Recent Posts

Recent Comments

Categories

My Wish List

Visit this Wish List at Amazon.com
Blog powered by TypePad
Subscribe to this blog's feed
Add me to your TypePad People list

« ERA in Washington | Main | New Jersey's Balancing Test »

February 11, 2005

The Fundamental Right to Vote

(Updated 2/12/05)

I want to return to the argument made by some that if we say the fundamental right to marry can be used to strike down prohibitions against same-sex marriage, it must therefore be able to be used to strike down prohibitions against polygamy.  I simply don't see how this is supposed to follow.  The argument for same-sex marriage is not that there can be no regulations with regards to marriage.  On the contrary if the state is going to recognize marriage in any way there must be laws deciding how we determine whether two people are married and what are the consequences of that determination.  Same-sex marriage proponents merely claim that in a free society the choice of whom one marries must reside with the individual and not the state absent some compelling governmental interest in restricting that choice.   This seems clear to me, but  not to others so perhaps I am not understanding  them or they are not understanding me, or both.  To try to make myself better understood I thought an analogy might be helpful.

I believe we have a fundamental right to vote.  This does not mean I believe that the state should not be able to regulate voting.  On the contrary it must if the vote is to be recognized in any way.  Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily include the right to cast a ballot for the candidate of our choice.  That is in a free society the choice of whom one votes for must reside with the individual and not the state absent some compelling governmental interest.  Because of my belief in this right to vote I would be suspect of even those restrictions which placed parallel burdens on different segments of the society.  For example, suppose the law required that there be one senator of each sex from each state.  This law burdens men and women equally.  Neither group is advantaged or disadvantaged by it.  Nobody is excluded from running for Senator nor is anybody excluded from voting.  There may even be a legitimate goal advanced by this proposal.  It would result in a Senate that, in terms of gender, more accurately reflected the population.  Every state would have a Senator of each gender and the two would "complement" one another, and so forth.  I believe such a policy, though, would violate our fundamental right to vote for the candidate of our choice.

Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like?  Such a system, as in approval voting, could work.  In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system.  The right to vote cannot include the right for us to each decide which voting system we would like to use.  Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like.  In a similar manner while the state would need a good cause to deny someone the opportunity to run for office, it is certainly reasonable to restrict the person to one office at a time.      

UPDATE:  In introducing this post at MarriageDebate.com, Eve Tushnet writes:

Not sure how far this gets you given that a) a huge part of the SSM debate is over whether sex difference is relevant to marriage in a way that it is not relevant to being a senator, and b) a lot of the "ssm-->polygamy" claims rest on particular rationales for ssm that are different from the anti-sex-discrimination rationale that Gabriel finds most persuasive.

Let me address Eve's second point first.  Although it is true that I find the sex discrimination argument the most persuasive, this post was based on a different argument, namely the fundamental right to marry. When in my analogy I compared it to a situation in voting where lines were drawn based on sex I did so to try to parallel to some extent the situation we face in marriage.   In doing so, though, perhaps I obscured the right to marry argument somewhat.  If it helps let us suppose a different restriction on the right to vote.  Perhaps the legislature decides that in order to combat political corruption and undue influence they were going to prohibit anybody from voting for anybody with whom they are related or with whom they have done business in the past.  Again I suspect this would be unconstitutional even though everybody would still be eligible to vote and the law is applied to everyone.

As for Eve's first point, I simply note that how sex difference is relevant to marriage would arise in evalutating the state's interest in prohibiting SSM (or how it's relevant to governing and representation would arise in its interest in requirng a senator of each sex).  That would not have anything to do with whether a compelling interest were needed. 

01:16 AM in Polygamy and the Parade of Evils, The Fundamental Right to Marry |

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83455f19269e200e55051aec88833

Listed below are links to weblogs that reference The Fundamental Right to Vote:

» On the Polygamy Non-Argument from A Stitch in Haste
The legal implications of the status of marriage require, metaphysically, that it be between two and only two people. But those same legal implications do not require, metaphysically, that it be between a man and a woman. [Read More]

Tracked on February 11, 2005 at 04:31 PM

» The Fundamental Right to Vote from Res Ipsa
Over at Galois and intriguingi argument about the fundamental right to marry and how finding such a right does not create a polygamy slippery-slope. Very compelling stuff. [Read More]

