the latter, when a man marries a woman and then seeks to marry another woman, his decision forces the first wife to choose either divorce or consent to sharing her husband with the second wife. One problem is that she has developed a reliance interest on the marriage, particularly if there have been children, and may not be able to walk away.
The stability problem comes from loss of mutuality in a multi-person arrangement. Marital stability benefits from the mutuality of obligation — what is mine is your and what is yours is mine. In polygamy, the wives do not enter into mutual obligations with each other, they have their roles assigned by the husband in a spoke and wheel arrangement. They act as “sisters” and will generally treat each other with respect or kindness, but are not obligated to provide sexual access to each other and their conflicts with each other are ultimately resolved by the husband. Each wife gives 100% to her husband, but the husband shares a fraction of himself with each. The stability of such relationships depend on the strength of the central point and perhaps the flexibility of the rest.
The problems with polygamy are obvious to anyone who’s read any Arabic or Chinese literature. Marriage has its inherent problems. Polygamy adds an entirely new set. Jealousy, envy, and competition just to name a few.
A combination of marriage and politics.
Fundamentally, I think people view marriage quite differently. For religious people it is not a mere legal construct, but a holy sacrament and part of religion itself. For the more secular, marriage is a legal construct for intimate people, but one that still carries a lot of emotional meaning than terms like “civil union.” Even people who aren’t religious think of their marriage as more than a legal convenience sanctioned by the state and don’t want to settle for a “civil union” even when the benefits are the same. They are fight as much for social equivalence as legal.
So in my view, this is really a battle to define the word “marriage” – it’s not just a matter of legal rights.