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.

Senator Feinstein Introduces (Limited) Respect For Marriage Act

I'm bumping up this argument from March 2011 because I'm hearing that the RFMA is being given another push...


US Senator Dianne Feinstein (California) has introduced a bill for a limited Respect For Marriage Act, which would repeal DOMA, the Denial of Marriage Act. The bill, if it becomes law without any other changes in law, would simply remove at least a portion of the unconstitutional DOMA so that same-sex marriages created in states or countries that currently recognize them would be recognized by the US government. Currenty, no same-sex marriages are.

Reading the language of the bill, it appears to me that it is possible that if one state were to gain the polygamous freedom to marry or the consanguineous freedom to marry (or, do the right thing and institute full marriage equality), the US government would recognize those marriages, too.

The Respect for Marriage Act would repeal DOMA and restore the rights of all lawfully married couples – including tens of thousands of same-sex couples – to receive the benefits of marriage under federal law.

Under current law, legally married, same-sex couples cannot take advantage of federal protections available to every other married couple in this country. These couples cannot:

File joint federal income taxes and claim certain deductions;

Receive spousal benefits under Social Security;

Take unpaid leave under the Family and Medical Leave Act when a loved one falls seriously ill;

Obtain the protections of the estate tax when one spouse passes and wants to leave his or her possessions to another.

And this is important to note…

Joining Senator Dianne Feinstein (D-Calif.) are co-sponsors: Patrick Leahy (D-Vt.), Kirsten Gillibrand (D-N.Y.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.), Ron Wyden (D-Ore.), Frank R. Lautenberg (D-N.J.), Richard Blumenthal (D-Conn.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Al Franken (D-Minn.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.), Mark Udall (D-Colo.), Jeanne Shaheen (D-N.H.), Dan Inouye (D-Hawaii), and Daniel Akaka (D-Hawaii).

It’s a good start, but I call on these Senators to make history for equality and propose the Marriage Equality Amendment.

Polyamorists React to Court Decision on DOMA

First and foremost, I join with many others in congratulating everyone in the US who will be able to marry the person they love and have that marriage be recognized under federal law, due to the Supreme Court decision on DOMA. Enjoy, all you newlyweds!

As readers of my blog are well aware, we have a long way to go on relationship rights, including full marriage equality, for all adults, but progress is better than no progress.

The court decision has resulted in much discussion in polyamory and polgamy circles, and by journalists who cover them.

At Radical Poly Agenda, this was the initial posting reacting to the decision.

SCOTUS Gives Victories on Marriage

The Supreme Court of the United States has given victories on marriage, although just about the weakest possible. They issued decisions on the federal DOMA, which denied equal treatment to same-gender marriages under federal law, and California's Proposition 8 (Prop H8). DOMA is dead! In the PropH8 case, they decided those defending the discrimination didn't have standing to defend it.

The basic gist is that progress was made, but the Court did not recognize that there is a right for an adult to marry any and all consenting adults, or even that a gay or lesbian person has a right to the limited same-gender freedom to marry.

So, congratulations to all who will now have their marriage treated equally under federal law & to Californians who will again have the  freedom to marry the person they love. But we must remember there are still many people in many states who are denied their right to marry the person or persons they love.

We will keep fighting to make sure all adults have relationship rights, including full marriage equality, sooner rather than later.

US Supreme Court Should Make Bold Move For Equality

The US Supreme Court has heard arguments about both DOMA and Prop H8 and could issue a ruling any day now. DOMA denies same-gender marriages recognition at the national level and has been very problematic, including for members of the US military and immigrants. Prop H8 took away the same-gender freedom to marry in California. Cases about both laws had been making their way through the courts and are now at the Supreme Court. There are many possible outcomes, some seen as more likely than others. It is possible that the Court could end up ruling next month, in June, to strike down DOMA so that same-gender marriages granted in states that currently have them will be recognized by the federal government, and letting lower court decisions striking down Prop H8 stand, so that California will again have the limited same-gender freedom to marry. It is also possible the Court may rule in a way that brings about the limited same-gender freedom to marry nationwide.

We want the US Supreme Court to make the best possible ruling, which is to recognize relationship rights, including full marriage equality, for all adults nationwide.

