Asymmetrical Information

"So, I wonder if we shouldn't just stop favoring heterosexual marriage with special spouse status."

I think the crucial point here is whether you think that heterosexual marriage is just a "lifestyle choice",with no more or less impact on society than, say, whether you drink coffee or tea in the morning; or whether there is a vital social interest in promoting a certain form of family structure...

Sorry to disappoint you, but I'm not outraged. I think many of us are trying to reconcile our own ideas of how society "should be" (as imagined by us) as opposed to how it "must be" (as legislated by the government or the courts). I know I am.

I'm not sure I understand why the state has ANY say in marriage. Why does the state have a right to say I can (or can't) marry any particular individual?

MHD wrote:

"So, I wonder if we shouldn't just stop favoring heterosexual marriage with special spouse status. Second choice: anyone can designate
one individual to receive government's spouse subsidy/tax break."

Aside -- didn't Vermont, or some other NE state just enact a civil, but non-marital, equivalent status recently?

Main point: tax breaks and subsidies are not the only issue, or necessarily even the most important.

Some others: inheritance rights, especially in intestate situations; rights to make medical decisions for, or in some cases even visit, hospitalized partners; rights to custody of deceased partner's children.

These are only a few. In many cases they are much more consequential to peoples' lives than "tax breaks", and denial of those rights are often terribly destructive to people's lives other than the partners'.

At the risk of being accused of ad hominem attacks on some proponents of denying rights to same-sex partners, the argument that "we can't condone your immorality by allowing you to be visited by a loved one when you are dying", or "we can't condone your parent's morality by letting his/her partner who has raised you all your life continue to do so now that your biological parent has died", don't sound to me like a ingenuous invocations of morality. They sound like pure meanness with a convenient rationalization.

I'm more of a believer in "freedom from" than "rights to". My beliefs, as many of you will have guessed, run towards the 'fist/face' definition of rights.

From the Court's opinion (by Justice Douglas) in the Griswold case:
"This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.... The Fourth and Fifth Amendments were described in Boyd v. United States [1886]...as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.'.... The present case, then, concerns a relationship lying within the zone of privacy..."

'Freedom from' versus 'right to' greatly depends on the phrasing. The "right to privacy" or the "right to be left alone" could just as easily be called freedom from unwarranted government interference within certain areas (in Griswold, the marriage bed). I think Griswold gets a lot of flack just because it was the basis for Roe. In of itself, I don't think it's a bad decision.

Re:
>>On the other hand, I don't think the constitution grants that right. I'm not sure the constitution has a "right to privacy".

Jimmy Madison was ready for the likes of you: "Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Jimmy Madison did all that he could to keep people from thinking that the Constitution gave us rights. We *have* rights. The Constitution *protects* rights--it doesn't create them. If you want to argue that people don't have a right to privacy, fine. But you *cannot*--at least, not if you have any respect for Jimmy Madison and Amendment 9--use the fact that the Constitution does not mention such a right as an argument that people do not have it.

Brad DeLong, feeling exceptionally libertarian and originalist today...

Nicely done. Too much of the discussion in this area does tend to confuse "what constitutional jurisprudence says" and "what I'd like it to say." I find that most of the supporters of an expansive view of a constitutional right to privacy are not able to disengage their view that they want "government out of the bedroom" from what the Constitution says.

A case in point is the Lawrence decision. 17 years ago, the Constitution didn't have a right to privacy with respect to sexual acts. It did have a right to privacy with respect to decisions about reproduction, which is quite a different thing. Now it has the former kind of privacy interest, and next year it may have none at all, or something else altogether, depending on what 5 out of 9 lifetime tenured civil servants decide.

The problem is that many people are not convinced that it isn't all a kind of ad hoc sleight of hand designed to please one part of society by stigmatizing another part as bigots (at least by European standards.) That's not what law should be. Law should be persuasive by assuring the parties that neutral rules are being applied neutrally. If enough people become convinced that law is a result oriented project, then law loses its legitimacy.

