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Same-Sex Marriage and Polygamy:

I don't have a strong opinion on the same-sex marriage debate. I have followed it casually, here and elsewhere. As a casual observer, I have had one nagging question that I haven't seen addressed, and is magnified by Eugene's post on the slippery slope in the same-sex marriage cases that he mentioned last week.

Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify. The primary justification I can see is a Hayekian one of prudential deference to tradition unless there is an extremely strong case for rejecting it. I would distinguish this from what I would understand as a Burkean objection, which I would read as tradition being prescriptive, rather than prudential. But whether this is an accurate distinction is probably a debate for a different day.

So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

Now my sense is that the courts simply say that they are distinguishable, but don't say why. They seem to simply say that they are different. And as Eugene's post implies, merely saying they are different without saying why doesn't hold up to scrutiny later.

The difference, as is often the case, is that legislatures often draw arbitrary lines, especially under their police power. But courts should be able to articulated a principled basis for their decisions rather than an arbitrary legislative-style line-drawing.

As I said, I don't have strong feelings on this, so my question is purely intellectual--I'd just like to understand better whether a principled line can be drawn here or whether this is largely arbitrary line-drawing.

Update:

On rereading, it would probably have been more accurate to characterize the traditional one man-one woman definition of marriage as "conventional" rather than arbitrary ("arbitrary" may suggest a normative characterization that I did not intend), but I think that the general point of my query was apparent to readers.

Related Posts (on one page):

  1. On to polygamy?
  2. Same-Sex Marriage and Polygamy:
The Ace:
We have developed a long string of statutory and common law rules regarding property disposition (death or divorce), custody, end-of-life decisions, taxes, etc. which are based on the 1 to 1 framework. All of those rules, (except to the extent they are gender-specific, although I cannot think of any that would survive a challenge) can be immediately applied to a same sex marriage without any adjustments are difficulty. No doctor in CA is suddenly confused on how to apply end-of-life decision making authority rules because it is a same sex situation. Those rules cannot be extended as cleanly to multiple partner legal relationships. Making a tax code for 3, 4, and 5 person marriages doee not seem like the greatest use of time.
5.19.2008 2:57pm
Adam S:
Two quick responses:

First, a point made at oral argument in Goodridge (the Mass. marriage case) by Mary Bonauto, counsel for the plaintiffs: Over the last century, the inexorable trend in marriage legislation and case law has been to remove distinctions based on gender (the ability of wives to own property, differences between dower and curtesy, etc.). There is no similar legal tradition involving distinctions based on the number of partners to a marriage.

Second, there are giant practical barriers to eliminating the two-person requirement for marriage -- relating to taxation, legal privilege, inheritance, child custody, and so on -- and relatively few equivalent barriers to same-sex marriage. Unlike same-sex marriage, polygamous marriage would require rethinking virtually every legal right and responsibility pertinent to marriage.
5.19.2008 2:58pm
no doubt:
Todd:

Of course you are right. The marriage contract of the state is merely one arrangement of a human institution that has existed in any number of forms. While the value of the specifics terms of that contract can be debated, the idea that any specific form of it is any less arbitrary than any other is silly.

Of cousre, all of this points to what I think is the ultimate libertarian goal: getting the state completely out of the business of marriage. What would be so wrong about letting individuals draw up their own marriage contracts, on whatever terms they want, that they state will then enforce for them? No special state benefit, no individual state discrimination. Period.
5.19.2008 2:59pm
Oren:
no doubt: Certainly a democratically elected government can legitimately decide that it wants to reward marriage with tax credits, inheritance-tax exemption, legal privilege . . .

Given that our populace is very strongly behind such measures, I think what's silly is to propose that they be eliminated.
5.19.2008 3:03pm
delurking (mail):
While there is some merit to the arguments of the first two posts, they fail to consider that in cases of unmarried individuals we already have mechanisms by which their parents or children make custody, end-of-life, inheritance, etc. decisions.

So, my vote: arbitrary.
5.19.2008 3:04pm
Pender:
The principal difference is that being gay is immutable, whereas being a polygamist is a matter of choice. I am able to fall in love with men and unable to fall in love with women. If you ban gay marriage, you ban me from ever experiencing a happy marriage. There is no analogous harm to banning polygamy. This difference is enough that gay marriage overcomes the (prudent) Hayekian skepticism of change, while polygamy does not.
5.19.2008 3:04pm
Pliny, the Elder (mail):
The first two post are correct as far as they go. They both ignore, however, that the reason for these developmetns can be explained by the decision to discriminate against the polyamorous (which I think is the neutral way of describing those who find love in groups larger than two).
It aqll leaves open the point hinted at by no doubt: where does the state get off arbitrarily privileging those who prefer to hang out in pairs?
5.19.2008 3:09pm
The Unbeliever:
The principal difference is that being gay is immutable, whereas being a polygamist is a matter of choice. I am able to fall in love with men and unable to fall in love with women. If you ban gay marriage, you ban me from ever experiencing a happy marriage. There is no analogous harm to banning polygamy.
What about men who are unable to commit to a single woman for the rest of their lives? Aren't you banning them from having a happy life, since they will either be forced to stay with one partner forever or undergo a series of harmful divorces? Do we need to start the evolution-in-nature thread that posits males are genetically disposed towards multiple partners, and since that disposition is immutable (for the sake of argument) we are wrong in making the practice taboo?
5.19.2008 3:09pm
theobromophile (www):
So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

There is a colourable argument that the tendency towards same-sex attraction is biological (albeit not necessarily genetic) in nature. There is no such claim about polygamy. To some extent, then, we can say that we'll allow people to marry the adult to whom they are attracted, but won't accomodate, through government sanction, personal preferences in marriage.

A quick sampling of the various problems that come about through plural marriage that are simply not present in gay or straight marriage:
*Adding another person to the marriage. Would the three of you have to have a ceremony at the same time? If two people wed, and the wife wants another hubby, does her first husband have to consent? Who is married anyway - a man to each woman, or all individuals to each other?
*When you marry, would there be any way to ensure that your spouse could not bring another person into the union later on? Mr. Zywicki can surely imagine his discomfort if his wife were to wed another husband.
*What happens when you divorce? What if the second wife only came into the marriage because of her belief that the first wife did a good job of managing the children and keeping the husband's drinking under control, and the husband desires to divorce the first wife? Can the second wife object - after all, it's her marriage at stake, too?
*Have fun trying to divide property at divorce, especially if only one spouse divorces and the others remain married.
*Whose paycheck would count for child support and alimony? If the purpose of alimony is to have the divorce spouse live in the manner to which she was accustomed during the marriage, why would she not be able to get alimony from her sister-wives, if they worked and earned a paycheck?
*Upon whose death does the marriage terminate? If there is one husband and three wives, would the union terminate when the husband dies, when any one person dies, or when there is only one person left?

It has the makings of great hypos for sadistic Family Law finals, but could be a disaster in reality.
5.19.2008 3:10pm
LTEC (mail) (www):
Surely being bisexual is as immutable as being gay, or at least we are always being told this. Surely it would be cruel to demand that bisexuals choose one sexual orientation over the other. Surely whatever bisexuals need for fulfillment, the State should officially offer as marriage.
5.19.2008 3:13pm
Anderson (mail):
I see nothing wrong with my marrying 25 people and taking a tax deduction for each.
5.19.2008 3:15pm
Alex Denmark (mail):

Over the last century, the inexorable trend in marriage legislation and case law has been to remove distinctions based on gender (the ability of wives to own property, differences between dower and curtesy, etc.).


The trend in society over the last century has been away from life-long committed, monogamous relationship, too.


The principal difference is that being gay is immutable,


That's highly open for debate.

The "one" part of one man, one woman, is highly arbitrary, especially when multiple religious groups' practice of their religion is being hindered (and persecuted) because of it
5.19.2008 3:20pm
Oren:
where does the state get off arbitrarily privileging those who prefer to hang out in pairs?
The democratically elected will of the people is overwhelmingly behind it.
5.19.2008 3:20pm
David Friedman (mail) (www):
"There is a colourable argument that the tendency towards same-sex attraction is biological (albeit not necessarily genetic) in nature. There is no such claim about polygamy."

I would have said the opposite. There are obvious Darwinian reasons why men would want multiple wives and why, in a society where men differ substantially in their access to resources, some women would prefer being the second wife of a rich man to being the first wife of a poor man. Same sex attraction, while it obviously exists, is a puzzle, biologically speaking—it isn't obvious why it doesn't get eliminated by evolution.

Going to the more general question, the only argument I can see against recognizing polygamous marriages is that it would require a more drastic revision of existing law than recognizing same sex marriages.

I'm curious—is there anyone here willing to argue that the 19th c. Supreme Court decisions supporting the outlawing of polygamy by the federal government were correct?
5.19.2008 3:23pm
Nathan_M (mail):
There is no fundamental difference in the relationship between two men who want to marry and a man and a woman marrying who want to marry.

Those relationships are quite different from, say, three men and two women who want to get married. So I can see a principled reason for not allowing polyamorous marriage.

As for a more traditional polygamous marriage, where one person has two spouses, but the spouses are not married to each other, I find it more difficult to draw a principled distinction. You could say that the partners are not exclusively committed to each other, but that is also true of a great deal of traditional marriages.

I think many would argue that polygamous marriages are inherently, or at least inherently tend to be, exploitive of one of the partners. The LDS in Texas would be a good example in support of this proposition. Ultimately, though, I think this is based on prejudice (perhaps a justifiable one, but still a prejudice) against polygamy, rather than a principled distinction.

There would, of course be serious practical problems with allowing polygamy. (If one marriage ends and the other continues how do you calculate income for child or spousal support? If someone with two spouses is in a coma, and the spouses disagree on what medical care he or she should receive, who decides?) I think these difficulties, plus the fact that the vast majority of us are biased against polygamy, will mean no court will ever allow polygamous marriage unless society grows a lot more tolerant than I imagine it is likely to in the foreseeable future.