The Court should rule that…

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

There are many reasons why the Court should do this.

Another Ally For the Polygamous Freedom to Marry

Professor Mark Goldfeder makes a compelling case for the polygamous freedom to marry. He wrote on "Polygamy and DOMA" at sltrib.com...

The plural marriage movement is real. An estimated 50,000 to 150,000 polygamous families already live in America, from the well-publicized Muslims and Mormons to the African and Vietnamese immigrants keeping up their cultural ways. From modern feminists looking for a better work/life balance, to family traditionalists, who maintain that any marriage is better than none in the fight against the rising tide of single parents, cohabitation, and divorce.

Over 500,000 others identify as polyamorous, and engage in "ethical non-monogamy" — loving, committed, concurrent, consensual relationships with multiple partners.

I think that estimate is on the extremely low side. Many polyamorous people have never been part of any survey or polyamory group and may not even be out.

Experts say that 30 to 60 percent of married people in the U.S. will commit adultery over the course of their ‘exclusive, dyadic relationships,’ producing a form of de facto polygamy.

While that certainly means the relationships are not monogamous, in most cases it probably can't be called polygamy or polyamory, which are terms that imply all involved have agreed to the relationships.

Thousands of others will actually marry a second, sometimes even a third person, albeit after a legal divorce from their original spouse.

Yes. Very few people are truly monogamous over the course of their lifetime.

While some believe that plural marriage could lead to harm against women, regulation would protect them.

Gender inequality under the law harms women, not polygamy. A woman should have just as much right to marry multiple spouses as a man.

Those who would argue against plural marriage have their work cut out for them. The Bible records at least 40 instances of the practice. Confucianism, Islam, Hinduism, and some forms of Mormonism also support it. While Catholicism bans it, other forms of Christianity are somewhat less opposed.

Plural marriage is legal in more than 150 countries, with an estimated 2 billion practitioners and 3 billion supporters. Anthropologists believe that it was the norm through most of human history, until the sixth century Christian influence of the Roman Emperor Justinian. As a North American value, plural marriage is older than monogamy. According to one study of Native American tribes, a full 84 percent of them practiced it.

Natural law arguments also fail. Biologists lately have discovered that in the animal kingdom, there is almost no such thing as monogamy.

There is no good reason to deny the polygamous freedom to marry. Let's stop quibbling over which adults get which relationship rights. More and more people are realizing that an adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, bullying, or discrimination. Full marriage equality will happen. Let's make it sooner rather than later.

More States Allow First Cousins to Marry Than Gays

You may have seen this picture (now outdated.) It shows that (heterosexual, monogamous) first cousins can legally marry in more US states than (monogamous) same-sex partners. Now, 9 states and Washington, D.C. allow gays and lesbians to marry one partner, with restrictions. See this map for laws regarding consanguineous sex and marriage, and this map for laws regarding same-sex marriage. Marriage is regulated at the state level in the US, which is why different states have different laws, but there are federal (national) programs and policies that treat people differently based on marital status. Currently, DOMA (which I like to call the Denial of Marriage Act), a federal law, prevents federal programs from recognizing legal same-sex marriages, but in June 2013 the US Supreme Court will likely overturn it.

Another way federal law has intruded into the freedom to marry is a denial of the polygamous freedom to marry. IIRC, if was over a hundred years ago that the Supreme Court denied that freedom. (It wasn’t all that long ago the court denied the right to gay sex in private, but fortunately it has since overturned that ruling.)

It is ridiculous for any of the states to deny the same-sex freedom to marry, and it is ridiculous for any of the states to deny the consanguineous freedom to marry. We can see from the many states that allow first cousins to marry, and for the many countries that do so, that there is no problem with it. We can also see from the states that have the same-sex freedom to marry, as well as countries like our neighboring Canada, that there’s nothing wrong with letting people have that freedom.

