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On to polygamy?

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):

  1. On to polygamy?
  2. Same-Sex Marriage and Polygamy:
joe bob:
To be honest, I haven't read your entire post. I skimmed it, and most of it, much like the Cal SCt's opinion, is legal gymnastics - somewhat logical reasoning proffered simply to get to the hoped-for end.

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.
5.20.2008 12:47pm
Tennessean (mail):
Joe Bob: Perhaps you should read the post, then. I'm not sure what the criteria are for determining when something is godo argument and when it is mere legal gymnastics, but surely it is related to something like inadequate reason. I'm not defending Carpenter's argument (nor am I criticising it), but surely you can do more than this?

Also,
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.
does not seem as forceful as
if the state condones a marriage in which one spouse sticks his penis in the other spouse's vagina, then there is little to stop a state from condone a marriage in which one man sticks his penis in two vaginas.
The former, if anything, seems like legal gymnastics.
5.20.2008 12:52pm
Deoxy (mail):
Quick hits:


Plural unions have historically most often taken the form of one man having many wives.


True, but that will not necessarily be the poster-child legal case, so the relevance is highly dimished.


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.


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).

For example: if the husband dies intestate, who inherits?


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.


Many warned that reversing miscegenation bans would lead to polygamy, but it did not.


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.
5.20.2008 12:56pm
MarkField (mail):
There is one obvious legal reason why polygamy is less likely: there's no equal protection argument for it. The fundamental rights analysis might seem a slippery slope towards polygamy, but the EPC does not.
5.20.2008 12:59pm
Malvolio:
Many warned that reversing miscegenation bans would lead to polygamy
Not yet, but clearly it has led to SSM.

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 polygamy, many basic rules of marriage will have to be changed.
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.
5.20.2008 1:04pm
Brooklynite (www):
On a practical basis, I think the strongest of your arguments is the last one. SSM is flipping a switch, from a legal perspective --- it takes one discrete element of the law of marriage, and alters it in a straightforward way. It changes one thing, and leaves everything else the same.

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.
5.20.2008 1:05pm
Kurt2 (mail):
This ties in with Mark Field's comment, but the main difference to me is that polygamy, unlike homosexuality, actually is a lifestyle choice and not something biologically innate.
5.20.2008 1:06pm
Anon123 (mail):
It makes sense in terms of incentives. We want to encourage straight men to marry one wife, rather than two wives, for a variety of policy reasons. Therefore, we create an institution encouraging straight men to marry one wife, rather than two wives.

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.
5.20.2008 1:06pm
Brian Mac:
It's just occured to me that should the Courts' recognise polygamous marriages, then there's no way back. What I mean is that I don't see conservatives backing a constitutional amendment defining marriage as a union between two individuals. Or is there some other option?
5.20.2008 1:09pm
Arvin (mail) (www):
This ties in with Mark Field's comment, but the main difference to me is that polygamy, unlike homosexuality, actually is a lifestyle choice and not something biologically innate.

How do we know either of these is true? And why does it matter?
5.20.2008 1:11pm
Pliny, the Elder (mail):
If the right to marry is a fundamental right, then denying a person a marriage license based upon marital status would seem to invoke strict scrutiny.
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.
5.20.2008 1:17pm
Deoxy (mail):
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.


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.
5.20.2008 1:19pm
Taeyoung (mail):
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.


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.
5.20.2008 1:22pm
NE2d:
This reminds me of the New Jersey Supreme Court's rock-solid reasoning in distinguishing sperm donors from surrogate mothers:

"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.
5.20.2008 1:23pm
Deoxy (mail):

This ties in with Mark Field's comment, but the main difference to me is that polygamy, unlike homosexuality, actually is a lifestyle choice and not something biologically innate.


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.
5.20.2008 1:24pm
Brad Ford (mail):
The law prevents a man from having two wives because the law protects those who cannot protect themselves.
5.20.2008 1:25pm
Kurt2 (mail):
How do we know either of these is true? And why does it matter?

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.
5.20.2008 1:26pm
Taeyoung (mail):

It's just occured to me that should the Courts' recognise polygamous marriages, then there's no way back. What I mean is that I don't see conservatives backing a constitutional amendment defining marriage as a union between two individuals. Or is there some other option?


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."

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
5.20.2008 1:26pm
Deoxy (mail):

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


Wow, that's convincing. Tell me more about your logic-less "feelings", eh?
5.20.2008 1:28pm
Prufrock765 (mail):
All due respect to the pro-SSM crowd

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.
5.20.2008 1:28pm
Nick P.:
polygamy has been historically tried and rejected in many human societies

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.
5.20.2008 1:29pm
Deoxy (mail):

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.
5.20.2008 1:32pm
NE2d:

the argument that everyone is free to marry one person of their choosing is much more compelling.

Excellent--I choose Christina Ricci.
5.20.2008 1:32pm
whit:
"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"

"our nation's CULTURE???"

how should that be relevant to an issue of constitutional law?

iow, it sounds like legal gymnastics to me too.
5.20.2008 1:34pm
Alex C:
What about the issue of marital privilege? Wouldn't a legislature or court have a good reason to ban polygamous marriages because recognizing them would increase the scope and power of marital privilege? I could imagine that if polygamy were allowed that criminal organizations would marry in the hopes of providing legal protection for themselves. Or am I just showing off my ignorance of how that works?
5.20.2008 1:35pm
whit:
"This ties in with Mark Field's comment, but the main difference to me is that polygamy, unlike homosexuality, actually is a lifestyle choice and not something biologically innate."

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.
5.20.2008 1:39pm
Houston Lawyer:
I don't buy off on polygamy making the law too complicated. The courts are already full of people who have children from multiple partners. The claims of a second wife of a polygamist for custody rights regarding his first wife's child are no different than those of the non-biological gay parent claiming similar rights. As long as each marriage consists of a contract between two people, it is not obvious that a person couldn't be married to two different people at the same time.

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.
5.20.2008 1:40pm
Dave D. (mail):
...SSM won't lead to polygamy, or any other marriage alternatives ?

...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.
5.20.2008 1:43pm
whit:
it's pretty frigging ironic that the same people that see this claimed right to homosexual marriage in the (federal and/or state's) constitutions claim that of course there is no such right for polygamists, or those wishing to marry a close relative.

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.
5.20.2008 1:52pm
DangerMouse:
..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.

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.
5.20.2008 1:53pm
Don Miller (mail) (www):
I can see no logical reason why a wealthy man (or woman) who can afford to have multiple wives and households should not be allowed to have them.

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.
5.20.2008 1:55pm
Randy R. (mail):
Interesting that not a single person here is advocating for polygamy because he or she needs it. Rather, the ones advocating for polygamy are the ones who are against SSM.

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?
5.20.2008 1:56pm
whit:
1) i am not advocatign for polygamy. i am saying that IF the constitution PROTECTS SSM, it protects polygamy
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.
5.20.2008 2:01pm
whit:
"I can see no logical reason why a wealthy man (or woman) who can afford to have multiple wives and households should not be allowed to have them. "

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.
5.20.2008 2:02pm
MXE (mail):
This ties in with Mark Field's comment, but the main difference to me is that polygamy, unlike homosexuality, actually is a lifestyle choice and not something biologically innate.

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.
5.20.2008 2:03pm
Cornellian (mail):
the argument that everyone is free to marry one person of their choosing is much more compelling.

