Nature of "right to marry"

And Also: I have seen little reference to same sex marriage battles in the territories, so this article flagged by Secular Coalition was appreciated.  The article looks to be an AP offering, so the direct link shouldn't concern.

There continues to be amicus briefs added to the Supreme Court website, even without governmental briefs there yet.  Prof. Dorf signed on to two and he discusses his p.o.v. here.  This led someone to raise the "what about incest and polygamy" question, which unlike the professor himself (wise man!), I and others got enmeshed in. My bad really -- as was noted, ultimately, this is a same sex marriage case.  "What about" is a red herring. But, as seen below, there might be a useful bigger lesson to be learned.

The person -- a conservative fixture in comments (he also tries to show the reasonableness of the King plaintiffs' position) -- also tries the procreation argument to directly address the same sex marriage issue. In fact, he alleges it is harder to defend same sex marriage than polygamy and incest.  The signs of desperation are there -- the other side isn't even "credible," I'm making "moral" not legal arguments, arguments are "laughable," etc.  Basically, scorn is mixed with analysis.  I can relate. And, simplification was present too -- such as saying my position is "loving" couples is the test, when obviously love is not required to get married. 

One thing that does come out is that when we try to determine the contour of rights in this country -- here a "right to marry" (the debate dealt with that, not the equal protection prong of the argument; but as Prof. Dorf notes, the two work together in practice -- see, e.g., Loving v. Virginia) -- we need to understand the nature of the right.  So, we have a "freedom of speech," but all verbiage isn't treated the same. Some aren't even protected (e.g., libel, perjury, threats).  Sometimes, not protecting does not make sense given the nature of the right and the system it fits into -- so obscenity to me is not a reasonable exception.  

Still, the nature of the right matters, and it might be different than how it is practiced elsewhere.  The "right to marry" fits the trend here.  Consider the summary of marriage in Griswold v. Connecticut:

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Note the "bilateral loyalty" component. This is not a necessary component to "marriage" obviously -- polygamy is an ancient institution.  But, the right to marry in our system presupposes monogamy. Marriage would be different in various ways -- not in all ways -- if it was not a partnership but a group effort. A significant difference would be the equality of it.  Traditional marriage provided different roles for the sexes, which we now understand as sex discrimination.  But, even there, the 1:1 relationship has a certain equality to it.  Each was responsible for one person. The "patriarchal" character of polygamy was flagged in Reynolds v. U.S.

Same sex marriage does not change the components summarized above. The "responsible procreation" interest argument falls apart, partially since it is only one aspect of marriage, partially since it doesn't even justify the barrier to same sex couples even granting its premise. Polygamy does change the nature of marriage. Now, there are other concerns, such as it often in practice promoting patriarchy and how it is much less practical (partnerships and multi-member organizations are different). Such concerns can meet rational scrutiny. They probably can do more. Also, same sex bans are much more weighed with animus. Still, the heart of it remains that "the right to marry" is monogamy in this country.

Justice Powell in the 1970s worried that treating the right to marry as protected with heightened scrutiny would be problematic:

State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

And, yes, if we look at how the right to marry was discussed in various opinions, "various preconditions" would be in question, especially "homosexuality." The idea that no-fault divorces should be seen as constitutionally required also seems reasonable though this does reflect a change in "traditional marriage." The term has meaning though it should not be used merely to deal with one aspect of that institution.  Marriage before was seen as a more permanent institution, requiring stronger grounds to leave. This partially was seen as a protection for the wife though often it was burdensome to her.  Blood tests seem somewhat easier.

We dealt with bigamy (let's say this means two licenses; one license and some sort of other relationship on the side is a more complex issue*).  So, we are left with the other favorite of "what aboutists" (to use a Stephanie Miller term)  -- incest.  The term is vague -- the Bible has many shades of incest, some which few have a problem accepting.  First cousins is a tricky case -- states split over that one though the states in the lawsuit in front of the Supreme Court overall still treat first cousin marriages better than same sex marriages for purpose of recognition. I think first cousin bans might meet a lower level of review, but will grant strict scrutiny is tricky.

