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Friday, March 29, 2013

Gay Marriage

First I would like to describe what I think the possibilities are and some of the consequences of some of the approaches that the court might take.
1. To “simply say that marriage is a matter for the states” is not possible because it is not “simple”.  Suppose a gay couple, married in another state, now lives in a state which does not recognize gay marriage.  That state is obligated by Article IV section 1 of the U S Constitution (Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.) to recognize the couple’s marriage.  However the state does not allow its own gay couples to get married so it is now in trouble with the 14th Amendment’s “equal protection of the laws” clause.  So the Court may allow California’s prop 8 to stand, but if they do then they ought to do more.
2. The Defense of Marriage Act (DOMA) was, in part, to respond to 1. and it excludes the Federal Government from obligations that might follow from different laws about marriage in the states.  So, instead of SS giving marital rights to same sex couples in states that have gay marriage and not giving marital rights to couples from states that do not, the SS just ignores any rights that such couples might claim. 
3.  In one sense, the simplest thing for the Court to do would be to declare that “the right to marry is fundamental” and the 14th amendment (… No State shall … deny to any person within its jurisdiction the equal protection of the laws.  …) prohibits any restrictions of the rights of persons to marry.  This would include disallowing DOMA and removing from states the right to define marriage.  There are technical difficulties with this approach.  One would be about people being related to each other.  That is probably easy.  A second would be that if the Court declares, as some current commercials advocate, that a person should be able to marry anyone that they love, then the door is open to polygamy (and polyandry).  The court will not extend the rule to polygamy.  If the court went this way they would probably handle this exclusion (polygamy) issue by saying that “everybody knows that marriage is between two people”.  “Everybody knows” is not generally regarded as a powerful legal argument and in particular the Court would have just rejected the “everybody knows that marriage is between a man and a woman” argument.  There would be a logical coherence objection for the court here.
Another objection is that it would be a very far reaching decision.  The judges seem to be looking for a less profound resolution of the two cases.
4.  One last thing.  The “logical coherence” problem in the last point is a problem for a court, but it is not a problem for a legislature which is not under the same logical restraints as a court.

1 comment:

  1. I guess I'll second a comment made recently by Tom.

    Marriage is a varied historical and cultural and religious/sacramental tradition. But that creates a problem because that means we come to it with pre-conceived notions of what it means. And worse, our various pre-conceived notions don't cohere. (Wayne nicely points out the confusion related to colloquialisms like "Everybody knows marriage is between a man and a woman", "Everybody knows marriage is between two people".)

    So let's divorce from the idea of marriage altogether.

    Start over with Congress creating a structure called a legal union. The *law* would define such unions, not history or culture or religious/sacramental traditions (although surely those traditions would inform the opinions of those writing the law).

    Its bedrock principle would be that a consenting adult can unite with any other consenting adult for whatever reason (love, money, friendship, etc). The legal union would be equipped with the usual automatic advantages/obligations of marriage (Social Security, end-of-life decision-making, shared responsibility for children, etc -- although maybe you'd allow couples to opt out of some of these if they so choose). There would be room for a couple to opt for additional legal aspects of their union, such as explicitly stating that sexual fidelity is required, certain restrictions on co-mingling of finances, etc. In other words, there'd be some pre-fabricated "pre-nup" options, and the couple could put the options together the way that best suits them.

    The main legal restriction would be that no person could unite with a direct lineal descendant. One reason for this proscription is that it could invite questions of whether coercion or manipulation was involved on some level, thus compromising the "consent" provision. Another reason for this proscription is that without it, a parent could unite with a child to avoid inheritance taxes.

    (And if someone wants to have Federally recognized polygamous unions, then they can propose the bill and see how far they get.)

    Anyway, assuming this "divorce from marriage" proposal goes over really well with the Yellowarmadillos crowd, then I smell a White House petition coming!