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 . . ."
5.20.2008 2:04pm
Randy R. (mail):
Whit: you are one of the actual intelligent commentators here, and you at least have a degree of honesty with regards to your posts. I may not always agree with you , but I appreciate your support for SSM.

too often, as I said before, opposition to SSM is really just opposition to gays in general. Thanks for being that exception.
5.20.2008 2:04pm
DangerMouse:
Why are you all so pro-polygamy? I thought you were all in favor of a conservative definition of marriage?

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.
5.20.2008 2:05pm
whit:
thanks randy.

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.
5.20.2008 2:09pm
Randy R. (mail):
Dangermouse: "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. "

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.
5.20.2008 2:11pm
DangerMouse:
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.

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.
5.20.2008 2:13pm
whit:
the problem with polygamy is the same as the problem with conventional marriage. one wife too many!
(cymbal crash)

(looks over shoulder to make sure wife is not watching me)
5.20.2008 2:14pm
Jim Hu:
I seem to recall somewhere - perhaps in the earier VC posts - a discussion of how polygamy law is already under stress from mixing of populations from countries that do or do not already allow it. IIRC, the argument was that this is likely to be more problematic than dealing with from fringe Mormon groups that didn't give it up; i.e. if someone like this guy flies to Houston for his heart surgery - and that kind of thing has already happened often, I believe - how are spouse rights handled?
5.20.2008 2:15pm
Dave D. (mail):
...Most of the gays I know are so impressed with their own sexuality they can't shut up about it. To the extent they talk about sexuality that's not gay, they denigrate heterosexuality ( Breeders ) and profess disinterest in any other sexual arrangements. Perhaps when they realize polygamy applies to them too, this will change.
5.20.2008 2:17pm
UW2L:
"*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."

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!
5.20.2008 2:20pm
DangerMouse:
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.

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.
5.20.2008 2:21pm
Tax Lawyer:
The Court's reference to Reynolds, Davis v. Beason et al., are worse than just "unconvincing," and Prof. Carpenter's referring to them as "hoary" elides the true evil of those decisions: They evince unabashed and base prejudice against the Church of JC of LDS. Their only real "argument" for banning polygamy is that it's always been done that way in "civilized" societies. Those decisions belong in the great hall of shame with Dred Scott, Plessy, &Korematsu.

[For the record, I am not an adherent of the LDS Church (or of any)
5.20.2008 2:25pm
Randy R. (mail):
DAve: "Most of the gays I know are so impressed with their own sexuality they can't shut up about it. To the extent they talk about sexuality that's not gay, they denigrate heterosexuality ( Breeders ) and profess disinterest in any other sexual arrangements"

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.
5.20.2008 2:26pm
MXE (mail):
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.

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.
5.20.2008 2:27pm
CrimsonTribe:

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.


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?
5.20.2008 2:30pm
Oren:
Dangermouse -- then who (or what) is driving this desire to destroy the family now? Xenu?
5.20.2008 2:32pm
Randy R. (mail):
MXE: "The simple fact is that there has been an erosion in the institution of family."

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.
5.20.2008 2:42pm
MXE (mail):
It doesn't take an evil overlord to cause a bad trend. Instead of ridiculing Dangermouse, try arguing to him why his fears about the institution of family in the U.S. are unjustified.
5.20.2008 2:42pm
MXE (mail):
Randy, allow me to quote myself from the same paragraph you cited there, in order to answer your criticism.

I don't consider gay unions a threat to the traditional family at all.

Does that help?
5.20.2008 2:43pm
shawn-non-anonymous:
Whit says:


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.



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.
5.20.2008 2:47pm
DangerMouse:
It doesn't take an evil overlord to cause a bad trend. Instead of ridiculing Dangermouse, try arguing to him why his fears about the institution of family in the U.S. are unjustified.

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.
5.20.2008 2:49pm
whit:
shawn. i stand corrected.

i amend "first cousin" and replace it with "brother, mother, dad, or sister"

thanks
5.20.2008 2:50pm
DangerMouse:
Grr. My post should read: I don't think anyone could convince me that the family as an institution isn't doomed in America anyway.
5.20.2008 2:50pm
Dave D. (mail):
...Well RAndy, I hope this Courts decision can start to make up for your hurt feelings from High School. Consider it a gift, for that is what it truly is.
5.20.2008 2:51pm
Bruce Hayden (mail) (www):
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.
Let's be a little more accurate here. Most of the past decisions had more to do with the Book of Mormon supposedly augmenting the New Testament than with any logic or facts.

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).
*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.
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.
*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).
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.
*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.
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.
5.20.2008 2:54pm
shawn-non-anonymous:
Whit says:


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.


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.
5.20.2008 2:56pm
Phelps (mail) (www):
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.


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)?
5.20.2008 2:59pm
The General:
it doesn't matter what legislatures or the public does anyway. Social policies are better left to the unelected elites in black robes because they just know better anyway.
5.20.2008 3:01pm
jxr (mail):
Can a couple of biological brothers (or sisters) be granted a SSM?

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.
5.20.2008 3:02pm
Duncan Frissell (mail):
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.

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.
5.20.2008 3:11pm
Roger Schlafly (www):
There is much more political support for same-sex marriage than polygamy. That's the difference. Everything else is just a contorted legal rationalization.
5.20.2008 3:17pm
whit:
"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."

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
5.20.2008 3:18pm
Arkady:

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.


I found Heinlein's idea of line marriage in The Moon Is a Harsh Mistress pretty interesting:


Line marriage is a form of group marriage ... in which the family unit continues to add new spouses of both sexes over time so that the marriage does not end.
5.20.2008 3:27pm
Aultimer:

"*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."


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?
5.20.2008 3:27pm
JohnEMack (mail):
Let us suppose that State v. Holm, 137 P.3d 726 (Utah 2006), which holds that the word "marriage" encompasses a purely religious arrangement calling itself "marriage" is subject to prosecution under a bigamy statute. It seems to me that Holm presents serious "free exercise" problems, and has not been followed outside Utah. If Holm is bad law, then a prohibition against intercourse with multiple partners who are of age probably cannot be prosecuted. But if this is so, then the only difference between an arrangement involving multiple partners who consider themselves married in Jesus or in Allah and one where they register as married couples with the State is the "dignity" conferred by the official title "marriage." But the California decision was that once a State permits a certain cohabitiational arrangement, to fail to permit the parties to have access to the official term "marriage" is to discriminate against them without a rational basis. This seems to me to be correct. If Muslim citizens, in any number, enter into plural cohabitational arrangements, refusing to dignify those arrangements with the term "marriage" while awarding it to a good many other groups whose practices is anathema to others seems not only discriminatory, but arbitrary.
5.20.2008 3:40pm
Prufrock765 (mail):
So, RandyR, are you against polygamy/polygyny?; do you believe there is a right to polygamy/polygyny?

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.
5.20.2008 3:42pm
darelf:
"SSM has not been tried and rejected "

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....
5.20.2008 3:47pm
David Schwartz (mail):
There is one obvious legal reason why polygamy is less likely: there's no equal protection argument for it. The fundamental rights analysis might seem a slippery slope towards polygamy, but the EPC does not.


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.
5.20.2008 3:48pm
RBG (mail):
Dale,

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.
5.20.2008 3:56pm
Ai:
I am a proponent of getting the government completely out of the marriage business; total separation of Marriage &State; let consenting adults make whatever contractual arrangements they want to with parents legally responsible for their own children. Of course, that won't happen anytime soon.

