Will California deny peoples' rights in November?

[The Heretic]

The problem with incestuous marriage is consent: with the power dynamics between one generation and the next, you'd have a hard time proving that both parties consented. There might be brother/sister people out there, but it'd be incredibly rare, and preventing child abuse must take precedence.

Yet the other poster indicated that it must be of between adults. If they are adults, It is not child abuse.

A 40 year old father and his 18 year old daughter are both adults, but it'd be insane to ignore the power dynamics. Is the daughter really consenting?

If she is an adult and says she is, who are you to gainsay her? Is it guilty until proven innocent?

Suppose Mr A is married to Ms B and Ms C, then marries Ms D. Ms D is also married to Mr E and Mr F. Are Mr A and Mr E married? Suppose Ms B hates Ms D - does she need a divorce? Is Mr F responsible for Ms B's child support? Are the children of Ms C entitled to inherit Me E's property? And so on. Marriage is, at its core, a property contract. A situation where the courts are clogged up endlessly by disputes over property is undesirable.

So, nothing to do with divorce lawyers making money.
I suppose if it is a property contract, they can actually draw up a contract before the marriage.

[Cenedril_Gildinaur]

Suppose Mr A is married to Ms B and Ms C, then marries Ms D. Ms D is also married to Mr E and Mr F. Are Mr A and Mr E married? Suppose Ms B hates Ms D - does she need a divorce? Is Mr F responsible for Ms B's child support? Are the children of Ms C entitled to inherit Me E's property? And so on. Marriage is, at its core, a property contract. A situation where the courts are clogged up endlessly by disputes over property is undesirable.

You paint an interesting picture of a chain marriage.

A => B
A => C
A => D
D => E
D => F

Realistically, those who have spent time thinking about how polyamorous relationships would work have generally agreed that any such arrangement would have to involve the agreement of all involved. So for A to marry D, then A, B, C, and D would have to agree to it on A's side, and D, E, and F would have to agree to it on D's side, meaning everyone involved must agree to it. Therefore there must be some stipulation on how property is to be shared with regard's to how D and A divide up any communal property. That agreement would have to also include B, C, E, and F.

If everyone cannot agree as to how the property would be shared between A and D then there is not full agreement and therefore the marriage realistically cannot take place.

This would involve some pretty fancy maneuvering in terms of contract law, but if the terms are adequately set out ahead of time there is no reason why it would be a nightmare in the courts afterwards.

I have written a sample contract for a line marriage (not the same thing as a chain marriage) and even had a friend who is a lawyer look it over. He said that except for it being illegal it looks quite good.

[Denethor]

If she is an adult and says she is, who are you to gainsay her? Is it guilty until proven innocent?

Again: an 18 year old wanting marriage with her 40 year old father is very likely the victim of coercion, mental and/or physical. You can't coerce people into marriage.

So, nothing to do with divorce lawyers making money.

I was merely illustrating the extent to which litigation would increase.

I suppose if it is a property contract, they can actually draw up a contract before the marriage.

A contract subject to regular amendment and dispute. If A wants to marry D, why should B object?

[The Heretic]

If she is an adult and says she is, who are you to gainsay her? Is it guilty until proven innocent?

Again: an 18 year old wanting marriage with her 40 year old father is very likely the victim of coercion, mental and/or physical. You can't coerce people into marriage.

"is very likely" leaves the option it is not. And if the adult says she is willing? Again, is it guilty until proven innocent? And, of course, there are still siblings.

A contract subject to regular amendment and dispute. If A wants to marry D, why should B object?

Yes, like any contract.
I don't know. Why? What if B does not object? If B does object, B can get a divorce, I would suppose.

[Denethor]

"is very likely" leaves the option it is not. And if the adult says she is willing? Again, is it guilty until proven innocent? And, of course, there are still siblings.

How does one go about proving that someone is or isn't consenting in a situation where the other party has all the power? Surely it is infinitely safer to simply ban incestuous marriage and be done with it (most incest cases are inter-generational, and involve a significant power imbalance).

Yes, like any contract.

Yes, and there are plenty of cases where the state regulates what you can make contracts about. So it is in this case: the sheer complexity of legal relations is considered detrimental.

I don't know. Why? What if B does not object? If B does object, B can get a divorce, I would suppose.

But who would they be divorcing? Can they just divorce A without divorcing C?

