replying to this a little out of order because I want the meat first and the pedantry later. Also, I’m stating again that I think any consenting adult should be able to marry any other consenting adult. Polygamist, gay, or otherwise (or both!)
[quote]thunderbolt23 wrote:
as such, I am asking gay marriage advocates to put on fictional judicial robes - and not a legislature’s - and tell me, as a matter of right under the Equal Protection clause, why gay marriage, what a court should tell a polygamist who has sued for a marriage right under the Equal Protection clause.[/quote]
I am addressing this from the standpoint of the Iowa ruling only, simply because that was the start of this thread. Vermont will have to wait because gay marriage right was a legislation issue there, and not judicial.
Any reference I’m making to the ruling is from this link: http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf
The question is whether allowing same-sex marriage leads to allowing polygamy, so we have to look at why the Iowa marriage language was under-inclusive, and try to stretch that to polygamy.
According to the Iowa ruling, equal protection stated another way is that “all persons similarly situated should be treated alike.”
Our main debate in this thread is based precisely on whether “similarly situated” is the case here. I’m not rehashing this, because the Iowa SC found that same-sex couples are similarly situated enough to grant equal protection.
For this ruling to lead to polygamist marriage, polygamists would also need to be found to be similarly situated. As the Iowa SC states, “This requirement of equal protection ‘that the law must treat all similarly situated people the same’ has generated a narrow threshold test. Under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their
different treatment under a statute is permitted under the equal protection clause.”
Polygamists are similarly situated in that they are in a committed, loving relationship, however I believe they are not similarly situated in status given that one party seeking to marry is already married. In monogamous marriage, all parties are seeking to enter a marriage status, as opposed to one party already being in that status. In my opinion, polygamy already fails the similar situation threshold here, as this is a significant point. Furthermore, “similarly situated” requires classification of groups to compare. In the same-sex marriage decision, the classification is fairly obvious - homosexual and heterosexual. The classification is less distinct with regards to polygamists, because homosexuality and heterosexuality are a matter of personal identity, but polygamy is a state of relationship rather than the inherent identity of a citizen. Is the single individual looking to enter a plural marriage a polygamist before they marry? Is a polygamist who has divorced still a polygamist? I would argue the answer to both is, “No.” For polygamy to be allowed via EP, polygamists must bear a legal classification that is roundly denied entry into marriage without plausible reason.
Another basis for the reversal of the same-sex ban was that while the County claims “one man and one woman” does not seek to deny homosexuals the right to marriage - because a lesbian has the right to enter into marriage with a man etc - the Court found that homosexuality is a matter of personal identity and “one man and one woman” specifically puts marriage out of the reach of GLBT solely based on sexual orientation. Reason being, a homosexual can only gain marriage rights by denial of the very trait that defines their legal classification. With one party in a plural marriage already being married, it is hard to point out where the current law is denying rights based on classification alone, as one part to the polygamy has already taken advantage of their right.
I think that polygamy fails the “similarly situated” test, and also fails to be a classification which the law is apparent in targeting and denying rights to.
Again, I think that consenting adults should be able to do what they like, but it is wrong to state that allowing gays to marry immediately legitimizes claims by any and all other alternative groups.
===============================================================
Now, on to regularly scheduled internet snippiness:
yes, that is a slippery slope.
Wrong. A slippery slope is always fallacious. If you support the causation, then your argument is no longer a slippery slope. As you said earlier, “I am precisely using a slippery slope argument here,” which I took as an admission of purposefully lacking a connective argument. If that isn’t what you meant, that’s fine, it just wasn’t a slippery slope then. However…*
[quote]Here, that has been done over and over and over: the principle that judicially establishes gay marriage - that society must afford marriage to validate a gay individual’s relationship - is a principle that applies to other non-traditional relationships…like polygamy.
[/quote]
*…I disagree that you’ve done anything to link the arguments against polygamy to the arguments against same-sex marriage. All you’ve done is lump them all together as alternatives which aren’t the societal mirror image of hetero-marriage. That isn’t enough for me, and that wasn’t enough for the Iowa SC. You’ve never once stated that "the decisions allowing gay marriage now allow for polygamy “because {x,y,z}”
With no “because {x,y,z}”, you fail to support the so-called inevitabilities, and you are using the full on slippery slope fallacy.
[quote]Exactly wrong. Courts do not make such evaluations on factual bases - courts do not “individually address” which relationships are “better” or “worse”. They decide the nature of rights as a constitutional matter on legal principles.
[/quote]
The courts do individually address the case at hand, without offering opinion on any other matter. For example, the same-sex marriage opinion makes no mention of any other marriage alternatives. I never once said, or meant to imply, that the courts offered any single opinion that individually addressed each alternatives, I meant that the courts addressed each alternative on its own constitutional merits, one case at a time without regard to others “on down the slope”
Do yourself a favor; read the opinion. There is a whole section on factual bases.
I’ve jumped through your hoops, so now jump through mine. Within the constructs of the Iowa ruling (as that is the original purpose of this thread) what facet allowing same-sex marriage opens the proverbial barn door? And, for the love of God, someone please explain where this nonsense about single people achieving marriage rights comes from.
[EDIT: some spelling, and added “without plausible reason” to “…denied entry into marriage…”]