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.)
5.20.2008 4:00pm
Tony Tutins (mail):
I don't see a slippery slope argument, because same-sex marriage was unprecedented in human history till quite recently. As mentioned, polygamy is a traditional form of marriage, documented in the Old Testament, and common today even where it is not legal. (Subject to a grandfather clause, polygamy was barred by statute in Singapore in 1961 and in Hong Kong in 1971, but legalized in Malaysia in 1980, for Muslims only. Thanks to the Internet, a friend of mine, daughter of a sailor, found out to her shock that her father had raised another family in Texas while she was growing up.

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.
5.20.2008 4:02pm
Randy R. (mail):
Duncan: "I've never sought state validation for my activities."

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.
5.20.2008 4:13pm
The Unbeliever:
I think we've breezed past the most interesting point raised thus far.
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.
WHERE can one sign up for these studies???
5.20.2008 4:16pm
MarkField (mail):
David Schwartz, you've mis-stated the EPC argument, so your conclusion doesn't follow. 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.
5.20.2008 4:18pm
Prufrock765 (mail):
The intellectual dishonesty lies in the notion that there are no significant negative policy ramifications from SSM by judicial fiat.
To the extent that you do not subscribe to this notion, bully for you.
5.20.2008 4:21pm
Mike G in Corvallis (mail):
* 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.

UW2L wrote:
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.

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.)
5.20.2008 4:23pm
RBG (mail):
MarkField,

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.
5.20.2008 4:27pm
Randy R. (mail):
As I said earlier , which you obviously didn't read, I stated that I would be willing to concede that the courts opinion is lacking in reasoning and could be seen as example of judicial tryanny. Okay?

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.
5.20.2008 4:28pm
Randy R. (mail):
Prufrock: "The intellectual dishonesty lies in the notion that there are no significant negative policy ramifications from SSM by judicial fiat"

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?
5.20.2008 4:31pm
Prufrock765 (mail):
So, Randy, just to boil it down, you are going to tell your boyfriend that this decision is a dangerous example of judicial tyranny?; and you will advocate on behalf of a referendum overturning the decision? This seems only fair given the standards of behavior that you outline.
5.20.2008 4:40pm
Prufrock765 (mail):
collapse is an unlikely outcome--at least based on this one state court decision.
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.
5.20.2008 4:44pm
Happyshooter:
Let us be honest, gays put on clever and fun parties that the judges go to. They then give big bucks to the judge's election fund.

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.
5.20.2008 4:57pm
The Unbeliever:
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.
We would agree it was legal, yes. But the honest anti-SSM advocates would say both SSM and shams hurt the institution of marriage. The difference, I suppose, is that one is easier to recognize at the start than the other.

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.
5.20.2008 5:05pm
ejo:
perhaps true, but muslims are good at portraying themselves as victims, a sure bet for bleeding hearts willing to overlook a little misogyny and throw little things like tradition and cultural preferences overboard. add in a little age of consent argument and it's a sure bet for a liberal judiciary and more than a few academics.
5.20.2008 5:06pm
Aultimer:

Randy R. (mail):
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.


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?
5.20.2008 5:13pm
JBL:
What slippery slope? Is there only one? Are they all bad?

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.
5.20.2008 5:19pm
Randy R. (mail):
Prufrock: "So, Randy, just to boil it down, you are going to tell your boyfriend that this decision is a dangerous example of judicial tyranny?; and you will advocate on behalf of a referendum overturning the decision? This seems only fair given the standards of behavior that you outline."

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.
5.20.2008 5:23pm
Randy R. (mail):
Unbeliever: "But the honest anti-SSM advocates would say both SSM and shams hurt the institution of marriage. The difference, I suppose, is that one is easier to recognize at the start than the other."

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.
5.20.2008 5:27pm
MarkField (mail):

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)."


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.
5.20.2008 5:28pm
Jeff R.:
There's also an EPC argument along the lines of "my neighbors can enjoy all forms of marriage in their religious tradition but I cannot"
5.20.2008 5:42pm
MarkField (mail):

There's also an EPC argument along the lines of "my neighbors can enjoy all forms of marriage in their religious tradition but I cannot"


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.
5.20.2008 5:59pm
David Schwartz (mail):
David Schwartz, you've mis-stated the EPC argument, so your conclusion doesn't follow. 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.
"I can marry a single man but not a married man."
5.20.2008 6:12pm
Asher (mail):

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.
5.20.2008 6:17pm
Oren:
It doesn't take an evil overlord to cause a bad trend. Instead of ridiculing Dangermouse, try arguing to him why his fears about the institution of family in the U.S. are unjustified.
Why don't you try arguing to me why my fears of the sky falling are unjustified. It's positively nuts to argue against the vague assertion that all hell is breaking loose. For centuries now, conservatives have been arguing that every new innovation in society (divorce, interracial marriage, jazz, rock and roll music, rap music, short skirts, pantsuits, radio, television, the internet) is about to collapse the very fabric of civilization. At some point, we get tired of this reflexive condemnation.

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.
5.20.2008 6:22pm
Aultimer:

David Schwartz

I can marry a single man but not a married man."

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?
5.20.2008 6:26pm
Doc W (mail):
Ai: EXACTLY. Let it all be civil unions according to the state. Individuals can call it "marriage" or "partnership" or whatever.
5.20.2008 6:36pm
ejo:
well, oren, perhaps we should experiment and remove some of the other taboos or restrictions one might find icky as well: incest, sex with children, one could go on and on. how could we conclude, without actually legalization, that this behavior actually harms society as opposed to being a byproduct of those nasty conservatives. I would say that many of the "innovations" you talk about haven't had a net positive impact on society. at a minimum, some of the "innovations" have created their own problems (divorce with its impact on children, internet porn, how about single parent households for an innovation?). proponents of ssm are the one trying to change society-might they be the ones who actually bear the burden to show the positive impact? why is it the other way around? why are you afraid to put it to a vote, even in Massachusetts?
5.20.2008 6:39pm
KG2V:
Now, lets thing Polygamy, and go one slight step further (Thank you RAH) - the Line - Picture - Husband Marries wife, who also marries a husband who is say 10 years younger, and a wife who is 10 years younger - in 10 years, they marry another pair (doesn't have to be 10 years, but makes the math easy)

Think of the implications of "inheritance" - the spouces are always retaining control - no inhertiance
5.20.2008 6:50pm
Randy R. (mail):
ejo: " proponents of ssm are the one trying to change society-might they be the ones who actually bear the burden to show the positive impact? why is it the other way around? why are you afraid to put it to a vote, even in Massachusetts?"


First, proponents of SSM are not trying to change society. All they want is SSM. It is gay people in general who are trying to make homosexuality for gays more accepted. There is a difference. And there are lots of demonstrated positives to doing that, and no downsides. But that's another thread.

We have shown the positive impact of SSM. It certainly impacts postively upon gay people. On other people, the impact so far has been neutral. There have been no negative impacts.

In Massachusetts, in order to put it to a vote of the people, you need one fourth of the legislature to vote for it. They couldn't even get that. If less than 25% of the people's representatives don't have a problem with SSM, then presumably few of the general population would either. And in fact, not a single person lost his seat because of his vote, which proves even less an interest. Additionally, polls show a clear majority of people in that state support SSM. So what's the problem here? The people have voiced their opinions, and SSM is staying in MA.
5.20.2008 7:00pm
Oren:
Don't worry ejo, we'll roll back that nasty Jazz music once and for all (and don't get me started about rock'n'roll)!

