"In Sum, the Problem With [the Same-Sex Marriage Cases] Is That They Recognize Only Two-Person Relationships"

A New York trial court judge concludes that polyamorous relationships are entitled to the sort of legal protection given to two-person relationships.

The decision is yesterday's West 49th St., LLC v. O'Neill, decided by New York Civil Court Judge Karen May Bacdayan. Scott Anderson and Markyus O'Neill lived together in an apartment; Anderson was on the lease, and O'Neill was not. After Anderson died, O'Neill would have had the right to renew the lease if he were "a non-traditional family member," but Anderson was married to Robert Romano. The apartment building company therefore argued that O'Neill was just a roommate, but the court concluded that there needed to be a hearing about whether Anderson, Romano, and O'Neill were actually in a polyamorous relationship:

Before gay marriage was legalized in any state, Braschi v Stahl Assocs. Co. (N.Y. 1989) was decided. The New York State Court of Appeals became the first American appellate court to recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition, and that the nontraditional family member is entitled to receive noneviction protections. The Braschi court interpreted the Rent Control Law in effect at a time when there was no legal recognition of same-sex marriage, and broadly construed the law to effectuate its remedial purposes.

Braschi is widely regarded as a catalyst for the legal challenges and changes that ensued. By the end of 2014, gay marriage was legal in 35 states through either legislation or state court action. Obergefell v Hodges (2015), the seminal Supreme Court decision that established same-sex marriage as a constitutional right, was also heralded as groundbreaking. However, Braschi and its progeny and Obergefell limit their holdings to two-person relationships. The instant case presents the distinct and complex issue of significant multi-person relationships.

The Braschi court held:

"The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties. In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services … These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control."

The plurality, perhaps desiring not to go "too far," concluded that "the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics (emphasis added)." Appellant Braschi should therefore be afforded the opportunity to prove that he and Blanchard had such a household." The dissent[ ]took issue with the plurality's legal analysis and suggested that it unreasonably strained reach its ultimate holding. "… [W]e have no direct evidence of the term's [family] intended scope. The plurality's response to this problem is to turn to the dictionary and select one definition, from the several found there, which gives the regulation the desired expansive construction." However, had the Braschi court not extended itself to interpret the statute to provide noneviction protections to an unmarried same-sex couple, that community would have waited for over 20 years, when gay marriage was legalized in New York, to receive an equal opportunity to maintain housing stability after the death of a partner.

In one of many incremental steps toward the legalization of same-sex marriage, shortly after Braschi was decided the legislature amended the Rent Stabilization Code to add evidentiary factors to be considered when determining whether a person has sufficient emotional and financial commitment to the former tenant of record to qualify for non-eviction protections. These factors, none of which are solely determinative, include, without limitation:

1) "longevity of the relationship;

2) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

3) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;

4) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

5) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, conferring upon each other a power of attorney and/or authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

6) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

7) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;

8) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship[.]"

This section further states, "In no event would evidence of a sexual relationship between such persons be required or considered."

Despite the documentary nature of many of the enumerated factors, "absence of documentary evidence does not undermine a succession claim when the totality of the testimonial evidence … establishes the requisite emotional and financial commitment (emphasis added)." …

Why then, except for the very real possibility of implicit majoritarian animus, is the limitation of two persons inserted into the definition of a family-like relationship for the purposes of receiving the same protections from eviction accorded to legally formalized or blood relationships? Is "two" a "code word" for monogamy? Why does a person have to be committed to one other person in only certain prescribed ways in order to enjoy stability in housing after the departure of a loved one? Why does the relationship have to be characterized by "exclusivity"? Why is holding each other out to the community as a family a factor? Perhaps, as in the instant case, the triad has chosen to closet their relationship from others? Perhaps the would-be successor is not "out". Maybe they do not believe their "real" family is open to alternative kinds of relationships. "Holding out" discounts the existence of prejudice and misunderstanding about communities and people that are not "normie." Do all nontraditional relationships have to comprise or include only two primary persons?

Indeed, the Braschi court's referral to "normal familial activities" reveals an intent to limit the application of noneviction protections to someone who can demonstrate a traditional marriage but for their sexual orientation. The Braschi decision, heralded as a radical leap—a discouragingly accurate characterization given the decades that passed before gay marriage was legalized—was still decided in "a relatively narrow and safe context." Paradoxically, the Braschi court's formulation of what comprises a nontraditional relationship is rooted in traditional ideology. {"The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of 'family' and with the expectations of individuals who live in such nuclear units…".}

However, what was "normal" or "nontraditional" in 1989 is not a barometer for what is normal or nontraditional now. Indeed, the definition of "family" has morphed considerably since 1989. Specifically, many articles have been written about multi-person relationships in recent years, revealing a preference that for some has long been known. For example, a recent article from The New Yorker magazine describes the broadening recognition of such relationships and how these relationships are challenging the norm:

"In February 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who 'consider themselves to be a family' to be recognized as domestic partners….[T]he neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents. In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents. American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?" { The New Yorker magazine, March 22, 2021 issue, How Polyamorists and Polygamists Are Challenging Family Norms. See also Polyamory and the Law, Harvard Law Today, August 3, 2021, available at https://hls.harvard.edu/today/polyamory-and-the-law/.}

This begs the question: Should a person who would not meet the requirements for succession to a rent stabilized apartment after Braschi was decided in 1989, now, 33 years later, be evicted when they may qualify, as was the concluded in Braschi, under a more inclusive interpretation of a family?

As stated by the Hon. Jenny Rivera in Green v Esplanade Venture Parthership (N.Y. 2021) [arguing that a person should be able to "recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond," and not just as to a family member -EV], "Scores of cases decided before and after Braschi prove that New York courts are well-equipped to apply a functional mode of analysis in order to identify strong and caring bonds, when the important remedial purposes of New York law so require." Citing to Zimmerman v Burton (N.Y. Civ. Ct. 1980), Judge Rivera notes that "[t]he law must keep abreast of changing moral standards" as the Zimmerman court did in recognizing the tenant succession rights of unmarried partners.

In sum, the problem with Braschi and Obergefell is that they recognize only two-person relationships. Those decisions, while revolutionary, still adhered to the majoritarian, societal view that only two people can have a family-like relationship; that only people who are "committed" in a way defined by certain traditional factors qualify for protection from "one of the harshest decrees known to the law—eviction from one's home."

Those decisions, however, open the door for consideration of other relational constructs; and, perhaps, the time has arrived. As Justice John Roberts foretold in his Obergefell dissent:

"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.

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…. If not having the opportunity to marry serves to disrespect and subordinate gay and lesbian couples, why wouldn't the same imposition of this disability … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships (internal quotation marks and citation omitted)?" …

Here, Mr. Anderson, Mr. Romano, and Mr. O'Neill had a relationship to one another. There was knowledge of all persons about the others and, at least, passive consent, even if they did not all like each other. Was the relationship a "good" one? Mr. Romano describes Mr. O'Neill as "intimidat[ing]," and Mr. O'Neill describes Mr. Romano as "abusive." It seems equally as unimportant as considering sexual relations to delve into the level of happiness in a relationship. Is one stripped of their rights to "marital property" on the basis of having a "bad" marriage? Would noneviction protections not devolve to an emotionally abusive spouse?

Both [O'Neill] and Mr. Romano profess to have loved and cared for Mr. Anderson deeply. Read together, their affidavits imply that Mr. Anderson loved both of them in different ways. The relationship between Mr. O'Neill cannot be dismissed based on the allegations that he did not always contribute to household expenses, or "did not pay his fair share of the rent or household expenses." This may, in fact, indicate a desire on Mr. Anderson's part to provide for Mr. O'Neill. Had Mr. Romano and Mr. Anderson chosen to live together, Mr. Anderson would very likely enjoy noneviction protections. However, they chose to live apart, and [O'Neill] was the one "at home." The existence of a triad should not automatically dismiss [O'Neill]'s claim to noneviction protections. If [O'Neill] could potentially qualify in his own right, it should not be a dispositive factor that another person who does not live in the subject could also qualify if only they lived in the apartment….

