At Volokh, Dale Carpenter offers what seem like some some very weak potential arguments for drawing the line at gay marriage, but not polygamy.
*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.
The ban on gay marriage is sustained not by solemn policy arguments, since there is no actual hard evidence on either side. It's a social taboo that rests on Burkean principles: no society we know of has ever had gay marriage, which maybe ought to tell us something. The legal ban on interracial marriage was a local phenomenon in the South, and the laws were invalidated by a court with a northern majority. Once you have established that society's ideas about what constitutes a valid marriage are not a relevant consideration, I find it hard to see how you can forbid a marriage just because one of the partners happens to also be married to someone else.
*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.
This seems back assward. The fact that no society we know of has ever had gay marriage is not a Burkean argument for it. The law of averages being what it is, we are probably not the first culture to ever think of the idea. So if it isn't around, this suggests that societies which tried it either didn't survive, or abandoned the practice.
*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).
Huh? How does having more than one wife make a guy more likely to beat his kids? To be sure, polygamy tends to be embedded in societies that tolerate more wife beating. But the polygamy is not the cause of the beating. To make this assertion stick, you'd have to have some evidence that abusive husbands are more likely than others to take more than one wife.
On first glance, the argument seems kind of plausible: husbands who come from cultures that tolerate spousal abuse will be more likely to engage in polygamous marriage. But think about this. The women in abusive marriages to those men are almost certainly going to be from the same culture, the children of conservative parents. They wouldn't be allowed to marry outsiders anyway; plural or single, they'll end up wed to someone who might have been raised to think its okay to slap your wife around once in a while.
*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts them.
When opponents of gay marriage argued that marriage should be kept for men and women because it was fundamentally about reproduction, opponents said "Bosh! If that's so, how come we allow infertile people to marry?" This argument merits the same response. If it's so unfair that some men will be left without wives, how come we don't force women to marry them? Because that's an outrageous violation of human liberty, that's why. How much better is it to force women to choose between remaining single, or marrying their second (or third, or nineteenth) choice husband, so that said husband may have all the benefits of married life?
It is not possible to increase, on net, the number of marriages in the country in this way; it is capped at the number of women. Polygamous marriage of the type Carpenter describes contracts the marriage opportunities for some men, while expanding them for other men and most women. Indeed, mathematically, the number of marriage opportunities almost certainly expands under this system, since it puts married people back on the dating market.
Polygamy might decrease the number of married people. On the other hand, it might also decrease the number of single people, since a gender imbalance in the numbers of even marginally tolerable mates will result in some people being forced to remain single. Since my understanding is that men die younger and are more likely to be severely cognitively disabled, this probably relieves a burden on women.
*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.
I'm no lawyer, so I'm probably missing something important here. But the question of what to do if he dies intestate seems obvious: split the spousal share among the wives, and the children's share among the children. In the case of the polygamous marriages discussed above, the question is easy; the husband is married to each of the wives individually. In the case of more complicated marriages, presumably the marriage ends if all parties want it to, and goes on if some want to stay, with a division of marital assets along basically the same lines we use now. I think the hardest question is what to do with children who may have multiple fathers, but of course, genetic paternity can always be established, or joint child support requirements. These are issues that need to be settled, but they don't seem like things that can't be settled.
Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.
Ultimately, I think the gay marriage debate made us ask "What is marriage for?" And the answer we came up with is "Dunno, whatever you want, I guess." Having said that, I don't really see grounds on which we can ultimately deny polygamous couples groups the same right.
Let me be clear that this is not some backdoor argument against gay marriage. I frankly don't see why legal polygamy should be any worse than gay marriage. Which is good, because I'm pretty sure we'll see it within the next few decades.
"The legal ban on interracial marriage was a local phenomenon in the South"
Not quite. My parents have a good friend whose own parents got married in Mexico, as they were not able to do so in California. She was white, he was Filipino. This was in the 1920s or 30s.
Mark Steyn's terrific piece on this subject, which convinced me precisely the opposite of what I think his point was.
I can't believe you wrote this:
"The law of averages being what it is, we are probably not the first culture to ever think of the idea. So if it isn't around, this suggests that societies which tried it either didn't survive, or abandoned the practice."
Its astonishing how much you feel you can assert without evidence.
"How does having more than one wife make a guy more likely to beat his kids?"
Because polygamy is misogynistic.
Also, I can't believe you wrote this:
"The ban on gay marriage is sustained not by solemn policy arguments, since there is no actual hard evidence on either side."
Have you ever read Andrew Sullivan's blog? Are you THAT ignorant about the debate? Those against gay marriage have argued that the legalization of gay marriage threatens THE SANCTITY OF MARRIAGE. You never heard that phrase? The response to this stupid claim is to: 1)ignore it because its stupid 2) show how, when gay marriage was legalized in Scandinavia, rates of divorce and marriage rates among heterosexuals did not change. Only those against gay marriage are against hard evidence.
Ultimately, I think the gay marriage debate made us ask "What is marriage for?" And the answer we came up with is "Dunno, whatever you want, I guess."
What about encouraging sexual fidelity as a response to the AIDS crisis and legally legitimating existing relationships.
Too bad we can't adopt our friends so they could visit in the hospital, etc.
Doesn't one usually take the phrase "ass backward" and transform it to "bass ackward" to make it more family-friendly -- as opposed to "back assward"? ;)
Also, there is a difference between polygamy, which is not inherently misogynistic, and the polygyny and associated elements of the various religious sects that have pursued the practice since the time of Brigham Young. Polygamy is not inherently misogynistic even if the various practices of, say, the FLDS church certainly are.
There will always be people with weak arguments against equality. Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with gay marriage check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: www.OUTTAKEonline.com
You posted this just to invite an avalanche of comments, right?
The ban on gay marriage is sustained not by solemn policy arguments, since there is no actual hard evidence on either side. It's a social taboo that rests on Burkean principles: no society we know of has ever had gay marriage, which maybe ought to tell us something.
Same-sex marriage has been legal in Scandinavian countries for well over a decade. The social taboo you refer to does not "rest on Burkean principles". It rests on a horror of otherness: a psychological resistance to the idea that identity-constituting institutions you are part of could be identical with those you consider yourself ineradicably different from. People oppose gay marriage for the same reason lo-fashion punk rockers used to spray-paint "Die Fake Punks!" in rage at mohawked, teased, studded hi-fashion punks. It threatened to spoil their thing. But punk is not a legal status bequeathed by the US government; if it were, it would be unlawful to deny it to so-called "fake" punks.
Until 1946, women in France could not possess bank accounts. This was wrong regardless of the fact that French society considered a bank account to be something for men, not women. The extension of the right to possees bank accounts to women did not mean there were no reasons left to argue that dogs should not be able to open bank accounts.
There is no inherent benefit to the state in polygamy as there is in marriage. You glossed over the fact that you would have large numbers of single males with no sexual outlet or means to legitimately reproduce and have children. Sounds like potential for chaos to me.
Steve
I think you misunderstood Prof. Carpenter's argument in a couple of places.
This seems back assward. The fact that no society we know of has ever had gay marriage is not a Burkean argument for it.
Carpenter isn't arguing that this is an argument for same-sex marriage. He's arguing that, while there might be a Burkean burden of proof against same-sex marriage since it's never been tried, there's a higher burden against polygamy, since it's (according to the argument) been tried and found wanting.