Also, SSM is provably not "transparently" bad for society since everything is fine up here in Mass.
5.20.2008 7:28pm
MXE (mail):
For centuries now, conservatives have been arguing that every new innovation in society (divorce, interracial marriage, jazz, rock and roll music, rap music, short skirts, pantsuits, radio, television, the internet) is about to collapse the very fabric of civilization. At some point, we get tired of this reflexive condemnation.

Let's not turn this into some narrative about two camps -- progressives and conservatives -- whose present members can somehow be treated in light of the errors of their intellectual "ancestors."

You're right that there's a definite human tendency to freak out over unfamiliar, novel things. Those fears are usually unjustified, and I think they are in fact unjustified in the case of same-sex marriage. But those fears must be justified sometimes, unless civilization is on a path of inevitable social progress.

For example, people decried tobacco use basically since it was first introduced into European society. Many of these people were surely just Chicken Little busybodies, but they were right (even more right than they could have known) about the eventual toll this novel habit would take.

This is getting a little off-topic, but all I mean to point out is that just because someone wags his or her finger at a new social practice doesn't mean they're wrong just because the knee-jerk reaction has a long and comical history.
5.20.2008 7:34pm
Oren:
why are you afraid to put it to a vote, even in Massachusetts
We put it to a vote in the Legislature -- opponents couldn't even get 25% to put it on the ballot. In November, the people will get a chance to put replace them.
5.20.2008 7:36pm
Oren:
MXE, no, but that history teaches that we should treat those knee-jerk reactions with serious reservations. The fact that they've been wrong about most everything doesn't prove they're wrong now but it's certainly strong circumstantial evidence.
5.20.2008 7:37pm
Oren:
By the way, I do think society is on the path of social progress. Simple mathematics tells us that. The fraction of humans killed by other humans has dropped in every century, including the 20th (and certainly the 21st the way it's turning out).

We've never lived in better times.
5.20.2008 7:43pm
Randy R. (mail):
It's funny, you know. Social conservatives love to tell us what to do -- don't have an abortion, don't have sex outside of marriage, and above don't, don't be a homosexual. Even on these threads, up pops people who content that homosexuality is 'wrong', is 'perverted', is an 'aberration' and (using that catchall word) 'immoral' Many of these people (though not all) are opposed to SSM just because it gives something go gay people, and they really really hate that. It wouldn't matter if it was by judicial fiat, or legislatures, or popular vote -- they are against it.

However, I'll wager to bet dollars to donuts that many of these same conservatives get a tad upset when told they should conserve energy, or do something to stop global warming.

So I guess it's okay to tell me how I should lead my life (in shame, closeted, with social approbriation raining down upon me), but no one can tell them they can't drive their SUV.
5.20.2008 8:02pm
MXE (mail):
By the way, I do think society is on the path of social progress. Simple mathematics tells us that. The fraction of humans killed by other humans has dropped in every century, including the 20th (and certainly the 21st the way it's turning out).

This, really? If someone were worried that illegitimacy, crime, or social alienation was rising, would your response really be, "Well, at least feudal warlords aren't butchering entire cities man, woman, and child like in the bad old days. Look on the bright side"?

I normally settle for "at least it's not raining," but I think I like yours better; it's a little more punchy.

Also, not to be a jackass, but that statistic has a certain unmistakable "half-baked" aroma to it. (Not that I have some big stake in it being false.) It would be really loser-y to ask for a source (ugh), but I admit I'd like to see who came up with it, and how.
5.20.2008 8:08pm
smitty1e:
These half measures are boring. Two points:
1) If we're to demolish the traditional symbol 'marriage', then, along with questions of gender and number, we should toss out considerations of species, location, life, and time. If I can't marry Joan of Arc, Bucephalus, and the Moon, then my 'rights' have been horribly, horribly infringed, and I must form a victimization group promptly.
2) As I am a happily married heterosexual, I would like to have a short, immutable symbol that means 'heterosexually married in the traditional sense' so that I can communicate clearly the state of a relationship without having my language confused by practices that I can graciously tolerate through the lens of the Bill of Rights, but find better left uspoken.
5.20.2008 8:10pm
The Unbeliever:
Good point. But I don't see the anti-SSM arguing that.
Well, you didn't ask them to. You just imputed bad faith because you didn't see the argument, but this thread was about SSM, not the overall decline in marriage (an examination of which would take a much longer, much more involved discussion).
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.
Hah, there's all kinds of fun arguments we could get into whether gay men in heterosexual marriages are getting a "good" divorce, especially when children are involved. But I don't want to derail the thread; sufficient to say I don't think the difference between good divorces and bad divorces--assuming we ever manage to agree to definitions of the two--actually matters to the argument of whether SSM harms the institution of marriage.
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.
Whoa there, now you're dancing close to category error. There's a difference between a single divorce at the margin and divorce per se as a force in society. A single divorce might indicate a particular marriage failed, but it doesn't have any bearing on whether the institution as a whole is weaker or not. But although the weakness of the institution may not necessarily affect one's decision to divorce or to marry, it could at the margin; and the total effect as measured at the large scale (divorce rates and never-married rates) don't differentiate very well between the two cases.

Point being, it's hard to say divorce rates measure the rate of decline of marriage as an institution, when they might also be a cause of that decline while measuring some previously introduced factors. (No, I don't care to expand on this point, it gets complicated fast and I've wandered far enough off topic already.)
5.20.2008 8:11pm
MXE (mail):
Interesting, Randy...you're using quotation marks around "perverted," "aberration," and "immoral" in reference to people "on these threads," but the first two terms appear nowhere else but your post, and the third appears in only one other post, also in a way that's derisive toward people who've used that term in seriousness. (As for "wrong"...well, that appears all over the place, though not in the way you have in mind, AFAICT.)

The hypocritical troglodytes whose portrait you're sketching seem conspicuously absent from this discussion -- though that doesn't mean that people like that don't exist.
5.20.2008 8:13pm
Mark Field (mail):

That's also true of miscegnation laws. Everyone's treated alike; they can only marry someone of their own race.


That's not the EPC violation. Your argument here is the same one VA made in Loving, but it's wrong. The flaw is that the law tried to control the race of the spouse, just as the law here tries to control the gender of the spouse. Either way, it's not equivalent to polygamy.
5.20.2008 8:18pm
MXE (mail):
The flaw is that the law tried to control the race of the spouse, just as the law here tries to control the gender of the spouse.

The law was also apparently designed specifically to preserve White purity, which really puts the discriminatory cherry on top of the discrimination sundae.
5.20.2008 8:22pm
Oren:
This, really? If someone were worried that illegitimacy, crime, or social alienation was rising, would your response really be, "Well, at least feudal warlords aren't butchering entire cities man, woman, and child like in the bad old days. Look on the bright side"?

Well, illegitimacy and crime are also way down. Literacy is up, poverty is down. In fact, during the past few years, 100 countries grew their economies at better than 5%. The US certainly hasn't done poorly since (variously) the rise of Jazz, Rock'n'Roll, the sexual revolution, feminism, gay rights. We've seen decades of solid economic growth and yet everyone thinks the sky is falling.

