Saturday, June 25, 2016

Detailing the Good News From the Supreme Court

[This is being bumped up for the anniversary of this decision.]

We're finally getting around to carefully going over Obergefell here in detail. That is the recent US Supreme Court decision on marriage.

The decision was a big win, to be sure, although in our dreams it would have done even more, instantly. Thanks to the Court majority, we are well on our way to full marriage equality. Even though the immediate effect was only to make the limited monogamous same-gender freedom to marry nationwide, they left the door wide open to bring about full marriage equality.

Before we get into the details of the decision, permit us to note that, unfortunately, there's not a single explicit mention of bisexual people, pansexual people, transgender people, or anyone other than monogamist gay people and lesbian people. While it is good that (monogamist) gays and lesbians are being affirmed, there is still much progress to make.
But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the petitioners’ own experiences.
This is also true of people still barred from legally marrying in their relationships.
The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
Yes! That is why the polygamous freedom to marry and the consanguineous freedom to marry must be recognized.
Applying these tenets, the Court has long held the right to marry is protected by the Constitution.

There is a right to marry.

The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.  This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.

Decisions about marriage are among the most intimate that an individual can make.  See Lawrence. This is true for all persons, whatever their sexual orientation.

All people have the right to marry.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.  The intimate association protected by this right was central to Griswold v. Connecticut which held the Constitution protects the right of married couples to use contraception,

Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense.

There is no reason to limit this to two people, but it is good to note that everyone has a right to their intimate associations.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.

Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.
They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.  The marriage laws at issue thus harm and humiliate the children of same-sex couples. 
There is no good reason children should be made to feel lesser because of their parents' consensual relationships.
The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.  The Due Process Clause and the Equal Protection Clause are connected in a profound way.  Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of  the other.  This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause
Again, there is no reason this should be limited to couples, but surely it has to apply to consanguinamorous couples as well.
The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.
Yes, and the same applies to consanguineous relationships and and polyamorous relationships.

The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.  Same-sex couples may exercise the fundamental right to marry. 
Baker v. Nelson is overruled.  The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. 
Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled.
Laws against private, consensual sex between adults are harmful and need to go.
Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

Again, there is no reason this has to be limited to only two people.

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.
The same is true for polyamorous and consanguineous lovers.
Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
Things will keep progressing.
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.”  The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.

In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 

Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

Again, marriage is a fundamental right.

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

It can also be with three or more. That's why full marriage equality is needed.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.  And hundreds of thousands of children are presently being raised by such couples.

Children are also being raised in polyamorous and consanguinamorous homes.
These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

More reasons full marriage equality is needed.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.

This is why full marriage equality will happen.
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
This should all apply to polyamorous and consangauinamorous relationships as well.
The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties. 

The same holds true for polyamorous and consanguinamorous marriages.
The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.   It follows that the Court also must hold—and it  now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
Beautiful. Adults have a right to their sex lives and to marry. So it is time to stop denying people their rights and treating them like criminals for loving each other.

If the legislators of our country really care about equality and justice, they will adopt a Marriage Equality Amendment to ensure those things.

Until then, and until a complete victory at the Supreme Court, we must keep working to ensure that all adults have their rights.
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  1. Now that Gay Marriage is legal in all 50 states, I wonder what will be next to be fought for and legalized next.
    Consanguineous marriage or Polygamy?

    1. There are polyamorous and polygamous people and allies who've already made moves to try to make it happen. I'm hoping to see a push for the consanguineous freedom to marry soon. That may happen in stages, with cousins trying to extend their freedom to marry from half of the state's to all. However we get there, we will reach full marriage equality.


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