The complications of polygamy:

A common argument against the recognition of same-sex marriages is that it will head us down a slippery slope to polygamy. I think this argument is wrong as a matter of principle and as a matter of politics, for reasons I've explained here before.

But whatever you think of gay marriage, one distinction between recognizing gay marriages and recognizing polygamous marriages should be clear. Recognizing gay marriages will involve primarily technical and word changes to existing marriage laws. For example, sex-specific references in statutes to "male" and "female" or to "husband" and "wife" would need to be changed to account for the fact that same-sex marriages are now legal. This itself will greatly trouble many people who believe something significant is lost in the elimination of that statutory language, but as a matter of draftsmanship it's not troubling. A couple of fairly minor substantive issues will have to be addressed as well (e.g., what do we do about the presumption of paternity in the case of a same-sex marriage?). Gay marriage will be an important change in policy. But it will not be all that big a change in statutory law itself because marriage will remain dyadic and existing rules presume a dyad. Massachusetts nicely illustrates the comparative ease with which the legal change can be made; literally nothing has had to change in state marriage law except that same-sex partners may now marry.

Contrast that with polygamy. Recognizing multiple-partner marriages would not only represent a big change in marriage policy, but as this post nicely explains in more detail, it would involve a very significant rewriting of marriage-related statutes. We could not simply say, "OK, now you may marry as many partners as you like," without having to give a great deal of forethought to how this change will affect the existing statutory attributes of marriage. The issues will not simply be technical or a matter of draftsmanship. Existing rules for property, inheritance, child custody, health-care decisions, financial responsibilities and rights, and divorce, will all have to be adjusted -- and in some cases adjusted dramatically -- to account for the presence of multiple stakeholders and decisionmakers. That's just a short and very general list. None of these policy complications apply to the recognition of dyadic same-sex marriages.

We could address all of these technical and substantive issues if we thought recognizing polygamous unions was, on balance, a good idea. But the fact that we'll have to address them, and might have to change some of the rules even for dyadic marriages as a consequence, must be counted as a significant cost against polygamy. By contrast, there's no analogous cost to recognizing same-sex marriages. And what's more noteworthy for the slippery-slope argument is how little of our extensive reconsideration of marriage rules would depend on whether we first recognized same-sex marriages.

Robert Schwartz (mail):
Whistling past graveyards.
4.2.2006 4:58pm
great unknown (mail):
Finally, a cogent presentation of the realpolitik argument against polygamy. I could never understand any of the "ethical" or "religious" arguments - the latter particularly because the majority of religions of the world allow polygamy, either currently or in their original form.
4.2.2006 5:02pm
Cornellian (mail):
I wonder what the legal relationship is between two wives of the same husband in jurisdictions where polygamy is legal. Are they complete strangers as far as the law is concerned or do they have some rights and obligations vis a vis each other? Does this continue only so long as the husband is alive? Is there a word for their relationship?
4.2.2006 5:06pm
Han Solo:

Interesting, you have me thinking about this.

If same-sex marriage is approved, all SORTS of assumed stuff about paternity, and custody etc will have to be re-evaluated.

This could even lead to a signifigant boosting of "fathers" rights, in that maybe the law will finally recognize both parents as having equal rights and stop treating mothers rights as special.

After all, if you have to daddies or two mommies, how do you decide which one has more rights?

Also, this re-examination of mothers having unequal rights, could even lead to a horror of the feminists of men having as much say over a fetus as a woman.
4.2.2006 5:10pm
BruceM (mail) (www):
A slippery slope to liberty and personal freedom is not a bad thing, nor is it really a "slippery slope" to begin with. Consenting adults should be able to marry whomever they desire, regardless of sex or numerosity. And yes, to satisfy Rick Santorum, if dogs, sheep, and goats could consent then they should be able to marry people too. It should be a simple matter of contract law that the government has no business in other than maintaining courts to hear contract disputes. I do of course believe there is an age of consent, for whatever that's worth.
4.2.2006 5:23pm
dafydd (mail):
So, let's think outside the box, a little. Rather than re-write current laws/codes to accomodate group marriage, let's just write a new section of the code to cover the topic. We could use statements like:
For the porposes of group marriage, section 123.4567 of the Elbonian Civil code, regarding ownership of property, can apply to group marriage either as joint tenancy or tenancy in common, as specified in the contract of the relevant group marriage.

