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February 06, 2005

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M

There's a lot to be said about this case, but what strikes me the most is how, at each turn, the lifting of some restriction (whether by courts or by the legislature) is read to be a support to the right to have the courts lift more restrictions. If you've been in the culture wars for a few decades, or know the history of it, you recognize each of these turns. It starts with liberalizing divorce laws. It proceeds to social acceptance (then social encouragement) of remarriage, single parenthood, surrogacy, etc. Any compromise designed to leave some privacy in the matter of marriage decisions is re-interpreted to indicate that government has no interest (if you don't regulate everything, then you can't regulate any of it).

Interestingly, we were also told that only silly people would think that allowing no fault divorce would have an effect on the marriages of those not getting divorced. Apart from the many (extremely ill) social effects of easy divorce, now we can add changing the very definition of marriage to include same-sex couples to the list of unintended consequences of changing the divorce laws. Looks like, if anything, pro-family groups were understated in their predictions.

And, just as with marriage laws, you see the same pattern as with sodomy laws. Family groups had no interest in sending policemen into people's bedrooms to check if sodomy was occuring (indeed, a principle arguement against those laws was that they were not enforced). Liberal critics argued that there was no tangible harm to removing sodomy laws from the books. Conservatives countered (perhaps remembering the divorce wars) that lots of tangible harm was predictable, including same-sex marriage. Liberals scoffed - what a silly thing to think! Slippery slopedom! Not at all likely!

And here we are. Only rarely has being absolutely correct in one's predicitions felt so horrible.

So, you and I have discussed in the past whether altering the definition of marriage to include same-sex pairings would lead to polygamy (among other things). You've argued that there's no certainty it would. I happily concede. I am not 100% certain of future social developments. You make a great case for why polygamy shouldn't be permitted, and I'll be quoting you heavily when we eventually fight this one out.

But I'd like to know, why, given the history of divorce law and sodomy law, and the court's clever choice to define the issue as a general matter of liberty and to minimize any differences between the virtual, it isn't a *likely* result? Oh, it's not going to happen tomorrow - let's give it a good 40 years, just about the time it took the divorce and sodomy laws to change so utterly. We can't argue much on the liberty interest; after all, if what you want isn't in the constitution, you just back up and back up until you get to a concept wide enough to encompass what you want to legalize - you can do that with almost any issue. From your summary of the case, I think the legal basis is already there. The only remaining issues are the social science arguments that the government will try to use to defend the restriction and the social acceptance.

But, I don't think this means that you can't still call for gay marriage with a glad heart. There are lots of cases where there's some unfortunate unintended consequence of changing the law. If people are informed of them up front, they can judge whether the good outweighs the bad (and in this case I think your side has some solid arguments -- not, of course, that I would agree with them).

I'd just like someone to admit that, in the matter of predicting social outcomes, the pro-family groups have been Cassandra, not Chicken Little, and that chances are we're right again.

Galois

Interestingly, we were also told that only silly people would think that allowing no fault divorce would have an effect on the marriages of those not getting divorced.

I believe whoever told you that was the silly one. You are changing the terms under which any and all marriages can end. That could certainly have a consequence on the dynamics within any and all marriages.

we can add changing the very definition of marriage to include same-sex couples to the list of unintended consequences of changing the divorce laws

I wouldn't call same-sex marriage a consequence of the changed divorce laws. It is certainly conceivable to have same-sex marriage with the former divorce laws, and likewise it is possible to have the changed divorce laws without same-sex marriage. The reference to divorce was just one of many examples of how marriage has changed. There were many others like the end of coverture and the end of the marital rape exception that were particularly relevant as they concerned gender roles within marriage. I would say, though, that any change toward gender-neutrality in the divorce law would make same-sex marriage more likely. For example, a law that made men, but not women, liable for alimony, or a law that gave the wife presumptative custody would be much more difficult to reconcile with same-sex marriage. The more gender-neutral the marriage laws are the more difficult it is to justify gender requirements within marriage.

And, just as with marriage laws, you see the same pattern as with sodomy laws.

Again I would say that anyone who said decriminalizing sodomy would have no impact whatsoever on the same-sex marriage debate was silly. That does not necessarily mean that same-sex marriage is an inevitable consequence of removing sodomy laws. Rather you have removed one critical justification for prohibiting same-sex marriage. It is no coincidence that the Supreme Court struck down interracial marriage prohibitions in Loving a mere four years after it struck down the disparate penalities for interracial cohabitation in McLaughlin. In the case of interracial marriage prohibitions it seemed that often those prohibitions were intended to prevent interracial sex. I still don't understand whether certain groups today supported sodomy laws to prevent same-sex marriage or whether they support same-sex marriage prohibitions because they believe sodomy is wrong. In a similar fashion I believe that decriminalizing adultery will make it more difficult (but not impossible) to prevent polygamy. I believe, though, that there are also independent reasons to support the criminialization of adultery as well as independent reasons to prohibit polygamy.

But I'd like to know, why, given the history of divorce law and sodomy law, and the court's clever choice to define the issue as a general matter of liberty and to minimize any differences between the virtual, [the legalization of polygamy] isn't a *likely* result?

