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George vs. Rauch on polygamy (Round 2):

Two weeks ago, I posted about an exchange between Professor Robert George and Jon Rauch on gay marriage and polygamy. The exchange between them was prompted by a recent document signed by hundreds of progressive academics and activists calling for health care and jobs for all, universal peace, an end to hunger, and the equal recognition of all relations among sentient creatures. George took this rather stale manifesto as fresh proof that gay marriage will lead to polygamy; Rauch disagreed. Since then, George and Rauch have had another go at it. You can read George's latest on the topic here and Rauch's latest here. Some of the exchange now consists of debaterish points about who-really-said-what, but there is still much of interest in it.

Since George mentions a column of mine in his latest response to Rauch, I'll say a little in response to him here. George, a prominent natural-law theorist and one of the best public speakers I've seen, understands the radical argument for gay marriage. It claims, as he notes, that "love makes a family" and that making any legal distinctions among people who love each other is unjustified. The love-makes-a-family ideology — which also marches behind the more individualistic "families of choice" banner — does indeed entail the recognition of many forms of relationships, including same-sex couples and polygamous/polyamorous groups, since all may love each other. George concludes that this love-makes-a-family premise "is central to any principled argument" for same-sex marriage.

George thus mistakes the most open-ended argument for gay marriage as the one necessary argument for gay marriage. This is a debater's ploy. One could do the same thing arguing against almost any position. For example, I could say that support for restrictions on abortion will lead to restrictions on the use of contraceptives and to the prohibition of abortion even in cases of rape or threat to the mother's life. After all, that is what many abortion opponents have said publicly and the logic of their opposition to abortion (that human sex is for reproduction) must necessarily be attributed to the whole anti-abortion cause. It is, we might say, "central to any principled argument" against abortion.

So while George understands the most open-ended argument for gay marriage — the "radical" one, as he and Rauch refer to it — it does not appear that he has taken the time to understand more careful and restrained arguments for gay marriage, like those advanced by Rauch himself. (George acknowledges not having read Rauch's excellent short book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.). I have tried, much less elegantly than Rauch, to make a similar limited and cautious case for gay marriage on traditionalist grounds. There are many, many others who have done so as well, going back to Andrew Sullivan's pathbreaking article for The New Republic almost two decades ago making a conservative case for gay marriage. I won't repeat the substance of these arguments here, but suffice it to say they do not easily lend themselves to support for polygamy; they certainly involve more than saying simply, "love makes a family."

I adduce these examples not because I think George will be persuaded by them; I am sure he will not be. He is the kind of writer who cannot even bring himself to type the words "same sex" and "marriage" together without scare quotes. I give these examples because he must know that the radical case for gay marriage is not the only one, or the necessary one.

George complains that Rauch, I, and others have not made what he calls "principled" arguments about why the recognition of same-sex marriages does not entail the recognition of polygamous ones. Instead, we have made what he calls "pragmatic" and "prudential" arguments, emphasizing differences between SSM and polygamy in terms of their respective histories, expected effects on society and marriage, and predicted benefits to the people involved. Notably, George doesn't say that these prudential arguments are wrong; he even concedes that some of them are "strong." In the sense that I think George means "principled" he's probably right that we haven't made principled arguments against polygamy; but his sense of principle is a very specialized one coming from a modern strain of natural-law argument.

When you read modern natural-law writings, you find that by "principle" in the context of the debate over marriage, something like this is meant: "Marriage must be between a man and a woman because only they can procreate; as for sterile male-female couples, they are included because they can have sex of a reproductive kind." Sex "of a reproductive kind" is sex that involves a penis and a vagina, even if it can produce no more babies than could a male and a male or a female and a female. (The argument is longer than this, of course.) The conclusion of the argument is embedded in the "principle" and then offered as if it's an argument.