[Cenedril_Gildinaur]

How does one go about proving that someone is or isn't consenting in a situation where the other party has all the power?

It is the nature of our legal system to prove wrongdoing, not the lack of wrongdoing. Absent indications that there is a lack of consent we must assume there is consent.

But who would they be divorcing? Can they just divorce A without divorcing C?

According to the description you provided, C is not married to B, C is married to A.

Now why would B have any input into whether or not A marries D? Because of any communal property involved between A and B. Anyone A marries is someone A has communal property with. A already has communal property with B and C, so therefore B and C have input on sharing that communal property further. Likewise E and F have the same input with regards to D.

Now if B wishes to divorce A, that should theoretically have no impact on B's relationship with anyone else in this chain marriage. The communal property for B and A would be divided, leaving A only married to C and wanting to marry D. Again, having established beforehand who owns what makes this an easier process. And yes, contracts can be modified and amended, but then the parties to the contract have to agree to the modifications and amendments.

Although the contract negotiation can get complex, this really isn't as hard as you're trying to make it.

[portia]

There really isn't anything in that hypothetical arrangement that couldn't be handled by an agreement.
If the parties were dumb, and didn't work it all out, the courts could still do it. They do it in Probate cases all the time. And, by the way, if you are concerned about consent, you can interview the possibly non-consenting spouse, alone, and ask relevant questions.

A could be married to E and F, if he/they wanted it. Plenty of parties agree to keep their previously separate property separate and work out a formula for property they acquire together.

The "i'm uncomfortable" factor, also known as the "ick" factor, is really all that stands in the way. I suggest that this factor is no-one else's business.

[portia]

More Legal gyrations.

The Prop 8 proponents are asking the State Supreme Court to rule that Prop 8 is still the law in Ca. The theory is that, since the USSC didn't rule that it is unconstitutional, it is still OK.

What a group for missing the point. They are getting close to the ethical limit for what attorneys can argue.
Various points (And I might think of a few new ones, later):

1, What are they doing trying to get a ruling on the effect of federal law from a State court? In the Prop 8 decisions, the State Supreme Court went to some lengths to avoid ruling on federal law. Why change now?

2. The effect of the USSC's ruling was to nullify the appeal from the District Court, so that it is the same as if no one had filed an appeal from the District Court. Therefore the District Court's ruling becomes "final" and controls those parties that made an appearance. I do not know if all the parties that supervise the County Clerks were in the case. But, if they were, then Judge Walker's decision would control what they tell the Clerks to do. If those instructions say "Let them get married" then that is the end of it.
(Any court above small claims, can make any outrageous ruling and enter any judgment it wants, and if no one
"appeals," * the ruling is good insofar as the court has jurisdiction and according to the wording of the ruling, affecting only those over whom the court had jurisdiction--no one else.
* by appeal, I mean go to any higher court for a ruling that the lower court decision was wrong. There are lots of diferent names for ways to attack the lower court ruling.)

3. Whether the USSC ruled on the Constitutionality of Prop 8 is far away from the point, as the "no standing" ruling means that the appeal to the Ninth Circuit, and the review by the USSC, were null and of no other effect. What the USSC did or did not do, beyond dismissing the appeal, has no effect, as the "appeal" should not have been granted in the first place.

I think the Cal Supreme Court should dismiss the effort, on grounds that the Prop 8 people are in the wrong court, and it is not within the Ca Courts jurisdiction to rule on a federal court ruling. Of course, then the Prop 8 people will go to the US District Court, but that court, or the Ninth Circuit, will just rule that the judgment of Judge Walker's court is final and cannot now be attacked. The CA Supreme Court might also adopt the "no standing" ruling.

If the Prop 8 people want to throw money in the toilet, they have found a way.

Later: I am drumming my fingers waiting for the CA Supremes to rule. But they have no reason to rush, as the weddings are going on in the interim.

In October: Nothing, yet. Do you suppose that the Prop 8 supporters will get the idea?

[portia]

Several states have recognized the rights of couples who are married in one state to be recognized as married in another. The cases are on appeal.
I have not read the briefs, so my comments are probably far off from what people are arguing. ButI remain convinced that the phrase in the Amendment that "congress may enforce the Amedment by appropriate legislation" is not permission for congress to destory the protection of the full faith and credit clause in a specific case. The Supreme Court didn't address this argument, as all that was before it was the federal non-recognition of valid marriages.