Every US state should back full marriage equality. An adult should be free to share love, sex, residence, and marriage with any consenting adults. If a woman wants to marry her cousin, she should have that right, even if that cousin is female, even if that cousin is already married, if all involved consent. Let’s make it happen sooner rather than later, either through a victory at the Supreme Court or by getting a Marriage Equality Amendment. This is no mere philosophical matter. This is about real people who denied equality right now. There are people who have to move, or at least travel, if they want to get married. There are also adults who are in happy, healthy, lasting marriages (though not legally recognized) who can't even be open to others about their relationship without risking prosecution. Prosecution, for loving each other! Thankfully, most same-sex couples not longer have that problem, but not all same-sex couples.

When someone shares that picture with you, it perhaps a good comment would be, “That is terrible. EVERY state should allow gays, lesbians, AND first cousins to marry. An adult should be free to marry any consenting adults.” As always, feel free to link to this or any other entry here if you'd rather save yourself the time.

They Know Equality Will Happen

Steve Sailer wrote at vdare.com that we'll eventually get the polygamous freedom to marry, and he says it will happen because of African immigrants. I get the impression he's not happy about it and is being sarcastic when referring to racism.

Whether someone is a bigot or not, it is good that more and more people realize we will get full marriage equality. We've seen that over the last few days when it comes to the DOMA and PropH8 cases before the US Supreme Court, and how defeated the anti-equality mouthpieces are sounding.

The sooner opponents of equality realize that it is inevitable, the sooner they can put their resources to things like, oh, protecting children (and adults) from predators. I know denying basic rights to other adults is high priority and all, but once they realize equality is going to happen whether they like it or not, they're less likely to waste their time and money.

They've claimed their opposition to equality has been for the protection of women and children. In their convoluted desperation, maybe some of them actually believe it. But every dollar or minute spent fighting another adult's right to marry is a dollar or minute that can't be spent feeding the hungry, sheltering, the homeless, treating the sick, or fighting crimes against children.

Encouraging President Obama and the Supreme Court

According to this Associated Press article by Julie Pace…

The Obama administration is quietly considering urging the Supreme Court to overturn California's ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Barack Obama to rights for gay couples.

More and more US states are adopting the limited same-gender freedom to marry. Many others have domestic partnerships or civil unions. In the two neighboring countries, Canada has had the limited same-gender freedom to marry and Mexico is moving towards it nationwide. The US, as a country, is playing catch-up. How embarrassing.

I urge President Obama and the Court to boldly, strongly put the US in a leadership role and support protections based on sexual orientation and relationship rights and full marriage equality for all, rather than a piecemeal approach of this freedom to marry or that form of civil union. Equality just for some, or in some aspects but not others, or in this state but not that state, is not equality. The Constitutional principles of equal protection, freedom of association, freedom of religion, and the right to privacy, along with basic fairness, rational reflection, and compassion, necessitate that the US government ensure the rights of all adults.

Supporting relationship rights, including full marriage equality for all, will eliminate the impractical, unjust, and confusing inequalities in the law pertaining not only to some same-gender relationships, but in all adult relationships, including those that are polyamorous or consanguineous. Some of those inequalities include:

1. Utah’s criminalization of polyamory while other states allow polyamory but do not protect polyamorists and deny the polygamous and polyamorous freedom to marry.


2. Some states allowing first cousins to marry monogamously without restriction, other states allowing them to marry with restrictions, some states banning this freedom to marry, and even a couple of states criminalizing sex between first cousins.

3. Some states allowing any adults who are closer relatives their sexual rights with each other while other states ban those rights.

Nobody should fear being arrested and imprisoned for having a consensual relationship with other adults.

Nobody should be denied the freedom to marry other consenting adults.

There are people who love each other, who have been living as spouses, even have children together, who are denied their rights, who need and want full marriage equality.

Please, Mr. President, urge the Court and the American people to support equal rights for all. Please, to those who serve on the Court: end the discrimination.

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

Let’s get on the right side of history sooner rather than later, and put the hate, bigotry, and bullying behind us. Protect the rights of all adults in all states.

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.

A Strong Plank

Did you pick the Oscar winners? Were you able to vote as a member of the Academy? The big night is over for another year. That allows for more attention to turn to another voting matter; the US election for President.

At Upper Left, Shaun also supports the proposed plank in the US Democratic Party platform...