In his scholarship, George has asserted that male-female marriage (and no other kind) is a good in itself; it is not a good because it is instrumental to the attainment of other goods, like pleasure, expressing feelings, or even procreation. In an article co-authored with Gerard V. Bradley, George has written that male-female marriage, and only male-female marriage, has an "intrinsic value" that "cannot, strictly speaking, be demonstrated." "Hence, if the intrinsic value of marriage . . . is to be affirmed, it must be grasped in noninferential acts of understanding." George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301(1995). This "noninferential understanding" that "cannot be demonstrated" is unavailable to some people, argue modern natural-law theorists. Bradley adds that, "In the end, one either understands that spousal genital intercourse has a special significance as instantiating a basic, non-instrumental value, or something blocks that understanding and one does not perceive correctly." Gerard V. Bradley, Same-Sex Marriage: Our Final Answer?, 14 Notre Dame J. L. Ethics & Pub. Pol'y 729, 749 (2000).

This amounts to saying: "Same-sex marriage is not 'marriage' because only male-female marriage can be 'marriage.' Trust me." The modern natural-law argument against same-sex marriage at bottom thus appears to rest on revelation of some pre-cognition reality to the initiate and only to the initiate. This seems to me very close to saying that marriage just is the union of one man and one woman and cannot, no matter the arguments, be defined any other way. Same-sex marriage is always same-sex "marriage." Thus, for George as for other natural-law writers, every attempt to expand marriage beyond their "principle" is mere pragmatism and prudence, and as George puts it, "lets the cat out of the bag."

But advocates of a logical slide to polygamy need to show the necessary "principle" uniting the causes of same-sex marriage and other unions, like polygamous ones. Yes, you can imagine such a principle ("love makes a family") and even find support for it in slogans and in the writings of some academics and activists who say they favor gay marriage but also favor many other reforms. The manifesto that has George so excited actually says very little about polygamy (I missed the one oblique reference on a first read), but prominently calls for an end to "militarism," and repeatedly for a wide range of government social-welfare measures. Must gay marriage advocates who didn't sign the manifesto produce position papers and principles against state-controlled universal health care, too? Same-sex marriage is no more necessarily tied to polygamy than it is to all of these other proposals.

And when it comes to crafting public policy, why don't pragmatic and prudential considerations count as serious arguments? If same-sex marriage will benefit the individuals involved, any children they're raising, and their communities, all without plausibly harming marriage or any existing marriages, does this not matter as against a claim that a conclusory principle stands in the way? All of these claims are contested, of course, but the point is that we should be debating them.

And if polygamous/polyamorous marriage raises a host of different questions about harm, practical administration, and about historical experience, none of which depend necessarily on how we've resolved the debate about gay marriage, why must gay-marriage advocates definitively address it?

The way we frame the debate about gay marriage matters not just for the ultimate outcome, but for the shape and attributes of that outcome. Those of us who have been making a conservative case for gay marriage do so, fundamentally, because we believe in marriage. We do not want to see it harmed and we do not think that this reform means every proposed reform of marriage, including potentially harmful ones, must be accepted. Ironically, George and the Gang of 300 manifesto-writers agree that gay marriage means anything goes. I don't expect that George will hold to that position when gay marriage is actually recognized (indeed, he'll strongly resist the supposed slippery slope to polygamy then), but the damage he is doing now by making a tactical alliance with them and arguing the line cannot be held will not have been helpful.

UPDATE: Maggie Gallagher has now added her views to this discussion, in a post at Marriagedebate. I have significant disagreements with Maggie about gay marriage and how radical a change it would be, see here, and therefore with some of the points she makes now. I also think she overstates the influence of the manifesto writers on actual national family policy. They have an entire agenda on family law (not just gay marriage), and a host of other matters, but I see very little constituency for many of the changes they advocate and very little legislative or judicial movement in their direction. The forgotten causes of academics and activists fill whole graveyards of ideas.

However, I am pleased to have Maggie acknowledge that if procreation is the principle that keeps us from SSM it is not a very good principle for keeping us from polygamy. Oddly, the constant emphasis of some gay marriage opponents on procreation as the be-all-and-end-all of marriage opens the door to arguments for polygamy. It is this reductionist opposition to gay marriage that risks the logical slippery slope.

Dave Hardy (mail) (www):
"equal recognition of all relations among sentient creatures."

Sounds to me like they were calling for more than gay marriage. The question is whether, during the ceremonies, a "b-a-a-ah" should be interpreted as a yes, or a no.
8.17.2006 6:02pm
Randy R. (mail):
The Professor is correct: The anti-gay marriage crowd has made three arguments.
1) gay marriage will lead to polygamy.
2) this is obviously 'bad.'
3) it's up to gay marriage proponents to prove number one or two is wrong.
Which leads to
4) if you can't accomplish number three, then we cannot allow gay marriage.

