Brian,
Well, why not?
If you must, ignore it.
What about the group thing?
Lumpy:
Glad to see you’ve taken this position on strict construction of the meaning of the Consitution. Now, what do you thing about 9 unelected persons sitting down and deciding to change the plain meaning of the Consitution to fit their beliefs at that time?
Care to weigh on on Roe v. Wade?
On the topic of a gay marriage leading to incest or group marriage:
The analogy being made is not between gay marriage and incest. The reasoning is also not that the behavior of gay marriage will lead to the behavior of incest.
The problem is in the reasoning being used to justify a change in the interpretation of the law to allow – or, more especially, to require – gay marriage.
The reasoning is that it is per se discrimination to decide that sex as a characteristic is a requirement of marriage – specifically, that the parties involved be of different sexes. To do this, it requires defining marriage as some sort of "fundamental right, " rather than what it is, which is a favorable bunch of contractual rights bestowed on two people.
If marriage is a fundamental right, then it becomes a problem of delineating just precisely how you are allowed to discriminate. If the standard is that two adults in a relationship can have the right to marry, what makes limiting the number to two any more arbitrary and capricious than limiting marriage unions between those of the opposite sex?
Remember, our legal system is based on analogizing to precedents. If the precedent is established that the government cannot restrict marriage to those between two people of different sexes because marriage is a fundamental right and the government cannot disciminate against adults w/r/t fundamental rights on an arbitrary and capricious basis, how would one justify discriminating based upon the number of people involved? How would one justify discriminating against two adults who were related but wanted to be married?
That is the problem – one of analysis and justification, not one of one behavior leading to the other.
Boston Barrister,
Wow, thank you! Much more eliquently put than I could have ever done.
But that also brings up another point.
How is marriage a right?
It only appears to be a right when it is religious, since you have freedom of religion and it can be a religious practice.
Otherwise I don’t see it as being a “right”.
Or am I way off, Boston Barrister?
I don’t think it’s a right, but that’s where the battle is being fought right now – between those who want it to become a right and those who do not.
BTW, the fight also isn’t, at its essence, about religious marriage. It’s about civil marriage. However, the religious freedom (1st Amendment) to which you refer would most likely prohibit religions from being forced to recognize same-sex civil marriages.
There’s also another argument about discrimination, which is another whole post entirely. Suffice it to say that sexual orientation is not a Constitutionally protected category – nor is it a national statutorily protected category.
BB,
As I understand it, since hate crime legislation can be used to protect gays, they do qualify as a “group” in the sense of being discriminated against.
Homosexual relationships are–by and large–not illegal. This sets them apart from other bizarre couplings people can imagine, and make marriage a legitimate question to apply to gay partnerships.
Sex with more than one person is legal, but the marriage contract is between two people. Aren’t there a subset of legal contracts that apply to mutual exchanges between two people and are thus a priori between two people? Why wouldn’t marriage qualify similarly?
Well I believe the best idea would be to allow everyone heterosexual, or homo sexual share civil unions with the same benefits curretnly as marriage. Then when those who “marry” under a certain religion can call it marriage and what that solves is it lets everyone have the government benefits of the union, but still gives marriage to those in religions.
Well I believe the best idea would be to allow everyone heterosexual, or homo sexual share civil unions with the same benefits curretnly as marriage. Then when those who “marry” under a certain religion can call it marriage and what that solves is it lets everyone have the government benefits of the union, but still gives marriage to those in religions.
Brian –
Actually, it’s a technical legal distinction. The fact that crimes motivated by animus toward homosexuals are subject to stiffer penalties does not imply that homosexuals are protected from discrimination under federal law. Two totally separate systems.
However, certain states do specifically delineate sexual orientation as a protected class under state anti-discrimination statutes – however, these are not as strong as federal statutory protection (which sex discrimination receives under the Civil Rights Act) or racial discrimination against blacks (Constitutional protection).
Also – homosexual relationships aren’t illegal anywhere – and actually never have been – only homosexual conduct was (once again, technical legal distinction). However, it seems that under recent Supreme Court jurisprudence state laws prohibiting homosexual conduct are unconstitutional (homosexual conduct has never been a federal crime to the best of my knowledge).
As to your final question, you can always limit your own contract to the number of people you want involved. However, this is a non-sequiter for two reasons. First, the parties who would want to form a polygamous, polyandrous, or group marriage would not want to limit their contract to two people. Secondly, if the “rights” version holds, then contractual interpretation would not hold – if marriage is a fundamental right, then the government needs to demonstrate a compelling interest (very strict legal standard) to limit that right. There is nothing logically to make a limit on the number of participants in a marriage any less arbitrary and capricious than a limit on the sex of the participants if marriage is defined as a fundamental individual right.
Basically, the argument is that it is the right of an adult person to marry anyone he or she pleases, and governmental attempts to impose limits on that choice involve an interference with that right. It is difficult to see what limits could be imposed on any sort of marriage between adults were that to be the underlying rationale.
BB,
As I understand it, since hate crime legislation can be used to protect gays, they do qualify as a “group” in the sense of being discriminated against.
Homosexual relationships are–by and large–not illegal. This sets them apart from other bizarre couplings people can imagine, and make marriage a legitimate question to apply to gay partnerships.
Sex with more than one person is legal, but the marriage contract is between two people. Aren’t there a subset of legal contracts that apply to mutual exchanges between two people and are thus a priori between two people? Why wouldn’t marriage qualify similarly?
BB,
It seems that for the time being I’m over my head. I don’t have any expertise with the law to discuss these issues with you at present.
However, I think our nation would be able to institute marriage between two people of the same sex, without granting the same privelege to ANY couples. Once the states do this, then “full faith and credit” may apply and this is when it becomes a question of federal “rights,” correct?