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Some practical differences between same-sex and multiple-partner marriages:

David Link, an attorney who has worked in the California legislature for eight years and has written for Reason and the L.A. Times, has followed the recent exchange among Professor Robert George, Jon Rauch, Maggie Gallagher, and me over gay marriage and polygamy. He has emailed me his thoughts on some practical differences between recognizing dyadic same-sex marriages and recognizing polygamous/polyamorous marriages.

Multiple partner marriages, he argues, would raise many issues simply not present in gay marriages:

Some recent events related to polygamy have brought the slippery slope argument back into prominence for gay marriage advocates. See reactions to Robert George here. The argument has, as a premise, that same-sex marriage is enough like polygamy that legislatures or courts could not distinguish them; if the first is approved, the second would likely follow. In Professor George's words, there is no "principled" or "serious" argument that could accept same-sex marriage but not polygamy.

But there are differences between same-sex marriage and polygamy that would make it perfectly sensible for society -- whether acting through a legislature, a vote of the people, or a court — to draw a line that includes same-sex marriage, but excludes polygamy.

The key difference can be found by asking a fairly simple question that gets very little focus in the current debate: in a polygamous marriage, who is married to whom?

Since polygamy is illegal in America, we seldom have reason to think about such an obvious question. But it's at the heart of the reason some of us would be perfectly comfortable saying that polygamy is so different from same-sex marriage that the one could fit into our understanding of marriage, while the other does not.

The difference comes down to arithmetic. Same-sex marriages have the same dyadic structure that all heterosexual marriages now have. Each partner is married to the other, and only to the other. Their rights and obligations to one another, to any children they may have, and to any third parties who might have some interest in the relationship, such as banks, creditors, parties to contracts, etc., are usually quite clear.

That's not true with polygamy.

In the dominant form of polygamy, where one man is married to several wives, he is, in some way, "married" to each one of the wives individually. But the exact boundaries of such relationships are unclear, and we have no modern experience to know how far they might extend.

But what about the relationships of the wives to one another? Are they similarly "married" to all the other wives in the marriage? Specifically, as a matter of public policy, are they legally married to one another the way a husband and wife are under current marriage law?

Stay with that question. If the answer is "yes," then if the husband died, would the wives continue to be married to each other? Why or why not? For those who find same-sex marriage objectionable, why wouldn't those relationships among the wives be same-sex marriages? In ancient cultures where women may have had fewer rights than men, such questions might never have come up. But they would be inevitable in today's world if polygamy were to be seriously debated.

And every question like these leads to others. Assume the husband is alive, but relationships with him sour. Could some or all of the wives divorce the husband, but continue to be married to one another? Could they divorce one another? Again, why or why not? And if the answer is "yes," how would that work? Who files what papers, naming whom? Would the various partners choose up sides in the ensuing divorce proceedings, and how would a court deal with that?

Another question related to divorce: Could an individual wife file for divorce of only herself, or would a divorce petition dissolve the entire marriage? What about if it's the husband who wants a divorce? Should the rule for him be different than the rule for the women -- i.e. could his successful petition for divorce dissolve the entire marriage, while a wife's successful petition only removed her from the marriage? Or consider the situation where one woman is married to several husbands -- or where several women are married to several husbands. Again, who would be able to divorce whom, and why? How would such actions affect other spouses?

And -- central to the present debate — what about the children? If the husband -- or one of the wives -- wanted out of a polygamous marriage, what would the rules be for who gets custody of the children -- and who is responsible for child support? Do the other wives have a claim to custody, along with their husband? What about child support payments? All the wives would almost certainly have some long-term relationship with children of each of them. Would it be good for the children to cut off those relationships because one wife wanted out of the marriage?

The questions related to divorce illustrate only the legal and policy problems within the marriage. But what about the critical question of how outside parties would be affected by polygamous marriages -- no small thing in the modern world. There are clear rules when a contractor signs up to remodel a married couple's kitchen about the couple's legal responsibility for payment. But what about a contractor remodeling a polygamous family's kitchen? If, as in "Big Love," each wife has her own house, and the one who gets the remodel can't or doesn't pay, can the contractor go after a wife with sounder finances? Again, why or why not?

The fact that we do not know the answers to these questions -- and thousands of others -- is at the core of why polygamy is dramatically different, as a matter of public policy, from same-sex marriage.

If anyone wants to argue in favor of polygamy -- and for the present such advocates still remain either imaginary or well out of the political mainstream -- they will have a lot more questions to answer than advocates for same-sex marriage do. That is because of a very simple reason. Same-sex marriage has the arithmetic on its side. It is mutual, binary, and fully capable of being subject of all existing laws related to marriage.

Polygamy would require a genuine rethinking of marriage. And its multiplicity truly does have the capacity to undermine marriage: psychologically, culturally and legally. In fact, polygamy offers exactly the kind of concrete danger to marriage as we know it that same-sex marriage opponents have only been able to insinuate. This difference between same-sex marriage and polygamy can serve as at least one sound basis to argue that same-sex marriage is consistent with marriage as we understand it in today's world, but polygamous marriage is not.

These issues could be addressed, special rules worked out to accommodate the many differences between dyadic and multiple-partner marriages, etc. But they are large and numerous enough to suggest that the slope is a lot more sticky than some people suppose.

UPDATE: A number of commenters have suggested that the problems David Link points to have been addressed in one way or another by societies that have practiced polygamy for thousands of years — and thus the problems are not insuperable. "Polygamy has been quite common in Islamic societies," notes one commenter, and surely we can learn from them. But this only exposes a much larger problem that separates the recognition of same-sex marriage from the recognition of polygamous marriage: sex equality. Marriage in the West has evolved over the past 150 years or so into an equal partnership, where both man and woman have more or less equal rights and responsibilities. The legal distinctions between men and women in marriage have been largely erased. In the traditionalist, pre-modern societies where polygamy flourished this norm of sex equality was simply not present. Gay marriage, by contrast, is fully consistent with our commitment to sex equality. In fact, it is partly an outgrowth of that commitment.

