July 30, 2009

"Same-sex couples in Dane County that register as domestic partners with the state beginning Monday won't get all of the same rights..."

"... as their married peers, but they’ll be equal in at least one way — signing up will cost $115, the same as for a marriage license... By signing up, same-sex couples will get a document that formalizes their relationship and can be used in a variety of ways..."

What ways? The more similar domestic partnership is to marriage, the stronger the argument that it violates the Wisconsin constitution:
[Wisconsin Family Action] filed a petition for original action with the Wisconsin Supreme Court, asking the Court to declare the domestic partner registry Gov. Jim Doyle authored in the 2010-11 state budget unconstitutional and to issue a permanent injunction against it....
Here's Art. XIII, sec. 13 of the Wisconsin Constitution:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
It's all about "substantially." Proponents of the new law want it to be as substantial as it can be without being substantial within the meaning of the constitution. Similar, but not that similar.

Meanwhile, the state will accept your $115 fee for... almost nothing... or nothing at all if it's is too much not nothing and therefore unconstitutional.

27 comments:

Triangle Man said...

If the substance of marriage is the holy bond of matrimony in the eyes of God, I don't see how mere contractual arrangements between a pair of adult citizens can be regarded as remotely similar.

Scott M said...

I have yet to have a single proponent of same-sex marriage give me an answer to the question of equal treatment. In that, I refer to how polygamy is dealt with.

As a libertarian, I really don't care if Fred "marries" Ted. But I have a serious problem with the newly married Fred & Ted telling Bob, Linda, and Mary that THEY can't get "married".

In other words, what makes a two-person "marriage" more valid than three or four?

I've gone toe-to-toe with Herr Andrew on this over at TNC's blog and the best answer, which is still an extremely weak one, is that allowing same-sex "marriage" is less of a burden on the current legal system. Adapting laws to multiple-spouse "marriages" would pose too much of a legal nightmare.

So...you're rights as someone wanting two wives or two husbands aren't as important as someone who only wants one, albeit of the same sex. Patently and unequivocally intellectually dishonest.

gaywrites said...

I remember back in 2006 how many who supported the amendment continued to stress that this wasn't about domestic partnerships or the ability for employers (including the state of Wisconsin) to provide benefits for employees. This amendment was about preserving the institution of marriage. In fact, in the Milwaukee Journal Sentinal on July 30, 2006, Rep. Mark Gundrum (R-New Berlin) said that the "substantially similar" language " was designed to prevent activist judges from doing what they did in Vermont - dictating that there be . . . marriage under a different name. That's all it's intended to do."

So the second sentence purportedly was not about the legislature's ability to enact limited benefits, and Gundrum concedes that in the article as well, saying, "the amendment would allow the Legislature at some point to create a civil union that includes a limited number of benefits."

So supporters of the amendment did not want judges to decide what did and did not constitute marriage, but they decided on vague "substantially similar" language that was bound to lead to a legal challenge, ultimately leading the Wisconsin Supreme Court to decide the boundaries of marriage anyway.

Worse than that, supporters were assuring voters who were unsure about the breadth of the amendment that it wouldn't reach as far as opponents said it would, perhaps inducing them to feel comfortable voting for the amendment even if they supported domestic partnership benefits. And now the supporters of the amendment are going back on their word and are saying that the very limited benefits that the legislature is granting to same-sex couples are "substantially similar" to marriage.

I'm a gay man in Dane County with a boyfriend of going on two years, and although we're not ready for marriage even if we had the option, I find it a slap in the face that we'd have to pay $115 for about 1/10 of the legal protections of marriage. "Here, pay us this money and we'll give you a little piece of paper to keep you quiet." Give me a break.

Ann Althouse said...

$115 is an annoying high fee even for the full marriage, but male-female couples can get married in another state, for much less, and be married everywhere.

gaywrites said...

That's so true. So for same-sex couples not only is it the same price for much less in Wisconsin, it only applies in Wisconsin and can only be purchased in Wisconsin. It's like getting a driver's license that only lets you drive on your street in your state. "See! You're driving! Isn't that cool! Not to mention, substantially similar to going on a cross-country vacation!"

Scott M said...

It's always been my contention that the language in this issue is the single biggest barrier. It's an organic result of history, so it's really no one's fault.

Marriage is a religious tenet, first and foremost, and like it or not, religion (or mysticism, spiritualism, whatever) predates organized rule-of-law societies.