As for the part about "what I'd like the law to say," there is a role for that too. We call it democracy and it seemed to be working with respect to sodomy laws, as evidenced by the very trend in favor of repealing such laws which the Supreme Court relied on its decision.

Of course, Professor DeLong, if you're going to be originalist you have to concede that most of the modern definition of the "right to privacy" was not accepted or intended by the Ninth Amendment, and had no basis in common law.

It is a dangerous thing when the Court tells us that a shift in public opinion means that our rights change, because shifts can be in multiple directions. Furthermore, the other danger of Lawrence is that by destroying the power of the democratic method and the federalist method, it leaves cultural conservatives with only one practical option to prevent gay marriage-- the Constitutional Amendment. And that is a dangerous escalation, but one that was practically forced upon them.

Jimbo - I don't know what it is Brad Delong is describing when he says the "likes of me", but I think the government has no say in the family unit I choose to keep, regardless of a 'government interest' (read: a group right).

Brad: Perhaps the word "grant" was poorly chosen. Still, I can believe I have a natural right to something but not find that right enumerated in the Constitution. I think you'd find that debate quite lively around, say, property rights. In your construction, the right to privacy resides entirely outside the constitution. Fine, we're in agreement. I think we ought to amend the constitution and include "freedom from government interference in essentially private decisions involving one's own person", similar to "J"'s suggestion. I would include early abortions and suicide in that....

fub- I didn't exclude the features you mention from "special spouse status", they are very much part of it.

Gary - The State's interest in marriage, in my opinion, only goes as far as the privileges they grant exclusively to people who are married. If they don't grant any, then they should indeed have no say at all.

Peter - thank you for this sentence: " If enough people become convinced that law is a result oriented project, then law loses its legitimacy."
Well said.

I think (most) conservatives and libertarians would be much happier if these rulings were based on the limitation of government power rather than the non-existent "right to privacy". We can accept the rulings, but we're not particularly happy with SCOTUS becoming what is essentially a legislative veto committee.

As I've said before, I believe the right to privacy is a post hoc justification to cover for the court allowing congress to write limited government out of existence using the interstate commerce clause. Once that principle was removed, the court recognized many things we took for granted were at risk (Ah, the law of unintended consequences). So they "found" the "right to privacy" to compensate.

Brad,

What about Amendment X:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

My layperson's reading tells me that, as a plain-language strict constructionist, that the Tenth Amendment permits states to make (abhorrent) laws, like the Texas sodomy statute.

You needn't say that I'm "right", but is this understood (by some) as a cogent reading?

Bob -

"You needn't say that I'm "right", but is this understood (by some) as a cogent reading?"

I think that it is, especially when you consider the fact that the Constitution was never intended to lay down every conceivable law for the land (even if where the Const. speaks, it does so as the "law of the land"). Instead, the Constitution was designed as a framework for governing the several states as one country while allowing those states to experiment as to the best form of governing our daily lives. The Bill of Rights guaranteed individual rights as against the government (some, such as the freedom of speech, only against the federal gov't; others, such as the right to bear arms, against all gov't intrusion), but left it up to the states to decide what, if any, other laws were necessary. The Framers, in particular James Madison, thought that the competition among the states would lead to the most desireable forms of gov't everywhere. Although this is not exactly how it worked out in the end, the idea that states could pass abhorent laws such as the TX sodomy laws was certainly contemplated when creating the Constitution and Bill of Rights, specifically the Xth Amend.

Mindles -

What exactly are these great "privileges" bestowed upon married heterosexuals? My wife and I seem to be missing out on them. As far as I can tell, we now pay more in taxes (despite earning the same as before we were married); have greater responsibility under the law (e.g. I couldn't refuse to offer medical care to my wife if she fell ill); and much less fiscal freedom (i.e. if I leave my wife for a "walkabout", a la Crocodile Dundee, I could lose every bit of my net worth while getting saddled with all marital debts). As I see it, married couples aren't getting any "privileges." Granted, taking care of my wife whn she's ill, etc., aren't exactly putting shackles on my wrists, but it's a far cry from a "privilege."

