My co-blogger Todd Zywicki asks a very good question:
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.
The possible slippery slope from recognizing same-sex marriage to recognizing plural marriages has been one of the most common objections to same-sex marriage. (It is one of the objections raised in Justice Baxter's dissent in In re Marriage Cases, the California marriage decision.) It is among the most discussed sub-topics in the larger debate about gay marriage. While some gay-marriage advocates support recognition of plural unions, most others oppose it or are ambivalent about it.
Legislatures, Todd points out, do not have to articulate reasons why they refuse to move further than they have chosen to do so. So a legislature could authorize same-sex marriage, as the California legislature has twice done, without having to justify why it is not opening up the institution to polyamorous relationships. A court following the convention of rendering its results through judicial decision is expected to offer some potential limiting principle for why it won't go further.
Here is all the California Supreme Court had to say about why its decision would not necessarily lead it to declare a constitutional right to polygamy:
We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. (See, e.g., Reynolds v. United States (1878) 98 U.S. 145, 165-166; Davis v. Beason (1890) 133 U.S. 333, 341; People v. Scott (2007) 157 Cal.App.4th 189, 192-194; State v. Freeman (Ohio Ct.App. 2003) 801 N.E.2d 906, 909; Smith v. State (Tenn.Crim.App. 1999) 6 S.W.3d 512, 518-520.) Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. (Accord, e.g., Potter v. Murray City (C.D. Utah 1984) 585 F.Supp. 1126, 1137-1140, affd. (10th Cir. 1985) 760 F.2d 1065, 1068-1071, cert. den. (1985) 474 U.S. 849; People v. Scott, supra, 157 Cal.App.4th 189, 193-194.) Thus, our conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives.
In re Marriage Cases, slip op. at n. 52, 79-80.
This is unsatisfying as an answer to Todd's question. There isn't much meat in this footnote, except the citation to some hoary opinions from the Nineteenth Century. There is nothing like an articulated and non-arbitrary principle distinguishing same-sex marriage from plural marriage. In fact, resting on unadorned and unspecified societal fears that plural marriages have a "potentially detrimental effect on a sound family environment" sounds a lot like the kind of objections long made to recognizing same-sex unions — objections the court refuted at length in its opinion.
I am not faulting the California Supreme Court for failing to fully theorize now a distinction it might be required to make years hence. But I am pointing out that if we are looking for the kind of non-arbitrary principle that will prevent a logical slide to polygamy we will not likely find it so far in marriage decisions.
So is there an answer to Todd? I attempted an answer in a post here in 2005. I have also responded to the polygamy fears in shorter form in columns here and here. Jon Rauch has written about the unique problems created by polygamy here. Philosophy professor John Corvino has written about the distinction here. Many others have written on the topic.
I won't recapitulate these arguments or attempt anything like a comprehensive answer. Instead, here's a Cliff Note's version of some considerations that make proposals for polygamy different in principle from proposals for same-sex marriage:
*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.
*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.
*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).
*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts them.
*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.
Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.
Related Posts (on one page):
- On to polygamy?
- Same-Sex Marriage and Polygamy:
The simple answer is that if the state condones a marriage in which one spouse sticks his penis in the other spouse's anus, then there is little to stop a state from condone a marriage in which one man sticks his penis in two vaginas.
The Cal SCt's reasoning is, for the most part, based on the notion that gays and lesbos are now part of America's culture. If that's the case, then ain't no one going to tell me that polygamy isn't.
Also, does not seem as forceful as The former, if anything, seems like legal gymnastics.
True, but that will not necessarily be the poster-child legal case, so the relevance is highly dimished.
Exactly - the methods used to get same-sex "marriage" would all work exactly as well for plural marriage. The arguments are THE SAME. THe courts have accepted the arguments... how does that NOT lead to the courts to demand plural marriage? Only by them being A) extremely inconsistent, and B) making up new reasoning out of whole cloth (a job for the legislature, not the judiciary).
We already have significant laws designed for problems like this in partnerships and other legal entitities - the argument would be that adaptation would be easy.
I wouldn't say that just yet. It lead fairly directly (judging by how often it is cited) to SSM, which (according to a significant number of advocates both for and against) will lead to polygamy. This does not make miscogenation bans moral or ethical, but it does lend credence to the theory of judicial slippery slope in this area.
One thing you are missing is that it is ALREADY happening in Europe (where SSM has been around only a bit longer than here). To say that it won't happen, when it already HAS in some cases, is rather pointless.
At the time of Lovings, I doubt that anyone raised the object that overturning miscegenation bans would lead to same-sex marriage, just because the idea would have seems ridiculous and absurd. And yet, here we are: the moral argument that made forbidding blacks from marrying whites unacceptable is doing the same (rightly in my opinion) for the idea of forbidding men from marrying other men.
With SSM, many basic rules of marriage had to be changed. The old civil-death model of marriage would have made SSM very difficult. We did away with that model -- because it was considered unjust; the enabling of SSM is just a side-benefit.
The nature of marriage is still changing. Issues like pre-nups have made the contract more flexible. There's still a ways to go before a polygamous marriage becomes as legally predicable as a same-sex one is, even today.
