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Tuesday, May 17, 2016

Loving and Marriage Restrictions

Today, The New York Times ran an article about the new movie Loving which recently premiered at the Cannes Film Festival. Loving tells the story of Richard and Mildred Loving, the Virginia couple who challenged the state's interracial marriage ban and won.  I  did not know about this movie until I read the article however, it's release also doesn't come as a complete surprise. Loving v. Virginia is the case that made Obergefell v. Hodges possible. As the fight for same-sex marriage intensified, Loving was transformed from a case largely about racial injustice  into the seminal  case on marital equality. 

The parallels between interracial and same-sex marriage bans are numerous and in the recent fight for marriage equality, supporters of same-sex marriage repeatedly emphasized these connections. Consequently, it is fitting, that nearly one year after the Supreme Court held that same-sex marriage bans are unconstitutional, there is now a movie memorializing the case that started the fight. Still, I wonder if a movie like Loving, which celebrates the first marriage equality victory, while alluding to the most recent,  doesn't also cement the perception that the challenge to marriage restrictions is over and won.

Obergefell struck down state same-sex marriage bans. However, there are still significant restrictions on who may marry. Leaving these restrictions in place was intentional. In fact, it was probably essential. One of the major obstacles facing same-sex marriage proponents was the widespread concern that the legalization of  same sex marriage would lead to the elimination of other marriage restrictions. At the time, I considered this slippery slope concern a red herring. The law is always an exercise in line drawing. Nevertheless, this was a real concern for many same-sex marriage opponents, and even after Obergefell, it is likely that this slippery slope fear remains. Consequently, although the movie Loving clearly celebrates the movement of this line between permissible and impossible marriages, it is possible that it may also serve as a means of shoring it up.  

Today, three significant  marriage restrictions remain. These are bans on  polygamous marriages, underage marriages and incestuous marriages. At the moment, most Americans support these restrictions. However, this support could easily change. In fact, it was Loving that highlighted the subjective nature of marriage restrictions  and demonstrated that these restrictions can and should be challenged.

In South Carolina, where I live, there are bans on incestuous, bigamous and underage marriages. Still, even these seemingly straightforward and common prohibitions are rife with exceptions and potentially vulnerable to legal challenges. For example, although incestuous marriages are prohibited, you can still marry your first cousin, or your step-sibling. Similarly, polygamous marriages are banned, but we allow a person date as many men or women at the same time as they like. Even our underage marriage restriction is ambivalent.   Until 1997,  girls as young as 12 and boys as young as 14 could enter common law marriages and today,  there is still no marital age restriction for  underage couples who seek to marry due to pregnancy. South Carolina is not unique. Other states also have a similarly wide variation in their bigamy, incest and non-age restrictions.

In the future, I expect many of these restrictions will be challenged. One question however, is how easily these challenges will be able to draw on the legacy of Loving.  The movie Loving presents the challenge to marriage restrictions as over and won and by doing so, the film may make it  harder for new challenges to succeed in the future. At the moment, I am far from convinced that current marriage restrictions are problematic. Nonetheless, Loving and Obergefell demonstrated that just because a marriage restriction is long-standing and well accepted does not mean it is right. Consequently, I reserve my right to change my mind and I hope the Loving movie doesn't hinder that possibility in others.

Posted by Marcia Zug on May 17, 2016 at 03:45 PM | Permalink


In Joe's June 19 post, I think he agrees with me (Joe can speak for himself, but I read his post to agree with me on this point) that it is now (after the Obergefell v. Hodges decision) legal in at least 11 states for a man to marry his brother. It was, as Joe correctly states, legal in Massachusetts and Iowa before the Obergefell decision. Joe says, if I am reading Joe’s June 19 post correctly, those 11 states should now amend their statutes to make it illegal for a man to marry his brother. I doubt that those states will do so. Massachusetts and Iowa have not done so. It would be ironic, indeed hypocritical, if the people who urge “freedom to marry,” “love=marriage,” and “we should be allowed to marry whoever we love” suddenly want to terminate someone’s right to marry. Two brothers can now marry in 11 states. Does Joe want to terminate their right to marry? What will his argument be? Moral disapproval? Illegality? If Joe argues that it is "incest," he is essentially arguing that it is "illegal" or "morally wrong." That is what opponents of same-sex marriage argued in the Supreme Court. They argued that same-sex marriage is illegal and morally wrong. The Supreme Court ruled that same-sex couples have a constitutional right to marry. Two brothers are a same-sex couple. In my opinion, the Obergefell decision holds they can marry. I challenge Joe, or anyone else, to point to anything in the Obergefell decision that excludes two brothers from the Court’s holding.

