Potential SCOTUS Nomimee

[Jape]

I guess I'll bite. How exactly would you like SCOTUS to enforce wedding vows? You want people to stay married even though they are miserable and create an unhealthy family environment?

First, SCOTUS would not enforce those vows, that would be handled by district courts. Second, you just made a huge jump based off an assumption that was never stated nor implied by me.

 

[Deleted member 18333]

I guess I'll bite. How exactly would you like SCOTUS to enforce wedding vows? You want people to stay married even though they are miserable and create an unhealthy family environment?

If works for the President they why wouldn't it work for the rest of us.

 

[Deleted member 28227]

The Roe issue is an interesting one, and you hit on the central issue: individual rights v. state interests. While I am certainly a proponent of individual rights, especially those espoused in our constitution/bill of rights, I fear that sometimes individual rights go too far in the USA. For example, no-fault divorces have been adopted in every state, and I think most of us would say they are a good thing (advance women's rights, simplified the divorce process, etc), however without the court's ability to enforce wedding vows couples now have a greater tendency to view marriage as having less societal value and marriage exclusively as a source of personal fulfillment. It’s often hard to tell when the law causes social change and when the law simply reflects social change. This is going down a rabbit hole, but I think we need to think about both holistically before we keep riding the ever expanding individual rights train.

I respect your opinion but I wholeheartedly disagree. My biggest issue with BOTH parties is their willingness to complain about restrictions on personal freedom proposed by the other party, and in the same breath propose a bunch of restrictions of their own.

Marriage in my mind is a civil mechanism, it's purely a contract between two parties and should be treated as such. There should be no discrimination about who can enter into such a contract and said contract should be able to be dissolved by both parties. Obviously, legal mechanism should be in place to protect each side.

Faith based religious vows, entirely different conversation, and one in which the government should have no part.

Stay out of my sex life, don't tell me who to marry, don't get involved in my family planning, stay out of my relationship with my creator, and allow me to protect myself and my family using the meaning I choose.

Also, Montana my wife's only value isn't her ability to create children so you can shove your Rubella test up your....

 

[SAJ-99]

First, SCOTUS would not enforce those vows, that would be handled by district courts. Second, you just made a huge jump based off an assumption that was never stated nor implied by me.

Just trying to understand what point you were trying to make. It was the example you used after saying that "sometimes individual rights go too far" and bringing up no-fault divorce.
I'm with @wllm1313, it seems like a normal contract that neither party wants to enforce or see to its conclusion (death of one party). If one party feels aggrieved by the other non-performing party, they can hire a lawyer. I'm sure any district court telling two people they can't get divorced or have to find a basis for divorce would end up on SCTOUS plate pretty quickly because you are taking away the freedom of two parties to mutually agree to break a contract. But I could be wrong.

 

[Jape]

I respect your opinion but I wholeheartedly disagree. My biggest issue with BOTH parties is their willingness to complain about restrictions on personal freedom proposed by the other party, and in the same breath propose a bunch of restrictions of their own.

Marriage in my mind is a civil mechanism, it's purely a contract between two parties and should be treated as such. There should be no discrimination about who can enter into such a contract and said contract should be able to be dissolved by both parties. Obviously, legal mechanism should be in place to protect each side.

Faith based religious vows, entirely different conversation, and one in which the government should have no part.

Stay out of my sex life, don't tell me who to marry, don't get involved in my family planning, stay out of my relationship with my creator, and allow me to protect myself and my family using the meaning I choose.

Also, Montana my wife's only value isn't her ability to create children so you can shove your Rubella test up your....

We are going down a rabbit hole on this thread that really doesn't have anything to do with Barrett and how she will help/hurt public land issues. But, to put this topic to bed, I've discussed this at length with my colleagues and several of them share the same position as you on marriage. Typically, it is the default libertarian position. I think that type of relationship can work well, especially if the parties view the dissolution of such as the dissolution of contract that should be handled efficiently and civilly. I've seen it work and I've seen it not work.

However, I think our experiences and hopes suggest it is, or can be, so much more than that. For example, Harvard Law School dean, Roscoe Pound, defined the “social interests” in family law as society’s interest in maintaining marriage as a stable social institution in which parents protect, nurture, and teach their children the qualities of character that maintain a stable society. He distinguished this social interest from what he called “the individual interests in domestic relations,” noting that “when the legal system recognizes certain individual rights, it does so because . . . society as a whole will benefit” thereby. Individual rights should only be recognized when they benefit our society, not because we should be able to do whatever to whomever we want. The obvious slippery slope is that when taken to its logical conclusion, excessive individual rights in the name of "getting the government out of our lives" often leads to actions that harm society. If we look at divorce rates in the past 70 years and the obvious toll that has taken on spouses, children, and society, what is the common denominator? Everyone can answer that for themselves, but something to ponder.