I'm not exactly sure why gays want to be married in the eyes of the law in the first place. If it's inheritance rights, make a will. If it's medical benefits, that's got nothing to do with the state, and a lot of insurance companies are offering such anyway. If they really want to pay the "marriage penalty" on the taxable income, they should feel free.

Personally, I didn't get married because of the great "privileges" the state bestows upon me. I did it because my wife and I wanted to make a commitment before God, our family and friends. That may be passe today, but as far as I know it is the same reason as its always been since the concept of marriage began. If you're gay and want to get married for these reasons, the your beef's not with the secular law.

Otherwise, I'm not exactly sure what all the fuss is about except that it seems suspiciously like some homosexuals wanting to legally force others who don't agree with their lifestyle to accept it. What's the next step, non-recognition by the state of marriages performed by religious orders that don't accept the homosexual lifestyle?

" The Framers, in particular James Madison, thought that the competition among the states would lead to the most desireable forms of gov't everywhere. Although this is not exactly how it worked out in the end, the idea that states could pass abhorent laws such as the TX sodomy laws was certainly contemplated when creating the Constitution and Bill of Rights, specifically the Xth Amend."

Since the states ALREADY had anti-sodomy laws (some punishing it with death, iirc) at the time the Constitution was ratified, the above strikes me as unsuppported.

I'm certainly no ConLaw expert, but my gut reaction is that the Ninth Amendment is given such little regard in these matters.

Why would the framers have crafted such an amendment but not for the idea that one gains nothing by trading in a single federal tyranny in exchange for many (now 50) tyrannies?

May states pass abhorent laws? I guess they can (hell, what am I talking about, they already do)...but what if those laws cut to the very essence of freedom? The freedom of choice amoung all the activities of life that do not encroach upon other's freedoms. To be LEFT ALONE.

Reductio ad absurdum: Would one be considered "free" if he lived in a state whose laws, under penalty of fine or imprisonment:

1.) Dictated what time everybody must go to bed.
2.) Dictated what every person must eat, and when.
3.) Dictated what style of clothes to wear.
4.) Banned the playing of baseball.
5.) Regulate hair length for all citizens.
6.) Outlawed marital relations in excess of once per week per couple. No "carryovers" for unused allotments.
7.) Required the interior of all houses to be painted avocado green.
8.) Etc, etc.

I mean, nowhere in the Constitution do I find any specific discussion of the above enumerated activities. Maybe some of the other sections of the Bill of Rights might proscribe such state laws, but it certainly wouldn't be a slam dunk. So, this is all fair game for the states?

Huh??

I gotta agree with Mr. DeLong. We are born with rights as human beings...they are not gifts from the government (federal or state). If you don't think a human being's inhenrent right to be free includes a right to privacy, then good for you (although I'll never understand the logic of such a belief).

If you don't want the government tapping your phone, or reading your mail, or scanning your e-mail, why would you want the government to have any right to intrude into your bedroom? The notion that a constitutional right has to be explicitly stated is contrary to reality.

And to maintain that there is no basis for privacy in pre-constitutional law ignores those amendments in the Bill of Rights that explicitly restrict the government from intruding in certain private areas. Freedom of speech, freedom of religion, are both areas of privacy. The government has no business controlling what you say and what you believe.

You cannot pick and choose the government's intrusions into your life. You either oppose them on principle or accept them on principle. Otherwise you fall in to the trap of having the government decide who's morality they're going to enforce, with force being the operative word.

As for marriage: the sole reason for governmental registration of marriage is to ensure property rights for the two parties involved. Properly crafted laws would ensure that gay couples or polygamous groupings would have whatever property rights are involved equally treated with traditional marriages. The same hold true for any child custody issues.

