Comment on an Old Post: And Schiavo

"Protect Our Children!! Innoculate Our Kids Against All Possible Viruses!"



Anonymous said...
I know this post is over a month old, but it has new-found currency in its relevence to the Shiavo case. Your proposed innoculation may prevent your children from someday taking part in a circus such as the one going on outside Terri Shiavo's Florida hospice. What's your take?
7:27 AM

Jrudkis said...
I think it is a hard question. As a parent, I would hate to have my disabled daughter's estranged husband making medical decisions for her that he may financially benefit from. On the other hand, marriage has meaning, and making this decision belongs to the husband unless she delegated to someone else.

My take is make a living will, and give the power to someone who will always love you, like a parent or child.

As for my kids taking part in the circus, I would find that pretty embarrassing for them and me. No matter how this turns out, it really ought to be a private matter for the family.

I am also frankly amazed that religious people would fear death so much. I could understand them praying for the souls of the killers of Schiavo, but shouldn't she be pretty safe?

Looking for a Cool New Girlfriend: Tossing in the Fishing Net

So, Since I post mindless drivel here anyway, I figured I would post my need a girlfriend profile and get some feedback:

ME
I caught a great girlfriend about a year and a half ago, and pulled her into the boat, but while I wasn't looking, she flipped and flopped back into the sea. I guess I should have put her in ice faster...So I am trying again.

I prefer outdoors activities to most indoor activities. I also like more cerebral pursuits, like television. Okay, I mean like the art museum (I think I am required to say that, or no one will respond...though I know they go to the art museum maybe once a year). I think I am fun to be with. I like to read, especially older classics that I am now old enough to appreciate, as well as junk novels. I am a news junkie and like to write articles that are about the topic of the day. I like my job and I love the Seattle area. My favorite sports are snow related, but enjoy golf, hiking, climbing, tennis, and anything that takes a ball, racquet or bat. I like almost anything that will make me feel as though I am working my body hard. I like old motorcycles, but never seem to have time to pursue that... but it looks good in the garage. I like going out, especially in Seattle. I spent 10 years in the Army as a cavalry officer, loved the physical, emotional, and mental challenges, but left to spend more time with my kids, and avoid long separations.

I have my kids part time but I am not looking for a mom for them, because they have a wonderful mother with whom I successfully co-parent...My girls are 7 and 11, and pretty self sufficient, and active. I think the new ex-girlfriend will miss them alot, because they are the best part of me. She is available as a reference (okay, maybe not...)

You do not have to know now whether you want a man with kids, because that is deep battle, and you will most likely find many other reasons not to like me besides the whole fatherhood thing.I am 37, live in Bellevue, work in Seattle, professional, 5-10, 180, workout dailyish (especially now that I have to go fishing again, and need to improve the bait), and career oriented.

Oh, and in response to many questions I have seen, I have a job, a car, and a house, and do not live in my parents basement.

HER
I want to meet a woman who is passionate, able to respond with real emotion, and loving. I want someone who makes herself happy in almost any situation, and does not rely on or expect someone else to do it. I am interested in a woman who is physically strong, smart, loving, fitness and outdoors oriented, and happy with herself. She should be self sufficient, but able to co-mingle her life with mine if the time comes. It would help if she does not have a biological clock screaming at her to make babies. Strength of character is very important, and you need to be willing to tell me when you are unhappy with something, because I cannot read your mind. I have tried, and it just doesn't work. Having an education helps, but I believe that life experience counts more...it has for me, because I feel I have both, and it was the experiences I have had that shaped me, not my education.

If you read all this, you should at least leave me a message and say you did.

Responsible People Want to Drill in ANWR

Viewed as a separate line item, I can understand why people are against drilling in ANWR, but I think that responsible people thinking globally have to accept that it is the right thing to do.

The United States uses 25% of the world's energy. We import a significant portion of that in oil. The oil that is drilled elsewhere is not done in the most environmentally sensitive way, and often causes economic turmoil in the developing world where it is found. The United States has a responsibility to mitigate the damage its oil thirst causes through out the world. One way to do that is to reduce our thirst. However, with a growing population, even a reduction in use by each individual is not likely to reduce our needs a significant amount for long. We should do this as well, but it will not be enough.

