pageok
pageok
pageok
Same-Sex Marriage and Polygamous Marriage:

Ann Althouse responds to Charles Krauthammer's slippery slope argument:

If Krauthammer has been writing about this subject for 10 years, it boggles the mind that the obvious distinction has not yet dawned on him.

Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness. . . .

[I]t's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.

I generally much like Prof. Althouse's work, but here I'm unpersuaded. She gives a good argument for not giving polygamous families more benefits than two-member families have. But it's easy to exepct what polygamous families would say in response:

We're not asking for benefits that would extend to all the spouses in the family. All we're asking for is what two-member families get. We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone. We want other no-cost or very low-cost benefits. And for the costly benefits, such as insurance and pensions, we'll be happy if the law just covers two members of our marriage; we'll take care of the other members on our own.

We don't want coverage for three, four, or five members. We just want coverage for two, just like the rest of you get. But it's unfair if you entirely reject our marriage, and give us coverage only for one.

I've argued in my Same-Sex Marriage and Slippery Slopes that polygamous marriages are indeed unlikely to be recognized in the U.S., even if same-sex marriages are recognized. If the same-sex-marriage-recognition movement wins, and especially if it wins by stressing certain kinds of arguments, those arguments may indeed be logically usable by polygamy-recognition forces. But, as I argued, "It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster. I doubt that there'll be such a movement for polygamist rights, even with the potential slippery slope effects I describe."

Nonetheless, though I'm not terribly impressed by the slippery-slope-towards-recognizing-polygamy arguments, I don't think they can be dismissed as easily as Prof. Althouse suggests. It's not enough to come up with a plausible distinction between what one supports and the extreme version of what others support. One also has to deal with the more modest versions that the others will come up with in response to your distinction.

UPDATE: My disagreement with Prof. Althouse may be less than I thought; in an update to her post, she writes:

I'm not saying that the distinction is so obvious that everyone will accept it. I'm just refuting Krauthammer, who thinks there is no way to stop the slip down the slope from gay marriage to polygamy. I'm against the scare tactic that is being widely used: don't accept gay marriage or nothing will stave off polygamy. All I'm saying is that there is a principled basis for drawing a line between the two. Nothing compels us to choose that line, however. I freely admit that.
On that, I agree; as I've stressed in all my writing on slippery slopes, it is very rarely the case that the first step will absolutely positively guarantee to lead to the future step (as in "nothing will stave off"). People who overstate the slippery slope argument by making it sound like the bottom of the slope is inevitable end up weakening their own position.

Nonetheless, it still seems to me that a distinction between recognizing same-sex marriage and recognizing polygamous marriage should -- to be practically useful and not just theoretically plausible -- do more than just explain why the most extreme version of recognizing polygamous marriage (recognize my marriage and put all eight of my wives on my insurance plan) is distinguishable from recognition of same-sex marriage. It should also explain why the likely alternatives that you'll be given in response (recognize my marriage and put one of my wives on my insurance plan) is distinguishable.

R:
It seems that in practical terms, legalization of gay marriage could help polygamists. For example, if one man had three "wives" he could officially marry one and the other two could marry each other. This could come in handy if the man had a job with benefits and so did one of the women. You just "officially" pair off so that the most possible people get benefits.

I'm not making any kind of slippery slope argument. I'm just telling you how I'd do it.
3.17.2006 3:01pm
gasman (mail):
Laws are unfair if they do not apply to all equally.
Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women. The only group expressly discriminated against by most marriage statues are first-degree relatives.

The argument of economic unfairness just don't hold up. Not every economic opportunity is seized by every individual for many possible reasons. Observant Muslims might choose not to have a home mortgage, so they cannot partake of the income tax deduction for such a loan. People who remain childless cannot take a tax deduction or income tax credit. If I live with my brother we cannot take economic advantage of employer benefits and federal tax situations.

The notion of fairness is about offering opportunity without unreasonable restriction or test. Not every person is capable or interested in taking advantage of every opportunity; but the opportunity for any person to marry under current law is there.
3.17.2006 3:03pm
Hank:
Andrew Sullivan today states what should be an obvious distinction:


I believe that someone's sexual orientation is a deeper issue than the number of people they want to express that orientation with. Polygamy is a choice, in other words; homosexuality isn't.
3.17.2006 3:06pm
Bob Loblaw (www):
An equally obvious distinction (and not just a "plausible" distinction) - the government gives heterosexuals the right to have a marriage to one person of their choosing (and to whom they are naturally attracted) recognized and sanctioned. Polygamists also have that right - to have their marriage to one person recognized and sanctioned (and they are still able to have others live in their household if they choose). Homosexuals get zero.
3.17.2006 3:24pm
Artemis (mail):
But Hank,

I'd say Andrew Sullivan is comparing apples and oranges. Heterosexuality and homosexuality are not "choices" but marriage (monogamous or otherwise) is. Implicit in Sullivan's point, I think, is a definition of marriage as an expression of sexuality. That's problematic to begin with, I think, and it doesn't prevent advocates of polygamy/polyamory from defining their own sexuality as a "deeper issue." I can imagine them trotting out not only postmodern arguments about the fluidity of sexual orientation, sexuality, etc., but also evolutionary arguments about the way that polygamy accords with men and women's "natural" inclinations, and even historical arguments about the tradition/religious underpinnings of polygamy.
3.17.2006 3:26pm
Hemingway:
Hank,

I don't suspect the empirical evidence would bear Sullivan's proposition out ("Higgamus, hoggamus . . . "). So it's a less-than-obvious distinction.
3.17.2006 3:26pm
Mike :
Sullivan's "obvious distinction" involves a mis-matched comparison. Sure polygamy is a choice - the choice to be involved in a plural marriage. Similarly, entering a same-sex marriage is a choice.

Sexual orientation, and more generally, a person's underlying desires for emotional attachment, are certainly "a deeper issue," but here the more apt comparison may be between homosexuality and polyamory.
3.17.2006 3:28pm
The Original TS (mail):
Unfortunately, the whole gay marriage argument too often elides issues that are analytically separate.

Look, for example, at things like tax and employee benefits. Employee benefits are meant to encourage employees to come work for a company. With a few exceptions, married couples get a benefit from the company because the company believes it is in its economic interest to offer that benefit. Nothing prevents companies from offering similar benefits to gay couples and many do.

Ditto for tax breaks associated with marriage. In theory, at least, these tax breaks are meant to further a governmental interest. Lots of studies indicated that married heterosexuals are, as a group, have higher incomes, are more healthy, etc. It is, therefore, reasonable social policy to use things like tax benefits to encourage and support marriage.

Is the same thing true of gay marriage/couples? I have no idea. I doubt anyone does. I've never seen a study even attempting to address it for gays. But that is the showing advocates for gay marriage ought to be trying to make.

Then there's the fairness issue. "This gay couple lived together for twenty years and then one of them died of AIDS after being nursed through the last years his life by his partner. The surviving partner was then thrown out of the couple's home by the dead partner's parents! If only they could have been married, the surviving partner would have gotten to keep their home!"

We've all heard variations on this story in support of gay marriage. I, however, draw a different moral -- the people in these stories are dumber than two bricks. Haven't these morons ever heard of a will?

The point is that many of the incidents of marriage can be aproximated relatively easily without actually being married by using wills, health care powers of attorney, etc. This is equally true for gay and polygamous relationships.

But that's not what the gay marriage debate is really about.

We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone.

Bingo. It's about public acceptance. As Eugene points out, you don't get this through the courts or even the Legislature. Public acceptance requires a shift in public attitude.

"It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster.

The only thing I'd disagree with is whether gay rights advocates have managed to muster broad enough support. Look at the current backlash in so many states. I understand there is a vociferous debate going on the gay legal community about how and whether to challenge some of these new state laws. Many gay rights advocates are concerned that a premature legal push to the Supreme Court will result in a gay Plessy and take the larger issue of gay marriage off the table for the next 50 years.
3.17.2006 3:32pm
ericvfsu (mail):
I would like to strongly recommend that anyone who has an interest in this subject read Eugene's "Same Sex Marriage and Slippery Slopes" for which he has provided a link in this post. The essay has a great deal of analysis that would be helpful to all sides of this debate (yes, there are more than 2 sides).

After reading his essay I wrote Eugene an email in which I brought up the following point that was not addressed in the essay.

"If the Supreme Court (of the US) were to require recognition of same-sex marriage, then I forsee negative consequences beyond those you discuss. I think that would cause far-reaching political problems similar to the Roe v. Wade decision, which I feel has corrupted our political process and discourse. However, I do not see this as likely considering the current make-up of the Supreme Court."

Eugene responded that "it's an important point, but one that others had made, and that I thought I'd set aside."

I agree that this is an important point, so I am sharing it in this venue.

For the record, I am stongly in favor of same sex marriage and have spoken in a public forum in its support. My reasons for support are not "rights-based", but stem from my belief that same sex marriage will be good for society (essentially more emotional, financial, and sexual stability). For the life of me, I cannot see how gay people marrying can have any negative effect on my (heterosexual) marriage. Quite the opposite.
3.17.2006 3:33pm
Conor Friedersdorf (mail) (www):
Maybe I'm missing an important aspect of this debate, but it seems to me that this is the distinction: when we allow heterosexual marriage but not gay marriage, we're saying that we're willing to discriminate on the basis of sexual orientation.

When we allow gay marriage but not polyamorous marriage, we're saying we're willing to discriminate on the basis of monogamy.

I fail to see how deciding that we don't want to discriminate on the basis of sexual orientation impels us to decide we musn't discriminate on the basis of monogamy if we want to be consistent.
3.17.2006 3:38pm
Quarterican (mail):
The Original TS -

I believe that such wills have been succesfully challenged and overturned by the deceased's family. I don't know how common that is.
3.17.2006 3:39pm
boonelsj (mail):
Since it seems to be going unstated in all of this, what's wrong with polygamy again?
3.17.2006 3:50pm
Shawn (mail):
It has always been my position that the contention that same-sex marriage could lead us to a "slippery slope" leading to polygamy is actually logically flawed. Even though it has been a while since I last took advanced logic, I think it is logically more correct to argue that different-sex marriage leads us to this slope.

Specifically, "marriage," as a sanctioned institution, is what creates the slippery slope that requires us to determine as a natural extension what types of marriages are acceptable among consenting adults. To conclude that same-sex marriage is the actual "cause" of the slippery slope is the result of making a morale judgment before the logical argument begins.

Polygamy is the would-be consequence of different-sex marriage (or marriage in and of itself) and not same-sex marriage. History bears this out, as men with more than one "wife" have existed publicly from the beginning of time. It is only when one views same-sex marriage as deviant in some way that one puts it before different-sex marriage as the starting point for the slippery slope argument.
3.17.2006 4:15pm
Houston Lawyer:
Do those in favor of SSM actually oppose polygamy or do they just oppose being beaten with that stick?
3.17.2006 4:15pm
Clayton E. Cramer (mail) (www):

Since it seems to be going unstated in all of this, what's wrong with polygamy again?
It's icky to many of the people that think the masses are asses for thinking homosexuality is icky.

Sullivan's remarks above sound like a parody of Christian objections to homosexuality. "Polygamy is a choice, in other words; homosexuality isn't." Rewrite it is, "Homosexual sex is a choice; homosexual orientation isn't."
3.17.2006 4:18pm
Clayton E. Cramer (mail) (www):

Since it seems to be going unstated in all of this, what's wrong with polygamy again?
The primary difficulty with it is that if any large numbers of men end up with multiple wives, it puts men of lower economic or social status in the position of not being able to get married. This is one of the problems in the Muslim world--at least 16% of men have more than one wife, and that means at least 16% of men have no prospect of marriage. What do young men with no prospect of marriage have to look foward to? Well, 72 dark-eyed virgins after they blow themselves up in jihad.

In the U.S., polygamous marriage cults have this same problem. Some of the polygamous operations in Arizona and Utah expell teenaged boys, nominally for "misbehavior," but actually because they represent a threat to the adult men who are marrying multiple wives.

Those of you are thinking, "well, the excess men can marry each other." Since homosexuals and bisexuals are only about 3-4.5% of men, there's still going to be a substantial surplus of unmarriageable men.
3.17.2006 4:28pm
LTEC (mail) (www):
The LGBTQ crowd used to make a big deal about B (that is bisexuality), and about how important it was for society to accept B as being fundamental to (rather than a choice of) certain people.

I say they "used to", because it seems to me that since gay marriage became such a hot topic, this issue has virtually disappeared. No one is asking the obvious question of how the love lifes of these people are supposed to be officially recognized and supported by the State.
3.17.2006 4:29pm
Cornellian (mail):
Laws are unfair if they do not apply to all equally.
Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women. The only group expressly discriminated against by most marriage statues are first-degree relatives.


You could say the same thing about statutes prior to the 1950's which prohibited marrying someone of another race. Everyone was free to get married, they just had to pick someone of the same race. On your logic, such statutes would not be discriminatory.
3.17.2006 4:31pm
Kovarsky (mail):
I actually think while there are some significant analytic differences, none of those differences make that much of a difference in terms of the way laws generally do or do not sanction behavior. Instead, I think the problem is in the way the question is phrased: "I'm not a fan of slippery slope arguments, but...."

Well, unfortunately, this is one of those issues where you've got to roll up your sleeves and cannot elide analogy by citation to distinctions that, as I've said, don't ordinarily make a whole lot of legal difference. What sort of psychological effect does polygamy versus same-sex marriage have on children? How much does each institution increase what some regard as undesirable sexual activity (that's not the same as same-sex sexual activity)? To what degree does it "corrode" some public interest in "collective morality?"

I certainly have my views about answers to these questions, but my point is that you've got to answer them with some empirical ideas about how these respective unions actually DO affect our society rather than with a quick logical rebuke whose succinctness might be a source of imprecision as well.
3.17.2006 4:33pm
Marcus1 (mail) (www):
I made a more concerted effort to address the argument here.

I agree with Althouse that practicality is an issue. It may sound silly, but allowing the entire football team to get married would raise a lot of legal issues. I think this is a much more complicated jump than simply allow people to choose the sex of their partner.

Moreover, I think there is a much stronger argument in favor of gay marriage (not just a weaker argument against it). For one, currently gays simply can't get married at all. The injustice of this is, I think, clearly greater than simply preventing another person from marrying a second or third time at once.

For another, I think that allowing people to marry multiple partners simply does not provide the same benefits as allowing someone to marry once. Monogamy, companionship, the ability to raise children, are all very related to a two-person couple. Extending the number has a much less clear benefit.

Finally, homosexuality, at least in the minds of many, is inate. As such, I think prohibiting gay marriage is much like a rule in baseball which would require everyone to pitch right-handed. It's one thing to say nobody is allowed to use steroids or cork their bat. It's another thing to make a rule that discriminates against an inate group.

In sum, I think there are most certainly many important differences between legalizing gay marriage and legalizing polygamy, and the case for the former is significantly stronger. We can argue about any one of the differences -- as in any situation -- but to pretend that there is not any argument for a distinction at all is simply wrong.
3.17.2006 4:35pm
Bruce Zink (mail):
The Original TS said: With a few exceptions, married couples get a benefit from the company because the company believes it is in its economic interest to offer that benefit. Nothing prevents companies from offering similar benefits to gay couples and many do.

This is simply not true. The Ohio marriage amendment removes any "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Although this has not yet been tested, it is understood to make employee benefits, etc. unenforceable. Several other states have passed similar amendments, with varying degrees of severity.
3.17.2006 4:38pm
Kovarsky (mail):
LTEC,

I'm assuming the movement is making a prudent political decision about putting the B's marriage rights on hold while they resolve the L and the G. It's sort of hard to fight aggressively for recognition of homosexual marriages while you're pushing for "bisexual unions," whatever that would mean.
3.17.2006 4:42pm
Cornellian (mail):
Part of the reason why I don't think same sex marriage will lead to polygamy is that the slippery slope just hasn't worked in the past. At one time polygamy was quite common (and still is in some parts of the world) yet not only did polygamy not lead to same-sex marriage, polygamy itself was largely eradicated from Western culture. Why didn't the slippery slope argument work even to preserve polygamy let alone lead to same-sex marriage?

Today we see outright same-sex marriage in Canada and same-sex marriage in all but name in the UK, but with no groundswell of support for polygamy. The slippery slope argument just hasn't worked.

Part of the problem with polygamy as compared to same sex marriage is virtually every legal aspect of the marital relationship assumes a binary relationship. When one spouse dies, the other gets the property. When one spouse dies, the other has custody of the kids. When one spouse gets sick the other has the power to make decisions on behalf of the sick spouse. A spouse with a pension gets to designate the other spouse as the recipient of a survivor benefit. All of that works equally well for a same sex couple as for an opposite sex couple but none of it works for a marriage of more than two persons. What right would the non-biological parent in a 3 person marriage have over a child of the other two? What happens if the 3 of them disagree over childcare decisions? Decide by majority vote? In a marriage between a man and two women do the women count as married to each other? If not are they complete strangers as far as the law is concerned? In theory it would be possible to design some system that accommodates polygamous marriages in a way that provides for dispute resolution and deters free riders (like getting spousal health care coverage for 4 wives instead of one) but that would be a monumental task.

Of course all of these considerations would matter less if we didn't have a government determined to intrude itself into the marital relationship to such a great extent.
3.17.2006 4:44pm
Kendall:
LTEC - "I say they "used to", because it seems to me that since gay marriage became such a hot topic, this issue has virtually disappeared. No one is asking the obvious question of how the love lifes of these people are supposed to be officially recognized and supported by the State."

I think its pretty fair to use the same argument you'd use today. I like brunettes, I like blonds, I like red heads, I like people with all types of hair color in fact. Does that mean I HAVE to marry a person with a rainbow of haircolors? Why won't the state let me marry one person with EACH color of hair? Currently every marriage recognized by the state is recognized as 1 unit, a couple. Its not "discriminating" against bisexuals to say they can marry someone they fall in love with, its just saying that a bisexual can't marry multiple people they fall in love with. Same with any other person.
3.17.2006 4:45pm
great unknown (mail):
Re: Clayton E. Cramer

It appears that the argument against polygamy (or polyandry) is a market-manipulation one. Take away free choice for consumers so that otherwise unacceptable products (men) must be purchased (married) by those who would otherwise choose better merchandise.

Does this come under the Commerce Clause?

BTW, why is the discussion only about polygamy and not polyandry? This appears to be a relic of patriarchal cultures. If we introduce polyandry into the mix, the spouse-distribution problem is somewhat ameleorated. And lest anyone introduce the genetic issue, DNA testing works wonders should someone actually need to determine which child goes with which father.
3.17.2006 4:47pm
Bob Loblaw (www):
When the debate over whether to allow interracial marriage was going on, were there people concerned that allowing it would create a slippery slope toward polygamy? If not, what is the logical distinction for making that argument here?
3.17.2006 5:00pm
Kovarsky (mail):
great unknown,

it's the same reason we often use the pronoun "he" because the gender-neutral "it" is not appropriate.

of course its a relic of "the patriarchy," but I don't think anybody seriously believes that if you allowed polygamy that you could logically forbid polyandry. much the same way perfectly non-patriarchal people don't take the trouble to write "he or she" in every place they need an animate third person singular pronoun, people don't write "polygamy or polyandry" when they're trying to discuss this issue. I'd say that leaving polyandry off is even less "patriarchal" than leaving off the "she" because at least people know what "she" means, wheras including "polyandry" each time you refer to polygamy would significantly impair much of the audience's understanding of the logical relationships being explored in the debate.
3.17.2006 5:01pm
SenatorX (mail):
Until Men can have progeny without the need for a woman, and women can have progeny without the infringement on their physical bodies, those are massive inequalities that society has to deal with. Science will make the legal problems different though. That will be interesting to see. I wonder if DNA will come under copy write protection! "She STOLE my information!"
3.17.2006 5:04pm
Kovarsky (mail):
Senator X:

Don't worry, copyright does not grant exclusionary rights over information, only expression. Certainly not your DNA.

