For John, BLUF: Are the boundaries of our conduct cultural or are them set by some sort of derived natural law? Nothing to see here; just move along.
Associate Justice Sonia Sotomayor asked one of the key questions during yesterday's oral argument over the California Prop 8 case, Hollingsworth v. Perry. Ms Penny Starr reporting.
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?Mr Ted Olsen.
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?
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.Writing at the Instanpundit blog spot, Law Professor Elizabeth Price Foley says:
If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status, picking out a group of individuals to deny them the freedom (the court) said is fundamental.
Lawyer Ted Olson’s answer was not entirely satisfactory, suggesting that a ban on polygamy or incest would be a ban on “conduct,” not one based on “status.”I think that puts the question back in play, after Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall punted on that specific question, telling the General Court it could do whatever it wanted, as long as it didn't mess with Same Sex Marriage, in the Goodridge v department of Public Health case.
And didn't SCOTUS say, in Lawrence v Texas, that Government couldn't regulate conduct?
There is always the somewhat sour view of Ms Megan McArdle, at The Daily Beast. Her view is that with US Supreme Court approval it will be all over for those who are eligible for Same Sex Marriage. It will look like the 1950s in suburbia.
Regards — Cliff