Another way to help mitigate third world problems is to produce our own oil. This helps in several ways: It reduces the leverage of oil exporting countries and allows the US and European countries to be more forceful in enforcing human rights. So long as a minor reduction in output from OPEC causes the West to tremble, we can never stand up as strong as we should. ANWR may be a drop in the bucket, but it helps some, and it may turn out to be more than a drop. Without exploring, we won't know.

By developing the technologies that we will require for oil exploration in ANWR, we will provide the world with a better way to extract the oil we use. This is essentially the same argument that environmentalists use in arguing that even though the US is a relatively minor producer of mercury, we need to lead the world in regulation so that the proper technology is developed and available for China and India, who produce the lion's share of mercury. Even if ANWR turns out to be a money pit with minimal output in oil, the new technologies developed will make it worth while.

Additionally, using our own natural resources and risking our own environment is only fair since we use so much oil. Perhaps a significant catastrophe in ANWR would be a catalyst to reduce oil dependency. I am pretty certain that an oil catasptrohe in Venezuela would barely make the news here, even though the catastrophe occurred because of our desire for oil (what was that about the ocean drilling platform a couple years ago?)

And last, I just think it is selfish to use oil from the poor parts of the world causing unspeakable economic and environmental damage, while hoarding our own supply that we can extract relatively cleanly and without the threat of civil war.

As a responsible person, I want to control the extraction of the oil that I use as much as possible, and we can do that in ANWR.

Constitutional Originalists and Textualists beware:

Could the treaty with the World Trade Organization or proposed one with the International Criminal Court overrule American Law?

If the Constitution means anything to originalists and textualists, then treaties have the same effect as a Constitutional amendment:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Article VI selection from the US Constitution.

Laws have to be pursuant to the Constitution, but all treaties are equal to the Constitution, based on the plain words of the Constitution.

We are not required to make treaties, but if we do, they have the same effect as the Constitution itself. I think the interesting question would be if we could overturn Roe v. Wade by making a treaty with the Vatican. Or a treaty on Gay Marriage with Canada...

It would be a lot easier than passing a Constitutional amendment.

Interesting Discussions with my Really Cool Kids

I have been trying since my kids were born to make them antagonists, and it seems to be working. Generally, I have made them question everything, and verify the rest.

For example, after I filled out school registration paperwork, kid number 1, age 11, asked to review it because she thought I would put something strange on it (which in fact I did and she caught-I had written under "special religious instructions" that she worshipped beets and mangos-but she let me send it to school anyway because we both thought it was funny).

Kid number 2 at age 7 is a very critical thinker who will stop and think about every answer and does not take a statement at face value. She often will come up with very plausible arguments as to why my answer makes no sense. Recently on the way to school we had an argument about why we needed a new traffic light at a stop sign intersection that she initiated and had compelling reasons why the city should install the light.

Today I saw true fruit: Kid number 1 challenged me to debate whether the British museum should return its stolen artifacts to the countries they were stolen from. I found her to be remarkably well informed, but more importantly she laid a trap for me in her argument, leaving an apparently easy position contrary to hers open, but to which she had a good counter-argument to. It was well presented, articulate, and most important to me, bold. She has no fear of seeking truth, and confronting arguments head on. She is also willing to concede when presented with a stronger argument. She was willing to be wrong, which is often the hardest thing for a debate participant to accept gracefully. And she was interested in a debate on this less than exciting topic, and thought I would be interested in debating it with her.

I could not be prouder.

I think they are turning out okay.

Saw my junkies again today

Same place, same time. This time I called security. I don't care that they were doing drugs, but they seemed to be too flagrant and unconcerned with repercussions. I am concerned that someone could be inadvertently stuck with the needle, or given that they were hanging out in a lonely stairwell, someone could be hurt or robbed by them.

Plus I was annoyed that they were in my way.

Witness testimony

Today I witnessed a crime. It was a minor crime, but I think it is instructive to me as to witness testimony.

I was walking to my car, and I take the stairs rather than the elevator because the elevator is the slowest one on earth. When I opened the door to the stairs, there were two people (a man and a woman) sitting on the top step, preventing me from passing. I noticed that the had a bunch of stuff strewn about, and that the man had a hypodermic needle stuck in something. I was surprised to see them, and they were clearly surprised to be interrupted. The man quickly stood up, and I passed by. I recall that the woman gave a long sniffle. I passed within 6 inches of both, and said "excuse me." I considered right after I passed telling them that it is 5 o'clock, and they will have about one hundred people pass by shortly.

