Gay marriage

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aknowledgeableperson
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Re: Gay marriage

Postby aknowledgeableperson » Sat Jul 01, 2017 12:35 am

"There isn't a good case that polygamists should be prosecuted/imprisoned other than traditional cultural reasons and the culture is changing more and more towards not convicting people if causing no harm."

There have been some recent TV series about the topic of polygamy but I think the bad news generated by Warren Jeffs and other examples doesn't bode well for short-term acceptance of the practice.

Did find one way polygamy is currently practiced, somewhat legally. From Wiki:
"Some polygamous families use a system of multiple divorce and legal marriage as a loophole in order to avoid committing a criminal act. In such cases the husband marries the first wife, she takes his last name, he divorces her and then marries the next wife, who takes his name. This is repeated until he has married and divorced all his wives, except possibly the last one. This way the wives feel justified in calling themselves Mrs [husband's last name] and, while legally they are divorced from the husband, they still act as if married to him and expect those around them to acknowledge and respect this."

phuqueue
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Re: Gay marriage

Postby phuqueue » Sat Jul 01, 2017 8:56 am

mean wrote:
phuqueue wrote:No reason to oppose it is only part of the equation though. If there's no real demand for it, there certainly isn't going to be any movement among state legislatures to rewrite the laws. Could try to do it through a court challenge (to get standing I suppose you'd have to try to get a marriage license while you're already married to somebody else), but as much as we like to tell ourselves (and especially as much as judges like to tell themselves) that courts are just neutral arbiters of the law, how many of us honestly believe that Obergefell would have been decided the same way if it has come to the court 15 years ago? Would they have even granted cert?


I guess that's fair enough, but I think "not in our lifetimes" is a bit much. Demand for these things is hard to predict, and with the prevalence of polyamory it's not that much of a stretch for people to start wishing for legal protections for themselves and whatever arrangements they enter into. If I was into that kind of thing and I knocked up someone's "hot wife" it seems like it would be a lot less messy to just be married into the family than to have a custody battle.

But at the end of the day "I don't see why not" was meant more as a statement of non-opposition than a literal statement that I believed there were no sociological or psychological barriers to actual legislation being passed.

Yeah I mean I definitely agree "not in our lifetimes" is an exaggeration (or at least, is something that's impossible to predict), but I also agree with akp's general sentiment that this is, at least, a long way from becoming a reality.

earthling wrote:
phuqueue wrote:I mean before you get into the weeds about what the problems are and how to solve them you have to identify some constituency that actually wants it. Is there really a big movement for polygamy in this country?


There isn't the demand or movement but the way things work now a single case can become a hot button issue.

Is plausible within years (or 10) that someone pushes the polygamy button with a multi-partner relationship and challenges the system. They are prosecuted, maybe imprisoned and Netflix or whatever medium is hot in the future produces a flashy 6 episode VR mini-series on the case. It causes small bouts of public outrage that polygamists are prosecuted for not harming anyone. A few politicians get involved on various sides, someone else challenges, headlines, gets convicted and a good chunk of the public doesn't see it as fair, a court takes the case and challenges the current marriage process, headlines, ACLU and other 'liberal' orgs get involved, some DEMs propose privatizing marriage (perhaps in power), headlines, it eventually reaches Supreme Court (if even needed) and the process to privatizing marriage begins.

Could be any variation of the above but point being is it only takes a few challenging as a 'martyr' to their cause, creating change. Modern mechanisms make it pretty easy to create smallish but loud public outrage for otherwise ignored cases and the snowball effect of media/politics interrelationship takes it from there.

There isn't a good case that polygamists should be prosecuted/imprisoned other than traditional cultural reasons and the culture is changing more and more towards not convicting people if causing no harm. So yeah, 10 years is plausible, would be surprising if it takes 20. But also might take a movement too, some hippie communes tried in the 60s and such things often cycle about every 50 years or less. Some may try it finding some tax loop hole that benefits polygamy.