But all this is irrelevant. If the courts find that polygamy is a right under equal-protection (or for some other reason), the policy or practical problems will simply have to be overcome.
Polygamous marriage would change a whole bunch of things, and change them in a whole bunch of ways. The question "How would same-sex marriage differ from opposite-sex marriage?" has a simple, one-sentence answer. The question "How would polygamous marriage differ from two-person marriage?" can't be answered concisely --- indeed, it can't be answered at all, in the absence of a specific policy proposal.
Polygamous marriage may happen eventually, or it may not. But there's no slippery slope between SSM and polygamy. There's a mountain of questions between the one and the other.
Same-sex marriage will not encourage straight men to marry other men, because straight men do not want to have homosexual sex. Same-sex marriage will affect only the incentives of gay people. And it will affect those incentives in a positive way: It's better, from a social perspective, for people to be married than not.
How do we know either of these is true? And why does it matter?
Assuming that the right to marry is not fundamental, marital status does not appear to be a suspect class, thought this is way outside my expertise.
Relevance? Considering that these decisions are being imposed from on high as a result of legal silliness, not practicality, this line of reasoning is absolutely meaningless and irrelevant.
The only question is whether the legal logic produces a slipper slope, and that has been shown repeatedly. Silly bits about practicality do not deter, bother, or often even occur to our black-robed tyrants.
That might be somewhat convincing if polygamy had died out on its own because people just stopped doing it. But . . . um . . . That didn't happen. In fact, in most places where it's been abolished, it was formally abolished by government processes -- court opinions, statutory prohibitions, constitutional amendments etc. -- using language criticising "primitive" or "immoral" practices that most people would feel a little queasy about seeing in modern legal discourse.
Quite the reverse of what you're saying, I think the thousands of years during which societies have successfully maintained themselves with polygamy would tend, objectively, to militate in favour of recognising polygamy as a viable alternative form of social organization. It certainly has more credibility than gay marriage as a legitimate cultural tradition, and there are millions of people from countries where polygamy has not yet been stamped out who -- should they immigrate to the US -- would be faced with the awkwardness of deciding who is married to whom for the purposes of US law. If we are speaking about fairness to all people, including people from different cultural traditions, I think polygamists have a much stronger claim to equitable treatment than gays and lesbians.
On the other hand, of course, precisely because -- unlike gay marriage -- polygamy has a long history of viability and success, it also poses a much more real challenge to heterosexual monogamy than gay marriage ever could. And as a practical (if not moral) matter, that probably does mean that the burden on polygamy advocates will be heavier.
That doesn't make it right or fair, though.
"A sperm donor simply cannot be equated with a surrogate mother. The State has more than a sufficient basis to distinguish the two situations." Matter of Baby M 537 A.2d 1227.
I guess I can't argue with that.
Except that, as any biologist can tell you, sexual size differential in mammals directly corresponds to sexual behaviour. Men are bigger and stronger than women because the biological imperitive of men is to compete with each other for as many women as possible. Indeed, the innate biological drive of men to be with multiple women is several orders of magnitude more well established and proven than any such claims about homosexuality.
Your point is irrelevant, anyway, of course (see my previous post), as it deals with "whys" and other practical concerns, with which judges need not concern themselves.
It matters to me because of the equal protection point mentioned above. I've always found the argument that a gay person is "free" to marry someone of the opposite sex just like everyone else to be absurd and insulting; the argument that everyone is free to marry one person of their choosing is much more compelling.
Actually, many conservatives do back a constitutional amendment defining marriage as a union between two individuals -- it's just that the proposed amendment specifies "a man and a woman."
Wow, that's convincing. Tell me more about your logic-less "feelings", eh?
Once you deprive a legislature of the power to use history, culture, or an especial admiration for the establishment of conventional "nuclear families" (which have been tried and...I guess it works, right?), then there remains no principled reason to refuse the opportunity to any two consenting adults, other than possibly incestuous unions.
A person can have multiple jobs, or multiple kids; there is no principled reason to refuse him or her a second spouse.
This is not saying that it is (or isn't) sound public policy. But we are now talking about strictly scrutinized, judically enumerated rights--so, vague public policy arguments are virtually worthless.
Can you elaborate on that? Which ones? I can only come up with a few that have independently tried and rejected polygamy. I have a suspicion that most human societies have polygyny for elites and monogamy for the rank and file, with societies that have completely rejected polygamy being in the minority.
And, de facto, we aren't IN that minority, judging by the accepted and known behaviour of many of our elites.
Excellent--I choose Christina Ricci.
"our nation's CULTURE???"
how should that be relevant to an issue of constitutional law?
iow, it sounds like legal gymnastics to me too.
leaving aside the issue of whether homosexuality is "biologically innate" (based on my interpretation of the evidence, it is PART genetic, and part environmental to lesser and greater extents for different individuals. not surprising for human behaviors which are rarely 100% innate or 100% environmentla)...
it's at least as arguable that, moreso for men, the desire to have multiple partner (serially or contemporaneously) IS innate.
several studies support this - for example, the lower refractory period when a male is presented with a different partner choice after having sex.
marriage, is a civilizing evolved societal structure, that encourages (especially men) to FOREGO/GO AGAINST their innate desire to schtup everything with a pulse.
so, i find it hilarious that you so blithely accept that homosexuality is "innate" but throw away the idea that attraction to multiple partners isn't.
not to mention that just because something is biologically coded for does not mean society has to encourage it.
and fwiw, im for gay marriage.
