Rod Dreher

Status Anxiety & Transgender Tots

Prison Brides

By Rod Dreher • May 21, 2012, 5:27 PM

A Steve Sailer reader poses an interesting question:

It seems to me that one of these days, we’re going to run into another collision of “rights”, and it will be very interesting.

Prisoners have the right to marry in every state.

Gay marriage is legal in several states, and it won’t be long until it’s legal everywhere in the US.

So what will happen when two cellmates apply for a marriage license? On what basis will the prison be able to deny it?

Another reader asks what implications this would have for the legal principle that a spouse cannot be forced to testify against his or her spouse.

Anybody know the answer? How are states where SSM is legal dealing with this issue?

34 Responses to Prison Brides

Liam781 says:

May 21, 2012 at 4:55 pm

While a 1987 SCOTUS ruling recognized that states could not unduly infringe on a prisoner’s right to marry someone outside prison, that does not extend to marriages between prisoners.
Jamie Carroll says:

May 21, 2012 at 5:08 pm

that’s true now for hetero couples that commit crimes together. what’s your point?
Ax23 says:

May 21, 2012 at 5:14 pm

How is this an interesting question? What’s wrong with letting cellmates marry? Why should the prison deny this?
turmarion says:

May 21, 2012 at 5:39 pm

Here you go (politically incorrect in all ways and waaayyy not safe for work!).
JohnE_o says:

May 21, 2012 at 5:47 pm

— yet it’s conservatives who are routinely derided for their “obsession” with this stuff

Maybe there’s a reason for that…
grendel38 says:

May 21, 2012 at 5:48 pm

I don’t see the advantage of one prisoner marrying another, so I’m not sure what the problem is. Even if you married another prisoner I doubt the prison system has any obligation to keep you together. Considering the lack of privacy even between cells and that some cells house more than two people, I doubt marriage would have much impact on the prison’s prohibition of sexual contact between prisoners. So I really don’t see the issue.

As for marital privilege, I would not expect any changes.

I might add that am writing from Canada which has had same sex marriage foe close to a decade. I’ve never heard of cell mates marrying each other, so it doesn’t seem to be much of a real world problem. Marital privilege has been extended to all married couples without problem.
William says:

May 21, 2012 at 5:56 pm

Why should the prison deny it? Why not look at ways that same-sex marriage can stabilize prison life and improve the lives of prisoners, rather than just trying to think of a way to deny it?
MattSwartz says:

May 21, 2012 at 6:03 pm

In a similar vein, if I were a (presumably amoral) mafia kingpin, I would get all of my goons gay-married to one another, so that they wouldn’t be able to make them testify against one another in court.
JonF311 says:

May 21, 2012 at 6:28 pm

Re: Another reader asks what implications this would have for the legal principle that a spouse cannot be forced to testify against his or her spouse.

Actually that’s not really true, though it’s a very common myth. A spouse only has immunity from testimony in matters involving the marriage bed. If a wife witnesses her husband murder someone no where the bedroom she can be suppoenaed to testify.

In any event I am not sure why that particular detail would matter even if it were wholly true. Nothing stops heterosexuals from contracting loveless marriages of convenience for all sorts of dishonest and maybe even illegal reasons today. If this has not been a huge problem for us, why would the addition of a realtively small number of gay people to the marriage pool cause insupportable difficulties?
RodDreher says:

May 21, 2012 at 6:59 pm

Is there anything gay marriage cannot do? If only Palestinian men and Israeli men could marry each other, there would be peace in the Middle East!
Hope says:

May 21, 2012 at 7:13 pm

This strikes me as another “OMG, I just thought of something ELSE awful that could happen if SSM is legal.” Yawn.
The_Ghost_of_Jaybird says:

May 21, 2012 at 7:20 pm

In any event I am not sure why that particular detail would matter even if it were wholly true. Nothing stops heterosexuals from contracting loveless marriages of convenience for all sorts of dishonest and maybe even illegal reasons today. If this has not been a huge problem for us, why would the addition of a realtively small number of gay people to the marriage pool cause insupportable difficulties?

