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Valar Qringaomis

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Monday, August 17, 2015

On the Supreme Court on (Gay) Marriage Equality

Why These Four Justices Rejected Marriage Equality - "At the conclusion of his dissent, Chief Justice Roberts offers a backhanded word of congratulations:
"If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not Celebrate the Constitution. It had nothing to do with it"...
"for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening... Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim. One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. ... If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. ... It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage... By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds...
[The decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent... If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims... Most Americans — understandably — will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends"

It’s Time to Legalize Polygamy - "the moral reasoning behind society’s rejection of polygamy remains just as uncomfortable and legally weak as same-sex marriage opposition was until recently. That’s one reason why progressives who reject the case for legal polygamy often don’t really appear to have their hearts in it... Why the opposition, from those who have no interest in preserving “traditional marriage” or forbidding polyamorous relationships? I think the answer has to do with political momentum, with a kind of ad hoc-rejection of polygamy as necessary political concession. And in time, I think it will change... Conventional arguments against polygamy fall apart with even a little examination. Appeals to traditional marriage, and the notion that child rearing is the only legitimate justification of legal marriage, have now, I hope, been exposed and discarded by all progressive people. What’s left is a series of jerry-rigged arguments that reflect no coherent moral vision of what marriage is for, and which frequently function as criticisms of traditional marriage as well... If we’re going to ban marriages because some are sites of sexism and abuse, then we’d have to start with the old fashioned one-husband-and-one-wife model. If polygamy tends to be found within religious traditions that seem alien or regressive to the rest of us, that is a function of the very illegality that should be done away with. Legalize group marriage and you will find its connection with abuse disappears. Another common argument, and another unsatisfying one, is logistical. In this telling, polygamous marriages would strain the infrastructure of our legal systems of marriage, as they are not designed to handle marriage between more than two people. In particular, the claim is frequently made that the division of property upon divorce or death would be too complicated for polygamous marriages. I find this argument eerily reminiscent of similar efforts to dismiss same-sex marriage on practical grounds. (The forms say husband and wife! What do you want us to do, print new forms?) Logistics, it should go without saying, are insufficient reason to deny human beings human rights... This bedrock principle of mutually-informed consent explains exactly why we must permit polygamy and must oppose bestiality and child marriage. Animals are incapable of voicing consent; children are incapable of understanding what it means to consent"
Do animals consent to be slaughtered for food? Didn't women use to be said to be incapable of consent? Can all adults meaningfully consent?

The Volokh Conspiracy - The Slippery Slope to Same-Sex Marriage: - "The California Supreme Court decision striking down California's opposite-sex-only-marriage rule helps illustrate, I think, what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute. Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:
1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."
2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."
3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."
Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage"
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