Judge Rules for Polygamists in Sister Wives Case

And he was right to do so.


Last December, U.S. District Judge Clark Waddoups struck down a central part of the Utah law banning polygamy. Yesterday he issued the rest of his ruling, dealing not with the statute itself but with the husband and wives at the center of the case—Kody, Meri, Janelle, Christine, and Robyn Brown, stars of the reality show Sister Wives. Nate Carlisle of The Salt Lake Tribune reports:

One man, 9 women, 10 votes.

Waddoups in December struck the section of Utah's bigamy statute that can be applied when someone "cohabits with another person" to whom they are not legally married. Utah law made such a union a felony punishable by up to five years in prison. Waddoups said the ban violated the First and 14th amendments to the Constitution.

Waddoups let stand the portion of the statute that prevents someone from having more than one active marriage license.

In the final portion of his ruling Wednesday, Waddoups found the Utah County Attorney Jeff Buhman violated the Browns' constitutional rights when he oversaw a 2010 investigation into whether the Brown family was committing bigamy. At the time the Browns lived in Lehi. They have since moved to Nevada. Buhman eventually decided not to file criminal charges, but Waddoups said the investigation stifled the Browns' rights to free speech, religion and equal protection.

Waddoups ordered Utah to pay the Browns' attorney fees as a result of that finding.

Utah's attorney general says he plans to appeal the case. If he does, I hope he loses again. As I wrote when Waddoups' December decision came down:

It's the story/of a man named Kody…

The case is drenched in the politics of polygamy, but in one important way it isn't about polygamy at all. The Browns all live together, but only one of the wives has a marriage license. To the extent that their family departs from American marital norms, it is a private arrangement unrecognized by the state. The Browns' household is more like the informal and contractual gay unions that have existed for decades than the fully recognized same-sex marriages that many states are beginning to allow today.

And that's all that is now legal. Previously, Utah considered a person guilty of bigamy if, "knowing he [or she] has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." It is the final part of that restriction—the bit about cohabitation—that comes into play here. If a dozen roommates in San Francisco decide to set up a polymorphous polyamorous partnership, the law would have nothing to say about the matter. (The building code enforcers might object, I suppose. But that's a separate issue.) Utah's rules are different, and they are different because of a long legacy of prejudice and religiously targeted persecution. Pointing to this persecution and to a history of selective enforcement, Judge Clark Waddoups ruled that the portion of the statute prohibiting cohabitation violates the First Amendment's guarantee of religious liberty. Pointing to other matters of law, such as the fact that Utah no longer has common-law marriages, he ruled that the ban on "purport[ing] to marry another person" should apply only to someone attempting or pretending to acquire more than one marriage license. That puts households like the Browns' in the clear.

So Utah is not about to start recognizing group marriages. It's just going to stop bringing criminal charges against people who have done nothing more than establish their own unlicensed big-love homes.

To read the rest of that article—including my argument that this decriminalization will make it easier, not harder, to act against abusive households—go here.

NEXT: Former LAPD Deputy Chief Explains the Militarization of American Policing

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  1. Fucking FREE association – how does it work?

      1. Yepper

    1. Just fine so long as you have a state-issued license.

      1. Actually, that is backwards. He is fine without the kicense. If he had two licenses, he would be in jail.

  2. What’s next? Marrying your sister who’s a goat???

    1. A quick look around the TEAM RED sphere indicates that’s not too far from what they’re saying.

      1. Scalia said in the 1980s that this all would end in legalized polygamy. He was called an alarmist and a hack. More people than him said the same thing when the courts forced states to sanctioned gay marriage. They were also called alarmists. And here we are.

        As far as marrying a goat, I doubt that will happen. But neither you nor I get a vote in that. If the judges decide you have a right to marry your sister goat, then you do. If they don’t, then you won’t.

        So what do judges think about goat fucking?

        1. Scalia said in the 1980s that this all would end in legalized polygamy. He was called an alarmist and a hack.

          Wait,wat? Why? Ohhhhh polygamy is bad and that was a warning or something.

        2. The problem is that the people who said “omg you’re so hysterical for saying polygamy will be legalized” will simply ignore their previous remarks and nobody will call them on it, except a few cranky reactionaries. There will be no political consequences for misleading the public on this.

          So we know what to think about current reassurances about the results of progressive policies. They will feel free to shrug it all off when their policies do, in fact, lead to the results they disavowed.

          1. Back around 1970, opponents of the Equal Rights Amendment warned that it if were ratified, it would become unconstitutional to ban same-sex marriages. The proponents of ERA pooh-poohed that and accused the opponents of throwing out a hysterical slipper-slope argument. I guess the proponents were right: ratification of ERA *didn’t* bring about same-sex marriage, because it was going to happen anyway.

          2. That’s the way the left works. Conservatives have been correct more often than not predicting the consequences of particular reforms. Only by the time the consequences materialize the left has legitimized those as well.

        3. The legal argument for same-sex marriage is just as strong for polygamy. It’s inevitable that the polygamists will get legal recognition at some point.

          I don’t care, myself, but when the gay marriage advocates were saying “No way that could happen” it was total nonsense.

          1. It’s inevitable that the polygamists will get legal recognition at some point.

            Not in our lifetimes it won’t.

            Why? Islam. Or more specifically, immigration law and Islam. The American public might be hunky dory with polygamy as a reality tv show where Cody gets pecked to death by four clucking hens; however, when Abu Mohammed Muhammad ibn Muhammed applies for a marriage visa to bring over his 3rd wife and her children from a previous marriage from [insert violent Middle-Eastern/South Asian terrorist breeding ground], the terror moms are going to lose their shit.

            1. The terror moms aren’t going to lose their shit; they’re simply going to lose.

              Abu Mohammed MuHammad ibn Muhammed is the precise reason why polygamists WILL prevail. You bigot.

              1. Who said I was cheering for the terror moms?

                1. If the choice is between the terror moms and Abu Mohammed Muhammad ibn Muhammed, I’m rooting for the terror moms.

                  But I largely agree with faceless. Ploygamy will never win with a Mormon guy in Utah with a gaggle of sister wives. Polygamy will win with Abu Mohammed Muhammad ibn Muhammed because if not, you’re a bigoted islamophobe. Alternatively, polygamy will win by a post-modern feminist with three provider pussies because if not WAR ON WIMMINZ.

                  1. What Sudden said. Polygamy will be a right granted to preferred minorities.

          2. The irony is that a same-sex marriage advocate ought to support legalisation of polygamy, if their support for SSM was actually rooted in a fundamental belief in universal rights or rather than merely an embrace of TEH GHEY.