P.S. Just to make it abundantly clear, if such was not already obvious from my previous posts, this in no way detracts from obvious situations in which divorce can be very beneficial to the parties.

 

[Jape]

Just trying to understand what point you were trying to make. It was the example you used after saying that "sometimes individual rights go too far" and bringing up no-fault divorce.
I'm with @wllm1313, it seems like a normal contract that neither party wants to enforce or see to its conclusion (death of one party). If one party feels aggrieved by the other non-performing party, they can hire a lawyer. I'm sure any district court telling two people they can't get divorced or have to find a basis for divorce would end up on SCTOUS plate pretty quickly because you are taking away the freedom of two parties to mutually agree to break a contract. But I could be wrong.

No worries. Just a confusion about what the example was intended for (individual rights) and the state of current US family law.

To add some perspective, no-fault divorce was first adopted in California in 1968, and then, with some variations, over the next 20 years it became the law in every state. No-fault significantly changed the way people thought about marriage. Under the old divorce laws, married people couldn’t just choose to end their marriage; rather, they had to prove spousal misconduct—like adultery or mental cruelty. In those days people perceived the state as a party to the marriage. Therefore, only a judge representing society’s interests could determine when a divorce was justified.

As originally conceived, no-fault divorce had worthy goals. It added irretrievable marriage breakdown, regardless of personal fault, as an additional basis for divorce, which simplified divorce actions and reduced messy personal litigation. No-fault also improved how the law saw the economic interests of women. And in theory, only a judge, who represented society’s interests, could decide whether a marriage was indeed beyond repair. But in practice, family court judges began to defer to the personal preference of a couple, and eventually they deferred to whichever partner wanted to end the marriage.

So, as one legal scholar put it, no-fault divorce no longer “looked at marriage . . . as a [social] institution.” Rather, no-fault saw marriage as “an essentially private relationship between adults terminable at the will of either” without regard to the consequences for children, let alone the effect of divorce on society. Before long, judges’ doubts about society’s right to enforce wedding vows gave married couples the false impression that their personal promises held no great social or moral value, whatever justifications we may come up with.

As these new legal assumptions have blended with larger cultural swings, most Americans no longer see marriage as a relatively permanent social institution; rather, they see it as a temporary, private source of personal fulfillment. That has been proved over and over again with various social studies. So when marriage commitments intrude on personal preferences, people are more likely to walk away.

If we look at the stats, the divorce rate has doubled in the past 70 years. The US is the most divorce prone country in the world, with about half of all marriages ending in divorce. The percentage of children born into a single-parent home has gone from 9% to 26%. In a recent Times article, they showed that children in single-parent homes have less upward economic mobility than those in two-parent homes, and that children of unwed or divorced parents have three times as many serious behavioral, emotional, and developmental problems as children in two-parent families. Is it any wonder that dysfunction eventually leads to our society?

Listen, I'm not saying that there are not benefits to individual rights, and there are many nuances to the world of family law. But as Scalia said, like most rights they cannot be unlimited and they must be balanced with society's interests. If some of you disagree with me, that is great and I welcome the discourse in a PM where we won't distract from the OP's thread.

 

[Deleted member 28227]

We are going down a rabbit hole on this thread that really doesn't have anything to do with Barrett and how she will help/hurt public land issues. But, to put this topic to bed, I've discussed this at length with my colleagues and several of them share the same position as you on marriage. Typically, it is the default libertarian position. I think that type of relationship can work well, especially if the parties view the dissolution of such as the dissolution of contract that should be handled efficiently and civilly. I've seen it work and I've seen it not work.

However, I think our experiences and hopes suggest it is, or can be, so much more than that. For example, Harvard Law School dean, Roscoe Pound, defined the “social interests” in family law as society’s interest in maintaining marriage as a stable social institution in which parents protect, nurture, and teach their children the qualities of character that maintain a stable society. He distinguished this social interest from what he called “the individual interests in domestic relations,” noting that “when the legal system recognizes certain individual rights, it does so because . . . society as a whole will benefit” thereby. Individual rights should only be recognized when they benefit our society, not because we should be able to do whatever to whomever we want. The obvious slippery slope is that when taken to its logical conclusion, excessive individual rights in the name of "getting the government out of our lives" often leads to actions that harm society. If we look at divorce rates in the past 70 years and the obvious toll that has taken on spouses, children, and society, what is the common denominator? Everyone can answer that for themselves, but something to ponder.