This way, existing code doesn't need to be rewritten in situ, as it were. Instead, variations are noted (encoded?) in a new section of code, with references back to the relevant original sections.
4.2.2006 5:25pm
Han - I don't see your point. If a kid has two daddies or two mommies, the judge decides which parent should get custody based on the same standard we use today: the best interests of the child. There's no legal presumption that one partner is more or less fit than the other by virtue of their sex, so nothing changes when the parents are the same sex. Men's rights advocates argue that in the system discriminates in favor of mothers, and feminists argue that in practice the system discriminates in favor of fathers [1], but the legal standard is still the same no matter what the sexes are.

[1] Feminists base their claim on the fact that men win custody more often when custody is contested; men's rights advocates counter that most divorce settlements give custody to the mother, arguing that because the system is biased men don't even constest custody unless they have an unusually strong case.
4.2.2006 5:31pm
Roger Schlafly (www):
SLS 1L: No judge really decides child custody based on the best interests of the child, because there is no consensus about what those interests are or how they might be evaluated. It is just a charade to excuse the judge's own personal prejudices, and the judges usually favor mother custody.

You also misstate the custody arguments. Feminist organizations like NOW are very much against equal custody for moms and dads.
4.2.2006 6:44pm
msk (mail):
Lots of state laws need rewording already because they were drafted with a slightly too-rosy view of human nature. The original post here mentioned property, inheritance, and health care decisions, among others.

E.g., some state laws are written as if there are no murderously impatient heirs or thieving executors.

Megabucks life insurance policies (supposedly basic strategies to avoid taxes) are catching on in a way that gives millions of kin unprecedented motive to cash-in a relative. Obviously a "no tomorrow" vision of economic stability and human nature which we might want to come to grips with soon.

The more ways you can create "next of kin" status, the more ways the ultimate betrayal could play out.

As the financial world dramatically changes, apparently creating lottery tickets with guaranteed payouts, we don't want every discussion of future lawmaking to stall over gender biases.

Mention "sex" or "child custody," and many debaters stop thinking and start emoting.

Disputes over the financial aspects of partnerships -- with spouses, descendents, parents, siblings, or friends -- may show some issues in clearer light.

Love and loyalty exist regardless of law, so the search for legally powerful status must be more connected to tangible benefits, often more practical than romantic or philosophical. We all need to be practical, but ...

Is there a common problem to be solved that would best be addressed by more "spouse comes first" rules? "But I need it to be automatic that I inherit if he dies without writing a will!" Sorry, but worst cases and cynical humor may offer frameworks for debate too.
4.2.2006 8:14pm
Marcus1 (mail) (www):
I like the Jonathan Rauch argument.

One of the strongest arguments against gay marriage, I think, is that it's not a matter of what the state allows, but what the state is going to promote. Gays can currently have a marriage ceremony at their church or in their home, and the cops aren't going to stop them. If the cops did, that would be a clear violation of fundamental rights.

But does the government have the obligation to promote something that the majority of people don't think is worth promoting? I think it's a serious question. In truth, I come out mixed -- I'm very pro gay marriage, but I don't know that it should be considered Constitutionally mandated.

In any case, as Rauch points out, there are much stronger reasons why the government wouldn't want to promote polygamy, whether or not people should be allowed to choose such a living arrangement. Essentially, one man/five women or one woman/five men simply makes for bad social policy. Its un-egalitarian, and would create social problems, and just isn't something we want to promote, for perfectly valid secular reasons.