Bigamy is a form of fraud and will probably remain criminal. Adultry, if criminalized, could be argued as a form of fraud as well. Consensual adult incest is private and not subject to governmental oversight. Most of the other objections raised involve non-consenting parties, children or animals, and would remain criminal.

Most of that opinion post seems to be pretty common sentiment. I fail to see the outrage at all.

I've never even met someone who opposed gay marriages (and not marriages altogether) or objected to removing sodomy laws.

That post seemed fairly pointless; like writing an opinion on why water is wet.

Jane,

I agree for the most part with you (and apparently, so does Justice Thomas).

Gary Utter - Marriage is a social construct, created by law. Without law, you have "living together," which anyone can do anytime. IMHO, marriage serves primarily the social purpose of providing for the procreation and socialization of children; any benefits it provides in terms of individual happiness are strictly incidental. The fact that not every marriage produces children doesn't change this analysis; it's simply too intrusive for society to inquire into every individual's ability and intent to have children, so we just assume that every marriage will or at least could produce children. I don't see where the Constitution enters into this at all; society creates the institution of marriage for its purposes and can limit or expand it as it sees fit.

Bigamy is a form of fraud? In what way?

I can see how it could be, if not all parties are aware of the situation, but I don't see how it's intrinsically so.

Marriage is a social construct, created by law.

That turns out not to be the case. Marriage is a RELIGIOUS constuct, predating law. State licensing of marriage is a relatively recent invention.

The question is, on what basis does the state establish a RIGHT for THE STATE to regulate a religious relationship?

I have no problem with the state offering a marriage license to those who do not wish to be religious, and if they do that, I have no problem with them setting thier own ground rules (religion does that too) for those licenses. But to say that no marriage is LEGAL except the one the state provides is, IMO, beyond the power the state should have.

If the state can regulate marriage, it can regulate baptism, it can regulate confirmation, it can regulate the bar mitzvah...

Jimmy Madison did all that he could to keep people from thinking that the Constitution gave us rights.

Quite so. But of those "unenumerated" rights, none can rightly be called "Constitutional". Either that, or my Consitutional rights are whatever I say they are, absent a specific prohibition of that right in the Constitution. There IS NO "Constitutional right to privacy" unless/until it is granted by amendment.

The State's interest in marriage, in my opinion, only goes as far as the privileges they grant exclusively to people who are married.

And what priviledges are those?

Mindles -

I'm gonna go for the obvious point and ask your opinion of polygamy, group marriages, brother-sister pairings, marriages between a man and his sheep, etc...

Anonyomous -

You're commiting the Kael fallacy. You need to spend some time in flyover country...

"Second choice: anyone can designate one individual to receive government's spouse subsidy/tax break."

This is how it's going to work out, I think. We'll have law or ammendment saying you can designate a spouse for legal purposes, without calling it marriage. This will become "marriage" in everyday talk, but will appease the religious purists by not enacting a "right" for homosexuals to marry.

It's perfect. It satisfies no one.

I'm more of a believer in "freedom from" than "rights to".

Abortion and birth-control rights are "freedoms from". They're freedom from the tyranny of those in power; the majority's right to swing its collective fist ends where your face (or your reproductive organs, to stretch that metaphor a bit) begins.

Now if it was established that the government had an obligation to provide abortions and birth control to whomever wanted them, then they'd be "rights to".

Jimbo

"I'm gonna go for the obvious point and ask your opinion of polygamy, group marriages, brother-sister pairings, marriages between a man and his sheep, etc..."

If this is an attempt to suggest a "slippery slope" argument regarding "gay marriage," would just like to point out that any "slippery slope" began with straight marriage.

I'll pose a question here that I've actually never gotten much of an answer to. What is a proposed "rational basis" for the state not recognizing relationships of same-sex couples (so-called "gay marriage") on the same basis that it recognizes relationships of opposite-sex couples ("straight marriage"). The "rational basis" is, of course, a reference to the 14th amendment's "equal protection" clause.