            I’ve beenb disappointed to find that most of the SSM supporters I speak with think polygamy is TEH EVUL and should never be considered a legal arrangement because it’s icky and taboo (there is remarkably little self-awareness among this particular sect of progthink).

            1. Indeed. The seamless switch from “principled defender of equality” to “special pleader who’s got what he wants, so screw anyone else” is fascinating to observe.

            2. That is just it. For SSM advocates it was and continues to be about power. If you wanted SSM, they should have fought it out and got it state by state and left the Constitution out of it. Then it would have always been a political decision about that issue instead of a nasty precedent that will be used as a club in future fights. They wanted the club not just the result.

          3. The 8 year old maiden bride is next, consenting or not, least you impose your bias against the obvious superior religious practice.

            When you believes in nothing, you’ll be able to believe in anything. (And this is coming from an avowed atheist, I just happened to be a non-religious conservative).

      2. The Goat, or Who is Sylvia?

      3. So they’re like my utterly liberal law professor that said the legal arguments and reasoning between all of these decisions was essentially similar.

    2. Go on….

    3. Why shouldn’t people be allowed to marry Stevie Nicks?

      1. Or Eddie Vedder?

    4. Goats can’t enter contracts

      1. “”””Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. “””

        All you have to do is get a judge to rule that goats are persons born or naturalized.

        1. There is precedent now that you mention it, Hillary is a citizen isn’t she?

          1. Some may say its crazy for a judge to rule that a goat is a person but judges have ruled that

            – Writing a article against war is the same as falsely yelling fire in a crowded theater

            – That growing food and your own property for your own use is Interstate Commerce

            1. I get your point, but you’re arguing from the flip side of John’s complaint, that good outcomes don’t justify bad means. At the same time, the possibility of using bad means does not justify outlawing the good outcome.

  3. It is almost as if Scalia was right when he said striking down the sodomy laws would eventually lead to striking down the polygamy laws.

    For better or for worse the states and the voters no longer determine what is marriage. What is a legal marriage and not a legal marriage is the exclusive purview of the courts, end of discussion. The question is how many judges like polygamists as much as they like gays. If the answer is “more than one”, then polygamy is going to become a Constitutional right. If not, then the polygamists will have to wait.

    What won’t be happening is any kind of political debate or public discussion of the issue. It will be determined by elite, judicial fashionable opinion.

    1. Oh Noes! More people being able to do what they want that harms absolutely nobody! No public debate on whose freedoms we should restrict arbitrarily and contra to established Constitutional rights! Judicial Activision!

      1. Please do not feed the trolls.

        1. Should people be allowed to marry driverless cars? That’s the real question here.

          1. Does the car have a steering wheel?

          2. Only if they prove they’re willing to consummate the marriage.

          3. Driverless cars? Yes. Buses? No. Too many folks would get pregnant.

          4. Yes–but not if the car is their mother. That’d just be creepy.

          5. It’s funny because it’s the same logic. This unrelated thing over here will lead to Government! over there.

            There is literally no political position a libertarian can take that is not subject to this kind of speculative nonsense by John.

      2. No it means that the voters have no control over what licences the State issues becasue Judges rule.

        If you want freedom then don’t get a State licence

      3. Yeah hugh, because rule by unelected judges and defining freedoms by judicial consensus is just so great.

        We all know judges are going to forever rule for our freedom. They will never rule the other way. And giving our Democratic rights and ability to have a say on things will never end badly. Our judicial overlords will always give us our pony.

        You really are the picture of a useful idiot.

      4. Let’s pause a moment and consider the cluster fuck that is our current family court system. Now lets imagine what that’ll look like when we extend state sanctioned status to ever more complex groups. Yeah, fun stuff.

        I’m fine with people organizing their lives in any manner they see fit. I have a huge problem when we start handing out licenses and the “benefits” that go with that license.

        Marriage should be a private contract devoid of any state status. period.

        Having said that, the judge in this case obviously ruled appropriately.

    2. I’m fine with this as it will eventually render the state sanctioned marriage as useless. I just hope that the the discrimination lawsuits that will follow and further erode our basic right of association will be thrown out. But they won’t.

      1. It will nothing of the sort. What it will do is further establish the idea that the nature of our government is determined by whatever our elites think it is.

        1. I don’t think this by and large will end up netting a positive in the freedom department. They really don’t want to give up that line in the tax code do they?

    3. I’ve got no problem with polygamy… or whatever the hell people want to do with their lives.

      As far as those groups getting special rights – that’s another thing.

      1. You mean like corporate personhood?

        1. Tell me, Hugh, what special rights does legal recognition of associations like corporations and partnerships create?

          1. The ability to be not liable for the results of your own actions because you can claim they were really the actions of an imaginary “person” the government claims actually exists?

      2. This has nothing to do with how you live your lives. State sanctioned marriage doesn’t do that. You can always shack up. What state sanctioned marriage does is allow you to use the power of the state to force other people to recognize your association.

        Libertarians are so profoundly naive they actually think this is going to cause the state to get out of marriage. No, what is going to happen is marriage will just become another weapon the state will use to force compliance by people they don’t like. And there won’t be any way to stop it in the political process since it will be done by judicial fiat. There is such a thing as getting a good result while setting a terrible precedent. There is more to life than getting your pony.

        1. Keep beating those libertarian straw men Red Tony. You’re on a roll today.

          1. I think we all know that every single one of your posts consists of links to the Daily mail and various versions of you yelling STRAWMAN an RED TONY.

            So why don’t you just stick to links? Yes STRAWMAN RED TONY. You don’t need to repeat it. We can just assume it now.

            1. “Libertarians are so profoundly naive they actually think this is going to cause the state to get out of marriage.”

              No. One. Said. That. Dip. Shit. Red. Tony.

            2. I see libertarians argue that the best solution would be to get the state out of marriage, but I don’t see anyone arguing that it will happen anytime soon.

              Why don’t you try arguing against things that libertarians actually say, instead of the straw men in your head?

              1. With the thoughts he’d be thinkin’
                He could be another Lincoln
                If he only…

        2. You can always shack up.

          Except, they were being investigated for being shacked up WITHOUT a government license.

          1. Yep. John’s skipping steps. This ruling is 100% dead on, because criminalizing cohabitation is what was at issue.

    4. God forbid Constitutional rights be determined by non-politicians…

      1. Now, if only our judges saw their role as being limited to the resolution of disputes and the application of laws as written, rather than regarding themselves as having a brief for rewriting and creating new laws from the bench. . . .

    5. Fine with me. We don’t put other basic rights up for popular vote.

      Yeah, yeah, yeah…the normal nonsense about marriage, should be completely privatized, not in Constitution, blah, blah, blah. I don’t take issue with judges ruling that people shouldn’t be second class citizens by popular decree.