Someone will probably bring up bestiality, but the inability of an animal to consent is an obvious, and principled, reason not to allow such a marriage.
5.19.2008 3:24pm
Anderson (mail):
There is a colourable argument that the tendency towards same-sex attraction is biological (albeit not necessarily genetic) in nature. There is no such claim about polygamy.

I'm not sure this works. There is at least the *claim* that males try to, ah, disseminate their DNA as widely as possible. Whether this is polygamy or "polyamory," I dunno.
5.19.2008 3:24pm
Pliny, the Elder (mail):
Oren

Do you mean like 61%?
5.19.2008 3:25pm
Anderson (mail):
Ah, should've refreshed b4 posting -- Friedman gets it.
5.19.2008 3:25pm
Volokh Groupie:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=506242

Todd, you should start with some of Elizabeth Emens' work.
5.19.2008 3:36pm
DiverDan (mail):

The principal difference is that being gay is immutable, whereas being a polygamist is a matter of choice.


And just what is it about being gay that is "immutable"? Are you asserting that one's sexual orientation is a genetic condition? I'm not aware of any responsible geneticist who claims to have discovered a "gay gene". Moreover, given that those who are truly comitted to being gay do not reproduce (at least not by the normal method), it would seem to take a concerted effort by gay sperm and egg donors and artificial insemination/in vitro fertilization to keep this "gay gene" in the human gene pool. If it is in fact epigenetic, i.e., controlled by external markers which sit on top of the DNA strands and act to "turn on" and "turn off" genetic markers, then the studies on epigenetics demonstrate that all epigenetic markers are changeable through environmental changes. If the characteristic of "gayness" is a result of: (a) a genetic predisposition, combined with (b) some environmental or psychological "trigger", then being gay might in fact be immutable within a given individual, or it might just as well be reversable with either elimination of the environmental trigger or psycological treatment. While I remain open to being convinced to the contrary, the most likely explanation seems to be that being gay is a choice made, most likely as a result of some psychological trauma -- i.e., an overbearing mother, an abusive father, a really traumatic rejection by the opposite sex. If in fact being gay is a choice (even if the subject sincerely believes that is his/her "only" choice), then there is no principled way to distinguish gay marriage from plural marriage. If one looks to historical traditions, then plural marriage, which was common among early biblical figures (i.e., Abraham), and remains common among Muslims, among other cultures, certainly has more support than gay marriages, Even the rare cultures that tolerated or even openly encouraged homosexual relationships (i.e., ancient Sparta, where the warrior class of men were in fact encouraged to develop homosexual relationships with other warriors), tradition still required a heterosexual marriage, even if the wife's sole duty was to procreate and provide more males for training as warriors.
5.19.2008 3:37pm
Pender:

What about men who are unable to commit to a single woman for the rest of their lives?


If you could prove that this was in fact immutable, you'd have a case. As it stands, it's not clear to me that these men aren't making independent choices, and that, in fact, they could choose to be happily monogamous at any time. Barring this, it's not clear to me that the men are capable of monogamy but simply haven't met the right woman yet. The scientific consensus is quite clear that being gay or straight is not a choice, and I'm unaware of any similar consensus that being "polyamorous" is not a choice.

Furthermore, even if it's not entirely a choice and some people really are inherently more monogamous than others, I'd be surprised if it were truly as immutable as sexuality. Hormones change as you age, and most men do eventually settle down, happily and monogamously, for the rest of their lives.

Finally, even if the natural aging process isn't a good enough cure, hormones can be adjusted chemically. This is not as radical as it sounds. Many common medicines have this side-effect. Propecia, the male hair-loss drug, is a good example. Thus, even if it's not a choice for someone with a certain hormonal composition to settle down, it's a choice to retain that hormonal composition. (Arguing in response that, analogously, gay men could surgically become women is unconvincing, since sex changes impose a level of social disruption completely out of proportion with that involved in taking common, FDA-approved drugs designed for routine problems.)


Aren't you banning them from having a happy life,


I said happy marriage. Gay people can lead happy lives today even in states that do not recognize their marriages. Are we denying the hypothetical immutably polyamorous man a "happy marriage" by outlawing polygamy? I don't think so, since it's not clear his marriage would be happy even if it were legal. Perhaps the immutable drive (arguendo) to chase more tail, rabidly, uncontentedly, forever, by itself means one cannot be romantically happy regardless of the legislative environment. I happen to think that is true -- and, for what it's worth, that it applies just as accurately to serial polyamorist gay men as straight men.


Do we need to start the evolution-in-nature thread that posits males are genetically disposed towards multiple partners, and since that disposition is immutable (for the sake of argument) we are wrong in making the practice taboo?


That something is a predisposition in nature does not mean it is immutable. Males are, arguably, predisposed by natural selection to rape women, but can still choose not to be rapists, and indeed can live happy and fulfilling lives without ever raping anyone. Having a thread about it probably isn't necessary, but we definitely need to see the scientific data.
5.19.2008 3:38pm
Pender:

And just what is it about being gay that is "immutable"?

I don't know. No one does. What we do know is that there is no reliable way to turn even the most willing of a gay man straight. This is very clearly the scientific consensus of the day. We admittedly don't know the why, but we are very clear on the what.
5.19.2008 3:41pm
vepxistqaosani (mail) (www):
Once you've tossed tradition out the window, there are no laws regarding the intimate associations of human beings that cannot be shown to be arbitrary.

It's certainly true that striking down all such arbitrary laws would produce significant practical difficulties, but it is unclear that our courts are concerned with such mundane matters. After all, we're talking Rights here, even if they are rights that no one on Earth had ever thought off until just a few years ago.

Family law is about to get a lot more interesting ....
5.19.2008 3:42pm
Gary Imhoff (mail) (www):
This same question was raised a few years ago in the Volokh Conspiracy, in the aftermath of the Massachusetts court's gay marriage decision. At that time, Eugene's position was that it was nonsense that mandating a legal status for gay marriage was the first step on a slippery slope to legalizing polygamous and polyandrous marriages. At that time, however, he didn't articulate a principled distinction between the two, but simply said that there wasn't a powerful enough political coalition to force recognition of marriage with multiple partners.

The case for polygamous and polyandrous marriages is much stronger than the one for same-sex marriages, if our society is determined to abandon the "one-man-one-woman" definition. Historically, extremely few societies have institutionalized and legalized same-sex marriages, while numerous societies have created detailed legal arrangements (that take into account property, tax, inheritance, and other questions) to recognize multiple-partner marriages. Polygamy has a much weightier historical and sociological argument for recognition than homosexual marriage.

It seems to me that in just the few years between the Massachusetts and California decisions, we have gone very far down that slippery slope. William Saletan, in Slate, is arguing that there is no justification for continuing to ban either polygamous or incestuous marriages (http://www.slate.com/id/2191504/). It took only two decades for gay marriage to travel from being ludicrous and unthinkable to being mandated as a civil right. It will probably take only another decade -- absent a stronger push back than has emerged so far -- for courts to grant both multiple-partner and first-cousin marriages the same civil rights status. (Sibling marriages and parent-child marriages, both opposite sex and same sex, will probably take a little longer to be legalized, but what principled arguments stand in their way?)
5.19.2008 3:43pm
Houston Lawyer:
If polygamy were legal, we'd see a lot more of it than SSM. Most of the arguments against polygamy borrow heavily from those used against SSM.

Marriage is rapidly becoming an upper class institution, with the lower classes opting out. As is usual, the children will suffer most.
5.19.2008 3:45pm
Pyrrhus (mail) (www):
"Barring this, it's not clear to me that the men are capable of monogamy but simply haven't met the right woman yet."

Yeah, and I insist that gay people meet all 3 billion women on the planet before they can prove they are gay.
5.19.2008 3:49pm
Aultimer:

David Friedman :


I would have said [that polyamory is biologically based, homosexuality isn't]. There are obvious Darwinian reasons why men would want multiple wives and why, in a society where men differ substantially in their access to resources, some women would prefer being the second wife of a rich man to being the first wife of a poor man.


Darwinian reasoning gets us rapidly to eugenics and ice-flow disposal of the elderly, so I don't think it's the best rationale for drawing these lines.

Clarifying and correcting multi-spouses' legal rights that have been established and codified under a presumption of being a single person does have a substantial cost that isn't present in the SSM situation.

Of course, if the poly are willing to pay for the entire effort, I'd support them.
5.19.2008 3:51pm
nitpicker (mail) (www):
This seems relatively simple. A marriage should be seen as a contract in which one person promises a product (himself) to another and vice versa. Polygamy would, in effect, be reselling the same product and would be considered fraud.

If we take this somewhat libertarian view of marriage, it also clears up any number of similar "slippery slope" arguments in that (much to the sadness of Senators Santorum and Cornyn) neither dogs nor box turtles can consent to being part of such a contract.
5.19.2008 3:52pm
FantasiaWHT:

Someone will probably bring up bestiality, but the inability of an animal to consent is an obvious, and principled, reason not to allow such a marriage.


Well what about objects? Life-size dolls, in particular. Lack of consent isn't an issue there - an object isn't harmed by being forced against its non-existent will.

And what about incestuous marriages? Should we allow them after an affidavit of sterilization? There's no non-arbitrary argument against that, it doesn't even have the property problems of polygamist marriages (since you can adopt your spouse as a child to futz with inheritances in many states).

I'm not going to defend bestiality, but marriage and sex are not quite synonymous, so the objection to man-animal marriages weakens too.