If it's so unfair that some men will be left without wives, how come we don't force women to marry them?
Again, Carpenter's argument isn't that it'll be unfair that some men will be left without lives. It clearly seems to be that there are negative societal consequences to having large numbers of unmarried men in a society. Hence, the sentence "And unmarried men present all kinds of difficulties for societies."
I think it'd be worth your while to read or re-read Carpenter's Burkean case for gay marriage.
I think you misunderstood Prof. Carpenter's argument in a couple of places.
This seems back assward. The fact that no society we know of has ever had gay marriage is not a Burkean argument for it.
Carpenter isn't arguing that this is an argument for same-sex marriage. He's arguing that, while there might be a Burkean burden of proof against same-sex marriage since it's never been tried, there's a higher burden against polygamy, since it's (according to the argument) been tried and found wanting.
If it's so unfair that some men will be left without wives, how come we don't force women to marry them?
Again, Carpenter's argument isn't that it'll be unfair that some men will be left without wives. It clearly seems to be that there are negative societal consequences to having large numbers of unmarried men in a society. Hence, the sentence "And unmarried men present all kinds of difficulties for societies."
I think it'd be worth your while to read or re-read Carpenter's Burkean case for gay marriage.
It is clear that polygamous arrangements would present novel questions relating to basic issues of family law: who can be married? how do they get married? what happens if someone gets sick? what happens if someone dies? what happens if someone wants to leave the marriage?
I don't necessarily disagree that there are ways of answering these questions, but I'm not sure that there is a single, obviously right answer to all of those questions. It certainly wouldn't surprise me if proponents of such arrangements disagreed about what the answers were. (To the extent I've heard proponents of polygamous arrangements make suggestions about what the answers to those questions should be, and I freely admit I haven't looked into it much, the answers have tended to be along the lines of "whatever rules the participants want to make up," which would be a vast departure from current law.)
This matters a lot to the institutional argument that Prof. Carpenter is making. If you are asking specifically about whether there is a slippery slope to legal recognition of polygamous arrangements through the courts, then it is a very significant fact that there is no self-evident solution to all those legal problems. If a court can't provide relief, it generally won't.
For: Civil rights/equality/privacy rights, Fidelity/reduction in STDs, benefits group
Against: Asserted to encourage better adoption practices, removes focus of marriage from producing kids, moves towards discrimination lawsuits if churches don't want to accept openly gay staff etc., Untested, Male same sex unions rarely monogamous, Male same sex marriages have shorter duration
Dammit, sorry for the double post. Was trying to correct a typo.
broosfoe: Same-sex marriage has been legal in Scandinavian countries for well over a decade.
In point of fact, it's not legal in any Scandinavian country. It's been legal in the Netherlands for about seven years now.
Against: Same sex marriage might not produce same reduction in male violence/aggression as traditional marriage.
The most obvious argument against the slippery slope to polygamy is that, unlike gay marriage, there aren't large number of people looking for group marriages.
If you assume that homosexuality is present in 4-8% of the population, then you have, in the U.S., 12-24 million people who are plausibly interested in the availability of gay marriage. If it were legalized across the country, you could plausibly expect to see hundreds of thousands, if not millions, of gay marriages. That in itself is an argument for gay marriage--a million more marriages doesn't seem like a bad thing, especially if they wouldn't occur otherwise; and a constituency that numbers at least 12 million with a major grievance is, on the surface at least, a real problem just in terms of numbers.
But there's no corresponding polygamy movement. There are only a few fringe actors, and those tend to be geographically and culturally isolated. Unlike same-sex marriage, there's simply no real demand for polygamy. Simple inertia protects marriage as a duopoly.
In the US, all men and all women of any sexual orientation are allowed to marry members of the opposite sex (of legal age and not too closely related). What is proposed is to allow all men and all women of any sexual orientation to marry members of the same sex.
The ability to marry or not marry in both cases is not predicated on the sex or sexual orientation of the individuals involved, so I think arguments based on an assertion of discrimination seem weak.
As I understand it, all in the US are prohibited from marrying siblings or first cousins. If a desire to marry first cousins was strongly associated with a particular ethnic group, would a claim of ethnic discrimination carry weight as an argument to allow all to marry first cousins?
Raghav, I haven't misunderstood him. The Burkean argument for same sex marriage is not better than the Burkean argument for polygamy; it is worse. Whether we should evaluate gay marriage on Burkean principles is a separate question. But I really, really, really don't see how you can assert a higher bar for polygamy than same sex marriage.
On the other question, I go back to the arguments over same sex marriage: if it turns out that same sex marriage is mildly bad for society (just assume it arguendo), are we entitled to ban it? Proponents pretty much answered this question "no". Likewise, if marriage is so great that we are entitled to use coercion to give more males access to it, why shouldn't we use coercion to make single women get married? I don't think you can really get around the notion that society's benefit requires that women not be able to marry whom they choose. Which is what gay marriage supporters objected to in their opponents' arguments.
There's also the assumption that polygamy will take the nastiest possible form: exclusively abusive polygynies. This is a pretty heroic assumption. There's no proof that polygamy would make us worse off.
What compelling interest is there for heterosexual marriage? Marriage should have the same legal basis as other contracts between one or more people. The solution is to do away with what is known today as heterosexual marriage.
Free people should be able to enter into contracts of their choosing with other free people.
I haven't read Carpenter's original piece, so forgive me if this is dealt with elsewhere, but it seems as if my favorite Librtarian is confusing the Society with the State. As a society, we have gay marriage. Ceremonies happen all the time. I am certain countless other societies have had same-sex partners ritually committed into monogamous unions.
As a nation, we grant special legal status to couples with a state-certified marriage. Extremely few nations have officially certified same-sex unions.
The more likely historical argument is that there has almost never been a society in which a)same sex couples lived in marriage-like arrangements, and B) The difference between the government provided priveleges and protections for officially sanctioned relationships and those for non-licensed relationships was great enough to motivate a movement.
Megan,
A brief note on your response to the "rules of marriage" argument, which I think is Professor Carpenter's strongest:
Carpenter doesn't go into much detail here, but there are lots and lots and lots of practical legal problems that polygamy raises and same-sex marriage doesn't. He only named two or three, but consider:
* Who would retain custody of children at the end of a plural union? The biological parents only? Would co-spouses have visitation rights?
* Could a group of many people obtain testimonial privilege in court (the right not to testify against one's spouse) simply by entering into a giant plural union?
* How would we tax members of plural unions? (If you think the "marriage penalty" is complicated now....)
* If four members of a five-member plural union died, would the remaining survivor be eligible to retain all their Social Security benefits or work pensions? Where would we draw the line?
* Could I marry ten foreign nationals and bestow citizenship via marriage on all of them?
The point is not that answers to these questions cannot be crafted, as you have suggested -- it's that a court could not blithely declare a right to polygamy without running into a thicket of practical problems. Polygamy would require changes to basically *every* aspect of marriage under the law -- a hypothetical bill legalizing polygamy would have to be hundreds of pages long.
I suspect that the endless string of practical problems poses an insuperable barrier to the legalization of polygamy by a legislature, but I'm certain it poses an insuperable barrier to legalization by a court.