As I sit here now, I can recall that they were both thin, and I think they had dark hair and were white. I have no idea what they were wearing or how old they were, or what they looked like. I could not testify with any certainty as to what I saw, nor really describe the needle. I might have stepped on their drugs, if that is what it was.

I know that "eyewitness" testimony is one of the least reliable types of evidence in trial, but I think this is my first real experience with what we expect of witnesses. I knew immediately after passing them what I thought I saw and tried to remember, but I could not swear to anything in court.

I think this is one of the reasons that I am against the death penalty, because even when someone "sees" the accused, I don't think it is trustworthy testimony.

Homer Simpson: Founding Father

Is Homer Simpson really the embodiment of the everyman?

I think in many ways, Homer is the person that the founding fathers wanted to both protect, and protect the rest of us from.

Homer is foolish, selfish, and stupid, but honestly wants to do the "right" thing. He is easily swayed on what is "right," and can shift his opinions with the wind. He is both the political extremes and the wishy-washy middle. I would imagine that he subscribes to the Nation, and listens to the Savage Nation. But then Homer votes based on the last commercial he saw.

The Constitution was written to protect us from the whims and fancies of people like Homer. Whoever or whatever the enemy or issue of the day is, Homer would over react and accept any action for safety or retribution.

Homer is why an originalist interpretation of the Constitution is important. The Constitution allows amendment, but not on a whim. The Constitution does not prevent change and growth, but it rarely demands it. Homer is served by a bedrock that requires a national consensus to mutate, and not 5 old judges who determine their own meaning, and then requires 2/3 of the legislature and 3/4s of the states to overturn the decision of these 5 people.

Simply speaking, the Constitution does not prevent Homer from being Chief Justice of the Supreme Court, or President of the United States. However, the President has checks and balances to his decisions that are far easier to implement than the checks on Supreme Court decisions. A President is elected for only four years at a time, and has a total of eight to do his worst. To do his worst, he needs Congress to vote for his plans. In contrast, lifetime appointments coupled with nearly impossible rules to overturn the decisions of five people leaves the Homer Quotient too high, when those decisions are not centered on the original intent of the people who wrote the Constitution and laws that the decisions are based on.

Whether you are on the left or the right, you have to believe that the danger of getting your wrong "Nation" Homer on the Supreme Court is too risky to leave in the hands of non-originalist jurists.

Ten Commandment Cases

The Ten Commandment cases seem to me to address the line between acknowledgment of our past and state sponsorship of religion. Generally, displaying the Ten Commandments on government lands is an impermissible intrusion of religion (especially the first 4 commandments), but I think there is another issue involved beyond simply religion.

Essentially, I can accept keeping references that are historical and monuments that were placed before the incorporation of the bill of rights, maybe even ones from the fifties in reaction to "godless" communism, but I don't think new monuments should be allowed (like Judge Moore). I think there is a danger in erasing historic monuments and references that let us understand our past. I think the justices will continue to rule using a historical standard.

The ten Commandment question reall y is not that hard to decide, but how about another case? Could public buildings sport the following quote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

While from the Declaration of Independence, would the selection of just this section be an impermissible acknowledgement of a Creator, and therefore religion?

I know a lot of people will point out that "Creator" is less specific than "God," but it certainly indicates a being that controls or creates. Certainly Newdow would object.

p.s. Sorry for the long delay in posting, but I had technical difficulties and work that interfered.

Missing Dunkin' Donuts...

I grew up in a Philly suburb, and loved Dunkin' Donuts whenever I could get them. My neighbor was ecstatic when I got my license, because he would pay me 5 dollars to go to DD and buy him a coffee, the only coffee he would drink (and this was long before Starbucks infected the East, and $5 for coffee was a fortune). To me, DD was not blue collar (as it is marketed) but for the rich (since my parents never seemed to buy DD).

When I was in Ranger School in the Army (and starving), I dreamed of Dunkin Donuts. For five years after, I could not pass one without stopping and indulging. It embodies all that is good.

Now I live in Seattle. I know there is actually a DD somewhere near the airport, but I have not quite made it there yet. I go to Starbucks, look at the weak old pastries and order a nasty Americano, and just wish there was a DD closer.

And then, when I visited my parents, I found out that a lot of the DD franchises now double as a Baskin Robbins. It seems to me that this is the perfect franchise pair: DD in the morning, BR in the afternoon. It solves the empty floor space for both franchises during down areas, and probably doubles the customer base by getting DD customers accustomed to BR, and vice versa.