Tracked on February 12, 2005 at 08:28 PM

Comments

JR

We begin by putting aside the traditional belief that the state has the right to regulate sexual activity. We agree that the state should not prohibit any consensual sexual activity between competent adults, regardless of the gender or the number of the participants. We agree that people who want to live together should be allowed to do so, married or not, and that the state has no business inquiring into their sex lives if they do. We will also agree, I think, that children born out of wedlock should have full legal rights, and further that an unmarried parent has full parental rights, ie there should be no illegitimacy. Do we also agree that there should be no legal penalties for adultery? And do we agree that divorce should be freely available, without a showing of fault, and without need of consent of both parties? And of course we have long rejected the principle that a married woman is not an independent legal person.
OK. Then, if the state should not regulate sexuality or subjugate one party to the other, or bind people together for life, then marriage as a legal matter is no more than the imposition of a set of rules binding on the parties and on others regarding ownership of property, inheritance, obligations to and rights from third parties, taxation, and guardianship in the event of legal incompetence. That is all.
Now. Suppose the male of a married couple wishes to marry a woman of legal age and competence, and she wishes to marry him, with the free consent of the first wife. We have already agreed that the second woman must be permitted to live with the married couple, that there should be no penalties if she has sexual relations with the man, and that her children from those relations must be fully equal in law-- in the right to inherit if the father dies, for example-- to the children of the wife.
Now let us suppose that the three go to a lawyer, who drafts a set of contracts, wills, deeds, and living wills designed to mimic the legal obligations and rights imposed by marriage as closely as possible. Is this objectionable? If so, why?
And if not, what compelling governmental interest is served by barring this man and woman who wish to marry from doing so?
Note further that the state does not absolutely prohibit them from marrying; it merely requires the man to divorce his current wife first, which he is permitted to do regardless of her preferences. What governmental interest is served by this rule?

Posted by: JR | February 11, 2005 at 06:52 PM

A real Minority on the Internet and in the World

The point of gay "marriage" is to slothly and altruistically expand government intusion on the straight white man "da devil" through collecting tax and insurance benefits for same sex partners, that is to say screwing over the "evil" straight white man finacially again, something hip, cool, and "dropitletizhot" and MTVrad... it's SOMETHING THAT VICENTE BUSH WANTS TO ACCOMPLISH AND WILL PASS (Destruction of the white race)

Posted by: A real Minority on the Internet and in the World | February 12, 2005 at 01:14 AM

Galois

JR,

Actually I do think there should be legal penalties for adultery, and I'm quite torn about what the laws of divorce should be. However, for the sake of argument let us accept all of your premises and turn to your question,

And if not, what compelling governmental interest is served by barring this man and woman who wish to marry from doing so?

Note, first of all that this post was about how the fundamental right to marry did not imply a fundamental right to marry multiple spouses and hence only legitimate, not compelling, interests would be needed. Regardless of what sort of interest would be needed, this post was not about the interests in prohibiting polygamy. But since you asked, the courts have found many state interests in prohibiting polygamy. Personally I believe one of the strongest reasons is that it is incompatible with the system of marriage we have. Kip Esquire expands on this in a recent post that you may find above in the trackbacks. It's not that one couldn't develop a whole new system just as we could also institute a whole new system of voting but (1) There is no need to do so, (2) I cannot evaluate what the harms of such a system would be until you give specifics for what the system would entail. Until that time I would just say the state has a compelling interst in avoiding contradictory laws and impossible laws as they would lead to confusion and instability.

Some other aspects of the justification for why polygamy should not be allowed were given in a previous post I wrote or this post written by Jon Rowe. I don't agree with Jon that this is the strongest argument against polygamy, but it certainly is something to consider.

Posted by: Galois | February 12, 2005 at 06:47 PM

JR

Galois-
We're not talking about a fundamental right to marry multiple spouses. A single woman wants to marry a single spouse. You claim that she has a fundamental right to do so, yet you wish to bar her from marrying the partner of her choice because he is already married. Her right to choose her spouse is being infringed. Legally she can sleep with him, share his home, bear his children - she just can't marry him.
And of course polygamy is not legally impossible. It is prevalent in Muslim and African countries and they have no difficulty with it. It caused no legal problems in Utah before the territory became a state.
I read Kip Esquire up to the point where he said (in bold italics- when someone starts shouting it usually means his argument has no persuasive force) that as a legal matter "Polygamy ... simply cannot [work]." Of course it can. There is the obvious counterexample of Sha'aria law, which governs the lives of hundreds of millions of people.
And what is it about polygamy that does not "work"? Inheritance? Illegitimacy? Divorce? Guardianship? Child-rearing? How would it cause problems more difficult of resolution than those arising out of the serial monogamy and the blended families that are now commonplace?
You argue that unlike polygamy, same-sex marriage is compatible with the system of marriage that "we" have. Yet only 50 years ago "our" system looked upon homosexuality with uniform revulsion. Homosexual acts were crimes in every state until 1955. The idea that same-sex marriage could be compatible with "our" system was not even thinkable for most people until very recently - the words "same-sex marriage" would have struck virtually everyone (including gay people) as a ridiculous paradox. Our parents (or grandparents depending on your age) would have been rock-solid certain that same-sex marriage would be incompatible with the system that "we" have. Now we see that these beliefs were wrong -- same-sex marriage is perfectly workable within our system.
Similarly, polygamy may be objectionable for many reasons, as you argue (without listing any), but the notion that the legal system couldn't deal with them isn't one of them.
What I see in your argument is a post hoc attempt to rationalize a result that you want for other reasons. You want to find a way to use the courts to compel the legal acceptance of gay marriage. To do so you need an argument that would not apply to polygamy, as you have no interest in legalizing polygamy and you know that the public would not accept it. Such an argument may exist but you are not there yet. If I may inject my personal views here (and I suppose I might have an obligation to do so, now that I've speculated regarding yours), I believe that gay marriage should be legal and that the legitimate way to legalize it is through legislation. I do not think our constitution -- which is a flawed document but it is all we have -- will support a fundamental right to marriage that encompasses same-sex marriage. A ruling to that effect would tear at the fabric of constitutional interpretation and leave the protections of the constitution weaker, not stronger, for the next case. I have read the Massachusetts Supreme Judicial Court decision, and I have great sympathy with it, but I am convinced that as a matter of law it is incorrect.