Thus, I think that the best argument against gay marriage, or at least against a constitutional right to gay marriage, is much stronger against polygamy. The idea that allowing gay marriage will promote homosexuality is pretty silly. And since the alternative to gay marriage is simply gay promiscuity, the secular policy arguments against gay marriage just doesn't make any sense. The alternative to polygamy, however, is presumably monogamous marriages, which I think there are strong secular reasons for promoting.

Thus, we could decide that policy arguments against gay marriage are so weak that there is no rational relationship, or alternatively, no compelling purpose, to discriminating against gays. The arguments against polygamy, on the other hand, are much stronger. It may be the strongest distinction I've seen yet.
4.2.2006 8:39pm
Jacob (mail):
Han, SLS, and Roger- I think Dale's point wasn't that nothing would need to be reevaluated, but that what's reeavluated wouldn't be statutes. To the extent that gender-based (as well as most other) legal presumptions exist in a lot of these family law matters, they're common law/traditional practice stuff. Widespread adoption of same-sex marriage might have a great impact on these issues, but not the underlying statutes. This is significantly different from polygamy, which would require overhall of the statutes (or adoption of many an add-on section like dafydd's).
4.2.2006 8:43pm
Weasel II:
Here we are on a great libertarian blog and the reaction against polygamy is centered on statutory changes?

First, fixing the statutes would not be very difficult. Create a set of default rules that can be contracted around subject to Constitutional protections. It's not like we don't have the great examples of corporate and partnership laws to draw on. Second and more importantly, why no love for endogenous, privately ordered societies?
4.2.2006 9:12pm
Brian B:
Simply because the statutes that need to be assesed and changed/potentially changed is not even close to a legitimate legal reason for opposing polygamy. We have experienced numerous changes in our societal norms throughout the past 2+ centuries and have never used this as a standard. Polygamy will rise (or remain fallen) on the basis of its acceptance by the majority of American people. The gay rights groups have played their cards right during the past 20 years and many more Americans are ready to live with same sex marriage. To me, polygamy is nowhere near that point (yet?). It is interesting the reaction polygamy brings about.
4.2.2006 9:15pm
Bruce Hayden (mail) (www):
Maybe I am arguing in the wrong thread, but the slippery slope problem that I see is that SSM is not being implemented through the legislative process, where it invariably loses, but through the court systems. And, there, all the practical reasons given in that cited article on the logistical problems with plural marriages are IMHO irrelevant. What is important is the legal reasoning behind the court cases, and how easy it would be to piggy back on that legal reasoning for plural marriages. And, plural marriages have the advantage of being closer to the traditional concept of the purpose of marriage - child rearing, plus, they have a significantly much better pedigree historically - there are far more people even now in this world in plural marriages than in single sex marriages.

I still see that someone could make a viable argument that the concentration on child rearing and having both a male and a female in a marriage is more important to the definition of marriage than the number two. What is so magic about the number two in marriages? Traditionally, it has been more important to have at least one male and at least one female than that there be precisely two people.
4.2.2006 9:24pm
Tom952 (mail):
What is the legal distinction between marriage and civil union?

Since marriage is wrapped up in religion, why not let the churches deal with the gay marriage issue, and politically focus on civil union for gays? Some churches will be willing to give married status to gay couples, some will not. However, civil unions would afford all couples the same legal rights under the law.

By challenging the traditional religious link to the institution of marriage, the polical gay marriage movement assaults a formidable barrier that a) is not really necessary, and b) that politicians and judges may be reluctant to undermine.
4.2.2006 9:33pm
Tom-----Why you ask. From my reading of radical gay/lesbian and feminest thought (which I believe is the real force behind gay marriage) the reason is that they want acceptance of their lifestyle not just tolerance. They think this will get them legitimized and accepted. It won't. If it is forced by the courts it will just be another big social issue that will never be accepted like abortion. Plus these movers and shakers really do hate the way society has been ordered and by gosh they plan on changing that no matter what. It will fail. The number of gays that really want marriage is small. Have you ever seen any MSM report on the gays that do not want legalized gay marriage. Of coarse not. But I know many. Why do we not hear their voices? Most gays are not out marching in gay pride marches either. Most are like most people and really want to be left alone.
4.2.2006 11:03pm
You Know Who:
Wouldn't some aspects of same sex marriage support polygamy (in ways that traditional marriage would not)? For example, in the case of one man marrying multiple women, wouldn't same sex marriage allow unique pairs of "wives" to marry each other and to secure the benefits of marriage? Seems like a clever (if imperfect) idea if polygamists want to keep resources in the family. A related but different point: Wouldn't same sex marriage allow two heterosexual females (or males) to marry and to transfer assets to each other?