I think there is an opening in Seattle to grow this franchise, despite the Starbucks mania. If I had cash and time I would go for it.

Did the Supreme Court Set a New Bright Line Standard in Roper?

Did the Court create a bright line test in Roper, or analyze the law and find it in the text of the Constitution and laws of the states? Is there a difference?

Bright Line rules, such as "murderers under 18 can't be executed, but over 18 can be executed," are functions in law that reduce the necessary analysis to a level that the verdict can be made by a spreadsheet. One of the main functions of a trial is to take the individual case evidence and defendants and analyze them. Most judges hate having the ability to rule on the specific evidence and defendant in the case restricted (and therefore hate minimum sentencing guidelines). I don't think the Court is claiming that it is incapable of this function with the Roper ruling instituting a new Bright Line test. Courts and judges thrive on parsing evidence and passing judgement tailored to the case. A legislature can't do that when devising laws, which is why bright line tests originating there makes sense.

Therefore, I think it is more rational to argue that all state legislatures have made a bright line, ie, under 18 you are not adults, and the majority of state legislatures made a bright line that under 18 you can't be executed, and the Court is enforcing those widely used standards, rather than that the Court can on its own determine what the bright line is.

For example, the Court has determined that mentally incompetent people can not be executed, but I don't believe that the court determined the bright line as to who is mentally incompetent or at what digit of IQ that occurs. That is left to the legislature, or to the jury.

With this case, the Court has taken what most legislatures have determined, ie, that under 18 can't be executed, and said that it is such a broadly held view that no legislature can now choose to execute those convicted of crimes committed under age 18 because it is now "cruel and unusual." The distinction is that the bright line was created by the majority of legislatures and the Court was required to adopt it through the Constitutional definition of the phrase "cruel and unusual," as opposed to the line being merely a Court creation.

Child Death Penalty, Roper and Originalism, v. 2.1

Upon further review, my opinion on this case has evolved, not unlike the term unusual:

The Supreme Court is charged with interpreting the Constitution. It has interpreted this 8th Amendment clause like this: "the prohibition against cruel and unusual punishments also recognizes the "evolving standards of decency that mark the progress of a maturing society."" The vagueness of the terms "Cruel and Unusual" themselves necessitate that the Court interpret their meaning, and there is no generally accepted meaning for these terms that would have obviously been more logical. Therefore this case is not changing the term from its meaning, but is ruling in keeping with it. I think you can argue fairly that the evolving standards of decency have not met this standard (though I would disagree) but if those standards have evolved, the Court is in keeping with previous decisions with this case.

Since it is these specific terms in the Eighth Amendment that evolve, the Court is not opening the door to evolving other portions of the Constitution. I think Scalia would have to punt on both the Court's role of interpretation and the role of Stare Decisis to claim that the Court is not within its bounds to make this decision.

Gay Marriage, Polygamy, Group Marriage, Incest

In response to the following quote from a post last month,

I don't like the Republican line on gay marriage, and I think that the right answer is that it is an issue of contract that adults can enter (whether same sex, multiple partner, or traditional), but it is not an issue that I care much about (since I want neither same sex nor multiple marriages personally).

I had this interesting discussion involving marriage and various ways for people to choose to live:
__________________________________________

Anonymous said...
You apparently do not have well developed thoughts on the issue of non-traditional marriage. Gay marriage is one thing, provided that there are exactly two individuals involved in each marriage. But marriage of multiple partners is quite another.

A marriage between two individuals, same-sex or not, can be graphically represented by two points with a line segment connecting them. Since legal status (at least officially) within a marriage is not differentiated based on the sex of the individuals, there is no logical difference between same-sex and traditional marriages.

Marriages between multiple partners could take the forms of chains, rings, stars, trees, meshes or any combination thereof. This is not a moral problem, but a logical one.

Should our court systems be burdened with untangling the webs of intrigue that would result from allowing such arrangements?I think not.

At 2:50 PM, Jrudkis said...
Why should the court entanglement matter? Courts are involved in the dissolution of complex corporate arrangements all the time. If there are seven people involved in the ownership of a 7-11, the court has to sit in equity and determine what is fair for all of them, and generally short of contracts delineating who owns what split the value between the participants.