P.S. Just to make it abundantly clear, if such was not already obvious from my previous posts, this in no way detracts from obvious situations in which divorce can be very beneficial to the parties.

Said quote from a period in American history where women weren't allowed to open bank accounts, and you couldn't marry someone of a different race etc etc.

So yeah I'm sure Pound thought the system was peachy, he had access to all the benefits and didn't have to deal with any of the problems. He could beat the crap out of his wife and she couldn't leave him. Not to say he did, I'm sure he was a fine human, but his point of view is from an ivory tower.

The obvious slippery slope to your point your making is Romania under Ceaușescu.

​

 

[Jape]

Said quote from a period in American history where women weren't allowed to open bank accounts, and you couldn't marry someone of a different race etc etc.

So yeah I'm sure Pound thought the system was peachy, he had access to all the benefits and didn't have to deal with any of the problems. He could beat the crap out of his wife and she couldn't leave him. Not to say he did, I'm sure he was a fine human, but his point of view is from an ivory tower.

The obvious slippery slope to your point your making is Romania under Ceaușescu.

​

Just because Roscoe didn't live when you did doesn't mean his take on individual rights vs. society interests isn't valid and/or correct. That is a red herring argument.

 

[SAJ-99]

No worries. Just a confusion about what the example was intended for (individual rights) and the state of current US family law.

To add some perspective, no-fault divorce was first adopted in California in 1968, and then, with some variations, over the next 20 years it became the law in every state. No-fault significantly changed the way people thought about marriage. Under the old divorce laws, married people couldn’t just choose to end their marriage; rather, they had to prove spousal misconduct—like adultery or mental cruelty. In those days people perceived the state as a party to the marriage. Therefore, only a judge representing society’s interests could determine when a divorce was justified.

As originally conceived, no-fault divorce had worthy goals. It added irretrievable marriage breakdown, regardless of personal fault, as an additional basis for divorce, which simplified divorce actions and reduced messy personal litigation. No-fault also improved how the law saw the economic interests of women. And in theory, only a judge, who represented society’s interests, could decide whether a marriage was indeed beyond repair. But in practice, family court judges began to defer to the personal preference of a couple, and eventually they deferred to whichever partner wanted to end the marriage.

So, as one legal scholar put it, no-fault divorce no longer “looked at marriage . . . as a [social] institution.” Rather, no-fault saw marriage as “an essentially private relationship between adults terminable at the will of either” without regard to the consequences for children, let alone the effect of divorce on society. Before long, judges’ doubts about society’s right to enforce wedding vows gave married couples the false impression that their personal promises held no great social or moral value, whatever justifications we may come up with.

As these new legal assumptions have blended with larger cultural swings, most Americans no longer see marriage as a relatively permanent social institution; rather, they see it as a temporary, private source of personal fulfillment. That has been proved over and over again with various social studies. So when marriage commitments intrude on personal preferences, people are more likely to walk away.

If we look at the stats, the divorce rate has doubled in the past 70 years. The US is the most divorce prone country in the world, with about half of all marriages ending in divorce. The percentage of children born into a single-parent home has gone from 9% to 26%. In a recent Times article, they showed that children in single-parent homes have less upward economic mobility than those in two-parent homes, and that children of unwed or divorced parents have three times as many serious behavioral, emotional, and developmental problems as children in two-parent families. Is it any wonder that dysfunction eventually leads to our society?

Listen, I'm not saying that there are not benefits to individual rights, and there are many nuances to the world of family law. But as Scalia said, like most rights they cannot be unlimited and they must be balanced with society's interests. If some of you disagree with me, that is great and I welcome the discourse in a PM where we won't distract from the OP's thread.

That is a point of view. But I think assigning the entire fault for divorce rates increasing to no-fault divorce is oversimplified. Lots of societal changes over the last 70yrs. And the actual data may be useful.
I can't image anyone wanting the government to decide if they can get a divorce.

 

[Deleted member 28227]

Just because Roscoe didn't live when you did doesn't mean his take on individual rights vs. society interests isn't valid and/or correct. That is a red herring argument.