Next, I'm not sure I understand exactly what point you're making.
3.17.2006 5:11pm
The Original TS (mail):
This is simply not true. The Ohio marriage amendment removes any "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Although this has not yet been tested, it is understood to make employee benefits, etc. unenforceable. Several other states have passed similar amendments, with varying degrees of severity.

I don't think you're quite with me here. This is a matter of contract, not legislation or public policy.

Company A has a board meeting and decides that the labor market is tight and it wants to recruit both homosexuals and unmarried heterosexuals that are living with a partner. It, therefore, creates a program extending its health and life insurance benefits to unmarried people with partners.

The only way the state could stop it would be to pass a law making it illegal to extended benefits to unmarried partners.
3.17.2006 5:14pm
Eugene Volokh (www):
Technically, "polygamy" includes both one man-multiple wives arrangements and one woman-multiple husbands. "Polyandry" is just multiple husbands; "polygyny" is just multiple wives. "Polygamy" usually evokes the image of polygyny because polygyny is vastly more common than polyandry. But in principle, "polygamy" covers both.
3.17.2006 5:29pm
Sydney Carton (www):
I think that most people associate the term "slippery slope" as in the context of something being given general social approval because of a linked thing being given prior social approval.

But that's not what I think defenders of marriage are talking about. They're talking about an inevitable logical progression resulting from arguments made in defense of the prior linked thing. Hence, "slippery slope" has nothing to do with social approval, and everything to do with whether something can be logically concluded, and hence, imposed by an unelected, elitist, amoral judiciary.
3.17.2006 5:35pm
Kovarsky (mail):
Sydney,

Hence, "slippery slope" has nothing to do with social approval, and everything to do with whether something can be logically concluded, and hence, imposed by an unelected, elitist, amoral judiciary.

Setting your inflammatory (and frankly, cliched) rhetoric to the side, if a court acknowledges some sort of right to same-sex unions, it is likely going to be under either equal protection, or substantive due process, or both. In both of those cases, any rule restricting that right will have to be balanced against the state interest. The state interest will in turn be defined by all the interests I defined above. So even though I was not talking about a "social" slippery slope, the actual degree to which these institutions (homosexual marriage and polygamy) actually cause the societal harms that people say they do will be subject to fact-based scrutiny by a court.
3.17.2006 5:41pm
OK (mail):
This discussion of polygamy ignores the growing pressure to allow it among Muslim populations in the West, including Europe and Canada. Following from this is the pressure to allow multiple wives to be imported under family reconciliation immigration laws and the insistence that these families be governed by Sharia rather than civil family law. The problems with this seem obvious to me.

There's also the claim that there is no way to eveluate the economic consequences of polygamy. But there is much evidence that the polygamous family structure within Muslim and African societies is a large contributing factor to their economic stagnation.

While some may not see a logical connection between changing the definition of marriage to include same sex couples and changing it in the West to include polygamy, it's clear that many do see it as a way to infiltrate the West with non-Western forms. The problems with this seem obvious to me.
3.17.2006 5:52pm
Sydney Carton (www):
"the actual degree to which these institutions (homosexual marriage and polygamy) actually cause the societal harms that people say they do will be subject to fact-based scrutiny by a court."

I'm sorry, but there is simply no reason to believe that any court that hears such a case will engage in fact-based scrutiny. The fact that they're hearing the case at all is evidence that no such thing would be done. It is not a judicial question for them to decide. The only judges who are impartial enough to engage in such an analysis would inherently realize that the issue is not theirs to decide.

Oh, by the way, I have a bridge in Brooklyn to sell you.
3.17.2006 5:53pm
Dick King:
This is hardly germane, but in this book Mr. Sawyer paints a picture of a reasonable society where most people have one husband and one wife.

They don't all live together. The men move back and forth between the homes they share with their husbands and their wives' homes. The woman couples share two homes and when the men come into town one of the women moves out to the home she keeps just for male/female week. A family tree has a chain of husband1--husband2--wife2--wife3--husband3--husband4--wife4 ... with the husband/wife pairs having children. I suppose the chains must either be circular or broken by semibachelorhood or widowhood.

-dk
3.17.2006 5:59pm
Gabriel Malor (mail):

Its not "discriminating" against bisexuals to say they can marry someone they fall in love with, its just saying that a bisexual can't marry multiple people they fall in love with. Same with any other person.


Big "Duh" Here. Whoever that was that thinks the "B" is getting dropped in GLBT doesn't understand what it means to be bisexual (and the same goes for whoever that was that riffed off the term "bisexual union").

Bisexuals are people that are attracted to more than one gender. Thats a sexuality that has nothing to do with a desire to marry multiple people.
3.17.2006 6:08pm
josh:
gasman said "Laws are unfair if they do not apply to all equally. Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women. The only group expressly discriminated against by most marriage statues are first-degree relatives."

That seems to be the standard (and plausible) argument against most equal protection analysis. But I'm not sure it's right. Certainly the fact that an individual CAN do something that is entirely anathema to his identity doesn't mean equal protection hasn't been violated. A law could be passed against the practice of the Jewish religion and the anti-equal protection argument would stand because that individual could still practice SOME religion.

Moreover, I don't understand why Loving v Virginia doesn't end this debate at least in terms of precedent. How are laws against inter-reacial couple marrying any less unconstitutional than laws against SSM? I'm not applying this to the slippery-slope argument, but it does seem to settle the SSM issue.

For the record, I'm all for consenting adults marrying whomever and however many they consentually choose. Let's slip!
3.17.2006 6:15pm
Sydney Carton (www):
"Let's slip!"

Here's a better idea: as we burn the Constitution, let's all play the fiddle. That way, as society careens towards Hell, we can say we were just following precedent from Nero.
3.17.2006 6:18pm
Justin (mail):
The Constitution requires Judges to be unelected. If elitist means "smart and well educated", then the Constitution also designed the system for those to be our judges. And Drudge, on this very day, quotes Justice Scalia as saying Judges SHOULD be "amoral". So can we please quit the namecalling of our judiciary and grow up a little? This Protocals of the Elders of Harvard Law stuff is boring.

Second of all, if you happen to be in the "gay sex is icky" crowd, then I'm not sure there's a discussion to be had here. If you can't see gay sex as a natural thing but as a choice six year olds all across the country make as six year in order to get beat up as teenagers, then yes, gay sex and gay marriage are "choices". If not, then denying gay sex and denying gay marriage to these people is the equivalent of denying sex and denying marriage to these people, which is the starting point postulates of proponents of gay marriage, and I submit that they're the only reasonable positions to take - whether one believes in gay marriage or not, to believe that "gay sex is icky" is immoral, antihuman, unChristian bigotry. And to not believe that "gay sex is icky" but still oppose gay marriage is either statism or logical fallacy. ::Gauntlet thrown:: ::wait, it's st patrick day:: ::leaves to go get drunk::
3.17.2006 6:19pm
Kovarsky (mail):
Sydney,

I don't know what your Brooklyn Bridge comment means, so I'll ignore it. But you do seem to be misunderstanding of the "fact based scrutiny" I'm talking about.

The court first determines whether substantive due process or equal protection is implicated. That is a legal determination that courts are much more competent than any other institution to make.

The court next determines what level of scrutiny to apply - strict, intermediate, or rational basis. That is also a legal determination that courts are most institutionally competent to make.

Then, if a court makes the legal determination that some heightened scrutiny applies (lets assume strict for explanatory simplicity), it's got to make two more inquiries. Is that interest "compelling" enough, and is the rule "narrowly tailored." Both of those inquiries must involved some auditing of the litigants' (the state's) facts.

You also fail to distinguish between (or deliberately confuse) whether you think a court "will" engage in fact-based scrutiny (a descriptive question) and whether a court "should" do that (a normative one).

The question of whether or not they "will" is beyond debate. This is hornbook constitutional law, and if you are going to speak this aggressively about how the court is dumb, you should at least be conversant in it.

If you think that they "should not" do it, then its unclear how a court could ever enforce any of its that have a compelling interest/narrow tailoring component, which would pretty much obliterate the enforcement of all of due process, equal protection, fourth amendment, commerical speech, free exercise, establishment clause, expressive association, privileges and immunities, commerce clause, and voting rights doctrine. That, you may notice, constitutes most of the individual liberties delineated in our constitution. So, maybe you should rethink your idea that the courts should never look at any facts of a case before it.
3.17.2006 6:26pm
JJTT (mail):
I agree with Professor Volokh that it is unlikely that polygamy will gain sufficient political and popular support for it to be legalized. However, that point is inapposite to the issue of gay marriage as it is currently playing out in this country.

Gay marriage doesn't enjoy very much political support either, yet it is on the verge of being legalized. Last year a proposed amendment to the Texas State Constitution prohibiting gay marriage passed with 76% of the vote. And lest you think that it is only the neanderthals in Texas who oppose gay marriage, in 2004 eleven states voted against gay marriage in a variety of referendums. Even California passed a referendum (Proposition 22 in 2000) outlawing gay marriage. It passed with 61% of the vote.

Right or wrong, gay marriage doesn't have anything close to popular support. That is why this battle is being played out in the judicial arena as opposed to the legislative one. The only states to have legalized gay marriage or civil unions have done so by judicial fiat not by popular vote. In fact, Massachussetts has already begun the onerous process of amending its constitution to prohibit gay marriage and I have heard it is likely to pass.

The relevant question regarding gay marriage vis a vis polygamy etc. is not whether it will lead to a slippery slope in the legislative arena because it most probably won't. However, it most certainly will lead to a slippery slope in terms of Constitutional law. How can anyone seriously argue that the right to privacy protects sodomy but not polygamy? How can you make the argument that the equal protection clause confers the right of legal recognition of gay marriage but not polygamy?

The argument that legal polygamy would confer greater advantages on its practitioners is irrelevant because the argument could be made that anyone can enter into a polygamous relationship if they deem it to be advantageous. Conferring the legal benefits of marriage on polygamists is no more unfair to monogamists or singles than the current benefits of marriage discriminate against singles.
3.17.2006 6:28pm
Cornellian (mail):
Gay marriage doesn't enjoy very much political support either, yet it is on the verge of being legalized.

Oh really? And where, other than Massachusetts is it "on the verge of being legalized?"
3.17.2006 6:41pm
Kendall:
How can anyone seriously argue that the right to privacy protects sodomy but not polygamy?


How can anyone seriously argue that a right to privacy protects unmarried heterosexual fornication but not polygamy? Answer, SEX does not equal marriage.
3.17.2006 6:44pm
byomtov (mail):
In fact, Massachussetts has already begun the onerous process of amending its constitution to prohibit gay marriage and I have heard it is likely to pass.

You heard wrong.
3.17.2006 6:49pm
Kovarsky (mail):
JJTT,

The relevant question regarding gay marriage vis a vis polygamy etc. is not whether it will lead to a slippery slope in the legislative arena because it most probably won't. However, it most certainly will lead to a slippery slope in terms of Constitutional law. How can anyone seriously argue that the right to privacy protects sodomy but not polygamy? How can you make the argument that the equal protection clause confers the right of legal recognition of gay marriage but not polygamy?

There won't be any slippery slope under privacy because I doubt the court will go that route rather than equal protection. This isn't a sodomy statute.

Instead the (a) court would likely to decide this issue under equal protection. The posture in which each of these issues would be raised is as an equal protection challenge to a law that restricts marriage in the specified manner.

There are therefore two obstacles to a "legal" slippery slope. As I've said above, any court will first decide what level of scrutiny to apply in its equal protection analysis. While homosexuals may sometimes trigger heightened equal protection scrutiny, polygamists have no legal chance based on the the tests courts usually favor for making that designation (footnote 4 of caroline products). So the first legal obstacle to the slippery slope is that courts are unlikely to find a constitutionally protected right to marry under the EP clause for homosexuals and to apply the same level of scrutiny for considering that right as it applies to polygamists.

The second obstacle assumes arguendo that the same level of scrutiny does apply. Even if it does, then any law restricting marriage rights of either group will have to be justified by reference to the "compellingness" of the interest and the "fit" of the rule addressing it. Both of those will require evidentiary scrutiny where the evidence favoring homosexuals will doubtlessly be much stronger than the evidence favoring polygamists. That is the second obstacle to a legal slippery slope.

So I don't really find Krauthammer's point persuasive on legal or factual grounds.
3.17.2006 6:51pm
Kovarsky (mail):
I'm not sure how much popular support there is for gay marriage should matter to the equal protection argument. In fact, one might argue that the LESS the support for gay marriage the MORE discrete and insular a minority that group is likely to be.
3.17.2006 6:57pm
Shawn (mail):
Science and my friendships / experiences tell me that being gay is not a "choice." It is no more of a choice than "deciding" to use your left hand (when you are left-handed). Being left-handed is what is natural to that particular person -- yet for years left-handed people were asked to use their right hand when learning to write.

It is no more of "choice" than the one I have about being attracted to women. How many (non-gay) men on this board could choose to be attracted to a man (assuming your life depended on it)? Really, please think about it. Could you be attracted to a man?

If the answer is no, then (why) do you hold someone who is gay to a different standard, or presume that unlike you he or she is capable of making such a choice? Why is it so easy to presume it is choice that someone makes even if it means that he or she will be treated as a second-class citizen or disowned by his or her parents? I know that it is not a possibility for me, because I am genetically programmed to be attracted to women. I simply cannot choose one way or the other. Not all men are programmed the same, but they are programmed nonetheless.

To state that a man cannot fall in love (just because he is genetically programmed to be attracted to other men) is inhumane. To state that SSM is inappropriate is no different from discriminating against someone for a genetic characteristic that is out of his or her control. It is no different from discriminating against someone for the color of his or her skin. It is a form of bigotry and I am confident that this will be proven over time -- but maybe not in my lifetime.

I do understand why male gay "acts" might give straight men the heebie-jeebies. But honestly, as physical acts go, I have seen frat boys do things that the average straight man would consider more shocking. Therefore, the heebie-jeebies is most likely the result of genetics and not any moral mandate.
3.17.2006 7:01pm
Kovarsky (mail):
My second point above - re the "compellingness" should be restated. It will have to evaluate the strength of that interest under whatever standard the test the court chooses requires - under strict scrutiny, that will be a compelling interest rule; under intermediate scrutiny, that will be an "important" or "significant" standard (can't remember what the word is). Either way, it doesn't matter to my point. The disparity in evidentiary validity will serve as a brake to the slippery slope no matter how strong the requried government interest is.
3.17.2006 7:02pm
bluecollarguy:
Let's hear from Justice Kennedy:

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

With freedom extending "beyond spatial bounds" it would seem pretty clear to the casual observer, that's me, that the odds are pretty high that the Supreme Court has sufficent precedent to oil the slope. After all, adding a dimension or two to marriage would seem to fit in very nicely with Justice Kennedy's waxing elegance.

And where to from there? Certainly same sex marriage can not be reserved to homosexuals. That would seem to violate equal protection even as the current state of marriage law does not. Economic benefits? How about Aunt Irene marries her niece so that the niece has access to survivors benefits from the SSA?

3.17.2006 7:05pm
LTEC (mail) (www):
Kendall says: "Its not "discriminating" against bisexuals to say they can marry someone they fall in love with, its just saying that a bisexual can't marry multiple people they fall in love with."

So bisexuality just means one has more dating possibilities, before finding that ONE special someone to settle down with. And it is merely my imagination (and apparently Kovarsky's) that the very subject has virtually disappeared from LGBTQ activism in recent years.
3.17.2006 7:05pm
Gordo:
Polygamy can be distinguished from homosexual marriage because polygamy creates an unequal relationship between men and women. Notice we always talk about polygamy and not polyandry. Polyandry would, if anyone wanted to seriously practice it, create an unequal relationship between women and men as well.

As for other policy reasons, Clayton Cramer may be a little nuts on some other topics, but on this one his comments are spot on.

The same homosexual marriage-polygamy comparison could be made between homosexual marriage and incestuous marriage. The latter is objectionable for both biological and social reasons independent of society's preferences.
3.17.2006 7:08pm
Bryan DB:
gasman,
Your logic was rejected in Loving v. Virginia quite some time ago.
3.17.2006 7:13pm
Kovarsky (mail):
Gordon,

Look above in the thread to see the various answers to your polygamy v. polyandry point.

L
3.17.2006 7:14pm
Kendall:
LTEC -

So bisexuality just means one has more dating possibilities, before finding that ONE special someone to settle down with.


yes. What did you THINK it meant?

And it is merely my imagination (and apparently Kovarsky's) that the very subject has virtually disappeared from LGBTQ activism in recent years.


I don't see the relevance of this comment. True, Kovarsky seemed to be implying that bisexuals have a different agenda than homosexuals or transgendereds, but that does not mean he is correct. I think a bisexual individual wants the right to marry the adult person theyfall in love with, regardless of their gender. As the law stands now it doesn't matter who they fall in love with, there's a decent chance they'll be excluded on the basis of gender.
3.17.2006 7:19pm
Shawn (mail):
I am writing a blog that will discuss same-sex marriage as it pertains to the Constitution and a recent case Lawrence v. Texas.

As Randy Barnett so eloquently details in his 2003 article, this case (to me) indirectly provides another way to examine this issue (i.e., liberties versus licenses -- and the potential application of the Equal Protection Clause).

Please note that Professor Barnett also coauthored an amicus brief to the Supreme Court in Lawrence. To me this brief frames a very important question. Specifically, what liberties, which are not specifically mentioned in its text, are covered by the Constitution? As the founding fathers recognized, and as referenced in Madison's famous dialogue in his draft writing of the Bill of Rights, not all of the people's liberties are (or could be) spelled out in the Bill of Rights.

Marriage might fall more on the "license" side of things (and not be proteced), but it is still an interesting way of looking at this issue.

Questions:

Does the Constitution protect my liberty to eat more than 3000 calories in any given day. I think in answering this absurd question do we further define what "liberty" really means and what it covers.

Could Congress make it illegal for me to eat after 9 p.m.? Certainly I don't have a fundamental right (or liberty) in the Constitution to eat after 9 p.m., but nonetheless such a law would seem invasive to my ability to live my life as I generally see fit.

Do I have a Constitutionally protected liberty to drive? Or is this a license? Could driving be outlawed altogether? Driving certainly impacts others (and has the potential to kill) when it is not performed with basic skills.

It has always been my contention that if the Constitutional analysis is done correctly one should examine the "liberty" that is sought to be protected (and not the specific "act" -- such as sodomy). Assuming this is done, the specific "act" should only be controlled through legislation if it directly conflicts or infringes on an underlying liberty of the public -- with special attention given to "commercial" transactions, or licenses.

For example, the right to use drugs in one's home could be argued to infringe on the public's right to tranquility in the home (or on the public streets) because of the resulting criminal behavior or physical damage or harm that such drug use will cause in enough cases. This argument could also apply to prostitution. Moreover, the "customer" relationship in such transactions creates a unique situation in which one is vulnerable and could be harmed -- not to mention the issue of true "consent."

http://adiarytomydaughterisabella.blogspot.com/
3.17.2006 7:30pm
DWPittelli (mail) (www):
I fail to see how deciding that we don't want to discriminate on the basis of sexual orientation impels us to decide we musn't discriminate on the basis of monogamy if we want to be consistent.

Well, we know that some polyamorists argue that what they have is an "orientation" -- and they will continue to do so if that's the ticket to marriage right by judicial fiat.
3.17.2006 7:32pm
bluecollarguy:
Bryan DB,

gasman,
Your logic was rejected in Loving v. Virginia quite some time ago.

Loving held that sexuality was a protected class?
3.17.2006 7:33pm
DWPittelli (mail) (www):
"How are laws against inter-reacial couple marrying any less unconstitutional than laws against SSM?"

The reason judicial forcing of gay marriage is not the same as judicial forcing of inter-racial marriage is not because race is a less real concept than gender (although that is true). It is because the 14th Amendment's "equal protection" guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. (Also note that the ERA failed to pass, though its backers ridiculed the notion that even with it we would have gay marriage.)
3.17.2006 7:36pm
DWPittelli (mail) (www):
"what's wrong with polygamy again?"