A marriage, in the original sense of the concept, is presided over by a member of whatever clergy the two subscribed to and was then recognized by the state, whatever that state was. Now, we seemed to have forgotten that fact.

I'm perfectly fine with making all such unions "civil unions" and leaving marriages where they should be...within the fold of the faithful.

That would certainly take the poison out of at least half of the debate. Will it ever happen? Nope.

Alex said...

I know how to solve the state budget deficits! Charge $1 million per marriage certificate to gay couples. Everyone knows they're all filthy rich. Right Titus?

Jim said...

"In other words, what makes a two-person "marriage" more valid than three or four?"

This is the moral conundrum and why it's wrong and completely hypocritical to call opponents of gay marriage "bigots."

One must look at sexuality and relationships on a spectrum ranging from the masturbatory and exclusionary love of one's self to the polyamorousness of the compulsively hypersexual.

As a society, we have decided that neither end of that spectrum is deserving of acknowledgement. In fact, we have drawn lines on that spectrum to specifically exclude certain forms of sexuality - bestiality and pedophilia - as well as relationships - polygamy being the best known example.

Each society must decide for itself where appropriate lines must be drawn beyond which it will not go.

The definition of marriage has four components:

1) Number of participants
2) Their gender
3) Their age
4) Their species

For thousands of years, the defining characteristic of marriage has been 2 humans of the age of consent of opposing genders. Society has said over that long period of time that this is the extent of acceptable sexuality and so it will not acknowledge the formation of relationships in contravention to this formula.

Now gay marriage advocates say that the formula must be changed in the name of fairness - but only with regard to #2 - all the other items are as invioble as they have always been, but it's that pesky #2 alone that gives rise to claims of inequality.

Why not #1, #3, or #4? What makes #2 open to debate and not the others? The truth is that intellectual consistency requires (and the law will ultimately find) that either none of them are up for debate or all of them are.

Now, as I've said before, I'm supportive of gay marriage so long as the inherent religious conflict is resolved in favor of the freedom of religion. So this isn't an argument against gay marriage; it is, however, pointing out that gays are making every bit as much of a moral argument as those who oppose them - and any claims to the contrary are either consciously or unconsciously dishonest.

Jim said...

contd

Basically gays say that the sexuality line is drawn in front of me, but that's unfair. The line should be erased and redrawn....right behind me. I don't think it's fair because I'm not included, but I'm perfectly willing to exclude others who don't comport with MY idea of what constitutes an appropriate union (bestiality, polygamy, pedophilia, etc.). I am a superior arbiter of what is right and what is wrong to those who have drawn the line in front of me, and therefore, you must bend to my will and redraw the line behind me.

It's a forgivable hypocrisy in which every heterosexual engages as well, everyone has their own idea of what "goes too far." At heart, this has always been about morality, but some want to claim some level of superiority in being more "open-minded" or "tolerant," when they are no such thing.

They're perfectly OK with drawing and maintaining lines...they just wanted to fiddle with this one a little bit.

You cannot simultaneously condemn those who draw the lines while being perfectly willing to draw them yourself.

This is the fundamental problem with claiming gay marriage is a matter of "civil rights" or "equal rights" because it inevitably opens the door that those standing behind gays on that sexuality scale will walk right through using the exact same arguments. It IS the Pandora's Box that those standing in opposition to it have always said it is, despite disingenuous claims to the contrary.

Polygamists have already filed cases similar to those that gays filed. A woman legally married a dolphin in New Zealand in 2006. NAMBLA is peeking its head over the table and making arguments for their "rights" too. These things ARE happening, and WILL eventually happen so long as this it is argued that this is a civil or equal rights issue. (For those who claim it will never happen, ask yourself if anyone in 1950 would have ever believed that we would even be THINKING about allowing gays to openly marry. Yep. Just like that.)

The truth is that the argument should be framed as: we gays are good people, we're positive contributers to this society, therefore we'd like to be in front of the line rather than behind it as we are today, and it would be nice if we were. Could you help us out?

Appealing to the inherent generosity and good nature of people is the way to go. It's also more honest.

Claiming that your opponents are bigoted is the highest form of ignorance: especially when you have your own bigotry on the issue. It's not civil rights, it's just civility.

Matt said...
This comment has been removed by the author.
gaywrites said...

