January 13, 2016
In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates
In this post right after the Supreme Court’s landmark marriage ruling in Obergefell v. Hodges, I asked in my post title “Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?”. To date, I have not yet seen many stories suggesting post-Obergefell prison problems. But this local Alaska story, headlined “Bill would ban prison marriages, but not for the reason you think,” suggests the Last Frontier could be one of the first states to change its prison marriage laws since the ruling. Here are the basics:
In his younger years, Anchorage Republican Rep. Bob Lynn served as a police officer in Tucson, Arizona. Last year, when the U.S. Supreme Court legalized same-sex marriage nationwide, that decision and Lynn’s firsthand experience merged in his mind.
On Friday, Lynn introduced House Bill 218, which would prohibit marriages at the state’s prisons. Lynn said the bill is a matter of fairness. If a same-sex couple falls in love within a prison’s walls, he doesn’t want them to have the ability to get married and share a cell with their spouse. “We’ve got a lot of prisoners who have a spouse outside the prison,” he said. “That’s not fair to them where somebody in the jail can have their spouse in there.”
Lynn said the bill would apply to same-sex and heterosexual couples alike; a person would not be able to get married to an inmate on prison grounds….
To accommodate a married same-sex couple who commit a crime together, Lynn’s bill includes a provision that would prohibit the Department of Corrections from putting the couple into the same facility. It also toughens the ban on conjugal visits — currently a regulation of the department — by putting it into law. That makes the ban tougher to overturn.
I suppose I can (sort of) see the logic of wanting to preclude two convicted spouses from being able to live together while serving their prison terms, but I have a hard time fully understanding why that concern would or should justify a blanket prohibition on allowing prisoners to marry the person of their choice if that other person also happens to be in custody. And because the Supreme Court has long suggested that only “legitimate security concerns” can justify “placing reasonable restrictions upon an inmate’s right to marry,” I could readily see a successful constitutional challenge to this blanket prisoner marriage ban if it were ever to become the law in Alaska.
January 13, 2016 at 02:36 PM | Permalink
Comments
Yes, the provision at best overboard.
The concern is not novel — e.g., the integrated by sex military raises the possibility of married personnel being on the same base or married couples of different ranks being in service at the same time. This could also be a concern in the militia and other places.
The reality of the situation also is people will continue to be “couples” in prison even without a right to marry. Marriage would actually yet again promote conservative purposes in various ways (various conservatives support same sex marriage for that very reason) since it would be an explicit reason to separate inmates.
Posted by: Joe | Jan 13, 2016 2:54:01 PM
Overbroad too.
Posted by: Joe | Jan 13, 2016 2:54:37 PM
There’s also a potential for prisoners to force other prisoners to marry them, which would make it harder to prevent prison rape and might also endanger the forcibly married prisoners’ assets. There’s enough potential for abuse in a prison setting that a ban on inmate-inmate marriage makes sense.
What I don’t understand is the ban on conjugal visits – what’s that supposed to achieve beyond gratuitous pettiness?
Posted by: Jonathan Edelstein | Jan 13, 2016 4:04:05 PM
“potential for prisoners to force other prisoners to marry them, which would make it harder to prevent prison rape”
This seems a bit of a reach. The prison rapist is likely to not go to that much trouble, including leading to their own assets affected as well as the other responsibilities of marriage. Again, they don’t have to ban marriage in that case. It makes perfect sense to separate married couples; thus, marriage can inhibit rape.
and might also endanger the forcibly married prisoners’ assets
Will the ban be applicable to any party that might in some fashion be possibly subject to coercion such as relatives of prisoners? Is this only applicable to prisoners?
I don’t really know how much the assets would in fact be endangered and again a total ban of marriage should not be necessary. Since this is a protected liberty interest, merely making some sense doesn’t seem to justify a total ban under Turner v. Safley.
Posted by: Joe | Jan 13, 2016 11:40:21 PM
Inmates should be denied the “right” to get married–whether it is same sex or not.
Posted by: Beldar From Remulak | Jan 14, 2016 2:08:02 PM
Gay marriage. Not a gay idea. A lawyer idea. Family law is nearly dead, as only a suicidal fool, who is a productive male, would get married.
Gay median income is a full standard deviation higher than the average heterosexual income. That means a gay person making more than 50% of other gay people and less than 50% of other gay people is making more than 84% of heterosexual people.
Being gay, competent, and rich, does not make one a suicidal fool. In countries that have had gay marriage for a decade, very few gay people are falling for that lawyer trap.
So House Bill 218 is a pointless gesture.
Posted by: Supremacy Claus | Jan 15, 2016 8:05:20 AM
I’m not sure I follow the premise. Why do inmates marrying grant them the right to share a cell together?
Posted by: Erik M | Jan 15, 2016 7:20:20 PM