Marriages are simply partnerships that run a household rather than a business. Why can't the judge sit in equity in multiple party marriages just like he can when dissolving a 7-11 partnership? Are you saying that corporate citizens should get more service from the courts than human citizens? The parties have a prenuptial, and the dissolution goes along the way of the pre-nuptual agreement. If they do not have an agreement, then the judge in equity splits the assets, and the judge determines what is best for any children, just as he does now.

At 6:38 AM, Anonymous said...
That's sort of like saying that I shouldn't mind driving you to work every day because I have to drive myself to work already.

Are multiple-partner marriages of comparable value to our society as corporations? To anyone who thinks so, you might have a point.

At 7:27 AM, Jrudkis said...
Potentially. Why are multiple party corporations needed? Because individually the investors did not have the resources to risk in the endeavor. Why would this not also be true of a household? Certainly 5 poor people pooling resources together to live and raise children would be able to afford better arrangements for their family than two. Allowing them to contract together to run this arrangement while protecting individuals from being summarily abandoned would be a good thing. For example, one person could forego working while caring for the kids. The others could not take advantage of that person and abandon her when the kids no longer need care, and leave her without support while they enjoy the fruits of her labor.

At 8:14 AM, Anonymous said...
In your example, would each of the five people necessarily have to be married to the other four (in a mesh arrangement)? Or could this group marriage take the form of a chain or a ring? Could any of these people claim withholding of sex as grounds for divorce? Would each be expected to have sex with any of the others? What if one wanted to divorce one of the others, but not the other three? Are we really talking about marriage?

At 11:59 AM, Jrudkis said...
Under no fault divorce, there does not have to be a reason such as withholding sex. In a 7-11 partnership, can one person decide to not be a partner of one person, but remain a partner with the others? No, it is a partnership or not.

The "shape" does not matter. All are linked together in a partnership, and in order to leave, you have to leave the whole partnership.

At 1:36 PM, Anonymous said...
The "shape," as you term it, does matter as you describe group marriage. It must be a closed mesh in which each individual is necessarily joined to every other individual. Chains, rings, trees and any combination including any of these are prohibited.

Additionally, no-fault divorce may also be required to allow such an arrangement. Not all states provide for this, but that's a minor point.

Okay, I'm sold. Life, liberty, the pursuit of happiness and contract-based communes for all. Live communally or die.

Can I marry ten or so Mexican women in their early twenties and in need of citizenship? If so, would we have immunity from testifying in eachother's court cases?
At 7:24 AM, Jrudkis said...
You should be able to marry ten women, but just like today if the marriage is a sham or a fraud you should be prosecuted for it.

How about if you are an American born in the US, raised in Saudi Arabia, and marry 4 women as is traditional and legal there. If you move back to the US with your family, should you have to choose one woman to be your wife, and leave the others behind? Spousal privilege also varies state by state, but I would venture that the privilege should go with multi-party marriages to the extent and for the same reasons it exists with traditional marriage. I don't really understand why the "shape" would matter. In traditional polygamy, it is shaped like a star, with typically the man at the center and several women tied to him, but often living completely separate lives from the other women. Other times it is a commune type of life, but the women are not necessarily lovers.

At 8:08 AM, Anonymous said...
The reason I say that the shape matters is that you made the following two quoted assertions:

"In a 7-11 partnership, can one person decide to not be a partner of one person, but remain a partner with the others? No, it is a partnership or not."and"All are linked together in a partnership, and in order to leave, you have to leave the whole partnership."

I take "All are linked together" to mean that each individual is connected directly to every other individual, regardless of the nature of their sexual relations. This is a mesh configuration.

In the first quote, you discuss "one person" in a general, arbitrary way, as though the rules apply equally to all in the partnership. This further implies that each has the same connectedness to the others as does any of the others to the rest. The only configuration in which this is true is a mesh, with each point directly connected to each and every other point. (Technically, were there only three members, it would also be a ring.)

In the case of a star, the man-in-the-center's leaving would have an entirely different effect on the marriage. I would disolve it completely, not just for him, but for all the others (if in fact he has to leave the whole partnership). If one of the women at the points were to leave, the rest would remain intact.

In a chain configuration, with one married to another, married to another, and so on; were a member in the middle of the chain to leave, two smaller, separate chains would be left. Were one of the two end points to leave, or one of the two next to those to leave, you would be left with one shorter chain.

I may be misunderstanding you, but what I thought you were describing was an "all for one and one for all" arrangement.

