Supreme Court Same Sex Marriage Argumet

[robvalue]

Personally I don't have a moral problem with polygamy, the issue would be in how you make that into a legal contract and how it would affect custody of children etc. I don't think it's a simple matter to just say "OK now any number of people can get married". I certainly don't see how it's at all the same issue as gay marriage, once again, which seems like a pretty simple change in comparison.

[Losty]

It seems to me that those who wish to be polygamists do it regardless of whether or not it's legal. I doubt legalizing polygamy would lead to hundreds of people going out and having multiple marriages.

[FatAndFaithless]

And while I see your point Rob, about how polygamy is a more complicated matter legally than gay marriage (such as inheritance, child custody, insurance structuring, etc etc), if we're talking in the ideal then any sort of marriage contract between consenting adults should be totally fine.

[robvalue]

Yeah, I agree. I guess there could be rules for a "custom marriage" or something. Are people who are into multiple partners actually likely to all want to get married? I have no idea.

[FatAndFaithless]

This is where my closet libertarian creeps in and suggests that the people involved in the marriage create the contract themselves, and only go to the gov't when the contract is breached, instead of the gov't setting the rules for who get's to be 'married'.

[robvalue]

Hmm, interesting. Yeah, I'd never thought of that.

I just remembered the weirdest marriage ever... Ages ago, I read about a woman who had violent sex fantasies about herself. So she got a life size replica of herself made, to do stuff to. And then she married it! It seemed like a real story.

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It was a while ago so I'm not totally sure it was the same story, but it sounds like it probably is:

http://www.chicagoreader.com/chicago/art...id=4258953

[Pyrrho]

Yeah, I agree. I guess there could be rules for a "custom marriage" or something. Are people who are into multiple partners actually likely to all want to get married? I have no idea.

It would be a complicated matter, and would also likely involve greater instability, with the more people involved, the more likely there would be a dissolution of the marriage.  To keep this simple, let us consider the difference between 2 people getting married, and 3 people getting married.  With 2 people getting married, there is only one relationship, the relationship between person 1 and 2.  So for the marriage to hold, all that matters is the one relationship.  But with a 3 person marriage, there is the relationship between person 1 and person 2, and the relationship between person 1 and person 3, and the relationship between person 2 and person 3.  So there are three relationships to maintain, instead of only one.  So even without children, it has much more going on, with a greater likelihood of instability, due to having three times as many relationships that need to work in order for the marriage to last.  (With a fourth person, you would add in 3 more relationships, for a total of 6 relationships, as the fourth person would have a relationship with each of the three added to what is already there.  So you can see that each addition dramatically impacts the complexity of what is going on.)

And with children, things get very complex very quickly.  Who is responsible for which children, and how much responsibility does each person have?  Suppose one of the three stays home to take care of the children, and the other two work.  That might be a very practical arrangement, as long as it lasts.  Now, suppose that one of them leaves the relationship.  This is going to screw up the balance of income versus child care, and everyone is going to be very significantly affected.  Now, for the adults, it was their choice, so too bad for them, they made their bed, so they must lie in it.  But the children did not agree to this arrangement, and we have allowed for the instability by allowing the marriage in the first place.  And the children are all affected by this, regardless of which people in particular are the parents, so that even a marriage partner who is childless is still a part of the totality that affects all of the children.

Figuring out the law of that would probably be a nightmare (and a source of great job security for lawyers dealing with the fallout if polygamy were allowed).

So there may be practical reasons to reject polygamy, though one would want to look into the matter in much more detail than I have here.

[robvalue]

Sure, these are the kind of concerns I was thinking of. I'm not so much against it, as I am worried it's not a practical legal arrangement. Like you say, it's the kids' welfare that is the biggest problem.

However, we can calculate the number of relationships between n people using the formula n(n-1)/2 so it's not all bad news.

[Dystopia]

This is where my closet libertarian creeps in and suggests that the people involved in the marriage create the contract themselves, and only go to the gov't when the contract is breached, instead of the gov't setting the rules for who get's to be 'married'.

I couldn't disagree more - People can't legally create new contracts, that's not how it works. I'll explain briefly why:

We all want (I think) to live peacefully and that demands the creation of laws that dictate how we should and shouldn't behave - What we can do, what we should do, what we totally can't do, grey areas, etc. For a Law to be a real Law it needs some form of authority, otherwise no one needs to obey it - What is the institution that holds enough authority to enforce a sect of Laws? That's right, the State/government (I personally prefer calling it the State because there's more to the State than just the government). 

Obviously, this means every contract that exists and is legally valid must be allowed by the State in some sort of Law, written or not - Commonlaw and Civil/Legal systems differ but the belief that there must be some authority to enforce and create laws remains - The State (and the courts of Law, which are a part of public sphere) seems to be the most appropriate entity to create rules/laws. 

This is why people don't decide what a contract is - If people decide what marriage is, then everyone can decide anything that pleases them, and there may be no certain definition, therefore marriage and other contracts become undefined and cease to exist in practise.