I'll point out in advance that neither procreation nor child rearing are rational bases. The fact is that no state requires that opposite sex couples be able to or even intend to procreate or raise children in order to marry. My widowed mother in law--who is incapable of bearing children--would be able to marry in a minute. On the other hand, there are more than a few same-sex couples who are rearing children, yet they are forbidden state recognition of their relationships.

Jimbo

"I'm gonna go for the obvious point and ask your opinion of polygamy, group marriages, brother-sister pairings, marriages between a man and his sheep, etc..."

If this is an attempt to suggest a "slippery slope" argument regarding "gay marriage," would just like to point out that any "slippery slope" began with straight marriage.

I'll pose a question here that I've actually never gotten much of an answer to. What is a proposed "rational basis" for the state not recognizing relationships of same-sex couples (so-called "gay marriage") on the same basis that it recognizes relationships of opposite-sex couples ("straight marriage"). The "rational basis" is, of course, a reference to the 14th amendment's "equal protection" clause.

I'll point out in advance that neither procreation nor child rearing are rational bases. The fact is that no state requires that opposite sex couples be able to or even intend to procreate or raise children in order to marry. My widowed mother in law--who is incapable of bearing children--would be able to marry in a minute. On the other hand, there are more than a few same-sex couples who are rearing children, yet they are forbidden state recognition of their relationships.

A good friend once described the difference between Germans and Americans this way: Germans assume an act is prohibited unless specific permission is given; Americans will assume an act is permitted unless it is specifically prohibited.

The Constitution confers rights, i.e. The Bill of Rights, but in the main places restrictions on the government - not the individual.

Implicit in this structure is the idea that free people are free to act as they see fit so long as they do not infringe the rights of others. In other words, they may pursue life, liberty, and happiness however they see fit so long as they don't impinge that pursuit by others.

Why can't it be that simple?

Dan,

Sorry, but while abortion rights may be "freedom from" from the mother's perspective, they aren't from that of the fetus. The opposition to abortion rises from the idea that is a taking of a human life, not just something distasteful.

Are laws against murder an expression of "tyranny of those in power"? You do not have to agree that abortion is murder (I don't), but you should at least acknowledge where the anti-abortion case comes from.

I'm with you on birth control, though.

Gary Utter-
"Jimmy Madison did all that he could to keep people from thinking that the Constitution gave us rights.

Quite so. But of those "unenumerated" rights, none can rightly be called "Constitutional". Either that, or my Consitutional rights are whatever I say they are, absent a specific prohibition of that right in the Constitution. There IS NO "Constitutional right to privacy" unless/until it is granted by amendment."

The problem with this argument is that it reads the Ninth Admendment to be simply a nice little statement of principles, with no legal meaning whatsoever. The strict constructionist view of the 9th renders it to be useless waste of paper, precisely because the purpose of the 9th was to forbid what is now called "strict constructionism" in the interpretation of Constitutionally guaranteed rights.

Bob Dobalina-
"What about Amendment X:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

My layperson's reading tells me that, as a plain-language strict constructionist, that the Tenth Amendment permits states to make (abhorrent) laws, like the Texas sodomy statute.

You needn't say that I'm "right", but is this understood (by some) as a cogent reading?"

By some, yes, but this is wrong. Your supposedly "strict constructionist" reading ignors the words "...or to the people." When taken together with the 9th, this would indicate that the Constitution recognises powers/rights of the people that even the states can not infringe. Conservatives are right that the 10th Ammendment is a good arguement for strict constructionism with regard to powers of the Federal Government. But the 9th Admendment specifically REQUIRES that the rights of the people be interpreted MUCH more broadly, and the "...or the people," phrase in the 10th is consistent with not rendering the 9th to be a meaningless waste of paper.

Gary Utter: "Marriage is a RELIGIOUS constuct, predating law. State licensing of marriage is a relatively recent invention."