The court recognizes the difficulty and potential implications of not interpreting the Braschi court's interpretation of the word "family" as drawing a bright line which must end at what is now considered a traditional dyadic relationship. (The internet is rife with articles bemoaning the estate planning and child custody complications that arise from these new relational constructs.) But, "[w]e just do not know the answers or implications for an exponential number of varied fact situations, so we should do what courts are in the business of doing—deciding cases as best they fallibly can." Accordingly, the court declines to award either party summary judgment….

I should note that in Same-Sex Marriage and Slippery Slopes (2005), I argued that slippage from recognizing same-sex relationships to recognizing polyamorous relationships was unlikely, and I still tentatively think so; and this particular decision is, after all, the decision of just one judge at a relatively low-level court, who is expressly criticizing in part the decisions of the New York high court and the U.S. Supreme Court. Still, I thought the opinion was worth noting.

Here's the summary of the parties' factual arguments:

[The apartment building company] argues that "[O'Neill and Scott Anderson] never comingled their finances or jointly owned real or personal property, held themselves out as a family unit, executed documents formalizing legal obligations, jointly celebrated most major holidays, or attended important events with each other's families." [The company] further states that the deceased tenant of record had a life partner of 25 years and that [O'Neill] is nothing more than a roommate. This statement is supported by the affidavit of Robert Romano …, who avers that he "loved Scott Anderson." They were "life partners" who met 25 years ago, and that "[d]uring the 25 years that [we] shared together, we held ourselves out as a couple, an exclusive couple As support for this, Romano avers that he and the deceased "traveled frequently together, never with Mr. O'Neill." They "considered each other family and incorporated one another into each other's immediate family." Mr. Romano and Mr. Anderson shared cell phone accounts and credit card accounts. Mr. Anderson was the beneficiary of his retirement fund, and he was the beneficiary of Mr. Anderson's retirement fund. "[We] shared good times and bad times together. During his last few years of life, as he battled liver cirrhosis, I was his caretaker." Mr. Romano attaches photographs with a summary sheet detailing "who, what, where, and when the photos were taken." Mr. Romano also attaches a Verizon bill demonstrating a joint account, a bill from a joint TD Bank account, and credit cards under the same account issued to both the deceased and Mr. Romano. They "formed a life together, yet kept [their] own apartments in order to provide [them] comfort and space." Mr. Romano knew about [O'Neill], but they were not friends. "We all grieve the loss of Scott." …

[O'Neill] also recounts his relationship with the deceased. [O'Neill] states that he met Mr. Anderson in 2011. They "hit it off immediately." "After hanging out together" and sharing various activities, they "became more than friends and more than close despite [Mr. Anderson] being in another relationship." When [O'Neill] was searching for a new apartment, Mr. Anderson "immediately offered [him] a room in the subject premises, a one-bedroom apartment, provided that I agreed to keep [their] relationship quiet and discreet." [O'Neill] avers that he "moved in in 2012." [O'Neill] "know[s] all about Robert Romano and his relationship with Scott, and [he] know[s] [Mr. Romano] does not like me." [O'Neill] states that Mr. Anderson spent "substantially more time" with him than with Mr. Romano." He describes a trip they took together to Boston for [O'Neill]'s birthday, where they shared the cost of the train and Spamalot tickets. Mr. Anderson surprised him with two Spamalot goblets "which [he] still cherishes and [has] to this day." [O'Neill] states he was never invited to visit Mr. Anderson's family in Maine where Mr. Anderson traveled several times a year. He would miss Mr. Anderson whenever he was absent, the "late night cocktails and banter, or watching old movies together, or sometimes just falling asleep holding each other then getting up and making breakfast since I love to cook and he loved my cooking." On one of those trips, Mr. Anderson brought [O'Neill] a candle which he keeps on his nightstand "to keep his memory and ours alive and loved." [O'Neill] states that when Mr. Anderson had problems with Mr. Romano, Mr. Anderson would cry on his shoulder, grateful for his love and support, and said that "someday [they would] be able to make [their] relationship official." [O'Neill] states that he provided a "loving, understanding, and forgiving heart to come home to." "When [[O'Neill]] contributed to the household expenses," including rent, he would make those contributions to Mr. Anderson in cash from his tips as a bartender. He often made deposits into what he later discovered to be a joint bank account that Mr. Anderson held with Mr. Romano. Often, he simply gave Mr. Anderson "walking around money" when he asked for it. He "would make the payments … however [Mr. Anderson] requested each month."

Discovery is needed, [O'Neill] urges, to show that he made cash deposits into Mr. Anderson's joint bank account with Mr. Romano, to contribute to household expenses and rent.

In reply, [the company]'s attorney characterizes [O'Neill]'s affidavit as a "fairytale," unsupported by any documents in support of a non-traditional family member succession defense. [The company] contrasts this lack of documentary evidence to that provided by Mr. Romano who does not reside in the premises….

Comments

[Ken Arromdee]

Didn't someone, I think his last name started with a V, write a paper about why the slipepry slope is a real thing? Well, this is certainly an example of it.

Remember when everyone laughed at the idea that gay marriages would lead to polygamy being accepted by the law?

[MatthewSlyfield]

It was never everyone. However those of us not laughing were solidly in the minority.

[Gospace]

Funny, I was going to comment the same idea- but I don't have to.

[Nige]

Personally, I didn't laugh, I said so what? Different strokes for different folks.

[Ed Grinberg]

Slate pitches don’t faze you if you are Slate (or Ilya Somin).

[BravoCharlieDelta]

If two homosexuals deserve the dignity of the State recognizing their love, who doesn’t also deserve that same dignity?

State marriages licenses should be available to everyone and everything include my pets. My two dogs deserve State conferred dignity and they should be allowed to gay marry each other.

[Michael P]

Your dogs are not competent to enter into legally binding contracts.

[DWB]

I've met dogs who are more competent and loyal than many humans

[BravoCharlieDelta]

Neither are children but that's not stopping the Left from trying to have sex with them, let them have irreversible genital mutilations, or abortions.

[Nige]

Where are child marriages legal?

[Jon Rowe]

"Child" marriages were actually more part of the older, more traditional order, before the 1960s watershed. Among others, Jerry Lee Lewis and Lorretta Lynn were involved in them in the South in the 1950s. One party was 13 or 14, the other someone at least 18 or older.

[Nige]

Yes, it's the fact that it persists in certain areas of the US while yahoos try to link sex with children to gay marriage that I find somewhat revolting.

[BravoCharlieDelta]

The problem for you is you can't unlink gays from sex with children, or sex with dogs apparently.

[Nige]

No, your problem is you can't link them no matter how hard you try, whereas 'stright' child marriage is legal in certain red states.

[BravoCharlieDelta]

1 in 6 boys are sexually assaulted.

1 in 50 males are homosexual.

Homosexuals are defined as males who are attracted to other males.

Those three facts mean _________________.

QED

[Nige]

_________________ that sexual assault and child abuse are against the law, except in red states where child marriage is legal. Of course that's 'straight' child marriage, maybe that doesn't count for you.

[BravoCharlieDelta]

Separate this.

[Nige]

Children hanging around people in costumes? Like Disneyworld? Horrible!

[BravoCharlieDelta]

What body part on the adult is that little girl touching?

[Nige]

What do you want to do, arrest the child for touching an adult? Arrest the adult for being touched by the child?

[WuzYoungOnceToo]

Children hanging around people in costumes? Like Disneyworld? Horrible!

You really are a piece of shit.