      1. But cake makers can be second class citizens by judicial decree

        1. If I have to hear about one more fucking cake maker. You can’t justify oppressing one group of people because it might cause somebody to commit some injustice later on. The idea that we have to keep the gays down to protect the Christian cake-makers is silly. Just silly.

          1. So cake makers have less rights then homosexuals.

            1. Marriage and public accommodation laws are entirely separate.

              1. Same government.

                1. If gay marriage were suddenly banned tomorrow, do you think I could legally run a bakery that discriminates against heterosexual couples?

              2. But are they equal?!!?!

          2. The time for a Grand Compromise in favor of government nonintervention in marriage was when the activists were demanding state-recognized SSM. Then libertarians could have said, “we’re with you, but we insist that your SSM laws include protections of free association for private businesses.”

            But based on the dogma that these issues are OMG TOTALLY SEPARATE, lefty libertarians and so-called “social liberals” who “want the government out of our bedrooms” simply did not ask for any such guarantees, knowing full well that without such guarantees, farewell free association.

            1. Come on GKC,

              Reason posted at least two or three moderately offended posts about gays using marriage laws to stick to anyone who objected to their marriage.

              Come on, they really felt bad about the bakers being forced out of business over that. They really did. Of course they wouldn’t lift a finger to do anything about it. But hey, they felt bad, sort of.

            2. Notorious, you’re assuming the progs and grievance industry would have honored our side of the Grand Compromise after they got their end of it.

      2. You do realize that what is a “right” and what is not a “right” can mean a lot of different things?

        If it is okay for judges to say there is a right to marriage, then why isn’t there a right to welfare or a right to child brides (provided you are a Muslim) or a right to anything else?

        That is what is going to happen.

        1. Fine. Don’t call it a right. Just call it a state granted privilege that has severe and lasting legal and economic impact in every area of your life. I have no problem with a judge saying that such privilege has to be granted equally. Just as letting interracial couples marry did not put us on the slippery slope to muslim child brides, neither does letting the gays participate in the misery.

          1. If it is not a right, then you can’t force states to recognize whatever unions our judicial elites find fashionable.

            The whole point here is to use the force of law to force people to recognize unions they don’t like. And also to further entrench the idea that “rights” are positive things that are to be granted by judges regardless of the history and context of the Constitution.

            1. Yeah, I get it. There’s absolutely nobody here who doesn’t see your point. But at the end of the day, if a judge has to be the one who says, “if you’re going to grant special privileges to people then don’t be a dick about it to effectively turn people into second class citizens” then pardon me if I can’t locate my outrage.

              1. Last I looked getting the right thing by the wrong means usually doesn’t work out too well. Those wrong means are never used just once and never just by one side.

                1. And as I said, no disagreement from me. But I also think that marriage, as an ancient custom, blurs the line between a basic human right and a state granted privilege. Oh, and also, that outrage I was looking for? Can’t find it anywhere.

          2. Don’t call it a right. Just call it a state granted privilege

            That’s my problem with this entire debate, it is a state granted privilege. It gives one group(married people) certain privileges that others (unmarried) can’t get. I don’t see how expanding the privileged class to include more people is a libertarian solution, or moves us any closer to one. It’s kind of like saying welfare is immoral, but that we should put more people on welfare in the name of equal protection.

            1. Well, we don’t ban people from welfare based on sexual orientation. Nor should we.

              1. No, but we do discriminate on several other factors, not all of which an individual has the ability to change. In any event my point was that adding more people to the goodies list will make getting rid of the goodies less likely and more difficult.

            2. Well, the priviledges in question aren’t necessarily welfare, they are things like whether you can will your property to your spouse without paying estate taxes on it.

              If we’re going by that standard, if gay people don’t have to pay estate taxes when they die and leave their property to a spouse that’s all to the good.

              1. While I’m add it, may I point out that long-running polygamous marriages could effectively nullify estate taxes.

                Elder spouse dies, just marry a new young one. Keep the cycle going perpetually. The marriage never ends, and there’s no estate left to tax.

                I’ve obviously read too much Heinlein.

    6. Well, some of us said that the ruling SHOULD result in polygamy being ruled legal.

      Polygamous marriage actually has historical precedent.

      1. +700 King Solomon’s Wives

      2. Arbah imot, shloshah avot.

        1. Arbah imot, shloshah avot.

          4 mothers, 3 fathers. Correct?

      3. A lot more than same-sex marriage, in fact.

    7. I’m not sure what you’re getting at here John, since the case revolved around the ban on cohabitation and not polygamy. The end of polygamy bans may be coming, but this case is not an example of it.

    8. The state still doesn’t consider this a marriage, nor does this ruling require it to do so. It just says you can’t criminalize living with and being in a long-term committed relationship with what the state considers to be your mistress.

      1. Which is exactly what John claims he wants. It’s almost like he’s just a troll or something.

    9. Yet there remains no coherent argument for banning gay marriage. And why gays should have to answer for polygamists remains a mystery.

      1. “And why gays should have to answer for polygamists remains a mystery.”

        Because of the possibility of gay polyandry, you big dummy.

        1. Because of the possibility of gay polyandry

          It’s not just a possibility, it seems the only way to afford rent in San Francisco is to cohabitate in large groups.

      2. Yet there remains no coherent argument for banning gay marriage.

        So we shouldn’t need courts to impose them on the states?

        And why gays should have to answer for polygamists remains a mystery.

        Why straights should have to answer for gays remains a mystery, as well.

        1. I thought I implied something about coherence. Could you try again, keeping that word in mind?

  4. The judge is clearly a sexist and anti-feminist!

  5. Good. Consenting adults, no evidence of abuse or coercion, etc. No reason for the State to say no.

    1. No good reason for the State to issue licences for marrage in the first place nor force others to recongnize those marrages.

      1. This is a really new angle. I’m going to need some time to digest this groundbreaking perspective. Why has nobody mentioned anything about this around here before?

        1. Because the equality above liberty crowd has been so happy.

          1. If it’s non-liberty that we’re going to have, then I’ll settle for equality over inequality in a non-free system any day.

            1. Equality in a non-liberty situation is generally a way of making sure everybody has as little liberty as possible.

              1. I am totally stealing that.

  6. Ending state marriage solves so many problems its insane that it hasnt happened. And that some of you oppose it.

    1. And that some of you oppose it.


      1. Well, most people who support gay marriage?

        I dunno how you ssimultaneously support (a) the expansion of a licensing regime and (b) the abolition of a licensing regime.

        1. If b is not possible, then a until b is possible;

          Same logic for supporting school vouchers.