Making polygamy (and multiple-partner marriage generally) work in a modern society where sex-equality norms are strong would not be a simple matter of transferring the legal rules from these other, earlier societies to ours. It would require a great deal of adjustment, both to our marriage practices and to the historical practice of polygamy. Again, the point is not that these adjustments could not be made — with a whole lot of effort they could be, at some cost. The point is that having to make them separates the issue from dyadic same-sex marriage in a way that makes either the logical or political/ideological slide seem unlikely.

The practical issues Link raises are not the only reason there's no slippery slope from gay marriage to multiple-partner marriage, as I have written previously here and here, and Eugene has discussed in a very thorough law review article on the subject, but they are a part of it.

Brian Macker (mail) (www):
Come on, don't be dense, these issues of polygamy were settled by Allah at the beginning of time and delivered to a camel raider over 1400 years ago. Get with the program, or DIE! :) On a side note those same settled rules say all homosexuals must die.
8.23.2006 7:55pm
Nom (mail):
Polygamy has been (and is) quite common in Islamic societies. Surely, they have addressed these issues (note that same sex marriage is far stranger to the world than polygamy is). Given our courts' new love for the legal cultures of other nations, I imagine all of these issues can be resolved by examining those other cultures. Does anyone know how other societies deal with this? Its not like polygamy hasn't been dealt with before . . .
8.23.2006 7:55pm
Third Party Beneficiary (mail):
"Given our courts' new love for the legal cultures of other nations,"

If by "new" you mean, "since the very first session of the SCOTUS" then sure.
8.23.2006 8:05pm
Luke:
Surely if Congress can spend billions of dollars in labor and materials to constuct complex legal codes governing entities that employ tens of thousands of people, they can come up with a marriage code governing 5. Then again, polygamists don't contribute much to reelection campaigns.
8.23.2006 8:06pm
ichabod:
I thought common law sprang forth from a swamp in Maryland.
8.23.2006 8:08pm
alkali (mail) (www):
Nom writes:

Does anyone know how other societies deal with this [i.e., legal relations under polygamy]?

Basically, by making the man the only legal agent in the family unit.

(Indeed, restructuring Western marriage away from that model -- and to a model of two equal legal agents -- has been no easy trick.)
8.23.2006 8:10pm
Bob Flynn (mail):
Generally, an argument that is based primarily on "raising questions" without answering them -- ain't a good argument. I count 24 questions marks in Lawyer Link's little lecture.

My gut reaction -- polygamy is a mess. Bad for society. Bad for the kids. Ban it.

But, my secondary gut reation is: Any substantial departure from traditional 1 man, 1 woman marriage is a mess. Bad for society, bad for the kids. Ban it.

Also, wouldn't "dyadic" same-sex marriages encompass a marriage between two brothers? Sure, this is remote, and I don't think we should focus on the extreme cases to make general policy. But, if you accept gay marriage, it's hard to provide "practical differences" between say, Sullivan marrying his boyfriend, and Sullivan marrying his brother.

My bottom line: My libertarian/humanistic instincts compel my sympathy to the theoretical argument that lovers (of any sexual configuration) oughta be able to get married. That would allow permit gay marriage.

However, my practical/experiential instincts of living in this great, but imperfect country for many decades, compels me to concludes that kids, typically, do better with 1 Mom and 1 Dad. This makes society thrive. Departures from this (unwed births, divorces,) makes society wilt. That's how life works. That's how Charles Darwin set it out in our genes. Compete against men, find a girl, procreate, raise kids.

So, I stick with the practical tradition, at the expense of theoretical logic.
8.23.2006 8:11pm
David Link (mail):
If Nom is correct, then someone must have decided either (1) that the women in a polygamous marriage are lawfully married to one another, or (2) that they are not. While (1) would be consistent with Western understandings of sexual equality, I can't quite see how an Islamic society would have approved such a thing. If they did adopt a reading like that, perhaps they accepted the legal equality of all the inter-marriages, but imposed some sort of prohibition on the wives having sexual relations, or took such a prohibition for granted. The stigma on homosexual behavior is still quite strong in Islamic societies, and any legal theory that could be interpreted as accepting such conduct would raise serious questions.

That's why I'm doubtful about (1), though I would welcome any reliable information that would show I am wrong. My guess is that if an Islamic society has addressed this issue, they would have come down with a position more like (2). A rule like that would be entirely inconsistent with Western notions of equality, and I doubt it could be accepted here.

In either event, what is interesting to me is how the notion of the equality of the sexes has effects on multi-partner marriage that would not have been at issue (particularly as a legal matter) in earlier times. It would have been much easier, prior to the 20th Century, to simply ignore the legal relationships of wives to one another in multi-partner marriages. I don't think we could ignore that issue today.
8.23.2006 8:16pm
AppSocRes (mail):
I will reiterate the comments of an earlier poster with some different emphases: It's absurd to argue that polygamy will raise difficult legal issues but that same sex marriage won't. A multitude of civilizations have practiced polygamy and evolved legal codes to deal with the issues that arise. In many of these men's and women's legal statuises have been roughly equal. (Even in Islamic law, many critics mistake tribal custom and local interpretation of that Law, for the Law itself. While not a model for sexual equality, basic Sharia provides much more protection to multiple wives than might be expected.) Surely a moderrn civilization contemplating polygamy (or even polygamy and polyandry) can derive useful precedent from the laws of other, polygamous civilizations. On the other hand there are no civilized precedents that I know of for regulating homosexual/lasbian marriages. We're blindfolded and walking over a cliff on this issue.
8.23.2006 8:45pm
Dan Hamilton:
We wouldn't ignore the issue today. It is fairly simple. Everyone in the group is married to everyone else. They ALL have to agree to marry someone new. Divorce is one or more people divorcing the Marrage (the rest of the group). Children stay with the larger part of the group. THAT is one of the reasons for group marrages, protection of children. The concept is simple. You marry into the group. You divorce the group. Normal marrage becomes just the smallest group marrage.

BTW for this to work you must have Same Sex Marrage FIRST. The laws then fall out from the Idea that everyone in the group is married to everyone else. Kind of like a Corporation. Individuals or groups may come and/or go but the group marrage goes on until everyone is dead or the last two people get divorced.

The sex of the members of the marrage doesn't matter or even if any members are having sex with anyone else in the group.