[Nige]

You know this to be true. You can't explain why.

[Social Justice is neither]

If you've ever discussed anything with a progressive you'd realize the dog has a more coherent grasp of the world around it.

[AmosArch]

I don't believe polygamy should be discriminated against especially if we allow SSM. I'm serious whats the logic? We should also revisit the rationale behind incest, zoophilia bans etc.

One of the main things that irk me about the LGBTFDDFKLDLRE movement is how they're not really against discrimination against sexuality period, just only some types. They pick and choose and are okay with continued bigotry and discrimination far beyond what they've ever suffered. Its the ultimate 'we've already gotten ours'.

[Josh R]

The logic is twofold:

1) As most commonly practiced, polygamy (one-man/many-women, with the man married to each woman, but the women not married to any other woman) subjugates women and requires the forced removal of young men from the community.

2) Some legal recognition creates practical problems. One example is spousal health insurance coverage. Are each of the two spouses in a three-person marriage without their own health insurance fully covered by the one spouse who has coverage? Are they each partially covered?

[David Nieporent]

Also, polygamy is not a sexual orientation.

[AmosArch]

what are you talking about? A guy can have an natural urge to nail multiple woman just like a guy can have an urge to bugger another man but you're going to delegitimize the former and deny him his rights? Talk about hypocrisy.

[Josh R]

David is arguing, persuasively in my view, sexual orientation is a trait (who you are) while polygamy is a behavior (what you do).

[AmosArch]

some animal species hook up with multiple partners some are monogamous. Some people have an innate urge to have multiple partners. How is this any less of a ‘trait’ than being gay? Its not like they read a book by Nietzche or Kant to get the idea for one but not the other. Sounds like ‘we don’t hate gay people just homosexuality’ talking points by 80s christian fundamentalists. Admit it, in the end you guys are moral prohibitionists too. you just pick different things to restrict.

[Josh R]

I don’t doubt that many men, likely the overwhelming majority, have an innate urge to have multiple sex partners. However, likely the vast majority can also have happy, fulfilling sex lives with a single partner as well. In contrast, scores of people can only have happy, fulfilling sex lives with a partner of the same sex.

I also agree there is a selective moral judgment being made. But, the moral rejection of polygamy is based on the equality of women while the moral rejection of same-sex relationships is based on a tautology that same-sex relationships are sinful.

[AmosArch]

I don’t doubt that many men, likely the overwhelming majority, have an innate urge to have multiple sex partners. However, likely the vast majority can also have happy, fulfilling sex lives with a single partner as well. In contrast, scores of people can only have happy, fulfilling sex lives with a partner of the same sex.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Another declaration with zero empirical evidence to back it. Did you hook up a statistically significant group of gays and polygamists to a machine and measure the happiness gain with a simulated legalization of gay marriage and polygamy and had it come out much larger for gay people?

Or are you assuming this because the gay movement is a lot more popular than the polygamy movement? So we should grant rights based on popularity I guess? You know feminists and LBGTDFDKLF didn't bellyache nearly as much until recently when were stirred up by communist busybodies. So maybe if we had kept a lid on all the social justice nonsense they would have been happier with the status quo too just like all the potential polygamists now.

>>>>>>>>>>>>>>>>>>>>>>>>>>
But, the moral rejection of polygamy is based on the equality of women while the moral rejection of same-sex relationships is based on a tautology that same-sex relationships are sinful.
>>>>>>>>>>>>>>>>>>>>>>>>>>>

How does the government forbidding an adult woman from entering into a relationship she wants to be in give her 'equality'? Are you seriously not seeing how incoherent you sound? Why not say 'women should be forbidden from having abortions for equality'. Both are no less a non sequitur than 'gay marriage is sinful'.

[MatthewSlyfield]

"But, the moral rejection of polygamy is based on the equality of women"

Strange then that the moral rejection of polygamy happened centuries before women achieved legal equality.

[Josh R]

I don't find it strange that one of the worst aspects of inequality was wiped out before more full equality was achieved. And I find AmosArch's claim that women want to enter into polygamous marriages unconvincing.

[AmosArch]

@Josh maybe not a lot but some certainly do. So I guess they don't deserve rights because they are a minority?

[Josh R]

I'm fine with a few being denied when the vast majority are not voluntary.

[WuzYoungOnceToo]

I’m fine with a few being denied when the vast majority are not voluntary.

You're claimng that "the vast majority" of polygamous relationships in the U.S. are "not voluntary"?

[WuzYoungOnceToo]

However, likely the vast majority can also have happy, fulfilling sex lives with a single partner as well.

Sure...if you completely ignore all of the statistics on divorce and infidelity, which you appear to be doing in service to your adherence to a fantasy-based view.

[Michael P]

A lot of people argue that sexual orientation is a trait, while same-sex sex (or marriage) is a behavior.

I don't find an ipse dixit remotely convincing about what is or is not a sexual orientation. Even if we think that sexual orientation has constitutional significance, lots of polyamorous people claim -- and I suspect honestly believe -- that polyamory is an innate trait of theirs.

[Josh R]

Of course marriage and sexual relations are behavior. But if you don't permit them between same-sex partners, you are discriminating against gays.

[MariamDanelyan]

Nonsense. Prohibiting marriage between same-sex partners does not discriminate against gays, as they were held to the same standard as heterosexuals. It's not discrimination if what the law allows for everyone doesn't practically work for everyone.

[Josh R]

It's discrimination because only gays weren't allowed to marry their lover.

[Davy C]

It’s discrimination because only gays weren’t allowed to marry their lover.

You're also not allowed to marry your lover if you or your lover are already married (or recently divorced), or a close relative, or under a certain age, or not mentally competent.

The problem is that "gays" is a category of people who want to do a particular thing. If you categorize people by what they want to do, you can make anything illegal discrimination.

[Josh R]

Indeed, we do discriminate against people who wish to marry in the examples you gave. And for good reason in each case. Moreover, we don't characterize sexuality by what you do. Which sex you are attracted to is a trait.

[WuzYoungOnceToo]

Indeed, we do discriminate against people who wish to marry in the examples you gave.

OK, so you acknowledge that your claim of...

It’s discrimination because only gays weren’t allowed to marry their lover.

...was bullshit.

And for good reason in each case.

Which is irrelevant when you remember (or apparently learn for the first time, in your case) that nobody is/was prohibited from "marrying" anyone. What was prohibited was state recognition and sanctioning of certain marriages. That official sanctioning was provided not because it is/was some sort of human right, but because doing so was deemed as being beneficial to society/the state in various ways (like stability, child welfare, etc).

[BravoCharlieDelta]

Is sodomy a behavior or an identity?

[Nelson]

Depending on how kinky your wife is, it might be the first Monday of every month.

[WuzYoungOnceToo]

Nothing says "kinky" like sex that follows a schedule.

[KenveeB]

Or maybe he can nail as many women as he wants, but that doesn't mean he should be granted full marital rights as to each and every casual partner?

[AmosArch]

1) As most commonly practiced, polygamy (one-man/many-women, with the man married to each woman, but the women not married to any other woman) subjugates women
>>>>>>>>>>>>>>>>>>>>

whats subjugation? Is it something objective or is it some subjective concept you simply apply to what relationship makes you uncomfortable? Who says a male has to be the dominant party in a male multi female relationship? Who says a woman can't have many men? who are you to forbid someone from entering a social relationship they want to 'for their own good'? I can just as easily say SSM should be forbidden because one male 'sodomizes' the other. You're starting to sound like one of those 80s Westboro baptist protestors.

>>>>>>>>>>>>>>>>>>>
and requires the forced removal of young men from the community.
>>>>>>>>>>>>>>>>>.

what are you talking about? Who is being removed? According to your own camp polygamy doesn't necessarily lead to social collapse with tons of incels. Muslims have done it for centuries and SJW historians heap tons of praise upon them.