The slippery slope is about redefining a word. Hell, if you can redefine marriage to mean a formal relationship between two men or two women, what reason at all is there to stop from redefining it to mean anything else?
5.19.2008 3:52pm
Pyrrhus (mail) (www):
"Darwinian reasoning gets us rapidly to eugenics and ice-flow disposal of the elderly"

On the other hand, it might lead us to reason that in the long run, the human race will sort itself out and there is no reason for us to have to "make sure" that people know to propagate their own genes.
5.19.2008 3:54pm
Pender:

Yeah, and I insist that gay people meet all 3 billion women on the planet before they can prove they are gay.
You are free to insist on whatever you want, I suppose, but the science is pretty clear that some people are straight and some people are gay. If you can design a methodologically sound experiment that demonstrates that some men are immutably incapable of monogamy (as opposed to those who don't desire it or those who can't or don't know how to meet the right woman), do it. If you can find such a preexisting experiment, show me. Otherwise, you're being either anti-scientific or fatuous.

The fact remains that such scientific consensus exists as to the existence and immutability of gayness, but not (to my knowledge) as to the existence and immutability of polyamorousness.
5.19.2008 3:55pm
FantasiaWHT:

What we do know is that there is no reliable way to turn even the most willing of a gay man straight.


Although there seems to be no way to force the change, gay people do turn straight and straight people do turn gay (or throw bisexual into the mix).
5.19.2008 3:55pm
Pyrrhus (mail) (www):
"Polygamy would, in effect, be reselling the same product and would be considered fraud. "

But what if you are selling 10% shares in yourself? Can't you do that like 10 times?
5.19.2008 3:56pm
Talkosaurus:
Todd Zywicki makes a good post, and he points out what I found so massively unconvincing in an earlier same-same marriage thread. The arguments here for same-sex marriage, but keeping the institution no more then two people, continue to lack logical coherence.


There is no fundamental difference in the relationship between two men who want to marry and a man and a woman marrying who want to marry.

Those relationships are quite different from, say, three men and two women who want to get married. So I can see a principled reason for not allowing polyamorous marriage.



This quoted portion is an excellent 'catch-all' for many of the logical problems. It opposes the culturally formed definition of marriage as a monogamous union of a man and a woman on the ground it's arbitrary and exclusionary, but then props up the 'marriage as only two people' aspect using similar culturally formed reasoning that can be placed as arbitrary and exclusionary as the first situation. "My cultural opinion is correct, and your cultural opinion is wrong", that is the rather unconvincing gist of these types of arguments.

Failing that, people have argued that the long history of bureaucratic involvement precludes the state from redefining marriage outside of two people. That strikes me as too-cute sophistry. So all concepts of marriage are arbitrary, but the issue of marriage as being between two people is held in check by red-tape. That's a rather weak defense of an entitlement/benefits situation that is no longer really applicable (as the state loses it's reason to subsidize the institution if it has shifted from 'ideal social structure' to 'official title of two people in love'). Again, the issue (in some quarters) begins to look like an effort to hop on the government gravy train, rather anything about 'dignity'.

I'm strongly against using the judiciary to decide essentially cultural matters in general, but I'm only very slightly against same-sex marriage. That's stems from me understanding marriage as a culturally defined institution designed for social stability, not a title for two people in love. Being that same-sex couples fall outside the institutions stated definition, but are allowed to live together, receive domestic partner benefits, are not shunned from society, etc., I'm not sure what inequality has been done. Like in the threads question, the argument for same-sex marriage boosters seem to be one of their perceptions of what is fair in regards to marriage, and I'm not sure why that groups personal, cultural opinions should have any greater weight then other long-standing personal, cultural opinions (marriage as monogamous man-woman).
5.19.2008 3:56pm
Pender:

And what about incestuous marriages? Should we allow them after an affidavit of sterilization?
Frankly, I think we should, but there is a principled argument against it: As far as we know, people are not immutably incestuous. I am not aware of any scientific findings that some people are incapable of having a happy marriage with sufficiently unrelated partners. This means that you are not excluding people from the possibility of a happy marriage by banning incestuous marriages, so the Hayekian skepticism of change is not overcome.
5.19.2008 3:59pm
Pender:

Although there seems to be no way to force the change, gay people do turn straight and straight people do turn gay (or throw bisexual into the mix).

There is no scientific evidence of this among men. To the contrary, there is scientific evidence that there is no such thing as bisexuality (or, if there is, that it is vanishingly rare) among men. And even if there were, all we need to justify gay marriage (and distinguish it from bugaboos like polygamy) is that at least some gay people cannot change.
5.19.2008 4:02pm
Pyrrhus (mail) (www):
"If you can design a methodologically sound experiment that demonstrates that some men are immutably incapable of monogamy (as opposed to those who don't desire it or those who can't or don't know how to meet the right woman), do it. If you can find such a preexisting experiment, show me. Otherwise, you're being either anti-scientific or fatuous."

This isn't a very consistent demand for proof. I am positive that "the science" would show that ceteris paribus, most men prefer more sexual partners to fewer sexual partners. Does that mean men are "incapable" of monogamy? Of course not. But gay men, even if they are scientifically demonstrated to prefer men to women are "capable" of marrying and having relationships with women. I personally know more than one gay men with children by their wives.
5.19.2008 4:02pm
Pyrrhus (mail) (www):
"the sciences" not "the science"...
5.19.2008 4:04pm
Bama 1L:
Polygamy violates the 13th Amendment. The only reason we tolerate and even sanction the loss of personal autonomy inherent in marriage is the promise of companionship and equality between the two members. Allowing multiple spouses introduces structural inequality that cannot be overcome and is a mask for slavery.

If you dislike polygamy and need a good legal argument, the 13th Amendment is a good horse to ride, because it:
1. Unquestionably binds all actors: government (federal and state) and private.
2. Consent does not matter. Bailey v. Alabama establishes that you cannot enslave yourself.
3. Good historical argument. The vast majority of actual polygamists are not polyamorous individuals or other free-lovers; they're male supremacists and, in some cases, practitioners of chattel slavery.
5.19.2008 4:07pm
Duncan Frissell (mail):
Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify.

From The Form of Solemnization of Matrimony in the 1662 Book of Common Prayer (the Anglo-Saxon world's default marriage ceremony)


DEARLY beloved, we are gathered together here in the sight of God, and in the face of this congregation, to join together this Man and this Woman in holy Matrimony; ; which is an honourable estate, instituted of God in the time of man's innocency,...

Since US states "nationalized" marriage early in the 19th century, they continued the arrangements made when the churches were in charge of domestic relations law. That decision was not arbitrary (since any other marital form was both unthinkable and would have resulted in mob violence). Maybe they should denationalize.

Now when the Jews decided to outlaw homosexuality many centuries ago, the decision was not arbitrary. Whether in response to God's command or for societal reasons having to do with the status of women, population growth, and the unfortunate nature of neighboring societies that practiced homosexuality; they banned it. Their decision was no more arbitrary than the concurrent ban on child sacrifice.

We many disagree, but we shouldn't accuse those who faced very different problems of arbitrariness in the decision they made.
5.19.2008 4:11pm
David Friedman (mail) (www):
Nathan writes:

"I think many would argue that polygamous marriages are inherently, or at least inherently tend to be, exploitive of one of the partners. The LDS in Texas would be a good example in support of this proposition."

1. I think you mean the FLDS

2. It sounds as though you haven't followed the case. So far the evidence for abuse consists of:

a. A phone call from a sixteen year old abused wife who turned out to be a 33 year old woman in Colorado with a history of making fake phone calls.

b. Assertions submitted by the authorities to the court, based on what they say they were told by an unnamed confidential informant. As best I can tell, they have never actually claimed that the informant had ever been inside the ranch--the best guess seems to be that she is someone who left the sect fifteen or twenty years ago.

c. Assertions by a spokeswoman for the Texas child protective people that she had spoken to several girls who knew the girl who made the phone call--the one who turned out to be a 33 year old woman in another state.

d. Assertions by the authorities of the existence of lots of pregnant teens. So far, with all of the "children" in their custody, they have turned up two "pregnant teens," both of whom they have now conceded--after their babies were born--were adults. One of them was 22, and had shown her birth certificate to the authorities, who refused to accept it.

e. Assertions by the authorities that x-rays provided evidence of abuse. On further inquiry, what they meant was that slightly under 10% of the "children" in their custody had at some point broken a bone. That appears to be a lower rate than for the general population.

f. Assertions by the authorities that out of 52 women aged 14-17, 31 were either pregnant or mothers. They failed to mention that the ages they attributed to the women were based on their guess, and in some cases contradicted by the available documentary evidence. They made this assertion less than a week after reclassifying 25 women (I'm not certain of the number, but that's the figure I could find) as minors. Of their 52, 26 claim to be adults, and they have now conceded that two of them are--conceded after their babies were born, meaning that the authorities can now claim custody over the babies, thus retaining control over their mothers.

Or in other words, the evidence in this case shows not that polygamy is exploitive of one of the partners but that child protective services are exploitive of children--in this case engaged in a massive act of child abuse, separating hundred of children from their mothers, and then trying to justify it by repeated false and/or misleading assertions.

You can find details in various posts on my blog.
5.19.2008 4:11pm
Lawywer-Wearing-Yarmula (www):
The common argument against the legalization of bestiality in light of Lawrence v. Texas is that the animal can't "consent".

I've never understood that argument. A cow doesn't consent to be eaten, it doesn't consent to be molested so that we may drink its milk, and it doesn't consent to its hide being used to make baseball gloves. So why can't you use it for sexual purposes?
5.19.2008 4:17pm
Anderson (mail):
Polygamy violates the 13th Amendment.

Hell, on that theory, my *sole* spouse has me in a state of involuntary servitude.

But I wouldn't bet the farm on that argument, personally. The "involuntary" part is pretty important here.
5.19.2008 4:22pm
Mark Butler (mail):
So, pulling a cow's teats is now cow-sexual molestation?

