Left, right, and betwixt on gay marriage and polygamy:
On the heels of the recent judicial losses for same-sex marriage litigants, a group of academics and activists issued a manifesto entitled "Beyond Marriage" that basically repeats the things they've been saying for decades about family policy: Gay marriage is not their cause because they really don't much like marriage at all. Marriage should not be special in any way. Marriages should be treated legally the same as any arrangement any group of people want to live in.
Seizing on this, Princeton professor and gay-marriage opponent Robert George praised their "intellectual honesty and logical consistency" and replied, in effect: "Aha! This proves we were right all along! Gay marriage will lead to polygamy and gay-marriage supporters have no serious answer on the subject." For him, gay marriage is just part of the movement for "multiple sex partners."
Jon Rauch has some replies for George here. (Update: If that link to Rauch's reply doesn't work, go to www.indegayforum.com and look for "Not So Fast, Mr. George" under the "CultureWatch" column on the right.)
George vs. Rauch on polygamy (Round 2):
Two weeks ago, I posted about an exchange between Professor Robert George and Jon Rauch on gay marriage and polygamy. The exchange between them was prompted by a recent document signed by hundreds of progressive academics and activists calling for health care and jobs for all, universal peace, an end to hunger, and the equal recognition of all relations among sentient creatures. George took this rather stale manifesto as fresh proof that gay marriage will lead to polygamy; Rauch disagreed. Since then, George and Rauch have had another go at it. You can read George's latest on the topic here and Rauch's latest here. Some of the exchange now consists of debaterish points about who-really-said-what, but there is still much of interest in it.
Since George mentions a column of mine in his latest response to Rauch, I'll say a little in response to him here. George, a prominent natural-law theorist and one of the best public speakers I've seen, understands the radical argument for gay marriage. It claims, as he notes, that "love makes a family" and that making any legal distinctions among people who love each other is unjustified. The love-makes-a-family ideology — which also marches behind the more individualistic "families of choice" banner — does indeed entail the recognition of many forms of relationships, including same-sex couples and polygamous/polyamorous groups, since all may love each other. George concludes that this love-makes-a-family premise "is central to any principled argument" for same-sex marriage.
George thus mistakes the most open-ended argument for gay marriage as the one necessary argument for gay marriage. This is a debater's ploy. One could do the same thing arguing against almost any position. For example, I could say that support for restrictions on abortion will lead to restrictions on the use of contraceptives and to the prohibition of abortion even in cases of rape or threat to the mother's life. After all, that is what many abortion opponents have said publicly and the logic of their opposition to abortion (that human sex is for reproduction) must necessarily be attributed to the whole anti-abortion cause. It is, we might say, "central to any principled argument" against abortion.
So while George understands the most open-ended argument for gay marriage — the "radical" one, as he and Rauch refer to it — it does not appear that he has taken the time to understand more careful and restrained arguments for gay marriage, like those advanced by Rauch himself. (George acknowledges not having read Rauch's excellent short book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.). I have tried, much less elegantly than Rauch, to make a similar limited and cautious case for gay marriage on traditionalist grounds. There are many, many others who have done so as well, going back to Andrew Sullivan's pathbreaking article for The New Republic almost two decades ago making a conservative case for gay marriage. I won't repeat the substance of these arguments here, but suffice it to say they do not easily lend themselves to support for polygamy; they certainly involve more than saying simply, "love makes a family."
I adduce these examples not because I think George will be persuaded by them; I am sure he will not be. He is the kind of writer who cannot even bring himself to type the words "same sex" and "marriage" together without scare quotes. I give these examples because he must know that the radical case for gay marriage is not the only one, or the necessary one.
George complains that Rauch, I, and others have not made what he calls "principled" arguments about why the recognition of same-sex marriages does not entail the recognition of polygamous ones. Instead, we have made what he calls "pragmatic" and "prudential" arguments, emphasizing differences between SSM and polygamy in terms of their respective histories, expected effects on society and marriage, and predicted benefits to the people involved. Notably, George doesn't say that these prudential arguments are wrong; he even concedes that some of them are "strong." In the sense that I think George means "principled" he's probably right that we haven't made principled arguments against polygamy; but his sense of principle is a very specialized one coming from a modern strain of natural-law argument.
When you read modern natural-law writings, you find that by "principle" in the context of the debate over marriage, something like this is meant: "Marriage must be between a man and a woman because only they can procreate; as for sterile male-female couples, they are included because they can have sex of a reproductive kind." Sex "of a reproductive kind" is sex that involves a penis and a vagina, even if it can produce no more babies than could a male and a male or a female and a female. (The argument is longer than this, of course.) The conclusion of the argument is embedded in the "principle" and then offered as if it's an argument.
