The Power of the SCOTUS Part VII - The Bedrock of the Republic!

[unofan]

Yet if a church were having a bake sale, in your world, they'd be required by law to put a gay couple atop a wedding cake?

First off, who buys a wedding cake at a bake sale? I guess the same people who order pizza for their reception...

beyond that, though, I would need way more facts: Who are they selling to, where is the sale, what products or services are being offered for sale, where are the proceeds going, who is operating the sale, etc.

At one extreme, if parishoners are operating a bakery outside of the church and sell custom wedding cakes including a couple on the top and donate 10% of their sales to the church, yes.

At the other, if a church is selling premade baked goods at a table outside of church on Sunday as a Knights of Columbus fundraiser, then no.

Again, take your scenario and replace "gay" with "black." If you still think it'd be okay to refuse service for religious reasons, then there's your answer.

 

[joecct]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

...Do incest rules extend to adopted siblings? That's a clear case where all the developmental issues are there but none of the biology.

In many states, yes. I think there are like 7 states where adopted siblings may marry.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

How? I don't understand the argument that 2 or more than 2 people is similar to restricting based on who they are.

One can argue under the 14th that the states have to treat each person equally under the law. It does not open up a numerical restriction.

The same argument for gay marriage is inter-racial marriage- that a state can not restrict the action based on who they are. Nothing to do with the number of people getting into the agreement.

Put in a different question- how is restricting marriage to 2 people similar to the argument of gay marriage?? I don't understand that implication.

I'm not 100% sure what you're asking here but I'll take a shot.

The argument for gay/inter-racial marriage was that the 14th amendment requires equal treatment. In other words, the state can not stop a white man marrying a black woman simply because of color. The state can neither prevent a Hindu for marrying a Catholic based on religion. It is expected that this will be further extended to say a man can marry another man because they both should receive equal treatment as the man and woman who choose to marry. Why then should I not be allowed to marry two women (or two other men should I choose) if all parties consent? What is the state's reason not to provide me with the same rights that are allowed to others simply because I want to marry more than one person? Why shouldn't the three of us have those same rights. In the case of incest, I understand the reluctance to allowing a marriage but don't really see much difference in three people marrying for love and three people forming a corporation for business.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Someone below mentioned the cult aspect, which is a good place to start. That's part of what I was going for with the "power imbalance" - though who knows how much of that is simply because polygamy is illegal and therefore only practiced by cults.

But anyone who's ever lived with 2 or more roommates at a time knows what I mean to some extent. The way problems are handled in a one-on-one situation is different than a three-way (or more) negotiation. As the number of people in a relationship goes up, there is an increased likelihood that some person in the relationship is less a willing party than someone coerced, at least for some actions. Maybe that goes to the consent element, but I think it's a legitimate concern. If a polygamist could show that concern is not real, I'd be willing to listen to it.

As far as the practical matters, it's not "because this is how it's always been done" but "because the it would cost a boatload of time, money, and legislation to work this out, because the current system is not setup to handle multiple spouses." The government clearly has an interest in its own finances. Whether that interest is sufficient to stave off polygamy likely depends on how it would be classified. It's doubtful polyamory would be classified as a sexual orientation rather than a preference (just as preferences for blondes, or cougars, or poolboys are not classified as such), though obviously that could change over time. In that case, the government wins because it would have a legitimate interest, and under the rational basis test that's sufficient.

And part of the point of civil marriage is that it covers all those rights and responsibilities without needing to consult a lawyer. If I'm in a coma, my wife has the power to make medical decisions. It's simple and efficient. If there are two spouses, what then if they disagree? If there are three others, does majority vote rule or does it have to be unanimous?

I'm sure there are people out there that could make a strong argument for a return to the Biblical days of Solomon and his 700 wives, but I'm not one of them because I simply don't care. I happen to think the government could win court cases against it without resorting to the lame reasons put forth in the gay marriage cases, but I'm not invested in that.

Anyone who is married already knows why polygamy is not practical. Why anyone would want to double, triple or whatever the hassles is beyond me.

The question I pose is simple. If the 14th amendment states that homosexuals should be offered the same right to marry as heterosexuals are, then why should a polygamist not be given the same? I see polygamy as no different than forming a corporation.

Like you, I really don't care. I've no dog in this fight any which way. It won't affect me if gays can marry anymore than if they allow polygamy. My marriage won't be affected. I only went through the legal aspect for convenience and the religious aspect for my wife. None of any of it changed my feelings for her.

 

[unofan]

If the 14th amendment states that homosexuals should be offered the same right to marry as heterosexuals are, then why should a polygamist not be given the same? I see polygamy as no different than forming a corporation.

Sounds more like you're making a first amendment freedom of association argument. No clue how that would fly, that's the part of the first that has the least jurisprudence.