[Josh R]

I'm commenting on how polygamy has been practiced (see for example the Mormons). And yes, the boys were kicked out of some such communities when they grew up because there are no mates for them.

[AmosArch]

For most of known human existence there was no particular restriction on polygamy. Theres all sorts of weird things that are legal that never catch on in mainstream society. Theres no reason to think that there will be an explosion in it in modern western societies that will drain the female population and turn the male population into incels the second it is legalized or even in the foreseeable future. Thats just a figleaf justification to hide the fact you want to ban a sexual practice between consenting adults because it disgusts you like Christian fundies want to ban homosexuality because it disgusts them. But at least they aren’t pretending to be woke enlightened tolerant social justice warriors.

[Krayt]

Bible-approved marriages only!

One man, one or more women, and a bunch of concubines!

[AmosArch]

Are you talking to me or Josh? I'm not the one arguing for controlling a woman's choices based on some moral doctrine. He is.

[mad.casual]

2) Some legal recognition creates practical problems. One example is spousal health insurance coverage. Are each of the two spouses in a three-person marriage without their own health insurance fully covered by the one spouse who has coverage? Are they each partially covered?

The only way this presents a logistical problem is largely the same way SSM (didn’t) presents a logistical problem. My health insurance coverage required me to stipulate my spouse by name. She's primary on hers, I'm primary on mine. My company’s vision plan covers all dependents, regardless of number. My dental plan covers only me. The ACA can auto-magically make insurers cover everyone until they're 26.

Don’t get me wrong, I think the government should be out of marriage at all levels. Common law at best. But OSM, SSM and nothing else is discriminatory against stable, non-sexual relationships in favor of occasionally-stable sexual ones.

[not guilty]

The decision discussed in the original post is not an extension of Obergefell v. Hodges. It appears to be based on a New York Court of Appeals decision from 1989 which interpreted rent control statutes. https://casetext.com/case/braschi-v-stahl-assocs-co-1 That decision did not legalize same sex marriage; indeed, it predated any state recognizing prohibitions of same sex marriage as being unconstitutional.

Neither the instant decision nor the 1989 precedent it applies is based on constitutional interpretation. If the New York legislature disagrees with the result here, it is free to amend or modify the applicable rent control statutes.

[NOVA Lawyer]

This. It turns on an interpretation of the word "family" not marriage and is in the context of constructing state law. It certainly borrows some reasoning from same-sex marriage cases and openly ponders whether they don't go far enough, but this is a case of statutory construction, not constitutional interpretation.

[DWB]

And they are well down the road advocating for sex with children -- almost like they lied when they called gay-marriage dissenters "bigots!"

[Gospace]

Well down the road as in already advocating it.
https://www.theamericanconservative.com/sex-with-children-the-gender-ideology-end-game/

[Nige]

Yes, if you think gay marriage is a step to advocating for sex with children then you are a bigot, and also ignorant - child marriage is legal in some US states, and was so before gay marriage.

[DWB]

I'm not talking about marriage -- I am talking about adults of any age having sex with children. And if that is your thing you DESERVE any bigotry sent your way.

[David Nieporent]

I am talking about adults of any age having sex with children.

But enough about Roy Moore.

[DWB]

Who knew he was a civil rights pioneer!!!!!

[Jason Cavanaugh]

Don't forget Matt Gaetz, the sex trafficker.

[Michael P]

You have exactly as much credibility as the guy who tried to extort the Gaetz family over scurrilous lies. The DOJ has reportedly decided to abandon the case because the only evidence they have is accusations from people with serious credibility issues.

[Sarcastr0]

Reportedly!

[Michael P]

We should find out in a few days whether the recommendation of the career prosecutors is accepted, or whether Biden's apparatchiks override the non-partisan decision.

[Nige]

Or whether the rumour was bullshit.

[BravoCharlieDelta]

Well if the Russia Hoax is any indication, the FBI will secretly put the accusers on the payroll and unconstitutionally spy on and harass Gaetz for years to come.

[Nige]

Yes you are. You are claiming that one leads to the other. I'm just pointing out that straight marriage has already lead to that, or at least incorporates it in certain areas. But since it does not incorporate it it in other areas, perhaps it isn't intrinsic to either.

[DWB]

I am saying that is properly categorized with other abnormal, unnatural and immoral sexual practices. Gay male Catholic priests are way overrepresented in the molestation department.

Now unless you want me to believe fancy buildings and smoke cause men to rape little boys...

[Nige]

Yes, there are 'ideal' conditions where the molestation of boys goes on, just as there are 'ideal' conditions where the molestation of girls goes on, but those conditions have nothing to do with gay marriage, and I do not accept that homosexual attraction is abnormal, unnatural or immoral.

[DWB]

No, it's just some a total coincidence that a group of men who were themselves molested/seduced as children seek to do the same to children themselves -- not connection at all!!!!!!

It was predicted and is happening.

[Nige]

What men who were molested as children? What are you talking about?

[BravoCharlieDelta]

Oh no, not that power-word "bigot", that's such a weighty and meaningful attribution! I better do everything possible not to be called the dreaded "b-word" by people like Nige!

[Nige]

Trying being a better person, that helps.

[BravoCharlieDelta]

Your definition of "better person" is really "bootlicking serf to the rich and powerful elites".

No thank you.

[Nige]

Told off for boot-licking elites by a guy who voted for a crooked real estate developer with a gold toilet.

[BravoCharlieDelta]

A billionaire land mogul, TV star President whose married to a model and bangs playboy bunnies on the side.

The only thing he’s missing is being an astronaut or WW2 hero from being the greatest American to ever live.

Meanwhile you have literal royalty who is sovereign.

[Nige]

That's two paragraphs of boot-licking an elite, followed by a factually incorrect statement.

[Joe_dallas]

I was an advocate for creating same sex marital statutes under each states family code for at least 10 years prior to Obergefell.

Every state has restrictions on marriage and protections enacted through the democratic process.

that being said, the legal rational in obergefell was pathetic.

This case is an example

restrictions on marrying your cousin, you sister, your parent, three person marriage, the 12 year girl , and any other restrictions based on the democratic process become invalid under logic of Obergefell.

[Toranth]

The logic was terrible, but the opposition wasn't much better. Why should only some religious ceremonies get government acknowledgement, but not others?

The government should stay out of it, and just let contract law handle it.

[Sarcastr0]

This turns out to be an unpopular view,

Have you considered why? You will never convince anyone unless you meet them where the live. And libertopia is not where they live.

[Toranth]

For as little attention as it gets, it polls surprisingly well. Several states have proposed such laws, and even held votes for them with actual support.

But yeah, while almost half of people like the idea in abstract, trying to actually change how something as basic as marriage works runs into all sorts of inertia and institutional resistance.

[Krayt]

Again, I have to keep repeating this. This is the unimportant government addendum to marriage.

Real marriage is solemnized by God. State shoving a paper in a cabinet is for its own legal reasons, primarily splitting up later, which is a false sin in most religions anyway.

In short, the government part is foolish mortals pretending their fumble-fingers have any relationship to the actual marriage status.

Given that, why religious folk care if the state recognizes gay marriage is incomprehensible.

[Michael P]

A government has very practical reasons for recognizing marriages, independent of the question of which marriages are solemnized by any deity or deities.

And each member of the polity has as much interest in the government's recognition of marriages as they do in other, similarly momentous, government policies.

[Sarcastr0]

Real marriage is solemnized by God

Says you. There's the rub - plenty of folks want it solemnized by the state.

You may be Christian essentialist enough you hate that, but that's the issue you need to deal with.

[BravoCharlieDelta]

Only bootlickers and State worshippers want that Sarcastr0

[Nige]

'bootlickers'

'Ooooh Trump could be an astronaut or a WWII hero, slurp slurp.'