Suppose we'll have to agree to disagree on the "plausibility" of that scenario. I think an analogy to homosexuality is of somewhat limited utility but it's worth remembering that thirty years before the Supreme Court legalized gay marriage we had the president of the United States literally cracking jokes about AIDS ravaging the community. When people have a knee jerk negative reaction to someone else's "lifestyle choices" (a phrase that is much more appropriately applied to polygamy than to homosexuality, incidentally), most don't just suddenly change their minds because they heard a story about how oppressed that group is. If you date the modern gay rights movement to the Stonewall Riot, the gay community endured 45 years of, at best, indifference, and at worst, outright hostility from mainstream society before gay marriage was finally legalized. People don't just suddenly change their deeply held beliefs as easily as you think they do. If they did we wouldn't on this very board have threads on politics, health care, religion, and gay marriage collectively running to ~200 pages.

aknowledgeableperson wrote:I was using the following definition for my wording. Evidently wrong choice of source.
"For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression"

Not really sure where you got that from but it's, at best, misleading and incomplete. Stare decisis refers to the much broader principle that courts will not disturb law that has already been decided without compelling justification. Fed/state supreme courts are not the only courts that can establish precedent -- every published decision of any court establishes precedent. Higher courts are empowered to overturn precedent established in lower courts, and no court is bound by the precedent established in another jurisdiction, but to the extent that your definition there suggests that the rulings of a trial or appeals court are limited only to the specific case that was ruled on, it's wrong. Not only that, but on matters of first impression (which your definition could be read to imply go straight to supreme courts -- this is also generally not true), courts generally consider precedent that was established in other jurisdictions, even though this isn't technically binding on them. In the absence of any such precedent, they'll also attempt to analogize to existing law on some other subject if possible. It's just not the case that judges go around inventing new law from whole cloth or that this could give rise to competing precedents within the same jurisdiction.

"Court decisions are laws."
I understand that. But most people, I believe, would rather have legislatures make the laws instead of the courts.

That would certainly be more democratic, but it's not clear to me that "most people" are especially troubled by, for instance, the Supreme Court making or erasing law, except to the extent that specific decisions run counter to their policy preferences. But I mean the fact of the matter is that a court isn't gonna go one by one through every list of every open question and resolve them all in one case when legalizing polygamy. You don't really have to worry about one judge deciding everything by judicial fiat. The likely scenario is that John is married to Jane, also wants to marry Joan, either sues to obtain the second marriage license or successfully obtains it and then is prosecuted for bigamy, and the court finds in favor of John. The holding would most likely be limited to "bigamy is legal now." Then some legislatures would set to work making law on the different issues you've raised (and however many others you haven't), and maybe others wouldn't, and later cases would resolve each of those points individually as they came before courts. By some point further in the future legislatures in every state would have eventually passed legislation though, which would either codify existing court rulings or supersede them. This is exactly how quite a lot of our law was developed, especially the basic fields like contract law, criminal law, etc (the ones you have to cover in your first year of law school). At some point legislatures decided to codify and/or modify what was already law established by centuries of court cases.

aknowledgeableperson
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Re: Gay marriage

Postby aknowledgeableperson » Sat Jul 01, 2017 11:46 am

I didn't mean to imply that all of the answers had to be decided all at once. My list of questions had to do more with the statement to make marriage a private contract. Much like the issue of abortion, and now the Texas Supreme Court saying spousal benefits doesn't apply to gay marriage (the US Supreme only legalized gay marriage, said nothing about extending to spousal benefits) many issues are never decided all at once. And to a certain extent never completely decided since new nuances keep popping up.

earthling
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Re: Gay marriage

Postby earthling » Wed Aug 02, 2017 2:55 pm

So on the polygamy topic, this poll recently came out. In US, 'moral acceptance' has gone from 7% in 2003 to 17% recently. Would think gains of acceptance isn't so much people 'for polygamy' but rather not criminalizing someone for doing it. There isn't really any fundamental justification to criminalize it.

Would imagine the poll would be much different if asked 'should polygamy practice be criminalized'.

Image

http://www.gallup.com/opinion/polling-m ... aign=tiles


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