INCEST, POLYGAMY, SSM: Gabriel Rosenberg replies to Justin Katz and (sort of) Eve

[Eve says: I will only note that Rosenberg is phrasing things in a way I would not, when he says, "[T]he major concern of both Katz and Tushnet is that my arguments are too abstract for the courts." I would say, rather, that his reasons, however compelling to people already driven by "macro" social concerns and questions of societal benefit, assume that marriage is about social capital and societal benefit rather than being about the adult individuals who make up the union. And this societal vs. individual divide is one of the biggest factors in the SSM debate! So it is not so much "abstract vs. concrete" but a deeper conflict of visions--what, or whom, is civil marriage about? The people who want their union to be considered a marriage, or the citizenry at large, and most particularly the children? Anyway....]

...If I had to predict, though, I would say that courts would reject arguments for incestuous or polygamous marriage. Polygamy actually has the weakest case of them all. There is no equal protection concern. ...

Incestuous marriage actually has a stonger case, in my mind. In the polygamy case, a person seeking to marry another was allowed to do so provided he obtained a divorce from his first marriage. In the incestuous case, as in the same-sex case, a couple is not allowed to marry no matter what they do. And, as Katz points out, the existing familial relationship between the potential couple is not close to the status of the marital relationship in the law. Still if one accepts that the state may prohibit marriage based on certain kinship relations, then the question becomes where to draw the line. Despite what some critics have said about "activist" judges, I think the courts do leave such line drawing to the legislatures. They only have objections when those lines are drawn based on sex, race, religion, or a few other factors.

This is not to say that there aren't good policy arguments for trying to help two relatives struggling to raise a child of one of them, or two widowed sisters relying on each other for mutual support in their old age. When Vermont established civil unions, they also established a reciprocal beneficiary relationship for individuals too closely related to enter into a civil union or a marriage. I think this was a good idea, but do not think such a relationship would suffice for same-sex couples. I will examine this RP relationship in more detail and try to explain my views on this subject in a subsequent post.

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posted by Eve at 12:37 AM VOTE

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