[JohannesDinkle]

Why do we bother with legislators? Courts can do everything on the spot. I mean, who before 2021 even knew about gay people or polygamy? If a state assembly can not define marriage, then why stop there? Wait until your daughter is 18, then marry her. Those years grooming will not have been wasted.

[Nige]

Oh no.

Anyway.

[Kleppe]

Keep fiddling.

[Sarcastr0]

Polygamy is America burning?

Get off your fainting couch and explain.

[Nige]

Well, the Devil came down to Georgia, so...

[Rev. Arthur L. Kirkland]

Lathering the rubes;
the right-wing law professor,
lathering his rubes

[Heedless]

Oh no!

Arthur, for a few glorious moments you were writing posts with actual content. And now you’ve gone back to writing the same thing over and over.

Doing it in haiku doesn’t make it more interesting.

Be original!

[Rev. Arthur L. Kirkland]

If you didn’t like reading the same thing over and over you would not be reading anything at The Volokh Conspiracy.

Other than that, though, great comment!

[Heedless]

And the wit emerges again.

Don’t hide your light under a bushel.

[Rev. Arthur L. Kirkland]

Do you advance similar objections to the repetitive contributions of many right-wingers at this blog . . . or it is just the reasoned, liberal-libertarian, mainstream commentary -- disrupting this blog's steady stream of delusional, bigoted, uninformed comments -- that precipitates a complaint from you?

If my comments bother you, why not head toward FreeRepublic, RedState, or Stormfront? You would find similar content without the bothersome meddling of commenters who are not reliable Republicans.

[Dan Schiavetta]

Braschi didn’t legalize same sex marriage (and no one at the time claimed that it did) and this sub-lower court decision doesn’t legalize polygamy.

[Krayt]

The point was the slippery slope was suggested during gay marriage debate, and it was pooh poohed as nonsense.

Yet here we are, firing it up.

I have no problem with it, as it's free adults doing what they want, but many progressive proponents of gay marriage only adopt that principle when it serves a goal, and abandon it when it doesn't.

[NOVA Lawyer]

Yes, here we are over 15 years later and the great leap forward is a tentative decision denying summary judgment based on the finding that the two people living together could have constituted a "family" under rent control law notwithstanding one of them was in a romantic, sexual relationship with someone else. I'm not sure this even puts you near the slope, much less anywhere but the very top of it. 15 years later.....

[Nelson]

"Yet here we are, firing it up."

Yes, it's called incrementalism. Instead of lurching wildly back and forth between radical laws based on the most fringe ideas of the two parties, small changes that correct past injustices and move towards equitable treatment of all citizens (and reflect the will of the people) are implemented slowly over time.

It is a vastly superior method than the bare-knuckle hate-fest that benefits the fringes of each party, but screws over the moderates that want effective legislation.

The fact that culturally conservative beliefs are increasingly rejected by the majority of Americans isn't a problem, it's a message.

[Kleppe]

How strange! I have vivid memories of leftists assuring me that legalized same-sex marriage wouldn't result in this sort of nonsense. Huh.

[Brett Bellmore]

I must be older than you: I have vivid memories of leftists assuring us that prohibiting sex discrimination wouldn't lead to same sex marriage.

That said, the legal case for polygamy, from an originalist standpoint, is vastly stronger than for same-sex marriage. It's a traditional form of marriage going back as far as marriage goes, and has always been legal in a large part of the world. So, unlike SSM, polygamy neatly fits into an originalist understanding of the word, "marriage".

[Michael P]

In a polygamous marriage, are the wives married to each other, or only to the man?

[BravoCharlieDelta]

To the man since they aren't degenerate.

[Nelson]

So in your view polygamy isn't degenerate? Can we hold you to that?

[Seamus]

You were also given such an "assurance" by Eugene Volokh, who, you will note, freely acknowledges that this example might be cited as refuting that opinion. He goes on, however, to note that this is just one opinion by a low-level court.

So at the moment there's a cloud no bigger than a man's hand, which may or may not turn out to be a full-scale rainstorm.

[WJack]

Looks like Juder - Christian Western Civilization has run its course. At any rate the symptoms of decay and decadence ought to be obvious to all, but the most oblivious.

[Krayt]

Run its course? It's getting back to its ancient roots.

How dare people step on the Bible-approved multimarriage!

[Nelson]

Judeo-Christian civilization isn't the worst, but it certainly isn't the best civilization.

[Rev. Arthur L. Kirkland]

Quit whining. Maybe pray on it a spell and see where that gets you, clinger.

[The Margrave of Azilia]

You realize that a lot of the people who would love to have polyamory rights have a fairly rigorous prayer life…five times a day I understand.

For someone who professes to hate theistic religious believers, you sure hop into bed with a lot of them.

[Rev. Arthur L. Kirkland]

I was hopping into no bed. I was mocking WJack's cranky, tiresome ode to illusory good old days and the similarly illusory world of superstition -- and managed not to place my comment in a manner that would have clarified that point.

I generally see no flavor of religion as demonstrably superior to another. People are entitled to believe as they wish.

[The Margrave of Azilia]

The progressive coalition you admire - marching forward with steady step, stomping on clingers - contains plenty of religious people, but you would prefer to pretend all the religion is on the side of the hated Other.

Subtract the crystal-gazers, the wiccans, the leftist members of various religious groups - Protestants, Catholics, Hindus, etc. - and your Coalition of Progress would get a lot smaller.

So of course you prefer some religions to others...at least for now. Maybe you plan to dispose of your religious allies after the Revolution, when it comes time to settle accounts with erstwhile comrades?

[Rev. Arthur L. Kirkland]

Not all religious people are backward, bigoted, authoritarian, and/or ignorant. Not nearly.

[The Margrave of Azilia]

So, Rev. Brownshirt, was your anti-religion rhetoric merely rhetorical camouflage, a feint to fool the reader? Or were you telling the truth about your anti-religious attitudes?

In either case, your religious allies may want to reassess climbing into bed with the likes of you.

[Rev. Arthur L. Kirkland]

I prefer reason to supernatural or superstitious religion. Strongly.

People should be entitled to believe as they wish. Competent citizens neither advance nor accept supernaturally based arguments or assertions in reasoned debate among adults, particularly with respect to public affairs.

Religion has precipitated a substantial volume of good. It causes some people to be charitable (although the role of recruiting and indoctrination in that context often diminishes the altruism). It provides comfort to some, particularly when they are overmatched by events. It can provide a sense of order to people who seem to need that.

Religion has generated at least as great a volume of bad. Religion avidly pushes sacred ignorance, dogmatic intolerance, and opposition to progress, science, and reason. It teaches nonsense in the guise of education. Religion has precipitated wars, holy torture (the Bible favors fire), and other atrocities. Trying to measure the good against bad, and trying to be charitable, I am willing to call it a wash.

I do not believe religion improves bigotry or transforms that bigotry into anything other than bigotry. A religious gay-basher is just a particularly gullible bigot. People who defend superstition-based bigotry are generally lousy people.

[The Margrave of Azilia]

You’ve replaced your generic condemnation of religion with an “if-by-whiskey” speech:

https://en.wikipedia.org/wiki/Noah_S._Sweat#The_%22whiskey_speech%22

(Since you seem to think religion as equivalent to whiskey)

Basically, you backed away when challenged, emitted a cloud of digital ink, and came down firmly on both sides of the question.

Consider the words of a clinger who somehow (despite his superstition and bigotry) managed to do more for his country than you could even dream of doing:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

"It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?"

https://avalon.law.yale.edu/18th_century/washing.asp?wb48617274=62C89638

[Rev. Arthur L. Kirkland]

I have expressed this view of religion for many years.