          1. But vouchers get more kids away from government schools, and generally cost less tax payer money. Both of which are steps toward what I advocate. More state marriage does no such thing.

            1. Well, that’s not what he asked.

    2. So does ending the drug war, but have fun prying that out of the clutching fingers of the state. Giving up power is not what the state excels at.

    3. People are not going to end state sanctioned marriage. You are delusional if you think that will happen. No one is going to agree to give up the ability to force other people to recognize their marriage. Moreover, society is never going to agree to get rid of things like community property and such. And sorry but “just sign a contract” isn’t going to sell. Maybe it should but it wont’.

      In reality, marriage is going to continue. But now it has been weaponized by the government. The government can now use marriage to force people to accept whatever group the government feels needs to be accepted.

      That is how this plays out. And all the “but if we just got the government out of marriage” isn’t going to change that.

      And of course there is the side bonus of it further enforcing the idea that “rights” protected under the constitution are whatever judges say they are and have nothing to do with the history and the context of the document. So there is that as well.

      1. It’s cosmo town, John.

        1. Everyone has a blind spot and Libertarians’ blind spot seems to be gay marriage. I swear to God some of them at least would support the creation of a God emperor if it granted them gay marriage.

          The normal sensibility that getting the right thing is not worth setting a bad precedent or using a bad means goes right out the window when it comes the gay marriage pony. They just can’t help themselves.

          1. Yeah. All libertarians want gay marriage. That’s why there’s no argument among libertarians about the subject. No argument at all. Zippo.

            You really should stop. You’re making an incredible ass out of yourself today. More so than usual.

            1. Which part of “some of them at least” did you not understand?

              1. The implication as I read it was that they all want gay marriage, every single one, and some of them would support the creation of a God emperor to get it. But they all want it. No exceptions.



            Derpity derp.

            1. Yeah because having a blind spot for a particular issue, means you only care about the issue.

              I didn’t say Libertarians only care about the gays. They care about a lot. In fact that is the problem. The problem is not that they only care about the gays. The problem is that when the subject of gays comes up, they forget their principles.

              We actually have small government advocates thinking rule by judge and the complete disregard for the context and meaning of the Constitution is a good thing. That is fucking nuts. And no amount of yelling DERP is going to make it any saner.

              But hey, don’t let me stop you from being stupid. Whatever the fuck you do, don’t actually think about this issue. Just yell something stupid and move along. You would never want to think about anything. That is hard and make you a racist or something.

              1. I’m generally very suspicious of legislation via judicial fiat. But I make an exception in the case mentioned in the article because these people were threatened with serious jail time. There’s a big difference between “you don’t get x privilege”, and “you’re going to prison for a decade, and your kids will be taken by the stat”.

        2. It’s cosmo town, John.

          Yes, because no longer equating a married couple cohabiting with another with bigamy is equivalent to pillars of salt and getting drunk and sleeping with your daughters.

          You’re better than that, Eddie.

          You too, John.

          1. Eddie, yes. John is absolutely NOT better than that. Anyone still thinking so is deluding himself.

              1. That was an ear worm, dammit. Now it’s stuck in my head.

      2. The only way the state could give up any sanction of marriage would be if the state gave up the judiciary system. If there’s ever a dispute with a 3rd party (or even between them) as to whether someone is someone else’s spouse, and if ever that dispute is resolved in court, whoever’s court it is has power over marriage.

    4. We needed results, robc, and we needed them the day before they happened.

  7. This isn’t even about recognizing polygamy, it’s about jailing adults for choosing to live together. The equivalent in the gay community would be if gay couples were arrested for cohabiting.

    1. This is true. But this is just the first step. It is not like every couple who shares a house is liable to prosecution. Once you have a right to live as a polygamous household, then the right to marriage quickly follows.

      This is how it worked with the right to gay marriage. First, you declare the laws that make the activity illegal unconstitutional and then you use equal protection to mandate the formerly illegal unions be recognized by the state.

      1. Clearly we should ban gay people from living together. It’s the only way to preserve cake bakers’ liberties.

        1. No Jesse. I think those laws should have never been passed or repealed once they were. That, however, is different than saying the Constitution mandated that they be repealed.

          The Constitution is not the magic wand that gives everyone their pony. I would rather live with the states doing dumb things and have it mean something than get rid of some dumb things at the price of the document now meaning whatever judges decide it means. Judges are not always going to be so cuddly.

          1. So we should drop the interpretation of the first amendment that includes freedom of association?

            1. No. But the fact is that when that amendment was written, laws against cohabiting and polygamy existed. The people who drafted the Amendment never indended it to invalidate those laws.

              The freedom of association protects a lot of things, it doens’t protect the right to polygamy. Maybe it should but it didn’t. So I would rather either amend the Constitution or fight it out politically over this than just throw out the meaning of the Amendment.

              Think about my post below. The Libertarians on this board are all about original intent and meaning when ti comes to the commerce clause. But when it comes to this, then it doesn’t matter. Bullshit. It matters in both cases. It doesn’t just matter when you like the result it gives you.

              1. The freedom of association protects a lot of things, it doens’t protect the right to polygamy.

                You’re going farther than that.

                First, you declare the laws that make the activity illegal unconstitutional and then you use equal protection to mandate the formerly illegal unions be recognized by the state.

                You’re condemning the good use of freedom of association principles because you believe that it will lead to bad application of the equal protection clause.

                1. When the Amendment was written, no one who drafted it thought or intended it to mean that you had a right to cohabitate with someone you were not married to. That is a crazy way to look at the world, but that is how they did.

                  If we can say “well, we don’t like that so it really should invalidate these laws even though it was never intended to do so” why then are gun controlers not justified and arguing that the 2nd Amendment isn’t an individual right? Sure, we have history on our side that says it was always intended to be an individual right. But so what? Times change. And if the 1st Amendment can change to protect gays, why can’t the 2nd Amendment change to protect us from GUNS!!? Y

                  1. Original intent means nothing to me. Plain text is what matters.

                    1. Original intent means nothing to me. Plain text is what matters.

                      That is beggin the question. What is “plain”? What is plain to you is not plain to someone else.

                      The plain text says “regulate commerce betweeen the states”. Well why can’t that mean wheat you grow in your back yard? Even a decision as dumb as Wickard meets the plain text of the document. Wickard only seems idiotic when you understand the context and the intent of the people who wrote the document. Words can have lots of different meanings and application consistent with the “plain text”. Sorry but saying “plain meaning” is just another way of saying “it means whatever the hell I say it does”.