Not quite right, either. At least in medieval Europe, marriage was first a contract between two people (or possibly between two sets of parents...) THEN the Catholic Church decided to make a religious rite out of it. No doubt this was from good motives: if the man decided to break the contract when the woman started looking a little baggy and worn, the secular authorities of that era were unlikely to do much about it, but the Church could threaten him with hellfire and excommunication for breaking a vow before God. It also gave the Church an opening to forbid cousins marrying and to block arranged marriages that were too grossly disadvantageous for one or both of the spouses. (Or it enabled the Pope to collect large bribes for allowing royalty to ignore these rules.) And finally, when the Catholic Church was no longer the only church around, the state began to step in...

The problem is, when a third party licenses or solemnizes a marriage, it is no longer a contract between the two people most involved. In medieval Catholic marriages, it was a contract recognized and somewhat constrained by the church, but the Church neither changed it's own rules noticeably within the span of the longest marriages nor arbitrarily re-wrote the rest of the contract. Nowadays, you don't set the terms for your own state-licensed marriage, the state does - and it can re-write the contract at any time.

So my solution to questions about gay marriage, etc., is that the state shouldn't be defining marriage in the first place. If you want to get married in church and accept their standard contract, that's fine. If you want to download a marriage contract form from the internet, make an few changes, and get it notarized, fine. If you want to hire teams of lawyers to haggle over contract terms (not unlike medieval royal marriages), and you can come out of it still wanting to get married, that's great!

And whether the two men across the street think they're married to each other or not is none of your business.

At least in medieval Europe, marriage was first a contract between two people (or possibly between two sets of parents...) THEN the Catholic Church decided to make a religious rite out of it.

I refer you to the Bible, which discusses marriage ceremonies in "biblical times". Marriage was NOT invented as a contract between two people in medieval Europe, nor was it adopted from that by the Catholic Church.

Unless you are saying that the Catholic Church invented it and then made sure all copies of the Bible supported thier version of reality. I'm pretty sure that's not your point.

[blockquote]Bob Dobalina-
"What about Amendment X:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

My layperson's reading tells me that, as a plain-language strict constructionist, that the Tenth Amendment permits states to make (abhorrent) laws, like the Texas sodomy statute.

You needn't say that I'm "right", but is this understood (by some) as a cogent reading?"

By some, yes, but this is wrong. Your supposedly "strict constructionist" reading ignors the words "...or to the people." When taken together with the 9th, this would indicate that the Constitution recognises powers/rights of the people that even the states can not infringe. Conservatives are right that the 10th Ammendment is a good arguement for strict constructionism with regard to powers of the Federal Government. But the 9th Admendment specifically REQUIRES that the rights of the people be interpreted MUCH more broadly, and the "...or the people," phrase in the 10th is consistent with not rendering the 9th to be a meaningless waste of paper.
Posted by: Decnavda on July 1, 2003 08:11 PM[/blockquote]

Even easier is the 14th Amendment, usually ignored by strict constructionalists. Immediately prior to the "Equal Protection Clause", it states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...

Strict Constructionalism as practiced in the mid to late 20th-early 21st century is only possible by selective quoting. There are too many contradictions and vagaries to come to a simple reading. It's much like the Bible.

Gary "I refer you to the Bible, which discusses marriage ceremonies in "biblical times". Marriage was NOT invented as a contract between two people in medieval Europe, nor was it adopted from that by the Catholic Church."

Your knowledge of history seems to be a bit deficient. In point of fact, for the Romans, marriage was what now would be referred to as "common law" marriage.

Then again, ancient Rome isn't normally regarded as "medieval". So maybe you're both a bit out of touch.

Big deal. So am I. Still, Gary's point was merely that the Catholic church didn't adopt the secular marriage of medieval Europe as a religious ceremony; marriage was around as a religious rite long before the Celts wreaked their inconsistent havoc across what was to be, many centuries later, medieval Europe.

Rand, non-criminal bigamy is polygamy. Right now the law gives spouses certain property rights in their marriage. By marrying a second (or more) time, an individual is defrauding an unknowing spouse.