It may seem I generally condemn religion at this blog because this blog cultivates a relatively homogeneous audience of right-wing bigots who use religion to try to advance and justify their bigotry. I condemn those right-wing bigots and their use of religion. Religious people who are not bigots don’t show up much at this white, male, conservative blog so there is relatively little opportunity or reason to discuss religious believers who are not racist, misogynistic, gay-bashing, xenophobic Republicans.

[BadLib]

For my entire adult life (and I am not young) I have believed that the thing that the law calls “marriage” should simply be a convenient “prepackaged” contract between individuals that many people will want to enter into. Albeit such a contract is one that legislative whim can alter unilaterally to deal with new situations (although, if partners in a marriage agree, all such alterations should be reversible by a private contract among the partners). As well, there should be nothing implied by “marriage” that could not be achieved by private contracts among partners in a marriage. “Church” marriage and “legal” marriage are/should be completely different and unrelated concepts that, unfortunately, have the potential to be confused as they are homonyms (which a good reason to find a new word for the “legal” marriage).

This prepackaged “legal marriage” contract covers all sorts of things such as asset distribution if someone dies intestate, tax rates, right to make medical decisions if one party is unable to do so, and some level support for “non-breadwinners” in the event of dissolution of such a marriage. Note though that it does not include the right of one partner to engage in sex with another partner without mutual consent (that would be “spousal rape” — something that cost me two weeks of my life when I was on a jury about just that).

Gender of the parties should be irrelevant.

The relationship between the partners should also be irrelevant. Two brothers should be able to marry, a brother and a sister should be able to marry, a mother and son should be able to marry. I do think society has a legitimate interest in avoiding an increase in birth defects that can arise from incest due to “in breeding” as those with such defects suffer and society has an increased likelihood of having to support such individuals. However being married doesn’t infer a right to engage in procreative sex and not being married doesn’t disallow engaging in procreative sex — so just make procreative sex with immediate blood relatives illegal regardless of marital status. Two brothers marrying, two sisters marrying, or a brother and a sister marrying where the sister is post-menopausal don’t pose any risk of in-breeding anyway.

The number of people in the marriage should also be irrelevant (except perhaps that it must be two or greater and perhaps that no individual can be in two marriages at the same time – the latter just for practical reasons). However, from a practical standpoint, that would require many changes to so many laws it may be impractical and those laws would become more complicated. For example, it would be a bit of a mess to codify what happens if n, where n is an odd number, people are in a marriage and one becomes incapacitated and n/2 partners want to “pull the plug” and the other partners all want to “do everything possible to extend life”, who decides? Or what if one person in a seven person marriage wants to exit the marriage – what sort of support payments must they make or receive? Complex laws do create problems.

[For how even simple, let alone complex, laws can create problems for the justice system, one need not look further than the ridiculous Rittenhouse case. Binger charged Rittenhouse with a crime that clearly Rittenhouse could not have been guilty of primarily because he was 17 at the time so the statute didn’t apply to him. A few minutes looking at three (IIRC) short, but intertwining, statutes made that clear. Anyone who got a score on the LSAT that would have qualified them for consideration for admission to any accredited law school should have figured this out with just a few minutes of effort. Yet Binger charged it anyway (perhaps knowing that he was overreaching — something that should result in disbarment IMHO as knowingly charging a defendant with a crime they could not be guilty of should be criminal) and the judge waffled about it before finally saying the law was “confusing” (when it was not) and (correctly) dismissing the charge.]

[Archibald Tuttle]

Oh boy. Oh boy. Now all I gotta do is to convince 25 other women to marry me.

Wish me luck. I'm not rich, I'm not a hunk, so I'll need the luck.

[The Margrave of Azilia]

Are you an American? You might start looking for 25 women abroad who want visas.

[Michael P]

Ilya Somin would endorse that plan!

[Jerry B.]

Why should I care how many people of any sex, gender, or sexual attraction join in marriage, as long as they’re competent to understand what they’re getting into?

A contract would be a good idea.

[Krayt]

It is a contract already: a public declaration before signed witnesses.

[Longtobefree]

You should care because, as long as governments use "marriage" as a legal condition of many tax policies and benefit qualifications, you will be paying for the consequences.
"marriage" should have remained a religious institution, and governments should have stayed out of it.

[ReaderY]

There are basically two rationales behind workplace racial discrimination laws. One is that it is intrinsically immoral. But the second is an analogue of the theory behind the common carrier doctrine. If a single person with a small business wanted to hite only white people, then nobody else would be affected. But if it became pervasive enough in society that most (or at least a large enough proportion of) white people did it, AND there was a power imbalance, so the white people did most of the hiting, then black people would be out of luck. You need a job to function in society; white people would have the market on jobs cornered, and black people would simply have to be poor.

Laws against polygamy have the exactly the same two rationales as racial discrimination laws. Like racial discrimination, it is deemed immoral. And exactly as in the case of racial discrimination, if you have a power imbalance, so that a few powerful men marry multiple women, (similarly ifthere’s a power imbalance on the same-sex side), then a lot of less powerful men will be out of marriage partners in exactly the same way that, as in the case of racial discrimination, a lot of the less powerful end up out of jobs.

Society can rationally correct this imbalance. Quotas on marriage partners serve the same purpose as racial discrimination laws; they ensure that the less powerful aren’t left out in life’s game of musical chairs by the powerful being able to hog multiple chairs.

Indeed, Heart of Atlanta made the state’s power primary and Comgress’ derivative. Congress can, in the field of interstate commerce, enforce morality laws. And the idea that the powerful shouldn’t double-dip so that the less powerful can have some is simply a moral idea, the moral idea that’s behind both kinds of laws. Congress’ power to enforce racial discrimination laws is in this sense derivative of the state’s police power to enforce morality in family life.

I think that if tihis decision holds, then racial discrimination laws ought to be struck down. While a majority of justices may personally fond there sex lives more important than their vocations, I don’t think there’s any warrant in the constitution to impose this personal preference about what they personally find most important in their own lives on everybody se. And absent a claim that the constitution itsself demands that people consider their sex lives more important to their identity than their vocations, which is acknowledgedly the claim the Court has made these past few decades but which has no basis in the constitution’s text, there is no more basis for the one to be the state’s business than there is for the other.

[Krychek_2]

It's my understanding that the penalty for bigamy is two mothers in law. And, a divorce client once told me that you don't have to be a bigamist to have one wife too many.

[Dan Schiavetta]

Thanks I’ll remember that one

[legalizeshrooms]

This polyamorous relationships stuff seems a great deal more complicated than same sex marriage. How does someone new join the union. How does someone else leave? What if a love triangle forms?

[Michael P]

There are an awful lot of hard practical problems like that if the state or others recognize a marriage of more than two people. (Would the state-or-others then be fourth or fifth parties rather than third parties?)

Some commenters here make moral arguments that recognizing such marriages is morally proper regardless of the challenges. Whether such arguments should be accepted is itself an argument on multiple levels: Would it be part of, or a proper extension of, a fundamental right? (If not, the state would have much more discretion in deciding whether to recognize such marriages.) Can the practical problems be reliably solved? (The knottiness of current divorce proceedings suggests that this isn't a major driver.)

[Nelson]

If it is a contract between parties, it has to have happened before in the history of contracts. How does adding a new, equal partner into an existing two-party (or three-, four-, etc.) contract work?

[NOVA Lawyer]

It's not impossible, but it is complicated. It's one answer as to why there are rational (at least) reasons that would support limiting marriage to two people. (Just as state laws limiting certain business entities to a specified number of people have a rational basis.)

I don't have a dog in the fight, but I don't think those worried about the slippery slope to constitutional recognition of a right to polyamory have anything, really, to worry about (particularly given the Supreme Court as currently constituted and as will continue to be ideologically constituted for the next generation, at least) is more likely to overturn Obergefell than to extend it to polygamy.

But apparently some people enjoy clutching pearls about things that don't impact their life at all, however they turn out.