" ... Free people should be able to enter into contracts of their choosing with other free people. .."
Exactly! Can somebody please explain why marriage (especially when there are no children involved) should be any of the Government's [expletive-deleted] business in the first place?
Here's a map of the states that didn't allow interracial marriage.
http://www.lovingday.org/map.htm
The date is set at 1900, but you can go back & forth and see that even some New England states at one time did not allow interracial marriage. California only legalized it in 1948 - I would have thought you'd known that, considering how important that case was in influencing the current one.
On the other question, I go back to the arguments over same sex marriage: if it turns out that same sex marriage is mildly bad for society (just assume it arguendo), are we entitled to ban it? Proponents pretty much answered this question "no".
I don't know any proponents who've actually answered that question. If that were so, why would they insist that it would not, in fact, have bad effects on society?
Likewise, if marriage is so great that we are entitled to use coercion to give more males access to it, why shouldn't we use coercion to make single women get married?
But where did anyone argue that we're entitled to use coercion? When the state recognizes a new type of contractual relationship, we usually don't say that's coercion. But most of us are prepared to admit that there should be some sort of side-constraint against forcing women to get married against their will, even if the social consequences would be positive (and I'm not sure many people would agree that they would be).
This is how I understood Prof. Carpenter's argument: recognizing polygamous marriages will result in a certain number of men who would otherwise have gotten married not doing so. That's a bad thing not because it's unfair or it coerces anyone (in ways we're not prepared to countenance), but because unmarried men are prone to social problems, like crime.
I have no particular problem with polygamy if everyone in the marriage is married to everyone else. If a married couple (gay or straight) wants to jointly marry a third person and add him or her to the family, with all the adults involved equally married to all the other adults, that doesn't bother me. There would have to be a way to pro-rate death benefits and insurance coverage, because I don't think someone with two spouses should get more from government or an employer that people with one spouse. (For that matter, I don't think single people should get less.) But that seems like a straightforward problem, especially because the two surviving spouses could take care of each other.
I doubt that too many people would take advantage of this model. It's hard enough to find two people who get along well enough to get married, much less three. Or more. But for those who can, why not let them?
In constrast, I don't think we should permit polygamy if it takes the form of one person marrying a whole lot of other people, without those other people marrying each other or even necessarily consenting to the addition of the extra spouses. That seems to be a recipe for oppression no matter where it exists. In places where a man (it's usually a man) can have multiple wives, he gets all the resources of each wife while each of the wives gets only a fraction of the husband's. This is unfair -- polygamy only makes sense if all share equally in the common resource pool.
The reason that gay marriage is being legitimized, while polygamy has not, is because the assumption used to be that gay people were weird and dysfunctional, and we were worried about weird and dysfunctional people living next to us and raising weird and dysfunctional families next to ours. But gay people have made a pretty strong argument that this isn't the case. Polygamists haven't. They're still considered weird and dysfunctional, and as long as they remain so, society will continue to disallow their way of life.
Another reason polygamy continues to be illegal is that there are few people who have anything to gain from it - available women, and women who expect to be available in the future. I can't imagine most married men wanting another wife - it's too expensive. More girlfriends, perhaps, but divorce would get expensive if one or more of your wives left. Similarly, currently married women wouldn't want to give up so much of their husband's income and attention. Young men don't like the idea of the well of women drying up.
Megan: You yourself posted that polygamy raises the bargaining power of women, and that this usually results in attempts to reduce their bargaining power. It seems logical that domestic abuse would be one of those ways.
Certainly my view. Not Megan's, although she's mainly worried about 'grandfathering' there.
As a happily married person and a child of a successful marriage, I certainly respect the institution of marriage, as I respect many *religious* traditions. It has developed and endured for a reason. I see no reason why marriage should not be equally beneficial to gay couples. The state, however, does not need to subsidize any marriage, and subsidies inherently discriminate.
Heck, there are a few *commandments* that the state is silent on.
Problems with polygamy, off the top of my head (Adam Sofen anticipated a couple):
*Let’s say you’re a woman married to a man who, once polygamy is declared legal, elopes with another woman. This enrages you and you decide to divorce him. Before his second marriage you were entitled to half his estate. How has this changed?
*Let’s say you’re a man without a living will who is married to an even number of women, half of whom want to keep you on life support, half of whom want to pull the plug. Who breaks the tie? Conceivably you could appoint a specific wife to handle these functions, but that would subordinate the rest in a way marriage is supposed to avoid.
*Let’s say you kill with your car a man with 20 wives. After the wrongful death class action is approved, how is loss of consortium quantified? Is it loss of consortium x 20, or does each wife get 1/20th of the value of the husband’s consortium?
*Since polygamy will presumably come after gay marriage is legal, what is to stop the establishment of criminal gangs who intermarry to escape testimony against their spouses?
*Surviving spouses, it is my understanding, are entitled to social security survivor benefits on the theory that a woman who has foregone employment in favor of a domestic life is entitled not to starve after the death of her husband. A pension sufficient for one becomes insufficient when split 10 ways, say. If you don’t split the pension, I predict that the terminally ill affluent will become disproportionately marriageable.
While the percentage of males who want more than one partner surely approaches 100%, count me with those who doubt there will ever be a substantial constituency for polygamy. I am forced to suspect, Megan, that this is an attempt to win the vitriol you were denied for your race essay last week.
The difference between gay marriage and polygamy is that polygamy is still icky to many more of us than gay marriage. Unless the ickiness quotient of gay marriage as a concept rises again, it will inevitably take root. The idea that rational argument has anything to do with this is absurd.
“How does having more than one wife make a guy more likely to beat his kids?”
It was “abuse,” not “beat.” Neglect, is a form of abuse. There are other forms of abuse as well.
Of course there is pro-polygamy argument that more adults in a marriage means more support for everyone, but perhaps when this system fails, it fails spectacularly or it’s easier for some family members to be marginalized. It may also be more difficult for a disenfranchised family member to get out of a polygamous marriage. If an adult wants a divorce from the group, what compensation is that person entitled to, and what obligation to the group (child support) should be made (whose child is it really anyways and who is responsible for that child)?
Not that I have thought over reasons against polygamy that thoroughly. Basically, it just seems like our legal and social system cannot easily accommodate the permutations as Adam Sofen pointed out above, whereas same sex marriage is fairly trivial to work in.
Not that that is a reason to “deny rights” (however you want to understand that phrase), but demands of complexity is reasonable to keep things out of legislation. The legality of marriage and unions and child custody and citizenship is mired enough already; adding to that burden with the exponential demands of polygamy would be overwhelming. It can be argued that the amount of confusion would be detrimental to society as a whole.
Okay, John W., here goes: the State has an interest in marriage simply because it has an interest in caring for children. That is to say, if no one else cares for the children that inevitably result from the sexual union between an man and a woman, then the State has the obligation to care for them.
(The "State" is simply the name given to organized society. Obviously, the State can take many forms.)
So as our professor (Walter Wadlington) in Domestic Relations class at UVA law school said, the State therefore lays down rules for marriage for the primary purpose of protecting the children born of the union.
Ancillary notions of inheritence, sexual equality, etc., are just that: ancillary.