In addition to the social problems which will likely result from most being 1 man, multiple women (mentioned above) polygamy is likely to lead to the death of marriage itself. For example, when 10 mob members can all marry each other, we will all lose the right not to have to testify against our spouses. When 10 people can marry one person with a state job and health insurance, all of our spousal health insurance will be at risk. When one or more spouses wants to divorce another, but not from the rest of the group, we will have truly contested divorces again; can we prevent a "slippery slope" to monogamous unions once judges are used to deciding who gets to have a divorce?

Also requiring the establishment of explicit (and difficult) rules: When 2 spouses disagree on a course of treatment for the third (ill) spouse, some outsider will have to make the decision (delays, lack of autonomy, etc., will follow). When only one spouse is at the hospital, will that spouse be able to make the decision, or will a quorum be needed? How will one prove that one is the only spouse? Will everyone even know whether he is the only spouse? Now one has legal methods to punish a bigamous spouse; will bigamy be illegal or subject to civil penalty if undertaken without the first spouse's approval?
3.17.2006 7:47pm
bluecollarguy:
Shawn,
"Could Congress make it illegal for me to eat after 9 p.m.?"

Only if you eat a hot dog in New York and deposit it in a pay toilet in Hoboken. In that case the infamous commerce clause obtains.

3.17.2006 7:52pm
Shawn (mail):
Being involved with more than one partner at the same time is a choice. I know of no science that suggest otherwise . . . except the science of men are dogs. However, being gay is not a choice. Therefore, SSM and polygamy are logically different, as one results from learned behavior.

Again, as it has not been scientifically proven to a certainty, I think we must determine or ask if one is born gay. This should be the firts question, as it changes the logical flow of many positions.

Another question(s):

Could Congress make it illegal for left-handed people to get married? How about someone that is color blind? How about someone that has an IQ off less than 80?
3.17.2006 7:52pm
Kovarsky (mail):
Kendall

True, Kovarsky seemed to be implying that bisexuals have a different agenda than homosexuals or transgendereds, but that does not mean he is correct.

Huh? All I said is that given that whatever marital preference a bisexual might have, that preference is fairly subsumed either by (1) the status quo (heterosexual marriage) or (2) the desired change (allowance of same-sex marriage).

My point was merely an observation about strategy. Namely that if bisexual marriage rights mean something other than to marry a man or to marry a woman, then those are understandably being put on the backburner for the moment, for political reasons.

I'm not sure what created the misunderstanding, but I most certainly was not implying that the two have different interests in securing the right to same-sex marriage.
3.17.2006 8:00pm
Kendall:
Sorry Kovarsky, I figured you probably didn't mean what he apparently thought you meant, but I had to make it clear that "bisexual unions" (a phrase I considered unfortunate and most likely unintentional) does not differ from what a gay person or a straight person wants. which is simply to marry someone they love.
3.17.2006 8:03pm
DWPittelli (mail) (www):
"Being involved with more than one partner at the same time is a choice. I know of no science that suggest otherwise . . . except the science of men are dogs. However, being gay is not a choice."

Neither half of your equation is so clear. The question of what is a "choice" is one for the philosopher as much as the scientist. Certainly "sex addicts" say they have no such choice, and many polyamorists say their "orientation" is innate, no doubt because they know that is the likely route to their empowerment.

On that note, in the 1970s many gays believed that being gay was a choice, while in the 1950s most gays believed their orientation was primarily due to their early experiences.

There is a bit more "science" to the current unassailable (PC) position that homosexuality is innate from early childhood; twin studies suggest something like a 50% genetic cause, which leaves a fair amount of room for free will. There is of course "no science" against a similar level of genetic cause for polyamory.
3.17.2006 8:04pm
Kovarsky (mail):
DWPittelli,

"what's wrong with polygamy again?"

In addition to the social problems which will likely result from most being 1 man, multiple women (mentioned above) polygamy is likely to lead to the death of marriage itself. For example, when 10 mob members can all marry each other, we will all lose the right not to have to testify against our spouses.


O yes, the fatal "dilution of the spousal testimonial privilege argument."

This remands me of another remark I've seen recently, but I can't remember who said it: Tonight I ask you to pass legislation to prohibit the most egregious abuses of medical research ... creating human-animal hybrids.
3.17.2006 8:11pm
DWPittelli (mail) (www):
Kovarsky,
What's your point? People have already gotten married to avoid testifying against each other. At least we can only lose 1 witness that way now, and then only if of the opposite sex. Do you really think that a married criminal organisation is as unlikely as human-animal hybrids? Remember that they can get married after arrest or indictment.
3.17.2006 8:15pm
DWPittelli (mail) (www):
Or is it your point that losing the spousal testimonial privilege is a trivial matter, compared to the importance of empowering the polyamorous?
3.17.2006 8:17pm
Kovarsky (mail):
Kendall,

I coined the phrase "bisexual unions," but I've been sort of unfairly taken to task for it (and unintentionally had it coopted!) if you look at the context:

It's sort of hard to fight aggressively for recognition of homosexual marriages while you're pushing for "bisexual unions," whatever that would mean.

By "whatever that means" I meant to convey precisely what you did. I didn't see how the bisexual interest in securing same sex marriage splintered from the homosexual interest (goodness, I hope you appreciate how much I hate these labels) in doing so. The only way they could diverge, I reasoned, was if "bisexual union" had some coherent meaning and, as I suggest in the derisive passage above, I don't think think it does.

I'm not just responding to you - several people have remarked about how stupid the term is, apparently not realizing that I coined it precisely to show how logically unintelligible the idea behind it is.
3.17.2006 8:18pm
Shawn (mail):
DW,

There is a clear difference as I know of no one that is born a sex addict or a drug addict (except for babies of users) -- even if science tells us that some people are more vulnerable to the reaction in the frontal lobe that such behavior creates.

Question: I am assuming you are not gay. Is this a choice of yours? Could you choose to have a gay relationship? To say such is a philosophy ignores science. Moreover, unless you tell me that you could choose to have a gay relationship, is an excuse.

So could you have a gay relationship? Your answer must be yes for your statements to be consistent.

How many gay friends do you have? Sometimes reading about what gays think is less valuable than actually talking about the issues in person. I know zero gay men that think it is a choice. I do know a few gay women that were sexually abused as children and are not certain how that impacted their "gayness." Otherwise, none of my gay friends consider it a choice.
3.17.2006 8:29pm
DWPittelli (mail) (www):
"There is a clear difference as I know of no one that is born a sex addict"

You do not know if anyone was born a sex addict (whatever that means) or polyamorous, just as you do not know if anyone was born gay or lesbian. If sex addicts (or the polyamorous) are effectively told that the route to forgiveness of adultery, or plural marriage or other rights, comes from collectively claiming their "orientation" to be inherent "from birth" (whatever that means), then that is the claim they will make, and with no more or less credibility than gays and lesbians, whose beliefs about their fetal predispositions are no more subjectively real, or even historically fixed.
3.17.2006 8:39pm
Kovarsky (mail):
Or is it your point that losing the spousal testimonial privilege is a trivial matter, compared to the importance of empowering the polyamorous?

Well, my point is that - no matter what you think about the merits of this issue - if someone asks you to make a list of what is bad about polygamy, i might start with a reason other than the dilution of the spousal testimonial privilege.

Much like if someone we're asking me about what were the most problematic modern abuses of medical science, I might start with something other than the Centaur.
3.17.2006 8:43pm
DWPittelli (mail) (www):
I am not gay. Neither am I polyamorous. Although I am actually in favor of gay marriage, but strongly opposed to polygamy, I do not concede that the fact that, by definition, heterosexuals are not homosexuals or even bisexuals, means that gay marriage must be recognised as a right protected by some reading of the Constitution, or that polyamorists cannot plausibly make an equally valid parallel claim.
3.17.2006 8:49pm
Kovarsky (mail):
You do not know if anyone was born a sex addict (whatever that means) or polyamorous, just as you do not know if anyone was born gay or lesbian. If sex addicts (or the polyamorous) are effectively told that the route to forgiveness of adultery, or plural marriage or other rights, comes from collectively claiming their "orientation" to be inherent "from birth" (whatever that means), then that is the claim they will make, and with no more or less credibility than gays and lesbians, whose beliefs about their fetal predispositions are no more subjectively real, or even historically fixed.

You are correct, and the degree to which our jurisprudence is focused on whether someone is "born with the trait" is going to have to shift to acknowledge 19th+ centuries' discoveries in psychology, biology, physiology, and cognitive science.
3.17.2006 8:51pm
Lanthanist:
In regards to prohibiting gay marriage vs. interracial marriage, it can be pointed out that the differences between racial classifications is small compared to the fact that men and women are not the same. Gay marriage prohibition is not so much a matter of sexual orientation, but of a persons sex itself.

While same sex marriage does not necessarily lead to polygamy, many of the arguements used for same sex marriage can be used for polygamy and other marriages involving more then two people. The fact that many same sex marriage advocates can't stand many person marriages is that it shows that they don't really care about people having the freedom to live their lives with whom they want, but of imposing their morality on society while prohibiting others (who oppose same sex marriage) from doing the same.

As for the "social interest" of making sure that one man does not monopolize too many women, many person marriages are not necissarily limited to one man/many women. You could have one woman and many men or simply many people of one or both sexes. After all, if the government can't limit marriage to different sex couples because it is deemed that that is best for society, then why can it do so for many person marriages?
3.17.2006 8:51pm
DWPittelli (mail) (www):
I didn't start with the spousal privilege, but incorporated previous sociological issues related to the shortage of women. (Which I believe to be more important; but I didn't see the point of rewriting that which was said earlier.) And the spousal privilege is not the equivalent of the Centaur, since the spousal privilege actually exists, and is an extremely important part of marriage, as it is the state's recognition that marriage is the only relationship which is more important than the needs of the state.
3.17.2006 8:55pm
Shawn (mail):
DW,

Please respond . . .

I am assuming you are not gay. Is this a choice of yours?

Could you choose to have a gay relationship? The answer must be yes if you are not gay because of a choice. So please confirm that you could have a gay relationship. And what time you get off work . . . just joking . . .

Also, yes I know plenty of people that were not born addicted to drugs. This is an easy one to show scientifically. Moreover, I know zero MD /PhDs that think people are born sex addicts. There is some debate about how different people have different frontal lobe reactions.

Also, please excuse the typos as I am typing with one hand. My baby is asleep on my chest.
3.17.2006 8:58pm
Lanthanist:
Playing devils advocate (kind of) again...


BTW, why is the discussion only about polygamy and not polyandry? This appears to be a relic of patriarchal cultures. If we introduce polyandry into the mix, the spouse-distribution problem is somewhat ameleorated. And lest anyone introduce the genetic issue, DNA testing works wonders should someone actually need to determine which child goes with which father.


Why stop at incestuous marriages? After all, shouldn't consenting adults be able to live their lives together? Wouldn't such prohibitions be "genetic discrimination"? After all, if the government can't limit marriage to different sex couples because it is deemed that that is best for society, then why can it limit marriages to between people whose relative genetic make-up is acceptable to the government.

The only other argument that can be made is that the government has an interest in preventing children from such couplings from being born, even though such incestuous romances can happen regardless of marriage status. Do we really want to argue that discrimination to prevent genetically inferior human beings from being born is okay?
3.17.2006 9:03pm
DWPittelli (mail) (www):
Shawn,
I do not know or particularly care to what extent my heterosexuality was due to choices earlier in life. I do not know if one can turn a teenage boy gay, for example, by offering him gay sex, which he may or may not choose to try, and may or may not enjoy depending in part on the skill of the lover; or if some minority of boys have a plastic sexuality that can be so formed, what that minority percentage is.

But even if I were to concede that all homo- and hetero-sexuality were purely genetic, that would not mandate gay marriage under the Constitution, because the 14th Amendment's equal protection guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. And if it were stretched to include such status, it would be no more of a stretch for it to include polygamous marriage, given the claims of the polyamorous.

I also do not see why hetero-only marriage is any more unconstitutional than single-sex prisons. Gay people get to have meaningful romantic and sexual relationships with their prison cellmates; why can't I? Isn't sexuality an even more private and protected thing than marriage?
3.17.2006 9:18pm
DWPittelli (mail) (www):
Lanthanist

Polyandry is not the opposite-sex situation from polygamy. Polyandry (1 wife, multiple husbands) is the opposite of polygyny (1 husband, multiple wives). Polygamy can go either way, or include group marriage, but most people think that in any society that allows all 3 types, most such will be polygynous; that is, at any rate, the evidence from history (ancient and recent) and anthropology.
3.17.2006 9:25pm
Walk It:
I think that Althouse is a wonderful hostess in her blog, in that her overall attitude and funny personality attracts people from a wide variety of the political and demographic spectrum.

You mightn't necessarily agree with her overall argument presented today, but there is no denying that she stimulates deep thought and discussion among her readers, who, like I said, seem to represent such a broad swath of Americans. I think it is so healthy that you, another law professor, are able to civilly critique the arguments and challenge us to think on other aspects, linking to your own scholarly work on this same issue.

Again, that seems to be Althouse's gift: bringing together and keeping such a wide range of views, and challenging everyone to re-think their views, either making them more confident in their strenghts, or building up their weak points.

I'm glad she stayed "independent" as a blogger, and I'm glad to see that all of you out there are not so polite as to automatically focus on your agreements, and gloss over any dissenting views. Too bad we can't elect a "Court" out of our favorite legal bloggers. I would put a lot of my faves together, and see if you could work together to whip this country back into shape. cheers.
3.17.2006 9:28pm
Kovarsky (mail):
Lanthanist,

The fact that many same sex marriage advocates can't stand many person marriages is that it shows that they don't really care about people having the freedom to live their lives with whom they want, but of imposing their morality on society while prohibiting others (who oppose same sex marriage) from doing the same.

That sounds Orwellian. When you are talking about things that are exercises of what may or may not be an individual right, you are not "imposing your morality" by exercising it; the state is "imposing morality" by interfering with it.

Moreover, the fact that many same-sex marriage advocates get off the bus when it comes to polygamy (pun intended) does not prove that they're being aprincipled. If you believe all these points made on the post - that polygamy imposes legal costs and social costs that same sex marriages do not - then you've got a perfectly principled reason to distinguish between the two.

I take you to be saying that advocates of same-sex marriage locate the moral authority for their position in the idea that "you can marry who you want." Well, that's not precisely the moral argument same-sex marriage advocates are making; many are making the argument that if society is willing to acknowledge biparticipant marriages, there is no moral reason why same-sex marriage should be excluded from that blessing. It is not a free floating argument of multi-marital entitlement, as you seem to think. There is therefore no, as you imply, moral opportunism going on.

I can't help but get the feeling that at base people feel that approving of same sex marriages delimits entirely the types of sexual and romantic behavior the government can regulate. Next polygamy, then incest, the argument goes. The point that these people always seem to miss is that - aside from an objection that homosexuality is "inherently deviant," a claim with which there is just no arguing - there are lots of easy dimensions, such as consent, institutional costs of rearranging rules, that prevent an acknowledgement of same-sex marraiges from being, ipso fact, a delimitation of all state regulation of sexual behavior.
3.17.2006 9:28pm
SenatorX (mail):
Homosexuality has to be a choice, otherwise you can't send them to hell for doing it.
3.17.2006 9:36pm
DWPittelli (mail) (www):
Shawn,

From a policy point of view (i.e., as a voter in referendum) it is of course relevant to me that gay people presumably have no more desire to have a straight marriage than I do a gay one. I would in fact vote to legalize gay marriage. I just don't want judges making up specious Constitutional rights arguments to fit such value judgements. Both because the same argument might be used to advance things I am opposed to (i.e., polygamy) and because the pattern of making such stuff up is a recipe for oligarchy. (Call me crazy, but to me, a 9-person unelected life-tenured oligarchy would be even less desirable than an elected, unicameral legislature without a judiciary or constitution; i.e., some parliamentary systems.)
3.17.2006 9:37pm
Kovarsky (mail):
DW,

But even if I were to concede that all homo- and hetero-sexuality were purely genetic, that would not mandate gay marriage under the Constitution, because the 14th Amendment's equal protection guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. And if it were stretched to include such status, it would be no more of a stretch for it to include polygamous marriage, given the claims of the polyamorous.

No. No. No. No. Even if you think the EP clause has to bend to accept sexual orientation, under what logic is it "not a stretch" to include polygamists? Just because you say so? As I've noted above, there are perfectly good constitutional (different levels of scrutinty, different assessment of fit), policy (institutional adjustment to same-sex biparticipant unions versus institutional adjustment to polyparticipant unions), and philosophical (polygamy, whatever its technical meaning, really promotes multiple women per man) reasons for distinguishing between the two groups. You just keep coming back and asserting there isn't, without offering one iota of explaining why. If you are going to continue to post aggressively on this subject, please do everybody the courtesy of explaining yourself.

I also do not see why hetero-only marriage is any more unconstitutional than single-sex prisons. Gay people get to have meaningful romantic and sexual relationships with their prison cellmates; why can't I? Isn't sexuality an even more private and protected thing than marriage?

Women get raped when they're incarcerated with men, you klingon.
3.17.2006 9:44pm
Lanthanist:


The fact that many same sex marriage advocates can't stand many person marriages is that it shows that they don't really care about people having the freedom to live their lives with whom they want, but of imposing their morality on society while prohibiting others (who oppose same sex marriage) from doing the same.

That sounds Orwellian. When you are talking about things that are exercises of what may or may not be an individual right, you are not "imposing your morality" by exercising it; the state is "imposing morality" by interfering with it.


Many people that I know who are gay, and people I know who are strait but support same sex marriage consider polygamy and incest to be immoral, socially bad and just plain "wrong." So why is their opinion valid when those of people who oppose same sex marraiges are "just bigoted" and thus invalid?


If you believe all these points made on the post - that polygamy imposes legal costs and social costs that same sex marriages do not - then you've got a perfectly principled reason to distinguish between the two


So, if the government decides that same sex marriage do impose such a cost, then prohibiting it would be morally acceptable?


many are making the argument that if society is willing to acknowledge biparticipant marriages, there is no moral reason why same-sex marriage should be excluded from that blessing


If society is willing to acknowledge marriage reagardless of a person sex, then why draw the line when it comes to numbers. If peolple who oppose same sex marriage are "heteronormitive" then would those who oppose polygamy be "dualnormitive."

In all seriousness, virtually no moral argument against polygamy can be made that can not also be used by those who argue against same sex marriage.
3.17.2006 9:44pm
Donald Meaker (mail):
Homosexuals have always been able to get married: Homosexual men can marry women. Homosexual women can marry men. For many years, they did. Consider Eleanor Roosevelt's relationship with journalist Lorena Hickok.

I submit that such an approach would also cause significant sorrow and legal difficulties, and have in the past. I have no idea if one would significantly outweigh the other.

If bisexuals exist, that would put polygamy (or polygyny) on the same footing, and with the same justification as homosexual marriage.

On the other hand, does a unfaithful nature of some people create a justification for a legal "unfaithful marriage" relationship?

I don't have a problem with alternative contractual relationships, but must these innovations coopt and corrupt the existing "trademark"? Can't the creative polygamous, homosexuals, bisexuals, and unfaithful come up with a new name? Is their creativity used up in their family relationships, so they have to slavishly copy the faithful heterosexuals?
3.17.2006 10:01pm
bluecollarguy:
Kovarsky,

You seem to be saying, and correct me if I'm wrong, that homosexual marriage should it arrive at that august body in DC deserves heightened scrutiny while polygamy would be subject to rational basis. Why?
3.17.2006 10:06pm
Kovarsky (mail):
Lanthanist,

Do your gay buddies consider stealing wrong? illegal drug use? rape? murder? are they "hypocritically" imposing their moral outlook when they treat these things as wrong, but argue for same sex marriage? In order to establish a claim that the state is acting "coercively" (the equivalent to "imposing morality" in your parlance), you've got to show that it is using its monopoly on the use of legitimate power to constrain the exercise of a personal right. So a law protecting same-sex marriage does not "coerce" or "impose morality" on anybody unless you can articulate some third party interest that is diminished because of that law. Go ahead, explain what third party is having its rights constrained, and why.