Seems like the burden falls entirely on us SSM proponents. Why can't SSM opponents make their own arguments on why polygamy is so terrible, or that polygamy might be allowed even without SSM being allowed.
The other thing is that no matter what you say to prove number one or two is wrong, they always always always dismiss it. Basically, there is NO argument that will satisfy them, which is exactly why they insist upon No. 4.
8.17.2006 6:08pm
DHBerger (mail):
Thank you, Dale, for once more exposing the sophistry of SSM opponents. Let's hope Maggie Gallagher never returns to this site again.
8.17.2006 6:46pm
jimbino (mail):
On the flip side of the coin, I would love to see a debate on the topic: What is a sham marriage?

It could be limited to heterosexual marriage, but would have to consider the importance of elements like sex, love, procreation, cohabitation, companionship, economic necessity and intent to immigrate, among others.
8.17.2006 6:58pm
Dave Hardy (mail) (www):
I always thought the polygamy ban rather interesting. It comes into Christianity via Roman law. There is recognition that some early Christians were polygamous (I believe Paul's epistle to Timothy states that bishops should be men with one wife only, implying that ordinary church members need not be). I suspect polygamy was and is the rule outside the sway of the Greco-Roman world. And we have plenty of serial polygamists and polyanderers (or whatever the term would be) -- it's not uncommon for celebrities to have four, five, six spouses. The only requirement is that they get a divorce in between.
8.17.2006 7:12pm
Dave Hardy (mail) (www):
On the flip side of the coin, I would love to see a debate on the topic: What is a sham marriage?

Most of 'em, after the first year or so.
8.17.2006 7:13pm
Lincoln (www):
The arguments against gay marriage are mostly, if not exclusively religious in nature. Therefore it seems pointless to argue the merits of banning gay marriage in a secular setting, or to someone who doesn't even believe in God. Whatever the ill effects are (short of witnessing fire and brimstone fall from the sky), such effects would be difficult to gauge, and could span whole generations before its true impact becomes known.

The government is too tangled up into this controversy, with either side attempting to impose their belief system on the other, using government as a metaphorical big stick to achieve that end.

Since marriage has been an inherently religious institution, it should remain a private affair. Instead of imposing gay marriage by either legislation or judicial fiat, a compromise could be reached by introducing a "best friend's law" that will allow gay partners to obtain the legal rights typically afforded to those who are next of kin. The government has perpetuated this problem by overreaching, it can thus resolve it to a large extent by dramatically diminishing its role.
8.17.2006 7:14pm
srp (mail):
As a supporter of gay marriage, I think that there are a few separate rhetorical problems:

1) The "love makes a family" folks, are, as Dale suggests, not helpful in reassuring the public that gay marriage is safe for traditional morality.

2) The equal rights argument, while attractive to those already convinced, also has slippery-slope problems. I bet when the anti-miscenenation laws were being debated, some racists said "If you do away with these laws, what's to stop homosexuals from arguing similarly that they should be allowed to marry each other." To which the enlightened probably scoffed haughtily. If the equal rights argument becomes the trump card, we will probably have trouble distinguishing other generalizations of the marriage relationship. We can either say "fine" or "we'll deal with those when they come up" but it's silly to pretend that an opening isn't being created.

3) I suspect that to a lot of people opposed to SSM, they see it as a kind of mockery of marriage, in the way that a Satanic Black Mass is a mockery of Catholic worship. They lump it in with the in-your-face parades and other shock tactics indulged in by those gays who, ironically, are not the ones interested in bourgeois marriage at all.