As for the purported negative effects on children, it is clear that the courts don't give a damn and would only use that argument as a fig leaf.
...Just what's going to stop it, Professor Carpenter ? Religion ? Tradition ? Stare Decisis ? Judicial slight of hand trumps all that. It would seem to me your " why would it " has been overtaken by but-it-did, and the court can't revirginize itself to the why-would-it position.
..The curtain has been pulled back and the Law in California is whatever the Wizard wants it to be. Neither more nor less. Our Court is to be master-that's all.
which is of course rubbish.
the only distinction between gay marriage and polygamy and marrying one's (first) cousin is that the first one in the group has become socially accepted enough for the courts to now see it revealed in the constitution.
that's because the current culture is ok enough with the former to allow the invention.
historically (culturally) speaking, there is FAR FAR FAR FAR FAR more support for polygamy (historically quite common) than gay marriage. and of course it is much closer in essence to conventional marriage since it still involves opposite sex coupling.
again, i'm for gay marriage, but let's not pretend what's going on here.
The Court is a tool. They're merely an unwitting agent of a greater Evil. The Wizard isn't the Court, they're just its public face to humanity. Homosexual activists and pologamist activist are also pawns, because they think they're going good when in reality they're doing evil.
The ultimate destruction of the family as a policy will be done in simple steps made to appear reasonable to the eggheads of society. The ultimate police only makes sense if you take the longer view. You can't exactly see the bigger picture if your nose is two inches from the canvas. Take the longer view: first no-fault divorce, contraception, abortion, etc. Then homosexual "marriage", then pologomy, then getting rid of age of consent, etc., etc.
Every basic treatise of Western Civilization has treated the family as the fundamental unit of society, in a Trinity of sorts: husband, wife, child. Destroy the family and you destroy society.
People really need to familiarize themselves with Screwtape.
My feelings about polygamy are colored by the journals of my great-great grandfather and his father who were polygamists.
In society in general, there is a lot of evidence that all men are not good providers or fathers. They are pretty good at breeding, but not so much at taking care of their families. I would not feel bad at all if women found being a 3rd or 4th wife of a wealthy man being a better alternative to being in a relationship with a deadbeat.
20 years ago I had a very good friend from Chicago who was raised in the equivalent of a polygamous family. Her father was a successful business man who had a wife and two kids who lived in the suburbs. They had an expensive house and went to good schools. My friends mother was the mistress. She had a decent apartment in the city and had 4 kids with this man. It was a long term stable Wife and Mistress relationship. Both women knew each other and all six kids new each other. Whether we admit it or not, most of us can think about people in similar situations. Why is the second woman deprived of the opportunity to be the second wife of a man she obviously loved.
20th century polygamists sects have not done anything to improve the image of polygamy in the US. These are people who are breaking the law, and hide themselves from the law and society in general. People who live outside of the law and society's conventions in general do not feel obligated to follow all of our conventions either. Specifically regarding the proper treatment of women and children.
I don't believe Polygamy, by itself, leads to mistreatment of women and children. Unless you believe there is something unique about polygamy that leads women to mistreat their children. I would argue that in the traditional 1 man/multiple women form, that the man would be more likely to treat his wives and children better in an open/legal polygamous marriage. Frankly, he is outnumbered and the law would be on the side of the women.
Why are you all so pro-polygamy? I thought you were all in favor of a conservative definition of marriage?
Otherwise, I hardly see a groundswell of support for polygamy within the US. But if it really gets you upset, the answer is quite simple -- get a constitutional amendment. If you think banning SSM is easy, then banning polygamy should be even easier.
This way, we can have our cake and eat it too -- we can have SSM, but ban polygamy. But of course, that isn't the real issue. The real issue is that you want to an SSM regardless of the polygamy issue, right?
2) polygamy is more in accord wwith a 'conservative definition of marriage' than gay marriage is, as ANY study of the history of marriage makes clear.
3) i am FOR gay marriage. it does not follow that i neccessarily recognize the invented constitutional right to same.
great, but the issue in regards to this case as i see it is does the constitution allow it, or more specifically prevent us from passing laws against polygamy.
similarly, whether or not gay marriage is a good idea, or a right that should be extended to gays is an entirely different issue to whether the constitution protects gay marriage.
Actually, it's interesting you should mention that, because the cases cited in Footnote 52 of the opinion refer to people who noted that it was their religious duty to marry multiple women.
The opinion later mentions that religion has previously been considered a suspect category. Unlike the SSM decision, you wouldn't even need to extend "suspect" status to a new category. So the innateness doesn't matter. The opinion at hand specifically dismisses that aspect of it, in fact.
The 19th century cases against members of the LDS church that the court cited are ludicrous. Their main evidence for claiming that bans on polygamy are constitutional are that 1) it's been outlawed since the time of King James I, and 2) it's a crime against God, nature, and decency. You think I'm kidding? Read the opinions. Anyone who talked that way about either a gay person or even a polygamist today would be considered an ogre.