Jim,

One could write an entire book on the points you've raised (and many have). Personally, I see very few same-sex marriage advocates addressing polygamy or the rest of pandora's box at all. I don't think gay Americans that wish to marry people of the same sex are actively trying to deny polygamy or any other form of relationship. However, that does not assume that they condone it either. I don't think it is the responsibility of gay rights advocates to address the issue of polygamy any more than advocates of repealing miscegenation laws were concerned with same-sex marriage. The truth is, it's up to polygamy advocates to use the political process (as gays and lesbians have) to make their case. And maybe there is a valid reason for it, but it isn't my responsibility to advocate for or explain away the tangential issue of polygamy.

The reason for this is, because legal arguments in favor of gay marriage are clearly based on the argument that there isn't a social harm in allowing same sex couples to marry, and similarly, the denial of such is not linked to a rational or legitimate state interest (some would even say that interest must be compelling). All of this is being debated vigorously in legislatures and in the courts across the country. You can argue there is a social harm in gay marriage and that the state has an interest in keeping marriage limited to people of different genders but if you concede that there is no rational, legitimate, compelling (depending on the scrutiny) interest, that does not mean you are obligated to open marriage to everyone.

Many of the sexual conduct laws that have survived the sexual liberalization of this country were deemed to be doomed as time went on. The truth is, that hasn't really happened. The laws that have a valid basis will continue to be sustained. Sometimes the reasoning for keeping them will change (many moral laws such as adultery etc. started with religious justifications and have modernized to more pragmatic justifications). That is precisely one problem plaguing gay marriage opponents. The religious arguments are more difficult to make in a culture that is increasingly libertarian, especially given the wider acceptance of homosexuality in general. Opponents will have to make more compelling arguments than tradition or religion.

In terms of the other factors of marriage, "age" still has a very compelling justification that does not have to do with religion or tradition. Most Americans believe, and science would support that children (at least anyone 14 and under) do not have the mental capacity or maturity to be married. Although age of consent differs from state to state, all states have agreed 14 is too young. The ability of the state to protect underage youth against sexual experience with older persons and more generally, marriage, is well-established. There is enormous evidence of the possible harm such encounters pose for youth.

One argument against polygamy is that it is harmful to women because polygamy, most notably, happens in American subcultures where women are submissive to the will of men, and thus, men with several wives are not asking for the consent of each woman to actually marry them.

The question has alwasys been "how do we balance individual rights to happiness and social flourishing against possible harm to third parties, the individual, or society." That is always the fight we will have, no matter the moral issue.

As states experiment with gay marriage they will see the consequences and if the argument that being gay is benign phenomenon and that gay people create healthy relationships and healthy families (or at least relationships that do not harm the social world) then gay marriage will stay. If not, it won't.

Matt said...

Jim
I halfway agree with you. Glad to see you sort of support gay marriage.
I agree that appealing to the inherent generosity and good nature of people is the way to go. However I am not sure why you would dismiss the civil rights issue or equal right simply because it might open a Pandora's box.
What other issue could they claim? Do they not in fact want equal rights to marry? Saying, "Hi, I'm a nice guy and a contributor to this society. Can I please have the right to marry my partner" has to have a basis in something more than just give me rights because I'm a nice person.

Plus the Pandora's box argument is a typical slipper slope argument that is used to oppose change. Look, If people want to try to marry dolphins or dogs or insects let them try. The law will put a stop to it. Plus, there just aren't that many people who want to do that so their lobby will fall way short. So lets take that argument off the table. However, there are a lot of folks who are gay and who want the right to marry.

The approach by some gay rights groups might be heavy-handed and could be handled better. I agree. But at the end of the day it is up to legislatures, governments and maybe judges to make these changes. How we get there doesn't really matter - so long as people aren't dying or being killed to get there.

And, sorry, but there are a good number of people who think homosexuality is a sin. And their opposition to gay marriage is based on that. I would hope legislators or judges are not using that line of reasoning but it exists.

Scott M said...

It's refreshing that we can have a discussion on this topic without descending to the lowest common denominator and hurling insults at each other.

@gaywrites

I understand what you're trying to say, even though I believe you're comparing apples to oranges, so to speak. I would like you to take a swipe at writing even a common-language (certainly not legalese) statute that would allow same-sex marriage, granting it full acknowledgment and equality under the law as traditional marriage, without implicitly or explicitly discriminating against proponents of multi-partner arrangements. I don't believe it can be done.

To address your point about polygamists having to working their own way through the political process for their own rights, that's tantamount to being black and saying, "well, now I can sit anywhere on the bus. You orientals and hispanics are just going to have to sit in the back until you get your own shit together".

gaywrites said...