Reminds me of that bit from Witness:

Eli Lapp: You never had your hands on a teat before.
John Book: Not one this big.
5.19.2008 4:27pm
NickM (mail) (www):

Although there seems to be no way to force the change, gay people do turn straight and straight people do turn gay (or throw bisexual into the mix).


There is no scientific evidence of this among men. To the contrary, there is scientific evidence that there is no such thing as bisexuality (or, if there is, that it is vanishingly rare) among men. And even if there were, all we need to justify gay marriage (and distinguish it from bugaboos like polygamy) is that at least some gay people cannot change.


What about for women, for whom there is peer-reviewed scientific evidence of fluidity?

Nick
5.19.2008 4:30pm
Bruce Hayden (mail) (www):
I don't buy into the argument that same sex marriage has any legitimacy over plural marriages. Even today, there are far more people living in countries that allow plural marriages than allow same sex marriage. And, indeed, one of the largest religions in the world (Islam) condones polygamy, and there is some evidence that some, if not all, of the other "great" religions did so in the past. This doesn't even get to the FLDS and their religious doctrines. So, polygamy has a reasonably strong claim under the 1st Amdt. that same sex marriage does not.

I think that the weakness of the pro one+one arguments above are indicia that there really is a possibility of a slippery slope here.

Let me note that I am most ambivalent on all these subjects. My major concern with polygamy is the exploitation of minor girls, which could be easily controlled by setting the age of a second or subsequent wife at 18 or so.
5.19.2008 4:59pm
Steven Horwitz (mail) (www):
And isn't being a carnivore way worse than engaging in bestiality? Bloody gory murder and eating the dead flesh vs. making sweet love? No contest.

Try raising this argument in a classroom discussion of ethics and Mill's harm principle and see how quickly undergraduates can convert to vegetarianism.
5.19.2008 5:01pm
Nathan_M (mail):
David Friedman -- you're right, it's FLDS, sorry about putting LDS. Even if all the details you posted are correct, it doesn't change my view of the relationships. It might be perfectly legal, but coercing teenager girls to have sex with old men, and ejecting teenage boys from their community, both strike me as very exploitive.


This quoted portion is an excellent 'catch-all' for many of the logical problems. It opposes the culturally formed definition of marriage as a monogamous union of a man and a woman on the ground it's arbitrary and exclusionary, but then props up the 'marriage as only two people' aspect using similar culturally formed reasoning that can be placed as arbitrary and exclusionary as the first situation. "My cultural opinion is correct, and your cultural opinion is wrong", that is the rather unconvincing gist of these types of arguments.

Talkosaurus, your argument is undeniable as far as it goes, and I can't really answer in without going wildly off topic. But, essentially, I think you have to accept some arbitrary cultural opinions or you can justify absolutely anything.

So what I meant to say was that "There is no fundamental difference in the relationship between two men who want to marry and a man and a woman marrying who want to marry, aside from differences related to discrimination based on sexual orientation." Now, I'll agree that my distaste for discrimination based on sexual orientation is an arbitrary cultural belief, but I think it's the sort it's legitimate to appeal to, like my arbitrary cultural belief that people shouldn't kill each other.

FantasiaWHT -- I think the issue with consent if a man wants to marry a suitcase isn't that the suitcase somehow objects, obviously its capable of no such thing, but that it doesn't consent. A marriage is a partnership entered into with the consent of two people. A suitcase, or a goat, can't consent to that, so whatever the relationship is, it can't be a partnership.
5.19.2008 5:07pm
Ex-Fed (mail) (www):
Seems to me that 3+ =/= 2 in ways that have nothing to do with moral approval or disapproval.

Also, many benefits that attach to marriage do not require any revision to apply equally to same-sex marriages. They would, however, require rather substantial revision to apply to plural marriages. Who gets to decide whether to turn off my life support -- my senior wife? A majority of wives?
5.19.2008 5:16pm
Doc Rampage (mail) (www):
Todd, surely you can't be serious that the traditional marriage definition is arbitrary. The original social purpose of marriage is to civilize men and to protect women and children. By limiting the choices of men in their sexual partner(s) there are a number of positive effects:

1. It reduces the likelihood of violence over sexual partners (because in cases of married women, the entire society is supposed to support one of the men in the dispute).

2. it gives men confidence in who their children are, greatly increasing their motivation to sacrifice for the good of those children.

3. it helps protect women from being tossed aside for a younger woman when they get older and lose their attractiveness.

Those are just off the top of my head (and please don't respond about how people should be good enough that we don't need marriage for those thing. Marriage is designed for the real world, not the world of our fantasies).

Any discussion of gay marriage that ignores the social function of marriage is rather pointless. Of those functions of marriage that I listed, only the first applies to gay marriage --and how many gays want to defend gay marriage on the grounds that it will keep gays from killing each other?

The only reason gay marriage is even an issue is because the institution of marriage has been damaged so much in recent decades that it no longer effectively serves its original purposes. With that reality comes the fact that a lot of people today think that marriage is nothing more than an economic convenience and/or an expression of emotion --and only under that degraded view of marriage is gay marriage even coherent.

But once marriage has reached that sorry condition, why does the state want to get involved at all? It is no longer important enough to deserve state consideration or regulation.
5.19.2008 5:17pm
ClosetLibertarian (mail):
"So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one."

Yes, gay marriage has been a hot topic wearing at the man-woman requirement but the one-one has also been worn away as one marrige lives are much less common.

I think you could argue that as divorces have become easier and more common, we have moved to something like serial polygamy. Or as marriage is less common or delayed, polygamy without formality.

I never did take family law, so a burning quesion is, What would happen in a common law jurisdiction if a man lived to 2 women for exactly the same time but over the required period?

Finally, in terms of causing legal problems being a criteria for allow one and not the other, they both require major shifts so I don't think there is a clear winner, e.g., the Rhode Island lesbian couple trying to divorce.
5.19.2008 5:18pm
SirBillsalot (mail):
Is Clayton Cramer off sick today?
5.19.2008 5:21pm
The Unbeliever:
Pender, you're posting a lot of assertions that really need supporting evidence. But my quibble is a bit of unwarranted rhetorical sleight-of-hand:
And even if there were, all we need to justify gay marriage (and distinguish it from bugaboos like polygamy) is that at least some gay people cannot change.
Uh, why? How does the existance of a few individuals--in this case a fraction of a fraction of society--justify the radical overhaul of a millenia-old institution? The "rare but existant counterexample" is good for refuting a scientific rule or hypothesis, but it doesn't work that way for legal, moral, public policy, etc arguments.
5.19.2008 5:30pm
LarryA (mail) (www):
A quick sampling of the various problems that come about through plural marriage that are simply not present in gay or straight marriage:
Sorry. I had to get back up to the keyboard. ROTFL at lawyers arguing we shouldn't do something because the contracts might be complicated.
5.19.2008 5:32pm
Nathan_M (mail):

1. It reduces the likelihood of violence over sexual partners (because in cases of married women, the entire society is supposed to support one of the men in the dispute).


Really? I always thought we put people in jail who got violent because someone slept with their wife; I didn't realize we just took the side of the married person.

You're probably right that most gays won't argue they should be allowed to marry so they don't kill each other, but neither would the vast majority of straight people.


2. it gives men confidence in who their children are, greatly increasing their motivation to sacrifice for the good of those children.

Whatever validity this argument ever had is entirely gone in the era of paternity testing. If you doubt you are the biological father of your child you can get a DNA test and know with 100% certainty. I don't see how marriage even enters into this now.

3. it helps protect women from being tossed aside for a younger woman when they get older and lose their attractiveness.

I sort of admire this reason, with its implicit assertion that men and women don't dump their spouses for more attractive partners. And we all know how true that is.

But if you were to rephrase it in a gender neutral way (which makes sense, since women dump their unattractive husbands all the time) it applies equally to same-sex marriage. Even if for some reason you think it's only bad when women get dumped for being unattractive, isn't this an argument for allowing only lesbians to marry? After all, those marriages protect two women!
5.19.2008 5:44pm
Barry Leve (mail):
Forget plural marriage, what is the court going to do when people insist on inter-family marriage? The first father and his 18 year old daughter wanting to be wed (while dad remains wed to his non-blood relation wife) is not far off. The courts have sold us on the notion that marriage is a civil right. Civil rights can not be denied without due process, and we are all granted equal protection under the law. So plural and inter-family marriage are now legal (in California).
5.19.2008 5:45pm
Blaze Miskulin (www):
As someone who actually knows "married" polyamorous families, I find many of these arguments to be quite silly. Let me cite one such family. It consists of 2 husbands, 3 wives, 7 children (last I knew), and about a dozen cats (ibid). While they are, obviously, not married in the legal sense, they have committed themselves to their family and they have set about placing legal bindings to safeguard the same. They are all dedicated to protecting the family as a whole and the individuals who make it up. I haven't talked to them in a while, but when I last did, they had been together for over a decade, and were living quite happily,

What people here are failing to see is that legal marriage is nothing more than a set of contracts. There is nothing in a multiple marriage that can't also be defined and contracted. There's a thousand years of precedent: business. Marriage, like business, is a partnership. Any contract that can be made between 2 people can be made between 3 or more.

The assumption that multiple marriages are "one man married many women" (or the opposite) isn't valid. Polyamorous marriages can be--and are--multiple people joining in a partnership. It may be that certain members of the marriage don't have a sexual relationship, but that's also true of many traditional marriages. It doesn't change the fact that the partners are dedicated to each other and to the family unit as a whole.

As for the practical concerns? Power of attorney rests with the family as a whole, rather than in one person. The family--through whatever means they choose--makes the relevant decisions rather than just one person. Assets are either shared jointly or retained separately (the same as with current marriages) by agreement of the family. The addition of new spouses is decided by the family as a whole (just like adding a business partner). A spouse may choose to divorce the family, or the family may choose to divorce a spouse. Assets are divided according to preset conditions (share of the whole or personal assets plus share of community assets). In the case of death, all assets and custody of children reverts to the family. In the case of divorce, custody is determined on a case-by-case basis (just like now), with certain weighted factors: biological parents get priority unless justifiable cause can be shown otherwise. In the case of one biological parent leaving and the other staying, the parent staying in the stable family gets preference unless justifiable cause can be shown otherwise.