The group marrage is always treated under the law for divorce as two groups. The people within the two groups are like people with a Corporation that splits. They are married with their group but no longer married to anyone in the other group.

With this framework. I don't see where there would be real problems. The rules of marrage just change from two individuals to two groups even though sometime a group maybe only one person.
8.23.2006 8:45pm
Taeyoung (mail):
But they are large and numerous enough to suggest that the slope is a lot more sticky than some people suppose.
I would agree, but not on the basis of any of the reasoning you offer above. As for some of the commenters above (some tongue in cheek), it seems obvious to me that polygamy is a perfectly normal form of marriage, nearer a rule than an exception. And on the flip side, gay marriage also seems qualitatively different from heterosexual marriage (whether monogamous or polygamous), for reasons which a thousand gay marriage threads have already plowed through ad nauseam.

No, the reason is simply that "marriage," as a cultural artifact gets defined by public sentiment, and public sentiment is under no obligation at all to be rational or fair. Gays and lesbians who would like to get marriage typically come from "our" culture. They're our siblings, our cousins, etc. They are sympathetic.

Polygamists are not.

When polygamists are prevented from marrying and get themselves chucked in jail for bigamy, they're definitely the "other" to the American cultural norm. Maybe they're Muslims, maybe they're members of some Mormon sect, or maybe they're just a bunch of people who wanted to get married to each other. But we still see them as deviant, in a way that we don't see gays/lesbians. And until we stop seeing them as deviant, we won't acknowledge their marriages.

They can file all the court cases they like, but judges know perfectly well how to read around prior caselaw, if they don't like the result it will bring. That's what lawyers do, after all. While polygamy continues to be seen as icky by the public at large at pretty much every level, judges are highly unlikely to reach the result polygamy advocates want.

And when polygamy ceases to be seen as icky, and comes to be seen as sympathetic (as I am sure it will) I don't think these arguments about practicality and whatnot will amount to anything at all. Arguments about practicality and how to work out the technical details just are not terribly persuasive, against an argument that an injustice (replete with echoes of Western bigotry) awaits undoing.
8.23.2006 8:47pm
Randy R. (mail):
Bob: If your humanistic instincts allow for gay marriage, that's great. I agree! But then you say that the kids need a mother and father. Okay, I can support that conditionally. And then you say that demands that you find against gay marriage. That I don't follow.

First, study after study has shown that kids who grow up with gay parents do no better or worse in society than opposide sex parents. (Actually, they do slightly better in terms of school progress and absense of mental illness, but let's not quibble). Having one father and one mother might be good, but sometimes, its' better to have no father than an abusive one. And many many families have kids raised that are doing perfectly well with only one parent, and many many families have kids that are a mess, who have both a mother and father. (Ex. Columbine kids).

But I understand your concern -- it's for the children, right? Then what about the children of gay parents? Shouldn't their parents be married, rather than merely cohabitating? Wouldnt' the kids be better off financially and socially? Currently, with gay parents, one of the kids is the child of only one parent. Accordingly to your own logic, wouldn't it be better to have two fathers than only one?

Your argument sidesteps the reality that there are already children of gay parents out there -- and their numbers aren't small!

I think your real beef is with gays in general, since you argue that life is about finding a women, impregnating her, and then having kids. So apparently, us gays are going against Darwin? And yet we exist.

And since gays can't get married at all (except in Mass, and in some countries such as Canada), we can't be held responsible for the divorce rate or out of wedlock births. You are going to have them whether gays marry or not, so it's really not part of the equation.
8.23.2006 8:54pm
Randy R. (mail):
AppSoc says that with gay marriage, we are blindfolded and walking off a cliff. Mighty scary language! Sounds like if we allow gay marriage, we are killing ourselves. Any evidence to back up such a statement? Do you really think that the tiny minority of people who are gay and who gay married would really cause you to kill yourself and your family in some fashion? Has it happened in Massachusetts, Canada, Belgium or the Netherlands yet?

Or is it all just hyperbole?
8.23.2006 8:59pm
Randy R. (mail):
Dan, your argument ignores a whole host of issues. Currently, say a man works his whole life, and the wife stays at home. He dies. She gets the benefit of his social security input over his lifetime, and she gets payments. If we allow polygamy, do ALL the wives get similar payments. Asuming he has five wives, that's five times the number of payments -- it might mean that the family unit makes more with him dead than alive! (Now THAT would be a good tv series!) What about life insurance payments, and payouts? Tax issues? All this would entail an extensive re-examination of all entitlement payments and tax issues. It would be a mess.

With SSM, you don't have any of those issues.
8.23.2006 9:03pm
Tony (mail):
That's how Charles Darwin set it out in our genes.

Wow, the man who banished the Creator from biology has been reincarnated as the Creator himself. This is surely just slopppy language, but it's a very amusing one when you think about it.
8.23.2006 9:42pm
chrismn (mail):
Anyone against polygamy is simply a bigot against those whose sexual and family desires are of that nature. Anyone against a brother marrying his brother or a brother marrying his sister is simply a bigot. We have condoms now. They don't have to procreate. Everyone is a bigot but me.
8.23.2006 9:53pm
John Burgess (mail) (www):
Having lived in countries where polygamous and polyandrous marriages, if not the norm, were certainly not exceptional. Consequently, I find the arguments raised by D. Link to be trivial. The situations described are weird only because they're not the norm in this society. The fine points have been worked out successfully, among different models, in other societies. Societies will decide where to draw or not draw the lines.

In Muslim cultures that permit polygamy (most don't anymore), the wives are married to the husband, not to each other. They have their own legal rights and identities prior to the marriage and those are restored following the dissolution of a marriage. Under Shariah law, their rights are equal to those of the other wives. In practice, that doesn't always work out. And their rights, again by law, are not equal to those of the husband. But that's strict Shariah law.

Polygamous marriage can be far more complicated than a "normal" marriage, particularly when it comes to children. But terms like "Aunt," "Cousin," "Half-brother/sister" generally cover all the geography necessary. Laws codified over the past 1400 years, take care of the legal details of inheritance.