Taking this to its logical conclusion, then, any form of marriage that nurtures and raises the children to be productive members of society is okay. The societies that limit marriage to one heterosexual couple do so out of a combination of reasons which include religion and tradition.
So if a "civil union" between two homosexuals is not good enough, but has to be called a marriage even when there can be no children as a result of the union (yes, I recognize and know homosexual couples who adopt or in which one of the females uses artificial insemination to bear a child to the couple, but they are rare in total numbers), then why should other forms of unions (called "marriage" in several societies), which DO produce children, be illegal as long as the arrangement provides a stable environment for raising the children?
That's why people argue that if marriage between homosexual couples is a civil right, then how can you not say that other forms of marriage are not considered to be a civil right?
Burkean principles: no society we know of has ever had gay marriage, which maybe ought to tell us something.
So "Absence of proof is proof of absence" is a foundation of Conservatism? Far out.
Adding a little to my previous post, the fact that *children* are central to the State's interest in marriage also explains the State's interest in divorce. In some states, for instance, if there are no children of the marriage, a no fault divorce can be obtained in a relatively short period of time, but the time period is longer if there are children. And separation agreements can detail things like child support and custody, but those elements are always subject to judicial review because the parents can't contract away the rights of the children.
For those people interested in alternative marriage arrangements, I recommend the novels of Robert H. Heinlein, especially The Moon Is a Harsh Mistress (a "line marriage") of Friday (a "corporate" model marriage). Note that Heinlein was smart enough to know that a lot of marriage models will work AS LONG AS THE CHILDREN ARE PROPERLY CARED FOR.
Yancy, and other anti-civil-marriage types:
People can enter into all kinds of contracts, yes. But they rarely specify every possible contingency at the time of contracting. To fill in the gaps when conflict arises, the state offers default rules. Additionally, there are somethings that the state forbids one to do contractually, like work for less than minimum wage.
Marriage is no different. Most people want their spouse to inherit most of their estate, make medical decisions, have a cause of action for wrongful death, etc. Most people do not want to pay a lawyer to draft up a nifty contract specifying all these things. Hence: civil marriage, which comes complete with a set of default rules which accord broadly with the wishes of married couples all over.
In any case, even if the ideal libertarian utopia does not have civil marriage, it is so tightly bound up with virtually every area of our law that the bill eliminating civil marriage would be hundreds of pages long and have vast unintended consequences in strange areas that were never expected.
Justin JJ,
"But there's no corresponding polygamy movement. There are only a few fringe actors, and those tend to be geographically and culturally isolated. Unlike same-sex marriage, there's simply no real demand for polygamy. Simple inertia protects marriage as a duopoly.
One can think of any number of cultures where polygamy is accorded official sanction, any number of those cultures exist right here in the US due to immigration. If the demand for polygamy is greater than zero, what, ultimately is the argument for preventing it? I'm not following your arguement where you can sweepingly declare those inclined to such a relationship as "fringe actors" who are "geographically and culturally isolated." The notion that there is "no real demand for polygamy" is just empircally untrue.
Back up 20 years and any one of your arguements (Fringe actors, culturally isolated) could apply to gays/lesbians.
Because marriage carries with it legal obligations and privileges, the enforcement/protection of which is the government's proper role, even in libertopia.
I'm not arguing that it should be prevented. I'm arguing that it's not likely to happen, that even if gay marriage is the first step on a slippery slope to polygamy, that the community of people who want polygamy legalized is trivial compared to the gay community, and in no real position to capitalize on the slippery slope. Ultimately, I'm making a conservative argument: polygamy is illegal and culturally unfashionable, and will stay that way absent a community of polygamists at least comparable in demographic strength to the gay community.
Please demonstrate to me where these hotbeds of polygamists reside (yes, yes, I know about southern Utah). What are their organizations with effective national scope? In what cities do they hold annual parades to assert their demand for polygamy? Give us a ballpark on the number of people who would plausibly be interested in marrying polygamously.
You're right that it's an empirical question.
The difference between the gay community and those who collectively could be called the polygamy community is that the gay community is fundamentally a single community built on one predicate that precedes gay marriage, namely being gay. That predicate existed twenty years ago, and throughout history. There was a gay community a hundred years ago who went about their business differently (e.g., "Boston marriages"), but they existed. That the last four decades have featured the gay community as a major cultural actor is due to just that predicate around which they could unite and act with some collective efficacy.
The various groups who make up a hypothetical polygamy community are fundamentalist Mormons, hard left polyamorists, and African or Muslim immigrants who come from polygamist cultures. While numerically they might equal the gay community, there's no underlying predicate that binds that community. Beyond that, it's only fundamentalist Mormons who are actively agitating for some form of polygamy. Assimilation pressures and generational change breed polygamy out of immigrant cultures in the U.S., and the polyamorous have yet to demonstrate any organization at all. The goal of polygamy is all they have in common, and I've seen nothing to indicate that, when a foot is placed on the slippery slope, there's an angry crowd waiting to shove us over the edge.
As you said, it's an empirical question. Show me a significant, effective polygamy community waiting in the wings to take advantage of the slippery slope, and I'll believe that the slippery slope matters.
Justin JJ,
From your comments, I take it that you believe it is allowable to strip certain people of their civil rights simply because they are small in number and diverse?
Can we ban people named Justin from marriage? Surely they are small in number and come from different communities.
"Too bad we can't adopt our friends so they could visit in the hospital, etc.
Posted by Ryan W."
In the UK you can marry your pals, as long as each party to the civil partnership must be of the same sex and be at least 16 years old. Any party who is already in a marriage or a civil partnership is also ineligible to register.
Also I think the only reason the US hasn't yet implemented this policy is the tax break for being married. Many other EU countries (UK included) do not give this benefit so there is no fiscal incentive to the state to prohibit such actions.
I imagine many a struggling college student wanting the tax back would write a prenuptial agreement with a good friend for a civil union. I would have.
Other than that I am with Yancey Ward & the Tenth Amendment.
The sex ratio is close to 50:50, so a society where the dominant coupling is monogamous heterosexual marriage finds a spouse for most people. Add in gays and lesbians, and as long as you have a roughly similar number of each, you still don't have a problem.
Introduce large-scale polygyny or polyandry, and you have a problem - a large number of "spare" un-partnerable people (cf. FLDS "lost boys"). This is a problem for society - these enforced singles don't have the investment in the future that families with children have.
"I frankly don't see why legal polygamy should be any worse than gay marriage."
Don't you see how offensive this wording is?
They are both WORSE?
It's exactly the same mind set where all this Hitler comparison appeassment crap is coming from.
What if I said it's no WORSE to be above average in height and occasionally mistaken for a man than to be gay?
I cry for this world, and want to give up.
Why would polygamy lead to men being unable to marry?
Primus, adult women outnumber adult men in all age cohorts. There is accordingly already a surplus of marriageable women; small numbers of polygynous marriages on a national scale would not leave men without potential mates.
Secundus, gay men outnumber gay women. There is accordingly an even larger surplus of marriageable women available for men than suggested by the raw man/woman numbers.
Tertius, in any probable scenario of polygamy being legalized as a consequence of gay marriage, legalized polygamy would not be restricted to heterosexual polygyny. And while plural marriages where the male members outnumber the female members might be "naturally" less common than the opposite, each polyandrous marriage would further increase the relative number of potential female marriage partners available to each unmarried heterosexual male.