Will there be awkward situations and difficult cases? Of course. But we have those now, so that's not really anything new.

Honestly, this isn't a strange or difficult proposition. It just requires removing the blinders that say "marriage is about sex and babies" and seeing that marriage is about "creating a family".

There's a saying that says "It takes a village to raise a child." Why do we insist that the "village" can only include 2 people?

There's a very strong argument to be made that polyamorous families may be better for children, as they provide for more care and nurturing, more diverse care &teaching, a fuller social dynamic, and more protection and support in the event of tragedy (death of a parent, trauma to the child, etc.)
5.19.2008 6:01pm
Oren:
Same sex attraction, while it obviously exists, is a puzzle, biologically speaking—it isn't obvious why it doesn't get eliminated by evolution.
The "gay brother/uncle theory" (colloquially) is fairly well documented among a wide variety of species. In brief, in crowded environs, it is often beneficial for male family members to forgo breeding in favor of helping to raise their siblings/nephews (which are genetically very similar to them). In essence, the family makes a choice to go for quality of young instead of quantity which becomes a winning strategy in cases where cooperation can produce an offspring with a much larger chance of survival.

And isn't being a carnivore way worse than engaging in bestiality? Bloody gory murder and eating the dead flesh vs. making sweet love? No contest.
Except that my meat generally lives a comfortable life and is slaughtered painlessly whereas having sex with an animal is almost always cruel (although, truth be told, if a guy want to get ****ed by a dog I'm hard pressed to tell him no). I don't buy the "consent" argument -- animals are incapable of even the notion of consent.

What I do buy is that humans, collectively, decided to outlaw cruelty to animals on the grounds that such cruelty is harmful to the fabric of human culture (in that it desensitizes the person to cruelty) and that we can hold ourselves to a humane standard without seriously impacting our quality of life.
5.19.2008 6:07pm
Pender:

Uh, why? How does the existance of a few individuals--in this case a fraction of a fraction of society--justify the radical overhaul of a millenia-old institution?
Some 2-5% of America is gay, and that counts only those who have come out of the closet. Two observations occur to me: (1) This is not a "fraction of a fraction" of society; it could be (and in my opinion probably is) far larger, but is at least one out of fifty people. Any disease that afflicted 2% of the population would receive enormous resources; why should pointless social discomfort receive any less attention, particularly when, unlike as with the disease, the cure is free? (2) It's not a "radical overhaul" any more than was opening marriage to different-race couples. (Incidentally, do you really think there are more people in America that want to engage in black-white interracial marriage than gay people in long-term relationships?) There is no overhaul; your heterosexual marriage is the same after the change as before; there is no reason to think you'll love your wife any less or decide that there is no point to marrying a woman if you're allowed to marry a man. When there is a positive benefit and no real cost (aside from irrational bigotry), we should make the change.
5.19.2008 6:07pm
Pender:

I don't buy the "consent" argument -- animals are incapable of even the notion of consent.

Maybe I'm just being mischevious, but if this is true, isn't every act of inter-animal breeding an act of rape? Should we try to prevent animals from screwing one another with the same fervor that we try to prevent people from screwing animals?
5.19.2008 6:10pm
whit:
despite the anti-science ideologues claims to the contrary it is hardly proven that being gay (or straight) is "immutable".

and fwiw, i support gay marriage.

the body of evidence supports that for most gays (and straights) it is largely hereditary. that is not quite the same thing.

i find it ironic (but typical) that the same people that routinely claimed (when it came to gender etc) for decades that all aspects of human behavior are social/cultural constructs (with no scientific evidence, and plenty to the contrary) are now claiming that in this one aspect of behavior(sexuality) that it is irrefutable that it is 100% genetic and immutable. it is a 100% paradigm shift, all to make a political point.

i could cut the irony with the ladle. the evidence is very strong that for most gays it is largely inherited, with a fair %age environmental. but that makes neither an easy soundbite, nor an easy political point.
5.19.2008 6:24pm
Ken Arromdee:
There's no non-arbitrary argument against that [incest], it doesn't even have the property problems of polygamist marriages

Sure there is. People are expected to have ties with their relatives involving emotions and a certain amount of deference to their wishes. The kind of emotional ties associated with marriage (and sex outside marriage) interfere with this. In other words, we should not let your father guilt-trip you into having sex with him, and if you marry your sister and have a messy breakup, you can't then decide to stay away from her.
5.19.2008 6:29pm
whit:
"(2) It's not a "radical overhaul" any more than was opening marriage to different-race couples"

false. and i support gay marriage btw.

interracial marriage is (historically) common.

heck, it was sometimes required... assimilation of conquered people.

that is not the case for gay marriage,

furthermore, the diferrenes between men and women are much much more distinct than the differences between races. heck, the latter can become completely irrelevant after several generations of interracial marriage and childbirth.

the differences between the races are very slight. men/women are veru different - physiologically, endocrinologucally, etc.

it is absurd and anti-scientific to claim otherwise
5.19.2008 6:31pm
whit:
"In other words, we should not let your father guilt-trip you into having sex with him, and if you marry your sister and have a messy breakup, you can't then decide to stay away from her."

bull. assuming we are referring to adults
5.19.2008 6:33pm
theobromophile (www):
DiverDan: I said biological although not genetic. All that is biologically based is not necesssarily genetic. There is evidence, for example, that men who have many older brothers by the same mother (father irrelevant) are more likely to be gay. Being a child with many older brothers is clearly not a genetic trait, but there are environmental influences (in the womb) which change the developing foetus in a biological manner. Those changes may well be immutable.

That all presumes that there is no gay gene, but I don't think I need to concede that. Your discussion about genes is good in theory, but incomplete. They say in thermo that thermodynamics tells you what happens, not when it is going to happen. Likewise, the theory that a gay gene would weed itself out of the population only tells us that this may well happen someday, not that it necessarily must have happened by now. Off the top off my head, a few likely reasons why a gay gene would remain around:
1. Extreme social pressure kept men mated to women throughout history, until the last few decades, ensuring that a gay gene would be passed along, regardless of whether or not the people actually wanted to live that life;
2. Interaction with other genes and recessiveness. It is possible that, if there is a gay gene, it is recessive or is only triggered in combination with other genes. Therefore, it could continue to be passed along because it would take a long time to be weeded out of the population.[
3. Gay gene or lesbian gene? If women have the gene with no ill effects, they will continue to pass it along.
4. How frequently does the mutation occur naturally? You presume that we are starting off with a fixed number of "gay genes," and that the human race doesn't get any more. Perhaps it is a common, otherwise harmless mutation.
5. Possible beneficial benefits. Light skin increases the risk of skin cancer, yet, it is quite prevalent among the human race. Despite the very deadly effects of it - and skin cancer can kill young people, and quickly - it hasn't gotten weeded out of the population yet. Obviously, that's because it helps people who live in away from the equator produce vitamin D. It is not outside the realm of possibility that a "gay gene" would have some other beneficial effect - for example, gay men have IQs that are about 15 points higher than straight men, IIRC - which would counterbalance the negative effects of the gene.
5.19.2008 6:42pm
theobromophile (www):
I would have said the opposite. There are obvious Darwinian reasons why men would want multiple wives and why, in a society where men differ substantially in their access to resources, some women would prefer being the second wife of a rich man to being the first wife of a poor man. Same sex attraction, while it obviously exists, is a puzzle, biologically speaking—it isn't obvious why it doesn't get eliminated by evolution.

David Friedman,

You're assuming that women are incapable of gathering resources without men - that women compete over men and not the other way around. This might have been true in Victorian England, when women of status were not supposed to work, but was hardly accurate for most of human history. It's not like women sat around playing patty-cake with their babies for hundreds of thousands of years while men obtained all of the food. Gatherers obtained quite a lot of food themselves.

In addition, you're making an assumption about prehistoric societies that sounds totally inaccurate. In a group of, say, two dozen people, who wander around together, build shelters, live in caves, gather food, and hunt animals, would it really matter whether or not someone's mate is "high status" or "has a lot of resources?" Does that mean he has TWO spears, one for each hand? Seriously. Do you really think that prehistoric societies involved men who accumulated wealth and women who sat around doing nothing but trading sex for that wealth?

Is that not the assumption behind all of this evolutionary biology nonsense?
5.19.2008 6:46pm
Deoxy (mail):
This is exactly what defenders of traditional marriage have said for years. It is also what several activists opposed to the concepts of marriage said (mostly privately) for a long time as well, as they honestly and by their admission wanted to destroy marriage (extreme feminists, mostly).

Of course, the same-sex "marriage" promoters have always poo-pooed this, saying it would, of course, never happen (several of the usual disingenious such attempts in the first few posts of this thread - I didn't bother reading past that).

It has already happened over in Europe in at least 2 documented cases (that I saw over a year ago now). In one case, the original couple added another woman by a kind of "room-mate" agreement, very similar to our current "domestic partnership" setup.

In fact, there was a polician who did a particularly bad job of stating this (santorum, maybe?), including even bestiality in his list of things on the slippery slope. Considering the logic of the rulings about sodomy that have been handed down in the last few years (which I don't necessarily disagree with, mind you), I don't see how he was wrong to at least consider that...
5.19.2008 6:50pm
pete (mail) (www):
<blockquote>
I don't buy the "consent" argument -- animals are incapable of even the notion of consent.
</blockquote>

I remember a scene descibed in the book "Demonic Males", which is about male ape behavior and violence, about a rape of a human woman by a male orangatan. I think in that case it is obvious that the animal consented.
5.19.2008 6:51pm
harsh pencil:
One reason why polygamy makes more sense than gay marriage is that perhaps the primary aim of marriage is to maximize the probability that a given child is raised in a household consisting of his biological father, biological mother and full siblings. In such a household, the father is less likely to abuse the children (as opposed to a non-biologically related adult male in the house), more likely to support the children through both money and time, and there are fewer conflicts between the children. For polygamy these still hold. For homosexual relationships, there is a 100% chance that any child will not be the biological child of at least one of the adults in the household, and we used to understand that this was a bad thing.