Incest taboos have ancient roots. They are not genetically based because people did not know genetics in ancient times -- though I guess like animal husbandry generally, they might have known something about its results. Genetic concerns do provide perhaps a rational basis for barriers here though a few states allow first cousins to marry once they are no longer procreating.  But, the "coming together" is the real issue here. Marriage is a coming together of people from outside the family. Family already is a special association. Incest would overlap and interfere with it.  This is why, e.g., incest bans often over adopted and foster family members. And, the rights and responsibilities tied to marriage and family are different.

A couple people on that thread question the consent rationale for incest bans, which is a bit presumptuous.  Criminalizing incest to me is probably a bad idea.  I also am not horrified -- it is also not just "icky" to me -- of even the idea of allowing such marriages.  If we play "let's pretend," I think the better move is a broad domestic partnership system that could include siblings and parent/child relationships for various purposes. And, there have been a few cases of uncles marrying nieces and aunts marrying nephews.  But, no, brothers not having the right to obtain licenses does not mean it is arbitrary to require two unrelated men to obtain them.

And, yes, even though tradition and acceptance alone should not factor in, that too is a reason why incest (and polygamy) is different from same sex couples, who are already allowed to do a range of things married couples do.  This includes having sex, raising children and so forth.  It is simply easier to extend things to this one areas. All the same, marriage rights in this country are based on certain criteria.  Race, sex, sexual orientation, financial status, etc. are not among them.  Monogamy etc. is.

I will add a few words here regarding the nature of the right at issue. The challenge in the thread cited that no adequate "legal" argument was provided is ironic given the failure to actually face up with precedents. So, Turner v. Safley was cited by me to show the breadth of marriage, which goes beyond the procreation issue. And, various legal briefs and cases show this too -- the right to procreate, raise children and marry are related but often different rights. They are separately listed in various cases. Plus, when raising children is clearly tied to marriage, the phrasing does not deny the right, e.g., of a couple raising an adopted child. Griswold et. al. also negates procreation as a necessary aspect of marriage, there being a choice not to procreate.  The quote above doesn't even reference children.

Justice Brennan once noted "the formality of marriage primarily signifies a relationship between husband and wife, not between parent and child." Don't think the majority disagreed with him on the point. Incest bans are in place in part because incestual marriages blend what would otherwise be separate.  If the connection is weaker -- first cousins, let's say --- it is less clear that the barrier is appropriate.  This is not to say we cannot imagine an overlap, especially in adopted families. A few movies, e.g., having a guardian falling in love for a ward, which is a bit sketchy when you think about it.  This also again shows how useful it is to mix the equal protection and the substantive rights threads -- sex or sexual discrimination is just easier to find problematic.  Still, it's instructive to consider this matter.

But, darn if I'm sort of tired of people bringing it up.

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* I do believe that there should be deemed a constitutional right to have three-somes or allow "open marriages."  Also, if people want to live in polygamous relationships, that is fine.  If Jack, Janet and Chrissy actually were having sex, I don't think their cohabitation should have been deemed criminal.  This all might show that polygamy in some form can be imagined, but that still doesn't make it as firmly protected as monogamy. And, adultery laws being ill advised or wrong still do not make them as bad as other barriers, including same sex marriages.

Finally, if one spouse is legally designated and two others are in effect privately present, that is okay. This last bit is more complicated, yes, but it still provides only one legal spouse for legal purposes. And, trying to determine if a person of the opposite sex that lives in a married couple's household is "too intimate" or something seems like a horrible line drawing problem and invasion of privacy.

This includes if the people involved have some sort of religious or other ceremony or something to declare some special union between them, but do not put themselves out as legally married. This touches upon the "Sister Wives" case and the Utah law still in litigation that criminalizes "purporting" to be married even this private fashion to more than one person.  The government form of marriage is likewise equal, but if a man and a woman want to privately have a less equal arraignment, that's their choice.