Yeah, I guess Sailer intended his post as some sort of relevatory “Betcha didn’t think about this angle liberals, huh, huh!?!?!” gotcha-question, but I don’t really see what the big problem is here either. If gays can get married like every one else, why would it matter if they’re in jail or not, since that doesn’t matter for anyone else?
SecularMisanthropist says:

May 21, 2012 at 7:29 pm

Massachusetts treats SSM identically to heterosexual marriage. So they would allow spousal visitation (but not conjugal visits). So they would likely separate the two prisoners to treat them the same as a heterosexual couple.

In spite of all the noise SSM is a rare occurrence at 0.82 percent of Massachusetts marriages over the past eight years. The probability of housing two compatible gay prisoners in the same cell, who want to be married is likely close to zero. So I doubt it will ever be an issue.
William says:

May 21, 2012 at 7:45 pm

We’ve tried everything else, why not?
SiarlysJenkins says:

May 21, 2012 at 8:48 pm

Sailer correctly points out that this would be a matter of state law.

IF a state chooses to license same-sex couples as a marriage (by no means a foregone conclusion, certainly not in, e.g., North Carolina) and,

IF a state allows people who are already in custody to marry, and

IF a state allows (a) family visits, with or without sufficient privacy to make the visits conjugal, and,

IF the state allows married prisoners to share their own private cell…

…then apparently the state finds no harm in all of that.

Sailer misappropriates the phrase about a collision of rights. What rights are in collision with the scenario he imaginatively offers? Security concerns, perhaps, and those can legally infringe the rights of prisoners who have been deprived of liberty by due process of law, but rights? What rights?

This is as superfluous as the specious argument that if gays have a right to privacy, then incest is legal too. http://siarlysjenkins.blogspot.com/2005/08/no-virginia-there-is-not.html
Public_Defender says:

May 21, 2012 at 8:57 pm

Someone already posted the authority, but the summary is that prisoners have a right to marry, but subject to the legitimate security needs of the prison. So wardens would have a decent amount of leeway. Also, a marriage certificate would not change the strict ban on any kind of sex in prison. A married couple could be (and almost certainly would be) separated, possibly to different prisons.

As to marital privilege, the person who said it’s limited to issues concerning the “marital bed” is either wrong or living in a state with an oddball rule. The rule is quirky, and it changes from state to state, but I have never seen the “marital bed” limitation.
Beyng says:

May 21, 2012 at 9:21 pm

Uh, because a) spousal visitations rights/conjugal visits are stringently regulated for heterosexual couples, so living together would seem to pose a disciplinary problem and b) it would be a good way for prisoners to silence certain damning witnesses. Your cellmate heard some stuff about you? Maybe you can “convince” him to marry you.
Beyng says:

May 21, 2012 at 9:23 pm

Maybe. But there will be fewer unintended consequences from a hastily conceived policy if we actually pause to consider what the unintended consequences might be.
sealawr says:

May 21, 2012 at 9:42 pm

Under California’s registered domestic partnerhsip law, the partners are extended the same privilege that married spouses possess. There are no problems.

Courts deal with “sham” relationships all the time, so I don’t expect too many instances of sham marriages to avoid unpleasant testimony.

There is no conflict between gay marriage and prison. Prisoners have their rights limited. Certainly, we all agree that ”liberty” is one of the most fundametal rights that a human being can enjoy, yet that is the one most impacted by serving a prison sentence. All other prisoner’s rights can be circumscribed for safety or for punishment, limited only by the prohibition against cruel and unusual punishment.

I actually find this a little amusing–we have standing jokes in this country about prison rape (“Hope [insert sentenced celebrity's name here] gets “Bubba” for a cellmate!”) which is estimated to be widespread and rampant. The fear of prison rape may be one fo the best deterrents for mostly law abiding males.

Yet, we tolerate this violent crime, we implciitly encourage it and even joke about it, wishing it upon our enemies who have the misfortune to go to prison. Can we be any more depraved?

Why dont’ we stop the very real problem of prison rape before we go looking for hypothetical and easily managed “non-problems” such as gay marriage’s impact on our swollen prison population?

