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February 08, 2004

Incest & Polygamy (1 of 2): Justice

I hear a lot about how the legalization of same-sex marriage will lead to the legalization of incestous marriage or polygamous marriage. I have even heard how it is impossible for one to make a principled case for SSM without supporting incest and polygamy. It is tempting to dismiss these claims by noting the same thing was said by those who opposed interracial marriage. While that is true, it does not deal directly with the arguments being made. Therefore I have undertaken in this post and the next to at the least explain how one can make a principled stand for SSM while opposing other forbidden marriages. Furthermore I hope to pesuade others that likewise the Goodridge decision did not open the door to incest and polygamy. In the second post I will examine some justifications for denying incestous and polygamous marriages and how they don't apply to prohibiting same-sex marriage. In this post, I'll examine arguments for why the state should needed a strong justification to deny same-sex marriage and explore whether and how those arguments might transfer to the case for other forbidden marriages. These arguments are genereally phrased as legal rationales for why SSM prohibitions should be "subject to a stricter scruitny". They can also be thought of as moral arguments for why prohibiting SSM is so unjust.

One of these arguments for stricter scrutiny is that the state is interfering with a fundamental right to marry. Even those who oppose the idea of unwritten rights will concede the US Supreme Court through numerous precedents over the last hundred years has recognized such a right. In a concurring opinion to Zablocki Justice Powell expressed concern that this right swept too broadly and would be problematic in subjecting "bans on incest, bigamy, and homosexuality" to strict scrutiny. The arguments thus come down to not whether there is a "right to marry" which has already been recognized and is unlikely to dissappear, but rather what is the nature of that right. How broad or narrow is it?

Some would interpret it as a right to marry someone, not a right to marry anyone. We thus hear that gays aren't denied the right to marry since they may still marry someone of the opposite sex. This view would indeed also eliminate any right to polgyamy or incestuous marriage. I think this view is far too narrow, though. For an eloquent expression of why the right to marry must include the right to marry the person of one's choice see the opinon of the California Supreme Court in Perez v. Sharp. Alternatively just think how one would feel about a requirement that one must marry a person from the same--or better yet different--income levels. It might go something like this. If either you or your parents earned an income of over $60,000 in the past year you may only marry someone for whom that was not true. Likewise if both you and your parents earned less than $60,000 in the past year you may only marry someone for whom that was not true. The state could argue rationally that this is a way to combat poverty. I think most people would feel the state does not have the power to interfere with whom we marry in that way. Another argument made for how the right to marry is limited is that it is predicated on the ability to procreate. This would not limit the right, though, so as not to apply to other forbidden marriages. Finally it has been suggested that the right to marry is limited to the right to enter into "traditional" marriage. Again though, this might not limit the restriction on polygamy which has a long tradition. Even if one was only looking at traditions in the US, it would fail to limit prohibitions on first cousin marriage which did not appear in the US unitl the 1861. Some states still do not prohibit such marriages.

Thus depending on how one views the right to marry, arguments used by SSM advocates could be perceived as attempts to broaden this right in such a way as to also include a right to polygamy and incestuous marriage. Such a right though would only establish the need of a state for stronger justifications against each type of prohibiton. There still may be compelling interests to retain the bans on incest and polygamy. Such is the view of Evan Gerstmann who persuasively argues for why the right to marry is broad enough to include the right to SSM. Personally, I tend to agree except as it pertains to polygamy. I view the choice of partner as an integral part of the right to marry, but in the case of polygamy the state is not denying an individual this choice. Rather it requires that the individual choose. If Tim wants to marry Sally he is permitted to do so provided he first obtains a divorce from Sue. I should also note that it is possible to view the right to marry as a right as more of a right to designate someone as kin. Under this view a person wishing to marry kin is not being unjustly denied this right since they are already related.

One can make a principled stand for SSM, though, without even considering whether there is a fundamental right to marry. Whereas the argument above is based on freedom another argument is based on equality. The problem with same-sex marriage prohibitions are that they classify based on sex. Such is the view explained thoroughly by Andrew Koppelman. Another time I will focus on why I agree with Koppelman and defend this argument against specific attacks. For now I will just note the following. Whether or not one believes that equal protection type clauses forbid classifications based on sex in this manner, there can be no doubt that SSM bans do classify based on sex. Without resort to such classification there is no way to maintain the prohibition on SSM. Even if one views the arguments for SSM as being based on a right to marry, the justification for the prohibition will necessarily address how a sex-based classification in marriage can be used to achieve some governmental interests. Justifications for polygamy and incest prohibitons, on the other hand, will address clasifications based on kinship. Tim may not marry Sally because he is married to Sue. Richie may not marry Joanie because he is her brother. Certainly one can make a principled argument that the law should be sex-blind and thus allow SSM. If one believed the law should not recognize kinship, though, it makes no sense to argue for the recognition of a marriage. Likewise when we explore justifications, it will not be surprising that issues of kinship are relevant to marriage prohibitions while, in a society of legal gender equality, gender is not as relevant.

So what about the Goodridge decision? Did that help the case for incestuous or polygamous marriage? Well, no. Although the opinion discussed at length the right to marry and equality concerns--in a manner quite similar to Perez--it did not subject the prohibition to strict scrutiny. Nor, contrary to some reports, did it it rule that the prohibition wasn't subject to strict scrutiny. Rather it noted that the state had failed to justify the prohibition even under a rational basis. Thus the case cannot be used by others to argue for (or against) a higher scrutiny in marriage prohibitions. Some have remarked that if the longstanding sex-based requirements in marriage can be declared "irrational" there is no reason to believe the other prohibitions won't also be similarly viewed as lacking a rational basis. In the next post I will demonstrate not only that there are compelling (and similar) justifications for polygamy and incest prohibtions, but also that similar rationales could have been used historically to justify a ban on SSM while failing to do so now because of recent advances in gender equality.