Also, not to be a jackass, but that statistic has a certain unmistakable "half-baked" aroma to it. (Not that I have some big stake in it being false.) It would be really loser-y to ask for a source (ugh), but I admit I'd like to see who came up with it, and how.
Well, it depends what exactly you are asking. Lawrence Keeley, Stephen LeBlanc, Phillip Walker, and Bruce Knauft have done excellent work detailing that pre-state societies were incredibly violent (despite leftist assertions of the 'noble savage').

Fast-forward a bit to the middle ages, and we have criminologist Manuel Eisner, who has assembled hundreds of homicide estimates from Western European localities that kept records at some point between 1200 and the mid-1990s. In every country he analyzed, murder rates declined steeply—for example, from 24 homicides per 100,000 Englishmen in the fourteenth century to 0.6 per 100,000 by the early 1960s.

Fast-forward to recent times, and we have the finding that, according to political scientist Barbara Harff, between 1989 and 2005 the number of campaigns of mass killing of civilians decreased by 90 percent.
5.20.2008 8:35pm
MXE (mail):
Illegitimacy is way down? I don't know, Rutgers University doesn't seem to think so:

"The percentage of people getting married has been going down, the number of people cohabiting outside of marriage has been increasing, and the out-of-wedlock birth percentage has been skyrocketing. Between the early to mid 1990s and the early 2000s, for example, the marriage rate dropped twelve percent in Italy, 14 percent in Spain, 22 percent in Canada, 28 percent in New Zealand and 24 percent in the United States. At the same time, the non-marital cohabitation percentage (of all couples) climbed 23 percent in Italy and Australia, 53 percent in the United Kingdom, and 49 percent in the United States. The nonmarital birth rate jumped 24 percent in the United States, 48 percent in the United Kingdom, 96 percent in Italy, and a whopping 144 percent in Spain."

Link.

Violent crime in the U.S. has declined a lot since the 1980s and early 1990s, but it's still a lot higher than it was in the 1950s and 1960s -- see this graph.
5.20.2008 8:48pm
MXE (mail):
Also, thanks for the info on the various violence studies.
5.20.2008 8:49pm
Oren:
Violent crime in the U.S. has declined a lot since the 1980s and early 1990s, but it's still a lot higher than it was in the 1950s and 1960s -- see this graph.
I think that's mostly better reporting, not an actual increase in crime. At any rate, it far from cancels out the historical gains.

Also, you are right that illegitimacy is up if you (like Rutgers) strictly consider any non-marital bitch illegitimate. OTOH, my sister and her boyfriend have been together for ~10 years and have a young child -- I hardly consider him illegitimate just because they don't formally get married.
5.20.2008 8:53pm
Oren:
*bitch->birth (whoops)
5.20.2008 8:59pm
Soldats (mail):
I did mention that Marriage is the only available contract that establishes a 'next of kin' status that supersedes immediate family here: http://volokh.com/posts/1211219120.shtml#372753

Not many people seem to want to take the bait to address that.

Also, I am curious, if marital status is sufficient for the state to grant privileges to it, why can't marital status be sufficient grounds to stop a member of a 2 person marriage from marrying another without it violating an equal protection clause?
5.20.2008 9:36pm
The Unbeliever:
Also, you are right that illegitimacy is up if you (like Rutgers) strictly consider any non-marital bitch illegitimate. OTOH, my sister and her boyfriend have been together for ~10 years and have a young child -- I hardly consider him illegitimate just because they don't formally get married.
Either you're making a brilliantly subtle defense of the slippery slope argument, or unconsciously noting its triumph in the sphere of Real Life.
5.20.2008 9:37pm
Randy R. (mail):
Unbeliever: "Point being, it's hard to say divorce rates measure the rate of decline of marriage as an institution, when they might also be a cause of that decline while measuring some previously introduced factors."

Actually, we aren't too far apart on this. The issue of divorce is rather difficult and complicated. I think it's fair to say that just because the divorce rate is X, that it means that marriage is failing.

MXE: :"The hypocritical troglodytes whose portrait you're sketching seem conspicuously absent from this discussion -- though that doesn't mean that people like that don't exist."

They exist on other threads about SSM that appeared within the past week on VC. That's why I was careful to say that.
5.20.2008 10:01pm
Jagermeister:
If the exclusivity of marriage (relations with one and one only) is simply a holdover of cultural bias (when was the last time anyone was prosecuted for adultery?), the the prohibition against bigamy is an arbitrary and prejudicial restriction. Get rid of the bigamy prohibition, and you've allowed poly marriage. X can marry Y, and X can marry Z, and if Y wants to marry Z as well, when then that's fine and dandy, too. Hard to see why the state has a compelling interest in prohibiting multiple contracts. After all, if I want to buy more than one car, or work more than one job, as long as my other contracts don't forbid it, whose business is it what I do?

If people want mutiple spouses, have at it. (Just let me off the hook for their welfare payments, first).
5.20.2008 10:38pm
Angus Lander (mail):
The best argument for why gay marriage is in the "same ethical boat" as straight marriage invites us to include polygamous marriages in that same boat. It runs something as follows:

(1) It is morally permissible for A to marry B at time t if A's relationship with B at t is loving, supportive (etc.) and promises to continue to be so (and, mutatis mutandis, B's relationship with A is the same).
(2) Smith's relationship with Jones at t is loving and supportive and promises to continue to be so, and Jones's relationship with Smith is the same.
(3) Smith is a male and Jones is a male
Therefore:
(4) It is morally permissible for Smith to marry Jones at t and Smith is a male and Jones is a male. (from 1, 2 and 3)

We generally accept that (2) and (3) might both be true and so, given (1), that gay marriage is okay (i.e., (4) is true). However, there doesn't seem to be any reason to think that these propositions aren't also true:

(5) Smith's relationship with Jones at t is loving and supportive and promises to remain so, and vice versa.
(6) Smith's relationship with Alice at t is loving and supportive and promises to remain so, and vice versa.
Therefore
(7) It is morally permissible for Smith to marry Jones at t, and it is morally permissible for Smith to marry Alice at t. [from 1, 5 and 6]

Admittedly, (7) does not entail "it is morally permissible for Smith to marry Jones and Alice at t" (just like "it is morally permissible for Buridan not to bring his ass to the left barrel of hay and it is morally permissible for Buridan not to bring his ass to the right barrel of hay" does not entail "it is morally permissible for Buridan neither to bring his ass to the left barrel of hay nor to bring his ass to the right barrel of hay"), but it certainly puts a fair amount of pressure on us to accept that conclusion. Indeed, in order to resist inferring from (7) that polygamous marriages are okay we'd have to explain why it is that Smith's marrying Alice would prevent Smith from being able to have a loving, supportive relationship with Jones, and there isn't any obvious reason why it would.
5.20.2008 10:47pm
whit:
"For centuries now, conservatives have been arguing that every new innovation in society (divorce, interracial marriage, jazz, rock and roll music, rap music, short skirts, pantsuits, radio, television, the internet) is about to collapse the very fabric of civilization. At some point, we get tired of this reflexive condemnation. "

i could make an equally stupid sweeping generalization about progressives...

arguing that every new innovation in society (eugenics, euthanasia, alcohol prohibition, communism, egalitarianism, sex without consequences (free love), hallucinogenic excess, etc.) is going to improve society... at some point we get tired of this reflexive ...
5.20.2008 11:09pm
MXE (mail):
They exist on other threads about SSM that appeared within the past week on VC. That's why I was careful to say that.