The Democratic Party supports the full inclusion of all families in the life of our nation, with equal respect, responsibility, and protection under the law, including the freedom to marry. Government has no business putting barriers in the path of people seeking to care for their family members, particularly in challenging economic times. We support the Respect for Marriage Act and the overturning of the federal so-called “Defense of Marriage Act,” and oppose discriminatory constitutional amendments and other attempts to deny the freedom to marry to loving and committed same-sex couples.

As Shaun said...

I do, and my Party should.

I do, too. An adult should be free to marry any consenting adults. Full inclusion of all families is a must. Tear down the barriers of bigotry.

Whatever party, if any, you have joined, work to get the party on board with full marriage equality. Be on the right side of history.

I do. Do you?

Full Marriage Equality Includes All Freedoms to Marry

The good news is that more of the US is allowing more lovers access to marriage. There are several US states, such as Washington and New Jersey, in the process of moving towards the same-sex freedom to marry through legislative action. The national law, DOMA, needs to die, and there’s renewed effort to that end. But while DOMA still exists, states should move ahead.

But states should take the opportunity to bring in full marriage equality, not stopping short with just the limited, monogamous same-sex freedom to marry. States should settle their law now rather than do things piecemeal, returning to it time and time again later, because equality just for some is not equality.

States should adapt the Marriage Equality Amendment with something like this:

The right to marry or to personal consortium shall not be abridged on account of sex, gender, sexual orientation, ancestry, consanguinity, or number of participants.

Attention Americans

You can support repealing DOMA with the Respect for Marriage Act by signing this petition. Personally, I think we need a Marriage Equality Amendment as the best solution.

President Obama Endorses Repeal of DOMA

In case you haven’t heard, as US Senate Judiciary Committee testimony is scheduled for tomorrow on DOMA, Obama is endorsing the bill to repeal DOMA.

Introduced by Democratic senators Dianne Feinstein, Patrick Leahy and Kirsten Gillibrand, the Respect of Marriage Act would repeal the law, which defines marriage as between a man and a woman and effectively bans same-sex marriage on a federal level.

While I would expect the Supreme Court to overturn DOMA within a few years, doesn’t it make sense to save everyone the trouble, and help out families who need immediate help, and pass the repeal through the legislature now?

Obama can do even more for full marriage equality by proposing a Marriage Equality Amendment.

LaVictoire Shows More Solidarity for Poly People

Bridgette P. LaVictoire writes about the wing of the Southern Baptists who oppose marriage equality, focusing on current issues surrounding DOMA (the Denial of Marriage Act). These people are panicking as they see marriage equality advancing, and you can find much about that by reading LaVictoire's write-up Then, she gets into consanguineous sex…

Should incest be considered immoral? More than likely because it has a deleterious effect on the genetics of the society.

Ah. Discredited Argument #18

Should it be illegal? That is harder to gauge. The vast, vast majority of incest is non-consensual and would easily fall into other categories such as rape. Can one say that the dynamics regarding incest ever make it truly consensual? That is a complex discussion, but one that is not going to be taking place.

It is taking place, and it should. More people need to give up their prejudice against such relationships. As noted, there are laws against rape and child abuse. We're not talking about that, any more than we’re talking about male-on-male pedophilia when we're talking about same-sex marriage. Any adult should have the right to love, sex, and marriage with ANY other adults.

When it comes to homosexuality, and let us face it, polyamory, the arguments against are rooted in culture and religion, not in any kind of real debate of facts.

It is good to see her show solidarity with poly people. Hopefully, she will show more solidarity for all. Equality just for some is not equality. We need full marriage equality.

A Legal Movement Towards Full Marriage Equality

The Pursuit of Harpyness has praise for what sounds like an important book by Martha C Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law. The book and the review both support full marriage equality and the review cites the need for solidarity.

The reviewer notes that people who are disturbed by a given sexual activity should not continue to think about it (presumably, if they are unlikely to get over their disgust).

Yet this doesn’t seem possible for some folks, who insist that the mere possibility of someone doing a sexual act that they think is “gross” violates them personally - and somehow contaminates our shared civic culture and public spaces in some ineffable way. Because of this feeling of threat and contamination, they try - and often succeed, particularly here in the United States - in passing laws which circumscribe the sexual rights of certain segments of the population.