"That's tantamount to being black and saying, "well, now I can sit anywhere on the bus. You orientals and hispanics are just going to have to sit in the back until you get your own shit together".

Actually, not really because the idea of granting or denying rights to African Americans was based on race, thus, granting those rights would apply to people of all races (Hispanic and Asian included). What gay advocates are fighting against is an argument that is allowing two people of different genders to marry but not two people of the same gender. So same-sex marriage only alters the extent to which gender plays a role in a marriage. If you extend marriage to different genders you must extend it to same genders (in the same way as if you give it to this race you must give it to all other races). The polygamy issue does not address gender. It addresses the number of participants. When you acknowledge extending marriage to any combination of genders, you do not automatically have to extend it to any number of participants or species or ages etc.

The more proper analogy would be saying, "that's like telling black men they can vote but women still have to get their shit together before they can vote." And actually, that's exactly what happened.

Scott M said...

@gaywrites

You're correct on the aptness of the analogy with the additional caveat that it was women first then race.

You didn't answer the first part of my response, though, regarding the ability to write a piece of legislation that doesn't discriminate against multi-partner arrangements.

And, further, your logic is still arbitrarily restrictive. You're saying that it's not okay to discriminate against same-sex marriage, but it is okay to discriminate against multi-partner marriages. Arbitrary.

One last thought. The ability of a group to raise a lobby should have nothing to do with that group's argument's legitimacy. To say otherwise is to possibly acknowledge the reality of politics, but derails the entire discussion along philosophical lines.

buster said...

Although I oppose gay marriage, I think gaywrites wins his argument with Jim (viz., whether gays can argue that the restriction of traditional marriage to persons of different sexes should be abolished without conceding that the number, age, and species restrictions should be abolished as well). There is nothing inconsistent or intellectually dishonest about claiming that marriage should be limited to two adult humans of the same or different sexes.

buster said...

As to Scott M's claim that gaywrites is being "arbitrary," this is true only in the sense that gaywrites should give a justification for abolishing only the sex limitation, but not the number (age, species) restriction as well. (I know gaywrites doesn't want to assume this burden, but he should.)

Assuming there is a justification (a pretty safe assumption, it seems to me), there is nothing inherently arbitrary about forbidding polygamy (child marriage, bestiality). The justification requirement applies to any restriction on marriage, including the restriction to heterosexual couples.


In order to give a justification, you must begin with an explanation of the purposes of the institution of marriage. Only then can you show that limiting marriage to heterosexuals or to couples is or is not "arbitrary." That is why it is misleading to cast the argument in terms of equal rights. If there is good reason to limit marriage to heterosexual couples, there is no violation of equality in doing so.

Scott M said...

@buster

First, please explain the way you framed polygamy attached to parenthesis enclosing child marriage and bestiality. The latter two have nothing to do with the former. When I argue for polygamy in the context of this debate, I'm talking about consenting adults. Frankly, if the same-sex advocates were canny about the whole thing, well...I'll keep my peace about about that.

Second, you can still violate equality even if you have good reason to do so. Having a sound reason for a policy does not absolve it of being equal or not. But that's another debate.

Jim said...

gaywrites -

"I don't think gay Americans that wish to marry people of the same sex are actively trying to deny polygamy or any other form of relationship. However, that does not assume that they condone it either."

I agree with both statements. But herein lies the problem: if it is a "right," then it applies equally to everybody regardless of whether they support it or not. If, on the other hand, we are talking about judgments of social good or ill, then we're talking about essentially making moral judgments as to the desirability of those relationships.

What you described in your post sounded like an acknowledgement of the thrust of what I said: that gay marriage is not a civil right, it is a matter of civility. Your post is response dances around agreement while agreeing in essence with everything that I said.

Your argument boils down to: gays say that them getting married doesn't hurt anyone else, therefore, they should be allowed to do so. I happen to agree with that statement, but while that might make allowing gay marriage desirable it is the exact opposite argument from saying that it a 'right.'

If gay marriage were a "right" then whether or not they hurt anyone else would be irrelevant to the conversation as they would be entitled to do so no matter what possible harm could result. This would also be true of pedophiles, bestialists, and polygamists. If there is a fundamental right to marriage, then it must extend to all - regardless of how we may personally feel about the propriety of the particular relationship in question.