His argument is incorrect because he construed "societies interests " with the interests of white Christians men. So I guess I agree with you his argument made sense to him, I'm not so sure a black women in 1880-1920 would have agreed.

"If we look at the stats, the divorce rate has doubled in the past 70 years. The US is the most divorce prone country in the world, with about half of all marriages ending in divorce. The percentage of children born into a single-parent home has gone from 9% to 26%. In a recent Times article, they showed that children in single-parent homes have less upward economic mobility than those in two-parent homes, and that children of unwed or divorced parents have three times as many serious behavioral, emotional, and developmental problems as children in two-parent families. Is it any wonder that dysfunction eventually leads to our society?"
- You are assuming a causatory relationship between variables without proving that causation. One could just as easily say the single parent home is due to the war on drugs, mandatory minimums, etc. Events that physically remove a parent from a child's life. Again that would be correlative, I have no proof one leads to another.

I don't think one can bring up a 100 year old argument and leave out everything that happened since then.

Which, is probably a good segue into how justices think about the law and a changing society. I tend to agree with the perspective that Justices shouldn't legislate from the bench should rule based on the context of the law originally and if society doesn't like it we should vote to have it changed.

 

[Jape]

That is a point of view. But I think assigning the entire fault for divorce rates increasing to no-fault divorce is oversimplified. Lots of societal changes over the last 70yrs. And the actual data may be useful.
I can't image anyone wanting the government to decide if they can get a divorce.
View attachment 156007

Again, never said no-fault CAUSED increased rates of divorce, nor did I say that there are not benefits to no-fault, or that it shouldn't be the law in every state. Of course there are many CAUSES to increased rates of divorce. My posts, and data, were pointed towards the causal effects.

 

[Jape]

His argument is incorrect because he construed "societies interests " with the interests of white Christians men. So I guess I agree with you his argument made sense to him, I'm not so sure a black women in 1880-1920 would have agreed.

"If we look at the stats, the divorce rate has doubled in the past 70 years. The US is the most divorce prone country in the world, with about half of all marriages ending in divorce. The percentage of children born into a single-parent home has gone from 9% to 26%. In a recent Times article, they showed that children in single-parent homes have less upward economic mobility than those in two-parent homes, and that children of unwed or divorced parents have three times as many serious behavioral, emotional, and developmental problems as children in two-parent families. Is it any wonder that dysfunction eventually leads to our society?"
- You are assuming a causatory relationship between variables without proving that causation. One could just as easily say the single parent home is due to the war on drugs, mandatory minimums, etc. Events that physically remove a parent from a child's life. Again that would be correlative, I have no proof one leads to another.

I don't think one can bring up a 100 year old argument and leave out everything that happened since then.

Which, is probably a good segue into how justices think about the law and a changing society. I tend to agree with the perspective that Justices shouldn't legislate from the bench should rule based on the context of the law originally and if society doesn't like it we should vote to have it changed.

In short form, I disagree with you that there are not huge societal benefits to marriage, and I think those benefits should be espoused, both privately and in the law.

The causal relationship speaks for itself. Why a single-parent household exists has nothing to do with the effect that has on individual lives, and thus eventually on society. Below are the links to the studies if you want to look at them and see the causal relationships.

Regarding a justice's approach to the bench, I agree. I prefer a mixture of originalism/textualism, similar to that espoused by Scalia/Thomas/Alito.



Alan J. Hawkins, The Forever Initiative: A Feasible Public Policy Agenda to Help Couples Form and Sustain Healthy Marriages and Relationships 19 (CreateSpace Independent Publishing Platform, 2013)

“Developments in the Law—The Constitution and the Family,” 93 Harv. L. Rev. 1156, 1248 (1980)

“Report of the Mission of Inquiry on the Family and the Rights of Children,” a study commission appointed by the National Assembly of France, 25 January 2006, 32 (English translation of commission report)

Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale L. J. 624 (1980)

Henry H. Foster Jr., “Relational Interests of the Family,” 1962 U. Ill. L. F. 493, 493

Donald S. Moir, “A New Class of Disadvantaged Children,” in It Takes Two: The Family in Law and Finance 63 (D. Allen and J. Richards eds., C. D. Howe Institute, 1999)

 

[Deleted member 28227]

In short form, I disagree with you that there are not huge societal benefits to marriage, and I think those benefits should be espoused, both privately and in the law.

The causal relationship speaks for itself. Why a single-parent household exists has nothing to do with the effect that has on individual lives, and thus eventually on society. Below are the links to the studies if you want to look at them and see the causal relationships.