Here's a modest...well, not proposal, but (Socratic) question: why does the state have any right to prohibit marrying, e.g., a corpse? After all, no one is hurt, right? And the chances of procreation without third party assistance are the same as those of homosexual couples. So what's the problem? Perhaps a little stability would help the Ed Geins of the world settle down. Who are we to deny him and his ilk that right?
Seriously, how could one not apply the same arguments for homosexual marriage to a necrophiliac one? (I know - some bright spark is going to cite the absence of consenting adults. But suppose someone agrees on his deathbed to a posthumous marriage, hmm?)
Answer: some institutions exist as much for the benefit of society as of the individual. Marriage promotes social stability, and is not lightly to be made into a Folsom Street Fair kind of joke (which it inevitably would be. Not all heterosexual couples have children, but that's irrelevant. The purpose of marriage is to encourage stable homes for raising children. The alternative can be seen in major urban areas, aka a genealogist's (and, not coincidentally, criminologist's) nightmare.
Don't you see how offensive this wording is? They are both WORSE? It's exactly the same mind set where all this Hitler comparison appeassment crap is coming from. What if I said it's no WORSE to be above average in height and occasionally mistaken for a man than to be gay?
Chip, meet Shoulder. I think you two kids will get along great.
Longer quote for aMouseforallSeasons:
"I frankly don't see why legal polygamy should be any worse than gay marriage. Which is good, because I'm pretty sure we'll see it within the next few decades."
Oh, it's ok for oppression to be fixed "eventually".
I'm sure I don't mind waiting.
And I mean the gay marriage part.
I can't deal with more than one person at a time.
And I like me a cute man.
Oh, it's ok for oppression to be fixed "eventually".
The way I understand it, the Taliban punished homosexuals, proven or merely suspected, by toppling a masonry wall onto the unwitting victim. In the United States, you merely cannot get a government certificate and subsidy for your alleged union, even though you can take each other into the haystack as often as you wish, open a joint bank account, designate each other as executor of estate, and drive a rainbow-colored Miata in public.
And yet you designate the latter case as an example as "opression".
You want to talk about offensive misuses of language? Clean your own house first.
I'm old. I'll never get married, I have no irons in this fire. I was not my intention to sound so intense...
What I guess I didn't make clear on my initial post was that I thought that too much of the import of these discussions hinged on the wording that people use in these situations. I know that Megan's blog is off the cuff, and she sometimes doesn't ("give too much thought"), {see how rude that is!} know how some of her statements will be interpreted. If I'm not cautious enough (and goodness knows I'm not!) in the phraseology that I employ, I might be perceived as using the type of ploys that have been attributed to Carl Rove.
See my wording? I didn't say he did it.
But when she said it the way she did, it put it in different terms....
You are not a mouse, but a man.
See how such a statement might be interpreted as a slight?
And I certainly didn't mean it that way. Thank you for your thoughtful posts.
Re: no society we know of has ever had gay marriage, which maybe ought to tell us something.
Once upon a time no society allowed women to vote. Should that have told us anything a century ago in the face of the sufragettes' demands?
As far as polygamy goes, number is a far more basic category than gender. The latter is a mere biological accident. The former is fundamental to logic. Ask yourself if the fact that we allow women, Blacks 18 year olds etc. to vote implies in any way that some (or all) people should be allowed to vote multiple times in the same election.
You are not a mouse, but a man.
I disagree; I have beady eyes, a sleek coat, and a tail to envy. They even modeled Reepicheep after me, albeit a stunt double was called in for some of the combat scenes, as my sword hand isn't well practiced.
I am politely, but chastely, thankful.
Could tail envy have anything to do with polygamy?
Swords are over-rated. Go for the light-saber every time.
Oh, well, so much for intellectualism, huh?
I think I'm learning alot.
I now know I need to learn to keep my mouth shut a bit better.
My "tail envy" statement is way too open to interpretation. Animals without fut on their tails are at an obvious disadvantage, and I shouldn't have let that be an issue.
Star Wars references aren't allowed.
I meant MY lack of intellectualism.....
Please forgive, I'm gone.
"If it's so unfair that some men will be left without wives, how come we don't force women to marry them? Because that's an outrageous violation of human liberty, that's why."
I'm sorry, this is where libertarian ideology needs to end and a sober look at reality needs to begin.
In a polygamous society, there will be swaths of leftover young men. And predictably, these young men will be awfully angry. If history is any guide, mobs of pissed off men rarely has a soothing effect on the society at large.
There's a reason why almost all successful societies have embraced monogamy.
The original argument seems to be: "Widening the definition of marriage cannot be used as a precident to widen it even further, and also, we should widen it further because it has been widened previously in the case of interracial couples."
So the second half of the argument (interracial couples as precedent for gay couples) disproves the first half (this won't set a precedent).
I wrote a really long response to the polygamy question on Ezra's blog, but instead of reposting it I'll try to summarize:
a) The CA court found that teh gays were a "suspect class," meaning that a law discriminating on that basis would be subject to strict scrutiny (a "suspect class" is defined by an "immutable characteristic" like gender or race; choices like religion don't count). Under strict scrutiny, the law would have to be narrowly tailored to meet a compelling state interest. Being a Mormon or a Muslim or the type of woman who wants to share her husband with three other women does not put you in a suspect class. A constitutional right can be withheld from any of those people for nothing better than a "rational purpose." Under this standard, "preserving the traditional definition of marriage" would almost certainly be sufficient "rational purpose." It would therefore be sufficient to exclude polygamy from the marriage right, as it has been to set an age of consent and define the boundaries of incest.
b) Megan asks it as an abstract question, but it's really not abstract at all; it's a question of law. The judicial process relies on the assumption that the sorts of people who become Supreme Court justices are going to have an idea about what constitutes a "compelling state interest" (or a "rational purpose") that's roughly in line with cultural norms, with an extra duty to protect minority rights that majority disfavor might like to curtail. The justices are in charge of noticing when a practice like sodomy that is so abhorrent that it's not protected by the right to privacy becomes just another kind of sex (Bowers, Lawrence). They're in charge of noticing when black people go from a class whose problem with segregation is blamed on their own inferiority complex to a protected minority (Plessy, Brown). There's no way to say why polygamy isn't just around the corner in California; it just hasn't gotten as far as gay marriage yet. Maybe it will; if and when it does, a ruling will follow. But that doesn't mean there's a "slippery slope," unless you want to argue that the exercise of constitutional interpretation is in itself a slippery slope, because what's happened here is what has been happening since the first Supreme Court convened: a very amorphous set of constitutional protections has been tested to see whether, in a given situation, it is applicable. It's like the Constitution is a lollipop and the justices' job is to look at the plaintiff before them and decide "does he/do they get a lollipop?" The pool of behaviors found to be protected has unsurprisingly tended to expand over time, so theoretically, I suppose, we can imagine that someday everybody will get a lollipop. But it's specious to propose that giving one person a lollipop means that you have to give someone else one, too. That person will get his lollipop if and when the justices decide that he deserves it.
I don't think that if polygamy became legal in the U.S> that it would be restricted to polygyny.