In his scholarship, George has asserted that male-female marriage (and no other kind) is a good in itself; it is not a good because it is instrumental to the attainment of other goods, like pleasure, expressing feelings, or even procreation. In an article co-authored with Gerard V. Bradley, George has written that male-female marriage, and only male-female marriage, has an "intrinsic value" that "cannot, strictly speaking, be demonstrated." "Hence, if the intrinsic value of marriage . . . is to be affirmed, it must be grasped in noninferential acts of understanding." George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301(1995). This "noninferential understanding" that "cannot be demonstrated" is unavailable to some people, argue modern natural-law theorists. Bradley adds that, "In the end, one either understands that spousal genital intercourse has a special significance as instantiating a basic, non-instrumental value, or something blocks that understanding and one does not perceive correctly." Gerard V. Bradley, Same-Sex Marriage: Our Final Answer?, 14 Notre Dame J. L. Ethics & Pub. Pol'y 729, 749 (2000).
This amounts to saying: "Same-sex marriage is not 'marriage' because only male-female marriage can be 'marriage.' Trust me." The modern natural-law argument against same-sex marriage at bottom thus appears to rest on revelation of some pre-cognition reality to the initiate and only to the initiate. This seems to me very close to saying that marriage just is the union of one man and one woman and cannot, no matter the arguments, be defined any other way. Same-sex marriage is always same-sex "marriage." Thus, for George as for other natural-law writers, every attempt to expand marriage beyond their "principle" is mere pragmatism and prudence, and as George puts it, "lets the cat out of the bag."
But advocates of a logical slide to polygamy need to show the necessary "principle" uniting the causes of same-sex marriage and other unions, like polygamous ones. Yes, you can imagine such a principle ("love makes a family") and even find support for it in slogans and in the writings of some academics and activists who say they favor gay marriage but also favor many other reforms. The manifesto that has George so excited actually says very little about polygamy (I missed the one oblique reference on a first read), but prominently calls for an end to "militarism," and repeatedly for a wide range of government social-welfare measures. Must gay marriage advocates who didn't sign the manifesto produce position papers and principles against state-controlled universal health care, too? Same-sex marriage is no more necessarily tied to polygamy than it is to all of these other proposals.
And when it comes to crafting public policy, why don't pragmatic and prudential considerations count as serious arguments? If same-sex marriage will benefit the individuals involved, any children they're raising, and their communities, all without plausibly harming marriage or any existing marriages, does this not matter as against a claim that a conclusory principle stands in the way? All of these claims are contested, of course, but the point is that we should be debating them.
And if polygamous/polyamorous marriage raises a host of different questions about harm, practical administration, and about historical experience, none of which depend necessarily on how we've resolved the debate about gay marriage, why must gay-marriage advocates definitively address it?
The way we frame the debate about gay marriage matters not just for the ultimate outcome, but for the shape and attributes of that outcome. Those of us who have been making a conservative case for gay marriage do so, fundamentally, because we believe in marriage. We do not want to see it harmed and we do not think that this reform means every proposed reform of marriage, including potentially harmful ones, must be accepted. Ironically, George and the Gang of 300 manifesto-writers agree that gay marriage means anything goes. I don't expect that George will hold to that position when gay marriage is actually recognized (indeed, he'll strongly resist the supposed slippery slope to polygamy then), but the damage he is doing now by making a tactical alliance with them and arguing the line cannot be held will not have been helpful.
UPDATE: Maggie Gallagher has now added her views to this discussion, in a post at Marriagedebate. I have significant disagreements with Maggie about gay marriage and how radical a change it would be, see here, and therefore with some of the points she makes now. I also think she overstates the influence of the manifesto writers on actual national family policy. They have an entire agenda on family law (not just gay marriage), and a host of other matters, but I see very little constituency for many of the changes they advocate and very little legislative or judicial movement in their direction. The forgotten causes of academics and activists fill whole graveyards of ideas.
However, I am pleased to have Maggie acknowledge that if procreation is the principle that keeps us from SSM it is not a very good principle for keeping us from polygamy. Oddly, the constant emphasis of some gay marriage opponents on procreation as the be-all-and-end-all of marriage opens the door to arguments for polygamy. It is this reductionist opposition to gay marriage that risks the logical slippery slope.
Some practical differences between same-sex and multiple-partner marriages:
David Link, an attorney who has worked in the California legislature for eight years and has written for Reason and the L.A. Times, has followed the recent exchange among Professor Robert George, Jon Rauch, Maggie Gallagher, and me over gay marriage and polygamy. He has emailed me his thoughts on some practical differences between recognizing dyadic same-sex marriages and recognizing polygamous/polyamorous marriages.