There are polyandrous societies in India in which a woman will marry several men--usually brothers. They would be apalled at the thought that the brothers were somehow married to each other. Look for more variations on this theme as certain cultures who abort female fetuses out of preference for male children start harvesting what they've (not) sown.

Some form of legal relationship between gays is inevitable in our society, whether or not it's called "marriage". I equally think that, given time, polygamous/polyandrous/polyamorous relationships will also come to be accepted.
8.23.2006 10:18pm
gaussling (mail) (www):
Broadly, we have two kinds of marriage in the USA. One is before a god and the other is before the state. Marriage before a god is a supernatural arrangement that is beyond the scope of this letter.

It would seem that the states compelling interest in marriage is mostly confined to the disposition of debts, assets, and minor children during the marriage and in the event the marriage fails. Married partners have an obligation to the welfare of minor children born to them or adopted. Married partners also have a status that allows for decision-making in critical care situations. It seems to be a kind of partnership whereupon responsibility for the secular aspects of married life are defined. After all, the state is called in to make decisions as to the disposition of civil matters in the event of a divorce. Surely the state can clearly define certain basic responsibilities and privileges in advance.

The moral/spiritual aspects of marriage "can" be interpreted as being perpendicular or orthogonal (like the x and y axes in a graph) to the legal dimension of property rights and other secular aspects of married partners. The state is without supernatural powers, thankfully, so it is inherently impotent in the spiritual dimension. If that is the case, and in the absence of a uniform interpretation of supernatural governance, it should be silent on spititual matters.

The state should have no interest in how married partners conduct their lawful affairs beyond the normal confines of civil and criminal law.

A code defining the responsibilities of married partners in a variety of configurations could be modeled easily. If you accept the premise that secular marriage is confined to the mundane matters that are already contestable in a court, then it is a simple matter to imagine same sex or plural marriages under the same constraints. What is the compelling interest of the state in barring same sex partners from having automatic authority in giving comfort to a dying partner? We already have codes regulating many other kinds of complex relationships between people- corporations, partnerships, LLC's, government, etc. Minimally, the state should entertain the prospect of recognizing limited entry of some new definitions of marriage to adult parties wanting to be responsible members of society with the rights and responsibilities thereto appertaining.
8.23.2006 10:41pm
Lior:
I'd like to second Dan Hamilton's post. However, there are other issues that society will need to rethink vis-a-vis multiple marriages having to do with the multiplicity. I think what needs to be done is for these issues to be resolved, but the point is that there'd be utter chaos is multiple marriages were legalized before then.

For example, many employers extend discounted health coverage to spouses and children. How does this work in a marriage of 6 people and 20 kids? No government action needed but employers will need to revise their policies.

Another example: marriages spanning several countries would be governed by an interesting amalgam of domestic relations laws and multinational corporate law.

Also: Tax laws are written assuming a marriage contains 2 people exactly. Considerable parts of the IR code will have to be rewritten to accomodate multiple marriges. From the policy perspective, I'd say that a marriage should have two options: to file as individuals or to file as a single legal entity, but in any case tax tables, child credits and stay-at-home-mom imputations will have to be redone.

In conclusion, various parts of society (not just the government!) will have to adjust to this. The number of people who want multiple marriage might be too small to be worth the effort [though scrapping the tax code might be a good idea anyway].
8.23.2006 11:00pm
Malvolio:
This is the strongest reason that polygamous marriage should remain unlawful in the US but that same-sex marriage should be legalized? That polygamous marriage would generate a lot of paperwok? If so, the pro-poly or anti-gay forces have won.

Yes, the last century's heavy lifting in ending the "civil death" model of marriage and replacing it with a symmetric model would make the introduction of same-same marriage pretty smooth (compared to the rewriting of tax and inheritance law for polygamy that remains to be done).

But so? Condemned polygamy on this basis isn't a "principled" argument, it's just expedience. If two men who love each other have the moral right to get married, then two men and a woman who love each other have the moral right to get married -- even if it would inconvenience the IRS.

Hey, maybe that's a feature, not a bug!
8.23.2006 11:22pm
Townleybomb (mail) (www):
Bob Flynn:

Wouldn't "dyadic" opposite-sex marriages encompass a marriage between a brother and a sister? Sure, this is remote, and I don't think we should focus on the extreme cases to make general policy. But, if you accept straight marriage, it's hard to provide "practical differences" between say, Volokh marrying his girlfriend, and Volokh marrying his sister.

Or is it?
8.23.2006 11:29pm
Jimmy S. (mail):

The fine points have been worked out successfully, among different models, in other societies.


And there may even be a some experience with the issue in our own legal system. Mormon leaders Brigham Young and Joseph F. Smith, both polygamists, had wives who divorced them. And books could be written on the problems of administering Young's estate.
8.24.2006 12:42am
Monty:
The entire marriage debate is asinine. Marriage is a union created by God, not the damn city council. Doesn't the government have real issues to debate? It's not like there's a war going on or anything?
8.24.2006 12:46am
Dave Hardy (mail) (www):
1. If the state law can recognize partnerships (let alone LLCs, corporations of various types, joint ventures, etc.), with rules fot withdrawal, winding up, taxes, etc., I can't see where it couldn'r work out rules for polygamous marriage, if it wanted to.
2. In fact, mankind has several millenia of experience with such, and some sizeable percentage of the world's population lives under such arrangements to this day, and seems rather pleased with the outcome.
3.The only real objection is Shaw's -- that for every male who has two wives, there is one forced into involuntary celibacy, and hence it must be voted down in any democracy. This could be remedied, however, by polyandry.
4. The only other objection is that no sane man would want 2-3-4 people going at him over how the grass was unmowed, the house in poor repair, they hadn't gone out to dinner since (fill in the blank) or he'd forgotten their anniversary, a birthday, etc.. However, I do not believe it is the task of the state to preserve people from their own folly.
8.24.2006 1:37am
Dick King:
Child support and child custody are red herrings. It's well defined who the parents of the child are -- the biological or adoptive parents.

The presumption that a cuckolded husband is the father always struck me as a very bad idea.