I think the best comment on the same-sex marriage vs. polygamy debate is by Steve Sailer:
"[When asked why polygamy isn't as much a civil right as gay marriage is] Gay activists typically answer by saying that marriage by definition is between two people... The real response, however, has been, in effect, that only crazy right wing fundamentalist heterosexual rural Mormon white people want to practice polygamy, and we all know that civil rights don't apply to them.".
(For some reason it no longer appears in his archives).
While I'm certainly not here to defend, much less promote, polygamy -- and have no particular desire or need to equate it to gay marriage -- I certainly find that many statements made about polygamy are often uninformed and unhistorical. Here are a few bits of information for consideration:
-- Jewish polygamy appears to have continued from Biblical times until at least the 11th Century AD; some remnants of Jewish polygamy have survived to modern times.
-- Martin Luther (yes, that Martin Luther) felt polygamy was acceptable in some circumstances -- and allowed it in at least one specific case -- because "it does not contradict Scripture" (scroll down a bit).
-- I wrote two posts to a private e-mail list correcting efforts to draw parallels between the FLDS group down in Texas and the LDS (Mormon) Church, including showing dramatic differences between current FLDS practice of polygamy and how it was was practiced by the LDS Church in the late 19th Century.
For what it's worth. ..bruce..
My comments say nothing of the sort.
well, not proposal, but (Socratic) question: why does the state have any right to prohibit marrying, e.g., a corpse?
a) As you say, corpses do have a hard time consenting to marriages.
b) In the case of the deathbed desire, this is not consenting to marriage. An intention to marry in the future is not a binding marriage contract. There are plenty of cases where people have given every indication they want to get married, obtained marriage licences, booked the priest, got the dress/suit, paid the florist, and then on the day changed their mind and left their fiance/fiancee standing pathetically at the altar. Legally, those people are not married. So even if a person does, on their deathbed, say they want to marry, that's not the same as actually marrying. Engagements are not legally binding.
c) How would marriage to a corpse work? You can't inherit their property, that's distributed by the person's will or their situation on death. The corpse can't run up any debts, or pay any of your debts, as they're a corpse. They can't testify against you in court anyway as they're a corpse. They can't visit you in hospital or prison as they're a corpse. Someone who is dead does not participate in contracts as they are a corpse. You can't employ someone who is a corpse, you can't take out a mortage with someone who is a corpse, you can't marry someone who is a corpse.
What compelling interest is there for heterosexual marriage? Marriage should have the same legal basis as other contracts between one or more people. The solution is to do away with what is known today as heterosexual marriage.
Free people should be able to enter into contracts of their choosing with other free people.
On one hand you want to do away with "what is known today as heterosexual marriage", on the other hand you say "Free people should be able to enter into contracts of their choosing with other free people". Well I'm a free person and I darn well chose to enter into hetrosexual marriage and I am rather intense about staying in that institution. So there's a contradiction here in what you are calling for. You can't do away with marriage while simultaneously allowing me and my husband to enter into contracts of our choosing.
Or are you going to argue that anyone who wants to enter into a hetrosexual marriage is by definition not free?
re: You can't do away with marriage while simultaneously allowing me and my husband to enter into contracts of our choosing.
I may have missed something, but has anyone here proposed banning marriage? Even if the far libertarian extreme were enacted (getting the government out of marriage altogether) you'd still be free to marry according to your own traditions. The government does not, for example, afford any legal recognition to baptism, but this does not prevent people from going through the sacrament.
In a polygamous society, there will be swaths of leftover young men.
As a practical matter, it is perfectly possible for a man to cohabit with two women simultaneously in most major urban areas of the United States today, without facing any legal sanction. However, there does not seem to be any vast surplus of leftover young men. How, exactly, would legalization of polygamous marriage change this? Keeping in mind that any form of marriage created as a "slippery slope" from gay marriage will be neutral as to the sexes of the members, and so arrangements of three husbands and two wives will be just as legal as one man with for wives.
The social taboo you refer to does not "rest on Burkean principles". It rests on a horror of otherness
The difference being..?
Jon F, I was quoting Yancy Ward: The solution is to do away with what is known today as heterosexual marriage.
You can find the original comment further up the page.
Even if the far libertarian extreme were enacted (getting the government out of marriage altogether) you'd still be free to marry according to your own traditions.
Actually, as far back as I know, in my family and in my husband's family history, everyone has had a marriage recognised by the NZ government. So no I couldn't get married according to my own traditions if the government was got out of marriage altogether.
Also, in my traditions, certain things happen when you marry. The biggest one is that you become each other's next-of-kin, with the associated inheritance rights and decision-making duties in the case of the other being incapacitated. Now my husband and I could write a contract which set up those rights, but, say, hubbie was knocked on the head and in a coma in hospital, and his parents and I got into a massive dispute about the best treatment for him. Surely the government could then step in to enforce our contract? Or would I, in this far libertarian extreme, have to settle it with pistols at dawn, or by bribing the hospital? Or would I automatically lose because his parents are his blood relatives?
It seems reasonable to me to assume that the government is capable of enforcing such a contract that makes me and my husband next-of-kin, even in this far libertarian extreme. So, we have not got the government out of marriage altogether. And, there's a place for the government to register marriages, so it knows who is married to whom, like it registers land titles. After all, if you're getting married, it might be good to check that in the event of hubby winding up in hospital, you are not going to be surprised by some other person who was also married to him without you knowing.
Now, a contract of the type we are talking about is a very serious deal. I'm going to present a hypothetical case. A rich elderly man hires a housekeeper, and eventually dies of old age (no murder cases here). The housekeeper then shows up with a piece of paper with his and her names to a contract like the one I envisaged earlier, and she is therefore the next of kin, and inherits the rich guy's millions. The kids say "Are you nuts?" It strikes me that the government, giving the seriousness of the amounts of money potentially involved (and also the serious of next-of-kin issues), has reasons to demand certain standards in signing the contracts, similiar to the two witnesses required for wills. This may include requiring witnesses, perhaps obliging the contract to be signed in front of a judge, so if the validity of a marriage is disputed there's more to go on than the word of an interested party and one signature of a dead bloke. Of course, such requirements are not perfect, but they can reduce fraud. So there's a place for government again.
So, we have the government enforcing contracts, and regulating under what conditions the contracts will be signed. Now, if the government is going to regulate which conditions the contract will be signed, then it has to specify what's different about a contract that requires, say, two witnesses and a contract that doesn't. So the government gets into specifying what a marriage is.
So once we've got to the stage of government involvement in enforcing a next-of-kin contract, and in registering who is who's next-of-kin, and in enforcing certain standards to check that the people involved actually both consented, what's wrong about the government supplying a standard contract?
And, once we have the government supplying a standard contract, perhaps we could permit the government to say that if two people have signed this contract, they are married? Rather than forcing the government into a nasty circumlocation like "Fred and Greg are each other's recorded next-of-kin", the government could be permitted to say "Fred and Lee are married"? Like it can say "Fred and Lee are Sarah's parents" rather than "Fred and Lee have contractual responsibility for the upbringing of Sarah"? As far as I can tell, the government is bad enough at coming up with nasty wordy ways rather than plain English, it seems mad to oblige them to do so just because of some theoretical dream about getting the government out of marriage.
This does actually make me curious, though: when did polygyny vanish in Europe? And why? And did it disappear in other areas of the world largely under European influence, or is there something else going on here?
