Gay Marriage Upheld by USSC in Close Ruling

[Martinus]

Well, I think Scalia is right on some of his technical points - it's just that it doesn't matter and the SCOTUS has always been making political choices.

Alexis de Toqueville observed that already in the 19th century:

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body.

[crazy canuck]

And what is it that you think Scalia was right about?

[Martinus]

And what is it that you think Scalia was right about?

Well, that the principle adopted by the majority in the gay marriage ruling quite clearly can be used to allow polygamy.

[crazy canuck]

And what is it that you think Scalia was right about?

Well, that the principle adopted by the majority in the gay marriage ruling quite clearly can be used to allow polygamy.

The difficulty with that argument is that it is clearly discriminatory it restrict one adult from marrying one other adult based on gender.  What is the protected status which is offended by prohibiting one adult to marry many other adults?  Its not race, age, sexual orientation or gender.  The law applies to all people equally.

[Martinus]

Ok. How about incest then?

[crazy canuck]

Ok. How about incest then?

At least there you have the ground of family status to argue as the discriminatory ground.  But the problem is that there is no public policy benefit to prohibiting adults of the same gender from marrying.  There is a very good public policy argument to make that incestual relationships have significant power imbalances.  The only situation that wouldn't occur is the very remote scenario you often raise of the long lost family members who have sex not knowing they are related.  But that situation is already covered in the existing law - ie lack of mens rea.

[garbon]

There is a very good public policy argument to make that incestual relationships have significant power imbalances.

But we have this discussion all the time. Why only in this instance do we suddenly care about power imbalances? There are lots of power imbalances inherent in many to most relationships and we don't prohibit those.

[crazy canuck]

There is a very good public policy argument to make that incestual relationships have significant power imbalances.

But we have this discussion all the time. Why only in this instance do we suddenly care about power imbalances? There are lots of power imbalances inherent in many to most relationships and we don't prohibit those.

Yes, and I never quite understand this argument whenever it is raised.  The law does address lots of other power imbalances as well. 

[Malthus]

There is a very good public policy argument to make that incestual relationships have significant power imbalances.

But we have this discussion all the time. Why only in this instance do we suddenly care about power imbalances? There are lots of power imbalances inherent in many to most relationships and we don't prohibit those.

Yes, and I never quite understand this argument whenever it is raised.  The law does address lots of other power imbalances as well.

Way I think of it is this: for incest, by far the more common examples of it are exploitive in a bad way. It is possible for it to be non-exploitive, but that usually requires some really convoluted fact situation (say a brother and a sister were seperated at birth and ...  that sort of thing). Like statutory rape, it's a case where the presumption of exploitation is pretty strong, but obviously there are always going to be exceptions. The issue is whether public policy favours a hard and fast rule, or would allow a court leeway to make those exceptions - I'm usually in favour of allowing courts discretion in cases like this.

[crazy canuck]

There is a very good public policy argument to make that incestual relationships have significant power imbalances.

But we have this discussion all the time. Why only in this instance do we suddenly care about power imbalances? There are lots of power imbalances inherent in many to most relationships and we don't prohibit those.

Yes, and I never quite understand this argument whenever it is raised.  The law does address lots of other power imbalances as well.

Way I think of it is this: for incest, by far the more common examples of it are exploitive in a bad way. It is possible for it to be non-exploitive, but that usually requires some really convoluted fact situation (say a brother and a sister were seperated at birth and ...  that sort of thing). Like statutory rape, it's a case where the presumption of exploitation is pretty strong, but obviously there are always going to be exceptions. The issue is whether public policy favours a hard and fast rule, or would allow a court leeway to make those exceptions - I'm usually in favour of allowing courts discretion in cases like this.

I generally agree.  The Court is allowed discretion.  Where there is no knowledge of the family relationship then the issue of mens rea arises.  Where there is knowledge of the relationship I don't know how one avoids the power imbalance/exploitation problem.

But we are getting far afield from Marti's original claim that Scalia was right that same sex marriage is "clearly" the same as incest and polygamy.

[garbon]

Where there is knowledge of the relationship I don't know how one avoids the power imbalance/exploitation problem.

I'd question the same on much of Western history where the man was the breadwinner, property owern, man of his castle, etc.

[garbon]

There is a very good public policy argument to make that incestual relationships have significant power imbalances.

But we have this discussion all the time. Why only in this instance do we suddenly care about power imbalances? There are lots of power imbalances inherent in many to most relationships and we don't prohibit those.

Yes, and I never quite understand this argument whenever it is raised.  The law does address lots of other power imbalances as well.

Way I think of it is this: for incest, by far the more common examples of it are exploitive in a bad way. It is possible for it to be non-exploitive, but that usually requires some really convoluted fact situation (say a brother and a sister were seperated at birth and ...  that sort of thing). Like statutory rape, it's a case where the presumption of exploitation is pretty strong, but obviously there are always going to be exceptions. The issue is whether public policy favours a hard and fast rule, or would allow a court leeway to make those exceptions - I'm usually in favour of allowing courts discretion in cases like this.

To me the issue at hand is the exploitation, not the relationship on its own. I suppose it is easier to spot the relationship than watch for exploitation...

[Martinus]

Mark my words, we will see polygamy and incest legalised in our lifetimes.

[Syt]

What's your obsession with polygamy and incest, anyways?

[Berkut]

Secret Mormon?