We shall see what the Appellate courts say about it.

[Minardil]

Several states have recognized the rights of couples who are married in one state to be recognized as married in another.

I don't see a legitimate constitutional argument for allowing any State to REFUSE to acknowledge marriages which are valid in other States. Doesn't Article IV Section 1 establish acknowledgement of out-of-state marriages as the default position?

[portia]

The "rub" is in the last phrase:

"Article. IV.
Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

I do not think those words allow the Congress to reverse the intended effect, but the law has stood, without challenge, for a while. I hope someone will address it soon.

The DOMA allowed states not to recognize other states' same sex marrianges, and that part was not addressed in the recent decision. Only the federal non-recognotion of same sex marriages was struck down.

[portia]

Arkasas's Attorney General says that he supports same sex marriage, but that it is his job to defend the state's laws, and so will pursue an appeal.

I think that this is the right position. I do not approve particularly of Ahnold's and Jerry's position not to defend the state's law on Prop 8. I do not thnk that there is a viable argument for banning same sex marriages, but the state's law deserves a defense, especially from people who are taking the taxpayers' money. The matter also deserves a full hearing in the appeals courts and, as we saw, it will not get one if one side opts out.

[Jnyusa]

Me too. I prefer to see these things hammered out in court.

[Faramond]

I just realized that the thread title is wrong -- it should be "people's rights", not "peoples' rights". Man, "people" is a weird looking word.

[Jnyusa]

"People" is a legitimate singular noun as well, plural = peoples, as in the Peoples of the Americas.

I agree it's a bit hard to figure which additional population would make it plural in this instance, unless we are considering each category within the GLBT community to be a distinct people.

[Frelga]

Me too. I prefer to see these things hammered out in court.

I was wondering about that. Does the AG actually have the obligation to pursue the appeal? If a court said the law was unconstitutional, does any representative of the state have an responsibility to argue against that decision?

[Jnyusa]

Frelga, my head is only half in the conversation so what I say might not make any sense! But it seems that if the State can opt out of pursuing an appeal it must not be an obligation, as such, on their part. However this particular issue is highly partisan. There is a sizable constituency in California that wants the law defended, and if a governor of a different stripe were elected, and subsequently appointed a sympathetic AG, then we might see the issue become legislative again, prompting a new round of court hearings.

I suppose court rulings can also be overturned with time, depending on how circumstances change, but personally I would prefer hot issues like this one to be carried to their ultimatum, rather than be dropped because the party in office at a particular time is unsympathetic to previous events.

Coherence across administrations is an issue, generally, in democracies, I think. Change is necessary for a society to remain viable, but partisan flip-flopping is not necessarily a good thing. You see it sometimes in international law, too ... I think of the situation in Nicaragua where an administration beholden to the US declined to accept a settlement awarded by the Hague (over illegal mining of the Corinto harbor) because the original suit had been brought by an administration with animosity toward the US. It hurt all the people of the country to be denied that money which the international community had decided they deserved, and I don't think that a President acting from partisan interest had a moral right to refuse to receive it. This is kind of the same thing, I think, even though I'm on the other side of the issue here and would not like to see the law upheld. There are enough people in CA who do want the law upheld that the State govt has some obligation, I think, to represent them.

[Voronwe_the_Faithful]

I don't think an attorney general should refuse to defend a law lightly, but in a case where she genuinely believes that the law denies constitutionally guaranteed rights to a segment of the population, I think they are duty-bound to refuse to defend it.

With regard to the recent decisions by attorney generals, including the one in Pennsylvania, to refuse to defend same sex marriage bans, they have the added rationale that the legal landscape has changed as a result of the SCOTUS decision in Windsor ruling that part of DOMA is unconstitutional. Considering that since then 14 District Court judges have all (including GOP nominated judges) ruled that same sex marriage bans are unconstitutional, all citing Windsor, it is reasonable to argue that there is no longer a viable legal argument defending such bans.

[Frelga]

Thank you, Jn and V.

[portia]

I defer to the good sense of those judges on same sex marriage. BUT, Technically, the overturning of the federal ban on recognizing same sex marriages does not affect the rights of the states in recognizing the bans, or not. However, it did send a message, which most states would do well to heed.