                    2. Even a decision as dumb as Wickard meets the plain text of the document.

                      Actually it doesn’t. Right there in the opinion, they Court states in so many words that even though what Wickard (or was it Filburn?) was doing was neither interstate nor commerce, it was subject to regulation as interstate commerce.

                      They admit, as plainly as they can, that they have been pressured into issuing an unconstitutional opinion. They tried to sow the seeds of having that opinion overturned, but Americans were too in love with their new Big Brother to take them up on it.

                    3. Good point Moncle. But that is just a quirk of the Court there. Plain meaning is just that “plain”. What is plain to you may not be plain to me. I guarantee you plenty of people would today claim that “effect on commerce” is within the plain meaning of “regulating commerce”.

                  2. I think you’re parsing it too much. It is possible to establish an intended set of general principles from the interpretation of the Constitution. Application of those principles will evolve over time. Certainly the principle of freedom of speech has done so and hopefully will continue to expand.

                    What is not possible is to create new principles out of whole cloth or to reverse them without modifying the document, aka the Breyer method.

                    1. Nerfherder,

                      Sure. We can have general princples. I know some Progs that have a few ideas about those; namely that the document should evolve to encompass modern sensibilities and ideas about government.

                      Again, if the equal protection can evolve, why the hell can’t the 2nd Amendment or the Commerce Clause?

                    2. There will always be interpretation or there would be no reason for the Supreme Court. The Ninth Amendment alone requires some evolution. That is different from saying that the words have almost no meaning, a la deconstructionism and the progressive method.

                      I am not taking issue with your complaint over the bad application of the equal protection clause at the expense of freedom of association, I think that is justified. However, you seem to be willing to throw freedom of association out the window simply because the last time it was applied in a similar situation, it was followed with bad legal precedent.

                    3. I am not throwing freedom of association out the window at all. I am just know where this goes.

                    4. Freedom of association has never been absolute. I don’t have a right to have sex with minors right? Strictly speaking, that is an infringement on my freedom of association, though a really justified one. This debate is about where the line is not if there is one. And what I am saying is that if the court can move it here, they can move it wherever they like. Freedom of association was never intended to mean “the right to have a polygamous relationship” and now it does. Where did that come from other than judges deciding they now liked polygamists?

                    5. As far as I am concerned freedom of association is absolute as long as there is consent. It’s up to the government and the courts to determine what constitutes consent, and generally speaking, minors and goats cannot consent.

                      I think the line you’re looking for is negative vs positive rights.

                    6. No nerfherder,

                      That is the line you like and it is not a bad line. But once we cede the power to make the line to the courts, our opinion no longer matters. And rest assured that is not going to be where the line falls.

                    7. But once we cede the power to make the line to the courts, our opinion no longer matters.

                      That power was ceded a long time ago. And what would be your alternative method? That interpretation never changes even if the interpretation falls within a certain framework of philosophical ideas that seem to have been intended?

                      I think what you’re arguing for is a wholesale rewrite of the Constitution. And from a practical standpoint, you and I both stand to fare a lot worse if that happens anytime soon.

              2. “No. But the fact is that when that amendment was written, laws against cohabiting and polygamy existed. The people who drafted the Amendment never indended it to invalidate those laws.”

                That’s bullshit, John. Go read the Federalist papers. The people who wrote and ratified the Constitution weren’t saints, but they also weren’t as stupid as you. They knew perfectly well that the principles in Constitution were poison pills that would end lot of things they might personally support. They did it anyway.

                1. Bryan,

                  Go find me anywhere in the Federalist Papers where they said the amendments were going to legalize polygamy or even adultery.

                  Whatever poison pills they intended, this isn’t’ one of them. The document was never intended to get in the middle of state family law.

                  1. When that amendment was written the constitution only applied to the federal government. State and local laws were not relevant to the BoR.

                    1. Bingo. The states were a lot more independent back then. The 14th is a bit of a monkey wrench.

                    2. anti-socialist,

                      The 14th Amendment was written for the states. It applies at the very least equal protection to the states.

              3. It covers the right to peaceably assemble, which seems to include cohabitation (unless there’s some time limit on assembly). That’s not the same thing as being declared married by law.

          2. So the court decision striking down DC’s handgun ban was wrong, wasn’t it?

            1. Not at all. When the 2nd Amendment was written and passed, no would have dreamed that it didn’t protect people’s right to carry a handgun. That is a great example of what I am talking about. The 2nd Amendment means what it says because you can read the history and context of it.

              Ask yourself this, if it is okay for judges to disregard history and context to find a right to gay marriage in the 14th Amendment, why is it not also okay for another judge to do the same thing and decide the 2nd Amendment now only applies to joining the National Guard?

            2. If there’s one thing that seems stupidly plain to me, its that any law banning the carrying of a weapon, openly or concealed, is a violation of the 2A.

              “Bear” arms is pretty clear “plain text”.

      2. Jesus John, for all of your talk about bad means establishing bad precedent.

      3. “This is how it worked with the right to gay marriage.”

        It’s also how it worked to end burning witches at the stake, slavery, and miscegenation. You can’t demand the government do obviously immoral and unconstitutional things in order to prevent some bad result from happening.

        If you want to stop activist judges from perverting “equal protection” into a cudgel to punish thoughcrimes, then do that. It’s not the government’s job to stop that. It’s your job as a citizen to stop that. Trying to avoid your responsibility as a citizen by having your government ban the source of thoughtcrime isn’t going to work.

        1. How about we have this document that limits what the government can do. And we set the meaning of that document in some kind certainty based on what the drafters’ intended and the context when it was written such that if we don’t like it we have to amend that document rather than just pretending it means something else so that we can have an easy way to repeal any law we don’t like or offends our evolving sensibilities. That way we have some firm protection against government abuse?

          You know, it is just so crazy it might work.

          1. A Republic. If you can keep it.

            But this is stupid. Where does it say in the Constitution that the federal government has anything to do with marriage, at all? If the drafters intended for the federal government to have the power to ban certain marriages, why do you claim they didn’t they put it in there? Absent that power, the federal government has no role in determining whether marriages exist.

            1. The feds don’t have the power to ban marriages. I completely agree. This is a completely state issue. Both the federal government and the federal Constitution should stay the hell out of it. If Vermont wants to have gay marriage, that is their right as a state. My point is that if Texas, doesn’t, that is their right too, provided their Constitution and laws say so. In neither case should the federal constitution have anything to say about it other than maybe the P&I clause requiring one state to recognize the marriages of the other. But that is it.

      4. However, same-sex marriage and multiple marriages are still different issues if you analyze them properly. Polygamy is hardly ever a single marriage of more than 2 people; rather, it is a condition of someone who part of more than 1 marriage at a time. So polygamy is about legal restrictions on how many marriages you can have at a time, while same-sex marriage is about whether 2 people of the same sex can be considered married to each other. Polygamy is about regulation; same-sex marriage is about definition. Allowing polygamy is deregulatory; decreeing same-sex marriage is not.