-dk
8.24.2006 1:43am
Truth Seeker:
Suggesting gay marriage is more normal than polygamous marriage is ridiculous. Marriage is about children. Gay relationships don't produce children. Give it up!
8.24.2006 1:44am
Dave Hardy (mail) (www):
And there may even be a some experience with the issue in our own legal system. Mormon leaders Brigham Young and Joseph F. Smith, both polygamists, had wives who divorced them. And books could be written on the problems of administering Young's estate.


We had that experience in Arizona. The Enabling Act forbade the state to ever legalize polygamy. But in 1912 there were still a fair number of polygamous families around (my father knew such a threesome in the town of St. David, and mentioned there was a town, then outside Tucson, now within it, where the polygamists were the rule). So what's the legal solution?

The state just adopted a constitutional provision that, in intestate succession, an illegitimate child must be entitled to all the rights of a legitimate one. Thus the marriage wasn't legally recognized, but the children of it would be taken care of as if it had been. (We had to modify the Uniform Probate Code to comply with this, as I recall).
8.24.2006 1:46am
Nathan:
Another way to think about polygamous marriage is that it removes a restriction on binary marriages. Instead of only allowing two unmarried people to marry, it allows any two people to get married. It's not too complicated to see how the marriage structure works with three people. Either A is married to B and A is married to C, or A B and C are all married to each other. Both could make sense in different contexts.

The questions about inheritance, divorce, etc., are all red herrings. We already have systems in place to answer these questions about any binary marriage considering the possibility of divorce. Allowing people to simultaneously be married to more than one person is not any harder conceptually than the same people being married at different points in time through divorce and remarriage.
8.24.2006 4:04am
zooba:
Nathan:
The statement "Both [structures] could make sense in different contexts." demonstrates that you fail to see the point. The fact that both work IS the problem. Marriage and related law is an institution designed to provide a standard bundle of rights to each partner as well as to provide certain equitable remedies in the case of family conflicts. If either structure "could" work, then there can be no standard bundle of rights and remedies that acurately reflects the multiple different yet valid structures. Either (1) the law would apply a standard that only recognizes one structure, (2) the parties would have to specifiy a structure or (3) the courts would have to delve into rather delicate factual matters to determine the "actual" structure. (1) is exactly the problems raised, that the law would, in a substantial portion of the cases, just not work. (3) has its own obvious problems, as it's difficult enough investigating factual issues in "no-fault" divorce states. Just the factual inquiry to establish what structure exists seems to be extremely invasisive and subject to mainipulation and dispute. (2) is more promising, but ignores the inherent need for not only default rules, but binding equitable remedies (divorce, sharing of assets, child custody rules). If parties could simply chose what they wanted, there would be the typical problems of (1) lack of voluntariness (not a foreign concept to polygamy) and (2) negative externalaties (most obviously on the children, but also likely on creditors tricked into thinking there debt is secured on people different than it actually is).

The claim that divorce and remarriage provides an existing structure is clearly false. Although there is a decent amount of law relating to child custody in divorce and remarriage, the issues of polygamy are fundamentally different, and many of the default rules will just vanish. Also, there is no law on direct law on things like division of property (how does polygamy assign property in a community property state?), debt/creditor assignment, misc. rights like burial, hospital visitation, publicity, etc. For all such issues, either the problem of non-voluntariness/negative externality, or inability to accomodate intentions will occur.
8.24.2006 4:47am
Public_Defender (mail):
Suggesting gay marriage is more normal than polygamous marriage is ridiculous. Marriage is about children. Gay relationships don't produce children. Give it up!

But gay marriages frequently care for children, and gay parents can raise adopted children the same way infertile couples can raise adopted children.

Why do some conservatives want to give the children of gay parents less legal protection than society gives the children of heterosexual parents?

But we digress. The point of the post was that the slippery slope argument doesn't work because there is a clear line between gay marriage and polygamy. Pointing out that gay parents can't biologically produce a child with each other's DNA does nothing to respond to professor Carpenter's point.

I guess the short answer to your comment would have been, "so what?"
8.24.2006 6:13am
Public_Defender (mail):
One more point: If the key factor in a "marriage" is the ability to produce children, shouldn't we support polygamy? After all, a polygamous marriage (at least one with one man and several women) is far more able to produce children than the marriage between only one man and one woman.

That's settles it. Limiting marriages to heterosexual relationships puts us on the slippery slope to polygamy.
8.24.2006 7:26am
phwest (mail):
I would challenge the main arguement of the post - that the differences amount to a barrier on the slippery slope. If the rational for same-sex marriage is that it is a matter of fundamental individual liberty (rather than a social arrangement for the raising of children), the slippery slope is not materially obstructed by the need to rewrite the law. If people have the right to live their lives in whatever social grouping they choose, and the state has an obligation to support that, then the law must be adapted, regardless of how complicated it is.

This arguement primarily applies to court-mandated marriage changes, since courts are more likely to accept the logical premises at the expense of consequences than a legislature would be. But the logic does matter in the long term - once people accept that marriage only the concern of those getting married then there is really no telling where the changes will end.
8.24.2006 9:01am
Richard Riley (mail):
These arguments in favor of gay marriage and against polygamy would probably persuade me - if I were a legislator voting on marriage law. But I think David Link is wrong to elide legislatures and popular votes on one hand, and courts on the other. I still don't see, even in David Link's argument, a way for a COURT to say here's why the federal or state constitution demands that we ignore the "different sexes" component of existing marriage law, but does not demand that we ignore the "two and only two people" component. Mr. Link and Prof. Carpenter, what is the constitutional distinction there that would allow a COURT, under existing jurisprudential principles, to take the step you prefer (gay marriage yes, polygamy no)?
8.24.2006 9:31am
Duncan Frissell (mail):
And what about Social Security benefits?

France had to deal with this problem over the past decade or two. Immigrants from Africa on the dole in France were buying wives back home and importing them to get higher dole payments and larger apartments.

They had to ban payments to extra wives to discourage the practice.

In polygyny the man is married to his wives and they are married to him but not to each other. Likewise in polyandry. But in line, group, and clan marriages everyone is married in some sense to the group - not to each other. Corporate law could be easily adapted here.