11:15 PM in Polygamy and the Parade of Evils | Permalink

Comments

I'm not a lawyer. Don't take this as legal advice.

That's wrong.

This argument of yours is outrageous, insolent, vain, and conclusory.

Let's start with the federal government. The federal government does not regulate marriage. The reason is that the Constitution gives the federal government only limited, specific powers. The power to regulate morality is not given to the federal government.

The federal DOMA legislation of 1996 is thus controversial. One may wonder where Congress got the power to regulate that area.

The states, however, enjoy inherent, or plenary powers. Among these inherent powers is the police power. The police power, according to Black's Law Dictionary (7th ed) is "the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice.... It is a fundamental power essential to government, and it cannot be surrendered by the legislature or irrevocably transferred away from government."

This basic list, including morality, has been recognized for hundreds of years in the United States of America.

Now, return to the Goodridge decision. The SJC talks about the police power. Note that the SJC also lists the various forms the police power takes.

This is extremely important. Note also: nowhere on that list in Goodrdige is the word "morality." They excised the word from the list.

The SJC made no argument or comment as to why they left morality off the list. They totally ignored the issue.

The power to regulate morality is essential to government. It is why government can outlaw such practices as bestiality, incest, polygamy, cannibalism, cruelty to animals, public nudity, and so on.

The SJC then interepted some part of the Massachusetts state constitution as requiring equal treatment for normal and gay couples who sought marriage licenses.

Instead of then weighing the interests of equality and morality--as would have been proper--the SJC simply found in favor of gay-marriage.

They totally ignored morality.

If the state has no power to regulate morality, why indeed should not a grandfather and granddaughter, or a brother and sister, have a right to marry? The state may cite health. The child of an incestuous union may have onerous birth defects. Fine. Suppose the male of the incestuous couple has undergone a vasectomy, or the female had her ovaries removed?

What then other than morality could justify holding their "marriage" void?

Nothing.

What about two brothers who wished to marry? After gay-marriage, the only thing stopping them would be the incest prohibition. But if the state cannot regulate morality, the state hardly has any interest in not recognizing their perverted "marriage."

The same argument applies to polygamy. Nothing could justify banning it except for morality.

In centuries to come, no one will remember Goodridge as the "gay-marriage" decision. They will remember it, if they do at all, as the decision that ended morality. Let us hope it does not herald an age of wickedness and iniquity, but is only an aberration.

Who cares whether a few people feel a little bit better about themselves? It would be easier to give them all chocolate bars for if Goodridge survives it will subvert the public morality.

Don't you care about that? Do you want anarchy?

I'm not a lawyer. Don't take this as legal advice.

I view the choice of partner as an integral part of the right to marry, but in the case of polygamy the state is not denying an individual this choice. Rather it requires that the individual choose.

How can you maintain that stance while at the same time maintaining that gay orientation is not a choice? Both involve the same thing: partner preference, ie, choice.

Posted by: Andrew Hagen | February 13, 2004 at 11:33 PM

I'm not a lawyer. Don't take this as legal advice.

OK. I won't.

That's wrong.

So you are a lawyer and I should take this as legal advice?

This argument of yours is outrageous, insolent, vain, and conclusory.

Which argument?

I agree.

The federal DOMA legislation of 1996 is thus controversial. One may wonder where Congress got the power to regulate that area.

And here I thought it was from their power to regulate Full Faith & Credit and their power to clarify the meaning of legislation they pass.

: nowhere on that list in Goodrdige is the word "morality."

Actually the decision they referred to morals quite often. The state never asserted they were banning same-sex marriage based on morals, though. The court noted that some amici asserted this, but "Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation"

In centuries to come, no one will remember Goodridge as the "gay-marriage" decision. They will remember it, if they do at all, as the decision that ended morality.

As I noted before the stated never asserted a morality interest.

Don't you care about that? Do you want anarchy?

Yes. No.

How can you maintain that stance while at the same time maintaining that gay orientation is not a choice? Both involve the same thing: partner preference, ie, choice.

That's what I said! The state is interfering with the choice of partner in same-sex marriage. In the polygamy case, though, one cana still choose one's partner. One must choose, though.

Posted by: Galois | February 14, 2004 at 12:09 AM

Why should one have to choose? If one's sexual orientation is determined at birth, and one is bisexual, should they therefore have the right to choose a spouse of either (or would that be each) sex?

Does the state have to legally recognize any human relationship?

Posted by: Pietro Armando | February 03, 2005 at 11:36 PM

Why should one have to choose?

We have to make choices throughout life, and the federal government and federal constitution often require such choices. To give just one of thousands of examples you can't be both US President and a US Senator. You must choose. There is nothing unusual or unjust in requiring a choice be made. If you want to know why in this particular case there are rationales for limiting that choice to an individual spouse, see part 2 of the post.

If one's sexual orientation is determined at birth, and one is bisexual, should they therefore have the right to choose a spouse of either (or would that be each) sex?

Yes, regardless of one's sexual orientation one should be able to choose a spouse of either sex. To allow someone to have two spouses, though, is unnecessary and problematic.

Does the state have to legally recognize any human relationship?

No.

Posted by: Galois | February 06, 2005 at 12:13 PM