Well, I suppose there was that one guy who said he was going to renounce his fealty to America in reaction to the ruling, so touche.
5.20.2008 11:10pm
whit:
"The people have voiced their opinions, and SSM is staying in MA"

you are kidding me, right?

same sex marriage has been routinely trounced in EVERY state via popular vote. that's the whole point. it has NOT won majority acceptance. that's WHY the only way it has come to fruition has been through the courts.

cmon. get yer facts before your opinion!
5.20.2008 11:13pm
whit:
"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."

the difference as is repeatedly pointed out is that RACIAL differences between people are extremely minor. people of different races do not have group attributes such as entirely different set of reproductive organs, completely difference endocrinological milieu, physical capabilities/responsibilities (child rearing), chromosomal differences, etc.

the differences between races are merely the result of people evolving in different areas of the world where different traits (dark skin, flattened noses, hirsutism) are more or less selected. they are on a COMPLETELY different QUALITATIVE level than the difference between the sexes.

the most obvious is that difference races can BREED with each other. but the ONLY way breeding happens is BETWEEN not AMONG the sexes.

and save me the "men becoming pregnant" stories.

so, to put it simply there IS a qualitative difference between interracial marriage and same sex marriage. it's not even close. you have to COMPLETELY ignore biology, physiology, endocrinology, chemistry, etc. to claim otherwise.

i support gay marriage, but it IS a complete redefinition of marriage in a way interracial marriage never was.
5.20.2008 11:24pm
Waldo (mail):
Well, since the original post was about polygamy, I suppose I'll start there. DC is right that, legally, there is a good argument that polygamy differs significantly enough from same-sex marriage to enable courts to protect the latter and prohibit the former. But I think the slippery slope lies in the fact that de facto polygamous relationships exist. With 37% of children born to unmarried parents, does anyone think that people only have children with one partner? Legislatures will increasingly provide benefits to these families in the same way that it provides benefits to children of married couples, regardless of orientation. Britain is already considering extending family benefits to polygamous Muslim immigrants, provided they were married in countries where polygamy is legal.

But this is where the CAL opinion leads to the slippery slope. California has stated that it is inherently unequal to provide the benefits of marriage without conveying the same recognition. But once states begin to extend the benefits of marriage to de facto polygamous relationships, why does the state have the right to deny the "dignity" of formal marriage to these relationships as well? After all, these families do exist, and refusing to recognize them will not make them go away.
5.20.2008 11:40pm
subpatre (mail):
Several others have demolished the remainder of the post, but
Oren writes I do think society is on the path of social progress. Simple mathematics tells us that. The fraction of humans killed by other humans has dropped in every century, including the 20th
DeLong's Economic History of the Twentieth Century, Rummel's Death by Government, and White's Historical Atlas of the 20th Century all concur that it was the most violent, bloody, and inhumane period in human history and (known) prehistory.

In the 20th century alone the sheer number of persons killed by fellow humans is more than the total of all other centuries combined.

'Social progress' indeed. Yuk, and utterly wrong.
5.20.2008 11:57pm
Randy R. (mail):
Whit: "same sex marriage has been routinely trounced in EVERY state via popular vote. that's the whole point. it has NOT won majority acceptance. that's WHY the only way it has come to fruition has been through the courts.

cmon. get yer facts before your opinion!"

Actually, it is you who must get your facts correct. There was a popular vote in Arizona and they people rejected the ban on SSM there. So no, not every state has trounced SSM via popular vote.

As for Mass, it is true that there was no actual popular vote. But if you can't get even one-quarter of your state reps to vote to take it to the people, and polls show a majority of people support SSM there, and none of these state legislators were thrown out of office, I'd say the people had quite a bit of opportunity to be heard. You may disagree on that, and state that only a popular vote is legitimate, but then, why would only a popular vote on SSM be legitimate for something like this? That's exactly why we have representative gov't.
5.21.2008 12:08am
Oren:
Either you're making a brilliantly subtle defense of the slippery slope argument, or unconsciously noting its triumph in the sphere of Real Life.
Or else I can recognize the legitimacy of living structures not contemplated by traditional society. No, that would make too much sense. . .
5.21.2008 1:32am
Oren:
In the 20th century alone the sheer number of persons killed by fellow humans is more than the total of all other centuries combined.
Yes, the "sheer number" was greater, but the population was greater. If the 20th century AD was like the 20 century BC in the proportion of humans killed, it would be 2 billion, not 100 million killed.
5.21.2008 1:34am
Oren:
i could make an equally stupid sweeping generalization about progressives... arguing that every new innovation in society (eugenics, euthanasia, alcohol prohibition, communism, egalitarianism, sex without consequences (free love), hallucinogenic excess, etc.) is going to improve society... at some point we get tired of this reflexive ...
You are right. Progressive that do not stop to evaluate the real-world impact of their policies are stupid and short-sighted.

On the other hand, you can really get any meaningful data without trying it first -- society advances very much by trial and error part. Both parts are quite necessary.
5.21.2008 1:35am
The Unbeliever:
Or else I can recognize the legitimacy of living structures not contemplated by traditional society. No, that would make too much sense...
So it's tacit admission of slippery slope then. Gotcha.

And for the record, I'm pretty sure that at some point in the last, say, 500 years of Western civilization, someone got around to contemplating out-of-wedlock kids living with both their parents under the same roof. The result of their contemplations was, well, traditional society. Claim higher enlightenment if you will, and feel free to make the case. But at least stop accusing those eeeeeeevil traditionalists of fearmongering when they point out that a certain step away from those traditions eventually leads to a result society has already deemed unfavorable.
5.21.2008 2:50am
whit:
"Actually, it is you who must get your facts correct. There was a popular vote in Arizona and they people rejected the ban on SSM there. So no, not every state has trounced SSM via popular vote. "

FALSE.

they did not reject THE BAN. SSM is already illegal in arizona

they rejected an amendment, which was REDUNDANT since the state law already bans it. passed in 1996. upheld in 2003.

they did NOT vote by majority to LEGALIZE it.

BIG difference.

so... nice try.

yer still wrong

so, i repeat. first: get facts. then, form opinion

it is a fact that arizona voters did NOT vote by majority to LEGALIZE gay marriage

sorry.
5.21.2008 3:41am
whit:
"On the other hand, you can really get any meaningful data without trying it first -- society advances very much by trial and error part. Both parts are quite necessary"

i agree oren. thats why, at least imo we need both conservatives - standing aside history yelling STOP and "progressives" who basically want to legalize any nifty new trendy idea to counterbalance each other, to an extent.

my original point is that progressives have been on the side of being FOR all sorts of TERRIBLE things. those that got discarded, don't remain.

so, it's (yet again) selection bias. the many good things they were for REMAIN so they say "look at all this good stuff we were smart enough to be for" whereas the REALLY bad stuff either got adopted then later rejected, or never got adopted at all.

imo, progressives have a far worse history but that's another topic.

and it's often impossible to know the real world impact of any radical new proposal. that's where the law of unintended consequences come in.

i think progressives have a great history of introducing solutions that are/were far worse than the original problem and having the added benefit of restricting liberty to do so.
5.21.2008 3:46am
Tracy W (mail):
I can see no logical reason why a wealthy man (or woman) who can afford to have multiple wives and households should not be allowed to have them.

Ah, the first wife gets no choice in the matter aye? she may have thought that she was marrying a guy who would be committed to her for life, but nope, if he wants to add a second wife, then there's no "logical reason" to stop him from having them. Who cares that he made vows to his first wife? She's only a woman...