Old ideas, not new:


On the first Feminian Sandstones
we were promised the Fuller Life
(Which started by loving our neighbour
and ended by loving his wife)
Till our women had no more children
and the men lost reason and faith,
And the Gods of the Copybook Headings said:
"The Wages of Sin is Death."


Since commies have opted out of repro in any case, discussions of their peculiar dom rel problems would seem moot.
8.24.2006 9:34am
chris (mail):
"These arguments in favor of gay marriage and against polygamy would probably persuade me - if I were a legislator voting on marriage law."

yep, me too.

at some point people seem to have decided that if they favor this or that policy, it must be enshrined in the federal Constitution. Not so. That document leaves most things up to us, via the legs. no doubt this is inconvenient at times, but it has the benefit of letting us govern ourselves, rather than handing the task over to clever lawyers.
8.24.2006 10:12am
Chris Fulmer (mail):
This is a straw-man.

Bigamous marriages have "existed" for a long time in western culture. The prototype is the travelling salesman having a wife in each of several cities. There is no argument about whether the wives are married to each other or who has the obligation to support the children from the bigamous marriages. (Absent, that is, laws that void bigamous marriages.) Why would this model change if the wives found out about each other and decided to all move in together?

Polygamy is not "One marriage, three or more people." Polygamy is "one person, two or more marriages." There is no "A,B and C decide to marry." "Polygamous marriage" refers to a marriage when one partner is already marries to somebody else, NOT to a marriage of more than two partners.
8.24.2006 10:25am
PeterH:

Posted by Richard Riley:
Mr. Link and Prof. Carpenter, what is the constitutional distinction there that would allow a COURT, under existing jurisprudential principles, to take the step you prefer (gay marriage yes, polygamy no)?


They will have to answer for themselves. But I think one clear part of that answer is that rights belong to individual citizens, not to groups.

The courts currently support the principle that it is Constitutional to have laws that limit a citizen to being married to only one other citizen at a time, and that this sufficiently gives said citizen access to all the rights that accrue from the married status. (Remember, under Loving, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.")

Setting aside gay marriage for a moment, the current system recognizes that the citizen has a fundamental right to marry, but that some restrictions on who they can choose are acceptable, such as close kinship or existing marital status.

Picking gay marriage up again, it is perfectly consistent with things as they stand for a court to say that gay citizens have a fundamental right to marry just as much as non-gay citizens, and that the restriction to opposite-gender spouses only unfairly completely excludes them from exercising that fundamental right.

The court could decide that, on the other hand, someone who is already married to another person already has exercised that fundamental right, has access to all the civil benefits that accrue from it, and that there is no fundamental right to extend that further to additional spouses.

Clearly, these aren't the only considerations, or there wouldn't be the controversies we are having about the whole issue, but that is at least one answer to your question.
8.24.2006 10:50am
A.S.:
I think Chris Fulmer, above, is exactly right. What's really going on would be eliminating the law against bigamy. If A marries B and then A later marries C, that wouldn't automatically make B married to C. (Of course, B could marry C, if they so chose.)

But really, is THIS the extent of the objection to polygamous marriage? That there would have to be a few extra administrative rules to be worked out? If so, then, I've got to say, that's REALLY unconvincing.

Hell, a few weeks ago, we were pointed to administrative problems with gay marriages too. Remember this thread?

If Dale Carpenter is going to object to polygamous marriages because we'll have to work out a bunch of new rules on how they are to be governed, then I really don't see why he doesn't object to gay marriage too. As the Vermont/Virginia issue shows, we've got a bunch of rules we've got to work out for gay marriages too.

(Too be clear, I support gay marriage. I just don't see a material distinction between gay marriage and polygamous marriage. And this post be Dale Carpenter doesn't really provide such a distinction.)
8.24.2006 11:01am
rbj:
Regarding wives being "married" to one another raises an interesting issue with evidence questions. As husbands and wives are generally prevented from (compelled) testifying against one another, would wives get the same treatment vis-a-vis each other, even if they aren't considered to be married to each other?
8.24.2006 11:07am
Houston Lawyer:
I love the precious discussion about the equality of men and women in a marriage. There's the theory and then there's the reality. Men can only wish to have the same rights in marriage that women currently have.
8.24.2006 11:25am
Randy R. (mail):
Not sure if you are joking, Houston Lawyer. If you are not, please provide some examples of rights that married women have that married men do not.
8.24.2006 11:37am
Dan Hamilton:
Bigamy would still be a crime! The others don't know about each other and didn't approve the other marrages.


Polygamy is not "One marriage, three or more people." Polygamy is "one person, two or more marriages."


Sorry you are wrong. Your definition puts one person in charge of the marrage. In history narmally a Man. He can marry when he will who he will the wifves have no say. This CANNOT work in the US. All members of a marrage are EQUALS. So it becomes "marriage = two or more people".

As for the supposed problems with SS and payments to the marrage. You have one person they have a set amount of money that goes to their spouse(s). Under the law you always have two groups in the marrage no matter what the size of each groups. How the people in each group divide money that the group receives is the groups business.

As was stated above. Under the Law how can you ignore marrage is between a man and a woman yet not ignore marrage is between two people? How are these requirements DIFFERENT in Law?
8.24.2006 11:48am
Houston Lawyer:
Randy

Post-divorce child custody. In theory, men have this right, in reality, most of them don't.
8.24.2006 12:27pm
cathyf:
The first time I ever saw the term "serial polygamy" used it was in a Guiness Book entry about Elizabeth Taylor. When you have a person who marries, has children, divorces, marries, has more children, divorces, marries, and has more children, then this has most of the same practical problems that the person who doesn't get divorced between marriages has. And if you don't believe that then clearly there are no divorce lawyers here! (I've seen enough of the complaints of "second wives" in the US and in Saudi Arabia to notice that whether or not the husband is still having sex with the first wife doesn't make that much of a difference. He is still the father to the first wife's children, and still is legally and financially entangled with the first wife forever.)

Arguing that the practical problems of polygamy are insurmountable is a bit silly. We have a kind of polygamy already, and it is very common, and we've figured it out more or less. Not to everyone's perfect satisfaction -- just ask the woman who can't afford groceries after they pay the child support for her husband's children from the previous marriage -- but we've had to figure it out and we have.

cathy :-)
8.24.2006 2:00pm
PeterH:
It's interesting that somehow the point of the thread has gone from the proposition that there are demonstrable differences between same-sex marriage and polygamy to the contention that Dale's article claimed that the differences were "insurmountable" or that there are the "only" reasons to support or oppose either the one or the other.

