The Supreme Court has ruled that the Defense of Marriage Act is unconstitutional and that those supporting California’s Prop. 8, which limits marriage to one man and one woman in California, had no standing to defend the law. My summary of this is that the Court has determined that homosexual marriage should be left up to the states but the voters in those states have no power to regulate it. In effect this puts complete power in the matter in the hands of judges and executives. IMO this will hasten homosexual marriage becoming legal in all fifty states.
I also anticipate other suits challenging various aspects of marriage, including restrictions on age and number.
Marriage is going the way of the Dodo. Those who value the institution should have long ago worked to decouple the sacrament from gummint benefits. I hope to see the day when our laws regarding taxes, inheritance, insurance, visitation and immigration are changed to eliminate all references to the sex or civil status of a person, just as they now are rinsed of reference to race.
Then I could be fairly treated as a single and those who value marriage could go back to their sacraments, aisle-walking, cakes, bridal showers and whatever other superstitions they wish to indulge.
I’m not certain that the Prop8 case might be best understood as “law concerning California and its oddball initiative process.” In most (perhaps all) other states there will be more continuity between legislation and the political class.
I think the dividing line between gay marriage and adolescent and plural marriages is significant.
I don’t think the dividing line is as distinct as you do. With these two decisions in combination the Court has blazed a path that can be used to create protected classes. All that are necessary are a state court and governor that are on with the idea.
So, for example, I think that Utah is likely to have a flood of plural marriage cases and I’d be surprised if a state court and governor sympathetic with the idea is beyond the realm of possibility.
Utah was only admitted to the Union on the condition that it barred plural marriage. That would make an interesting test case. For instance, Dred Scott purportedly held that the federal government could not impose lasting conditions on a state for entry into the Union. Once admitted, the state was co-equal with other states and couldn’t be held to particularized burdens. Some aspects of Dred Scott were clearly overruled, but all of them? I think the better test case would be in Nevada. Godless libertarians and Mormons.
If you believe that the DOMA case implicitly held (or leads to the proposition) that states are required to honor the marital law of other states, then yes, any state that authorizes polygamy requires all states to honor polygamy. I do not believe Justice Kennedy’s opinion so held, but Kennedy is getting old. Ideas thrown in the pond create ripples. It will be interesting.
Mormons are vociferously against plural marriage these days. I lived in Mormonland for a few years. There’s no “they secretly approve” about it. Utah politicians will want nothing to do with it.
In any event, I think that the dividing line is relatively clear in the case of plural marriage because unlike gay marriage it would require a restructuring of the law. Gay marriage required just changing a couple terms. Also, arguments that gay marriage does not affect straight marriage would not be applicable to plural marriage, where there would be an affect on two-party marriage.
For age restrictions, you’re still looking at minors and consent. We treat minors differently from adults and that’s not going to change. The only vulnerability I see here is that if, say, New Mexico legalizes marriages starting at age 12, then other states might have to recognize it. Congress probably could (and would) pass a law preventing people from transporting minors across state lines for the purpose of flouting marriage law in the state where they married.
Incest, though… that’s the one that rests primarily on the “ick” factor. That one could be vulnerable.
@Trumwill, you won’t get any dispute from me (nor I believe Dave) on the distinctiveness of these different marriages, particularly polygamy. Courts are supposed to operate beyond normative judgments, their authority arguably stems from the proposition that they are following rules set forth by laws and traditions that preceded them. They are high clerics that divine for us mortals the message of higher law. Having done so, they become captives of the logic of their pronouncements.
Within the blogosphere at least, which admittedly is highly libertarian/progressive, I think the implication of today’s pronouncement is that an individual’s free choice is protected by the courts as a liberty interest that the government has a substantial burden in order to regulate. I think Kennedy’s view is more through the prism of state’s rights, but that’s something that can be overlooked easily if the Court changes. How does someone else’s polygamy harm you or your marriage?
PD,
My sister-in-law was able to bring her husband over from the Phillippines. Plural marriages would likely require that we revisit the issue, since once of the reasons that we can extend this privilege is that you only get one spouse (at a time, at any rate).
I can rest assured that if my wife dies, our assets will become mine without estate taxes. Combine plural marriage with an elimination of incest and you have a hell of a tax dodge. That, too, would need to be revisited.
When I married my wife, there was no legal mechanism by which she or I could request another spouse to be brought into the mix. Plural marriage adds a vulnerability there than can affect two-party marriages.
Insurance companies can more freely include spouses on policies because to marry requires a sacrifice (marry one person, you cannot marry another) that, if it disappeared, would leave them vulnerable to more sham marriages.
Hospital visitation, next of kin. The structure of marriage is built on a degree of exclusivity. Not on who can get married, of course, but how freely one can get married. Plural marriage changes the dynamics substantively in the way that gay marriage does not (Denny Crane and Alan Shore aside), and that anti-incest laws most likely would not.
An overwhelming theme of the court’s approval of gay marriage is that opponents could not really point to anything as representing deleterious effects, or potentially deleterious effects. Opponents of plural marriage will.
I believe that the courts will shoot down attempts to force it relatively quickly. If Vermont passes a law allowing for it, the courts won’t prevent it, I do not believe. But I would be quite shocked if they forced New Hampshire to honor them the way that I believe they will force New Hampshire to honor Vermont’s gay marriages.
Trumwill:
You’ve compiled a list of problems with recognizing other sorts of domestic arrangements as legal marriages with which I’m in full agreement.
The question is not whether they’re good social policy. The question is, given the Court’s rulings and accommodating state-level judges and executives, whether they can be barred. I’m skeptical.
I think putting a limit on the number of spouses is vulnerable, but as Trumwell notes, extremely complicated. That’s going to slow acceptance considerably.
Age, though, I think is going to be harder to change much. Perhaps states that set a minimum age of 18 could be coaxed to change it to 16, but it’s not going to go lower than that. There are already many laws that establish minimum ages for various things — drinking, driving, signing a contract — so a minimum age is gong to be much harder to attack.