In Vietnam men were allowed to keep up to 4 wives according to local tradition and law. I don't think polygyny really disappeared until the 1950s. It's clearly part of the drama of "modernization" but as in most places that drama was bound up with European influence or direct colonial rule, and it's an interesting question to what extent you can tease those two factors apart.
That person will get his lollipop if and when the justices decide that he deserves it.
This sounds like a wonderful model of principled republican government: unaccountable black-robed philosopher-kings distributing lollipops. Yes, that's just the world we want to live in.
Tracy W: oddly, marriage to a dead person is possible in France, with permission from the President. I believe about tht there are 20-30 cases a year, mostly for sentimental reasons. The burden of proof that the deceased wished to marry is high, and parents of the deceased need to give permission as well. The key practical benefit is that posthumous children of the union are considered legitimate offspring of the deceased.
Megan,
Very interesting post. I agree completely with your slippery slope argument about the rationale, but disagree with your prediction that polygamy will be legalized within the next few decades.
I don't think any state legislature would legalize the practice, mainly because of the ick factor mentioned by henry evans above, and also because the proponents of polygamy are, as glaivester pointed out above, seen to be crazy types.
The courts would have to legalize polygamy. It is mainly state courts around the country that have made same-sex marriage legal. Few of the judges sitting on these state courts will be sympathetic to legalizing polygamous marriages. The lawyers who will become judges over the coming decades are drawn largely from a class of people who dislike polygamy. They regard it as some fringe activity by espoused (no pun intended) by people they dislike.
The left-leaning judges, who are dominant in certain states, imposed same-sex marriage because they were sympathetic to gays who wanted to marry.
Both the right-leaning lawyers and judges and the left-leaning ones who make up this political class are viscerally opposed to polygamy. This visceral reaction, rather than a careful weighing of arguments and precedent, will control.
JohnTH - that's interesting - and odd. I wonder what practical impact being a legitimate child of
the union has in France?
A brief read on Google gives me the impression that legally the living person instantly becomes a widow/widower on completing the ceremony. So presumably the widow/widower can then marry again without first needing to obtain a divorce. So the living person may marry, but they can't be married, if that's right.
Thanks for the information, it's good to learn something new every day.
Ultimately, I think the gay marriage debate made us ask "What is marriage for?" And the answer we came up with is "Dunno, whatever you want, I guess."
I'm inclined to ask a slightly different question: "What is marriage?"
So far as I can tell, it is currently an agreement between two opposite sex people to stay together until they don't.
Which suggests that it is a word from which all meaning has been extracted, and is now used only to fool those who have yet to catch on.
So if we did have gay marriage, or polygany, or whatever, what difference would it make?
So if we did have gay marriage, or polygany, or whatever, what difference would it make?
I bet your local tax department has an opinion about this.
Tracy,
Once upon a time (up until the French Revolution in fact) the government did not legislate on marriage per se. It recognized marriage and extended various contractual rights and duties to married people, but it not define marriage. Rather churches did so. If you went to a church and married according to that church's precepts then the government recognized you as married, no questions asked. I am not sure how this worked with polygamy in places like medieval Spain and Byzantium where there would have been Muslims in residence with (possibly) plural wives, but somehow it did work. And of cousre for those who weren't into the church thing (in England and North America at least) there was a marriage-equivalent called Common Law Marriage
"The fact that no society we know of has ever had gay marriage is not a Burkean argument for it. "
WTF are you talking about?
Most societies through human history have not had any form of marriage, in the sense of something specifically blessed by the state with associated records and paper and so on, for the simple reason that there was no state, no paper and no records.
But those societies had individual unions recognized by the community as special, and there is ample evidence that some of those unions were same sex.
It's a somewhat bizarre Burkean argument that bases its claims purely on the state dominated societies of the 20th century.
I personally don't have a problem with polygamy.
To start with, men live shorter lives, are less likely to want to marry, and are more likely to have serious cognitive problems than women. Outlawing polygamy is therefore as much a restriction on women as on men.
There is no serious religious opposition to plural marriage, considering that plural marriages have been allowed in every major tradition. I seem to recall that after a war in which Sweden(?) lost a great many men, the Catholic Pope gave special permission for the surviving men to take a second wife, in order to allow the nation to be repopulated. It is pretty clear that the opposition to polygamy is pretty much just bigotry.
It is true that some husbands of multiple wives are abusive - but guess what? plenty of monogamous husbands are abusive - and so are plenty of monogamous wives. If we are going to base laws on what could happen, in the worst possible combination of circumstances, you'd have . . . well, the United States.
In any case, it is somewhat presumptuous to assume that polygamy would necessarily mean polygyny in the modern world. Polyandry would allow many men who could not afford or would not want a wife for just themself to share a wife with others - perhaps even increasing the attractiveness of marriage for many men who wouldn't want to be tied down by their wife all the time. There are many possible forms of group marriage - 1 man, 3 wives; 1 woman, 3 husbands; 3 men, 5 wives; and any number of combinations. New rules would have to be worked off, and should not be retroactive, but it's not really anyone's business other than those involved what those rules are. Maybe put an upper cap on the number so one American citizen can't marry 3 million foreigners and bring them into the country as cheap labor - but that's about it. (Perhaps less intrusive, allow no more than 50% of the members of a marriage to enter the country on account of their relationship.)
Once upon a time (up until the French Revolution in fact) the government did not legislate on marriage per se. It recognized marriage and extended various contractual rights and duties to married people, but it not define marriage. Rather churches did so. If you went to a church and married according to that church's precepts then the government recognized you as married, no questions asked.
Okay, firstly the relationship between the church and the state in European history was a *trifle* more complicated than it is today in the USA. The government and the Catholic church were entangled, in part because once the Roman Empire collapsed in Western Europe the churches and the monasteries were nearly the only institutions that kept teaching reading and writing, so once kingdoms started increasing in size enough to need administrators the crown had to turn to the church.
The Catholic church would also make claims of temporal power. For example, in 1302 the pope Boniface VIII proclaimed that it "is absolutely necessary for salvation that every human creature be subject to the Roman pontiff". In 1303, Boniface VIII excommunicated the King of France over a dispute starting with taxes.
There were separate ecclesiastical courts and civil courts. When a member of the clergy committed a crime, they would be tried under the ecclesiastical court (eventually this was changed in various countries). Whether a couple was legally married could be investigated in an ecclesiastical court.
The Crown may not have been involved in marriage, but in European history a governing agency was involved - the Church. And that governing agency was certainly capable of asking questions. Furthermore, civil courts and ecclesiastical courts interacted - the civil court could ask the ecclesiastical court for a verdict on something falling under the church's remit if relevant to the civil court's case.
Note, I am oversimplifying a hell of a lot of history here for the sake of a comment. A proper understanding of the relationship between the Church and the Crown in medieval Europe is a topic for a library, not a comment on a blog post.
Secondly, the lack of written contracts caused a series of problems of long disputes over who was or wasn't married. For example, in 1484, Richard III claimed that the children of his brother Edward IV were illegitimate. Richard III claimed firstly that Edward IV had been married to a Lady Eleanor Butler, and that Edward IV's marriage to Elizabeth Woodville, mother of Edward IV's sons, was clandestine.