First let me point out that if polygamy became legal it would not be only the anti SSM groups that could claim to be Cassandras, but also those that argued against interracial marriage. One could also argue that such a result was a consequence of the Religious Freedom Restoration Act that called for accomodating religious practice without a good reason for doing otherwise. Still, regardless of who could take credit for the prophecy, the question remains is it likely. I do not think so. For one thing I think there are compelling independent reasons to prohibit polygamy and the case for it is rather weak. If there weren't compelling reasons to prohibit it then the argument, "But it will lead to polygamy" wouldn't really matter. The response would be "So what?" More importantly, the trend in Western society is away from polygamy not toward it. Same-sex marriage, interracial marriage, and interfaith marriage can all be thought of as natural consequences of the trend to treat people as distinct individuals without regards to certain types of classifications. The remedy in the Hernandez case was nothing new. Read the statute gender neutrally. Polygamy made sense when the male was the only legal individual. Regardless of how many wives he had there wass but one adult male in any family. All families were equal (not that equality was a big goal). With equal rights for women any polygamous household would today have at least three adults with full rights. This presents many complications that had not existed in the past. To allow polygamy would require a complete rewriting of numerous laws (it could be done, but it would be difficult). Allowing same-sex marriage only required laws to be read gender-neutrally which they generally were already.

If people are informed of them up front, they can judge whether the good outweighs the bad

Just by weighing the bad consequences of polygamy, though, one is describing reasons against it and hence state interests that will make it less likely. That, of course, assumes the reasons are more detailed than "It's just wrong."

Ampersand

Typo patrol - I think the middle "t" in "marital rate exception" ought be a "p."

Welcome back!

Galois

Thanks on both counts. You are correct. The judge never discussed marital rates.

Trey

Liberal critics argued that there was no tangible harm to removing sodomy laws from the books. Conservatives countered (perhaps remembering the divorce wars) that lots of tangible harm was predictable, including same-sex marriage.

I'm not so sure this is exactly true on two fronts. First, many liberal critics were in fact openly agreeing that removing sodomy laws from the books it would lead to gay marriage. The difference between the arguments that I saw was who felt that 'gay marriage' was a harm. If you felt it was a harm, then of course striking the law was an inadvisable thing. Of course, if you supported gay marriage, then it was indeed a good outcome from striking the laws. I'm not sure what actual harm (if we put aside gay marriage) can be shown to have come from striking the sodomy laws, either the state-by-state striking of those laws over the last decades or the final demise with the supreme court ruling

Secondly, I'm not sure it can be shown that gay marriage is a natural consequence of the striking sodomy rulings (state or Supreme Court ruling). Though I will be the first to admit (and did) that sodomy laws, even unenforced, were a impediment in many cases to same-sex marriage (or for that matter anti-discrimnation laws, gay adoption, GLBTs holding office in some states, etc, etc) and that the striking of them lifted that impediment. It's why I celebrated it with gusto.

So the difference was, I believe, not that liberal critics felt it wouldn't lead to gay marriage (or more acceptance of gays, etc) and conservatives did, it was who felt that those consequences were good and who thought they were a harm.

I stand firmly that the consequences of striking the sodomy laws over the years in the states and finally in Lawrence have been great goods (marriage equality, social acceptence, anti-discrimination laws and so on)

Siv Volk

"Polygamy made sense when the male was the only legal individual."

I would dispute this. Most of the polyamorous partners I know involve a primary couple, typically with the female having more secondary partners than the male. While I do see how polygamy could have been sex-role enforcing in the past, I would argue that it isn't a necessary component of the arrangement.

Galois

Siv,

You don't dispute me, you misunderstand me. I am not claiming either (a) most polyamorous arrangements today consist of one male or (b) polygamy enforces sex-roles. What I am saying is that in the past when polygamy arrangements consisted of one male and that male was the only full citizen from the family it was easier to accomodate polygamy within the laws of society. Today, however, regardless of what sex the partners in a polygamous are, there are legal complications because each one of them is a full standing legal citizen. (To give just one example, in the event a spouse is incapacitated and unable to make his or her own medical decisions, which spouse has the authority to make them?). It is considerations like these which present obstacles to polygamy today that did not exist in the past.

Compare this with same-sex marriage which makes more sense today than it did in the past because the roles within a marriage are no longer gender defined.

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huge boobs galore -
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just facials -
latin adultery -
little april -
little summer -
met art -
milf seeker -
milton twins -
more gonzo -
my first sex teacher -
my friends hot mom -
my naughty latin maid -
my sex tour -
my sisters hot friend -
naughty allie -
naughty america vip -
naughty bookworms -
naughty drive thru -
naughty julie -
naughty office -
neighbor affair -
orgy sex parties -
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prime cups -
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seduced by a cougar -
she got pimped -
simpson twins -
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teen topanga -
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trixie teen -
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all internal -
american daydreams -
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just facials -
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more gonzo -
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my sisters hot friend -
naughty allie -
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neighbor affair -
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she got pimped -
simpson twins -
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her first lesbian sex -
his first facial -
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