Of course the legal changes that would regulate legal polygamy aren't insurmountable. Please. But they ARE different than the ones which would allow same-sex marriage -- which would be very, very minimal. No changes to the existing regulation of marriage or divorce at all. In fact, no change to marriage at all, only the change to who gets in.

There is no real support to the idea that allowing same-sex marriage "automatically" leads to polygamy, any more than allowing opposite-sex marriage leads to polygamy.

And for the people who say that serial divorce is the same as polygamy -- please. You are in essence saying that there is no difference between being married and being divorced. Hardly.
8.24.2006 3:53pm
Captain Holly (mail):

First, study after study has shown that kids who grow up with gay parents do no better or worse in society than opposide sex parents. (Actually, they do slightly better in terms of school progress and absense of mental illness, but let's not quibble). Having one father and one mother might be good, but sometimes, its' better to have no father than an abusive one. And many many families have kids raised that are doing perfectly well with only one parent, and many many families have kids that are a mess, who have both a mother and father. (Ex. Columbine kids).


A word about those "studies". Most that I've seen have used, small, self-selected cohorts and have been biased towards a certain conclusion. Because of the relatively small number of gay families in comparison to the general population, and because the phenomenon of openly gay families is quite recent, this issue is hardly settled.

In addition, most "gay" families are actually the result of a gay parent and his/her companinion gaining custody of his/her children from a previous "straight" marriage. In those cases, the children usually have contact with a parent of the opposite sex, meaning that those families are more akin to a divorced straight family than a gay one.

The number of children growing up in truly "gay" families -- children who were either adopted or created by artificial insemination and never knew their biological parents -- are still a minority of all gay-parented familes. As this cohort grows, researchers will eventually be able to accurately measure the true effects of gay marriage. Until then, it's mostly just propagandizing.

It's true that being raised in a traditional two-parent family doesn't automatically guarantee success in life. But then again, smoking cigarettes doesn't automatically guarantee you'll get lung cancer; it just raises the odds of the event significantly. Everyone seems to have a crusty old Uncle Goober who smoked like a chimney and died in his sleep at 95. But it would be irresponsible to recommend smoking simply because a few people show no ill effects.

Pretty much everyone now agrees that even in the best situations divorce is quite traumatic to children, and in many if not most cases the children are prone to suffer any number of significant negative effects such as depression, poor grades, early sexual activity, and alienation. The fact that most children of divorce parents eventually "get over it" doesn't mean that it's a good thing or that there's not a substantial minority for whom it's a devastating life experience.

I remember about 15 years ago this position was quite controversial. Indeed, Dan Quayle was roundly criticized for daring to suggest that intact families were better for kids than fatherless ones (of course, Atlantic ran it's famous "Dan Quayle Was Right" article shortly after the 1992 election.) But up until then, the conventional wisdom was that divorce was a benign, if not beneficial event for children. And there was plenty of "research" available that showed no ill effects from divorce whatsoever.

In terms of research and understanding of the real impact of gay families society is where it was in the 1970's as to understanding the real impact of divorce. As more and more research is done, I predict eventually most will recognize that the gay family is inferior to the traditional straight family when it comes to raising healthy, well-adjusted children.

Whether or not anyone will be allowed to openly say that is another story.
8.24.2006 4:42pm
Jackson (mail):



As more and more research is done, I predict eventually most will recognize that the gay family is inferior to the traditional straight family when it comes to raising healthy, well-adjusted children.




How convenient! On the one hand you are a sober scientist, pointing out methodological flaws of existing studies that don't support your beliefs--"small sample size" "bias" etc. On the other hand, you breezily "predict" that the results of future studies that haven't been conducted or even designed will support your beliefs. What a rigorous approach!

Maybe instead of putting "studies" in quotation marks you should put marks around your "analysis"
8.24.2006 6:03pm
Captain Holly (mail):

How convenient! On the one hand you are a sober scientist, pointing out methodological flaws of existing studies that don't support your beliefs--"small sample size" "bias" etc. On the other hand, you breezily "predict" that the results of future studies that haven't been conducted or even designed will support your beliefs. What a rigorous approach!


You seem to have the strange idea that social scientists are completely free of personal bias.

First off, as I pointed out in my post, openly gay families are still a relatively recent societal phenomenon; most children raised in gay families haven't even reached adulthood yet, let alone get married and have children. It will be a while before a large enough group of adult children of gay parents is available to provide valid samples for comparison to the general population.

Furthermore, I was predicting that if studies about gay families follow the same pattern as studies about divorce -- that is, early studies "found" the result that was pleasing to the non-traditional activists, later studies revealed the inconvenient truth -- then in a decade or so we'll start seeing more and more studies calling into question the popular idea that gay families are no different than straight ones.

And I also predict, as with divorce, those first brave researchers who dare to question the validity of gay families will be treated as heretics.
8.24.2006 6:28pm
Tracy W (mail):
It strikes me there is a more serious problem with allowing polygamous marriage than writing a new set of rules.

At the moment there are a set of rights and duties that come along with marriage that cannot be otherwise assigned by contract. The two main ones are:
1. the right not to testify against your spouse
2. immigration rights (the right to bring your spouse into your country)

What happens when the notion of exclusivity is removed from marriage? What will happen to the right not to testify against your spouse the first time it turns out a criminal gang has all married each other in order to get that right?

What will happen to the immigration situation when marrying one person no longer means giving up marrying someone else? There is already a fair amount of marrying for immigration rights going on - how much more will there be when you can marry for the legal right without having to give up being married to the person you love?