PS: FYI, regarding your voting analogy, France has a law that 50% of a party's candidates must be women; Sweden until recently had a law requiring that 40% must be women (it was repealed as unnecessary when women's representation in parliament reached 50%). Perhaps you think that the French and the Swedes are denied a fundamental right, but they seem pretty free to me.

Posted by: JR | February 13, 2005 at 02:03 AM

Galois
We're not talking about a fundamental right to marry multiple spouses. A single woman wants to marry a single spouse. You claim that she has a fundamental right to do so, yet you wish to bar her from marrying the partner of her choice because he is already married. Her right to choose her spouse is being infringed.

It is not being infringed by the government. You said yourself that she could marry him as long as he obtained a divorce from his first wife. He just chose the other wife over her. She also could not marry him even if were single but not intrested in her. To compare back to our voting analogy. Supose I wanted to elect Hillary Clinton governor. I could do so provided she resigned her Senate seat. (In some states she could keep the seat up until the point she took the second office, but either way she can't hold both offices at once). That does not infringe my rights. Nor can I vote for her if she doesn't decide to run for governor. Again my rights aren't being infringed.


And of course polygamy is not legally impossible. It is prevalent in Muslim and African countries and they have no difficulty with it. It caused no legal problems in Utah before the territory became a state....Of course it can [work]. There is the obvious counterexample of Sha'aria law, which governs the lives of hundreds of millions of people.

I said it could not work under our current legal system. Yes we could rewrite our laws to conform to Sha'aria, but I believe there are a number of compelling interests in not doing so. For one thing such a law (as well as your other examples) do not provide gender equality. So once again, I'm not saying a legal system cannot accomodate polygamy. I'm saying "our" legal system cannot accomodate it.

And you are right that 50 years ago it could not accomodate same-sex marriage. One reason as you said was because homosexual acts were criminal. Another reason is that the laws were not equal with regards to gender. To have allowed same-sex marriage would have required either one meber of the same-sex couple taking on the legal roles of the other sex, or completely rewriting the laws so that they are gender neutral. Compare that with today where in most states the laws are already gender neutral (even if the words used are not) so that same-sex marriage merely requires reading the law gender neutrally (an already acceptable practice of stauatory interpretation). No such remedy exists for polygamy.

What I see in your argument is a post hoc attempt to rationalize a result that you want for other reasons.

In some sense that is true. I believe prohibiting same-sex marriage is unconstitutional because it impermissibly discriminates on the basis of sex. Note however that I also want approval voting, but I am not arguing that the first past the post system violates our constitutional rights.

I have read the Massachusetts Supreme Judicial Court decision, and I have great sympathy with it, but I am convinced that as a matter of law it is incorrect.

Why? That opinion did not find a fundamental right to marry which included same-sex marriage. It said it did not need to decide that as there was no rational basis for prohibiting same-sex marriage. Unlike you claim I have listed reasons why polygamy would be problematic. It would require completely rewriting our laws (it is hard for me to be specific about the problems this would cause until you specify how the laws should be rewritten. All the specific systems you have proposed fail to provide gender equality).

I note that you have not given any argument as to why the MSJC decision is incorrect. Which reason proposed by the state did you find to be even a rational basis for prohbiting same-sex marriage?

Perhaps you think that the French and the Swedes are denied a fundamental right, but they seem pretty free to me.
I don't think they are being denied the fundamental right to vote because everybody can still vote for the party of their choice. I do think they are being denied the right to be treated equally without regards to sex. And I do think if a state required there be a senator of each sex (or required the governor each term to alternate between the sexes) we would be denied our liberties in a number of ways.

Posted by: Galois | February 13, 2005 at 10:10 AM

sub

This web site is to long and no one would want to read this because its to long. Make it shorter and maybe some one will read it. Also what is ka URL.

Posted by: sub | April 19, 2005 at 01:41 PM

The comments to this entry are closed.