Excellent--I choose Christina Ricci.
Sort of a Claire Danes fan myself.
Google the Steve Martin animated short film "Gwyneth and My Struggle to Have a Baby."
It starts out "Gwyneth [Paltrow] and my struggle to have a baby was complicated by the fact that we had never met . . ."
too often, as I said before, opposition to SSM is really just opposition to gays in general. Thanks for being that exception.
Randy, I understand that your reading comprehension is probably dulled more than usual by your excitement over the California court's recent ruling, so I'll try to explain things to you:
People here are not pro-pologamy, they're merely saying that under the logical reading of the Court's decision on homosexual "marriage", there is really no basis to prevent such a similar ruling from applying to pologamous "marriages."
You have a tendency to see advocacy when someone says "X will happen." Stop inputing your own biases into other people's arguments.
I hardly see a groundswell of support for polygamy within the US. But if it really gets you upset, the answer is quite simple -- get a constitutional amendment. If you think banning SSM is easy, then banning polygamy should be even easier.
Probably good advice. The more that states pass constitutional amendments banning gay marriage, the more they'll probably have to pass constitutional amendments banning polygamy also. Dealing with liberal judges is like playing whack-a-mole.
i support SSM. i support gays. i just don't see constitutional right to SSM.
fwiw, i disagree with lawrence vs. texas too. i certainly support the right to sodomy (of all sorts). but to argue it's constitutionally protected is silly, i think.
otoh, to criminalize what two consenting adults do in private in regards to sexuality is terrible POLICY.
i also agree that MANY who are against SSM are against SSM because they don't like gays. many other love gays, but disagree with gay MARRIAGE.
i cannot stand those who claim that those who are against gay marriage and/or don't think there's a constitutional right to same necessarily HATE gays.
I find it refreshing to see some honesty here. For people like this, the issue is that they see a vast liberal conspiracy to destroy Our Way of Life for some vague reasons, and the only way to stop them is to institute a fascist state. Ban divorce, contraception, abortion, etc. so as to prevent gay marriage and polygamy and the Ultimate Solution of the Destruction of Families.
We must force people to remain in bad marriages in order to save the institution of marriage. We must force them to have children in order to better raise them. Of course, we must force gay men into sham marriages with women to honor the sanctity of marriage.
That's why I love this dialogue -- it really forces people to grapple with the issues of marriage today, and it brings out what people *really* think.
But whit, that's randy's position in a nutshell. Don't sign onto the gay agenda? You must hate gays, according to Randy. Just watch this thread. He'll end up saying it, if he hasn't already.
(cymbal crash)
(looks over shoulder to make sure wife is not watching me)
Well, *that's* going to be the most insulting thing I read today.
There are plenty of arguments against polygamy. They aren't all very good arguments, though.
Oh well, better get to class. I came to law school to get my MRS, after all, so I'd better not leave a roomful of eligible men waiting!
Obviously, my reference to Screwtape went right over your head. If you actually knew what I was talking about, you wouldn't have posted such nonsense. Still, in order to avoid seeing you embarass yourself (again) in the future, I'll clarify: I am not talking about a "liberal conspiracy." As I said, advocates of gay marriage and polygamy are unwitting aides to a Greater Evil. And though I didn't mention it, I do not think that a "fascist state" is the appropriate remedy in combatting that Greater Evil. You can't fight that sort of thing on its own terms. I do think that our society would be better served if divorce was for real reasons instead of merely a desire to break your promise, if abortion was made illegal, and other policies were enacted to strengthen the family, etc. Those sorts of laws are like "broken windows" laws, in that I think their enactment would improve things on a basic level to create a more fundamental change. But I don't expect those laws to create a paradise or not to have other effects.
Glad you love the dialogue.
[For the record, I am not an adherent of the LDS Church (or of any)
That's so true. And it's so unlike heteros, who of course never brag about their own sexuality and are actually quite modest about it. Especially in the locker room. I have yet to hear any hetero denigrate homosexuality (fags), as we are always treated with the utmost respect, especially in high school.
This is a pretty unfair caricature. First of all, it doesn't need to be a conspiracy. Most people who support the erosion of traditional norms either do so honestly and openly, or unconsciously (because each step seems reasonable).
Also, unless the 1950s were a "fascist state," from a social/family perspective, I don't think any of the people you've caricatured here would want fascism.
The simple fact is that there has been an erosion in the institution of family. Look at illegitimacy figures and how they've increased. Obviously homosexuals and SSM have nothing to do with that, and I don't consider gay unions a threat to the traditional family at all. (I think widespread divorce and the mores of the sexual revolution are at least partially to blame.)
The situation is even worse in the U.K., where it's now considered insensitive and brutish to suggest that unwed mothers are less well-equipped to raise children than a married mother and father. Now that's something I don't want to see in the U.S., ever.
What are examples of societies that have tried and rejected polygamy?
My impression is that any society that this describes has rejected de jure polygyny but substituted de facto polygyny (mistresses, multiple divorces, increases in childbearing outside of marriage) and that the rejection of de jure polygyny was due to outside pressure, rather than an internal realization that it was "inconsistent with liberalism, individualism, and sex equality."