Now perhaps the solution to these problems is to say that these rights should not exist for even two-person marriages. But they do now. Consequently, if polygamous marriage is introduced then this means a likely change in the rights of existing marriages in a way that homosexual marriage does not. Whether you think the existing rights should exist or shouldn't exist does not alter the basic point that they do exist and polygamous marriage quite likely would mean a reduction in such rights.
8.24.2006 7:49pm
Jackson (mail):
I have no problem--and in fact generally agree--with the proposition that we don't have a rigorous scientific understanding of the effects of same sex parents on children. Speaking from a "scientific" point of view, as opposed to any other, I think that the only responsible thing to say is "we don't have proof that children of these families are being harmed. More studies may or may not lead to a different conclusion."

My problem is with your "prediction," which seems predicated on a false association between what you assert was a trend in divorce studies (I don't know if the picture is as simple as you paint it: "Early studies say divorce is fine; later studies say divorce is bad"--and suspect this may be an oversimplification) and what y ou believe will be a trend in studies of gay parents. This association you have made seems questionable on a lot of levels, starting with the implication that there is a "trauma" associated with having same sex parents that is akin to the trauma of divorce. Isn't it probable that divorce causes injury to children because they see two people they love fighting and splitting up, because they worry about who will take care of them etc etc? Is that the same as having two loving and supportive parents of the same sex?

Your final point is just a political one and really isn't meaningful because at the moment there are no valid studies that are being labelled heretical.
8.24.2006 7:53pm
Jackson (mail):
Captain Holly:
Put differently, isn't the only valid scientific comparison to compare children of straight divorced homes with children of gay divorced homes?
In other words, your basic argument is that studies of divorce support the belief that children "are better off with a mother and father." In fact, however, what the studies you refer to (may) demonstrate is that children are better off not growing up in a home where the parents divorce. That's a completely different proposition. You have no idea WHY children of divorced straight parents are harmed (assuming they are). As I pointed out above, logically that is probably not simply because "I don't have a mother AND a father in the home." Instead it's more likely that "I have to watch my mother and father scream at each other all day" and "I wonder if it's my fault that my parents hate each other." This is what makes your attempt to extrapolate from divorced people to gay people very very questionable.
You should just admit that you want to believe (for religious or cultural reasons) that children of straight couples are better adjusted than children of gay couples, rather than trying to give your opinions a pseudo-"scientific" gloss
8.24.2006 10:43pm
Randy R. (mail):
Captian Holly -

Even if everything you say is true, it leaves us a few basic facts: the studies that have been done about children of gay parents don't show any difference, and there are no studies that show that children of gay parents turn out worse.

Now, perhaps in the future this might change. So what? Gay people will still have children. And many of them will of course still turn out just fine. For those who don't turn out fine, then all the more reason why society should do what it can to provide a good stable home for them, and that includes allowing the parents to marry.

Further, you seem to equate 'gay parents' with 'trauma of divorce'. Any basis for this equation? Children of gay parents are no more traumatized that children of striaght parents. (They might be taunted more at school -- that does happen more frequently, but that's a problem with homophobia in society. Correct that, and the children won't be taunted anymore).

In other words, nothing in your posts indicate any reasons to prevent gay people from having children (an impossibility in any case) or from preventing gay people from marrying.
8.25.2006 12:55am
PeterH:
Even more important is that the whole question of how kids do in gay parenting situations is being badly misused as an argument.

Studies showing how children of gay households do compared with the children of straight households may or may not have some bearing on the question "should gay people be allowed to raise children."

They have NO bearing on the question, "Should gay people who are raising children be allowed to get married, with all the associated rights and responsibilities."

Show me a body of scientific work that shows that children raised by unmarried couples routinely do hugely better than those raised by married couples, or that children are inherently damaged by having their parents be legally married, and we can apply it to this question.

Because what you are claiming is that it is better for children to be raised by unmarried gay people than by married gay people, and I defy you to find that study.

For that matter, you can't validly compare children raised by married straight people to children raised by unmarried gay people to draw conclusions on the effect of marriage on gay parents. Compare children raised by UNMARRIED straight couples to those raised by married straight couples and then map that onto gay families.

Why do I guess that those studies would show that marriage makes a huge positive difference in the lives of similarly situatated parents, or at very worst, a completely neutral one?

If you are going to use studies, get it right. Otherwise, it hints at bigotry (or ignorance). Wouldn't want that, now would we?
8.25.2006 2:38pm
Randy R. (mail):
No we wouldn't.
I don't know if you are referring to me, by I don't think anyone ever claimed that it is better for children to be raised by unmarried gay people, than by married people. So no need to find that elusive study.

I don't believe children turn out, as a group, better or badly depending on whether their parents are gay, straight, married or unmarried. I don't think anyone is arguing otherwise.

My point, at least, is that children are BETTER OFF if their parents are married, because then they legally have two parents. Why is that better? Because if one parent dies, the child stills has a legal parent, and can still inherit. If the parents are unmarried, and the legal parent dies, then the other partner is a legal stranger to the child and is officially without any parents. I don't see how that can be good
8.25.2006 9:15pm
PeterH:
No Randy, my comments were to Captain Holly.

My point was that any discussion of whether gay people make better parents than straight people, regardless of the outcome, is immaterial to the discussion of whether gay people should be allowed to get married, since marriage is manifestly not a requirement to have kids. The question relating to children of gay parents is whether they do better with married parents or unmarried parents.

My point was that if the good Captain wants to use studies to oppose gay marriage because of the effect on the children (not that any other US citizen's eligibility for marital status is dependent on their child-rearing, yet another way to make gay people second class citizens), then use studies that actually have a bearing on the question at hand.

I was agreeing with YOUR points, and still do.
8.26.2006 10:37am
Richard_MM (mail):

Taeyoung wrote --
"While polygamy continues to be seen as icky by the public at large at pretty much every level, judges are highly unlikely to reach the result polygamy advocates want."

You may be right, but it's open to some doubt, and we certainly haven't seen this happening in the same-sex-marriage arena.

Ballot initiatives in many states gave clear "NO"s to same-sex-marriage (California 64%, and all the way up to nearly 80% in other states). That looks like convincing evidence that s-s-m is still "seen as icky by the public at large", but it didn't stop certain New England judges from "reach[ing] the result [s-s-m] advocates want".

Neither did it stop the California Legislature from legislating to permit s-s-m -- although a case can be made that they didn't really want it, they just wanted to embarrass the Governor.
8.26.2006 6:02pm