Just a thought.
Christopher Larsen says:

May 21, 2012 at 9:45 pm

So when one moves from the world of fanciful and theoretical commentary to the empirical and factual, there is no evidence that SSM has led to any social disruptions in Canada. In other words,our friends to the North have found that the negative impact of SSM after a decade is zero!
grendel38 says:

May 21, 2012 at 10:27 pm

Ten years in Canada and prison marriages haven’t been a problem yet. I doubt theyre going to prove a problem in the US either.
TWylite says:

May 21, 2012 at 11:00 pm

It’s a floor wax! It’s a dessert topping!
Ben says:

May 21, 2012 at 11:17 pm

” b) it would be a good way for prisoners to silence certain damning witnesses. ”

This is the status quo. As it is, any unmarried adult male or female can marry an unmarried adult of the opposite sex in order to silence a damning witness. If this were a real problem, instead of a fake problem brought up as an “unintended consequence” of same-sex marriage, we would have dealt with this problem already. As it is, our society has deemed it fair to protect one spouse from testifying against the other. As it stands, it is unreasonable and unfair sex discrimination that members of committed same-sex couples can be compelled to testify against each other while married heterosexual spouses cannot.
Mitchell says:

May 22, 2012 at 12:02 am

As Steve’s commenter wrote

“And couldn’t this conceivably lead to bigger, stronger inmates forcing weaker ones into “marriages” against their will? Will young white prisoners be the new “trophy wife”? ”
[Yes, young white prisoners are disproportionately sexually exploited in prison.]
Dave Dutcher says:

May 22, 2012 at 1:00 am

One problem is that you can’t segregate people by sexuality in prison. So we’d have the unique situation of two people being married and living as husband and husband in the same jail. It would be hard to fight off court cases for preferential treatment if not just for safety’s sake.

I don’t think it would be an issue, but also, with both prisoners in jail, what happens if they petition for the right to have a child through a surrogate? Is it possible to deny them the right to father children due to this, when hetero people can? I think there are issues, but apart from nuisance suits or test cases I don’t think we’d see a lot of this.
grendel38 says:

May 22, 2012 at 9:52 am

What happens if a female prisoner today petitions for the right to have a child using her husband’s sperm?

And I fail to see why a prison system would have any obligation to house to married prisoners in the same cell, let alone the same prison.

All of this smacks of bad adolescent humour.
alkali says:

May 22, 2012 at 11:31 am

In Massachusetts, inmates who are residents of the same facility are not permitted to marry. So that’s the answer.
Floridania says:

May 22, 2012 at 11:59 am

As long as we’re playing “what if,” how about if a SSM couple in, say, Iowa were both arrested for a crime? What to do then?

Almost makes your head explode!
pinkjohn says:

May 22, 2012 at 12:00 pm

I’m sure that policies could be developed to deal with this if it indeed becomes an issue. But there is an issue right now that is being dealt with haltingly and inconsistently and that is prison rape. It’s always treated as a joke in our culture but it is not funny. Check out Just Detention International, founded by an activist incarcerated for civil disobedience, raped in prison, contracted HIV and died of AIDS after founding the organization. http://www.justdetention.org/
Public_Defender says:

May 22, 2012 at 2:17 pm

Do any states really permit conjugal visits? Or is that just a myth?
ChurchLady108 says:

May 22, 2012 at 5:37 pm

As alkali said above, they don’t let married prisoners be in the same jail. So two prisoners could get married, but if they do, one has to be transferred to a different jail.
grendel38 says:

May 22, 2012 at 8:10 pm

I know Wisconsin does — or at least did back in the mid-90′s. I went to law school there and did a clinical with Legal Assistance to Institutionalized Persons. I worked with female inmates at the same facility that “Bambi” Bambenek was incarcerated at (remember her?) They had a separate little building, not much more than a glorified garden shed, that served for conjugal visits.
stanwright says:

May 23, 2012 at 12:58 am

The obvious solution is a policy that permits marriage, but prohibits married couples living in the same facility.

They can get hitched, but then someone’s gonna be moving out.
Sean Nelson says:

May 23, 2012 at 1:03 am

No kidding. At the Defense Language Institute in the late 90′s, I knew a gay male couple and a gay female couple (servicemembers all) who fake-married each other’s partners, took their large housing allowances and moved to a big house in Monterey where they pretended to sleep in other rooms.

Which would have been a bigger deal if the marriage for benefits racket weren’t already so well-established in the military, especially at what was jokingly called the “Defense Love Institute” for the frequency with which young heterosexual soldiers paired up, only to divorce within a year. (I knew one girl whose name tag changed four times in less than a year and a half. Maiden, married, maiden, married, and maiden once again.)

But watch: when the gays do it, it will be because they “cheapened” the institution.