There are whole classes on the equal protection clause jurisprudence, so I can't get into it fully here. The primary difference right now is that sexual orientation is a protected class (albeit one that courts aren't sure how to treat from balancing test perspective), while polyamory is not. Therefore the government need only have a rational basis for discriminating against the polyamorous, and I feel I've set forth two such reasons above. There could be more, I'm just not thinking of them.

 

[Shirtless Guy]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Sounds more like you're making a first amendment freedom of association argument. No clue how that would fly, that's the part of the first that has the least jurisprudence.

There are whole classes on the equal protection clause jurisprudence, so I can't get into it fully here. The primary difference right now is that sexual orientation is a protected class (albeit one that courts aren't sure how to treat from balancing test perspective), while polyamory is not. Therefore the government need only have a rational basis for discriminating against the polyamorous, and I feel I've set forth two such reasons above. There could be more, I'm just not thinking of them.

Thank you for this post, very informative. Really appreciate your perspective on all of this. Hopefully both sides of the "homophobia" question can move on and we can keep this thread as close to discussing the cases as possible. I really enjoy hearing how these things play out and your perspective from the law side. Many of these decisions can be confusing to a layperson when some decisions feel like the case involves speaking out of both sides of your mouth.

 

[alfablue]

I'm not 100% sure what you're asking here but I'll take a shot.

The argument for gay/inter-racial marriage was that the 14th amendment requires equal treatment. In other words, the state can not stop a white man marrying a black woman simply because of color. The state can neither prevent a Hindu for marrying a Catholic based on religion. It is expected that this will be further extended to say a man can marry another man because they both should receive equal treatment as the man and woman who choose to marry. Why then should I not be allowed to marry two women (or two other men should I choose) if all parties consent? What is the state's reason not to provide me with the same rights that are allowed to others simply because I want to marry more than one person? Why shouldn't the three of us have those same rights. In the case of incest, I understand the reluctance to allowing a marriage but don't really see much difference in three people marrying for love and three people forming a corporation for business.

I'm sorry, but I just don't see the connection of who a person is to the number of people in an agreement.

Can you explain better why there is some specific discrimination based on who a person is ( the 14th amendment ) when numerical limits are put in place? By that extension, one should be allowed to vote more than once because they want to.

 

[LynahFan]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I'm not 100% sure what you're asking here but I'll take a shot.

The argument for gay/inter-racial marriage was that the 14th amendment requires equal treatment. In other words, the state can not stop a white man marrying a black woman simply because of color. The state can neither prevent a Hindu for marrying a Catholic based on religion. It is expected that this will be further extended to say a man can marry another man because they both should receive equal treatment as the man and woman who choose to marry. Why then should I not be allowed to marry two women (or two other men should I choose) if all parties consent? What is the state's reason not to provide me with the same rights that are allowed to others simply because I want to marry more than one person? Why shouldn't the three of us have those same rights. In the case of incest, I understand the reluctance to allowing a marriage but don't really see much difference in three people marrying for love and three people forming a corporation for business.

Why can't I have an S-corporation with 101 partners?

"Number of people who can enter an agreement" is a completely different sort of restriction than "what TYPE of people can enter an agreement." 14th says you can't discriminate based on type; says nothing about number.

 

[Shirtless Guy]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Why can't I have an S-corporation with 101 partners?

"Number of people who can enter an agreement" is a completely different sort of restriction than "what TYPE of people can enter an agreement." 14th says you can't discriminate based on type; says nothing about number.

Ok, so why can you discriminate against someone who is already married (type of person) and treat them different than someone who isn't married yet. If 2 people love each other, why can't they get married, without divorcing their current partner?

 

[alfablue]

Ok, so why can you discriminate against someone who is already married (type of person) and treat them different than someone who isn't married yet. If 2 people love each other, why can't they get married, without divorcing their current partner?

If you were talking using married status as gate for a specific thing, I can see your point. But you are using married status to change married status.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Sounds more like you're making a first amendment freedom of association argument. No clue how that would fly, that's the part of the first that has the least jurisprudence.

There are whole classes on the equal protection clause jurisprudence, so I can't get into it fully here. The primary difference right now is that sexual orientation is a protected class (albeit one that courts aren't sure how to treat from balancing test perspective), while polyamory is not. Therefore the government need only have a rational basis for discriminating against the polyamorous, and I feel I've set forth two such reasons above. There could be more, I'm just not thinking of them.

At the risk of sounding like the little kid who continually asks "Why?", I'll push this further.

I'm no legal scholar by any stretch so I'll leave it up to those who are as to whether this involves the 1st or 14th. I'd argue the 14th due to my over simplifying it to the theory that if one person has a right, so should others.

Religion clearly falls under the protected class concept. Although the official LDS stance is against polygamy, several offshoots of the religion practice polygamy. The Quran allows for polygamy even though most Muslims don't practice this aspect of their faith. Why should a homosexual Mormon or Muslim be allowed by the court to marry but not a Mormon polygamist? Should not both receive equal protection?