You say:

If society is willing to acknowledge marriage reagardless of a person sex, then why draw the line when it comes to numbers. If peolple who oppose same sex marriage are "heteronormitive" then would those who oppose polygamy be "dualnormitive."

I swear, people think if they say this enough times, it is just true. Wow. Magic. No. The possible economic, political, legal, and moral distinctions are explained at length above, and you don't just get to rebut them by just reasserting the conclusory proposition to which they were designed as a response.
3.17.2006 10:07pm
Kovarsky (mail):
Homosexuals have always been able to get married: Homosexual men can marry women. Homosexual women can marry men. For many years, they did. Consider Eleanor Roosevelt's relationship with journalist Lorena Hickok.

Lovely. "Black people always had equal rights. They were allowed to sit in front of the bus if they became white."
3.17.2006 10:09pm
Kendall:
Donald Meaker - "Homosexuals have always been able to get married: Homosexual men can marry women. Homosexual women can marry men."

Yes, and when miscegnation laws were in effect it was said that blacks were always able to get married, to other blacks. Your point does not advance the discussion particularly.

"If bisexuals exist, that would put polygamy (or polygyny) on the same footing, and with the same justification as homosexual marriage."

I also don't understand this. I find many people attractive, in fact, I'm attracted to people with many different hair colors for example. I'm attracted to blonds, brunettes, redheads, etc. Just because I have multiple attractions isn't a basis for changing the the scope of marriage, is it? Bisexuality doesn't equate to polygamy, it equates to an attraction or the ability to be attracted to people of both gendersm, not necessarily a simultaneous relationship with both genders.
3.17.2006 10:13pm
Donald Meaker (mail):
Having thought about it, I think that the slavish copying is the sole reason for the agitation. It is a slick marketing approach to sell what would be straightforwardly unacceptable.

Say a male male relationship was called a biage. Then the various duties and benefits associated with a biad would have to be rigorously defined and passed by the legislature. It could be informed by marriage, but each characteristic would be separately debated, and separately voted.

Then a female female relationship was called a diage. Then the various duties and benefits associated with a diad would have to be rigorously defined, and passed by the legislature. Again, it could be informed by biage and diage, but could also be different, based on different characteristics and risks. For example, unfaithful biage may not be grounds for ending the legal relationship, but unfaithfulness in diage could be, or vice versa.

By conflating the very different nature of biage, diage and marriage, the proponents of biage get to coopt the years of common law associated with marriage, applying law developed for one situation (children related biologically to both parents) to another different situation (no children, or children related to one and only one parent, or children related to neither parent)

The conflation is the argument. Few seriously suggests that homosexuals should not have any relationship. Few accept homosexual legal relationships will be exactly equivalent to heterosexual legal relationships, by their nature. The issue is framed dishonestly, specifically to bypass the will of the people as expressed in their legislature.
3.17.2006 10:15pm
Kovarsky (mail):
Blue Collar Guy,

You ask, I think earnestly:

Kovarsky,

You seem to be saying, and correct me if I'm wrong, that homosexual marriage should it arrive at that august body in DC deserves heightened scrutiny while polygamy would be subject to rational basis. Why?


Sorry if I was unclear, that's not at all what I'm saying. I'm saying that whatever level of scrutiny the court treats the samesex marriage issue under, it is more likely to be a more stringent scrutiny than the court would treat polygamy under (for a variety of reasons - including the neater fit with the attributes outlined in caroline products FN 4, which guides a lot of this stuff).

I further noted that even if they were treated under the same standard, the state's evidentiary showing under the strength of interest and goodness of fit components of scrutiny would be much weaker for same sex marriage than it would be for polygamy (remember, this gets to the court because someone claims a restriction on same sex marriage/polygamy is unconstitutional under the EP clause).

Also, for the record, no matter how much I wish it did, I don't think the EP clause protects same-sex unions. I'll vote to protect it under an amendment and at the federal and state ballot box but, unfortunately, I don't think the EP amendment gets us there.

What I do believe, however, is that same-sex unions are a lot closer to protection under the EP clause than is polygamy.

Does that clarify?
3.17.2006 10:17pm
Kendall:
The issue is framed dishonestly, specifically to bypass the will of the people as expressed in their legislature.


Should the legislature be allowed to pass and maintain laws that the courts find, in their role as interpreters of the federal or their own state's constitution, unconstitutional?

For that matter, the Massachusetts legislature last year voted against a proposal to ban gay marriage in their state. Doesn't that suggest that the Massachusetts legislature has given the nod affirming the SJC's ruling?
3.17.2006 10:19pm
Salaryman (mail):
Is there any evidence that legalizing polygamy would have any, much less major, economic consequences? If so, what is the evidence and what would be the consequences?

For example, Professor Althouse states that "A polygamous marriage . . . puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple." While this is probably true in the simple arithmetic sense that ten people claiming Medicare benefits will probably get more benefits as a group than two people claiming Medicare benefits would, I wonder if it is also true in some non-trivial, non-tautological sense. Would six people claiming marriage benefits as members of two three-person unions necessarily be entitled to more benefits than six people claiming marriage benefits as members of three two-person unions? I'm not a family law expert, so maybe they would be, but it certainly doesn't seem obvious that this would be the case, or at least not in any way that couldn't be adequately addressed statutorily.

(Obviously, if surviving spouses were each entitled to some lump-sum payment from the government (rather than from the decedent's estate) upon a spouse's death, the two surviving spouses in a triad would get twice as much as the one survivor in a two-person marriage, but this (a) could probably be fairly readily addressed statutorily and (b) doesn't seem enormously, or perhaps at all, unfair even if left unremedied -- I wouldn't consider it a grievous injustice if the lump sum were payable to orphans and a set of four orphaned siblings got four times the amount paid to an orphaned only child.)

I apologize if someone else has made these points and I missed it.
3.17.2006 10:20pm
Salaryman (mail):
Is there any evidence that legalizing polygamy would have any, much less major, economic consequences? If so, what is the evidence and what would be the consequences?

For example, Professor Althouse states that "A polygamous marriage . . . puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple." While this is probably true in the simple arithmetic sense that ten people claiming Medicare benefits will probably get more benefits as a group than two people claiming Medicare benefits would, I wonder if it is also true in some non-trivial, non-tautological sense. Would six people claiming marriage benefits as members of two three-person unions necessarily be entitled to more benefits than six people claiming marriage benefits as members of three two-person unions? I'm not a family law expert, so maybe they would be, but it certainly doesn't seem obvious that this would be the case, or at least not in any way that couldn't be adequately addressed statutorily.

(Obviously, if surviving spouses were each entitled to some lump-sum payment from the government (rather than from the decedent's estate) upon a spouse's death, the two surviving spouses in a triad would get twice as much as the one survivor in a two-person marriage, but this (a) could probably be fairly readily addressed statutorily and (b) doesn't seem enormously, or perhaps at all, unfair even if left unremedied -- I wouldn't consider it a grievous injustice if the lump sum were payable to orphans and a set of four orphaned siblings got four times the amount paid to an orphaned only child.)

I apologize if someone else has made these points and I missed it.
3.17.2006 10:20pm
Kovarsky (mail):
Donald,

The conflation is the argument. Few seriously suggests that homosexuals should not have any relationship. Few accept homosexual legal relationships will be exactly equivalent to heterosexual legal relationships, by their nature. The issue is framed dishonestly, specifically to bypass the will of the people as expressed in their legislature.

Yes, you have it figured out. The reason people object to same sex marriage isn't because they don't want them to live together, make love, adopt children, raise a family, hold hands, have financial benefits, and grow old together.

It's really just that they resent homosexuals' free-riding on the century long development of heterosexual common law.
3.17.2006 10:21pm
Donald Meaker (mail):
I want to make clear that I am probably one of the few readers here who have been in both an incestuous marriage (or at least consanguineous marriage) and a miscegneous marriage.

Certainly I have been one who has been willing to push the envelop in the past.
3.17.2006 10:23pm
Kovarsky (mail):
Donald,

No offense, really, but that does not really correlate with a bias in favor of same-sex marriage. For instance, in Texas, the same-sex marriage ban passed by a larger approval rate amongst minorities than it did amongst whites. Even more amazing, within each one of those minorities, it passed by an overwhelming majority (so it's not like the views of a particular minority were dragging the data in one way or the other).

In fact, the cognitive impulse for those wishing to enter same-sex marriages to separate their interest from those of polygamists is the same cognitive impulse that apparently accounts for racial minorities (and those in miscegenated marriages) from distancing their interests from those pursuing same sex marriage rights.
3.17.2006 10:29pm
Kovarsky (mail):
Salaryman,

But you are forgetting the decisive objection that polygamy will increase the number of spousal testimonial privileges.

And we haven't even gotten to the marital communications privilege! Oy vey!
3.17.2006 10:31pm
DWPittelli (mail) (www):
Kovarsky,

Talk about assertions without argument: You say...

"any law restricting marriage rights of either group will have to be justified by reference to the "compellingness" of the interest and the "fit" of the rule addressing it. Both of those will require evidentiary scrutiny where the evidence favoring homosexuals will doubtlessly be much stronger than the evidence favoring polygamists."

Is saying "doubtlessly" an argument? Could't a polyamorist equally claim that "doubtlessly" the opposite is true, since history and anthropology support that polygyny, at least, is normal and common, while homosexual marriage has been exceedingly rare? Couldn't a reasonable person, pointing out the existence of AIDS, equally well argue that "doubtlessly" male homosexuality should be suppressed? How does a court weigh the relative strength of these arguments? Does any group deserve "equal protection" as soon as 5 Justices come to believe that the group's members are included "from birth" or without any real choice? Would polyamorous marriage follow upon finding a gene which has a 50% chance of making one really, really crave multiple partners? Isn't that gene the Y chromosome? These are not, and should not be seen as, questions to be answered in the Constitution, or decided by oligarchs trained as legal scholars.
3.17.2006 10:37pm
Kendall:
Couldn't a reasonable person, pointing out the existence of AIDS, equally well argue that "doubtlessly" male homosexuality should be suppressed?


I was unaware that male homosexuals were responsible for the HIV virus. Certainly as a function of population HIV is more common in male homosexuals, but also shows a strong prevalence in african american females. For that matter, over 50 million people in africa have HIV, that to me is not the fault of homosexuals merely because the HIV virus "exists"
3.17.2006 10:46pm
DWPittelli (mail) (www):
Kendall,

I am in favor of gay marriage and against suppressing homosexuals. But gay male sex is at least an order of magnitude more likely to spread AIDS in the US as straight sex (and anal sex is at least an order of magnitude more likely to spread AIDS in the US as vaginal or oral sex) and so I don't see how a judiciary could deny that there's a state interest in suppressing gay male sex, even though I agree with Clarence Thomas that such laws are "uncommonly silly."

(I agree that Africa has a broader AIDS problem, due largely to widespread TDs, poor sanitation, prostitution, and people often too poor to buy condoms or health care.)
3.17.2006 10:58pm
TRC:
I oppose same sex marriage because I do not want to give two *heterosexual* females (or males) the right to marry. Wait, that's obviously not what I meant . . . I meant I oppose same sex marriage because I do not want to give two *homosexual* females (or males) the right to marry. No. No. NO. I got it wrong, again: What I really meant is that I oppose same sex marriage because I do not want to give two *heterosexual* females who are part of a polygamous relationship the right to marry. Oh, damit. Somebody please help me: Is there a reliable test of sexual orientation?

Moving on: I am nominally sympathetic to GAY same-sex marriage. But I don't want anything to do with the other types of same-sex marriage. Can we agree to have GAY same-sex marriage while excluding all other types of same sex marriage?
3.17.2006 10:59pm
Kendall:
DWPittelli - Fair enough, from that limitted point.


TRC - "Moving on: I am nominally sympathetic to GAY same-sex marriage. But I don't want anything to do with the other types of same-sex marriage. Can we agree to have GAY same-sex marriage while excluding all other types of same sex marriage?"

Of course not, anymore than opponents of same sex marriage want to exclude gays from heterosexual marriage. If two heterosexual men decide to marry then if SSM is legalized they should be allowed to.. and if a gay man and a lesbian decide to marry I'm aware of no law that can stop them right now, today.
3.17.2006 11:04pm
Kovarsky (mail):
DW

Is saying "doubtlessly" an argument?

No.

Could't a polyamorist equally claim that "doubtlessly" the opposite is true, since history and anthropology support that polygyny, at least, is normal and common, while homosexual marriage has been exceedingly rare?

I'm not clear on the connection you're making between history/anthropolgy and morality/constitutionality.

Couldn't a reasonable person, pointing out the existence of AIDS, equally well argue that "doubtlessly" male homosexuality should be suppressed?

No, not if the incidence of AIDS in homosexuals, while considerably higher that amongst heterosexuals, is still sufficiently low (men get in bar fights more than women, is that sufficient to keep men out of bars?)

How does a court weigh the relative strength of these arguments?

I have no idea. How does a legislature weigh them? My point isn't that samesex marriage is protected or isn't, it's that there are differences between it and polygamy.

Does any group deserve "equal protection" as soon as 5 Justices come to believe that the group's members are included "from birth" or without any real choice?

Not pursuant to my understanding of equal protection, but you'll have to take that up with the Justices.

Would polyamorous marriage follow upon finding a gene which has a 50% chance of making one really, really crave multiple partners?

I have no idea. I stated expressly above that the right shouldn't be tethered to its genetic immutability.

Isn't that gene the Y chromosome?

Um, ok.

These are not, and should not be seen as, questions to be answered in the Constitution, or decided by oligarchs trained as legal scholars.

Sure, that doesn't mean that same-sex marriage and polygamy should be treated as the same by a court or a legislature.
3.17.2006 11:20pm
Joel B. (mail):
Sadly, it appears many overestimate the ability of marriage to withstand same-sex couplings and yet hold off polygamy.

Let me suggest that perhaps the most fundamental reason that same-sex marriage will lead to polygamy, probably quite quickly, is because once marriage is untethered to anything who is going to care anymore?

Sure maybe some social conservatives (like myself) will say, sure we lost the fight against SSM, but we'll keep up the fight against polygamy. I, however, very much doubt it. What social conservative is going to care a whit anymore about it. Marriage will be untethered and meaningless, and quite frankly I would care less what it meant, because it won't mean anything.

So once social conservatives go apathetic who's going to stand in the breach against polygamy? Libertarians? The already generally accept polygamy. Liberals? I doubt it very much as well. Why would they care what marriage means? They didn't before, why would they now? Because of economic arguments? I seriously doubt it. Those who agitated for homosexual marriage? Ha, many have already stated they think marriage needs to be changed to accomodate more 'open' lifestyles. Or that marriage is fairly meaningless as it is.

Tell me then. Anyone...tell me, who will stand in the breach? Who? Because there won't be anyone who cares to stop it. Does anyone really think that social conservatives are going to defend marriage against polygamy (which is biblical as long as one does not seek to become an elder), after SSM has breached.

Eugene and his "no slippery slope" here thought, may be all well and good legally, but it is hot air, as in regards to the political realities of the matter. Again, is Eugene going to fight against polygamy? Will he care? Will anyone? Why should we? Does anyone fight over a corpse?
3.17.2006 11:24pm
TRC:
If two heterosexual men decide to marry then if SSM is legalized they should be allowed to..

Well, perhaps. But suppose that you want limit, at least initially, same sex marriage to GAYS, who as a group are strong advocates of such marriages, but exclude straights, who as a group are not pressing for same-sex marriage (and are generally opposed). How would you stop two heterosexual males from marrying?
3.17.2006 11:25pm
DWPittelli (mail) (www):
Kovarsky,
"no more of a stretch" does not equal "not a stretch."

More to the point, if judges looking at "equal protection" are going to confuse subjective and objective equality, we must all have a right to steal, since laws against theft, while objectively applying to all of us, don't really apply to those of us rich enough to have no desire to steal.

After all, the 14th Amendment doesn't actually say anything about groups "from birth" or groups of any kind, let alone races. Its relevant part says:

"nor shall any State... deny to any person within its jurisdiction the equal protection of the laws."
3.17.2006 11:27pm
tom schofield (mail):
I've been following this thread since it started, and it's tapped some rather strong emotions, which have led to some rather strong statements. There have been a few references to the evidence of the innateness of homosexuality being supported by data from psychology (either developmental, social, or cognitive). Such data is less conclusive than we might hope it is. We've found divorce genes, TV watching genes, aggression genes...and the best gene-identifying behavior geneticists out there are the most modest about the questions of cause. Is a "violent gene" a crystal ball to that person's future, or does it signal a probabilistic. malleable predisposition? Our passion for this issue may tempt us to stretch the data further than it can go. If there are any VC readers who were unaware that the verdict on the innateness of homosexuality was already 'in', don't feel left out. It's not. The definitive meta analysis is still many years away, and unless the APA becomes less...inflexible about this issue, there'll be a really severe file drawer problem to contend with. We can debate this all we want, but don't look to science to answer the innateness question anytime soon. Maybe we can interpret laws to say what we wish they said, but we just shouldn't do that with data. It'll undermine the whole enterprise.
3.17.2006 11:27pm
TRC:
Tom,

I very much doubt there will ever be a definitive meta-analysis that resolves the legal issue of same sex marriage.

The behavioral genetic research shows that sexual orientation has a genetic basis, much like many psychological characteristics (IQ, psychological disorders). However, genetic factors account for (at most) 50% of the variance in sexual orientation, and typically account for far less variance (probably ~30, see Wiki article). By comparison, genetic factors account typically account for 60-80% of the variance in IQ. Interestingly, there is quite a bit of research indicating that the propensity of adolescents to engage in homosexual behavior is relatively high in families with homosexual parents, probably because adolescents who have homosexual parents are less likely to view homosexual behavior as deviant, and therefore more likely to experiment with homosexual practices, even though such adolescents report being heterosexual (see Golombok and Tasker's stuff).

In any case, the issue of a definitive meta-analysis will have little bearing on people's opinions: Both advocates and opponents of same sex marriage will see the data as a Rorschach: Advocates will say, "Look, this shows there is a genetic basis for homosexuality, and so homosexuals deserve protected status." Opponents will say, "Look, most of the variance in homosexuality is accounted for by non-genetic and environmental factors, so homosexuals don't deserve legal protection." And round and round they will go.
3.17.2006 11:56pm
Shawn (mail):
AIDS is a disease / virus of convenience and nothing more. The numbers indicate this, as the highest percentage of any group with AIDS is currently "heterosexual" [verification pending] African women. In fact, worldwide women make up around 47 percent of the people living with aids.

As I recall, lesbians in "western" nations have lower instances than similarly situation straight men. In the United States, I think that the lesbian transmission in any given year can be counted on one or two hands.

Bottom line, if you have more than one partner, have unprotected sex, and are exposed in an "invasive" manner (resulting in possible lesions when bodily fluids are exchanged), then it does not matter if you are gay or not. Regarding the fluids, evidence suggests that only semen, blood, vaginal secretions, and "maybe" breast milk can transmit the virus.

In the United States, it is estimated that around 0.6 percent of the country is infected with AIDS. There are countries in Africa where the number approaches 39 percent. There are hundreds of sites out there, but see the following to see just how devastating this disease has become in African:

GlobalHealthReporting

UNAIDS

AidsandAfrica

ODCI

Wikipedia


Back to the Constitutional issue, let me just say I agree that it is not clear that SSM is protected by the constitution even under Lawrence.




http://adiarytomydaughterisabella.blogspot.com/
3.17.2006 11:57pm
Kendall:
TRC - "Well, perhaps. But suppose that you want limit, at least initially, same sex marriage to GAYS, who as a group are strong advocates of such marriages, but exclude straights, who as a group are not pressing for same-sex marriage (and are generally opposed). How would you stop two heterosexual males from marrying?"