Posted by: David A. Robinson | Jun 20, 2016 9:32:01 PM

Love is ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, which is why a man does not Love his wife, in the same manner as he Loves his daughter, or his son, or his mother, or his father, or his sister, or his brother, or a friend. This "loophole" that has resulted in a disordering of the essence of Love, is due to the failure to respect the truth about the complementary nature of man, and thus the essence of the human person as a son, daughter, brother, sister, husband, wife, father, mother, called to exist in Loving relationship, in communion with, The Ordered Communion Of Perfect Love, The Most Holy And Undivided Blessed Trinity.
Any act, including any sexual act, that demeans our inherent Dignity as sons, daughters, brothers, sisters, husbands, wives, fathers, mothers, is not, and can never be, an act of authentic Love.

Posted by: N.D. | Jun 20, 2016 12:05:41 PM

Massachusetts and Iowa by judicial review recognized a state constitutional right to same sex marriage years before the U.S. Supreme Court did. State constitutional law overrides statutory law.

So, why does DAR not think brothers could marry ALREADY? But, they cannot. Both locally and now nationally there was no total slippery slope when one view of marriage (this time by sex, before by race -- the district judge there also appealing to natural law) was deemed discriminatory.

To the extent that statutory law opens up a loophole pursuant to constitutional decisions, yes, the code would have to be updated. There still is no "right" to incestuous marriage in a constitutional sense which is what the ruling was about. And, I'd be surprised MA and Iowa didn't updates their statutes to handle brothers marrying brothers and sisters marrying sisters if necessary.

I also hold to the other remarks including the confused remarks about birth defects and how case law/practice logically led to same sex marriage w/o also leading to incest (or polygamy for that matter).

Posted by: Joe | Jun 19, 2016 7:42:16 PM

In response to what Joe said in his June 18, 2016, post, I stand by my assertion that as a result of Obergefell v. Hodges, it is now legal in many states for a man to marry his brother. Joe said nothing to the contrary. Joe said he is opposed to a man's marrying his brother, but the fact remains that as a result of Obergefell v. Hodges, a man can now marry his brother in at least 11 states, whether Joe likes it or not. That is how I read the statutes of those 11 states. Read them yourself and see if you don’t agree with me. They are: Florida (Fla. Stat. § 741.21), Georgia (Ga. Code § 19-3-3), Iowa (Iowa Code § 595.19), Massachusetts (Mass. General Laws ch. 207, §§ 1 & 2), Michigan (Mich. Comp. Laws §§ 551.3 & 551.4), Mississippi (Miss. Code § 93-1-1); Montana (Mont. Code § 40-1-401), South Carolina (S.C. Code §§ 20-1-10 & 20-1-15), Virginia (Va. Code § 20-38.1), West Virginia (W. Va. Code §48-2-302), and Wyoming (Wyo. Stat. § 20-2-101(a)(iii)). Those statutes prohibit a man to marry a female blood relative. Most of those statutes also prohibit a man to marry a man, but statutes prohibiting a man to marry a man were held unconstitutional in Obergefell v. Hodges. So, in those states, if a man can marry a man, he can marry his own brother, according to the statute. If two adult brothers, neither of whom is married to someone else, want to marry each other in those states, I don’t see any way that the state could deny them a marriage license. Read those statutes and decide for yourself.

Posted by: David A. Robinson | Jun 19, 2016 6:08:21 PM

"What specifically made Obergefell v. Hodges the tipping point here, Mr. Robinson?"

What separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. Now that The Supreme Court has ruled, erroneously, that in order to be married, it is no longer necessary to have the ability and desire to exist in relationship as husband and wife, any relationship can be declared to be a marriage if one so desires.

Posted by: N.D. | Jun 18, 2016 10:15:20 PM

What specifically made Obergefell v. Hodges the tipping point here, Mr. Robinson?

The threat of birth defects is not the only reason for banning incest and state law opinions in recent decades on the point say as much. If that was the test, e.g., bans on step or adopted relations would be unconstitutional. Or, infertile siblings or senior citizens (which is the rule in a few states regarding first cousins) can get married. And, it might justify blocking others with genetic problems from getting married in general.

Birth defects has been in recent years been disfavored as a grounds to block marriage and in ancient times genetics was not as well understood. It is unlikely this was the primary reason the incest taboo arose. The concern these days tend to be familial integrity. The Supreme Court also appealed to the growing understanding that same sex couples have unions equal to different sex marriages in all relevant ways. This isn't in place for two siblings.

A basic difference is that two siblings is an EXISTING relationship while marriage is the "coming together" of two people without an existing relationship. That isn't exact, obviously, but it's a basic aspect of marriage. The Supreme Court addressed this, including in some of the more emotional comments some didn't care for about the wonderful nature of marriage. A license isn't required to have a brother legally recognized though yes if the state treated two brothers together in family law differently than two sisters -- sex discrimination of some sort -- it would be problematic.

Anyway, avoiding sex discrimination or sexual orientation in marriage does not suddenly make incest okay. Lawrence v. Texas didn't suddenly mean any type of sex should be protected either. If we want to make some general libertarian argument here, we can. But, just like Loving v. VA didn't mean incest (see my previous comment on how this was raised as a possibility), this case didn't either.