They become sex police.

Nussbaum’s brief volume takes us on a whirlwind tour of the history of constitutional law as it relates to human sexuality, with a particular focus on the rights of gay and lesbian Americans - though the implications of her argument can be generalized out to consider the sexual practices of all citizens. Nussbaum’s goal is to sketch out the historic rationale for laws grounded in disgust and show that these arguments are extremely weak as a basis for denying certain groups fundamental and constitutionally-protected rights (such as the right to engage in consensual sexual activities with the partners of their choice, the right to marry, and the right to engage in commercial sexual activities).

Sounds like a great read. The review goes on to talk about the long tradition in the US of recognizing that it is respect for persons that has compelled everything from religious tolerance onward.

From this basis of understanding concerning the Constitutional right to equal protection for individual liberty, Nussbaum argues that we can - and must, Constitutionally-speaking - protect the right of people to do things (consensually and privately … and in some cases, publicly) which we find morally abhorrent and physically disgusting.

Like I’ve said before, if you don’t want to marry someone, you don’t have to. But if someone else wants to, they should be allowed. The review then calls out those who throw others under the bus instead of expressing solidarity….

One thing I particularly appreciated about From Disgust to Humanity is Nussbaum’s willingness to discuss, however briefly, the legality of sexually-intimate relationships (and even marriages) that go beyond the two-consenting-adults model. All too often, proponents of same-sex marriage seek to distance themselves from associations with the legalization of other non-normative relationships. Yet Nussbaum points out that the legal arguments separating out two-person unions from other types of unions are “extremely weak.”

The book doesn’t leave out the consanguineous lovers, either.

”Regulations on incestuous unions have also typically been thought to be reasonable exercises of state power, although, here again, the state interests have been defined very vaguely. The interest in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear that there is any strong state interest that should block adult brothers and sisters from marrying. (The health risk involved is not greater than in many cases where marriage is permitted.)”

Adults should be allowed to marry each other, even if one of them is a parent to the other. Back to the solidarity thing by the reviewer…

I realize there are strategic reasons for the marriage equality folks to emphasize that gay and lesbian couples aren’t attempting to radically alter marriage in scary, unknown ways - the argument that anti-gay marriage folks routinely make. Yet every time I hear the “of course same-sex marriage won’t lead to polygamy!” argument I wince because of the poly relationships I know that just got kicked to the curb by queer folks who, you would think!, would be natural allies. And while I know incest seems, to the majority of people, a physically repulsive concept, Nussbaum is right in arguing that disgust alone is not a justifiable reason to outlaw a behavior that does not do demonstrable harm.

Adults should be allowed to exercise their rights to love, sex, and marriage with any consenting adult, even if someone finds it disgusting. Participation is voluntary.

And to those ends, there is breaking news that US President Obama is letting DOMA (Denial of Marriage Act) die, which will allow the federal government to recognize the marriages of some same-sex couples. Based in part on that, lawyers have asked a court to lift its hold on the a lower court's Prop H8 verdict to allow (some) same-sex couples to marry in California. Congratulations to all same-sex couples who will benefit from today's move by Obama. It would be great if same-sex triads could also marry, or two sisters. But we will get there.

Good News on DOMA

In the USA, a federal judge has struck down a federal law, DOMA, that prevented the federal government from recognizing same-sex marriages. Step by step, we're getting closer to marriage equality.

Equality For All, Not Just Some

According to this article about recent events in Washington, D.C., some gay and lesbian activists say that repealing the so-called Defense of Marriage Act of 1996 will bring full equality. I would hope that this is a misinterpretation by the newspaper writer. Unfortunately, it may not be. All too often, our brothers and sisters fighting for marriage rights for same-sex couples stay silent when it comes to the rights of those in consanguineous or polyamorous relationships, or distance themselves from our desire for equality in these areas.

If some of us aren’t free, none of us are free. Let’s work together to promote the true freedom to love and freedom to marry.

Passing a true marriage equality amendment would be a major step in bringing full marriage equality to the U.S., and it would take care of DOMA. I don’t think a piecemeal approach will work.