Short answer, you can't. In fact, I recall when Canada legalized gay marriage reading of a case of two heterosexual men marrying each other as a protest. But I don't understand the relevance of this discussion, my understanding is that the primary push for gay marriage, and the primary basis in law for gay marriage is that heterosexual marriage is gender discrimination (A man cannot marry a man, even though a woman can marry a man, and similarly a woman cannot marry a woman even though if she were a man she could.)
3.18.2006 12:03am
Kendall:
which, just to be clear because I didn't explicitly state this, means that the reason for gay marriage is based on gender discrimination, not orientation discrimination.
3.18.2006 12:06am
Shawn (mail):
For those that don't think that being "attracted" (or gay)to the same sex is decided at birth, then let us attempt a new argument (just for fun).

First, do you think that there is a point in time when it no longer is a "choice" (through socialization or otherwise). If this is a case, then there is a point in time when there is no going back for these people. Moreover, their forming experiences probably happened while they were children and under the supervision of others. Therefore, under this premise, it still seems inhumane to hold these "now" gay people to a different standard, as society was not able to "protect" them as children. This is irrespective of the Constitutional issue. Again this is just a fun argument.

Second, if you say no (i.e., that it is "always" a choice), and you are not gay, then let me know if you could choose to have a gay relationship. PLEASE! No one seems to be willing to answer this question. I won't tell anyone, I promise. Is there any straight man on this board that could choose to have a gay relationship now? I answer no, but then I have never been to prison. I bet the prison experience has more to do with "control" than being gay though, you know like rape or other violent acts, but who knows.

I do not claim to have all the answers, but as an old man I am convinced enough (for government work) that most gay people are genetically determined to be so at birth. I have chosen to take this stance. I have also taken the stance than a number of the current views of gay life are nothing less than hateful bigotry. This is my choice and by no means am I claiming to be right. It is just a stance I decided to take given my relationship, life experiences, etc. This was my choice. In fact, I have taken it one step further by deciding that even if it is choice, it is still no big deal as long as it is between two consenting adults.

However, notwithstanding my beliefs, I am undecided on whether the Constitution protects same sex marriages. I think Kennedy would say yes, but I am not sure about the rest. Finally, I would like to say that we should not forget that it is exactly the situation when the majority thinks that the answer is X that the Constitution should be used to make sure that the minority is protected. Remember that women were not given the right to vote until the success of the suffrage move in 1919 (or was it 1920). Also, remember that several of the States had a majority that firmly believed in separate but equal. Legislative majority does not make it constitutionally correct. And it seems that time does change things.

My head hurts. Please don't be offended if I log off for the night or have a position different than yours. Good night all and remember, it is our differences (including opinions) that make us great. If we all thought the same way or had the same opinions, then there would be little left to do with our lives (and the blogs would seem boring . . . . it would be "I agree" or "yes me too"). Our differences give us purpose, but in the end we all have to take our own stance.
3.18.2006 12:40am
SLS 1L:
I don't see why a ban on same-sex marriage can't be both sex discrimination and sexual orientation discrimination (though the sexual orientation discrimination issue is more serious). Technically, heterosexuals are prevented from marrying members of the same sex too, but there appears to be no demand to do so and no evidence that such demand has appeared in those jurisdictions where SSM is legal. The disparate impact is along sexual orientation lines, not sex lines.

Joel B. - can you explain why SSM will mean marriage is "untethered to anything"? Why is the opposite-sexes-only rule the only thing what gives marriage meaning? What about love, a public commitment to a shared life, social acknowledgement as family, raising children, and so forth?
3.18.2006 12:47am
Joel B. (mail):
SLS 1L-

As it stands now, marriage is tethered to a judeo-christian worldview that emphasizes the union of one man and one woman, becoming "one flesh." Now maybe we think it ought not, and maybe we think that is quaint. Maybe it is. But, I figure that is neither here nor there, it defines marriage it gives it a steephold on tradition, it is moored to something (a predefined idea of what it ought to be if you will).

If however, we untether it, what can we tether it to? You suggest that marriage can mean "love, public committment to a shared life, social acknowledgement as family, raising children, and so forth." Agreed, it can mean those things. But it can also mean anything. It could mean an economic relationship, a pairing up for convenient sexual relationships, a bond of conversation that at least engages to keep the other person involved. I don't know, pick and choose, but and here's the key, once marriage means anything it means nothing.

"Once marriage means anything, it means nothing," that is key, and ultimately it is true. If a word means anything, than that word has lost its usefulness, it can no longer communicate it only creates confusion. What does marriage mean in this brave new world? And consider look at all of the "tetherings" you provide? Can anyone of those be said to be exclusive to 2 person unions? No of course not, they can just as easily include 3 or 4, or whatever. 4 people can commit to a shared life as much as 2, society can acknowledge 5 people as family just as easily as 2, and I'm quite sure, that raising children is quite easier in a relationship of 4 as opposed to 2 (you can at least get a rotation going).

And that is exactly the point, maybe we don't like that marriage is tethered to a semi-moral and traditional idea of what it is, but regardless of those moorings, break it away from them, and marriage is fundamentally redefined changing it completely.

Which of course, leaves my question completely unanswered, Who, pray tell, will oppose polygamy if/when SSM is completely recognized, who will oppose it? Again, who fights over a corpse?
3.18.2006 1:00am
jgshapiro (mail):
Well, thank God that Joel B. is standing in the breach protecting us from descending into a fiery armageddon of moral depravity. But for him, we would all be marrying our cousins.

"Sadly," he plans to throw in the towel if gays get to marry each other. Let's all pause for a moment to reflect on the loss of our knight in shining armor.

On the upside, one of my first cousins is pretty hot.
3.18.2006 1:06am
Joel B. (mail):
jgshapiro,

I am mostly making a point about the politics of the item, again, the question remains...Who will oppose polygamy after gay marriage is adopted? Who will care? Who will say, hey marriage is only about 2 people, and yet not tied to opposite sex relationships?

Show me the historical tradition that suggests that at all? Is there any? What if any historical basis is there for saying marriage is only between 2 people, what traditional basis exists? There isn't.
3.18.2006 1:20am
jgshapiro (mail):
Who will oppose polygamy after gay marriage is adopted?

The same people who oppose it now (except for maybe you). The same people who favored allowing contraception for married couples and later even for unmarried couples, but somehow found the moral fortitude to continue to oppose beastiality and human sacrifice.

You seem to believe that once you break away from a Biblical or historical interpretation of anything, anything goes -- but history shows otherwise. The marriage franchise has grown and shrunk over the years in many ways: grown by allowing interracial marriage; shrunk by prohibitions on mormon and muslim polygamy and marriage before the age of 14-16; and been otherwise affected by the abolition of dowries and arranged marriage (at least in Western society) and the acceptance by 49 states (soon, 50) of no-fault divorce, just to name a few factors.

As someone who recently became engaged, I can tell you that there is no shortage of people lining up to get married. If the franchise was meaningless to them or to me, I doubt that would be the case. Your doomsday scenario has no basis in fact.
3.18.2006 1:34am
Joel B. (mail):
Huh? Because polygamy is on the same lines as beastiality and human sacrifice? You stretch way to far.

You appeal to history, as thought we have ever broken away from a historical interpretation of marriage. We have not, as I'm certain you've heard or know, miscegenation laws were something of a recent origin. Pleasantly, they were short-lived as they were certainly odious. But where's the biblical prohibition on miscegenation laws? There absolutely isn't...in fact the Bible points out in many places that the line of David includes both Rahab the harlot, and Ruth a moabite. It was religious reasons that Jews kept seperate but converts were welcomed.

No-fault divorce may in fact be extremely instructive, that is perhaps the most fundamental break from historical tradition, and where has it got us? Quite frankly more than anything else no-fault divorce is responsible for the broken homes, and coming acceptance of SSM. That break from historical moorings is what is breaking it loose from an even more fundamental one.

Oh I have no doubt people will still get married, even after SSM, but the numbers will decline year over year, and people will think less and less of it over time.

I want to point out, you say the same people who oppose it now will oppose it in the future, but who now opposes it? Do you, does Eugene? Do many of the proponents of SSM really oppose polygamy as well? Or are they merely sophists arguing that the arguments that the opponents of SSM put forward are not valid? As far as I can tell, the majority are mere sophists arguing that SSM will not believe in polygamy but not really caring if it did.

Maybe I am wrong, maybe everyone is really really opposed to polygamy but not SSM. I find that hard to believe, I imagine, and tend to find that those in support of SSM are more or less indifferent to polygamy, those who oppose SSM, tend to oppose polygamy, but I just don't see them caring about the issue once the institution becomes untethered. Is someone really going to give money to a PAC supporting "traditional" marriage once "traditional" marriage ceases to exist? Is that a rallying cry? It is not. As I've said before and I say again, people to not fight after a corpse (well I guess with the exception of that whole Hank Williams thing).
3.18.2006 1:48am
Randy R. (mail):
Okay, so the debate on whether homosexuality is innate in inconclusive. So perhaps the best people to ask about this are the so-called "ex-gay" people. These are people who believe that with the help of Jesus or whomever, a homosexual person can overcome his orientation and become a hetersexual.

All of these groups concede that less than one-third of their participants have success in even just suppressing their gay desires, and that most of them do not successfully get any opposite sex desires. Some groups report a "success" rate of less than 10%. And this is after people spending many years in their operations!

All these groups concede that changing orientation is not for all gays, only those who are most highly motivated to want to change, and for them it's a long difficult process that may very well not work out.

So why is that? I don't know, and I don't care. Bottom line: If you are gay, get used to it, because that's who you are. If you are not gay, understand that the vast majority of us have no desire and no ability to change. Our laws should reflect this understanding as well.
3.18.2006 1:51am
SLS 1L:
Joel B. -
As it stands now, marriage is tethered to a judeo-christian worldview that emphasizes the union of one man and one woman, becoming "one flesh."
It is? Can you please explain easy divorce, nonprocreative sex by married couples, marriage as a relationship of equal partners rather than one in which the wife is expected to submit to her husband (see 1 Peter 3:1 on this issue), etc. by reference to a "judeo-christian worldview"? What happened to polygamy, which is definitely part of the "Judeo-Christian worldview"? Not just the OT: see Matthew 22:23-32 where Jesus endorses the OT rule that a man has to marry his brother's widow even if he is already married. In any case saying "that's just the OT; the NT repealed it" doesn't work because the NT is only part of the Christian worldview, not the Judeo-Christian worldview.
3.18.2006 1:52am
SLS 1L:
Joel B. - traditionally, a woman was her husband's property. He could beat her legally, as long as he didn't damage her too badly. He could rape her: only in the last 30 years was marital rape banned. She had an obligation to obey him. Her property was his. We abolished traditional marriage when we gave all that stuff up and replaced it with marriage as a relationship between equal partners.

And when we legalized divorce: when this country was founded, you couldn't even get a fault-based divorce in most states, much less a no-fault divorce.
3.18.2006 1:57am
Joel B. (mail):
I will consider the question regarding no-fault divorce as already addressed as part of the decay in marriage leading to where we are today. As to the other issues, nonprocreative sex was never an issue biblically, some churches have perspectives on it, but they tend to be unbiblical. As to equal partners, christianity did develop the most equal of partnerships in its time. While the man was at the head, the charge given him to honor and love his wife, was and is unparelled by most other religions at the time.

Polygamy itself was dealt with by saying that it was best for a man to be the husband of one wife. Polygamy was not prohibited, instead it was seen as not best. And that is also why polygamy has a greater likelihood of being allowed once SSM is.
3.18.2006 2:12am
BobN (mail):

I recall when Canada legalized gay marriage reading of a case of two heterosexual men marrying each other as a protest.


They called off the wedding after they thought about what getting married would mean...
3.18.2006 2:49am
BobN (mail):
It's late here on the west coast. I hope someone remembered to tether marriage in her stall. Last time she got loose and ate all of Mrs. Huckabee's petunias.
3.18.2006 2:50am
Robert Schwartz (mail):
Ms. Althouse argues that marriage is just an economic arrangement. If that is so, and I do not doubt that it is, then there is no discrimination against homosexuals in not recognizing single sex marriage. Marriage has nothing to do with sex or love, so preventing a homosexual from marrying the man he loves harms him not at all. He can still marry a woman, and love a man. No one is stopping him.
3.18.2006 3:46am
Shawn (mail):
Some interesting reads on the genetics:

1 = http://en.wikipedia.org/ wiki/ Genetic_basis_for_homosexuality

2 = http://www.forbes.com/
lifestyle/ health/feeds/ hscout/2006/02/21/ hscout531088.html

3 = http://ad-server-d10.foxnews.com/ story/ 0,2933,145754,00.html

4 = http://www.webmd.com/ content/article/75/ 89823.htm?z=1728_00000_1000_nb_01

5 = http://www.webmd.com/content/ article/100/105486.htm

6 = http://www.societyandgenetics.ucla.edu/ speakers05.htm

7 = http://www.genetics.uga.edu/ faculty/bio-Arnold.html

8 = http://www.hypography.com/ sciencearticle.cfm?id=3906

9 = http://www.mydna.com/ resources/news/200502/ news_20050201_geneticlink.html

10 = http://www.societyandgenetics.ucla.edu/ mothernature.htm

11 = http://psychology.ucdavis.edu/ rainbow/html/eop_2000.PDF
3.18.2006 3:50am
jgshapiro (mail):
The point was raised above that legalized polygamy never before led to legalized SSM. If there is a slippery slope between them, it should have worked in both directions. The fact that it did not tends to prove that this is a slippery slope in appearance only. Only lawyers and academics -- and those who are opposed to both polygamy and SSM -- seem to think the slope is all that slippery. The vast majority of people have no trouble seeing the difference.

As for Joel B and the crew who think that the only sensible morality is that which comes from the Bible -- well, there's no arguing with them. It may be the case for them, but it is not for me and not for most people I know. So departing from tradition and Biblical teaching poses no 'tethering' problem for us, because we were never really tethered all that tightly to that post in the first place.
3.18.2006 4:44am
ericvfsu (mail):
Justin,

I strongly support SSM (see my comment above-the 9th comment in the thread).

Do you realize that when you say "I submit that they're the only reasonable positions to take," you have just abandoned your attempt to persuade? Please show that you have better, more persuasive arguments rather than stake your claim to omniscience on this subject.

I agree with you on this issue, but was completely turned off by your condecendence.
3.18.2006 5:26am
Challenge:
"For those that don't think that being "attracted" (or gay)to the same sex is decided at birth."

Nobody should think that. The presence of monozygotic twins with different sexual orientations proves genetics is not determinitive in every case.

I have never understood why genetics matters. If there were a gay gene, and let's assume there is one, presumably not every gay has it. Would you exempt such persons from whatever protection you think gays should have? Does it matter if a lesbian chooses her sexuality based upon experience or if she was born that way?
3.18.2006 6:09am
Cornellian (mail):
I am in favor of gay marriage and against suppressing homosexuals. But gay male sex is at least an order of magnitude more likely to spread AIDS in the US as straight sex (and anal sex is at least an order of magnitude more likely to spread AIDS in the US as vaginal or oral sex) and so I don't see how a judiciary could deny that there's a state interest in suppressing gay male sex, even though I agree with Clarence Thomas that such laws are "uncommonly silly."

The logic doesn't hold. Why would there be a state interest in suppressing anal sex between two men but not anal sex between a man and a woman? Wouldn't there also be a state interest in suppressing opposite sex activity on the grounds that that is a higher risk for transmission of STD's than lesbian sexual activity?
3.18.2006 6:10am
Cornellian (mail):
As for Joel B and the crew who think that the only sensible morality is that which comes from the Bible -- well, there's no arguing with them.

Such people are almost invariably "cafeteria Christians", determined to enforce the Bible when it's a prohibition they like, and perfectly willing to ignore the Bible when it's a prohibition they don't like or which personally inconveniences them. That's why they'll be out there on the barricades citing Leviticus when it comes to same sex marriage, but nowhere to be seen when it comes to prohibiting divorce, eating shellwish, excuting people who work on the Sabbath, executing women who are not virgins on their wedding night etc.
3.18.2006 6:14am
Cornellian (mail):
For those who think someone can simply choose to be gay or straight, in the same way that one can choose what shirt to wear, feel free to encourage your daughters to marry men who feel attracted to other men, not to women, but who are "struggling to overcome their homosexuality."
3.18.2006 6:17am
Challenge:
"Why would there be a state interest in suppressing anal sex between two men but not anal sex between a man and a woman?"

Because receptive anal sex is more dangerous. Women don't have the right equipment to spread the disease in the same way a man can. Not that this is sound policy, but there are real differences in risk between homosexual and heterosexual sex (at least homosexual men).
3.18.2006 7:42am
Challenge:
Sorry, I see your argument more clearly now. Cornellian wrote: "Wouldn't there also be a state interest in suppressing opposite sex activity on the grounds that that is a higher risk for transmission of STD's than lesbian sexual activity?"

But, of course, that isn't how rational basis analysis works. The state is free to set its standard for what constitutes safe sex, as long as that standard makes sense; it doesn't have to punish all sex more risky than the safest sex (lesbian). Let's say the government taxes diesel more heavily than every other fuel. Ethanol, hydrogen, and gasoline are all taxed at the same level. Is the government's distinction "irrational" because it chooses to only discriminate against diesel fuel customers?
3.18.2006 7:55am
markm (mail):
If transmission of STDs is the concern, the government interest would lie in encouraging SSM, not in suppressing it. STDs are not spread by faithful monogamous relationships. They are spread by what gay men who are unmarried, or in a heterosexual cover marriage, often do: meet male strangers in a bar and have sex with them. If gay marriage reduced that activity at all, it would reduce the spread of STDs.
3.18.2006 8:24am
markm (mail):
I think the distinction Eugene is looking for is quite simple: A ban on SSM means a person whose sexual interest is exclusively gay can never marry any person he or she loves. A ban on polygamy means that a person who loves more than one person can only marry one of them (at a time). To me, that seems to be a far less onerous restriction than a requirement that a certain minority group can only choose between sham marriage and no marriage.
3.18.2006 8:31am
Cornellian (mail):
"nor shall any State... deny to any person within its jurisdiction the equal protection of the laws."

You omitted the opening words of section 1 of the 14th Amendment "All persons born or naturalized in the United States..." I look forward to strict constructionists explaining how "born" actually means "before you are born."
3.18.2006 10:03am
Cornellian (mail):
Anyone notice how this thread has literally ten times the number of comments as the "citing foreign law" post a couple of slots above this one? I suppose they're called hot button issues for a reason.

Clearly the lesson to be learned here is if you want a lot of commenting activity on your blog, you need to blog on the issue of same-sex marriage.
3.18.2006 10:30am
DWPittelli (mail) (www):
Cornellian:
"Such people are almost invariably "cafeteria Christians", determined to enforce the Bible when it's a prohibition they like, and perfectly willing to ignore the Bible when it's a prohibition they don't like or which personally inconveniences them. That's why they'll be out there on the barricades citing Leviticus when it comes to same sex marriage, but nowhere to be seen when it comes to prohibiting divorce, eating shellwish, excuting people who work on the Sabbath, executing women who are not virgins on their wedding night etc."

Blame St. Paul, and whoever decided to put him in the canonical Bible. This decision was not made by today's Christians, who are thus not hypocrites for the reason you claim.
3.18.2006 10:44am
SenatorX (mail):
Whats the justification for the state giving special rights to married couples? It infringes on civil rights under what guise?

If the argument that it would be to much of a beaurocratic burden for the state then the state can always REDUCE the rights it gives hetero marriages while opening up the conditions that it recognises "marriage"...

Don't polygamists and homosexuals really just want to be recognized by the state without discrimination? Currently the state is enforcing "the tyrany of the majority against a minority" on what grounds?
That the minority is perverse?
That the beaurocratic burden is too great?
Civilisation will collapse?
MORE "alternative" lifestyles will become common?
The minority is influenced by Satan?(my favorite)

The suble but powerful influence of married people who don't want to lose the power differential they gain by the status quo, Judeo-Christian institutions, Islam, oh lets just say MALE dominated institutions who have no incentive to let WOMEN have any more power than they HAVE to is against whom? Women? Libertarians? Justice??!