  8. Honest question: How would common law marriage rules apply to a polygamist lifestyle?

    1. They would but they wouldn’t make any sense when you applied them. The common law on marriage assumes two parties. There is no way to sensibly apply concepts like community property or survivorship rights and such to a polygamous union. The courts will have to just make up rules as they go, which they seem to like to do anyway.

      1. Common law is made up as you go along by definition. Unless you want to go back to concepts like insults against Christianity being a crime.

        1. No. It is not Made up. It is an evolving mass of collective wisdom. Just because it evolves doesn’t mean that it is arbitrary or their isn’t such a thing a precedent.

          Basically, the courts would have to develop a new set of common law rules to deal with this because the old rules wouldn’t work.

          1. It is an evolving mass of collective wisdom.

            That’s my point. Changes in technology alone drive common law evolution. Certainly cultural shifts will as well. So I don’t worry about whether or not common law is equipped to handle something because that something is always coming.

            What we should worry about, and I think you would agree, is that our political and legislative system is unable to deal with technological and societal advances, so too much gets left to the courts to decide.

            1. Yes we should. But that is pretty much where we are right now. Rule by judge and bureaucrat.

      2. I disagree, John. I think common law partnership principles apply just dandy to partnerships of two, or a hundred. And marriage law is basically partnership law, except for the child custody stuff.

        Of course, there’s really no common law of marriage left, anyway. Its all statutory now.

        1. Two words that would wreak havoc on the tax code: line marriages. 🙂

          1. That’s ok, because the problem is the tax code’s existence.

  9. U.S. District Judge Clark Waddoups

    Do you think the judge gets tired of his colleagues walking up to him and saying “What Up ?”


    1. At least his parents named him Clark. Think if they had named him Heyman.

  10. And lets not forget that the same group of people who will argue until the fucking cows come home that the CRA was wrong and exceeded the strict reading of the Constitution and that we should have let the market and society sort out the evils of government mandated segregation are now telling us that judges reading a right to gay marriage and eventually polygamy into the 14th Amendment and forcing states to recognize such is just totally fucking okay because God damn gays not getting marriage licenses is a national fucking emergency. Blacks being systematically excluded from society, well hey that is something that society needs to just work out. Blacks should have lived under Jim Crow for a decade or two longer because we need to strictly interpret the Constitution. But gays having to go to a different state to get a marriage license? That is a fucking national emergency.

    Just contrast what is said on these threads with what is said by the very same people on a good Liberty Mike Civil War or ordinary CRA thread and thank about it for a bit.

    1. Does anybody need any further evidence that John is a troll than this post right here?

      1. Yes Tone, any post that raises a point that you don’t like but can’t respond to means it is a troll.

        I am sorry you can’t figure out why it is okay to be a strict constructionist when it comes to the commerce clause but then be anything but when it comes to another part of the document. But, your not liking the argument and not being able to give a response to it, doesn’t make me a troll. It just makes you unable to come up with a response.

        1. You don’t raise points. you scream and shout and pound your keyboard and call names and refuse to engage honestly with anyone’s points here.

          Fuck you.

          Let’s look at your greatest hits here:

          Our judicial overlords will always give us our pony. You really are the picture of a useful idiot.

          Come on, they really felt bad about the bakers being forced out of business over that. They really did. Of course they wouldn’t lift a finger to do anything about it. But hey, they felt bad, sort of.

          But hey, don’t let me stop you from being stupid. Whatever the fuck you do, don’t actually think about this issue. Just yell something stupid and move along. You would never want to think about anything. That is hard and make you a racist or something.

          Blacks should have lived under Jim Crow for a decade or two longer because we need to strictly interpret the Constitution. But gays having to go to a different state to get a marriage license? That is a fucking national emergency.

          Just contrast what is said on these threads with what is said by the very same people on a good Liberty Mike Civil War or ordinary CRA thread and thank about it for a bit.

          You’ve also talked about “the gay marriage pony” six times, like that’s even fucking clever or cool. Just please stop talking, forever.

          1. I raise the very simple point that you can’t claim history and context means everything when you like the result but then be okay with ignoring it when you don’t like the result.

            I don’t what to tell you. I am very sorry that you are not smart enough to engage in the debate. Other people on this thread are and are doing so. I understand you don’t like that. But running around yelling TROLL and mucking up the threads isn’t going to make you any smarter or help you formulate an intelligent response to arguments you don’t like. It just won’t.

            I guess I could get another alias and write some intelligent responses for you, but that would kind of defeat the purpose. You shouldn’t do for others things that they should do for themselves.

            1. I cannot respond to your arguments because they’re total nonsense.

              Take a position, any position, and I could craft the same argument you are crafting. For example, let’s say I want to cut the allocation for welfare:

              “I don’t know what to tell you, So-and-So, but if you cut welfare, all that will happen is that the poor are just going to be burdens on the states instead, and that’s just going to lead to riots and hungry people in the streets, which will lead to even more welfare programs in the first place. So, you see, really, welfare as it is is more libertarian”

              1. You can’t respond because you clearly don’t understand the argument. This argument is about how you read the constitution and whether the meaning of it stays the same as it was intended or does it change based on whatever principles judges develop.

                It is in no way analogous to arguing about the effects of welfare. Again, you just don’t understand what is going on. And that is fine. No one understand everything. But do everyone a favor and just shut the fuck up and find some other thread to post on so that those of us who do understand the argument can have it.

            2. Really, my goal here John is to point out to others what a fucking horrible person you really are. For whatever reason, people have taken to just kind of rolling their eyes at your antics and saying, “that’s our John!”, like you’re some kind of cute puppy who shits on the rug occassionally. But you’re not cute. You’re a toxic, quasi-illiterate douchebag troll.

              1. Tone,

                I have very productive and interesting arguments on here with lots of people. I am sorry you are not one of them.

                But instead of yelling and getting angry, maybe you should look in the mirror. Why are you so mad? No one else is. It is really hard to argue with someone who doesn’t back down and gives as good as they get. But amazingly you learn something from it. I am sorry you are too immature to deal with that and just get angry when someone takes a position you don’t like but are unable to effectively refute.

  11. Clearly, Jack, Janet and Chrissy should have been arrested.

    1. No way dude. According to their landlord–one R. Furley–Jack is a, well you know, one of the those.

    2. Chrissy should have been arrested for Assault with a Sexy Weapon.

  12. Does anybody know what’s been going on with John this week? Did someone hijack the Midol truck?

    1. Do you really, really in your heart-of-hearts think this kind of behavior is new?

      Because it’s not. He’s been like this for literally years. Maybe even a decade.