[wreckinball]

It's why government shouldn't be in the marriage business

[Ben_]

Government is going to be in every business so you have to pay them to authorize you to live your life.

[MariamDanelyan]

All along, constitutional conservatives said that the problem with the Windsor and Obergefell line of reasoning was that they weren't asking for the same marriage rights to be "extended" to them, but they wanted to do something else and call it marriage.

Then leftists dishonestly said "No, marriage is a contract between two consenting adults," although that was patently untrue for most of history.

Once we went down the road of asking to do something else and calling it marriage under the guise of "extending" the same rights that heterosexuals had, it was only a matter of time before the palpable bad faith in the argument was exposed, as there was no limiting principle that marriage had to be limited to "two" consenting adults.

And here we are.

[Nelson]

"they weren’t asking for the same marriage rights to be “extended” to them"

That is exactly what they were asking for. There isn't a new set if laws concerning marriage rights, the existing laws just include gay marriages now.

"Then leftists dishonestly said “No, marriage is a contract between two consenting adults,”"

That's exactly what marriage is. It has a lot more baggage than your average contract, but ultimately there's no difference.

"And here we are."

Do you want to add something like "I hope you're happy with yourself" or some other phrase to highlight your disapproval?

[MariamDanelyan]

Stop lying. You've just proven my point.

[Josh R]

What lie?

Since the claim "marriage is a contract between two consenting adults" is a matter of opinion, that can't be a lie.

Perhaps you are arguing that the claim was made in bad faith to open the door to polygamous marriage. That might be true for some people, but Nelson just said marriage doesn't apply to more than two people. So, it's hard to see how he is acting in bad faith.

[MariamDanelyan]

No, what I'm arguing is that, prior to the modern legislative/judicial actions, marriage was a contract between one man and one woman. The left dishonestly stated, from the beginning, that marriage was always a contract between two consenting adults. It was begging the question.

Same-sex marriage was about redefining marriage, not just extending the current definition of marriage to other people.

[Sarcastr0]

Or maybe cultural acceptance has changed and equality for gays in marriage was a symptom not some enabling cause.

And you have been left behind and are getting real hateful with it.

[MariamDanelyan]

If it was culturally accepted, why couldn't its proponents have been honest about it? "Yes, we are trying to redefine marriage, and it's the right thing to do because ___________"

[Sarcastr0]

It wasn’t at the time. This is how progress works. It’s been 15 years.

[Nelson]

Waaaa! Waaaa! Waaaaa! People aren't as self-righteous and sanctimonious as they used to be so now the special treatment we used to get is available to everyone now! We're going to whine and cry!

[MariamDanelyan]

Fuck off, cocksucker.

[Sarcastr0]

I like how you insist anyone for a right to gay marriage must be gay.

According to polling, those gays are everywhere!

[Rev. Arthur L. Kirkland]

If I were an obsolete right-wing bigot in modern America, I’d probably be just as cranky as Miriam seems to be.

[Josh R]

The left dishonestly stated, from the beginning, that marriage was always a contract between two consenting adults. It was begging the question.

They concluded marriage should have always included same-sex couples because they felt marriage should be defined by its purpose, not its historical practice (and that argument does not beg the question)

Same-sex marriage was about redefining marriage.

And, that’s your conclusion based on your belief that marriage was defined by its historical practice. But, it’s a matter of opinion on what basis marriage should be defined. So, no one is lying.

[MariamDanelyan]

No, we're talking about what the law was. But you fairies knew that you didn't have a winning argument in court demanding that marriage be redefined, so instead, you just dishonestly stated that it wasn't "extended" to you and your butt pirate friends.

[Rev. Arthur L. Kirkland]

You are precisely the type of person the Volokh Conspiracy works to attract, Miriam.

[Nelson]

The law hasn't changed. Or, more accurately, the dozens or possibly hundreds of laws that define marriage haven't changed. The only difference is who has access.

Marriage is exactly the same as it was before. It just isn't a set of special benefits for heterosexuals any more. Everyone has equal access to those benefits.

[MariamDanelyan]

No, the law has changed. Marriage was redefined. Stop lying.

[Alpheus W Drinkwater]

Did you not see the explanation above that this decision concerns the language in a NY state law about rental contracts, a law that predates Windsor and Obergefell? The definition of marriage isn't an issue here.

[BravoCharlieDelta]

They did the same word trick with “man” and “woman”

[Ben_]

SSM was always just a special favor for the special people.

If you didn’t get a special favor, it’s because the people who think they’re empowered to hand out favors don't consider you special. You’re second class.

[Nelson]

Which "special favor" are you talking about?

[Ben_]

Are you pretending not to know?

Changing the definition of marriage from what it has always been in every human society on Earth since before written or even spoken history. Marriage is the oldest and most universal human tradition. Changing it to pretend same sex couples' relationships are the same is a special favor for a very small minority of the special people.

[Sarcastr0]

Every society in earth? Now this is some ignorant hyperbole!

[Ben_]

No. It’s actually the case.

[Sarcastr0]

Nope.

https://en.m.wikipedia.org/wiki/History_of_same-sex_unions

[Ben_]

No people considered such "unions" the same thing as "marriage".

Also, Wikipedia is just another leftist propaganda format on political and cultural topics. Citing it is the same as citing the most radical activist group's web page. It only indicates what activists' official position is. Any resemblance to reality is a coincidence.

[Sarcastr0]

Ok Ben.

you said every society in earth now you are declaring a lot of stuff as not marriage so you can fit your ignorant blanket statement. If you need to salt your history like that you are wrong.

And an ad hominem to avoid dealing with the facts is also very lame.

You have really taken a big L on this one,

[Ben_]

Anyone can look at other societies throughout history. None of them considered any kind of same sex "union" the same as a marriage.

Even the "historians" at that Wikipedia page acknowledge that the stuff they’re talking about isn’t a marriage:

"…many of these relationships might be more clearly understood as mentoring relationships..,"

"… it was not considered marriage by contemporary culture…”

Etc.

But keep pretending it’s exactly equivalent, even though anyone who actually looks into it can find zero examples of it being treated as the same, while they also find male-female marriage in literally every single culture everywhere, at every time in history.

Don’t let the fact that everyone knows you’re lying change your message. You never do.

[Sarcastr0]

Contemporary you fool.

It was a union not a marriage? That’s just pre picking all non hetero marriages as just unions!

marriage from one culture to another won’t tend to ever be equivalent.

You were wrong about history and marriage throughout it. Sorry humanity is more complicated than you want, but curating history to overdetermine your own normality is just a pathetic inability to cope.

[Josh R]

Or perhaps it was evening the scales after a long history of inequality.

[MariamDanelyan]

Did you meet your "husband" at the bath house?

[Sarcastr0]

What decade are you posting from that bath houses are a thing?

[MariamDanelyan]

For homosexuals who aren't capable of monogamy, it is a thing.

[Sarcastr0]

Weird they are into marriage then.

[Rev. Arthur L. Kirkland]

Do you embrace heterosexual candidates who are not capable of monogamy, you bigoted, stale-thinking, gullible clinger?

[MariamDanelyan]

Do you let your "husband" bust inside you, while the kindergarteners you groom watch?

[BravoCharlieDelta]

2022 called and wants to tell you all about the Pride Pox.

[Ben_]

Definitions of words and concepts don’t have to satisfy your wishes that they mean something else.

Dwarves can can themselves "tall", but the rest of us owe them no duty to go along with the pretense.

[Nige]

However, if dwarves get married, we can call them 'married.'

[Ben_]

If they get married to a tree we don’t.

[Nige]

Who's marrying trees? Ents?

[Nelson]

LOL!

[Rev. Arthur L. Kirkland]

Speaking of pretense others are expected to respect and indulge . . . how is Christianity faring in modern America?