If the argument against polygyny is that it is inconsisent with sex equality, is it fair to say that a mistress is somehow better off than a second wife?
Did it ever occur to any of you that perhaps allowing gays to marry, it might actually streghten the institution of marriage? There is this implicit assumption by all opponents of SSM that it is bad, and it will inevitabely lead to worse things. But you offer no evidence of that, and the 'bad things' are just rhetoric. Just as easily, we can imagine good things. Here's how:
Right now, gay couples live as married couples in every sense but the actual legality. They even adopt children, and form a family. they do alright. Other people look at them and say, if gay people don't have to get married and yet care for each other 'til death parts 'em', then why can't we? If gay couples can raise children who turn out just as good as anyone else, then why can't we? Why do we need a marriage certificate, when gays prove that you don't need it?
By excluding us from marriage, you prove it is superfluous to having a happy, loving coupling, and a functional family.
However, by including us in the institution, that eliminates this argument, or at least weakens it.
Every single time you say marriage is essential to a stable and well ordered society, there are dozens of examples (gay couples) to prove you are wrong. The solution is easy: eliminate the examples that prove you are wrong, and then you have a better argument.
I don't consider gay unions a threat to the traditional family at all.
Does that help?
27 States currently allow first cousins to marry. See this page from the Nation Conference of State Legislatures.
Only one state in the USA permits gay marriages.
BTW.... California permits firs cousin marriage already.
That'd be nice. Ultimate motivations and causes are topics for a different thread anyway. All I was trying to point out is that this trend sure looks like it was planned by Satan, if not by a human intelligence.
I don't think anyone could convince me that the family as an institution is doomed in America anyway. Things are very, very far gone. I'm thinking that traditional American families will be like the monks of old, who preserved the wisdom of the ages while society collapsed around them into barbarism.
i amend "first cousin" and replace it with "brother, mother, dad, or sister"
thanks
What must be kept in mind is that SSM is brand new, whereas plural marriage is ancient, and as some have argued above, likely innate. Indeed, well over a billion people in this world today live in societies that at least tolerate polygamy, and, indeed, some even flaunt it (notably Saudi Arabia, where the sons of the founder from his multiple wives are still ruling). Liberalism, individualism, and sexual equality would seem to lead toward plural marriages, not away. And keep in mind that in many cases, the purpose of polygamy is the raising of children, whereas the purpose of SSM is personal satisfaction, etc. Little real argument has been made as to the societal benefit of SSM, whereas many cultures see such from polygamy. Also note that one of the purposes of Mormon polygamy was apparently to take care of widows and their children (i.e. "duty wives"), and arguably that is more effective societally than state supplied welfare. Is there really evidence that there is more abuse of women and children in a polygamous society? Esp. in comparison with SSM? And, if there were, would it be causation or correlation? (i.e. does polygamy result in higher abuse rates, or are societies that condone higher abuse rates more likely to allow polygamy)? Sure SSM might improve the lot of women and children, but then again, this could just be wishful thinking. The counter is that marriage is on the decline in this and other western countries for any number of social reasons, including that it is just not in the best interests of many males to be married today, esp. given the female friendly legal climate. So, polygamy might increase the number of women married without reducing the number of males married. It is fairly well established that children do better when you have their father in the household. So, there is reason to believe that they would also do better even if their mothers had to share the father.
If you are referring to the presumably heterosexual nature of a polygamous marriage you may want to think again. If more than two people are married, you effectively have a same sex marriage in at least one pairing of the group. Further, there would be no way to ensure that pairing wasn't at least bisexual in nature.
Provided the details are worked out, I have no personal issue with formalizing polygamous relationships. I do not confuse them with the gay and lesbian civil rights movement. I presume if polygamous people wish to have their unions legally recognized they will come forward and agitate and educate in favor of it.
Actually, it was a primary argument in recognizing gay marriage, which was also warned at the time. It is difficult to argue against the slippery slope when the current situation is the slippery slope in action.
I'm not arguing for anti-miscegenation laws. I think they are foolish and bad policy. I am arguing that having the government in the marriage business is bad policy, as is recognizing marriage between two same-sex people. And what is polygamy, if not two men (and a woman) or two women (and a man)?
It is difficult to imagine how the CA Supreme Ct. could deny equal protection in this.
And, once that's on the books, why shouldn't heterosexual adult siblings be allowed if they show proof that one is sterile?
Siblings often live together for social and economic reasons. They ought not be denied equal access to entitlements that come with marriage.
Neither the UK nor the US in 1800 constituted fascist states. Fascism hadn't even been invented yet. Yet in 1800, all of the above were banned in the UK and the US.
Which raises another interesting point. It doesn't occur to anyone in these debates, but Same Sex Marriage has never been prohibited in any Anglo-Saxon jurisdiction (or perhaps anywhere on earth).
Sodomy, lewd cohabitation, etc. have been prohibited but not marriage itself (which is a sacrament or ceremony performed by the members of the couple involved). All that has been missing is government recognition of SSM, polygamy, incestuous marriage, etc.
So one can truthfully state that SSM has always been legal. Complaints by advocates of state recognition of such marriages proves that they do not want marriage but state validation (a truly bizarre desire for the libertarians on this blog). I've never sought state validation for my activities.