[It is akin to the right to the freedom of expression. If I agree that it is a right, then I must allow both speech I agree with and that I disagree with or it isn't a right at all.]

To the extent that you successfully argue against the potential social harms or relative undesirability of allowing other changes to the definition of marriage and society's right to place restrictions on those relationships, you are also arguing that there is no inherent right for anyone to marry. Period. Full stop. It is always and everywhere a moral judgment that society is passing as to who should be permitted to marry and who should be excluded.

As this is the case, there is no objective basis on which to call someone who disagrees with gay marriage a "bigot" as it only opens those would level such accusations up to being called one by a polygamist or anyone else who engages in a relationship which is not currently approved by society.

That was the thrust of my post, and I think that - apparent differences aside - you and I actually agree.

buster said...

@ Scott M.

I mentioned child marriage and bestiality only because the issue I was addressing is whether gaywrites can argue that the restriction to heterosexuals should be abolished without committing himself to the proposition that the other three restrictions - number, age, and species - should also be abolished. Polygamy stands for number, cbild marriage for age, and bestiality for species.

I placed child marriage and bestiality in parentheses after polygamy because I understood that you are concerned only with number. The parenthetical was meant to signify that my argument applies to age and species as well. I certainly wasn't suggesting that polygamy is morally equivalent to having sex with children or animals. In fact, in my view of the matter, it's far easier to justify polygamy than same sex marriage, although I'm opposed to both.

As for equality, there's a distinction between the factual question whether two persons or classes of persons are being treated equally, and the moral, legal, or political question whether unequal treatment is justified. The controversies surrounding gay marriage and polygamy are moral, legal, and political. No one denies that people are being treated unequally. But proponents of gay marriage and polygamy claim their moral or legal right to equal treatment is being violated. Opponents claim that no such right exists because the unequal treatment is morally and legally justified.

Jim said...

Matt -

I do support gay marriage only restricted by not forcing the religious to conduct ceremonies which are against their beliefs: freedom of religion is a right to.

[Even if you think they're wrong, they have a right to be wrong.]

We, as a society, make all sorts of moral judgments about all sorts of things. Marriage is just another one of those things.

For example, getting a driver's license. It's not a right. It's a privilege.

We place lots of reasonable restrictions on being able to get one: you have to be able to see clearly, be of a certain age, have completed a certain amount of training, pass tests, etc.

If driving were a fundamental right, then there would be to issue one to everyone no matter what. But it isn't, so we have the right to place restrictions on who and who cannot exercise that privilege.

So it is with marriage. If you acknowledge that society has the right to restrict marriage from pedophiles, polygamists, etc., then you are tacitly admitting that marriage is not a right. You are admitting that it is a privilege granted by society. And in a democracy, that means that a majority of voters (acting through their representatives) is entitled to decide who and who doesn't get that privilege.

The slippery slope argument only comes about because gay marriage advocates have issued a phony claim to the "fundamental right" to gay marriage. If we're not talking about fundamental rights, then there is no such thing as a slippery slope. Society is entitled to expand (or contract) its definition of marriage so long as it is a privilege, but the second it is a "fundamental right" then society's ability to control it also disappears. Pedophiles, etc., can and must necessarily be allowed to exercise their "rights" alongside heterosexuals and gays.

The best way to look at this is as if this were a debate over the drinking age. Right now, the drinking age is 21, and everyone over 21 is entitled to drink - even to excess if they so desire. However, no one under the age of 21 is allowed to touch even a drop.

Gays are the 18 year olds in this example. They're pretty close to 21, but they don't meet the exact definition. They believe that they are just as responsible as a 21 year old, and many are far more responsible than 40 year olds.

On the other hand, these same 20-year olds recognize that 8,12 or 15 year olds (polygamists, bestialists, pedophiles, etc.) have no business drinking. So they don't want to do away with the age limit entirely, they just want it lowered to 18 vs. 21.

Most people would agree that there really isn't that much different between a 18-year old and a 21-year old for all intents and purposes, but they also recognize that there must be a limit somewhere.

In such an argument, it is incumbent upon the 18-year old to show to those who support the current regime that they are both far more responsible than those who are younger and at least as capable of dealing with alcohol as those who are older. It is not the obligation of others to grant a 18 year old the right to drink simply because they want it.

I believe the drinking age should be 18 personally, but that doesn't mean that an 18 year old has a "fundamental right" to drink. It means that he and I need to work together to convince everyone else that 18 is a much better place to draw the line than 21.

buster said...