Jewish libertarians + alternate marriages = cognitive dissonance?
3.18.2006 10:48am
Dick King:
What happens if you have a marriage among one man and two women and the man dies?

-dk
3.18.2006 11:00am
martin (mail):
Such people are almost invariably "cafeteria Christians", determined to enforce the Bible when it's a prohibition they like, and perfectly willing to ignore the Bible when it's a prohibition they don't like or which personally inconveniences them. That's why they'll be out there on the barricades citing Leviticus when it comes to same sex marriage, but nowhere to be seen when it comes to prohibiting divorce, eating shellwish, excuting people who work on the Sabbath, executing women who are not virgins on their wedding night etc.

Does this implied proto originalism extend to a reading of the Constitution, or is that on the cafeteria plan as well?
3.18.2006 11:43am
Randy R. (mail):
According to Stephanie Coontz, author of "Marriage, A History," virtually no one got married out of love prior to the 18th century. it would have been foolish to base such an important institution on something as fleeting and unpredictable as love. Most marriages were arranged, if you were high born, or selected, if you were low. You consulted with your family, since the very survival of your family could depend upon whom you married. Once married, it was for life, and then some. If your spouse died, you immediately married another person because a single person simply could not survive in the middle ages or later.

It was only beginning in the 18th century that people started to think that love should have something to do with marriage, and that only really started to kick by the late 19th. So it was the Victorians who were the radicals here.

Once people decided that love, not property or inheritance right, was the primary impetus for marriage, then it was logical that if you were no longer in love, you should no longer be in marriage. This is the primary reason for the rise in divorce from the 19th century to today.

And once you claim that love is the primary reason for love, then there is no excuse to exclude same sex marriage.

Now, if you are against same sex marriage, then you need to argue that marriage is about something other than love. Which would make me as you -- if you are married, did you marry for love, or some other reason? If you married because you 'fell in love' with your spouse, then you have no reason to deny that same experience to gay people. If, however, you admit that you married primarily for money or because your parents badgered you into it, then perhaps you have an arguement against same sex marriage.
3.18.2006 12:06pm
EricK:
What has brought us to even discussing same-sex marriage, is the changing definition of what a family is. So if 2 men can get married, and therefore a family, why can't 2 men and 3 women all get married to each other and be family?
3.18.2006 12:07pm
bungaloe bill (mail):
It appears that the argument against polygamy (or polyandry) is a market-manipulation one. Take away free choice for consumers so that otherwise unacceptable products (men) must be purchased (married) by those who would otherwise choose better merchandise.
Does this come under the Commerce Clause?


This sort of "market-manipulation" by the state can be justified because the state has a vested interest in the outcome of the regulation vs. the outcome that would occur with no regulation. In this case, the state has a vested interest in not allowing polygamy to generate a population of rootless, mateless, aimless young men--something it invariably does.
What marriage is REALLY all about is not economics. It is about the domestication of young men for the purpose of creating (hopefully sturdy) male-female households, an atmosphere that has been proven over centuries to be (on the whole, more often than not) the optimal one for children to grow up in. (Indeed, that is one of the reason gay extremists detest marriage and seek to "redefine" it into meaninglessness--because a child-rearing experience with both male and female role models is, by definition, almost always "heteronormative," something they see as oppression and which most of society sees as essential.) The creation of such a class of people has been the downfall of (or at least a drag on) civilizations for millennia, and the state is, in my view, justified in working to prevent it.
We are still working to reverse this very outcome in many of our urban areas, which came about when the welfare state, in effect, became the polygamous patriarch of an entire generation of women, making husbands unnecessary to the women and making employment and the recognition of societal norms unnecessary to the young men and creating millions of poverty-stricken, dysfunctional, one-parent families featuring a generation of children with little or no (or negative) male role models. But I digress.
Yes, in theory this "market manipulation" narrows slightly the number of options some young women might have regarding the selection of a husband. But in practice, polygamy more often oppresses rather than liberates women, because they usually have very little say in the question of which polygamous man they will marry.
3.18.2006 12:12pm
Mr L:
I think the distinction Eugene is looking for is quite simple: A ban on SSM means a person whose sexual interest is exclusively gay can never marry any person he or she loves. A ban on polygamy means that a person who loves more than one person can only marry one of them (at a time). To me, that seems to be a far less onerous restriction than a requirement that a certain minority group can only choose between sham marriage and no marriage.

Oh, but you forget that the primary constituencies for polygamous marriage (Mormons and Muslims) have religious justifications or mandates for the arrangement. That 'far less onerous restriction' in fact compromises the core reason for the marriage in the first place.

Stuff like this is why I'll never find variations on 'polygamy will never be allowed because it can't get the same backing as gay marriage' convincing. Most of these battles are fought in the courts (which are supposedly independent of popular pressure), and it's pretty likely that they'd eventually greenlight an alternative arrangement for a religious minority (i.e. a universally protected category) if they can do the same for a (only sometimes) protected sexual minority.
3.18.2006 12:46pm
JGUNS (mail):
If nobody can change their sexuality, I wonder how it is that so many men engage in homosexual sex in prison, or how it just so happened that so many roman and greek military men were gay, or how it is that so many women today seem to be bisexual (just go to any college bar on a friday night, or watch the show "cheaters"). Hmmmm...must just all be a coincidence!

Look there is no doubt that some have an extreme sexual proclivity towards the same sex, however it is not nearly as "fixed" as gay lobbiests would have you believe. In fact, I am not sure that any sexuality is truly fixed, although social and hormonal factors tend to make most heterosexual. This certainly explains why no genetic component is proven.
3.18.2006 12:55pm
GregPolitics (mail):
I really do not see how gay marriage gets you significantly further done a slippery slope to polygamy in the first instance. Any polygamist can already use the justifications for civil recognition of heterosexual marriage as a reason why he ought to be able to have one wife on his insurance policy. Furthermore, it seems to me that he already can. Any philosophical polygamist can already have one legal wife and as many mistresses/considered-by-he-and-them-to-be-wives as he and they will accept. Therefore, the idea that legally recognized gay marriage will lead to legally recognized polygamous marriages just derives from the idea that recognizing any non-traditional idea of marriage requires you to recognize them all. In fact, distinguishing 2-person gay marriage from polygamous marriage is really no different than distinguishing 2-person hetero marriage from polygamy so long as you focus on the number and not the sex of the persons getting married. All of the reasons that justify not having civil law recognition of hetero polygamy just because you have 2-person hetero marriage can still be used after you recognize 2-person gay marriage. It also seems to me that the "it will lead to polygamy" argument indicates a belief that the anti-gay marriage side is, over time, going to slip-slide to defeat. We make distinctionas all the time and the polygamy argument may actually be usefully turned to pro-gay marriage advantage by ustng it to argue back that the distinction in legally recognized marriage should be one of number, not gender.
3.18.2006 1:28pm
EricK:
GregPolitics,
The reason that SSM will lead to other types of marriage, is because you have destroyed the meaning of traditional marriage. So in other words anything goes.
3.18.2006 2:19pm
abb3w:
Gasman said (trolled?):

Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women.

(IANAL.) I put forth as hearsay that states have held continual acts that cause a spouse mental suffering may form evidence of grounds for divorce, on the basis that the purpose and function of the marriage have been destroyed; and that this has been taken to include excessive witholding of sex in heterosexual marriages. (More knowlegeable may be able to provide case citations as evidence.) I furthermore postulate that requiring non-primary choice sexual relations (equally applying to performing heterosexual relations for a homosexual or performing homsexual relations for a heterosexual) cause mental suffering comparable to or greater than enforced prolonged absitinance. (Call on a psychologist specializing in human sexuality for supporting expert witness testimony; again, not me.)

Ergo, a marriage between (EG) a straight male and a lesbian requires acts constituting grounds for divorce by one party or another, and therefore (presuming both parties are aware of each other's orientation at the onset) ought readily be argued invalid ab initio. If so, then under current law, a knowing heterosexual can enter into a valid marriage, but a knowing homosexual cannot. This constitues an implicit test against sexual orientation. (QED. Completion of the intermediate steps in the proof is left as an exercise for the student/courts....)

I also think that much of the polygamy analysis here is grossly oversimplified, mostly focusing on a subset of the relationships: between the patriarch/matriarch and his/her harem of wives/husbands. What about the relationships within the harem? Are they "married", and prevented from testifying against each other by spousal privelege? What if two are bisexual; can they "swap polarities" and decide to divorce the rest? What about a "line marriage", where you have roughly equal numbers of men and women, with all of the women married to all of the men?

The number of relationships in a "marriage" involving N people grows somewhere between (0.5)N(N-1) and (2^N)-1. I posit that this complexity constitutes a qualitiative difference in condition. Because of the increased number of relationships, some sort of (partial) divorce becomes that much more likely. And if such a marriage ever goes to court for any kind of divorce, it requires exponentially more effort for the judge(s) to sort out the mess. This would place an undue burden on our already strained legal system -- and, I argue, shows a compelling state interest in precluding anything more complex than marriages between two people. (I suppose that fails to show compelling state interest against one person marrying themself to make a less complex marriage, but I don't see how or why anyone would try, and the issue does not seem to be a great public concern.)

I don't see how "equal protection" arguments can go so far as to extend to polygamy. Everyone gets the right to one spouse; no-one gets the right to more. I suppose some "workarounds" might crop up -- one legally recognized marriage, additional concubines. Of course, there's the question of whether adultery (by whom? of what sort?) constitutes grounds for divorce, and what sort of palimony might be due for children so resulting. And to the extent that the state is expected to help with rearing of the concubines' children, there is an interest. Are they legally in "single parent" families?

Work-arounds like this concubine arrangement (or the suggested "put one on my insurance plan") are tried even today; EG, the Utah Tom Green case a few years back. They don't fly. I don't see how acepting gay marriage would change any of the legal arguments in that case as I understand them.

Before I will accept a slippery slope, that gay marriage will lead to legal polygamy, I want a line of reasoning showing how legal gay marriage on an "equality before the law" basis can be used as a basis for argument that challeges simple bigamy laws. (An inductive proof only holds if you can prove the base case and every step of the way....) Scalia's dissent in Lawrence claims that decision weakens the validation of any law per Bowers on moral choices. I feel O'Connor's concurrence expressly refutes that: the key is whether the moral law is applied equally to all. So, how is bigamy/biandry prohibitions unequally applied? That you can only enter marriage with someone who is not currently in one, and if you are not yourself in one? How is "you only get at most ONE spouse at a time" unequal?
3.18.2006 2:44pm
But Why?:

Why was there no loud verbal outcry to slippery slope scare tactic when Scalia first introduced it in the Lawrence dissent? If you were silent then, why speak out now? Conscience?
3.18.2006 2:57pm
Kendall:
The reason that SSM will lead to other types of marriage, is because you have destroyed the meaning of traditional marriage. So in other words anything goes.


So, because marriage would be gender neutral rather than gender separate the inevitable result is "anything" goes? To make my question clear, lets say you redefine "Christianity" (for example) to mean "those who believe in the Holy Trinity, those who believe merely in the existence of 1 God or those who accept the Prophet Mohammed as being a continuation of Jesus Christ's work, and the final prophet from God" Would that include Sikhs? Would it include Hindus? Buddhists? Changing the meaning of a word, even a word of great signfigance and meaning to someone does not render the word or the institution "meaningless" it merely includes more people who would be normally excluded.
3.18.2006 3:14pm
EricK:
Kendall,
You really made the argument for me. You 1st options restricts and clarifies the meaning of Christianity, the other 2 remove all meaning from it.
3.18.2006 3:35pm
abb3w:
bungaloe bill said:

What marriage is REALLY all about is not economics. It is about the domestication of young men for the purpose of creating (hopefully sturdy) male-female households, an atmosphere that has been proven over centuries to be (on the whole, more often than not) the optimal one for children to grow up in.

Not entirely accurate, on several points. Marriage is a social institution, that facilitates the creation and raising of children for the continuation of society. Alternate forms of marriage (or even entirely alternate institutions) to perform these functions are possible, and have been tried. Economics is ultimately the science of how scare resources are allocated; raising children requires such resources, and thus is intrinsically economic. Male domestication, which you point to, is just a particular method of resource allocation. (So, as a bachelor, am I still "feral"?)

Societal evolution has resulted in hetersexual monogamous marriage becoming widespread. Your presumption that this implies that it is an optimum is similar to creationist presumption that humanity is the peak of creation; both are merely local optima. Contemporary dominance does not prove intrinsic optimality. Changing conditions (such as technology and other social aspects) have the potential to shift optima, either slightly or massively.

As a mindlessly trivial example of a way that conditions might change, consider the arising of a disease with sexual asymmetric survival rates, and ideal vector conditions (long asymptomatic but easily spread incubation before fatality). Poof; the human race is now 80% female. Polygynous arrangements becomes much more viable than monogamy, although men's rights are likely to suffer in the more technically advanced countries. Obviously, there are less drastic possibilities with lesser impacts.

That heterosexuality has proven superiority in the creation of children is difficult to argue. That raising of children by 2 parents is also fairly secure, if less so. However, the absolute superiority of the combination for raising children is less insurmountable, and you presume they are inseparable. Allowing homosexual marriage might increase the number of couples seeking to adopt and reduce the number of children raised as orphans, for example. Modern fertility medicine also widens the options of homosexual couples. Furthermore, the studies of children raised by homosexuals are limited (due to their limited numbers), and have not shown pronouced differences in how the children turn out.

I think the increase in qualitative stability of single marriage relationships can easily justify prohibiting polygamy due to the effect on the children. I don't think any qualitative difference can be shown for monogamous gay marriage.
3.18.2006 3:35pm
Hovsep Joseph (mail) (www):
Haven't these morons ever heard of a will? The point is that many of the incidents of marriage can be aproximated relatively easily without actually being married by using wills, health care powers of attorney, etc.

If all the rights and incidents of marriage can be so easily approximated with wills and other contracts, then why do straight people bother getting married? They bother because all the incidents of marriage cannot be so easily approximated with contracts. Not even by a long shot. Try not getting married and then using contracts to get your non-U.S. partner to be able to live and work in the same country as you. Try getting your non-Fortune-500 employer to offer domestic parnter benefits and pay the extra FICA and withhold the extra tax on your income and put up with the extra administrative burden. Try owning an expensive home with your partner and not paying estate taxes on the transfer of his or her interest to you when he or she dies. Try claiming spousal privilege against testifying against your unmarried partner. Try keeping your wedding ring and equity in your house when you declare bankruptcy. Try getting your employer to extend health insurance to your partner under COBRA after you lose your job. Try not paying gift taxes on transfers of money to your partner if you make substantially more than your partner. Try making a spousal election for a share of your partner's estate if you make the grave sin of dying before making a will.
3.18.2006 3:42pm
EricK:
The reason that reason that allowing SSM is a slippery slope. Is that once you remove the basic meaning of marriage to include SSM, what is to stop you from changing it again?

Marriage is much more then a legal contract!
3.18.2006 4:08pm
Hovsep Joseph (mail) (www):
I think Cornellian makes by far the best argument that polygamy is not a natural extension of same sex marriage. Sure, there will certainly be some people who speak out in favor of extending "marriage rights" to polygamous relationships. But the fact is that there is no obvious way that would happen. Same sex marriage advocates know exactly what they want: just let same sex couples marry under the same terms as opposite sex couples and extend the same rights and obligations. The change would pretty much be automatic after some changing of gender specificity.

The creation of a polygamist legal regime is a much, much more complicated project. There is no obvious way in which any of the marriage rules would apply where multiple parties are involved. As much as religious conservatives may be able to conflate homosexuality and polygamy in their minds and/or religious doctrines, polygamy is a much more radical departure from American social and legal norms than homosexuality is.

There is no "automatic" way that polygamists could get marriage rights in the way that same sex couples could. There are endless questions that would need to be resolved because, as a legal regime, marriage is crucially between two parties. Questions of who gets property, child custody, rights over a decedent's remains, etc. after the death of one spouse are easily resolved under marriage laws: they go to the other spouse. There are no easy answers in setting up legally-sanctioned polygamy.

There are also no obvious limits on polygamy. How many would be too many people in a polygamous "marriage"? That's not an issue in the same sex marriage debate.

Lastly, to the extent this debate involves the extension of same sex marriage rights by the courts declaring the current regime unconstitutional, the slippery slope to polygamy is different depending on the legal theory used. If same sex marriage bans are declared unconstitutional as violating equal protection, then the slippery slope argument is only persuasive if you think people are born polygamists in the way people are born gay or women or black. I don't think a good argument can be made that "polygamists" are such a discrete and insular minority.

If same sex marriage bans are declared unconstitutional as violating privacy/due process, then the slippery slopists have a better argument regarding polygamy. But even under a privacy analysis, the polygamists will have the pragmatic problems I described above in convincing a court to truly make new laws in opening up marriage to them.
3.18.2006 4:11pm
Lanthanist:

So a law protecting same-sex marriage does not "coerce" or "impose morality" on anybody unless you can articulate some third party interest that is diminished because of that law. Go ahead, explain what third party is having its rights constrained, and why.

It is many pro-same sex marriage proponents who claim that different sex marriages "coerce" or "impose morality" on them. Then they turn around and demand that the law do exactly the same type of thing that they condemned!


The possible economic, political, legal, and moral distinctions are explained at length above, and you don't just get to rebut them by just reasserting the conclusory proposition to which they were designed as a response.

And there are "possible economic, political, legal, and moral distinctions" between same sex and different sex marriage. Now, since we've established that freedom and government acceptance in this are is not the fundamental issue, then you must accept that same sex marriage can be prohibited if people find that the "sociatal burden" or whatnot is suffecient to warrant such prohibition.

After all, if I can't have the government "impose" my beliefs, then why can those who support same sex marriage do so?

As for the "social cost" or whatnot, are we really prepared to agrue that a persons social acceptance and their freedom can be constrained because of the popular social science theory de jour?
3.18.2006 4:37pm
Joel B. (mail):
Kendall is amazing! He hit the nail on the head when he was arguing against polygamy. If Christianity now means "Islam too" than what does Christianity mean? Will people still call "pre-Kendall redefination Christians" Christians? no, they'd have to call them "fundamentalists," or "2 covenant Christians" the word would have lost its old meaning and a new word would have to be created in its stead. Same with marriage.

One huge observation and problem with this "debate" is that I just don't believe that the proponents of SSM and "SSM will not lead to polygamy" proponents, wouldn't care much if it did. Every argument as to why there isn't a slippery slope is an attempt to distinguish legally. But who cares about that? Is that really all that relevant, it is the act of lawyers blowing smoke at each other. Good for you. If most of the SSM opponents were really against polygamy, they wouldn't spend so much time making the one vs. two distinction they would argue why people would keep opposing polygamy even after SSM. Few have suggested...WHY, WHY would anyone bother fighting against polygamy after SSM? Because 2 spouses is fundamentally different from one? More different than opposite sex to include same sex?

Look, I grant there is a distinction between SSM and polygamy, readily, you'd have to be a fool not to, but the question is does the distinction matter? If/When SSM is adopted, are all those who were proponents of SSM going to stand athwart polygamy, and expose it for the evil it is? Are traditionalists going to muster up for a fight to protect an institution that will have lost its meaning? Especially when there is greater "traditional" support for polygamy? Fundamentally, is polygamy really all that bad once we dispense with any traditionalist idea of marriage?

Good for you all who can distinguish between polygamy and SSM, you make excellent lawyers, but in the real world, who's going to care about polygamy once SSM is here? Maybe jgshapiro, after all he seems to place polygamy at the level of beastiality and human sacrifice, but does anyone who is arguing for SSM really think that, well if there's polygamy, then there goes society and marriage? Or do they think that hey it wouldn't matter much anyway?