Your main argument for the State's right to discriminate against polygamists seems to be the high rate of abuse (be it real or perceived) against the women and children involved. I agree that it is in the State's interest to protect it's citizens but one can argue that the same problems exist in monogamous marriages. Why does the State have a vested interest in prosecuting/persecuting/preventing the polygamist any more so than the monogamist?

Anyway, like Shirtless, I appreciate your perspective. One of the main reasons to hang around here is to absorb the wisdom of others. Thanks.

 

[SJHovey]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Sounds more like you're making a first amendment freedom of association argument. No clue how that would fly, that's the part of the first that has the least jurisprudence.

There are whole classes on the equal protection clause jurisprudence, so I can't get into it fully here. The primary difference right now is that sexual orientation is a protected class (albeit one that courts aren't sure how to treat from balancing test perspective), while polyamory is not. Therefore the government need only have a rational basis for discriminating against the polyamorous, and I feel I've set forth two such reasons above. There could be more, I'm just not thinking of them.

I don't think it's too hard to visualize how the polygamy or polyamorous relationship cases will ultimately work their way through the courts. The world's too small a place, and those relationships are occurring right now, even though we continue to ban them here in the U.S. and even pursue bigamy or other criminal charges against those who practice them.

It'll start out as some sort of religious based claim to be able to have multiple spouses. The religion feature makes it much more difficult to dismiss it on the ability of the government to just come up with some reason for banning them. From there we get to this problem -- if the Mormons get 5 wives because their Mormonism, why doesn't the equal protection clause permit me 5 wives even if I believe in a different religion.

Personally, I say have at it. You want 5 wives, more power to you.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Why can't I have an S-corporation with 101 partners?

"Number of people who can enter an agreement" is a completely different sort of restriction than "what TYPE of people can enter an agreement." 14th says you can't discriminate based on type; says nothing about number.

My argument would be that a polygamist is a type of person just as a homosexual is a type of person just as a Jew is a type of person just as a Caucasian is a type of person etc.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I'm sorry, but I just don't see the connection of who a person is to the number of people in an agreement.

Can you explain better why there is some specific discrimination based on who a person is ( the 14th amendment ) when numerical limits are put in place? By that extension, one should be allowed to vote more than once because they want to.

see below.

 

[Shirtless Guy]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I'm assuming some of the implied governmental interest is in the things mentioned already like by getting married, I'm automatically my wife's next of kin and power of attorney. We don't need a lawyer to deal with what happens if something happens to her, unless she chooses to override those choices by having a will or whatever.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

It'll start out as some sort of religious based claim to be able to have multiple spouses. The religion feature makes it much more difficult to dismiss it on the ability of the government to just come up with some reason for banning them. From there we get to this problem -- if the Mormons get 5 wives because their Mormonism, why doesn't the equal protection clause permit me 5 wives even if I believe in a different religion..

There are Muslim men with multiple wives in other countries right now. What happens when they move here? Are their multiple marriages recognized?

 

[St. Clown]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

There are Muslim men with multiple wives in other countries right now. What happens when they move here? Are their multiple marriages recognized?

With the Mormons who practice it over here, only the first wife is recognized by the government and then all others are only recognized by their local sect/cult of Mormonism. However, like you note, having the marriages take place in a foreign country, likely recognized by that government, has to change something in the eyes of our government(s) here.

 

[busterman62]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I'm assuming some of the implied governmental interest is in the things mentioned already like by getting married, I'm automatically my wife's next of kin and power of attorney. We don't need a lawyer to deal with what happens if something happens to her, unless she chooses to override those choices by having a will or whatever.

POA (at least in healthcare) follows a succession if not otherwise delegated. It starts with spouse then children, parents and siblings. If more than one child (or parent or sibling) exists than the decision must be a consensus. I'd imagine that it would be similar with multiple spouses.

[SOAPBOX] FILL OUT A HEALTHCARE POWER OF ATTORNEY FORM. LET THOSE WHOM YOU DESIGNATE KNOW WHAT YOUR WISHES ARE FOR LIFE SUPPORT, FEEDING TUBES, ETC. [/SOAPBOX]
It's a royal pain in arse when families argue over what the patient did or did not want.

 

[burd]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I'm assuming some of the implied governmental interest is in the things mentioned already like by getting married, I'm automatically my wife's next of kin and power of attorney. We don't need a lawyer to deal with what happens if something happens to her, unless she chooses to override those choices by having a will or whatever.

In fact, you are not automatically your wife's power of attorney.

 

[alfablue]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

My argument would be that a polygamist is a type of person just as a homosexual is a type of person just as a Jew is a type of person just as a Caucasian is a type of person etc.

Fair enough, but I'm not sure how far that argument can get in court.