So am I against adoption? Of course, but only in the sense that everyone is. One would never support a policy that says that if you have a baby at the hospital, then you get a random baby to take home. We all understand that when possible, children are best raised by their biological parents. Adoption is what we use only when the natural alternative (being raised by the biological parents) is either impossible or for extraordinary reasons, very bad.
5.19.2008 6:58pm
Nathan_M (mail):
Whit, as I understand it the claim that sexual orientation is immutable isn't the same as the claim that it is entirely caused by genetic factors. I think it is only saying that our sexual orientations are out of our control.

If sexual orientation was entirely determined by, say, hormones in the womb, or societal factors when a person is growing up, then it is caused by environmental factors but it is still immutable.
5.19.2008 7:02pm
Bama 1L:
The "involuntary" part is pretty important here.

You would think that, but read Bailey. The net result is that you cannot contract away your right not to be enslaved. "Involuntary" in the 13th Amendment is nearly meaningless.
5.19.2008 7:13pm
Oren:
I don't buy the "consent" argument -- animals are incapable of even the notion of consent.
Maybe I'm just being mischevious, but if this is true, isn't every act of inter-animal breeding an act of rape? Should we try to prevent animals from screwing one another with the same fervor that we try to prevent people from screwing animals?
You are. There is no "notion" of consent for animals, either in the positive or the negative. Inter-animal breeding cannot be rape because the animal is incapable of both consent and non-consent.

theobromophile and David, there is solid evidence that homosexuality is quite evolutionarily advantageous in certain circumstances (see my earlier post). Why is that so hard to believe?

Consider, for instance, the blue-jay. Jays are territorial and there is a chronic shortage of nesting sites (relative to the available food supply). As a result, a large proportion of males do not end up fathering any children but instead help their parents by collecting food for their newly hatched siblings. Those families are considerably more successful in the long run even though they produce fewer total offspring because those offspring are much stronger than ones raised by ma and pa alone.
5.19.2008 7:28pm
theobromophile (www):
theobromophile and David, there is solid evidence that homosexuality is quite evolutionarily advantageous in certain circumstances (see my earlier post). Why is that so hard to believe?

Babe, I'm not disagreeing with you on that. In fact, I explictly stated it as one reason why a "gay gene" would persist, despite potentially negative effects upon the desire to reproduce.
5.19.2008 7:35pm
Oren:
Then I misread your post . . . more to come.
5.19.2008 7:36pm
Benjamin Coates (mail):
This is all well and good, but this entire argument is a strawman. The unconstitutionality of refusing to recognize SSM isn't based on some new "right to marry" but on the recognition that once the law creates a privlege, it can't deny it to some people based on their gender or based on their sexual orientation. My understanding is that California Constitutional law is pretty unforgiving to sex-based regulation and discrimination against gays, substantially more so than at the federal level.

But even in California there isn't any special protection based on number--the state can more or less capriciously allow 2 people to do something and not 3. Nor is there any prohibition on discriminating against animals or inanimate objects, for those of you seeing a slippery slope to bestiality-marriages or inheritance rights for lawn furniture.

The incest prohibition is the trickiest, but it's really Lawerence v. Texas that undermines that, not the same sex marriage angle.
5.19.2008 7:41pm
DCP:

It should also be noted that polyamorous realtionships are not confined to isolated Mormon splinter groups, like the Texas group recently making headlines.

For no reason in particular, I did some brief research on this and was surprised at how many people are at least open to the concept (for secular reasons). Even just a cursory search of the craigslist personals reveals a shocking number of couples looking to add a third wheel for long term companionship.

It may be an underground cottage industry with no political power, but you could have said the same about homosexuality 50 years ago.
5.19.2008 7:51pm
Soldats (mail):
Legally and contractually, marriage is about establishing next-of-kin. Changing the gender of a spouse in this case has no effect on the default marriage contract that establishes next-of-kin.

Introducing polygamy or polyandry requires an overhaul of an easily obtainable for a cheap price contract that establishes kinship and adds further complication to it. In a 3+ marriage, who is the next of kin? If multiple people are next of kin, who holds power of attorney or inheritance? As such the contract is not an easy one size fits all model and needs refinement for each - a bit like current pre-nups.

Mind you, I have no objections to voluntary polyamory, in fact I'm in favor of it despite not engaging in it, but it's easy to see the legal and contractual complications arising from such a status.

Marriage is the ONLY way to establish direct next-of-kin status that supersedes one's parents and children. Everyone still remembers the Schiavo debacle right? There is no other contract available that does this. Adoption allows the addition of kinship, but doesn't establish a next-of-kin status that marriage does.

Perhaps the law should allow an immediate next-of-kin contract so that people don't have to rely on marriage for it?

Polygamy/andry may be better compared to adoption than marriage. The law just needs to make it easier to adopt consenting adults to allow for the establishment of adult kinship relationships among multiple partners to make the legal lives of the polyamorous easier.
5.19.2008 9:29pm
Waldo (mail):
All of these arguments are interesting, but none really seems to address a slippery slope. Whether homosexuality or polyamory is based in biology is really irrelevant to a slippery slope. In either case, society will decide what the criteria for recognizable relationships are and draw the line accordingly. Arguments that rely on the varying complexity of SSM and multiple-partner relationships are also pretty much irrelevant. Societies have figured this out in the past, can work it out today if Blaze's post is accurate, and, in any event, difficulty in implementing protected rights shouldn't compromise those rights (anyone remember desegregation).

Instead the slippery slope arises from the allocation of benefits. The argument starts with the fact that polyamorous relationships exist. The model is not the FLDS, but immigrant Islamic families (married in countries where polygamy is legal), families in arrangements described by Blaze, and the increasing number of families that exist without formal marriage. Given that 37% of children are born to unwed mothers, is it surprising that women have children by multiple fathers and men father children with multiple women? These relationships are also likely to become more common. The rate of unwed births is not likely to decline, the US imprisonment rate will continue to reduce the population of "marriagable" men, and Islam will likely continue to attract converts.

Even if these relationships aren't recognized by the government, these families still exist. Shouldn't these families be able to share the benefits of a more stable, structured relationship? Are we going to penalize women who can't find a suitable husband because none are left? If children of gay parents shouldn't be denied benefits, why should children who are half-siblings? Other countries have already begun to realize the need to recognize more diverse families. Britain, for example, is proposing to recognize polygamous families for the purpose of benefits if the marriages were performed in a country that recognizes polygamy. Ontario also, de facto, recognizes Islamic polygamous families. As the argument progresses, children and families should recieve the same benefits, regardless of family structure.

But if we grant the same benefits to families with multiple partners, why should we stigmatize these families by denying the recognition of marriage? This is the end of the slippery slope, and that is the reasoning of the California court. If we already provide the preponderance of benefits to non-traditional couples, there is no justification to denying the recognition of marriage. As EV has noted, just because proponents of change argue that no slippery slope exists, doesn't make it so.
5.19.2008 10:04pm
Randy R. (mail):
doc Rampage: "The only reason gay marriage is even an issue is because the institution of marriage has been damaged so much in recent decades that it no longer effectively serves its original purposes."

Pure baloney. People get married because they fall in love and wish to spend the rest of their lives with another person, and they are still doing so in good and regular numbers.

"" With that reality comes the fact that a lot of people today think that marriage is nothing more than an economic convenience and/or an expression of emotion --and only under that degraded view of marriage is gay marriage even coherent. "

Hardly. Gay people fall in love just as heteros do, and both groups want to get married for the same reason -- because it's what two people do when they pledge their lives together.

It always amazes me how it is *heteros* that are so keen on devaluing marriage. We don't think marriage is a mere economic convenience (though it certainly includes that), but why are heteros so quick to assume that it is?
5.19.2008 10:26pm
The Unbeliever:
Some 2-5% of America is gay, and that counts only those who have come out of the closet. Two observations occur to me: (1) This is not a "fraction of a fraction" of society
Goalpost moving. You said you need only show "at least some" gay people were immutably gay to acheive justification; I was assuming 2% of society was gay, a fraction of 1/50, so the set of some of those gay people would be a fraction of a fraction. And my question stands: if we say 25% of gay persons are immutably so (percentage chosen arbitrarily), why should that necessarily be automatic justification for overhauling the institution of marriage?
It's not a "radical overhaul" any more than was opening marriage to different-race couples.
whit already answered you above, and I'll further note that expanding the Western definition of marriage to included polygamy is less radical than opening it to SSM, simply because there is more historical precedent for multiple wives than there is for officially recognized, society-sanctioned homosexual marriage. The same probably goes for cousin marriage, child marriages, etc; and this all points up the original uncomfortable question Todd Zywicki referred to.
5.19.2008 10:31pm
Randy R. (mail):
On the issue of immutability:

What I find amusing is that the religious right is quick to say that gays are only less than 1% of the population, so why should we change our laws to accomodate so few people? (Even though that would be 3 million of us). But on the other hand, gays are SO STRONG we control the liberal media and government at most levels, and just one SSM will completely and utterly destroy marriage now and forever.

Whew! If only we were that strong....

