> In precisely what way does Varnum v. Brien pave the way for incestual marriage that “traditional,” opposite-sex marriage does not?

Easy. The Iowa Supreme Court, prior to Varnum, respected the judgments of the voters on what relationships are healthy. Post varnum, they don’t.

See, if the Iowa Supreme Court was deferential to the judgment of the people, that would be the principled distinction (deference), but it would prevent gay marriage, too. Of course the people would arguably be unprincipled, but that is their right. the people can make distinctions the courts cannot.

> I assume, from what you’ve said thus far, that you are classifying homosexuality as immoral

No, I said nothing more than that the voters of Iowa felt it was unhealthy.

In precisely what way does Varnum v. Brien pave the way for incestual marriage that “traditional,” opposite-sex marriage does not?

In other words, what is it about allowing same-sex marriage and upholding a ban on incestual marriage that indicates an “unprincipled distinction,” whereas allowing opposite-sex marriage and banning incestual marriage does not pose a problem?

I assume, from what you’ve said thus far, that you are classifying homosexuality as immoral, and then suggesting that it then opens the door to further immorality (?). What is the basis for this moral interpretation, and why do you think the Iowa Supreme Court disagrees?

> My point was simply that the courts need to consider one case at a time

So… they shouldn’t avoid reducing themselves to absurdity, or forcing themselves to make an unprincipled distinction?

> After all, same-sex marriage bears no more significance to the issue of incestuous marriage than opposite-sex marriage

Not at all. To overrule the Iowa DOMA they had to say that from now on moral opprobrium is not sufficient to stop a pairing. They kicked the chair out from under the precedents that would prevent incestual matings. After all, most states that ban incest ban it between people related by marriage and adoption, too. That is, Greg Brady can’t marry Marsha Brady in most states, even though they have no genetic relationship. It’s a common myth that all of this is about the fear of handicapped children (I’ve been glossing over this point before); this is about the belief that the relationship is psychologically unhealthy. By if they say it is the legislature’s determination that it is unhealthy for a step-brother to marry his step-sister, or for two genetic brothers to marry, and that is upheld based on that determination, then why can’t the legislature similarly say the same thing about all gay relationships?

Now, then the natural response would be to say, “why can’t they use the same logic to ban interracial relationship?” The answer is that there is some good reason that the issue of interracial relationships was exactly on the framers minds. Thaddeus Stevens was almost certainly in love with his “black” housekeeper Lydia Smith; and was radically egalitarian enough to be buried in a desegregated cemetery. Lincoln, mockingly said that Stephen Douglas needed a law to prevent him from marrying a black woman (not one of his finest hours). And anti-Fourtheenth-Amendment demagogues claimed it would force white women to marry black men. If the framers of the amendment thought it had no impact on marriage one way or the other, you would have expected them to say that. instead they said, more or less, this won’t FORCE anyone to marry anyone else. It’s the classic dog that didn’t bark argument.

But you can’t say that gay marriage was on their radar that way. Indeed these evangelical Christians hated gay people pretty vehemently and the only limitation on their expression of their hatred was their utter lack of concern for the issue. I can assure you that the founders would have been floored to hear that their amendment was seen as impacting the issue at all.

> Really, if you’re so skeptical about principled arguments for marriage that raise questions about incestuous marriage, I would expect you to argue against marriage for anyone.

Not at all. The courts should have given into the legislature and their right to determine what relationships were healthy. I guess theoretically that means you could ban straight marriage, but of course we know that will never happen. So the principle argument to make is for legislative deference here, but of course you can’t support that because then that means your side loses. And its all about winning at any cost for the left these days.

My point was simply that the courts need to consider one case at a time and not treat same-sex marriage and incestuous marriage as the same issue. After all, same-sex marriage bears no more significance to the issue of incestuous marriage than opposite-sex marriage (i.e. Varnum v. Brien merely expands the debate to include family members of the same sex). Yet we only seem to get caught up in slippery slope arguments when gays and lesbians are under scrutiny.

Really, if you’re so skeptical about principled arguments for marriage that raise questions about incestuous marriage, I would expect you to argue against marriage for anyone.

It was not necessary for the Supreme Court to base their decision about same-sex marriage on what it may or may not imply about incestuous marriage because, again, that is a separate question (and one that is not by any means resolved by Varnum v. Brien). Perhaps we can agree to disagree on this point.

In short i am saying, don’t worry. they are unprincipled, they are disrespecting of the limits of their power, but they ain’t crazy.

Besides i predict that by 2012, just in time for the next presidential election, Iowa will vote to fix its constitution back to its original intent. and maybe for once the arrogant judiciary will be chastened. one can hope.

I agree with you, but any time you bring “incest” into the mix, there’s going to be an issue about full and free consent. I have a really bad feeling that Scalia’s prediction in his dissent from Lawrence v. Texas is going to turn out dead on.

I have to admit I am stunned by this line:

> Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

And that would be okay with you? “We thought it was in the constitution, but we realize we goofed.” Stunning.

> In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes.

Yes, if you pretend that the constitution is merely a suggestion, a starting point that the courts can overturn like a precedent. But if you think it is supposed to mean something, then there is a problem.

