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PaperclipPerfector  4mo ago (text post)   3244 thread views

Small-Scale Question Sunday for June 22, 2025

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

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I would say that marriage is firmly under “equal protection under the law.”

That never held water. All people, regardless of their sex or sexual orientation, can marry someone of the opposite sex of any sexual orientation. Gay men are just as free and equally allowed to marry a woman as any straight man. If the gay man doesn't want to marry a woman, that's his choice, but he's legally allowed to.

And pretty much all of the equality under the law anti-discrimination stuff has carveouts for compelling state interests. Like, say, bearing and raising children and ensuring the survival of the species.

Telling gay people that it's illegal to have sex with each other would be one thing: the state intervening in a place where it has little compelling interest or jurisdiction (an argument could be made about preventing the spread of STDs, but it's weak, and promiscuous straight people do that too). But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do. Arguing it's "equal protection under the law" is like arguing that childless people should get the same tax deductions and/or welfare aid as people with seven children because otherwise you're discriminating against the childless.

This was the same argument that Virginia made in Loving and the court rejected it then. Black people are free to marry other black people and white people are free to marry other white people so what's the problem?

But marriage, at least from a legal perspective, is a privilege the state recognizes for people to incentivize the formation of healthy and stable families, which gay people do not do.

Well, at least that's the conservative fantasy. If you look at the way the laws surrounding marriage actually operate, and have historically operated, it's pretty clear that the legal purpose is to regulate property transfers among family members. The only historical precedent which has to do with natural children is the legal presumption that a woman's husband is the father of her children, absent other evidence. While this may be a useful feature these days, it's no longer a necessary one, as states have been keeping records of these things for over a century, and technology has allowed paternity disputes to be resolve fairly easily. Beyond that, historical laws relating to marriage were based on the presumption that women couldn't own property in their own name, that wealth was basically synonymous with real property, and that widows were likely to be an undue burden on society. Today, of course, we live in a property where women are more economically equal than men, where the family farm isn't the primary source of income (or, realisitically, doesn't exist), cash is more important than real property, birth control exists, Social Security exists, etc. As a consequence, the laws surrounding marriage have changed since the turn of the last century to keep up with the times.

An along the way, we've created a whole host of new rights relating to marriage, notably ones concerning medical matters like the right to make certain decisions and the right of visitation. In other words, as the circumstances surrounding marriage have changed historically, the laws have changed along with it, and if you want to figure out the legal purpose of marriage, you have to look at those laws. If you want to believe in an idealized version where the laws that matter are the ones that have "stable families" or whatever as their obvious goal, you're going to be left with very little.

The only historical precedent which has to do with natural children is the legal presumption that a woman's husband is the father of her children, absent other evidence.

What do you make of prohibitions on marriage between sufficiently close relatives? ...what do you make of exceptions to those prohibitions when one of the two individuals could demonstrate that they were sterile?

This would be an interesting case if some state decided it wasn't going to recognize marriage at all.

Exactly. Maybe there’s something analogous in the way certain states recognize different corporate structures? There are only a few which allow forming anonymous LLCs.

I would say it's a massive rabbit-hole with the outcome being far from certain. How do you determine "equal protection under the law" for people who aren't the same? We're kind of debating it with the trans stuff right now. Does a man have a right to women's facilities, explicitly demanded by various "equality acts", for example? Some people say "yes", other's say "men are not women, so a law demanding the creation of women's facilities does not demand that men are given access to them". I would say that whatever the answer is, it's not written in the constitution, and we should stop pretending that it is.

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