But back to immutability, almost every gay man is certain that they have been gay ever since they could remember, and could never be hetero even if they tried. Exodus is an organization that claims to be able to change gays into heteros. It was founded by two men who later fell in love and disowned the organization. But even Exodus says that most gays cannot become hetero, and that the most you can probably expect is to be celibate. They refuse to release their 'success rate,' but I have heard that they claim success if you refrain from having gay sex for three months.

to which my best friend, who is hetero, replies that if not having sex for three months means you have changed your sexual orientation, then most married men are gay.
5.19.2008 10:32pm
NRWO:
What's all this nonsense about the genetic "immutability" of homosexuality?

Twin studies show that heriditability coefficients for homosexuality are rarely higher than .50, and usually well below that, and, moreover, are often moderated by social conditions. See, e.g., Bearman &Bruckner, 2001:


[From the Abstract] Our results provide substantial support for the role of social influences, reject the hormone transfer model, reject a speculative evolutionary theory, and are consistent with a general model that allows for genetic expression of same-sex attraction under specific, highly circumscribed, social conditions.


Side note: I'm amused that people who argue "homosexuality is hereditary", often, in my experience, refuse to believe that IQ (viz., 'g') is genetically influenced. Behavioral genetic research by Bouchard, Plomin, and DeFries indicates that the heriditability of IQ is usually over .60, and as high as .80.
5.19.2008 10:38pm
The Unbeliever:
Also, I don't want to tell you how to argue, but:
Any disease that afflicted 2% of the population would receive enormous resources
...you may want to be careful with this analogy. If a disease hit 2% of the population, we would be expending resources to eliminate that disease, not to make the sufferers comfortable; we already have remedies that make people comfortable. I'm pretty sure you don't support the analogous case when referring to SSM.
5.19.2008 11:01pm
Waldo (mail):
Off topic post-
Randy:

It always amazes me how it is *heteros* that are so keen on devaluing marriage. We don't think marriage is a mere economic convenience (though it certainly includes that), but why are heteros so quick to assume that it is?

I think it's because "hetero" marriage is inherently unequal. The bottom line is that women have children and men don't. Marriage has evolved to manage that inequality. And to be honest, hetero marriage shouldn't be equal. For example, when it comes to abortion, women are pregnant and men aren't. So women should make that decision. But inequality is also what leads to the economics argument.

While marriage may be an economic convenience to same-sex couples, it's a large potential liability to "heteros". Unlike adoptions, where couples are asked repeatedly whether they really want to raise a child, the hetero norm is "Honey, I'm pregnant." There's rather little choice involved, unless you're willing to concede that a rational person will abstain from sex.
5.19.2008 11:15pm
LarryA (mail) (www):
In a group of, say, two dozen people, who wander around together, build shelters, live in caves, gather food, and hunt animals, would it really matter whether or not someone's mate is "high status" or "has a lot of resources?"
Absolutely.
Does that mean he has TWO spears, one for each hand?
It would mean he's stronger than the other males, a better tracker, more agile, throws his spear further, harder, and more accurately and is therefore able to bring home enough "bacon" for more than one mate.
Unlike adoptions, where couples are asked repeatedly whether they really want to raise a child, the hetero norm is "Honey, I'm pregnant." There's rather little choice involved, unless you're willing to concede that a rational person will abstain from sex.
Uh, have you heard of birth control? Both my kids were planned, and abstention was not part of the program.
5.20.2008 12:09am
Jon Rowe (mail) (www):
NRWO,

The experts who share your premises on the IQ and heritability invariably think that homosexuality IS immutable. See the following.
5.20.2008 12:41am
Jon Rowe (mail) (www):

The common argument against the legalization of bestiality in light of Lawrence v. Texas is that the animal can't "consent".

I've never understood that argument. A cow doesn't consent to be eaten, it doesn't consent to be molested so that we may drink its milk, and it doesn't consent to its hide being used to make baseball gloves. So why can't you use it for sexual purposes?


Do keep in mind that Texas legalized bestiality before Lawrence v. Texas.
5.20.2008 12:45am
VMRH (mail):
It is difficult to understand why the issue of power and polygamy has not been raised in this discussion. Polyandry is rare in the human world; polygyny is not--and the reason has to do with relative power between the genders. The research results of my co-authors and I show definitively that violence against women is significantly higher when polygyny is prevalent. Polygyny is not about the emancipation of women from male control; it is a manifestation of that control, as evidenced by the FLDS and Islamic and African cases. Furthermore, polygyny creates a permanent underclass of men without mates; an explosive consequence not only in human, but also in primate societies. One-one has many things going for it which are going unmentioned in these posts, but the lessening of that permanent set of mateless men deserves discussion. Polygyny is downright dangerous for any society seeking stability.
5.20.2008 12:53am
Conservative (mail):
Reality is simple, we are dual beings with a spirit and a body. Our body has natural appetites and weaknesses. Our spirit (conscienceness) is innately aware of right and wrong. Right is the mastery of the body appetites in a productive, building and useful way. Wrong is the endulgence of the body over the spirit. Right brings happiness, wrong brings enslavement of the consciencenes to the appetite of the body. Individuals who choose wrong not only enslave themselves, but they are less productive and become a tax on society and the general social good. The sexual devience being discussed here is moronic. It is splitting hairs on which form of devience would be more costly to society. Eveidence we are already sliding down the slope.
5.20.2008 12:56am
PostNoBill:
'For example, when it comes to abortion, women are pregnant and men aren't. So women should make that decision."

Why?
5.20.2008 12:59am
Doc Rampage (mail) (www):
Randy R.:
doc Rampage: "The only reason gay marriage is even an issue is because the institution of marriage has been damaged so much in recent decades that it no longer effectively serves its original purposes."

Pure baloney. People get married because they fall in love and wish to spend the rest of their lives with another person, and they are still doing so in good and regular numbers.
It isn't so much the number of marriages that shows the health of marriages but the number of divorces and the amount of adultery. When half of all marriages end in divorce, marriage is not serving the purposes that I listed in my original comment.
" With that reality comes the fact that a lot of people today think that marriage is nothing more than an economic convenience and/or an expression of emotion --and only under that degraded view of marriage is gay marriage even coherent. "

Hardly. Gay people fall in love just as heteros do, and both groups want to get married for the same reason -- because it's what two people do when they pledge their lives together.
You seem to have missed my point, Randy. Yes, given the idea that marriage is just what two people do when they are in love, then gay marriage is a coherent idea (though still problematic due to the doubtful premise that the emotional content of gay relationships is the same as that of normal relationships). But this is a modern and highly pointless view of marriage. Under the traditional concept and purpose of marriage, the very idea of gay marriage makes no sense.

This modern emphasis on the temporary emotional high that a new couple experiences is one of the reasons that so many marriages end in divorce --people want to experience the romantic emotional high again and to do that, they need a new partner. One of the purposes of marriage is to socially control the urge to find a new partner as soon as the emotional high with the current partner dissipates. Of course modern marriage with its easy divorce and mostly consequence-free adultery no longer serves that purpose either.

It always amazes me how it is *heteros* that are so keen on devaluing marriage. We don't think marriage is a mere economic convenience (though it certainly includes that), but why are heteros so quick to assume that it is?
I said that it has become a mere economic convenience, not that this is the purpose of marriage.

But if I seem to devalue marriage then it is because I little value what marriage has become. Yes, it makes women --and perhaps some gay men-- weep in happiness. So, at times, do soap operas. Why should I then value marriage more highly than I value soap operas? The value of marriage is in what it accomplishes for society, how it restrains the stronger members of society and protects the weaker members of society. If it no longer serves these functions, then by all means let it devolve into a pointless emotional exercise enjoyed by women and gays and tolerated by straight men as a necessary postscript to the bachelor party.

But for heaven's sake, get the state out of it.
5.20.2008 1:12am
S.O.B.:
I think it's pretty inevitable that plural marriage or polygamy or polyamory or however it should be called, will be raised increasingly and ultimately accepted in some form. It's partly because of the implications of allowing same-sex marriage along with the traditional woman-man marriage. But also consider that multiple partner arrangements exist in various forms and in various cultures, whether we approve of them or not. There is probably a benefit in bringing them out of the shadows to where they can be better regulated (the weirdness of some polygamous cults in the US is not so much a function of polygamy as of cultish arrangements on the fringes of society).

Relationships have changed a lot too as a consequence of various social changes. We have serial monogamy and wink-wink about some affairs, but no way for respectful polygamy? (Not that I advocate it, but the question is there.)

We'll probably end up with contract marriages and so on too. Such rewriting of "marriage" may be good or bad (pretty much good for lawyers all around) but the process is already well underway and attempts to put arbitrary limits on it will probably be futile.
5.20.2008 1:39am
Randy R. (mail):
Unbeliever: "And my question stands: if we say 25% of gay persons are immutably so (percentage chosen arbitrarily), why should that necessarily be automatic justification for overhauling the institution of marriage?"

Well, Massachusetts, Canada, Spain, Belgium and the Netherlands now allow SSM. Please give specifics on how the instittuion of marriage has been 'overhauled."

last I heard, it's exactly the same -- same benefits, same problems, same everything,
5.20.2008 2:38am
Randy R. (mail):
Doc Rampage: "t isn't so much the number of marriages that shows the health of marriages but the number of divorces and the amount of adultery. When half of all marriages end in divorce, marriage is not serving the purposes that I listed in my original comment."

For most of human history, love, attraction or affection was the last reason to get married. You generally married because (if you were high born) it was arranged, or you married because you needed another person to help create a viable economic unit, which included having kids. Divorce was also pretty much impossible to get.

So were married people happy? Depends. They didn' hope to find love in a marriage, so the bar was pretty low. But nonetheless many people were still miserable, but divorce was no option. To conclude that a low divorce rate in the past means people were happy, or that they 'honored their vows' is a fallacy. Most people looked elsewhere for romance, and that meant having affairs.

It's only been since the 18th century that people started to consider that they could marry for love, but even then it was rare. It wasn't until the first part of the 20th century that people started to take seriously this notion of marrying primarily for love. So if you marry for love, then it makes logical sense to dismarry, or divorce, when you are no longer in love. And we are now seeing the full culmination of that now with high divorce rates.

