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  •  Because the state has banned other forms of (1+ / 0-)
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    marriage based on the nature of the relationship. You can't marry your sibling, for example, even though the marriage may be otherwise legal. A man can't enter into a bigamous marriage with two women, not because he could not marry either one of the women, but because the state has decided that the nature of the marriage relationship is two adults.

    The question is whether there is a rational basis for these types of restrictions. The threat of inbreeding is a pretty obvious rational basis for not allowing a brother and sister to marry. The ban on polygamy is a bit more wobly, IMO, as it was mostly enacted to enforce a Christian conception of marriage on Native Americans and to push Mormons out of states. And I have a feeling that within our lifetime, polygamy bans could be struck down.

    •  Indeed. (0+ / 0-)
      Because the state has banned other forms of marriage based on the nature of the relationship.
      Sure. I'm not sure whether that cuts in favor of Koppelman's argument or against it.
    •  MRob - I agree (0+ / 0-)

      The arguments favoring same sex marriage do become wobbly regarding polygamy. I have not read the transcript, or listened to all the oral argument, but was surprised this issue was not raised by any of the Justices.

      "let's talk about that"

      by VClib on Wed Mar 27, 2013 at 09:53:39 AM PDT

      [ Parent ]

      •  It was raised. And found uninteresting. (1+ / 0-)
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        JUSTICE SOTOMAYOR: Mr. Olson, the bottom
        line that you're being asked -- and -- and it is one
        that I'm interested in the answer: If you say that
        marriage is a fundamental right, what State restrictions
        could ever exist? Meaning, what State restrictions with
        respect to the number of people, with respect to -- that
        could get married -- the incest laws, the mother and
        child, assuming that they are the age -- I can -- I can
        accept that the State has probably an overbearing
        interest on -- on protecting a child until they're of
        age to marry, but what's left?

         MR. OLSON: Well, you've said -- you've said
        in the cases decided by this Court that the polygamy
        issue, multiple marriages raises questions about
        exploitation, abuse, patriarchy, issues with respect to
        taxes, inheritance, child custody, it is an entirely
        different thing. And if you -- if a State prohibits
        polygamy, it's prohibiting conduct.
         If it prohibits gay and lesbian citizens
        from getting married, it is prohibiting their exercise
        of a right based upon their status. It's selecting them
        as a class, as you described in the Romer case and as
        you described in the Lawrence case and in other cases,
        you're picking out a group of individuals to deny them
        the freedom that you've said is fundamental, important
        and vital in this society, and it has status and
        stature, as you pointed out in the VMI case.

        Too late for the simple life, too early for android love slaves - Savio

        by Clem Yeobright on Wed Mar 27, 2013 at 12:03:21 PM PDT

        [ Parent ]

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