Provided the details are worked out, I have no personal issue with formalizing polygamous relationships. I do not confuse them with the gay and lesbian civil rights movement. I presume if polygamous people wish to have their unions legally recognized they will come forward and agitate and educate in favor of it."
that's not relevant. read what i said again. there are ample historical incidences of societies that accept(ed) polygamy.
the issue was in regards to a "conservative" definition
one that has existed for centuries (if not eons) in numerous successful societies...
polygamy
I found Heinlein's idea of line marriage in The Moon Is a Harsh Mistress pretty interesting:
1. If potentially successful women are to some extent relieved by poly-marriage from society's domestic expectations, there's no good reason we shouldn't expect an equal number of wealthy women to take on multiple desirable husbands as wealthy men who take on multiple desirable wives. The market remains the same.
2. Those who advocate that the practical/legal changes to accomodate poly marriage are simply matters of contract, you're forgetting that SS couples have been dealing with those issues for some time and appear to prefer the legal defaults. The real question is why we don't have substantial body of poly marriages with similar contractual relationships in place - is it because the "illegal" poly relationships are so few, so exploitative or something else?
You breathlessly condemn what motives you impute to those whom you characterize as opponents of SSM.
Motives though are irrelevant to the point at issue.
Can you make a coherent argument to a man who is already married to a woman, who wants to marry--for whatever reason--another consenting adult that he should not be allowed to marry that person?
Be careful, while you are at it, that you don't rely on any argument based on history or tradition or Western Values or the importance of the family.
Notwithstanding your Lambda Legalistic paranoia, I do not think that most commenters here care a damn whom you marry. I certainly don't.
What disgusts people is the rank intellectual dishonesty and manipulation at work in the arguments for SSM.
This is, on the face of it, false. SSM has deep historical roots. Pre-modern China practiced both woman-woman and male-male marriages. Several African tribes practiced SSM. Native North Americans practiced it. The Emperor Nero married two men ( so here we have both polygamy and SSM ).
These have been tried, and rejected by these societies. I don't understand why you couldn't have done a quick google first....
Why is that? The EPC argument says that banning gay marriage means that a gay person is denied the equal protection of the laws because they can't marry the only people they would want to marry, another person of the same gender. They can, of course, marry a person of the opposite gender if they wanted to, but they don't want to.
Banning polygamy means that a person who wants a plural marriage can't have one. They can, of course, have a singular marriage. But suppose they don't want one.
Perhaps you have some other thinking in mind as to what exactly you mean by "the equal-protection argument". But every equal protection theory about gay marriage that I've seen they applies just the same to polygamy.
I found your points interesting, but the first one is simply unconvincing. You state: "There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions." This is true as far as it goes - and if we were discussing a legislative enactment that permitted same-sex marriage, I would agree with you.
It seems rather disingenuous to me, however, to make this argument in the current context, where same-sex marriage is being mandated by the judiciary. In essence, you're acknowledging the weakness of the distinction between SSM in the California opinion and then responding with an argument that is valid only as concerns legislative enactments (and which is undermined by the very decision you're criticizing).
This goes back to Todd's point - legislatures are not required to give reasons for their enactments, while courts are expected to give reasons for their holdings. Recent judicial rulings requiring states to recognize gay marriage invalidate your argument in two ways. First, it is no longer clear that legislatures can define marriage with reference to historical, social norms - that's precisely what California and Mass. courts have deprived their state legislatures of the power to do. Thus, presumably no other limits - including numerical limits - will be defensible on the basis of history and social norms; the defenders of the status quo will have to provide further justification.
Second, insofar as courts rather than legislatures now have the power to define the scope of marriage, it's plainly not the case (or shouldn't be) that advocates of polygamous marriage have to make their case that this mode of marriage is good for society. After all, same-sex couples have not, as far as I can tell, persuaded a majority in any jurisdiction of the truth of this position. Why should polygamy advocates be held to a higher standard? And in fact, they will not be: The legal - as opposed to the political - question is not whether the party excluded from marriage has made a case that allowing his marriage will be good for society; the question is whether the legislature's failure to extend the definition of marriage to encompass that individual (or class) meets some standard of review. And if polygamy advocates can show that strict scrutiny is justified, whether on the basis of some genetic predisposition or religious conviction, the game is up.
To sum up: The legal strategy of SSM advocates has been premised in part on the belief that it shouldn't be necessary to make the case that SSM is good for marriage or for society, and success through this route has allowed SSM advocates to achieve significant victories without having actually persuaded a majority of the population that this is so. All they've needed to do is to change the standards governing judicial scrutiny of legislative acts concerning marriage, and it's precisely that change that opens the door to authorization of polygamous marriages - through the judiciary, true, but authorization nonetheless. In other words, your first point is not a response to Todd's question; it's a red herring - an effective one no doubt, as it will be used by intelligent folks to comfort the teeming masses in the "middle" states, but a red herring nonetheless.
What is the rationale, (other than the "Yuck" factor), for prohibiting marriage between two brothers? (Living in NY, I knew of gay identical twin brothers who were lovers, so it's not totally hypothetical.)