Multiple partner marriages, he argues, would raise many issues simply not present in gay marriages:
Some recent events related to polygamy have brought the slippery slope argument back into prominence for gay marriage advocates. See reactions to Robert George here. The argument has, as a premise, that same-sex marriage is enough like polygamy that legislatures or courts could not distinguish them; if the first is approved, the second would likely follow. In Professor George's words, there is no "principled" or "serious" argument that could accept same-sex marriage but not polygamy.
But there are differences between same-sex marriage and polygamy that would make it perfectly sensible for society -- whether acting through a legislature, a vote of the people, or a court — to draw a line that includes same-sex marriage, but excludes polygamy.
The key difference can be found by asking a fairly simple question that gets very little focus in the current debate: in a polygamous marriage, who is married to whom?
Since polygamy is illegal in America, we seldom have reason to think about such an obvious question. But it's at the heart of the reason some of us would be perfectly comfortable saying that polygamy is so different from same-sex marriage that the one could fit into our understanding of marriage, while the other does not.
The difference comes down to arithmetic. Same-sex marriages have the same dyadic structure that all heterosexual marriages now have. Each partner is married to the other, and only to the other. Their rights and obligations to one another, to any children they may have, and to any third parties who might have some interest in the relationship, such as banks, creditors, parties to contracts, etc., are usually quite clear.
That's not true with polygamy.
In the dominant form of polygamy, where one man is married to several wives, he is, in some way, "married" to each one of the wives individually. But the exact boundaries of such relationships are unclear, and we have no modern experience to know how far they might extend.
But what about the relationships of the wives to one another? Are they similarly "married" to all the other wives in the marriage? Specifically, as a matter of public policy, are they legally married to one another the way a husband and wife are under current marriage law?
Stay with that question. If the answer is "yes," then if the husband died, would the wives continue to be married to each other? Why or why not? For those who find same-sex marriage objectionable, why wouldn't those relationships among the wives be same-sex marriages? In ancient cultures where women may have had fewer rights than men, such questions might never have come up. But they would be inevitable in today's world if polygamy were to be seriously debated.
And every question like these leads to others. Assume the husband is alive, but relationships with him sour. Could some or all of the wives divorce the husband, but continue to be married to one another? Could they divorce one another? Again, why or why not? And if the answer is "yes," how would that work? Who files what papers, naming whom? Would the various partners choose up sides in the ensuing divorce proceedings, and how would a court deal with that?
Another question related to divorce: Could an individual wife file for divorce of only herself, or would a divorce petition dissolve the entire marriage? What about if it's the husband who wants a divorce? Should the rule for him be different than the rule for the women -- i.e. could his successful petition for divorce dissolve the entire marriage, while a wife's successful petition only removed her from the marriage? Or consider the situation where one woman is married to several husbands -- or where several women are married to several husbands. Again, who would be able to divorce whom, and why? How would such actions affect other spouses?
And -- central to the present debate — what about the children? If the husband -- or one of the wives -- wanted out of a polygamous marriage, what would the rules be for who gets custody of the children -- and who is responsible for child support? Do the other wives have a claim to custody, along with their husband? What about child support payments? All the wives would almost certainly have some long-term relationship with children of each of them. Would it be good for the children to cut off those relationships because one wife wanted out of the marriage?
The questions related to divorce illustrate only the legal and policy problems within the marriage. But what about the critical question of how outside parties would be affected by polygamous marriages -- no small thing in the modern world. There are clear rules when a contractor signs up to remodel a married couple's kitchen about the couple's legal responsibility for payment. But what about a contractor remodeling a polygamous family's kitchen? If, as in "Big Love," each wife has her own house, and the one who gets the remodel can't or doesn't pay, can the contractor go after a wife with sounder finances? Again, why or why not?
The fact that we do not know the answers to these questions -- and thousands of others -- is at the core of why polygamy is dramatically different, as a matter of public policy, from same-sex marriage.
If anyone wants to argue in favor of polygamy -- and for the present such advocates still remain either imaginary or well out of the political mainstream -- they will have a lot more questions to answer than advocates for same-sex marriage do. That is because of a very simple reason. Same-sex marriage has the arithmetic on its side. It is mutual, binary, and fully capable of being subject of all existing laws related to marriage.
Polygamy would require a genuine rethinking of marriage. And its multiplicity truly does have the capacity to undermine marriage: psychologically, culturally and legally. In fact, polygamy offers exactly the kind of concrete danger to marriage as we know it that same-sex marriage opponents have only been able to insinuate. This difference between same-sex marriage and polygamy can serve as at least one sound basis to argue that same-sex marriage is consistent with marriage as we understand it in today's world, but polygamous marriage is not.