At 12:28 PM, Jrudkis said...
Continuing with the 7-11 analogy, partners do not have to be equal. There may be a partner with more equity, or actually owns the building, or does all the work. If that person leaves the partnership, it would leave the rest without any reason to be in a partnership, but would not necessarily dissolve the partnership. I would suggest the same would be true of a man with multiple wives. If he divorces the group, it would not mean that the women would have to dissolve as a group, though it is most likely that they would choose to. I think the key part is that multiple marriages would require consenting adults, and that would require all adults in the marriage to consent to each addition, and in effect be "married." I understand the chain idea, but I would think of a marital unit as one, so if you begin with a couple that marries another couple, this new group of four would be one single entity. If they married a third couple, they would all be marrying, not just one of their group.

But I suppose it is possible that you could have one person married to one group, and also married to another group, just like one person can be in one 7-11 partnership, but also in a WaWa partnership, without enmeshing his partners in the other respective partnership. I don't like this idea as much because I don't think in marriage you should have limitations on the assets that you bring to the marriage (in other words you bring all your assets to the marriage, not just your limited "investment.")

But I could be wrong. Perhaps that would be the role of the prenuptual agreement which indicates that I am a participant in this marriage on Mondays and Thursdays, but not on the other days. My role as a member of marriage B shall not be impacted my my role in marriage A, and the assets will not be mixed.

That seems a little bit harder, but not insurmountable for a court system that is able to unravel Blockbuster Video from its marriage to Viacom, or oversee the mergers of telecom giants with multiple subsidiaries and assets and liabilities.

I wonder if there would be a role for antitrust within marital communities, so that giant marriages could not join to such an extent that marrital competition is stifled?

At 10:29 AM, Anonymous said...

That might happen if one guy snatched up all the women. [Editor comment: Yes, how many women would be willing to be married to Brad Pitt and his equivalents simultaneously?]

It appears that we now agree that trees and chains might be problematic. I'm not sure about rings and stars.

An interesting backdrop to this discussion is that it was started in jest, in that it really has nothing to do with the main point of the original post. (What was that about Iraqi election and the Left?) But it has turned more serious and thought-provoking.

Anyway, it seems to me that, on the whole, the concept of group "marriage" that we've been discussing, while arguably worthwhile and viable, departs materially enough from traditional marriage (far more so than does gay marriage) that there may be reason not to consider it for inclusion within the existing institution of marriage.

I would suggest that any institutionalization of what could be called "domestic group partnerships" be done independently of any modifications to the existing institution of marriage, which may include inclusion of same-sex marriage.

It seems to me that the parterships we've been discussing lack the intimate, personal relationship, normally based on romantic love with a strong sexual component that is customarily the basis for traditional marriage.

There are admitted similarities between traditional marriages and the subject group partnerships. These lie primarily in the familial and asset-sharing aspects of the arrangements. I just don't think that the similarities are sufficient to warrant lumping these arrangments together within a single institution.

This would lead me to further suggest that individuals already involved in a traditional marriage should have to divorce in order enter into a domestic group partnership, just as they now do to enter into another marriage. The same would also be true for anyone involved in a domestic group partnership wishing to enter into a traditional marriage.

This means that there would be a relationship between these separate institutions, as there are between many existing separate institutions, but that they would be separate none the less.

At 11:38 AM, Jrudkis said...
Polygamy (a form of group marriage) has thousands of years of history and a billion adherents currently living in the world. Granted that history is not in the form of chains and stars, but typically one man/many women. Gay marriage, on the other hand, has essentially no history, and probably at most 120 million adherents (assuming 2% of the population is gay and want to marry).

I would say that legalizing polygamy has a greater historical precedent, current legal status in many countries, and would impact more people that legalizing gay marriage. And since traditionally marriage is about families and raising children more than romantic love, and polygamy was proudly practiced biblically and in most religious traditions, it meets those measures better than gay marriage.

I am not sure why a traditional marriage would have to divorce to enter a group marriage unless both parties were not interested in the group. But since a traditional marriage can also be construed in its very terms (of the contract) to preclude adding partners ("and forsaking all others"), I think your idea that a divorce (or at least a repudiation of the marital contract terms) would be necessary if we are to treat the marital contract the same as any other contract.

But in any event, if they are all consenting adults, they should be able to contract how they please.

It has been a great discussion. I was thinking of pulling it and posting it as a discussion on a top post. What do you think?