      Here’s a good example:


      1. Yeah, the Red Tony moniker is pretty accurate. Both Tonies resort to strawmen and other examples of dishonesty on any issue in which they disagree with libertarians. John just happens to agree with us on more issues.

        1. No. I just disagree with you. If you don’t like it, too bad.

          1. You don’t disagree with Jordan, or me, or Tone, or any of us on gay marriage or foreign intervention.

            You disagree with some straw man libertarian invented by Red Tony’s feverish mind.

            1. Have you ever lost an argument sarcasmic or are you just always a victim of the dreaded straw man. Funny that.

              1. There is no argument to lose, Red Tony.

                You claim that all libertarians have some position on some issue, then claim that it’s just some when called on it, but that’s the only argument you’ll argue against because it’s the one true “orthodox” libertarian position, and you then claim to have won the argument when people call you out on your straw man.

                It’s tiresome, Red Tony. Very tiresome.

                1. No you are tiresome. Every time there someone disagrees with you, you just scream strawman. Meanwhile there are like five other people engaging the position. It is just old. Get a new act.

                  1. Then argue with those people, instead of this claim that all libertarians agree with your straw man.

      2. Oh I know. A few years back he accuse me of being an Obama supporter desperate to deflect blame for some misdeed on Republicans.

        I don’t share your opinion of John. Often he makes very good points. I find him quite thought provoking, and contending with his arguments has made me a wiser man. I almost always value his analyses.

        Occasionally, though, he just starts decreeing that anyone who doesn’t agree with him is a retard, and more often than not, the argument he is claiming is the non-retarded one is very retarded. Maybe he has a tumor or something.

        1. I am no more snarky and nasty on here than anyone else. The difference is that I give back as good as I get.

          You tried to tell me that anyone who claimed there was a collective right to sovereignty and border control is just retarded.

          This is has always been a very plain speaking and hard edged board. And that is as it should be. I never whine when people are nasty to me. I just come right back at them. And they don’t like that.

          What people like Tone Police and Jordan don’t like is that there is someone on here who is not afraid to go against the group orthodoxy but isn’t a troll or a mindless partisan who can be dismissed. Some people like you, like that. They hate it, because it makes it hard. It is great fun kicking around Shreek or Tony. They are idiots who act like the Washington Generals to the rest of the board’s Harlim Globetrotters. But when someone puts up a good fight, well that is just not cricket.

          1. There is no “group orthodoxy.”

            Only the straw men in Red Tony’s head.

            1. And we have always been at war against Oceana.

              Gay marriage and open borders are total group orthodoxy. Dissenters to either issue are called trolls and racists.

              Come on Sarcasmic, they do the same thing to you on open borders they do to me on gay marriage. There most certainly are group orthodoxies on here. And that is fine. If there weren’t, it wouldn’t be so much fun to punch holes in them.

              1. they do the same thing to you on open borders they do to me on gay marriage

                No they don’t, because I don’t argue against a straw man libertarian.

                1. Yes sarcasmic. You are right. You are fucking wonderful. Rainbows fly out of your fucking ass every time you have a thought.

                  There I said it you are RIGHT ABOUT EVERYTHING!!!

                  I repent.

                  Now can you shut the fuck up and let the rest of us have a conversation?

                  1. Then have a conversation with those people, instead of some libertarian straw man.

              2. I wouldn’t say group orthodoxy, most of the people here are just really passionate and don’t compromise well( if we did compromise, we wouldn’t be here). Yeah, I’ve been called nativist, etc. Shit happens.

                1. Exactly anti-socialist. People are very passionate and there is nothing wrong with that. The problem is that some of them don’t take it very well when someone is just as passionate right back at them.

                  1. If you’d actually ask people what they think instead of telling them what they think and then arguing against it, then these exchanges wouldn’t happen, Red Tony.

                    Why don’t you try asking what someone’s stance is on gay marriage, instead of telling them that it’s the most important thing to them and then telling them why they’re stupid for it?

                    1. Why don’t you just give your stance on the subject sarcasmic? How about that? No one has to ask you. You just say what you mean. Why is that so hard for you?

                      What is your stance on gay marriage? No one is stopping you from saying it. In fact you are invited to do so.

  13. RE: “So Utah is not about to start recognizing group marriages.”
    While I agree that the State of Utah cannot prosecute for co-habitation, the State must also consider bigamy as protected by the Constitution under Lawrence v. Texas. In Lawrence, the High Court struck down social hygiene laws to make homosexual relations, including same-sex marriage, legal. The same decision that makes same-sex marriage legal also makes bigamy legal.

    As Justice Scalia said in his dissent in Lawrence: “Bowers, supra, at 196?the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”

    1. You are just being a troll, and apparently Scalia was too. Tone Police told me so.

      1. Scalia was right. He is a very intelligent man. He is also very unwilling to gore his sacred cows. You and he share both traits in common.

        The abolition of state-licensed marriage is the only logical solution. Of course it’s a pipe dream, but we spend all day here dreaming about pipes.

        You are unwilling to examine your own biases in this matter, and it is that which makes you a troll.

        1. What are my biases? Am I biased towards state sanctioned marriage? Sure. But that is because I think that contract based marriage is going to have the same problems that marriage licenses do. As long as you want the courts to sort out your disagreements, the government is going to be involved.

          We could go to a contract based marriage system today and we would quickly be having the same arguments. Should courts recognize any marriage? What are the requirements for a valid marriage contract? Can you be under 16 and sign one? In the same family? Of the same sex? It would move the argument to a different forum but wouldn’t change them or resolve them.

  14. I think everyone needs to calm down. Have a drink. It’s noon somewhere.

    John, this is more basic even than the CRA. This is 14th Amendment. This is Loving. Despite many attempts, no lawyer has been able to make a case for the constitutionality of gay marriage bans that hasn’t been literally laughed out of court.

    Here is a recent, particularly painful such exchange.

    1. Tony, the voice of reason? Well, fuck me.

      1. Tony, the voice of reason? Well, fuck me.

        Posts like this are why I’m pretty sure “Tony” is a sock that gets passed around.

        You’ll get wildly different voices under the “Tony” label.

        So, he’s either a sock getting passed around, or someone whose medication is very poorly managed.

    2. Tony homosexuality was a crime in every state when the 14th Amendment was passed. There is no way to argue that the people who wrote it intended it to make gay marriage a right.

      And Loving is not where this started. It started in Bowers. And what happened in Bowers was the court said sexual morality was no longer a legitimate basis on which to base laws. Once you believe that, then gay marriage follows. Gays were not prohibited from marriage because of race. They were prohibited from marriage because of sexual morality.