My grandma was pretty pissed when she found out that she was wife number three, and one of the first two was still alive. And that wife was equally annoyed upon finding out about wife number one. Grandpa was a marrying fool.

Isn't due process normally considered the legislative process, so as long as you have a compliant legislative body you can deprive a class of people of liberty? I am no lawyer (obviously) but I don't think the constitution speaks to the issues of privacy etc so really should not be used as a basis for making rights. One of the biggest problems with Roe Vs Wade is that the court usurped the legislative process, a process that moves society along at its own pace, instead of reaching a consensus on issues and moving forward. Judges are not god's able to determine what is the right thing for society.

What is ignored is that the silly laws that are rarely enforced (Sodomy for example) and are going the way of the Dodo bird thru the legislative process. Gay marriage is now going the same way as states begin to feel thier way through same sex unions. Why is this being abandoned to collective wisdom of judges. I am not cognizant of all the facts but my recollection of the Birth Control laws was that the case was being dropped becuase the state decided that they were unenforceable but the ACLU pressed on because they had the "test case". Did the people in the Texas case actually get prosecuted and sent to jail or did they actually press forward on thier own? I think we shold be careful creating rulings and rights from the shadows of the constitution, once you start, where do you stop and then you go from soc sec, to medicare to an Rx benefit. (oops wrong opic)

raj.

>>"Your knowledge of history seems to be a bit deficient. In point of fact, for the Romans, marriage was what now would be referred to as "common law" marriage. "

Actually, you're making my point. The state had no interest in marriage, but accepted it "de facto". Marriage was a religious rite (or no rite at all, for the irreligious).

It was not EVER something the church copied from the state.

I've asked this question a number of times and never gotten a really coherent response from the conservative posters on this blog: what are the limits of state legislative power?

can a state (should the state be able to?): sterilize you; prevent you from getting divorced; prevent you from marrying the person of your choice; prevent you from owning property; prevent you from inheriting property, etc.? [these are all real examples!]

to a justice sitting in all his power and majesty on the bench of the Supreme Court, these laws may appear only silly. but to the people who face FORCED STERILIZATION, "silly" is probably not the word they would choose.

None of these laws explicitly fall afoul of any of the Bill of Rights, unless you start debating the meaning of the terms "liberty" and "due process". So, to the conservatives, are these laws unconstitutional? Should the S.Ct. be making such anti-majoritarian rulings?

I look forward to your thoughts.

Once you start using the constitution to entitle either individuals or groups to things it seems whatever you are promising might have to be obtained at the expense of another's property or liberty.

That path started in 1789. You have noticed that the Constitution entitles individuals to an attorney, to a speedy and public criminal trial, to jury trials for matters at common law, and to the right to elect Senators directly, among other things?

>>" what are the limits of state legislative power?"

The next election. The legislature reflects the will of the people, or it is out of work, and thus, out of power.

All the things you mention have been legal in this country at one time or another, along with slavery, and plenty of other abhorrent things. So what?

Do you have an alternative to suggest?

I said: In point of fact, for the Romans, marriage was what now would be referred to as "common law" marriage. "

Gary Utter said: Actually, you're making my point. The state had no interest in marriage, but accepted it "de facto". Marriage was a religious rite (or no rite at all, for the irreligious).

The idea that the (Roman) state had no interest in marriage is incorrect. The fact is that the state had substantial interest in marriage. Certainly more so than any establishment of religion. Marriage determined rights to inheritance, both intra-generationally and inter-generationally. Marriage also determined rights to support--financially and otherwise. (Sound familiar? Those are the primary interests that modern day states have in marriage.) The problem with common-law marriage is that one "spouse" had to prove the existence of the marriage in order to get support or to inherit from the other spouse, which is why most if not all states have abolished common-law marriages.

In point of fact, the catholic church didn't get involved in marriage until after the 10th century CE, and then as a result of a battle between it and secular authorities in western Europe.

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