I am nominally sympathetic to same sex marriage for gays but I really want nothing to do with other types of same sex marriage. Is there a test of sexual orientation that could be used to prohibit two heterosexual females (in monogamous relationships or in a polygamous relationship like the one described above) from getting married?
4.2.2006 11:28pm
A.W. (mail):
I don't think that the best argument against gay marriage is it will lead to polygamous marriage, but at the same time, you can't really pretend it won't have that result. Its one thing on interracial marriage. There was a constitutional amendment specifically written on the subject of racial discrimination. Therefore you could argue that federal interferance on this issue would only extend to that issue. Those same draftsmen didn't have any trouble with anti-gay discrimination and were solidly against polygamy (Owen Lovejoy, for instance, referred to both slavery and polygamy as "twin pillars of barbarism"). But the reality is once you say "moral condemnation of the union is not sufficient reason to ban it" then there really is no good argument against polygamy.

I find efforts to write into our constitution a libertarian philosophy overwhelmingly lame. The libertarian view of the constitution can always be summed up so succinctly: "Consenting, competant adults may do whatever they want to each other, so long as no unconsenting, incompetant or non-adult person is harmed." Which begs the question... if it is so easy to write it down, why didn't the framers do exactly that? Why did they beat around the bush? Why did they leave it in the shadows (a.k.a. prenumbras) instead of simply writing it down?

Indeed, i have challenged advocates of that theory several times to find even one statement of that philosophy among any of the framers, or even of the major philosophical thinkers of the time. So far, no one has succeeded. Those wanting to read the 1st Amendment as having a strict ban on any religious expression by the government can at least point to Jefferson's famous "wall of separation" letter. But the vaporous "right to self-autonomy" crowd can't come up with diddly squat.
4.2.2006 11:40pm
Dave G:
The idea that there will be a slippery slope from gay marriage to polygamy overlooks some fairly basic points of class, group dynamics, and marketing. Over the last thirty years, gays have managed to drastically change how they are viewed by large stretches of the middle and upper classes. They've gone from "weird and possibly dangerous bohemians downtown" to "that nice, affluent couple down the block with the tasteful art and the well-behaved dogs". The campaign has been brilliantly and courageously executed, and has achieved results scarcely imaginable forty years ago. Given a couple more decades it would almost certainly result in legislative recognition of gay marriage (and gay military service, for that matter). The attempt at a judicial short-circuit of this process seems to me to be a grave mistake, but it might just work. That so much has been accomplished even in the teeth of a vicious plague makes me uninclined to bet against.

Polygamists, on the other hand, are pretty much stuck at "uneducated but zealous rural white dole recipients" as their public image, which just doesn't seem likely to win much sympathy with the voters. Even attempting a judicial run-around would almost certainly create enough popular backlash to fuel necessary constitutional amendments.

Finally, there's a question of scale. There are somewhere between one and two million children with gay parents currently in the US. At those numbers, legal accomodations will be made to ensure the security of their upbringing. Children of polygamists, on the other hand, are a small enough problem to be safely handled by child protective services.
4.2.2006 11:47pm
I think the necessary statutory changes is reflective of an inherent structural problem with "group marriages". Basically, more people in a "marriage" means more potential internal conflicts among members of the group, including with respect to the dynamics relationship itself. Resolving these conflicts ends up requiring structure, usually of a hierarchical nature. In other words, a simple, equal partnership between the members of the group becomes harder and harder to sustain in the face of internal conflicts, and so people are assigned positions of greater and lesser authority as a way to manage conflicts.