      In a sense you are right Tony, if you completely disregard the history and context of the 14th Amendment and let current fashion dictate, there is no legal argument left. And you at least are consistent. I will give you that. You are fine with throwing the history and context out in every case. The other people here tend to not like to do that when it comes to pretty much any other section of the constitution.

      1. It doesn’t matter what the prevailing attitude toward homosexuality was when the 14th Amendment was ratified. Nothing in the text of that or any other part of the constitution instructs us to consider what the prevailing attitudes of the time were. We have to consider the text as written and its spirit. Because gays were treated horribly in the past is not an argument for the legitimacy of bans on gay marriage today!

        It’s simply about equal protection. Would you be OK with a law that said only straight people have the right to free association or legal counsel? If not, why? And how is that any different?

      2. What has changed is our understanding of homosexuality as an essentially innate and immutable condition for most homosexuals. Once you accept that fact, the equal protection opinion pretty much writes itself based on other precedent (i.e., a group that has historically suffered discrimination or contempt due to an immutable trait). If you view it as something they all just “choose” because the Devil influenced them (as they certainly believed back in when the 14th amendment was passed), then you reach a different conclusion.

        1. What has changed is our understanding of homosexuality as an essentially innate and immutable condition for most homosexuals.

          Show me where that is in any way established scientific fact. They have yet to my knowledge found a “gay gene” or found any solid scientific evidence that is the case.

          1. It’s not proven, though many accept it to one degree or another. Either way, that assumption is clearly driving the courts’ thinking.

        2. But it shouldn’t depend upon it being innate and immutable anyway.

          If gays just decided to be gay because they felt like it, why would that give us the right to restrict their freedom?

          Being gay in no way imposes harms upon me.

          1. Pretty much every law discriminates against somebody somehow. Only some are subject to heightened scrutiny because they discriminate against a suspect class. The question isn’t whether we think it’s a good idea, it’s whether the supreme court has a basis to strike the law.

            Also, this is more than “not restricting freedom”. It’s about forcing state government to officially recognize unions on a non-discriminatory basis. “Restricting Freedom” was already dealt with in the sodomy cases.

    3. Here is the bottom line Tony, your arguments for gay marriage work equally well for expanding the commerce clause to give the feds the power to enact the CRA. Somehow, Libertarians find your arguments very convincing here but not so convincing in the CRA.

      I find them convincing in neither case.

      1. But libertarians’ relationship with the commerce clause is goofy. You don’t oppose the CRA because you have a long-dead fringe interpretation of the commerce clause. You oppose it because you don’t like it, and make up whatever bullshit you need to justify that position.

        1. you both deserve each other.

          1. It’s like the olympics of dishonest/bad faith argumentation.

            1. I didn’t give him the moniker Red Tony for nothing.

        2. Project much?

          Libertarians are the only people that have a coherent abstract theory of rights and justice that informs our positions.

          Everyone else is just making up whatever bullshit they need to support whatever they want. Especially you.

      2. yeah, no they don’t, but unsurprisingly, you’re unable to grok the difference, despite having been explicitly told the difference a million times.

        1. Are you capable of doing anything but acting butt hurt and making unsupported assumptions?

          “No they don’t” is a statement and not an argument. If you have an argument to make as to why that is true, make it. Otherwise stop wasting space.

          1. “No they don’t” is a statement and not an argument.

            And “Somehow, Libertarians find your arguments very convincing here” is what exactly?

            Oh yeah. Something in overalls with a red scarf.

            1. Libertarians don’t agree with Tony about gay marriage? Really? Does both Reason and Tony not support a constitutional right to gay marriage? If not, that is going to be news to one or both of them.

              Tony and Reason are very much in agreement on the subject of gay marriage and very much not in agreement on the subject of the commerce clause.

              That is an argument. The argument is that Reason finds Tony’s flexible view of the Constitution very compelling when it gives them the results they like and not at all when it gives them the results they don’t like. The argument is, why is Tony right about the 14th amendment being flexible enough to protect gay marriage but wrong about the commerce clause being flexible enough to embrace a giant federal government.,

              If you don’t agree, fine. That is your right. But just disagree and don’t scream straw man and get butt hurt.

              1. Reason is not the voice of all libertarians.

                Many of us disagree with Reason on a regular basis.

                Especially on gay marriage.

                Try arguing against individuals, not sweeping generalizations.

                1. If you don’t agree with Reason and agree with me, good. What are you yelling at me for?

                  If you are not making the argument I am refuting, why the hell does it offend you so much?

              2. Not once have you said “hey sarc, what do you think?”

                No, you just make sweeping statements about how gay marriage is the most important thing to libertarians, implying that because I’m a libertarian that I must feel the same way.

                You want my opinion? Well, here it is. I find it someone contradictory that people who generally oppose government force tend to want to use government force to impose a particular meaning of a word onto society.

                Wow. That was fucking difficult.

                1. *somewhat*

                2. No, you just make sweeping statements about how gay marriage is the most important thing to libertarians, implying that because I’m a libertarian that I must feel the same way.

                  It doesn’t imply that at all. And if you don’t feel the same way, say so. What is so hard about “well I don’t think that”?

                3. I didn’t think I needed to ask. I thought that went without saying. Sorry to be so thoughtless. So what do you think?

              3. Most human beings in this country now support marriage equality. It will soon be nation-wide law. The argument is over.

                And everyone is selective about constitutional interpretation. Originalists are always hypocrites.

                1. What would you know about human beings? You would never pass the gom jabbar test.

                2. Tony,

                  Just because you are always a hypocrite, doesn’t mean everyone is. And if you can find an instance where I drop my principles and argue for a flexible constitution, have at it. But “you must be a hypocrite because I don’t like you” doesn’t really cut it.

  15. Polygamy should be legal, but ALL of the other husbands and wives should have to agree to marry the new spouse.

    1. The funny thing is I agree with you. I just don’t think it is a Constitutional right.

      1. Nobody’s saying gay marriage is a constitutional right either. They are just saying that banning it violates the equal protection clause.
        There’s a difference between X being a right, and banning X being a violaton of equal protection.

        1. Yes Hazel they are. They are saying states must recognize gay marriage or no marriage.

          Saying that is not a constitutional right is like me saying “sure you have privacy, if you don’t like the NSA reading your mail, just don’t you email”.

          1. That was totally incoherent.

            So you think it should be legal, just not constitutionally protected. So you think that it should be legal for states to make it illegal?
            If you think it should be legal, but also legal for it to be illegal, how is that not internally inconsistent?

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