Easy divorce may be unavoidable, given the costs of spousal murder by people who have no other way out. But that doesn't mean we have to make life more difficult for the original spouses who the marriage vows were made to by adding the option not merely of divorce, but of adding more spouses and making the original spouse, if they object, to be the ones who caused the divorce.

My feelings about polygamy are colored by the journals of my great-great grandfather and his father who were polygamists.

How about the journals of your great-great grandmother and her mother-in-law? Or the journals of your ancestors' first wives?

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.

Well, I can certainly assure you that my husband would not be taking on any 3rd or 4th wives. Or indeed any 2nd wives. He's mine, and mine alone, and that's the way it's going to stay. I certainly would not find being a first wife a better alternative to being the only wife. If he was stupid enough to suggest such an idea, I can assure you he would not be able to carry it out whatever the legal situation - corpses can't marry.

I'm sorry, but this sort of thinking makes steam come out my ears. The original spouse just disappears! Why is the original wife so totally ignored in this scenario?! You know, the person that the rich guy made his promises too? The bit about forsaking all others?

And we know what will happen. "Oh, the first wife can get divorced, it's no different from the guy taking a mistress or divorcing and remarrying". And then anyone who criticises polygamous marriages will be called "numberphobic", and therapists will be saying "what's so bad about him wanting a second wife? Try to be understanding of his needs." And the social pressure will disappear, like it did against divorce.

And people have the temerity to never actually mention the original wife. Yikes!
5.21.2008 5:51am
tsotha:
Oh, very well, Tracy. Are you okay with polygamy if the first wife consents to the new wife? That seems to be the basis of your unease, so let's take it off the table.

Besides, nobody said the third spouse had to be a woman.

I've been following the EPC arguments here, and I just don't buy the idea there's a substanative difference. Plural marriage fits just fine with equal or less stretching.

It doesn't really matter to me whether gays can marry or not, but this is exactly the kind of thing legislatures are supposed to decide rather than courts. The right for gays to marry has been made up out of whole cloth here, and whether or not it's good policy this is a bad way to run a republic. The slippery slope isn't just to polygamy. The real slippery slope is the complete abbrogation of legislative perogative by the courts.
5.21.2008 7:25am
David Schwartz (mail):
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?
I don't see why it matters for two reasons:

First, the original claim was that there was no equal protection argument, not that someone could make an equal protection argument and you could attempt to rebut it. Of course, once any argument is made someone will make a counter-argument. So is your position now that you can make an equal protection argument about polygamy, but then someone will be able to make a counter-argument about mutable versus immutable properties and then we have to argue about whether mutability matters for equal protection purposes?

Second, I don't think mutability matters at all. Suppose we had a law that said only registered Democrats could report crimes to the police. Would that survive an equal protection challenge because you could easily register as a Democrat?

And last, yes, I would argue that a law against marrying an underage man violates equal protection. I would subject such laws to strict scrutiny. (You can just as well argue that a law sending only criminals to prison violates equal protection, but it obviously would survive strict scrutiny.)
5.21.2008 12:38pm
Oren:
But at least stop accusing those eeeeeeevil traditionalists of fearmongering when they point out that a certain step away from those traditions eventually leads to a result society has already deemed unfavorable.
Except that you don't know that any particular policy leads to a particular result. You just assert things like "gay marriage will lead to the disintegration of the family" without any factual basis to back that up. Even worse, since you won't let one or two states try gay marriage, the question of "Does gay marriage lead to unfavorable results?" cannot even be answered in a meaningful (positivist) way.

I have no problem with avoiding the unfavorable results, I just don't believe that conservatives have a crystal ball enabling them to divine the real-world outcome of policy change in a complex system.
5.21.2008 12:52pm
MarkField (mail):
David Schwartz, the problem with your argument is that you're mixing trivial equal protection claims with serious ones. Perhaps that's partly my fault for making a blanket statement early on, but I assumed nobody thinks the trivial claims count for much.

A trivial EPC claim is one which says, in essence, the law discriminates against those who violate it. Of course it does; every law does so. A serious claim is one based on immutable characteristics of the person like race or origin, or on characteristics which, while mutable, are closely tied to a person's sense of identity like religion or gender. Polygamy raises no EPC claim of the serious kind, but I'll concede it does raise a trivial claim.
5.21.2008 12:55pm
John Howard (eggandsperm.org) (mail) (www):
Polygamy is useless to the cause of genetic engineering, as it doesn't marry the wives to each other, only to their shared husband. Only same-sex marriage is useful to the eugenicists in creating a right and obligation to attempt genetic engineering. That's why it is being pushed but polygamy isn't.
5.21.2008 12:56pm
whit:
"Polygamy raises no EPC claim of the serious kind, but I'll concede it does raise a trivial claim."

elitism noted. fwiw, in the previous sentence you mentioned religious sense of identity as NON-trivial, but polygamy as trivial. ironic much?

nobody on either side of the debate (im pro gay marriage fwiw) can seriously argue that one's choice in who they can marry is TRIVIAL, and it is clearly an essential part of one's identity

that holds whether one wants to marry one's brother, a person of another race, or a person of the same gender.
5.21.2008 1:44pm
Anon #319:
I can't quite put my finger on it, but Judge Posner wrote something about how the present-day idea of marriage is different from marriages in the bygone days. If I recall correctly, he argues that present day marriages are centered around mutual spousal companionship, whereas in the past other considerations had more importance.

I think his article and many of the ideas stated above demonstrate that marriage has been a flexible vehicle across cultures, religions, and time. Heck, even the value of children has been extremely variable within these same parameters. So, is marriage about love, sex, children, companionship, status, heirs, or money? Should anyone be forbidden from marrying anyone for these reasons? Is two women marrying for love more distasteful than a man marrying a woman for status and money?

I tend to think a heterogonous, "liberal" democracy has a limited interest in regulating marriages. If it doesn't place unwarranted burdens on society and others, then does it need to be in the practice of forbidding certain forms of marriage?
5.21.2008 2:02pm
Oren:
my original point is that progressives have been on the side of being FOR all sorts of TERRIBLE things. those that got discarded, don't remain.
I consider that an upside -- something was learned. In the course of inventing the light bulb, one of Ben Franklin's investors inquired on his progress and, after learning that no light bulb was forthcoming, concluded that Ben had failed. He replied "I haven't failed, I've found 10,000 ways that don't work."

Any progress, even terrible things that don't work, is preferable to the stagnation of those that demand the status quo.
5.21.2008 2:21pm
Aultimer:

John Howard
Only same-sex marriage is useful to the eugenicists in creating a right and obligation to attempt genetic engineering. That's why it is being pushed but polygamy isn't.

Are you sure it doesn't have anything to do with the fairly large number of people who want to participate in SSM versus the quite small number of people who want to engage in legally-recognized poly marriage?
5.21.2008 2:37pm
whit:
"I consider that an upside -- something was learned."

it's an expensive lesson when you have massive pogroms and gulags.

remember, these are the same people that were calling the soviet union a paradise.

cmon. when the learning comes at the expense of other people's lives, freedoms, etc. it's a harsh lesson.

" In the course of inventing the light bulb, one of Ben Franklin's investors inquired on his progress and, after learning that no light bulb was forthcoming, concluded that Ben had failed. He replied "I haven't failed, I've found 10,000 ways that don't work."