I don't think there is an easy solution. I don't think most people would agree to go back to arranged marriages, or marriages where the families negotiated the dowry.

But as long as we have a belief that marriage is about love, then there is no reason to exclude gays.
5.20.2008 2:47am
Randy R. (mail):
Conservative: :Our spirit (conscienceness) is innately aware of right and wrong"

True. So you should know that bigotry towards gays is wrong.

" The sexual devience being discussed here is moronic." Well, not as moronic as claiming that gays are sexual deviants just because you don't them.
5.20.2008 2:51am
thelibertarian.hugh (mail):
You know, if it weren't for the real problems we see in Muslim and Mormon polygamist marriages, I would support polygamy. Why? Because I respect Robert Heinlein's views on polygamy. What is unique about his views is that he talks about group marriages involving multiple male and female partners, with all partners involved in the decision as to who is allowed into the marriage. He also seems to favor one wife two husband marriages. These seem to make sense!
5.20.2008 2:58am
Doc Rampage (mail) (www):
Randy R., your ideas of arranged marriage are romantic fantasies. People are not so much different today than they were 200 years ago. Real parents, most of them, weren't the evil stepparents of romantic fiction who demanded that their lovely daughters marry the rich man's effete son rather than the young, bronze-chested blacksmith.

I know several people in arranged marriages and I believe that they would be offended at your cavalier assumption that they don't love each other.
5.20.2008 5:04am
Conservative (mail):
Randy R,

Who said I don't like gay people. Calling gay acts wrong, does not equal hate just because it hurts your feelings. If hurting feelings was always wrong then how would a child be taught the hundreds of things they need to know to be happy, "Don't touch the hot stove." Teaching about right is the very act of kindness, as you try to help all find lasting happiness.
5.20.2008 5:09am
Slocum (mail):
A better question is why not get rid of the arbitrary sexual feature of the relationship? If two same-sex friends want to get 'married' for fringe benefits or tax advantages -- does the government really have any place caring if they are not actually gay or sexually involved?

But, of course, the government (in the guise of the INS) cares very much about this sort of thing--demanding couples prove that their marriage is one of love (and sex) not convenience.
5.20.2008 8:31am
nitpicker (mail):
A cow doesn't consent to be eaten, it doesn't consent to be molested so that we may drink its milk, and it doesn't consent to its hide being used to make baseball gloves. So why can't you use it for sexual purposes?
I had a friend who used to say his expensive leather couch was the perfect aphrodisiac, so I guess you can use cows for sexual purposes, just not while they're alive.

As for the issue of "consent," however, I am not discussing bestiality, really, but the ability to agree to a marriage contract. And that's how the government should see marriages, as a contract only. Leave issues of what's sacred and profane to churches and ethicists.
5.20.2008 10:52am
Tracy W (mail):
It's only been since the 18th century that people started to consider that they could marry for love, but even then it was rare. It wasn't until the first part of the 20th century that people started to take seriously this notion of marrying primarily for love.

Actually no. As far as anyone can tell, in Western Europe the idea of marrying for love was around as long as there were records. Royalty may not have married for love until the 19th century, but the peasant in the field was quite likely to do so. See "The Subversive Family: An Alternate History of Love and Marriage.
5.20.2008 11:28am
Connecticut Lawyer (mail):
William Saletan in Slate conceded the other day that Sen. Santorum was correct in arguing that gay marriage led down a slippery slope to the legal acceptance of polygamy. http://www.slate.com/id/2191504/.

"We've heard this slippery-slope argument before. Five years ago, Republican Sen. Rick Santorum of Pennsylvania put it this way: 'If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest.'

"I hate to say it, but things are playing out pretty much as Santorum predicted."
5.20.2008 11:52am
Deoxy (mail):
Yes, they are - and Sontorum was pilloried for it. Of course, he was an EEEeeevvilll right-wing conservative type, so he deserved it...
5.20.2008 1:10pm
Randy R. (mail):
Doc: "I know several people in arranged marriages and I believe that they would be offended at your cavalier assumption that they don't love each other."

I didn't mean to imply that arranged marriages are less loving, or that there is no love. However, the marriages were not arranged on the basis of who is actually in love, but rather on other basis (what's best for the family, likely compatability, etc.) What I should have made clear is that today few Americans would want to revert to arranged marriage.

If adultery is the barometer of the health of marriage, then marriage has always been in trouble since Day 1. As I said, in the history of marriage, most were NOT made for love, but for other reasons and so you took a mistress or lover on the side for your real affections. This has always been true for the aristocracy as too much was at stake to allow young people to marry for anything but the benefit of the families.

True, the idea of romantic love has been around since the beginning of recorded history. But the reality is that few people married for romantic love. If you were near the bottom of the social hierarchy, for instance, with few or no assets to bring to the marriage, you just married whoever you could.
5.20.2008 1:13pm
Randy R. (mail):
Conservative: "Calling gay acts wrong, does not equal hate just because it hurts your feelings. If hurting feelings was always wrong then how would a child be taught the hundreds of things they need to know to be happy"

Well, I'm gay and I'm perfectly happy. Why are my 'gay acts' wrong? Perhaps if you engaged in them, they would be, but for me, heterosexual acts would certainly be wrong, in addition to very very icky.

And every one of my gay friends, and I have a lot, are quite happy and comfortable with being gay. So your problem with this is what?
5.20.2008 1:15pm
Randy R. (mail):
Conn. Lawyer: ""I hate to say it, but things are playing out pretty much as Santorum predicted."

Really? Polygamy, bigamy and incest are now legal in the US?

Any cites, or is this again overheated hyperbole?
5.20.2008 1:17pm
Randy R. (mail):
BTW, if adultery is any indication of the health of the institution of marriage, then we must conclude that marriage in Britain in the 19th century was close to dead. The number of prostitutes exploaded with the growth of the city. Visitors would complain about how they were looking out the windows of every building, often half naked. They walked the streets everywhere, and although good estimates are hard to come by, there was no doubt that there were thousands of them. Newspapers would write articles on where to find the best prostitutes, for instance.

So in the era that we look upon as so prim and proper and the ideal of marriage was in fact the opposite, at least for a large number of people. So I don't adultery is going to be a useful gauge.

I don't think that outlawing divorce or adultery is going to do the trick either. However, one thing that people often bring up about SSM is that we won't know what real effects it will have in on the future of the institution.

If that is true, then SSM might have a beneficial effect on marriage. Why not? Everyone else assume it will have a negative effect without any supporting evidence, but they eliminate any possibility that it would have a positive effect.

And here is one. Right now, there are plenty of gay couples living together as though they are married, without the benefits of being actually married. Moreoever, many gay couples now have adopted children, and so they are family by every definition except the legal one.

Young people look at this and say, if gay couples can live together and raise children without benefit of marriage, why can't I? So by denying us the right to marriage, you are actually undermining it. Better to allow us to join the institution and show people the importance of marriage, wouldn't you agree?
5.20.2008 1:44pm
Leland (mail):
Randy,

Marriage isn't determined by what is or is not icky. As for Santorum's prediction not playing out, don't you think a week isn't adequate time to determine he is wrong? Who is providing the over-heated hyperbole? It took sometime for SSM to be allowed, and so it will take time for legalized poligamy


And here is one. Right now, there are plenty of gay couples living together as though they are married, without the benefits of being actually married. Moreoever, many gay couples now have adopted children, and so they are family by every definition except the legal one.


You could easily say the same about polygamist. Many are living together as though they are married without the legal benefit of a recognized marriage. They consider themself a family. That's the next step in Santorum's prediction of a slippery slope. Again, you can say that's less common than SSM, but that's because you live in a Western culture and not an Islamic culture.

As for incest, there are several cases of 1st cousin's marrying, raising children, and living happily. There are some genetic problems, but they are not absolute. Same can be said for brother and sister marriages, without entering the discussion of a minor being manipulated by a predatory parent.

I agree though that adultery is a bad barometer.
5.20.2008 5:25pm
Doc Rampage (mail) (www):
Randy, I have said repeatedly that adultery and divorce are useful barometers to the health of marriage as a social institution with a particular function. Maybe it will help you to grasp my point if I write it more formally:

1. The social function of a marriage is to form a life-long faithful union.

2. A marriage that ends in divorce is not a life-long union.

3. A marriage in which one or both partners commits adultery is not a faithful union.

therefore (eliding a few obvious steps)

4. A marriage which ends in divorce or in which one or both partners commits adultery is not serving its social function.

5. The health of marriage in a society is the rate at which marriage serves its social function.

therefore (eliding steps)
6. The health of marriage in a society can be measured by rates of adultery and divorce.

The only disputable part of this argument is premise 1, which apparently you dispute. But instead of arguing 1, you are arguing 6 by way of evidence that is only relevant if 1 is wrong. And since 6 is a conclusion from 1, if 1 is wrong then no one asserts 6, making your argument irrelevant. So we are left with

7. If 1 is false then your argument is irrelevant

8. If 1 is true then your argument is irrelevant

therefore

9. your argument is irrelevant.

All of which is not to say that I don't think your assessments of historical sexual behavior are over-broad and unsupportable.
5.20.2008 7:28pm
Richard Aubrey (mail):
Are there any societies with significant polygamous unions without social pressure or significantly reduced options for women?
IOW, given a real choice, would we see much polygamy in the US?
Excluding, for the moment, the fabulously rich man, who, after all, doesn't actually need to marry his consorts.

Forgetting, for the moment, the Constitution (which is always forgotten when new ideas of social wonderfulness are to be indulged by the state), is it conceivable that the advent of legal polygamy would be accompanied by a move to restrict women's rights in order to force them to consider polygamy as one of only a few options?
5.21.2008 9:13am