The widespread popularity of swinging suggests a demand for true polygamy. A four income family could live very well indeed. Children would receive parental attention at all times, at least one parent would attend every child function, and hopefully all the parents would be sexually satisfied.
Perhaps you didn't, but you got it nonetheless, and if you are married, you have accepted it. And if you are going to get and accept state validation for your activities, theen you have no right to deny to it other groups.
As for polygamy, I don't really care if people want to enter into polygamous relationships. I certiainly don't. As for whether the state should allow them, I wouldn't much care one way or another. The number of people who do certainly won't bring down the institution of marriage, and as many of you say, it's more conservative thatn SSM.
Prufrock: "What disgusts people is the rank intellectual dishonesty and manipulation at work in the arguments for SSM."
There is no rank dishonesty is saying that I would like to get married to my boyfriend, and that if you have the right to marry whom you choose, so should I. How is that dishonest? Furthermore, recent polls have shown that about one third of Americans approve of SSM. Another third (roughly) don't want SSM, but are approve of civil unions. Are they all dishonest too?
But if you are looking for rank dishonesty, check out this quote:
"Siblings often live together for social and economic reasons. They ought not be denied equal access to entitlements that come with marriage."
you see, this person certainly knows the difference between romantic love and filial love, and he knows the difference between wanting to marry for the entitlements, and wanting to marry because you want to spend the rest of your life with another person, to love and to cherish, and all that. But he deliberately mixes the two as though there is no difference. That's pretty darn dishonest.
Or if you don't think that is dishonest enough, recall Dan's statement that all the gays he knows talk about their sexual prowess. When I sarcastically commented that no heteros do that, his response was:
"...Well RAndy, I hope this Courts decision can start to make up for your hurt feelings from High School."
Of course, I'm not looking for the Courts to make up for hurt feelings, nor did I ever imply it. My point was that there are some gays who talk about sex all the time, just as they are some heteros who do too. Men can be pigs, but they are not pigs because they aree gay or straight -- they are pigs because they are men. And not all men are pigs, either, so to make broad generalizations about any group of people is wrong.
"I do not think that most commenters here care a damn whom you marry. I certainly don't. "
Good for you. However, most people do very much care whom I marry. If I marry another man, I am, according to several people, part of a movement that will destroy marriage. so they would like to prevent it from happening, and that means I cannot marry the one person I choose to. Oddly enough, if I enter into a sham marriage with a woman and marry her just for money or whatever, that would be perfectly legal, and all of you would approve of it. Afterall, Gov. McGreevey's marriage was valid and approved by everyone while he was married, even though it now comes out that it was a complete sham.
Somehow, lying about your true intentions doesn't destroy marriage, but being honest about it does. Weird.
WHERE can one sign up for these studies???
To the extent that you do not subscribe to this notion, bully for you.
UW2L wrote:
Why in the world does she consider this insulting? This is a long-established problem in polygamous/polygynous cultures, which typically have a surplus of unattached young men due to the tendency of older males to mate with younger females. And idle ... er, hands ... are the Devil's playground. The traditional method of reducing the surplus in such societies is warfare. When warfare isn't an option, unmateable young men contrive to make trouble in other ways.
IMHO, morality is not a particularly defensible reason to ban polygamy, given that it is approved in the holy books of the three major Western ("Abrahamic") religions. But sensible public policy seems to me to be reason enough to legislate against it, assuming your theory of government grants society the power to do so. (I add that caveat because some libertarians will say that it shouldn't.)
You say: The EPC argument is NOT "I can't marry whom I want", it's "I can marry a woman but not a man". There's no parallel construction for polygamy. But the relevant question is, again, whether it's arbitrary to say that the EPC argument works when the plaintiff complains that "I can marry a woman but not a man" but doesn't when the plaintiff complains that "I can marry one woman but not two (even though my religion compels it/even though I'm genetically predisposed to it)." A lot of folks think it is arbitrary, and no amount of saying "But it's different" makes it any less so - just as no amount of my saying SSM is "just different" from interracial marriage made any difference to my libertarian and left-of-center friends. Deal.
But I also asked that those who opppose this decision on those grounds support SSM at the voting booth. This way, we are all happy -- a democratic vote without judicial intereference, and we get SSM.
Alas, not a single person has taken up my offer, which proves to me that this isn't about judicial tyranny at all, but about whether gays can marry whom they please. So it's dishonest for anyone to hide their opposition to SSM behind this decision rather than come out and just say what they really believe.
Futhermore, not a single person has entertained the notion that prohibiting SSM actually hurts the institution of marriage more than by including it. Other conservative supporters of SSM have made the same argument. So to assume that SSM will only be bad, nothing good, shows a lack of any sort of intellectual engagement. If you want to make emotional arguments, that Satan is causing the destruction of marriage, please go ahead. But I thought we were supposed to make logical arguments, not ones based upon mere religious beliefs.
On this I agree with you.
Now I hope that you will also agree *possibly* that there are positive policy ramifications from SSM by judicial fiat? Or that at least society won't collapse because of it, as many people here predict?
I find it difficult to accept that any decision like this outlining a new constitutional right by judicial fiat could have any positive policy ramifications. But I could be wrong. Your argument would be more palatable to me had it been based on the hypothetical of legislation that allowed for SSM.