As to State Attorneys General refusing to defend the ban, all I can say is that they campaigned and took a job that includes defending the state's laws. I think they should do so, even though they would not take a case defending the ban on same sex marriage if it were brought to them in a law firm.

[Voronwe_the_Faithful]

The oath that the attorney general of California takes when being sworn into office (and I'm sure this is true of all other states as well) begins:

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter."

It is the first duty of the Attorney General to defend the Constitution of the United States. Defending a law that they believe violates the Constitution of the United States would be worst possible violation of that oath.

[portia]

Well, we can argue it forever, and each AG will have to make his/her own decision on it.
Politics will make a difference, as will whether the AG can find anyone on his/her own staff who will be willing to see what arguments can be developed.

However, as good as Windsor may be in illumnating the handwriting on the wall, I do not think it is actually authority for telling the states that they cannot ban same sex marriages. This issue was not raised and not decided in Windsor.

[Voronwe_the_Faithful]

No, but as Scalia himself pointed out in his dissent, the rationale of the majority in Windsor requires a finding that state bans on marriage equality are unconstitutional. So the only way that an attorney general can defend such a ban is to argue that Windsor was wrongly decided.

Even the conservative GOP governor of Pennsylvania has opted against appealing the decision overturning that state's ban on same sex marriage, faced with this reality.

[portia]

A dissent is not an opinion of the court, so failing to take a hint from a dissent is not AT ALL the same as failing to follow the court's opinion.

If the various judges want to take the opinion in Wisdom as a forecast of future opinions, that is their business. It is not an opinion with authority, but only handwriting on the wall.

[Voronwe_the_Faithful]

It's not the dissent of Windsor that need to be followed but the rationale of the majority opinion, which is why every District Court judge that has addressed the issue since Windsor has done so. 14 in a row, after previously most courts ruling that same sex marriage bans were not unconstitutional.

[portia]

I am working my way through the text of the Opinion, and I am beginning to conclude that while the opinion still does not not hold that same sex marriages ban are unconstitutional, the court spends what I think is an unusual amount of time and effort on how important marriage is and how much section 3 of DOMA interferes with efforts to allow a state to regulate marriage as it has historically done.
* Defining marriage as a fundamental right was important to the courts which held that a state would have to have a "higher level" reason to ban it. That makes it harder to show that a ban is necessary.

The opinion does not anywhere state that a state MUST recognize a same sex union as a marriage. I expect that first year Law school instructors are having some fun when a student tries to cite Wisdom as requiring a state to allow same sex marriage ("AH, YES Mr. JONES, AND WHERE, EXACTLY, DOES IT SAY THAT?")

That does not mean that I think its Handwriting on the wall uses are incorrect, just not based on the decision, but on other factors.

A comment rises in my memory: "One doesn't have to be a weatherman to know how the wind is blowing."

[portia]

With the recent Supreme Court decision not to hear the appeals from opinions striking down the ban, it looks like the matter will be resolved in the courts.

I recall the controversy over whether the issue should be resolved in the courts or at the ballot box. It looks like the only question is whether the Supreme Court will take up the cases where the circuits have decided a state can ban same sex marriage, and what it will do with them.

[portia]

The Supreme Court has said it will take up the cases where the Circuits have said that the States can ban same sex marriages. The arguments are set for April, and the decision is expected by June.

Possibilities:

1. The Supreme Court could say that same sex marriage can be banned in all states, tho' not in these cases, as these are state-by-state decisions.

2.The Supreme Court could say that each state is on its own on the subject and can ban or not ban same sex marriages. However, I think that if a state permits same sex marriages, it is committed forever.

3. The Supreme Court could find that one rule for all states is best and could say that a) no one can ban same sex marriages, or b) if a state bans its own citizens from same sex marriages, it still has to recognize other states same sex marriages.

As of right now, I vote for #2.

[Frelga]

Isn't there a 3, states can decide to allow same sex marriage or not, but have to recognize legal marriages made in other states? It seems not unlikely, given that I just read that the Court will look at the two questions separately.

[Minardil]

I would think that a plain reading of the text of the Equal Protection Clause of the 14th Amendment would guarantee marriage equality rights for all citizens, and the Full Faith and Credit Claue of Article IV, Sec I would require all states to honor the marriage contracts made in any other state.