> The danger of the “slippery slope” argument you have presented – and yes, that’s what it is

Not at all. Its an application of precedent argument and a reduction ad absurdum argument. We the people can say in an unprincipled way, gay relationships are okay, but incest is icky. But courts cannot. And the reasoning they have offered in allowing gay relationships would allow for gay incestuous relationships.

> we can’t decide one case without simultaneously deciding all the hypothetical others.

No, but courts must reason from principle, and there is no principled distinction you can draw between the two. You just don’t want to admit that you are reduced to an absurdity, that gay incest is not only okay, but that rule is a constitutional requirement!

> In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect

Straw man. I didn’t talk about hetero incest, polygamy or pedophilia. I talked about one subject: gay incest.

The fact is you have all but admitted they are making it up as they go along. But it is not their job to make up new constitutional rights: that is the people of Iowa’s job. This is about something much, much more than just gay marriage, which seems to be your hobby horse here. this is about whether we are a nation of men or a nation of laws. To say it is okay for the Supreme Court of Iowa to just make shit up is to say we are not a nation of laws.

But then, we haven’t been one for a while. But some of us are not conceding this fight as lost.

[by the way, if you post, don’t hit “refresh” or you will accidentally repost it over and over again.]

Did you mean to post that three times? Is that analogous to denying Jesus Christ?

I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

I think we can agree that the Iowa Supreme Court decision on same-sex marriage may open the door to legal challenges to laws prohibiting incestuous marriage, polygamy, etc. But since we are dealing with different legal questions (demanding different analyses and levels/types of scrutiny), that’s about all we can say.

In other words, Varnum v. Brien overturned a ban on same-sex marriage, not a ban on anything else. In the future, an Iowa court could determine a legal basis to uphold laws against incestuous marriage without refuting the Varnum v. Brien opinion. Or they could overturn such laws. Or, in some bizarre turn of events, they could determine, upon further investigation, that Varnum v. Brien was wrong (and they just didn’t realize it until considering very loosely related cases).

In any event, it’s not as if the judicial branch does not have systems in place to resolve these disputes. It’s what they do.

The danger of the “slippery slope” argument you have presented – and yes, that’s what it is – is that it expedites the whole process,suggesting that we can’t decide one case without simultaneously deciding all the hypothetical others. In this case, your argument assumes little or no logical distinction between same-sex marriage and scenarios like incestuous marriage, polygamy, pedophilia, etc. And that’s simply incorrect – and as gay rights activists have pointed, a wee bit offensive.

To tar this as a simple “slippery slope” argument missing the point. In law, we reason from precedent. One decision opens the door to the next and the next, and there are correct and incorect methods of legal reasoning.

So if you are going to say it is okay for the courts to innovate the iowa constitution to force gay marriage on the populace, you have to come up with a principled reason why gay incestuous marriage is not. Or fall into my real argument, the reductio ad absurdem.

That’s how courts work. The people, via their consitution or legislation, can say “A is icky, but B is not.” that is fine, no slipping down any slope. But courts can’t. Courts have to work from general principles. they have said that tradition and moral approbrium is not good enough to uphold a ban on gay marriage. then how could it be good enough to uphold a ban on gay incestuous marriage.

Of course the iowa courts won’t do anything half that crazy, and that is my point. What they did was legislative, not judicial, reasoning. Period. And that is itself lawless.

There is not a single right written in the constitution safe from that sort of activism.

To your question on something going seriously wrong with legal analysis in Varnum v. Brien, the short answer is, “No.” My off-the-cuff “analysis” of your previous question about marriage between family members is not, by any stretch of the imagination, a “legal analysis” or a substitute for a judicial opinion.

The slippery slope argument you’ve begun to make (in reference to two brothers marrying), as I said before, does not counter the Iowa Supreme Court opinion on same-sex marriage. In fact, it doesn’t even attempt to engage the reasoning in that opinion.

Secondly, whether or not a practice survives in a particular state is no indication as to its legality or morality. And that is probably why the defense in Varnum v. Brien never said, “C’mon, Judge, it didn’t work in California. What does that tell you?”

And should I even ask why you think declaring a ban on same-sex marriage as unconstitutional is suicidal?

If your analysis of the issue says we can’t stop two brothers from marrying, then isn’t that a sign that something has gone seriously, seriously wrong in our legal analysis?

The answer is that moral approbrium is a rightful reason to prevent a marriage, but guess what? then that means that gay marriage can be banned, too.

Really, the hubris here is stunning. Gay marriage couldn’t even survive in California. If there was one state in the union that would have supported it, in a year where democrats and liberals were doing well in every election, gay marriage lost. What does that tell you?

It tells you that the courts have gone too far, and that they need to stop this suicidal course.

I’m really not in a position to assess the legality of two brothers marrying each other (or marriage between family members generally). While there are elements of the reasoning in Varnum v. Brien that are applicable, I am not the slightest bit familiar with how the courts have handled this sort of issue in the past (or how they might in the future). Perhaps others will comment.

But, simply based on the way you’ve framed the issue here, I don’t immediately see a legal objection to marriage between family members (I am hesitant to say “incestual” since that word refers solely to sexual relations). But as I said, I don’t know.

Just so we’re on the same page, this particular “rhetorical grenade” does not represent a sufficient argument against legalizing same-sex marriage. You don’t appear to be employing it as such, but others certainly have.