As societies got more and more complicated, and more mobile, it is not surprising that a need would develop for more and more certainty about who is married to who. Just like it became more and more important to have formal records of who owns what land.
"The legal ban on interracial marriage was a local phenomenon in the South"
This is a common misperception. anti-miscegenation lawswere not a legacy of Jim Crow segregation or even a product of antebellum style racism.
On the contrary the existence of such laws was widespread outside the south including states like Idaho, Indiana, Maryland, & California. They banned not only blacks & whites but Native Americans, Asians & Filipinos.
The bulk of such laws were enacted between 1913 until 1948 and were premised on the progressive movement of eugenics. Rather than a legacy of southern racism it was northern progressive utopian racial theory that both politically supported the development of these laws.
Also
Mirror of justice Blog has some interesting and concise commentary by Robert Araujo on Carpenters analysis & the unprincipled elision that the California ruling can be distinguished from polygamy arguments.
These challenges will be the fruits of Goodridge and In Re Marriage Cases that likely were not intended but will follow if the concepts of liberty, dignity, autonomy, and equality defined by these decisions and granted to some persons are to be granted to all.”
http://mirrorofjustice.blogs.com/mirrorofjustice/2008/05/what-is-marriag.html
Even if it's a misperception bans on interracial marriage were never universal. Scroll back on the Loving Day to 1790. (When Rhode Island ratified the Constitution) At that point five states allowed interracial marriage. Now look at the table version.
http://www.lovingday.org/map_access.htm
Among the "Union states" in the Civil War the following never had rules against interracial marriage
Connecticut
Minnesota
New Hampshire
New Jersey
New York
Vermont
Wisconsin
Anyway a problem with polygamy is it's rare for a society to allow both forms. (Polygyny and polyandry) I think it might happen in Nepal, but I'm not sure even then. I think the polygynous societies in Nepal are different than the polyandrous ones.
However it's difficult for me to see how we could allow polygyny and not polyandry. This would seem to give a man a right a woman is not allowed. Yet allowing both can really complicate things. If a woman can have a second-husband and a man a second-wife can the second-husband get himself a second-wife? Do we end up allowing group or line marriage? And at what number do we stop? Do we limit to three spouses or less? Or allow any number? Just mathematically speaking the possible combinations rise greatly when you allow for more than two people. This might complicate things more than the law can handle.
Granted same-sex marriage raises the combinations as well. Right now they can be summed as "XX+XY=marriage." By allowing SSM you allow "XX+XY=XX+XX=XY+XY=marriage." Even if you were the type to count race as a combination, laws on interracial marriage usually only concerned who whites or blacks could marry.
In principle SSM would also make a pretty profound feminist statement that men and women are essentially interchangeable in all things. (Because I don't think you'd have to prove your gay to get one, bisexuals would likely be angry if you did) I don't think it opens up things to polygamy, but it might signal the way to universalized unisex bathrooms. And once you allow that you get the Ally McBealization of America, which means people singing Barry White at inappropriate times and dancing with imaginary babies.
The pot shots at Burke in this thread are to be savored.
Let me try this:
Meagan's points aren't without merit, but they do not meet the burden of showing a link between the CA decision and a slippery slope.
Consider: legally, marriage today is enforced on a "just because" justification.
The flimsy predicates lying around that substantiate that justification are ... philosophically speaking, Burkean.
For many/most, that just means that they are arbitrary, not some sort of "tacit wisdom".
Because everything is arbitrarily defined, there is no slippery slope.
Put another way, we have an arbitrary/Burkean circle drawn around marriage. We we choose to drawn it to include marriage for gays, it's still an arbitrary circle. The fact that plural marriage is excluded isn't proof that redrawing the circle represents a slippery slope.
In fact, there is no logic compelling one arbitrary inclusion to compelling another.
The answer to the slippery slope argument is the same answer that is given now: this is the way it is set up, sorry.
The "answers" to the structural legal problems of polygamy, polyandry & polyamory are already being met with calls for a "menu approach" to various group contracts for living & sexual relations.
The fact of the matter is that Megan Mcardle post doesn’t go into the very real and practical reasons why gay marriage will lead to these multiple family forms being recognized in the law.
Both on legal grounds that cannot principally justify excluding these arrangements under the same reasoning that California has used to give us same-sex “marriage” & on the political reality that large numbers of prominent academics and influential legal scholars have already called for such a move.
http://www.beyondmarriage.org/full_statement.html
Indeed, it is the hottest field in family law and represents the new advanced guard in progressive circles. This is the case in the U.S. & in multiple foreign countries including Canada, who’s influential governmental law commission has recently called for the legal establishment of polygamy.
“There is no slippery sloooooooooooooo…………..”
“Thud”
"The fact that no society we know of has ever had gay marriage is not a Burkean argument for it. The law of averages being what it is, we are probably not the first culture to ever think of the idea. So if it isn't around, this suggests that societies which tried it either didn't survive, or abandoned the practice."
Hear, hear! Thank you, Megan, for saying what I thought should have been obvious to all.
The effects of changes to complex systems cannot be known to those who do not know fully how the system works. Like a computer, or the economy, or the weather, or the environment, the culture is a very complex system, and anyone who claims that they know in detail how it works is flattering themselves. A radical change introduced into a system as complex as that can have effects that no one imagines at the time it is introduced. And, just like with the weather or the environment, the bigger the change, the more likely those unseen effects can have very negative consequences. This general observation does not need empirical data to back it up, only logic.
Now, others here argue, "well, look at the Netherlands. The sky hasn't fallen there, so that proves it. SSM works." Or "well, look at Denmark, with it's registered partnerships...."
The effect of cultural changes cannot be truly gauged until they have been internalized fully, and that takes at least a generation. Show me one opponent of same-sex marriage who said that the effects would be immediate and obvious within only a couple of years. Most people in Massachusetts, the Natherlands, etc., know the law has changed, but they have still internalized the old understanding of what marriage means. It is only when a generation has grown up only with the new definition that we will be likely to see the full effects and start to connect them. As for Denmark and other places that did not fully androgynize the very term and concept of marriage, the likelihood is that the effects, whatever they are, will be somewhat lesser and slower as well.
And when we say no society we have ever known of has had gay marriage, that's what we mean: that none have totally androgynized the concept. Yes, there were the Native American berdaches, and other obscure societies in which some kind of same-sex unions existed, but none in which it was a cultural understanding that marriage (or whatever it was called in that society) was simply between any two persons. The closest we ever find is essentially an understanding that "marriage is between a man and woman unless.....". I have repeatedly asked SSM proponents if they would be satisfied with that, and the answer is always either no, or an evasion.
What is being proposed now, and forced in California, is a total androgynization of the concept of marriage. The idea is utterly easy, and does not require advanced technology. The fact that some societies have gone part of the way there only begs the question more: why do we find none that went all the way and succeeded at it? I have to agree with Megan, that the most likely answer is not that none ever thought about it because none were ever so enlightened, but because when it was tried, it didn't work.
The belief that same-sex marriage cannot go wrong rests on the fallacious belief that separates human history neatly into the dark, stupid, ignorant past and the great enlightened present, and assumes that all traditions are just based on stupidity, not experience.
I am not a big fan of polygamy; this is a pretty stupid argument against polygamy.