These issues could be addressed, special rules worked out to accommodate the many differences between dyadic and multiple-partner marriages, etc. But they are large and numerous enough to suggest that the slope is a lot more sticky than some people suppose.
UPDATE: A number of commenters have suggested that the problems David Link points to have been addressed in one way or another by societies that have practiced polygamy for thousands of years — and thus the problems are not insuperable. "Polygamy has been quite common in Islamic societies," notes one commenter, and surely we can learn from them. But this only exposes a much larger problem that separates the recognition of same-sex marriage from the recognition of polygamous marriage: sex equality. Marriage in the West has evolved over the past 150 years or so into an equal partnership, where both man and woman have more or less equal rights and responsibilities. The legal distinctions between men and women in marriage have been largely erased. In the traditionalist, pre-modern societies where polygamy flourished this norm of sex equality was simply not present. Gay marriage, by contrast, is fully consistent with our commitment to sex equality. In fact, it is partly an outgrowth of that commitment.
Making polygamy (and multiple-partner marriage generally) work in a modern society where sex-equality norms are strong would not be a simple matter of transferring the legal rules from these other, earlier societies to ours. It would require a great deal of adjustment, both to our marriage practices and to the historical practice of polygamy. Again, the point is not that these adjustments could not be made — with a whole lot of effort they could be, at some cost. The point is that having to make them separates the issue from dyadic same-sex marriage in a way that makes either the logical or political/ideological slide seem unlikely.
The practical issues Link raises are not the only reason there's no slippery slope from gay marriage to multiple-partner marriage, as I have written previously here and here, and Eugene has discussed in a very thorough law review article on the subject, but they are a part of it.
More responses to Professor George on the slippery slope to polygamy:
Two more response are now available to Professor Robert George's argument that there is no objection to polygamy "as a matter of principle" once gay marriage is accepted. Philosophy professor John Corvino writes:
The issue is whether being a gay-rights advocate inherently "entails abandoning any principled basis for understanding marriage as the union of two and only two persons," as George puts it. And the answer to that question is obviously "no." [Jonathan] Rauch is a clear counterexample: he's a gay-rights advocate who adduces general moral principles to oppose polygamy.
Why does George claim otherwise? The answer has to do with his confusion about what it means to have a "principled" objection to something. More specifically, he confuses having "a principled objection" with having "an objection in principle." The difference is subtle but important. To have a principled objection is to base one's opposition on principles (rather than simply to assert it arbitrarily). Rauch surely does this.
By contrast, to have an "objection in principle" is to object to a thing in itself, not on the basis of any extrinsic reason. Rauch doesn't object to polygamy "in principle"; he objects to it for being harmful, and if it weren't harmful he presumably wouldn't object to it.
This distinction is important, because once one moves from "no objection in principle" to "no principled objection," it's a short slide to "no serious objection"—and thus a bad misrepresentation of the position of mainstream gay-rights advocates.
So, to be clear: Rauch, Carpenter, Varnell, and others have a principled objection to polygamy, but not an objection in principle. But here's the kicker: neither does George. For George's natural-law position is based on the requirement that sex be "of the procreative kind." And polygamy is very much of the procreative kind. Even if one accepts George's nebulous "two-in-one-flesh union" requirement—which somehow allows  sterile heterosexual couples to have sex but prohibits homosexual couples from doing so—nothing in that requirement precludes multiple iterations (and thus polygamy). If George wants to argue that polygamy is wrong, he's going to have to appeal to the same sort of extrinsic principles that Rauch invokes. Either that, or he's going to have to just baldly assert that marriage is two-person, period. If such ad hoc assertions don't count as abandoning "principled" argument, I'm not sure what does.
Paul Varnell also disputes George:
In a co-authored article with one Gerard Bradley, George states that male-female marriage has an "intrinsic value" that "cannot, strictly speaking, be demonstrated" and that "if the intrinsic value of (opposite sex) marriage ... is to be affirmed it has to be grasped in noninferential acts of understanding."
That is about as close to acknowledging defeat as you can get without explicitly saying so. What if George Wallace had said that the superiority of the white race could not be demonstrated but could be "grasped in noninferential acts of understanding"? Certainly there was a sizable constituency for just such a view, but undemonstrable "noninferential acts of understanding" are a poor basis for creating public policy in a secular civil society.
Then too, Robert George and his colleagues have never explained very well what it is about their own requirement of a male-female polarity for marriage that excludes polygamy. It is hard not to suspect that George keeps harping on polygamy as an imagined consequence of same-sex marriage to distract attention from the far more obvious opening to polygamy his own principle entails.