At 7:15 AM, Anonymous said...
To quote Rocky Balboa, "Go for it."

I don't disagree with you with regard to the historical and worldwide views on marriage and polygamy. I'm just not sure that those apply in today's America, or in an argument based on the administrative logic of institutions.

From the standpoint of legal administration, I still feel that gay marriage is virtually identical to straight marriage, and that group marriage is not.

One of the arguments put forth regarding gay marriage versus civil unions, as you are probably aware, is that the government should get out of the "marriage" business altogether and administer civil unions to all couples, gay or straight.

Leave it to the churches to marry people and decide the rules for themselves. After all, the Catholic church doesn't recognize marriages performed by the Justice of the Peace as it stands now.

I'm not sure what bearing that has on the discussion of domestic group partnerships, but it's an intersting aside regardless.

At 7:50 AM, Jrudkis said...
That is actually the point behind this whole argument. The government should not be involved in determining the contracting of consenting adults. It is generally a libertarian position.

I agree that gay marriage would be logistically easier, but I would extend it to incestual relationships between consenting adults as well. There is essentially no argument that supports gay marriage that does not support incestual relationships, and the only argument against incestual relationships (retarded progeny) is statistically irrelevant given the few who would choose this route and have children. Besides, what argument can there be against incestual same sex marriage if same sex marriage is allowed, and if that is allowed, how can the state discriminate against opposite sex incest?

At 12:32 PM, Anonymous said...
Does the government really determine the contracting of consenting adults? Legal marriage is a very convenient vehicle for obtaining a range of rights and privileges for a couple, but is it possible to obtain those same things by other legal means?I have heard it put forth; as a counter to the argument that gays, being deserving of the same rights and privileges as straights, should be allowed to marry; that gays can obtain those same rights and privileges through wills, contracts, powers of attorney, etc. (Employer benefits such as health insurance are administered based on the policies of the employer, not law, so they are not relevent to the legal argument.)

Is it really a matter of preferential treatment in allowing an easier means only for a select group of people to obtain the same rights and privileges that anyone else can obtain through a more cumbersome course of action? (What could be called the "build your own marriage" course of action.)

At 1:57 PM, Jrudkis said...
So long as the Government is giving preferential treatment to one group, it is also discriminating against other groups. Also, some states have enacted laws restricting the right of gays to "contract" a marriage (like Virginia).

Simply looking at Social Security and the survivorship rights of a spouse indicates that a contracted gay "marriage" would not have the same benefits of a government sanctioned marriage.

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Comments on this discussion are welcome below.

Child Death Penalty: Roper and Originalism

I agree that juveniles should not be executed (but I think no one should be executed). Is it Cruel and Unusual? I think so, but the Court had already determined that it was not. My problem with this decision therefore is its effect on Stare Decisis and precedent.Generally, the Court's interpretation role of the Constitution should be limited to cases of first impression, and subsequent cases should merely refine within that framework. Had the Court decided 15 years ago that it was Unconstitutional, I would wholeheartedly agree that was a proper ruling within its role of interpreter. It is the evolving meaning of the words (to mean the "standards of the time") that I question.

Admittedly, some truly wrong decisions like Plessy should be overturned. But Plessy itself relied on the "standards of the time," at least to some degree.

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances [p551] is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

This in my mind is why the evolving standard is dangerous. It allows the public whim to delineate rights, and while generally that standard has always been in the direction of more rights (unless you are yet to be born), it means that there is no bedrock of the Constitution that we can rely on to be there short of amendment.If the public at large wanted to curtail the freedom of speech (like a Patriot Act on steroids) and the legislatures of a majority of states passed legislation to that effect, should the right to speech be malleable to that sentiment, or should it be protected by the need to amend the Constitution because previous Supreme Court Decisions determined that the 1st amendment applies to the states (through the 14th), and set a "Clear and Present" danger standard?

The Constitution should provide a minimum standard (based on the interpretation at first impression)that to be raised requires an amendment. The States are free to raise the standard for its citizens.

An Indication of the True Difference Between Left and Right

While four-in-ten (39%) Democrats say they will watch the Oscars, this drops to one-in-eight (13%) among Republicans. Unsurprisingly, political independents split the difference, with 22% planning to view the awards show.

http://www.zogby.com/news/ReadNews.dbm?ID=970

Any suggestions as to what could be responsible for this difference?