Jim said:

"If it is a 'right,' than it applies equally to everybody."

True, but this doesn't mean that if gays have a right to marry then polygamists also do. The existence of a right to marry a person of the same sex doesn't entail the existence of a right to marry more than one person.

Jim said...

buster -

Go back to my drinking age analogy.

You're absolutely right that allowing an 18-year old to drink doesn't require you to allow an 8-year old to drink. There are probably very sound reasons why an 18-year old should be allowed to drink while we make sure the alcohol is kept on the high shelf whenever the 8-year old is around.

However.

Your position requires you to admit that there is no inherent "right" to marry: that it is a privilege which society grants to selected members.

To believe it is a "fundamental right" necessarily requires that everyone else who believes they have a "fundamental right" to marriage has an equally valid claim.

After all, gays only want to change gender, but keep everything else the same. So no harm. But polygamists only want to change number, but keep everything else the same. So no harm there. And bestialists only want to change species. So no harm there either. And pedophiles only want to change the age. So what's the big deal?

You can't, for the sake of convenience, say that gays have a right because gender is the only possible moving part which can be changed. For every argument that it is, there is a counter-argument that one or the other variables are equally valid while gender is the one thing that should remain immutable.

Given the obviousness of the equivalance, then either all are equally valid propositions or none are.

Unless, of course, you're passing a personal moral judgment on the desirability - or lack thereof - on the consequences of allowing that particular variable to change.

Which brings us full circle to it not being a fundamental right at all, but rather a societal privilege which allows us to pick and choose which relationships to acknowledge and which to punish.

class-factotum said...

the state will accept your $115 fee for... almost nothing.

But do they make you come back in 8 days to pick up the license (or charge you $10 to mail it), then return yet again with your $20 for the first copy of the certificate and $3 for each copy thereafter?

traditionalguy said...

It sounds like a useful fund raiser similar to red light cameras. Registration with an actual Government certificate must warm the hearts of the happy couples everywhere. Problem is there is no divorce available. So serial domestic partner registration may create an action for damages for alienation of registration? Thanks a lot guys. With laws like this there may be a reason for Wisconsin law schools to waive bar exams for learning laws like this one since no one would believe it from outside the State.

buster said...

@ Jim:

There are two questions here: (1) whether there is a fundamental right to marry, and (2) if so, whether it extends to same sex marriage and polygamy. These questions may be too complicated to deal with in a blog thread, and too complicated for me in any context. But here goes.

"Fundamental right" is most often used as a term of art in constitutional law to refer to a small set of rights that are so important that the government's authority to regulate or restrict them is severely limited. Two features of fundamental rights are pertinent here:

(1)No right is entirely immune from regulation or restriction. Freedom of speech is as fundamental as it gets, but the law permits many restrictions on speech.

(2)Every person, or at least every competent adult, enjoys every fundamental right. But his enjoyment is subject to whatever permissible restrictions the government has imposed. We all have freedom of speech, but we can't yell "fire" in a crowded theater. The government can restrict the speech of high school students to a greater extent than that of adults.

Turning to marriage, I don't know whether the Supreme Court has explicitly held that there is a fundamental right to marry, but I'm pretty sure that if the question has been or ever is squarely presented, the Court held or will hold that there is.

But the Court has explicitly held (in Lawrence v. Texas) that it is an open question whether states may restrict marriage to heterosexual couples. So as a *legal* matter, the answers to the questions above are (1) there probably is a fundamental right to marry, and (2) a least for the moment that right does not extend to same sex marriage. I think the Court held long ago there is no right to polygamous marriage.

Assuming I correctly stated the law, then the right to marry is enjoyed by everyone, including gays and polygamists. It's true gays can't enter into same sex marriages, and Mormons and such into polygamous ones, but they are free like everyone else to enter into marriage with one adult of the opposite sex. I know it drives gays and polygamists crazy to hear this, but as a legal matter it is perfectly straightforward.

I suspect that you are using "fundamental right" in a different, non-technical sense to refer to a set of moral rights that are so important that the government is morally unjustified in restricting them at all. In that sense the right to marry is not fundamental, because no society (as far as I am aware) has ever treated the institution of marriage that way. To the contrary, marriage has always been highly regulated as befits an institution that is crucial to the survival and flourishing of both individuals and society.

Jim said...

buster -

As with gaywrites, I think you are and I are essentially in agreement. Mainly we differ slightly on terminology, but the basic points we are expressing are the same.