In my opinion, the best way forward is to make a Burkean argument that the law must respect the evolving customs of the people. There are already thousands of pairings in the US who would be declared married in common-law if they were heterosexual--they own houses together, they often have kids, they've conmingled their lives. By and large, they look a lot like other families in all other regards and are not wild-eyed social revolutionaries changing mores about fidelity or child-rearing. If we don't modify the law to take these facts on the ground into account, the law will drift farther and farther from being a support to our customs and beliefs and will undermine the stability of family life for a large number of people, including children.
8.17.2006 9:24pm
CJColucci:
Has anyone in the last, say, half millenium or so, managed to come up with some actual, reasonably robust and specific content for "natural law?" It doesn't take much to get to the notion that, generally speaking, we shouldn't rob, rape, kill, or defraud, but that doesn't get us very far.
8.17.2006 9:24pm
ReaderY:
But what reason is there to limit this argument? There are many people who love their jobs. Why in the world should they be denied their equal right to select their vocational partners in whatever genders and numbers they prefer? Isn't what they're doing "family"? What reason is there for the government to limit love, by law, to only certain activities? Can't love be part of the entire human condition?
8.17.2006 9:53pm
Hoya:
CJColucci:

Germain Grisez, John Finnis, and Joseph Boyle have defended an extremely well-worked out natural law account over the last thirty years or so. Other writers working in this vein include Robert George, David Oderberg, Timothy Chappell, and Alfonso Gomez-Lobo. Of course, much of it is very, very controversial. But that is not particularly surprising. Carpenter's very dismissive restatement of George's argument -- which is a briefer formulation of an excruciatingly well-worked out account due mostly to Grisez -- is not particularly enlightening, and I suggest that one show the appropriate caution about accepting on faith a description of an argument offered by the opponent of that argument.
8.17.2006 10:01pm
plunge (mail):
I think the principles are pragmatic: we really CAN come up with ways in which polygamy would destablize marriage and social institutions, but I don't think any serious case has been made that homosexual marriage actually would. We shouldn't block equal treatment for substantively equal partnerships unless we have a good reason. And we don't.

Of course, Lincoln makes a good point. The problem with most opponents of gay marriage that try to argue things rationally is the same with the work of Ramesh Ponnuru on things like stem cells. We're dealing with positions that are fundamentally based on religious beliefs that are simultaneously trying to masquerade as ideas that came about purely through rational secular thinking. This is exactly why the arguments are littered with strange semantic dances and ultimately seem to be glued together with "trust mes" all over the place. It's because half of the real arguments: the original thinking, the basic reasoning, it missing or painted over to try and look like something else. In the end, trying to pretend along with these people that you are having a straight out factual natural law debate just is silly after a point.

I should also just say: is there any more brilliant a mind and a writer today than Jon Rauch? Kindly Inquisitors still stands as a masterpiece defense of classical liberalism and setting out its core boundaries and principles when it comes to speech and debate.
8.18.2006 2:04am
Houston Lawyer:
I agree that once you dismiss the entire world's historical understanding of marriage, as well as religious and political implications, that traditional marriage is hard to defend.
8.18.2006 11:15am
CJColucci:
Hoya: I wasn't basing my question on Prof. Carpenter's description of Prof. George's argument, but on reading, among others, Prof. George and Prof. Finnis. Certainly there have been books -- of the making of books there is no end -- but that wasn't my question.
8.18.2006 12:00pm
Joshua (www):
The arguments against gay marriage are mostly, if not exclusively religious in nature. Therefore it seems pointless to argue the merits of banning gay marriage in a secular setting, or to someone who doesn't even believe in God. Whatever the ill effects are (short of witnessing fire and brimstone fall from the sky), such effects would be difficult to gauge, and could span whole generations before its true impact becomes known.

I too have noticed that the case against SSM has been little more than an elaborate substitution for "because God said so". But Lincoln raises another, generally underappreciated point here. If SSM were to be generally legalized tomorrow, maybe over time it will damage the fabric of society in some way that we can't appreciate today - but by the time that damage becomes apparent, it is already done, and there's no guarantee that it could be undone simply by re-abolishing SSM at that point. (Not to mention that married or marriage-minded same-sex couples would undoubtedly fight tooth-and-nail to preserve SSM in any event, societal damage or no.)
8.18.2006 12:10pm
Joshua (www):
Forgot to finish my thought above... which is that the potential for unforeseeable (let alone unintended) consequences is a stronger argument against SSM than anything the anti-SSMers are now putting forth.
8.18.2006 12:21pm
Randy R. (mail):
And Joshua, if SSM were to be generally legalized tomorrow, maybe over time it will help and heal the fabric of society in some that we can't appreciate today -- and then we will be kicking ourselves as to why we waited so long.
The potential for unforeseeable or unintended consequences are not always negative and often are positive.

