Tuesday, October 14, 2014

From a Lawyer

I have made it clear in this blog that I'm not a lawyer and I'm not offering legal advice (see my disclaimer way down at the bottom of the blog.)

But... a lawyer sent along an email that just might be useful for some of the couples I've interviewed and whose rights this blog is about.

Here is what one David A. Robinson, J.D., member of the Connecticut Bar, wrote...

Be informed that as a result of allowing same-sex marriage, it is now legal in Iowa, Massachusetts, New York, and possibly five other states for a man to marry his brother. The Massachusetts law is Mass. General Laws ch. 207, section 1. The New York law is N.Y. Domestic Relations Law section 5. The Iowa law is Iowa Code section 595.19, read together with Iowa Supreme Court case Varnum v. Brien 763 N.W.2d 862 (2009). I have filed amicus briefs in the U.S. Court of Appeals for the Fourth, Fifth, Sixth, Seventh, and Ninth circuits, arguing that if same-sex couples are given a constitutional right to marry, it will necessarily follow that two adult brothers will have a constitutional right to marry. Two adult brothers are a same-sex couple. It will also follow that a man will have a constitutional right to marry an infertile female blood relative of his, such as his elderly mother, sister, or daughter. For these reasons, I believe that same-sex marriage is not a constitutional right. 

One of my briefs is posted on the Ninth Circuit’s website. I invite you to read it:

When you get to that webpage, scroll down to the 6/20/14 entry Amicus Brief of David A. Robinson and click on it.
What Robinson is saying is that there are states with heterosexist laws that focused on denying consanguineous couples their marriage rights, but only focused on denying heterosexual cosanguineous couples their marital rights. Since no same-gender couples were allowed to marry at all, specifying that same-gender consanguineous couples could not marry wasn't something the writers of the laws bothered with. As a result, when the monogamous same-gender freedom to marry came to those states, there was nothing in the laws preventing same-gender consanguineous couples from marrying. It is his understanding that even where states have prohibited same-gender consanguineous couples from marrying, those laws do not withstand scrutiny if the same-gender freedom to marry is a right. As you can also see, his understanding is that these protections must also extend to any couple where natural reproduction is not a possibility.

I clarified with Robinson, because I know the text of the law may say one thing but how things operate in reality might be quite another, if, in the states he cites, clerks should be issuing brother-brother and sister-sister couples marriage licenses, and if the clerks will not, a judge should order them to, and Robinson says yes.

Having read the brief Robinson filed, I am aware he is not in favor of any of these freedoms to marry, but rather only the limited monogamous heterosexual freedom to marry. I also noticed that much of his argument rests on linking marriage with reproduction and sex and asserting that the prohibitions on consanguineous marriage (or sex) are in place due to the risk of birth defects to resulting children. This blog has covered those matters extensively before. Our legal system has firmly recognized that marriage, sex, and reproduction are three different things. People are free to participate in any one or two of those without the other one or two. It is not illegal to have sex without marriage. It is not illegal to have marriage without sex. It is not illegal to reproduce without marriage or without sex. It is not illegal to have sex and/or marriage without reproduction.

Robinson appears, in his brief, to be drawing upon a reader's prejudice against consanguinamory to argue against the same-gender freedom to marry, but beyond his citing of Discredited Argument #18, he never explains what he sees as the problem. Unless I have misunderstood, his argument appears to be that admitting there is a right to same-gender marriage must mean that there is a right to consanguineous same-gender marriage and a marriage between a man and any infertile female relative. To that I ask... even if that does follow, what is the problem? I don't see it as a problem, of course. I support the rights of an adult to marry any and all consenting adults.

Even though I might not agree with Robinson on much when it comes to these topics, he's been a lawyer in least two states; I have never been a lawyer. So, perhaps there is something useful in his brief that another lawyer can use to advance the cause of full marriage equality? If you are in a same-gender consanguineous relationship I wouldn't try putting Robinson's understanding to the test in the listed states without first consulting a supportive lawyer with the appropriate experience in these areas of law and who practices in that specific state, but if you do hire a lawyer for that purpose, there is no reason you shouldn't make sure they have Robinson's brief.
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  1. Robinson's brief is pretty much useless. All the states he refers to are states that criminalize consensual adult incest. I'd recommend not bothering with any of those.

    Both New Jersey and Rhode Island have legal same-sex marriage as well as no legal prohibition of consensual adult incest. However, Rhode Island law says:

    § 15-1-2 Marrying kindred forbidden. – No person shall marry his or her sibling, parent, grandparent, child, grandchild, stepparent, grandparents' spouse, spouse's child, spouse's grandchild, sibling's child or parent's sibling.

    And in New Jersey,

    37:1-1 Certain marriages or civil unions prohibited

    a. A man shall not marry or enter into a civil union with any of his ancestors or descendants, or his sister or brother, or the daughter or son of his brother or sister, or the sister or brother of his father or mother, whether such collateral kindred be of the whole or half blood.

    b. A woman shall not marry or enter into a civil union with any of her ancestors or descendants, or her sister or brother, or the daughter or son of her brother or sister, or the sister or brother of her father or mother, whether such collateral kindred be of the whole or half blood.

    New Jersey's law is the best target for a constitutional challenge. However, I don't see any legally minded organization ready and willing to launch the first consanguinamory lawsuit. Hopefully this blog will eventually lead to the creation of exactly that kind of legally minded organization. Alternatively, it may be possible to persuade AFER and / or ACLU to lead the way here.

    1. If there is no requirement that a marriage actually involve sex, then I suppose same-gender siblings could request a marriage license without admitting to incestuous sex.

    2. That would be laughed out of the courtroom.

      Lawsuits cost big bucks. Don't risk those big bucks on anything other than the very best factual & legal circumstances available. Then make absolutely certain that your legal talent is way better than the other side's. Don't repeat the mistakes made in Utah in poly marriage cases, where the blockheaded attorney wasted all his resources on a religious freedom argument and never even attempted to seriously argue the winnable angles of due process and equal protection!

  2. Rhode Island might be the better target here. Cases narrowly aimed at the "stepparent" prohibition would be relatively easy to win.

  3. What law in Iowa, Massachusetts, or New York makes it illegal for two adult brothers to have a sexual relationship? I’d be curious to see such a law. Furthermore, if there is such a law, I am wondering if such a law is constitutional. I am wondering if such a law is constitutional in light of Lawrence v. Texas, the 2003 U.S. Supreme Court case.

  4. It seems it would be legal in Rhode Island. Same-sex marriage is legal there, as is incest, and, looking at this document (, I found only this:
    R.I. Gen. Laws § 15-1-1 (2012). Men forbidden to marry kindred
    But under this, it lists only female relatives (mother, grandmother, step-mother, daughter, granddaughter, step-daughter, step-granddaughter niece, daughter-in-law, grand-daughter-in-law, mother-in-law, and aunt). I'm not sure if the law has changed since then, though (and, like you, I'm no lawyer).


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