Re: More Kentucky clerks say they won’t give same-sex couples marriage licenses
You keep bringing this up, but what's missing is why anyone should care if bans on polygamy are overturned.
Not being a statist, I don't presume to tell the majority of voters in other states what their laws about that subject must be. The issue is not what I or someone else thinks about another state's laws on polygamy, but the right of people in that state to prohibit it by law.
I haven't studied the issue at all so can't make the argument personally, but if there are objective reasons to maintain the bans, it seems nearly certain that the court will allow the bans to remain in place.
Well, the Chief Justice
has studied the issue, and he does not share your certainty. In his dissent in Obergefell, he discussed how the majority's arguments apply with at least as much force to the exclusion of more than two partners in state marriage laws.
The problem with SSM is the opponents were unable to articulate any reason other than animus towards homosexuals to keep the bans in place.
No, that was NOT the problem. You are using the language of rational basis review. That is what Kennedy relied on in Romer v. Evans and later in Lawrence v. Texas. Justice Scalia wryly pointed out in his dissent in Lawrence that Kennedy sprinkled the language of fundamental rights throughout his decision, but while overruling Bowers v. Hardwick was careful to leave untouched Bowers' central holding that there was no fundamental right to homosexual sodomy. In 2003, Kennedy was still laying the foundation for the substantive due process pile that is Obergefell.
If those opposed to polygamy can do no better than those opposed to SSM, they deserve to lose the day and the bans lifted. Same with bans on incestuous marriage.
See above. After Obergefell, it is very hard to see how rational basis review--in which a law will pass muster unless the government that made it can't articulate some reason for it other than mere animus--would apply to state law restrictions on plural and incestuous marriages. Until a few months ago, whenever the Court had discussed marriage as a fundamental right to marriage, it had never even implied that that right included anything but marriage between one man and one woman. But now that it has extended that fundamental right to include same-sex marriages, it would be arbitrary not to extend it to include other non-traditional forms of marriage also. If marriage is a fundamental right,
period, that right must be enjoyed by
all would-be marriage partners.
It's really that simple. The Supreme Court repeatedly declared that marriage is a fundamental right. There should be compelling reasons to deny that RIGHT to individuals. And unless someone can demonstrate such reasons, why in the world would anyone lose even a minute of sleep worrying about the bans being lifted.
Most things seem simple to people who don't understand how they work. Now, for some reason, you switch from the language of rational basis review to the language of fundamental rights and strict scrutiny--"compelling reasons." First you said the problem with those who wanted to exclude same-sex couples from marriage was that they could not articulate any reason for doing that, suggesting that the laws were inspired by nothing but animus toward homosexuals. Then you said that if people who wanted to keep polygamy and incest illegal could not do the same, those laws should not survive either. All that is a paraphrasing of ordinary rational basis review, and by using it you are suggesting that laws against all these non-traditional forms of marriage are the product of nothing more than irrational animosity toward disfavored minority groups.
But now you reverse course. You say that the fundamental right to marriage must also extend to those who want to enter into plural and incestuous marriages, forcing those laws to survive strict scrutiny. I think that is closer to the fact after Obergefell, and your eager endorsement of it shows you share Anthony Kennedy's contempt for the principle of democratic self-rule America is founded on. Suddenly all marriage law--and apparently family law in general--is to be federalized, and to hell with the fact most Americans in every state strongly oppose both incest and polygamy, and have from the very beginnings of this country. You and the overlords know better how their serfs should live than they do, and they will do as they are told and like it.
Good luck trying to cram that down the throats of free people. Let the Supreme Court try something like that one day, and it will get a very rude reminder of just how weak it is in a flat-out fight.