Basically, what you are saying is that we should disenfranchise a while mess of people from the institution of marriage for nothing more than a fear that, although some good would clearly come of it, some bad might as well, but we have no idea what that 'bad' would be.

And surely, you must agree that SOME good would come from SSM, wouldn't you? At least for those who are gay, and for those who have gay parents? And gay children?
8.18.2006 4:52pm
Randy R. (mail):
Actually, opposing granting certain rights to a group of people based on nothing more than pure conjecture is really the weakest argument, not the strongest.

But let's take your argument at face value, and apply it to instances in the past. When the debate was whether to grant women the right to vote, you could have raised that argument. And indeed you would have been correct -- letting women vote changed the face of America in ways that we are still grappling with -- women insist on fair wages and treatment in marriage and in the work place and so on. Would you say that your fears of possible social upheaval would have been enough to deny women the right to vote? And now looking back, and seeing all the changes that it wrought, surely then it was a bad decision?
What about the impact of automobiles? Put your argument to the test when cars were first becoming ubiquitous -- surely, you could have argued, the car will cause great change in America's habits in ways that could not be foreseen. And you would have been correct -- look how the car has complelety transformed our world. Would you say that your fear-based argument would have been the strongest to prevent the car from taking over the world?

We are Americans. We don't live our lifes on a fear-based philosophy. We don't deny change just because of the potential of harm, but only on the bases of real or at least rational concerns.

Now, if you accept the figure that most anti SSM people throw around that we are less than 1% of the population, and figure that much than that would actually get married, then you are talking a very tiny percentage of Americans engaging in SSM.

Somehow, I think that if America survived women's rights and votes, black's rights and votes, interracial marriage and so on, we can survive this one.
8.18.2006 6:06pm
Joshua (www):
Points well taken, Randy B. But then, resistance to social innovations due to their potential for harm (regardless of their potential benefits) is the short definition of social conservatism. This is why I find it to be stronger, or at the very least much more honest, than the crypto-religious arguments alluded to by Lincoln, because it strips all that away and instead speaks directly to the heart of what a social conservative is: someone who is suspicious at best of social innovations.

For this same reason, I find the very notion of a "conservative case for gay marriage" to be silly. There's no such thing as a conservative case for an innovation. Support or oppose same-sex marriage on its merits and/or on principle, but we'd all do well to disabuse ourselves of the notion that there's anything conservative about it.
8.19.2006 1:25am
Randy R. (mail):
Good point, Joshua. I guess it depends on your def. of 'conservatism.' Under your view, you are of course correct. Under others, it might not be, though. Example (and this is just an argument): Marriage in an institution. The conservative case is to keep it as it is. But marriage is falling apart (high divorce rates, out of wedlock births, people cohabitating instead of marrying). Therefore, to KEEP the institution as it is, a conservative would have to innovate some change. by doing so, you get marriage, instead of seeing it become debased. Or you can do nothing at all (your point) and see it shrink away in importance.

And looking back, then according to your def., then conservatism is against women's rights, black's rights, and let's go further, against allowing non-property owners the right to vote (as it was originally) and would be against the American Revolution.

So the logical extreme of being wary of social change means that conservatism is on the wrong side of history of a number of important events. I'm sure that's not what you intended, but an argument could be made.

So, sometimes, you have to balance what you know, what you don't know, what you fear, and what you believe is right and just. Not that these are easy answers, or that everyone agrees upon them. But what I DO see -- daily, as a gay man-- is the unjustness of denying the benefits, both monetary and societal and status-wise, to a group of people for no other reason than "I don't like it." And worse, denying important benefits to their children.

My point is that the horse is already out of the barn. When straight people see that gay people raising a family, having children and so on, without the benefit of marriage, they realize they can do so too. Frankly, if we gay people can do it, why can't anyone? And that thought, once out there, is the biggest single factor that is destroying the idea of marriage. Don't believe me? Just ask all the anti-gay marriage people -- they agree too.
8.19.2006 3:13pm