Mormon offshoots with 10 wives do not put on those clever parties, much less invite judges. They also don't have cash for the judge.
Thus, the opinions let gays marry and the polys can't.
In other words, the belief that good faith homosexuals marrying harms the traditional institution is not incompatible with the belief that bad faith heteros harm it as well.
You do realize that most here have some libertarian leanings and are therefore likely to dislike legislative approval of marriage IN ADDITION TO disliking (poorly reasoned) judicial approval, right?
The whole issue definitely has started us on a slippery slope, especially since Loving, and every case and ballot initiative takes us further along.
I don't know if this slope is leading towards SSM or polygamy or fascism or anything else.
What it is doing is creating a lot of dialog (and even more ranting) about what marriage is and, more importantly for purposes of this discussion, what the government's involvement should be. To the extent that this dialog is actually generating or spreading information, I can't see that as a bad thing. It's worth noting that the only reason to fall down a slippery slope is if gravity is in fact going in that direction, and the slope really doesn't provide enough to hold on to.
The slope we're on isn't "SSM will lead to polygamy". It's all the variations of "state recognition of marriage is _________" and "it does or does not apply to to homosexual couples because ________" and "it does or does not apply to polygamy because __________".
Lots of people can fill in those blanks with blunt assertions. Hopefully we'll eventually be able to fill them in with reasons.
There are a lot of slopes here. From the government's perspective, many of the things that distinguish SSM from polygamy are things like tax consequences and health benefits. Very well, what ARE the reasons why health benefits should extend to spouses but not other groups? What IS the justification for taxing married couples differently than other types of pairs? Whatever the goals are, are the current measures in place really effective in accomplishing them? Which values are truly personal and which are social, and of the social values which are subject to legislative treatment, and which are best spread by some other means? Good questions all, and the more we answer them the more I expect the marriage debates to devolve into something we can all more or less agree on.
What I tell my boyfriend will have little impact upon the debate. Although I agree there are arguments that this is judician tyranny, there are good arguments that it is not. I'm just willing to admit that people can see things differently. Personally, although I have reservations that about the way the court went about doing it, I truly believe that marriage is a basic right, and that if some people have that right, then the equal protection clause demands that all have that right. You might disagree with this, but you can hardly argue that it's a dishonest argument.
I would go futher -- I agree with everyone that gov't should be out of the marriage business altogether, and only religious institutions can bestow 'marriage'. All the state does is have civil unions with rights, benefits and responsibilities for both people.
As for a referemdum, I would be very happy to vote for one that overturns the decision, while simultaneously permitting SSM. How about you?
"You do realize that most here have some libertarian leanings and are therefore likely to dislike legislative approval of marriage." If they only disapprove of legislative approval of SSM, then that's not a libertarian leaning. If they disapprove of legislature approval of all marriages, then I can live with that.
Good point. But I don't see the anti-SSM arguing that. They would have to concede that in this case, divorce would be a good thing. And we know it happens (I know several gay men who were once married). Yet, when they bandy about the divorce stats, they never differentiate the good divorces from the bad. And divorce rates are always used to prove the fall of marriage as an institution. If they were honest, they would admit that some marriages are better off ending, and a bad marriage *might* be more damaging to the institution than divorce.
This is not an EPC argument because all persons, male and female, are treated alike. Instead, it's a "fairness" argument; as I acknowledged in my first post, fairness arguments do permit the question of polygamy to be raised.
To the extent the 1A overlaps with the EPC, I'd agree. That isn't true under current law (US v. Reynolds), of course.
Note also that the same applies to same sex marriage. If, say, CA were to recognize opposite sex marriages performed by the Catholic Church, but not same sex marriages performed by the Unitarian church, then there's an argument that this constitutes a 1A violation. The concurring opinion in Perez v. Sharp (the CA case striking down the miscegenation law) relied on this argument.
This is not an EPC argument because all persons, male and female, are treated alike. Instead, it's a "fairness" argument; as I acknowledged in my first post, fairness arguments do permit the question of polygamy to be raised.
That's also true of miscegnation laws. Everyone's treated alike; they can only marry someone of their own race. The argument for an EPC argument for polygamy would be that curent law discriminates against the class of people who'd like to have polygamous marriages, or, people who have amorous relations with multiple people and, understandably enough, would like those relations to receive state sanction. To which you counter, that's not a class at all, that's just a group of people who'd like to break the law they're challenging. But why is that? Maybe, just as gay people are presumably born with some genes that cause them to be attracted to people of the same sex, polygamists - some of them anyway - are born with genes that cause them to fall in love with multiple people at once. They're not just would-be law-breakers, they're polyamorous, and their polyamory is just as constitutive of their identity as a gay person's homosexuality.
If you can point to any serious evidence that SSM has had any negative effect on marriage in Mass? We have among the lowest divorce rate in the nation, low teen pregnancy and a higher per-capita income.
I think it's incumbent on the naysayers to present even a modicum of hard evidence that the policies they condemn are actually harmful as opposed to merely against their preferences.
Individual race, sex and (at least for the sake of argument) orientation are immutable. Marital status is not immutable at all - or would you argue that a law against marrying an underage man violates equal protection?