Finally, since incest, polygamy etc. was not at issue, it's okay the opinion didn't offer a comprehensive discussion of each possible marriage relation. But, same sex marriage was a reasonable result of other protections of same sex relationships. Any slippery slope can go far past marriage in that respect. As could looking at the law itself -- e.g., if a state CHOOSES to allow same sex marriage, are they arbitrarily denying incest? The logic seems to follow.

Posted by: Joe | Jun 18, 2016 12:19:02 PM

I am one of the lawyers who wrote and filed an amicus brief in Obergefell v. Hodges. I expressed concern that if two adult male friends have the right to marry, then two adult brothers have the right to marry. The rationale for prohibiting a man to marry his sister—increased risk of birth defects if they conceive a child—does not apply to a man’s marrying his brother. Two brothers cannot conceive a child. Whether two adult brothers’ marrying is “incest” is purely semantic. In many states, “incest” is defined as sex between a male and female blood relative, or between an adult and child blood relative, not between two adult blood relatives of the same sex. The Obergefell decision did not address my argument explicitly but I believe that any intelligent reading of Obergefell leads to the conclusion that a man can now marry his brother. On June 29, 2015, three days after the Obergefell decision, I wrote a short Amazon e-book explaining why. It is entitled Can a Man Marry His Brother? What the Supreme Court Said in Obergefell v. Hodges. Read it if you are interested. Now that laws prohibiting a man to marry a man have been declared unconstitutional, it seems to me that in Professor Zug's state, South Carolina, a man can now marry his brother. See S.C. Code §§ 20-1-10 & 20-1-15. If you disagree with me, I would be curious to hear why.

Posted by: David A. Robinson | Jun 17, 2016 8:54:32 AM

The state in Loving during oral argument (see Oyez.com) brought up the usual slippery slopes:

"It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems then those of the intramarried and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent."

So, the fact these came back when sex instead of race was the line ... no major surprise. Underage is a basic consent matter and arises in voting, the right to own a gun, the ability to view certain visual materials, different rules for due process in criminal trials, etc. The proper line there is open to debate as is the case for sex etc. Your comments suggest as much.

The others are also a matter of line-drawing that change over time. Biblical incest rules are quite broad. Allowing first cousins to marry, especially after a certain age, would be logical. It surely was harder to justify using the anti-SSM reasoning based on sex lines, procreation and tradition. The lines for step and adopted siblings also are open to debate.

As you suggest, "polygamy" also can be broad, especially respecting "traditional" marriage where easy divorce was not available. Remarriage in those cases was legally at times considered "polygamous." Likewise, open marriages and other arraignments not involving recognition as such -- which was quite "traditional" in practice might be seen as "polygamous." Of course, "traditional" marriage over history included polygamy.

But, as with Loving, Obergefell set forth rules against discrimination that could fit without letting such things make us throw up our hands. And, the possibility of further development of marriage -- quite likely given how marriage changed over human history (e.g., note Abraham in Genesis at one point is said to have married his half-sister) -- is as you say something we can accept as reasonable to consider.

The issue of mental impairments is a good thing to cite given various laws on that matter. Note too traditional (I'll stop with the scare quotes) Catholic marriage limited those unable to have sex in a certain fashion to marry too.

Posted by: Joe | May 19, 2016 10:35:10 PM

There is no correlation between Loving v. Virginia and Obergefell.
Having the ability and desire to exist in relationship as husband and wife, which is a necessary requirement for a valid marriage contract, does not depend upon someone's Race/Ancestry, but it does depend on being a man and a woman.
Marriage cannot in essence be, existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.
P cannot in essence be not P.

Posted by: N.D. | May 19, 2016 7:57:06 PM

There is a fourth significant marriage restriction: restrictions on marriage by adults with mental impairments. It is becoming an important question of rights for the disabled.

Sometimes a disabled adult wants to get married, and parents oppose the marriage. Sometimes an elder developing mild dementia wants to marry, and the children from his first marriage oppose the marriage - perhaps for noble reasons, perhaps to preserve their inheritance.

Another tricky issue: a person with severe mental impairments normally would be unable to marry. He is under guardianship, and the guardian agrees it is in the person's best interest to marry (perhaps the disabled person is in a long-term sexual relationship, and will receive needed government benefits if the couple is able to marry). Should the guardian's approval permit a marriage that would otherwise be prohibited?

Posted by: Cotad | May 18, 2016 5:25:02 PM

The exceptions to the other marriage bans that you identify make a decent amount of sense if the State interest behind marriage is viewed as fundamentally focused on channeling procreation into stable two-parent families: the bans prohibit marriages where there's a concern about channeling procreation into that particular family unit, and the exceptions exist because the general concern is mitigated in some respect (e.g., concern with genetic defects from incest decrease as consanguinity decreases). It's only in the post-Obergefell world where marriage has been divorced from its procreative purpose that these exceptions seem arbitrary and vulnerable to challenge. Which, I suppose, just confirms the point about slippery slopes.

Posted by: Hash | May 18, 2016 12:17:34 AM

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