Is it that they can't admit that, because then that gives the game away, and we come to find, much as we suspect, that SSM proponents don't care much about the long-term viability of the institution of marriage at all.
3.18.2006 4:44pm
Hovsep Joseph (mail) (www):
I think that Joel B. raises a good point in that polygamy has become a high-stakes token in a larger game, and that neither side of the same sex marriage debate treats it fairly. Supporters of SSM tend to universally say that SSM is nothing like and irrelevant to polygamy and opponents of SSM tend to universally say of course polygamy is an inevitable hop and a skip past SSM. The question of whether polygamy itself is actually good or bad gets obscured. As a supporter of SSM, I think my cohorts tend not to want to rationally discuss the pluses and minuses of polygamy for fear that it might send a message that SSM supporters are considering polygamy as a legitimate next step even though they honestly are not.

The SSM debate legitimately raises questions about other ways people may want to arrange their familial and romantic relationships and whether those ways might also be codified in law. I think we should discuss the pros and cons of legal polygamy fairly and honestly and outside the shadow of SSM, but we need to be careful not to conflate the two issues because they are very different and really are not movements in the same direction.

There will always be people wanting to push any change further in this direction or that direction. But if you ask academics who represent the extremes of sexual liberation and alternative family movements, they will probably tell you that marriage is unduly repressive and exclusionary and should be scrapped alltogether and replaced with either a more socialist treatment of families or a more libertarian contract-based treatment of families. They consider SSM a conservative position, a position that will continue to create social outsiders, even if the boundary between insiders and outsiders is moved.

I agree with those academics and conservatives like Andrew Sullivan who argue that SSM is essentially a conservative policy. Polygamy, as I've discussed above, is a truly different and radical kind of institution that would require very different rules than marriage.

The fact is that there are already lots of gay couples living together, raising families together, trying to provide health insurance to each other, buying homes together, etc. Conservatives should be tickled that those gay couples are in essence emulating a conservative way of life. The accommodation that would be required to allow them the benefits of the legal institution of marriage are slight and do not infringe on the basic structure and values of our society. In fact, allowing SSM would reinforce marriage and family by letting it adapt as society changes, just as it has adapted in the past century, as women gained the right to vote, deeming them to be more than the property of their husbands, allowing them to divorce abusive husbands, etc.

So, while I agree with Joel B.'s concern about the way we are all talking around polygamy rather than addressing it head-on, I disagree with his conclusion that SSM proponents don't care about the long-term viability of the institution of marriage. SSM proponents are actually the best hope of supporters of the institution of marriage, whereas polygamists, whether you think polygamy is good or bad, represent a radical departure from the traditional institution of marriage.
3.18.2006 5:35pm
Passer-by (mail):
If restricting marriage to 'one man and one woman' is arbitrary and capricious, why is not "two and only two" also arbitrary and capricious?

Why must all possible creation of SSM by the judiciary be limited to the equal protection clause, please? I mean, it makes the debate easier for certain law students, sure, but the real world isn't law school. What is to prevent a plurality of judges from finding some emanation of a penumbra or other, perhaps in the intersection of 'privacy', 'choice', that mystical realm of self-actualization created in the Constitution by Justice Kennedy and whatever else came up in their alphabet soup over lunch, from creating any old right they want? And if they cannot find the required word or words within the Constitution to deform, bend and manipulate into the required shape, why, there's a whole world of law they can use (excluding, of course, Sharia at least for now) to justify ex post facto the decision already made. And isn't that the way the high court really works?

Heck, _Lawrence_ read broadly enough is sufficient precedent to justify anything from SSM to group marriage to human sacrifice...
3.18.2006 5:39pm
SLS 1L:
bungaloe bill:
for the purpose of creating (hopefully sturdy) male-female households, an atmosphere that has been proven over centuries to be (on the whole, more often than not) the optimal one for children to grow up in.
It has? Where's your evidence that being raised by Mom and Dad is better than being raised by Mom and Grandma? Today's nuclear-family-only households are an abberation - historically, people have tended to live in extended families, not nuclear ones, so your "centuries of experience" argument doesn't cut it.

As for the "different sexes" issue, every reputable study has found no significant difference between kids raised by same-sex parents and kids raised by different-sex ones. These studies, being social science, have their problems, but the failure to find anything strongly indicates that any difference that exists is statistically relatively small. Being poor produces an enormous likelihood of inferior life outcomes on a whole range of variables relative to being rich or even middle class, but that doesn't stop us from letting poor people marry or have kids. Why should a purely hypothetical and much smaller (possibly even positive) effect prevent us from legalizing gay marriage?
3.18.2006 7:17pm
SenatorX (mail):
I have enjoyed all the comments!

So how strong really is the "case" against alternate marriages and raising children? I just think this is a huge issue for most people. "The "Brave New World" that someone mentioned I thought was good because it touches on that real problem. Technology WILL continue to reduce physiological barriers to progeny. This will make the debate on environment more important (though clearly the genetic debate will go on strong as well).

What I tried to mention before is in the genetic debate, our rights to our DNA as the most private of information may become a major legal issue. If all the other PHYSIOLOGICAL barriers are removed by technology what is left? Well the Environmental factors (the education/indoctrination) and the parental rights. The parental rights could be reduced to rights over your DNA. Half of your most personal information "presented", and perhaps (depending on the environmental factors) presented in a way you do not approve of. What about if someone took a sample of your DNA and MODIFIED it before fertilizing an egg (or whatever). What percent of modification would be allowed before it was no longer "yours"? Who would decide that? Those are serious questions.

Last back to Environment if all the genetic factors are addressed, there is still large issue with "raising the kids". One hears the argument that MORE alternate marriages would occur and does anyone doubt that would be true? So what are the affects of this really? Are the affects good? Bad? Or more importantly do we want the State making those decisions? One could easily imagine a Brave New World when the state is left to "choose" the best choice to preserve the State's interest. Did anyone see the article that just came out about China limiting the choices of acceptable names for children?

I guess where I am going with this is that I think current marriage laws are unjust and because of technology/knowledge a lot of laws are going to have to change. The argument against SSM and polygamy is rooted in cultural norms but also strongly tied (for now) to physiological factors (man and woman makes baby=man and woman is best to raise baby together).

I expect to see in the future not only more alternative marriage choices (the tether is not so much released as still sliding through the fingers of dogma) but also alternative child rearing choices. I bet there is a lot of money to be made in this law field.
3.18.2006 7:23pm
RichC:
A bit off-topic, but related to the earlier comments about Massachusetts. There is an ongoing campaign to overturn via constitutional amendment the MA SJC decision requiring the recognition of gay marriage. It has easily passed all the signature requirements to get on the ballot. However, it will (IMHO) never make it to the ballot.

Why?

The process of amendment by initiative petition in MA is a multi-stage process. First you have to get enough signatures. Then it has to get at least 25% of the vote in two consecutive legislative constitutional conventions. A legislative constitutional convention is a joint session of the MA House and Senate, with the Senate president chairing the session.

The problem is that multiple times since 1992, the legislative leadership has killed an amendment-by-petition that would have easily cleared the 25% threshold but that the leadership didn't like. They did this by simply never putting the proposed amendment up for a vote, despite state constitutional language saying that the convention "shall" vote on all proposed amendments.

This slimeball move was duly challenged, made it up to the MA SJC (in 1994, give or take a couple of years), which ruled that (a) the action was indeed unconstitutional because of the "shall" language, but (b) there was no remedy for it, aside from voting legislators out.

So it is widely expected that the amendment to outlaw gay marriage in MA will be killed in the same underhanded way.
3.18.2006 7:54pm
DWPittelli (mail) (www):
Hovsep Joseph:
"If same sex marriage bans are declared unconstitutional as violating equal protection, then the slippery slope argument is only persuasive if you think people are born polygamists in the way people are born gay or women or black. I don't think a good argument can be made that "polygamists" are such a discrete and insular minority."

More like if they say they are born that way.

The primary evidence we have for gays being "born that way" is that many of them say that. (Indeed, in past decades most thought otherwise.) Many polyamorists say the same thing now. If this is the way to EP-derived marriage, then we will no doubt get almost all of them saying the same thing. They needn't even be dishonest to say this. Who cannot, with the benefit of hindsight, see that the major points of life (e.g., choice of spouse, career, alcoholism, getting "born again") were prefigured in his childhood?

I would argue that even the identical twin studies (which show that a gay man's identical twin has a 50% chance of being gay) don't exactly prove that one is "born that way" except to a similar extent they may claim that one is a "born bowler" (from anecdotes of separated twins with quirky hobbies and habits) or a "born polygamist" (at least until someone studies twins in Arab countries and shows that a polygamist's twin is not more likely to be a polygamist, which I'm pretty sure has not been done, and would bet would turn out the other way).
3.18.2006 9:08pm
dweeb:
It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster.

That's easy - the past forty years have shown society to be rather plastic in that respect. We're very good as a society at defining deviance down. In 1965, who could have foreseen the broadly supported movement for gay rights?

As I've mentioned before, all reasonable people place some boundary around acceptable sexual behavior - whether with homosexuality, polygamy, or pedophilia, we're talking about relatively small increments in moving those boundaries relative to the entire spectrum of positions. They are also small compared to the movements of the line in thelast 100 years. Also, homosexuality represents the
LEAST arbitrary limitation to overcome of the three. Polygamy has historical precedent for acceptance, and pedophilia is ripe for incrementalism - if 18, why not 17; if 17. why not 16, and so on.

All I'm saying is that there is a principled basis for drawing a line between the two.

There's always a principled basis, but in a post-modern world, feeling good trumps principle, and so a principled basis represents no great plateau on a slippery slope.

Empirically, the slope has already been demonstrated. The Netherlands, one of the first nations to accept same sex marriage, has already had a polygamous marriage of one man and two women.

The real problem here is treating marriage as a set of benefits, rather than an imposition of restrictions. Anyone who thinks marriage is a set of govt. bestowed benefits has never been through a divorce. Marriage, in reality, represents ceding your property and self determination rights to the state in advance, should you decide to terminate your romance. The state imposes this upon people because their activities can, without intent, result in unplanned new people, and this has proven the best system for insuring provision for those new people. Yes, there are benefits, but they are a small effort to offset the imposition.

Now, when one realizes civil marriage is a govt. imposition, it becomes clear that libertarian, limited govt. ideals only permit this imposition where there is a compelling public interest - the provision for unplanned children. Methods of producing children other than the natural one do not require such a sweeping imposition, because they all require specific intent, and the steps to achieve them are not inherently desirable to engage in absent that intent, and these methods can be regulated in a strictly limited manner to insure provision. There is no public interest in imposing limitations on the break up of relationships with no accidental procreative potential. In contrast, mixed gender polygamy has a higher risk of unplanned children to provide for than does gay marriage.

You'll see gay marriage advocates expressing a similar line of reasoning as soon as a gay marriage hits the divorce court - when two gays are faced with domestic relations court turning their 'love' into a financial death pact, they'll be very quick to point out how their situation differs from a heterosexual couple. To paraphrase and distort an old parental admonition, it's all fun and games until someone loses a house or bank account.
3.18.2006 9:57pm
Suzie Nolen Bennett (mail):
How many marriages DON'T involve multiple partners these days?

Polygamists have multiple spouses, all at the same time. And it's legal anywhere in the U.S. to have multiple spouses, albeit one at a time.

Why is one arrangement legal, and the other, not?
3.18.2006 11:56pm
Josh_Jasper (mail):
So how many practicing polygamous people do Krauthammer or Althouse know? How many dows professor Volokh know? I'm interested, because I see a lot of pontificating and little actual discussion of reality.
3.19.2006 12:15am
AnonyMess (mail):
Assuming SSM come into being in some form, in time two gay siblings will want to marry. Now, the laws prohibiting incest are predicated at least in part on the issue of children with higher incidence of genetic defects, but absent some Brave New World mode of reproduction, two brothers or two sisters who marry each other won't have that problem. So what reason will there be for prohibiting the SSM of siblings? Won't it basically be mere bigotry and narrowminded prejudice on the part of people who regard family love as "icky" and demand that their own personal hangups be written into the law, that prevents the free and open expression of another different kind of love? How dare family-phobes insist that their degenerate prejudice rule over someone else's love life!

So in time, given SSM, the taboo against incestous marriage must fall of its own weight. Well, if two sisters can marry each other, how dare the narrow minded prigs tell them they cannot welcome their third sister, or a brother, or an unrelated person into their triad, in order to have children? Isn't it none of the business of society what two married sisters do behind closed doors, and if they want to have a triple marriage with another relative, where's the harm in that? Who on this blog can truly say that they would be harmed if three women lived together as wives? What kind of hate-filled bigots would deny them the love they so clearly want to express? Polyphobes, that's who, the kind of panty-sniffing, window-peeping, narrow-minded bigots who probably opposed SSM. No open-minded, liberal thinking, progressive would ever deny polys their rights, surely.

So there's poly-marriage, legalized via the same combination of forces that are working to create SSM, via the route of legalizing at least some forms of incest. Lather, rinse, and repeat for Moslem men who want their four wives, free-thinkers who want their group marriage, etc. and so forth. In time marriage becomes meaningless, and the fabric of Western society frays further and further, as more and more rules are concocted by more and more judges to deal with the problems created by other judges in the first place.

I'm somewhat sure that Volokh, when the first incestous marriages are litigated into law, will say something along the lines of "This wasn't what I intended, when I supported SSM". I'm positively sure that won't change a damned thing.
3.19.2006 12:19am
Barry Kearns (mail):
As pointed out on the Althouse thread, there's a good fundamental workaround for all of this hullaballoo.

Get government out of the business of "marriage". Marriage should be a purely religious/social construct with no governmental manipulation whatsoever.

To get the benefits that today accrue to individuals in marriages, and to grant the same to any other combination of those seeking it, simply allow the formation of a corporate-like structure, and allow all persons with the legal ability to contract access to whatever form of familial structure they see fit.

It allows traditional marriage, same sex marriage, polygamy, line marriage, and almost any other structure you can imagine. Divorce becomes a question of contract law at that point.

Why deny any free adults the ability to legally organize their relationships as they see fit?

If society wants to encourage the raising of children in sound relationships, let them encourage it... there's no good reason IMO to use the sledgehammer of government to try to achieve that outcome.
3.19.2006 12:58am
Kovarsky (mail):
DWP,

Your argument that the primary evidence that homosexuals are "born that way" is just wrong. I do NOT understand why are you so strident on this issue when you have your facts wrong.

There have been a number of well respected studies, including those by the NIH and the National Cancer Institute, that posit a genetic link. Additionally, Bailey and Pillard performed an influential 1991 study of twins that determined a Ò52% concordance of homosexuality in monozygotic twins, 22% for dizygotic twins, and 11% for adoptive brothers of homosexual men. There wsa just recently a major study published in Human Genetics that, while not establishing the specific chromosomal region where the "gay gene" might reside, strongly indicates that some genetic combination could encode homosexuality somewhere. There was also recently a study of "gay sheep" that drew a lot of attention to the subject.

Whatever you might think of these studies or the inferences they create, they are THERE. So please, stop insisting that the evidence is entirely anecdotal.

I continue to maintain that the presence of a genetic link is neither sufficient nor necessary to an equal protection claim. After all, Blacks are entitled to equal rights not because they were born black and they just can't help it, but because humans enjoy the same rights, without respect to color.
3.19.2006 1:14am
Kovarsky (mail):
AnonyMess,

Just to point out the obvious, you don't do a particularly job of explaining why SSM would obliterate the norm against incest between two siblings of the same sex, but why that norm with respect to siblings of different sexes remains perfectly intact despite the institution of different-sex marriage.
3.19.2006 1:18am
Kovarsky (mail):
clarification re: above - I'm talking about DWP's argument that the proposition that homosexuals are just "born that way" is supported only by anecdotal first-person testimonials.
3.19.2006 1:20am
Ak Mike (mail):
Here is the big picture: marriage has for some time been slowly going down the tubes, and SSM is just a part of that.

The reasons that marriage is fading are many, largely economic and medical. Women do not have to spend all their time bearing children just to get a few to survive to adulthood; children are a dead economic loss to their parents now instead of an economic plus as formerly; various social arrangements now make it in most cases unnecessary for people to take care of their parents in old age; we are all a lot wealthier and have more labor saving devices, such as take-out food; there is less economic dependence in marriage (in both directions), there are increasing childcare options beyond home care by family members.

The traditional function of marriage was as the economic and social unit of society. That function is less and less important. Now marriage is more and more serving as a symbol of romantic love, which we all know is not so permanent. As such it has become easier to end marriage, to have children without it, and so forth. Same sex marriage, in which the romantic love (or, if you wish, sexual attraction) part is really the only reason, is a natural expansion, and further expansion is also likely.

As the nature of marriage switches from utility to symbolism, it will become less significant. Social and economic changes ahead will make the institution less and less necessary from an economic and child-raising standpoint. In a few decades there will be very few restrictions on who can marry whom, simply because few will really feel that marriage is important enough to fight about.

In sum, I think the "slippery slope" arguments miss the point: SSM is not a cause of erosion of the traditional marriage definition - it is a result of major economic and social factors that are going to keep weakening traditional marriage and loosening its definition.
3.19.2006 5:41am
Challenge:
"Just to point out the obvious, you don't do a particularly job of explaining why SSM would obliterate the norm against incest between two siblings of the same sex."

I guess he made the faulty assumption that SSM advocates believe their own rhetoric. If disgust is insufficient to prohibit SSM or criminalize sodomy then surely disgust is insufficient for incest. Or it's not.

Of course, assuming the Court in Lawrence and SSM advocates are sincere in their rhetoric is a big assumption. Most of us DO believe in outlawing revolting acts, like bestiality and incest, even though in many cases a "rational interest" of the kind Lawrence requires does not exist.
3.19.2006 8:55am
M (mail):
Somewhere up above, somebody forgot to put "same-sex marriage" in quotes. It is a nonsense phrase, with exactly the same logical validity as "three-sided quadrilateral". Gays may unite and divide in whatever combinations they see fit, but, unless we agree that words have no fixed definition (see Humpty Dumpty), no combination other than a man and woman is a marriage.

And, whatever its merits might be, a mixed-race marriage in no way changes the definition of marriage.
3.19.2006 9:49am
Hovsep Joseph (mail) (www):
Commenters have put forth lots of comments related to the supposed glorious history and perfect social evolution of marriage to its current state and the fearful future evolution of the same. They argue that marriage has been in "decline" and that now marriage "has no fixed definition" and that whereas marriage has in the past been the primary social/economic unit of society, it is now becoming merely symbolic of romantic love.

It is true that social and legal institution of marriage has evolved radically over the past few millennia and especially the past few hundred years and marriage continues to evolve, but I think most people would agree that those changes have been good and righteous. Should parents take charge of arranging your marriage for you, as was common in the West until the last century? Should women be deemed the property of their husbands? Should you be prohibited from ever divorcing your spouse? Should you be allowed to marry someone of a different race or religion than you? Marriage has evolved and will continue to evolve because marriage does not make society, marriage is a reflection of what society needs.

Also the push for these changes in marriage, including SSM, is not evidence that marriage is becoming more symbolic and less utilitarian. Quite the opposite. These changes recognize that in order to be a useful institution, marriage needs to adapt to the increased autonomy of women, the desire among some people to marry outside the communities they were born in, and now marriage is adapting to the existence of lots of same sex couples living proxies of married lives in all the ways marriage was meant to facilitate (committing to each other for the long-term, raising kids together, buying a home together, moving together in the same social circles, taking care of each other when they get sick, planning for retirement together, etc.).

So, my point is that change in an institution, in and of itself, does not indicate weakness or decline or rejection of traditional values. Changes have strengthened marriage. Proponents of change have not rejected the traditional values espoused in marriage, rather they have clammored to gain access to those values. The only thing these proponents of change have rejected have been the bad aspects of marriage: the unreasonable subjugation of women, the unreasonable exclusion of interracial couples, the unreasonable exclusion of gay couples.
3.19.2006 11:58am
EricK (mail):
The point about incest, if you actually read the post, is about genetics. The main argument against it is that the children will have a higher chance of genetic defect. If 2 brothers want to get married, neither one will get pregnant, so why not allow it.
3.19.2006 12:09pm
Hovsep Joseph (mail) (www):
Challenge wrote:


If disgust is insufficient to prohibit SSM or criminalize sodomy then surely disgust is insufficient for incest.