Also, if the government doesn't have the power to dictate some basic rules of the contract, why should it have a say when it is breached? It doesn't make sense.

I'm not arguing against polygamy, I'm just saying your notion about marriage is wrong - If we want to legalize polygamy, the State and parliaments/politicians need to pass a Law saying it is legal. As for my stance, I agree with Prryho that it would create many legal barriers that are either very hard or impossible to withstand - In Europe, where the State has a larger, older tradition of intervening more with life's affairs, including regulating institutions like marriage (and most Laws are written and approved by the parliament, a tool of the State) it is an even harder achievement because there are thousands of Laws meticulously regulating how marriage and other institutions work, what you can and can't do, how divorce, child custody, inheritance and portions of it work, what legal benefits each matrimonial regime (like separation of property), etc.

For these reasons, I think if we want to legalise polygamy, I think we are better off following the communist advice of abolishing marriage and we could create a whole new institution from scratch that allowed more freedom and liberty - I think this is crucial because considering the history and traditions associated with the institution of marriage in most of the west and part of the rest of the world it is almost impossible to make a good case for polygamy without entirely (I mean this literally) changing the institution.

There's more to it that simply saying "consenting adults can do what they want" - No they can't. I can't consent on a lot of things, even as an adult, and there are rules and purposes for any contract.

[Anima]

We seem to be talking about the law like it is changed by taking tablets which may have unpreventable side effects.

I'm going to poke my brain out of my ears in a minute. Is there anyone anywhere who is actually requesting there be child marriage, whether or not there is gay marriage? And if not, why is anyone talking about it when you can just allow gay but not child marriage? What harm can possibly come from allowing gay marriage, and what the living fuckball biceps do children have to do with it? Are there people campaigning for child marriage that I don't know about?

Either this argument doesn't make sense, or the law is really badly stupid and needs changing, or I'm so far gone in the head I might as well do to myself what I did to science last week.

Changes to the law do have unintended consequences. Remember that laws are related to one another. If you change the definition of one it impacts all laws related to that law. That is why the changing or enacting of a new law leads to tons of court cases in regards to that new law or the changes. (As I like to say to conservatives at work, "Contrary to popular belief it is not all in the constitution!")

Parties who would actually be requesting child marriages would be Warren Jeffs at present and any parties under arrest for performing or facilitating child marriages. (there are several cases pending regarding the fundamentalist Mormons in Arizona/Colorado). Or people from the National Man Boy Love Association (NAMBLA) who I understand are supporters of pederasty.

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But what is that a list of?  Some of them are biological truths, such as the genders need to be opposite, they need to be of an age where they can have children.

But members of the same family can produce offspring but with there being more chance that the offspring will suffer from abnormalities or death.

So with that in mind this list is incomplete.  If you were to go by what you call the procreation centric view of marriage then no one over the age of late 40s should be allowed to be married because at this age the offspring is at a great risk of having down syndrome. 
Also straight people who just can't have children because of sperm or ovary abnormalities should also not be allowed to get married.

You bring up an excellent point regarding incest. As learned from the nobility of Europe inbreeding has some serious side effects over many generations but not right away. As it is right now the states may prohibit persons from incestuous relationships under rational basis (the state has a legitimate interest and the discrimination is reasonably related to that interest) under the rational that
1)Incestuous relationships are in opposition to the biological goal of dihybrid procreative means practiced by humans and all hominids.
2)Incestuous relationships are psychologically harming to the people directly and indirectly involved (such as the resultant children).
3)The state does not wish to encourage or promote the engagement of incestuous relations which may reasonable result in incestuous relations with children who are underage.

Under the petitioners propose change to a fundamental right that is recognition and dignity/security centric none of those reasons will pass strict scrutiny.

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Yes it was.

He argued the state has a compelling interest in the procreation of children for state population as well as states responsibility to protect those children (both already recognized compelling interest as determined in Roe V. Wade)

He then argued the discrimination was narrowly tailored in that it was directed only at parties wishing to join in the marriage contract which is not obligatory, but willful.

He then argue the discrimination is least intrusive means by the state incentavising the procreation of children through the conveyance of benefits to couples with the potentiality to have children (as supported in Maher V Roe).

Finally, he argued the states interest is served by this discrimination as evidenced over hundreds if not thousands of years and verified by the supreme court in Maher V Roe.

The only problem with this is that the least restrictive means test would not be passed by limiting marriage to two people.  Under this rationale there is no reason to oppose polygamy.

You are right about that! If marriage is recognize as a fundamental right than the state will not be able to prohibit polygamy or polyandry under strict scrutiny.

The respondents argument was in regards to the restriction on same sex marriage passing strict scrutiny.

Sort of funny how even if the petitioners win the states could still keep them out under strict scrutiny while letting every else in.

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It seems to me that those who wish to be polygamists do it regardless of whether or not it's legal. I doubt legalizing polygamy would lead to hundreds of people going out and having multiple marriages.

To Paraphrase:

It would seem that those who wish to break the law do it regardless of whether or not it is legal. I doubt legalizing what they do would lead to hundreds of people going out and doing it.