[Nelson]

No, prejudicial definition of marriage that cultural conservatives liked because it disadvantaged those they hate has been eliminated because there is no objective justification for reserving marriage for heterosexuals.

Theocracy is antithetical to American Constitutional values. Deal with it.

[Ben_]

It’s every group of humans ever.

Are you intentionally lying? Why?

[Sarcastr0]

You are lying. Or so intentionally blinding yourself to how actually history is complicated that you might as well be,

[Ben_]

False. History is approximately unanimous on the subject.

You can pretend that a very, very tiny percentage of partial exceptions invalidate that unanimity if you want. It’s your normal intentional deception.

[Nelson]

History is full of irrational, unjustified, and discriminatory practices. That doesn't make them good or Constitutional. It just makes them historical.

[Nelson]

I don't care about anyone else in other countries or other times. I live in this time and this country and limiting marriage to heterosexuals is antithetical to the Constitution of this country and this time (since the theocratic impulses of cultural conservatives are finally being overcome by decent people).

[MariamDanelyan]

The Constitution said nothing about gay marriage, and you know it.

[Sarcastr0]

Constitution also doesn’t say anything about interracial marriage either. Just because you don’t like equal protection doesn’t mean you get to ignore it,

[Rev. Arthur L. Kirkland]

Miriam will struggle with interracial marriage until Clarence Thomas is replaced.

[Nelson]

Equal protection is a leftist belief. The Constitution isn't there to protect everyone, just the "good" ones.

[Ben_]

That’s a different subject than the definition of the word and concept.

[Nelson]

Marriage describes a legal arrangement. The fact that some people are no longer barred from that relationship isn't redefining anything.

Marriage is exactly the same thing that it has always been, it just isn't unconstitutionally limited to heterosexuals any more.

[Nelson]

With the legalization of same sex marriage, marriage has essentially become a contract between two people, albiet one with a large set of jurisprudence and precedent behind it. We should take the next step and make marriage contracts of variable lengths, so it isn't just "until death do us part". Call it a "two party marriage contract", make the duration an element of the contract, and everything works fine.

If you want to make polygamy a thing, set up additional versions (three party, four party, etc.) and allow the jurisprudence to develop around the different versions.

Insurance wouldn't be complicated, since plans allow you to add additional dependents (usually for an additional cost). Inheritance wouldn't either, since many variations of inheritance (through wills) have been adjudicated over the years so I doubt there is anything new under that particular sun.

No serious person is advocating for allowing those without agency (the animal bullshit) or children (the pedophile bullshit that has exploded since Q-Anon became the insanity de jour of the lunatic right) or those without legal competence to enter into a marriage. The red herrings will be out in force, but they are easily dismissed with a minimal amount of critical thought.

The whining and wailing about moral outrage by traditionalists is inevitable but when the only argument against something is "morality" (whichever version is presently being claimed as "true") with no substantive content, there isn't any objective reason to reject it.

Ultimately there are very few people who want to be polygamists. It just isn't something that most people are clamoring for. But that's no reason to prevent people who do want it from living their lives.

[NOVA Lawyer]

Good comment. It's good to see sane, reasoned argument in these threads from time to time.

[ReaderY]

Moral wailing by traditional religious types like the Rev. Dr. Martin Luther King was considered a sufficient reason for state interference in freedom of choice in association in a business context. The Supreme Court said Congress could enforce morality in commercial relations to the same extent a state could in domestic relations.

[ReaderY]

As noted in my comment above, the rational argument for laws against this is pretty much identical to the rational argument for laws against racial discrimination.

[Nelson]

Morality is an unnecessary element in coming to the conclusion that legal protections were necessary and that Jim Crow was detrimental. That's how you can differentiate legislating morality (like abortion restrictions) from legislation with a rational basis in addition to a moral component (like murder). If you take away the "it's immoral" argument, can you justify the law? If so, it's a good law. If not, it's a bad law.

Limiting marriage to heterosexuals was a bad law.

[BravoCharlieDelta]

Limiting marriage to two people who claim they are "in love" is worse law.

Why can't any configuration, romantic or not, of humans get the dignity of the State conferred onto them?

[Nelson]

I agree. Limiting marriage to any specific number of consenting and competent adults is a bad thing. There isn't any reason to require.them to be in love, either.

Back in the day people used to get married because it was the "right thing to do". It didn't matter if they were in love, but their marriage is just as valid as any other.

That's what you meant, right?

[Retired Lawyer]

I haven’t read all the comments but so far as I can tell, no one has noted: polygamy creates more unmarried men, and these men cause most of the violence. Society has considerable interest in limiting polygamy. Its interest in limiting gay marriage is weak.

[Nige]

But it would allow one woman to have many husbands, which would surely help?

[Retired Lawyer]

Good question. I don’t know the answer. Polyamory favors the wealthy. I wish I knew more sociology and more sexology. I can’t speak to homosexuality and bisexuality, but I believe that currently, there are more wealthy heterosexual men than wealthy heterosexual women. And I suspect that wealthy heterosexual men are more interested in polygamy than wealthy heterosexual women are interested in polyandry. I also suspect that sociologists and sexologists cannot now give definite answers to these questions. I suspect that legalizing polygamous and polyandrous marriages – and similarly sanctioning (permitting) all polyamorous relationships – would provide answers.

But it would be unfortunate if those answers came with a substantial increase in violent incels. Sanctioning (permitting) polyamorous relationships is more dangerous than sanctioning 2-person gay marriage. I believe most sociologists believe that gay marriage is a stabilizing social influence.

[Retired Lawyer]

Good question. I don’t know the answer. Polyamory favors the wealthy. I wish I knew more sociology and more sexology. I can’t speak to homosexuality and bisexuality, but I believe that currently, there are more wealthy heterosexual men than wealthy heterosexual women. And I suspect that wealthy heterosexual men are more interested in polygamy than wealthy heterosexual women are interested in polyandry. I also suspect that sociologists and sexologists cannot now give definite answers to these questions. I suspect that legalizing polygamous and polyandrous marriages – and similarly legalizing all polyamorous marriages – would provide answers.

But it would be unfortunate if those answers came with a substantial increase in violent incels. Legalizing polyamorous marriages is more dangerous than legalizing 2-person gay marriage. I believe most sociologists believe that gay marriage is a stabilizing social influence.

[Darth Buckeye]

When will relationships with non-human animals or mechanical devices receive comparable legal protections to marriage? All we need is five votes on the US Supreme Court and anything is possible.

[Nelson]

When the animals or mechanical devices reach the competence threshold required by law.

When are cultural conservatives going to stop making ridiculous and irrational arguments that wouldn't convince a 15-year-old, but they believe have "owned the libs"?

[BravoCharlieDelta]

Like in Oregon with their secret child abortions, or in other Blue States with their secret child gender mutilations?

Since when do Democrats care about some legal competence threshold?

[Nelson]

When the conservative Catholic Church molested children they denied everything, interfered with law enforcement, refused to aid in prosecution, intimidated victims, moved the offenders out of the jurisdiction (or even the country, if necessary) to enable further molestation, and kept a secret list of pedophiles so they could be prepared for the next offense.

When the conservative Boy Scouts molested children they denied everything, interfered with law enforcement, refused to aid in prosecution, intimidated witnesses, and kept a secret list of pedophiles.

Ditto for the Southern Baptists, the Jehova’s Witnesses, the Amish, and the Mormans, just to name a few.

When a coworker of the “liberal” teachers molests children, they turn them in to law enforcement, cooperate in the prosecution, publicly acknowledge the molestation, and make certain they don’t ever teach again.

Tell me again how liberals are molesters and conservatives aren’t.

When it comes to moral behavior, cultural conservatives definitely fail in both conduct and accountability.

[WuzYoungOnceToo]

When the conservative Catholic Church molested children

Isn't that the church Biden is a member of?