"Any progress, even terrible things that don't work, is preferable to the stagnation of those that demand the status quo."

right. so "terrible things that don't work" like the soviet union are PREFERABLE? to what exactly?
5.21.2008 3:13pm
Oren:
whit, the Soviet Union was indeed preferable to the incompetency of the Czarist regime. Had the revolution failed, Hitler would have done quite a bit better in operation Barbarossa.

At any rate, the fact that totalitarian Marxism is utterly discredited is worth quite a bit. IMO, if it hadn't been discredited in Russia, it would have been tried somewhere else.

Furthermore, there are the same horrible things that you've mentioned (pogroms, gulags) even in staunchly conservative states (usually during periods of reactionary rule).

Finally, I stand by my earlier assertion - had the 20th century CE had wars and murder in proportion to the 20th century BC, there would have been 2 billion killed, not 100 million. Civilization certainly makes mistakes but, on the balance, things are getting better (and getting better faster than they've ever gotten better before, especially since the 16th century).
5.21.2008 3:28pm
Mark Field (mail):

elitism noted. fwiw, in the previous sentence you mentioned religious sense of identity as NON-trivial, but polygamy as trivial. ironic much?


I previously agreed that there was a potential freedom of religion challenge to polygamy bans. Current law, though, doesn't allow for this, and my comment was predicated on that assumption.
5.21.2008 4:00pm
Tracy W (mail):
Oh, very well, Tracy. Are you okay with polygamy if the first wife consents to the new wife?

No, I'm concerned about the slippery slope aspects. Also, if a woman wants to let her husband give away their assets to another woman, or another man, that's legally doable nowadays. Why should the government legitamise that with the name of marriage?

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?

Is the only wife better off when she becomes a first wife?
5.21.2008 4:09pm
whit:
"Finally, I stand by my earlier assertion "

which i agree with btw.

"- had the 20th century CE had wars and murder in proportion to the 20th century BC,"

if you are going to use the politically correct "CE", isn't the counterpart "BCE"?

" there would have been 2 billion killed, not 100 million. Civilization certainly makes mistakes but, on the balance, things are getting better (and getting better faster than they've ever gotten better before, especially since the 16th century)."

absolutely. and if we could only erase the "progressive" nightmare of the killing fields, the soviet gulags, etc. the 20th would look much much better.

"At any rate, the fact that totalitarian Marxism is utterly discredited is worth quite a bit. IMO, if it hadn't been discredited in Russia, it would have been tried somewhere else. "

the only reason "progressives" didn't get to try a version here was that there weren't enough of them. and long after any rational student of history saw ample evidence of discreditation, the progressives held on. some STILL do.

sorry, but if you are going to compare the history of progressives to (libertarian i would hope) conservatives, your gonna have a losing battle.
5.21.2008 4:11pm
David Schwartz (mail):
A trivial EPC claim is one which says, in essence, the law discriminates against those who violate it. Of course it does; every law does so. A serious claim is one based on immutable characteristics of the person like race or origin, or on characteristics which, while mutable, are closely tied to a person's sense of identity like religion or gender. Polygamy raises no EPC claim of the serious kind, but I'll concede it does raise a trivial claim.
By this kind of reasoning, Loving was about a trivial EPC claim, since wanting to marry someone of a different race is mutable and not closely tied to your sense of identity.

I can think of no obvious way in which wanting to marry someone who is married is different from wanting to marry someone who is a different race.

There is no obvious sense in which marital status is different from race. There is no obvious sense in which wanting to marry a person of a particular race is different from wanting to marry a person with a particular marital status.

I am not saying that the EPC argument for polygamy is a slam dunk. It is just not obviously different from the EPC argument for same sex marriage or inter-racial marriage.
5.21.2008 4:11pm
whit:
"I previously agreed that there was a potential freedom of religion challenge to polygamy bans. Current law, though, doesn't allow for this, and my comment was predicated on that assumption."

my point was that neither race NOR religion is non-trivial for many many people. for others, either can be trivial.

you implied (if not outright stated) that the arguments for polygamy are "trivial" compared to the arguments for race/sexual orientation and other "immutables".

given that it's hardly clear that orientation is immutable, there are many many people who are more defined by their religion than their race or orientation. both in their self-conception and in how others perceive them.
5.21.2008 4:14pm
whit:
david, i think your argument is consistent and compelling!
5.21.2008 4:18pm
Oren:
absolutely. and if we could only erase the "progressive" nightmare of the killing fields, the soviet gulags, etc. the 20th would look much much better.
If you erase those disastrous reforms, I fear that you will erase the positive reforms (democratic governments, equality, rule of law) as well.

If I had a magic wand that discerned in advance what the proper organization for society is, I would use it. Failing that, I think the only thing we can do is study carefully and try new things to gather more data.

And yes, Progressive support for totalitarian Communism is an utter and total embarrassment -- it did continue long after it was clear that it wasn't a workable system. Modern Marxists tend to eschew Marx's political prescriptions but instead graft his socialism onto democracy -- not a political system that I support but one that I think has been shown to work (e.g. Sweden, Norway although they had the benefit of being rather wealthy going in).
5.21.2008 4:44pm
Oren:
sorry, but if you are going to compare the history of progressives to (libertarian i would hope) conservatives, your gonna have a losing battle.
"Libertarian conservatism" is (historically speaking) a progressive ideology (along with democratic sovereignty).

For the majority of history, your freedom consisted of doing want the king said and having whatever liberty him or his cronies decided you were fit for.
5.21.2008 4:46pm
Grigor:
Heinlein's line marriage has been referenced but a propos of Tony Tutins' point that
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.


this was the precise thesis of the underappreciated novel Proposition 31 by Robert Rimmer, who also wrote The Harrad Experiment. The book made a great impression on me in high school, and not just for the dirty bits. It included as an appendix the text of the eponymous proposition, an amendment to the California Constitution to allow plural marriage. Wikipedia has a bare-bones summary of the book.
5.21.2008 6:22pm
whit:

"Libertarian conservatism" is (historically speaking) a progressive ideology (along with democratic sovereignty).


and so called "progressives" of today have absolutely ZERO to do with libertarian conservatism. heck, they have nothing to do with CLASSICAL liberalism either.

yes, libertarian used to be a progressive ideology. it still is in the NON-political sense of the word progressive. but clearly that's not what we are talking about here.

iow, it's word games. we both know who progressives are. read The Nation or Mother Jones. neither could EVER be confused with libertarian conservatism here, so get real
5.22.2008 6:53am
Tracy W (mail):
I can think of no obvious way in which wanting to marry someone who is married is different from wanting to marry someone who is a different race.


May I point out that the person who is married is, within the standard meaning of the term, someone who is already committed to a third person?

Someone who is single but of a different race is different from a person who is married. The single person of a different race has not made any promise of exclusivity to a living third person, or, given divorce, this promise has been broken.

This thread has got me thinking that perhaps we need to come up with a new word for polygamous marriages, as they are fundamentally different from what is meant by the traditional English word. For me, being married is about making an exclusive commitment to each other. That's what my husband and I agreed on when we got married. There's no place in my conception of marriage for sharing him with another woman or another man. He's mine. When we climbed down from the mountain through the storm, he was with me and I was with him and our first commitment was to each other. Yep, I did dig another woman out of a snowdrift, but if I had had to make a choice between helping her and helping him, I'd have helped him. That can be true regardless of what our race is, or our combination of genders, but it can't be true if there are three people or more in the "marriage".
5.22.2008 7:39am