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Sunday, July 15, 2012

Amendment or Supreme Court Ruling?

The Supreme Court of the United States ruled in Reynolds v. United States (1878) that polygamy is not a Constitutionally-protected right. This has allowed the U.S. government to ban it. Even if the U.S. government didn’t ban, it the ruling allows states to ban it. The only way to ensure the right to polygamy would be for either a new Supreme Court decision reversing the old one, or a Constitutional amendment: the Marriage Equality Amendment. A court reversal could come as part of a ruling about same-sex marriage.

Striking down DOMA in a way that just sends the matter back to the states still leaves all of those states with laws banning gay marriage, polygamy, and consanguineous marriage. If, however, the court rules that the right to marriage should negate not only DOMA but most state marriage bans, that would be great. But what are the chances of that? If it doesn’t happen, then adding an amendment to the American Constitution, which isn’t easy, would be the best way of granting full marriage equality.
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1 comment:

  1. The Supreme Court route is the only practical route. The chances of success are continuously improving. DOMA and SSM will build upon the foundation provided by Loving v. Virginia (in which one interracial married couple, backed by the ACLU, took their cause all the way to the US Supreme Court, whereupon the Supreme Court struck down all state and federal laws against interracial marriage) and Lawrence v. Texas (in which one gay couple, backed by the ACLU, took their cause all the way to the US Supreme Court, whereupon the Supreme Court struck down all state and federal laws against sodomy).

    After DOMA and SSM, there are several routes for further development. Probably the easiest route is to attack the incest laws, starting with first cousin marriage (which is legal in some states but not in others). Another route is to attack the bigamy laws in order to enable married persons to participate in additional marriages (dyadic networks). These attacks will be very complex and will require extensive preparatory research and development.

    Now is the time to do that research and development. If the time associated with the DOMA and SSM developments is well spent in diligent preparation, then these new avenues of attack can proceed quickly once DOMA and SSM are completed. Otherwise, there will be further delays, and full marriage equality will then take longer and longer to be realized.

    ReplyDelete

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