Regarding a justice's approach to the bench, I agree. I prefer a mixture of originalism/textualism, similar to that espoused by Scalia/Thomas/Alito.



Alan J. Hawkins, The Forever Initiative: A Feasible Public Policy Agenda to Help Couples Form and Sustain Healthy Marriages and Relationships 19 (CreateSpace Independent Publishing Platform, 2013)

“Developments in the Law—The Constitution and the Family,” 93 Harv. L. Rev. 1156, 1248 (1980)

“Report of the Mission of Inquiry on the Family and the Rights of Children,” a study commission appointed by the National Assembly of France, 25 January 2006, 32 (English translation of commission report)

Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale L. J. 624 (1980)

Henry H. Foster Jr., “Relational Interests of the Family,” 1962 U. Ill. L. F. 493, 493

Donald S. Moir, “A New Class of Disadvantaged Children,” in It Takes Two: The Family in Law and Finance 63 (D. Allen and J. Richards eds., C. D. Howe Institute, 1999)

We disagree that the government should be involved in marriage.
We agree on the benefits of marriage.

What causes single parent households is complex, the conversation and these studies focus on 1 parent v 2 parents, that nuclear family construct is not present in lots of other cultures that live in multigenerational and multi family households.

 

[Jape]

We disagree that the government should be involved in marriage.
We agree on the benefits of marriage.

What causes single parent households is complex, the conversation and these studies focus on 1 parent v 2 parents, that nuclear family construct is not present in lots of other cultures that live in multigenerational and multi family households.

Agreed, and it is complex, as are human relationships. The 1 parent v 2 parent dynamic is very "American", and it is very different in other cultures. I spent a couple years in Southeast Asia and it is certainly a different construct than we have here, by and large. Totally get where you are coming from. My personal opinion is that there are things we can do, individually and societally (including state action), that will encourage marriage as a lasting union, which is the best environment for kids to succeed.

 

[beginnerhunter]

We disagree that the government should be involved in marriage.
We agree on the benefits of marriage.

What causes single parent households is complex, the conversation and these studies focus on 1 parent v 2 parents, that nuclear family construct is not present in lots of other cultures that live in multigenerational and multi family households.

By "multigenerational", I assume a culture where children are raised by mother and father and grandparents. I would lump that in with what I call a "nuclear" family.

When I hear people say "non-nuclear" I think they are implying a structure where outcomes are equal between 1 and 2 parent households. But I dont think those outcomes are strictly due to time and money. I believe men and women have particular strengths and weaknesses and values to impart to children. My grandparents had a significant hand in raising me, still think of us as a "nuclear" fam.

I know plenty of amazing people raising kids by themselves or in a "non-nuclear" fashion. I know plenty of people raised in those environments with great outcomes. Also plenty of POS raised by two parents. This is not meant as a slight on anyone. Just what I believe is the ideal situation.

 

[88man]

Do we know if she hunts/goes fishing/shoots ??? What about her husband or Father?

 

[BWALKER77]

Though to be fair to old school feminists, if not for them you literally wouldn't be allowed to vote, own property, have a credit card/bank account, make decisions about your body, etc. Those parts specifically were the fault of the male population.

There are still vestiges of the "you must choose" inherent in the system. One of our friends got pregnant during medical school, had the baby on Thursday and was told she was expected in class on Monday or would have to retake the year, she was allowed to bring her child to class. I think that sort of systemic issue is what those old school feminists are alluding to, it's not a you can't, it's that men designed the system not taking into consideration women and therefore the system can seem to force women to have to choose. She could have taken a year but that's a serious financial hit, and adds time to an already ridiculously long road, no man is forced to make that choice. That specific individual is a bad ass and brought her child to class and became a surgeon.

I agree though heck of a role model for anyone, talk about tenacity.

That was her choice to get pregnant. Standards should not be relaxed for something like a doctors education for such choices.

 

[Deleted member 28227]

That was her choice to get pregnant. Standards should not be relaxed for something like a doctors education for such choices.

I’m tapped out on this thread.

 

[BWALKER77]

I’m tapped out on this thread.

It's called personal responsibility. I also realise that its anathema to many. Especially those from the center to left.

 

[406dn]

It's called personal responsibility. I also realise that its anathema to many. Especially those from the center to left.

That's a hoot. Starting from the top,,,,, most would say that our POTUS places blame anywhere rather than taking any for himself. I also like the misspell when preaching personal responsibility, nice touch.