I agree. Your personal "disgust" should be insufficient to criminalize an act that two competent people willingly want to engage in and in which the state has no rational interest in prohibiting. Just because I find disguting your love of bluegrass music or the way you have sex with your wife or the mysogynist rhetoric of your church or the tasteless clothes you wear does not mean that we should be able to criminalize those things if the government has no rational basis for doing so. This rule of law is there to protect everyone from the irrational prejudices of their neighbors because most neighbors have some kind of irrational prejudices.

As for incest and beastiality, just because your disgust alone does not justify their criminalization, does not mean the government does not have a rational basis in regulating or prohibiting them. It just means that we should look at any government prohibition rationally, not emotionally. There are lots of reasons for the taboo and legal limits on incest, most of which stem from the principal form of incest, child molestation, and the danger for adults who grow up in homes where they could be seen as sexual objects. Similarly with beastiality, the government has decided that an animal cannot consent to a sexual relationship with a person. Thus, the government interest in these things has to do with protecting individuals and animals who are not competent to consent to sexual acts. There is no comparable incompetent party to justify the government's criminalization of sodomy.
3.19.2006 12:25pm
Challenge:
"As for incest and beastiality, just because your disgust alone does not justify their criminalization, does not mean the government does not have a rational basis in regulating or prohibiting them."

What rational interest is there for prohibiting two brothers or sisters from marrying or having sex with each other OTHER than enforcement of widely held sexual/social norms?

And I find the proposed rational interest for prohibiting procreative incest wanting (deformity and disease of offspring). We do not criminalize sexual intercourse between two sickle cell or tay sachs carriers. Should we do so?

I suppose one could offer up the importance of the family and the disruption incest causes. Not only does that sound similar to the case against SSM, it's not particularly applicable to adult consentual incest.

Further, can you provide a rational state interest for beatiality that doesn't physically harm the animal? Why should sexual consent carry over to animals? It's a legal artifice constructed for PEOPLE, not animals. We use animals for every sort of endeavor, and generally as long as we don't harm them too much, it's entirely legal. Why should sex be any different? Saying consent is required of animals is like saying the 13th Amendment prohibits use of animal labor. That's crazy.

Once again: Society prohibits consentual incest and beastility because both are revolting.

Let me be clear--I am not saying homosexuality=beastility=incest. But the reasons for limiting and prohibiting each of these behaviors are very similar. You may believe there are rational state interests which justify prohibiting incest and polygamy, but I submit both would fail the sort rational basis practiced in Lawrence; which is not to say the Court is prepared to do so.
3.19.2006 7:01pm
AnonyMess (mail):
Nobody has refuted my argument that SSM must lead to legalization of at least one form of incest. Given SSM, equal protection can be invoked to demand that any two gay adults be allowed to marry, no matter what their other relationship; remember, "two consenting adults" are involved, and that is the modern gold standard, isn't it? No child abuse is involved if two gay brothers over the age of 18 wish to get a marriage license, just narrowminded bigots demanding that their own prejudices about "icky sex" be written into the law.

But perhaps I'm wrong. Perhaps someone who supports SSM can explain how the law that allows two gay men to marry would nevertheless prevent two gay men who happen to be 1st cousins from marrying, and what the justification for that narrowminded, bigoted, homophobic, familyphobic oppression of lovers who just want to be left alone like any other consenting adults is.

Frankly, though, it seems perfectly obvious that the only reason for prohibiting such marriage is the same one often cited for opposing SSM; unreasoning prejudice and phobia. What other reason could there be?
3.19.2006 7:16pm
MarkW:
Today we see outright same-sex marriage in Canada and same-sex marriage in all but name in the UK, but with no groundswell of support for polygamy. The slippery slope argument just hasn't worked.


The Canadian Justice Dept has followed the recommendation of a panel of law professors from Queen's University to legalize polygamy in order to "help women and children living in such multiple-spouse relationships."

I recall when Canadian conservatives were derided by gay marriage proponents for arguing that gay marriage would invite further expansions of the definition of marriage.

In Norway, some legal scholars are now arguing that the country's prohibition on polygamy violates the religious freedom of Muslisms.

In Sweden, legalizing gay marriage was an unpopular idea in the 1980's, so the country established domestic partnerships in 1987. Conservatives opposed domestic partnerships, saying they would lead to gay marriage. Seven years later, Sweden adopted gay marriage.

Even William Eskridge has acknowledged that gay marriage take-up rates have been very low in Sweden, Denmark, and Norway---and everywhere else that gay marriage has been legalized. Gay marriage is not about marriage. It has been used as a tool to legitimize homosexuality as a moral practice.

There is plenty of recent historical evidence supporting the slipperly slope argument. American conservatives should not be fooled by smoke and mirrors of the radical left on this issue.
3.19.2006 7:45pm
Kendall:
Joel B.
Kendall is amazing! He hit the nail on the head when he was arguing against polygamy. If Christianity now means "Islam too" than what does Christianity mean? Will people still call "pre-Kendall redefination Christians" Christians? no, they'd have to call them "fundamentalists," or "2 covenant Christians" the word would have lost its old meaning and a new word would have to be created in its stead. Same with marriage.


How would that be the case? after Miscegnation laws were declared unconstitutional even in states that had them longer than the period they were states did they invent a new word for marriage involving an interacial marraige? did they call it "interracial marriage" or was it simply, legally "marriage"? I'm sure you'll point out that anti-miscegnation laws "only" lasted 200 years or so in this country (in various other countries more or less time) but in Maryland for example, they had no other law, there was only marriage between people of the same race.

Whether you call it something else or not, (World Net Daily seems intent on referring to the term as 'homosexual "marriage"' for example) does not change the fact that if two men or two women are permitted to marry under the law (well, they already are, in Massachusetts of course in the US and other places) regardless of what some groups refer to it as (the Washington Times for example, another publication that prefers to imprecisely use quotes to editorialize disagreement with a legal concept) it will simply be, from a legal standpoint "marriage."
3.19.2006 11:08pm
Joel B. (mail):
Kendall,

That perhaps is the crux of the disagreement, interracial marriage, can be shown to be far more traditional than any sort of miscegnation laws. Traditionally, there is the story of Boaz and Ruth, Rahab also married into the Jewish culture. That it was illegal for mixed races to marry in Maryland does not stop the fact that a man and woman of mixed race could still be in fact married. Maybe the state wouldn't recognize it, but the state is not the be all and end all.

And that's exactly what it comes down to...for the proponents of SSM, marriage must mean, whatever we define marriage to be, so if we change the definition, voila the deed is done, for me and others, marriage exists outside of the state, regardless of what is legal or not marriage exists.

Incidentally, we know this to be true, because we recognize this in polygamous relationships. We say that a man has two wives. Now, they are genuinely "married," but it is illegal. But how can a man have two wives, if it is illegal, well simple he is breaking the law, but he still has two wives. Similarly two men or women may be legally married, but regardless of anything else, the laws we pass will do nothing to genuinely make them married.
3.20.2006 12:06am
Kendall:
Joel

"Incidentally, we know this to be true, because we recognize this in polygamous relationships. We say that a man has two wives. Now, they are genuinely "married," but it is illegal. But how can a man have two wives, if it is illegal, well simple he is breaking the law, but he still has two wives. Similarly two men or women may be legally married, but regardless of anything else, the laws we pass will do nothing to genuinely make them married."

That depends on your belief system. Certainly of course for example there are historical disagreements moreso with interfaith marriages although nothing has been done in US state or federal law (to the best of my knowledge) to make illegal interfaith marriages, to this day some people do not believe that a person involved in an interfaith marriage is really "married" no matter what their piece of paper says.

Its also true that some people feel that going to a Justice of the Peace, though a legally valid way to get married in this country makes the marriage "invalid" or "not recognized by god."

With all of that being true it does not address why marriage between two people of the same sex renders marriage meaningless. Certainly for some people marriages between gays and lesbians won't be acknowledged, just as the private ceremonies gays and lesbians hold aren't acknowledged today. Its also true that people are less likely to accept a gay or lesbian marriage than they would accept an interfaith marriage today (although both have a history of a lack of acceptance). However, it is also true that marriages are happening between people of the same sex and have been happening for many years without rendering marriage meaningless.

In truth, it seems that the argument most frequently raised about "making marriage meaningless" is really better stated as "making homosexual deviancy more socially acceptable." now, I disagree with the idea that homosexuality is deviant, so do most mainstream mental health and medical organizations, which is perhaps why this canard about devaluing marriage is raised. The fact is if a gay couple has a legally recognized marriage it doesn't hurt a traditional Christian marriage any more than marriage between a Christian and a Muslim does.
3.20.2006 12:50am
SLS 1L:
Joel B. - these appeals to tradition are ducking the issue. Consider the changes in marriage we've seen in the past few hundred years:

*marriage is a cultural/religious institution -> marriage is a state-licensed and state-regulated institution

*married women own no property -> married women can own property

*no divorce except upon special dispensation of the legislature -> divorce upon request

*man has a legal right to beat and rape his wife, provided he doesn't injure her too badly in the process -> spousal abuse and spousal rape are categorically illegal and subject to strict penalties

*woman is socially and legally expected to obey her husband -> husband and wife are treated as basically equal

What we've seen is a total transformation of marriage from a relationship in which a man owned and controlled a woman to a partnership of equals. There's nothing "traditional" about marriage as it exists in the West today, and a good thing it is too. Has the term "marriage" thereby become meaningless or an arbitrary designator, as it would be if the state suddenly decided to use marriage to mean "limited liability company"? Obviously not.

Nothing is more traditional in marriage than legal inequality of the sexes. We abandoned "traditional marriage," insofar as such a thing exists, when we gave that up, and we were right.
3.20.2006 2:18am
Jam (mail):
What if the government was out of the marriage business?

If a couple who make an oath and sign a Bible, for example, before their families and call themselves married, is it a marriage? Who needs a license. Marriage is not illegal unless licensed, is it?
3.20.2006 5:06pm
Jam (mail):
"Marriage is not illegal unless licensed, is it?"
Badly constructed question.

Is marriage illegal unless licensed?
3.20.2006 5:12pm
Randy R. (mail):
For those who keep arguing that being gay isn't innate, then where they heck do you think it comes from?

Sure, straight guys have sex in prison -- that's called 'situational homosexualtiy.' The men haven't become gay in the sense that they are suddenly attracted to guys. Rather, they act out gay because they alternatives don't exist. In other words, all men are pigs and have to find a way to get their rocks off.

As for being gay being innate: Here's a little test for you. If you are a man, what type of woman are you attracted to? Redhead? Blondes? Thin? Fat? Light skin? Dark? Ditzy? Intelligent? I bet you have a 'type.' In fact, name a celebrity that you think best fits your type.
Now ask your best friend what his type is, and which celebrity best fits. I bet it's different. But how can that be? All men should be attracted to the same type, right? But that's certainly not the case. We are all attracted to different types, and there is simply no explanation for it. And if you are attracted to women, then tell me exactly under what circumstances you would be attracted to a man, in the sense that you would think he is so hot you would have sex with him AND enjoy it.
Can't think of any? Neither can I. I'm gay, and 44 years old, and had plenty of chances to have sex with women. Never interested me. In fact, it really turns me off! I've never fantasized about a woman, and no woman has ever gotten me aroused.

Now, when I think of Alec Baldwin, however, that's a different story!

But the bottom line is this: your dick doesn't lie. It tells you who you are attracted to sexually. And that simply doens't change. Why is that so difficult for you guys to understand?
3.20.2006 5:20pm
Randy R. (mail):
For those who keep arguing that being gay isn't innate, then where they heck do you think it comes from?

Sure, straight guys have sex in prison -- that's called 'situational homosexualtiy.' The men haven't become gay in the sense that they are suddenly attracted to guys. Rather, they act out gay because they alternatives don't exist. In other words, all men are pigs and have to find a way to get their rocks off.

As for being gay being innate: Here's a little test for you. If you are a man, what type of woman are you attracted to? Redhead? Blondes? Thin? Fat? Light skin? Dark? Ditzy? Intelligent? I bet you have a 'type.' In fact, name a celebrity that you think best fits your type.
Now ask your best friend what his type is, and which celebrity best fits. I bet it's different. But how can that be? All men should be attracted to the same type, right? But that's certainly not the case. We are all attracted to different types, and there is simply no explanation for it. And if you are attracted to women, then tell me exactly under what circumstances you would be attracted to a man, in the sense that you would think he is so hot you would have sex with him AND enjoy it.
Can't think of any? Neither can I. I'm gay, and 44 years old, and had plenty of chances to have sex with women. Never interested me. In fact, it really turns me off! I've never fantasized about a woman, and no woman has ever gotten me aroused.

Now, when I think of Alec Baldwin, however, that's a different story!

But the bottom line is this: your dick doesn't lie. It tells you who you are attracted to sexually. And that simply doens't change. Why is that so difficult for you guys to understand?
3.20.2006 5:22pm
Just driving by (mail):
What if the government was out of the marriage business?

That's interesting, I thought that one of the few things all flavors of libertarians agreed upon was the necessity for some kind of means to enforce contracts. So you are saying, "What if the government got out of the business of enforcing contracts of a certain type", right? How will those contracts be enforced, then, if not by government? Kind of interesting to see just how many principles people will give up in pursuit of a political goal, isn't it?
3.20.2006 5:27pm
Randy R. (mail):
I guess what I find difficult to understand is why people don't believe me when I say I'm gay and that's the way I've always been. Do you think I'm lying? What would be the purpose of that? Wouldn't my life actually be a LOT easier if I were NOT gay? I wouldn't have been beaten up throughout high school, my parents would have been much happier, I could go to church and not think of it's hypocracies. When I was closeted, I wouldn't have had to make up stories about finding certain girls 'hot' when I didn't at all, I wouldn't have had to hide my tapes of Judy Garland at work, or be carefull about showing too much interest in ballet.

Today, I wouldn't have to give money to gay rights organizations, or devote so much of my free time to gay organizations. I could have gotten married to a woman many times over, since women seem to find me the ideal type of husband (I'm an excellent cook, decorator, great with kids, like culture and shopping, and never watch football). I even like a clean house!

So why not just give up the foolish notion of dating men, and go with the flow? Because I'm not like that. I am very different. I am Gay!

So why is this so difficult for straight men to accept? I have plenty of straight friends, male and female, who have no problem with accepting the fact that I'm gay -- even my mom! But you men can't seem to believe it. Why? Why is that so threatening to you?

I guess you have to believe that no one is really gay to justify discrimination against us. What other explanation is there? I've never heard anyone say, gays aren't really gay, but give them the same rights anyway. Nope -- it's always, gays aren't gay, so don't give 'em any rights. Please explain.
3.20.2006 5:33pm
lisamarie (mail):
Libertarians who want the state out of the marriage business are not saying that the state should "stop enforcing contracts of a certain type." If the state were out of the marriage business, then people could make contracts of their choosing governing their marriage, and those contracts could be enforced. Marriage as it is now is a one-size-fits-all contract determined by the state, with its terms subject to politicians' mechanations and shifting political winds. The "marriage contract" is an outcome of the winner-takes-all struggle between political interest groups, rather than the needs and wishes of individuals. It is very different that the voluntary, individualized agreements that those of us who want the government out of the marriage business envision. It does not require giving up any principles in pursuit of a goal, and to say so is a misunderstanding of the position.
3.20.2006 6:47pm
Just driving by (mail):
Libertarians who want the state out of the marriage business are not saying that the state should "stop enforcing contracts of a certain type." If the state were out of the marriage business, then people could make contracts of their choosing governing their marriage, and those contracts could be enforced.

Ok, how would they be enforced, with the state removed from enforcing them, i.e. "out of the marriage business"? By arbiration? Ok, what if one side refuses to accept the arbitrator, what then? Get another arbitrator? Or appeal to the 'arbitrator of last resort', and that is...what?

Marriage as it is now is a one-size-fits-all contract determined by the state, with its terms subject to politicians' mechanations and shifting political winds.

Isn't that what is desired? Certainly the pro-SSM people seem strongly determined to create a one-size-fits-all contract, with its terms subject to the machinations and whims of judcial politics.

The "marriage contract" is an outcome of the winner-takes-all struggle between political interest groups, rather than the needs and wishes of individuals.

I'm sure it seems that way to some. To others, the marriage contract is a flawed human construction that has evolved over centuries, and that should not be casually discarded like an old newspaper without good reason. For example, not that long ago historically it was claimed by libertarians and others that unilateral contract abrogation for no cause (also known as "no-fault divorce) would have no effects upon the larger society than making more people happy. Oddly enough, it does not seem to have delivered on the promises made, and the social costs continue to mount up.

It is very different that the voluntary, individualized agreements that those of us who want the government out of the marriage business envision. It does not require giving up any principles in pursuit of a goal, and to say so is a misunderstanding of the position.

No-fault divorce (unilateral contract abrogation for no cause) was supposed to do this, too, but it hasn't worked out that way. Time has shown that this one change has had huge effects. The entire construct of family law has grown by orders of magnitude merely to deal with the conflicts arising from "no fault divorce". Ask anyone who has been through a contested divorce with children if the family law is convoluted or simple, evenhanded or capricious.

The notion of "getting government out of the marriage business" is one that will lead to an even larger, and more Byzantine, family law structure than we have now, with even more rules and regulations created by special interests and judges (am I repeating myself?) in the process of mediating the endless disputes that will arise. No doubt this will be fixed by some other change in the law, promoted by attorneys and judges, and oddly enough tending to enrich attorneys...
3.20.2006 7:58pm
Jam (mail):
So far, the arguments against taking the government out of marriage has to do with dissolution. Therefore, according to y'all marriage is a dissolution agreement according to government rules.

Is it that chaotic, legally speaking, when divorce occurs with a pre-nuptial?
3.20.2006 8:04pm
Just driving by (mail):
So far, the arguments against taking the government out of marriage has to do with dissolution. Therefore, according to y'all marriage is a dissolution agreement according to government rules.

Well, no, the issue is what entity will enforce the contract. The most dramatic example of contract enforcement is, of course, dissolution. But day-to-day living would be affected as well. For example, I'm aware of some Objectivists who insist that anyone who comes inside their house sign a contract that spells out what will and won't be allowed. I have no idea how detailed this is, never having seen the document. I also don't have a clue how the contract is to be enforced; would an Objectivist call upon the State to forcibly eject a guest for failing to properly respect the 1st edition copy of "Atlas Shrugged", for example? Or would a private arbitrator be called in to hear the grievance and rule accordingly? Your guess is as good as mine, but I trust my point about further "legalization" of society is clearer? Substituting contract law for common culture and some degree of maturity hasn't worked well in such areas as smoking, why would it work any better in marriage?

What would a libertarian marriage contract look like, I wonder? Would everything be spelled out, from menus and food items that must be served (or must be prohibited), to entertainments that cannot be allowed, to the inevitable issue of sexual activity? Or would there simply be a general "kum-by-yah, let's all live together in peace and harmony" kind of statement? One thing is likely, people won't do a very good job of defining their terms in the process of creating their marriage contract, and will wind up with a document that will require a great deal of interpretation to enforce, leading to all sorts of mischief rather like what we see today, only with even more lawyers, interpretations and thus regulations in the family law structure.

Is it that chaotic, legally speaking, when divorce occurs with a pre-nuptial?

I have no idea. But what kind of pre-nup would you write for a gay triad that may include a breeder later on with possible extensions to polyandry, that you would be sure would stand up under the stress of two members deciding to leave and take any children with them, just for a start? I bet some of the law students are salivating right now at the thought of the fees something like that could generate.
3.21.2006 11:13am