Of course, none of this is particular to marriages--all groups (clubs, businesses, governing bodies, etc.) tend to require structure in this way, regardless of their purpose. But I think it is fair to ask whether whatever net social benefit we see arising out of two-person marriages will also arise out of "group" marriages in light of this need for additional structure. Indeed, one might think about exactly how the legal system would interact with the necessary internal structure of "group" marriages. Would we, for example, want to legally recognize the greater authority of those with higher hierarchical positions?

I should note that I don't think any of this necessarily rules out legally-recognized "group marriages." But it seems obvious to me that the substantive structural issues are quite different and more complicated when one shifts the issue from gay marriages to group marriages, and in that sense the statutory issues Dale notes are just a symptom of these inherent structural differences.
4.3.2006 12:04am
Randy R. (mail):
Therut: Lots of mainstream gays want marriage, not just the radical gays. And as for acceptance of our lifestyle, I really don't know what you mean. I'm gay and quite open about it, and no one really has a problem with it. I suppose those that do are not my friends or collegues, so perhaps its self-selective.

What I really want, though, is for no gay kid to have to go through what I went through, and most of my friends. We were picked on, beaten up, made fun of, kicked around, and had pretty depressing childhoods, simply because everyone else thought we were femmes or fags. And of course they were right. But what was I supposed to do? At age 6, or 10 , or 15, there is really little you can do about your orientation, or more importantly, the perception others have of you. So I would like kids at all levels to respect the gay kids and at least not bully them. Is that too much to ask for? Or is that a radical program for acceptance?

Finally, yes, we DO want acceptance. I have gay friends who have gotten married, and certain family members wouldn't come to the wedding. Plenty of gay people I know have close family members who refuse to talk to them or will have anything to do with them. That's a shame. You would agree wouldnt' you? most of the time, the people who shun their gay brothers and sisters do it under the guise of religion, which I think is a total perversion of what religion is supposed to be.

At heart, your argument against our hope for acceptance is that being gay is a choice, and that if society accepts gays, then more people will become gay. That has been disproven so many times I won't bother making the argument. But I hope that you don't really think that.
4.3.2006 12:07am
Cornellian (mail):
I find efforts to write into our constitution a libertarian philosophy overwhelmingly lame. The libertarian view of the constitution can always be summed up so succinctly: "Consenting, competant adults may do whatever they want to each other, so long as no unconsenting, incompetant or non-adult person is harmed." Which begs the question... if it is so easy to write it down, why didn't the framers do exactly that? Why did they beat around the bush? Why did they leave it in the shadows (a.k.a. prenumbras) instead of simply writing it down?

Preface that with "government has no power to prohibit" and you'll find plenty of support for that political view. Also, even if the Framers wanted to put it in that fashion, there'd still have to be a lot of other stuff in the Constitution. Freedom for individuals doesn't tell you anything about the division between federal and state authority, or how many senators each state has, or how to amend the constitution.
4.3.2006 12:12am
You Know Who,

I'm not sure I understand why you think the dynamic you note is limited to gay marriages. Straight people today get married to each other even when they are involved in romantic relationships with other people, and sometimes even when they are not romantically involved with each other. For that matter, gay people sometimes marry people of the opposite gender (potentially gay or straight themselves) without being romantically involved with that other person.

So, while there is indeed no real test for whether or not the married couple is actually involved in a monogamous romantic relationship, the resulting potential for the misappropriation of the legal benefits of marriage is not unique to gay marriages.
4.3.2006 12:15am
I think Dale is a credit to the same sex marriage debate and I value his posts here at Volokh.

I've seen this argument before, and while it makes sense to a degree, I just don't see it being that complicated to implement. Moreover, if gay marriage were as complicated, would Dale concede the debate?

This argument does seem to be a bit of a bait and switch. When it's about gay marriage, the rhetoric is about rights, justice, compassion and equality. But when the polygamy question arises the arguments from Dale (and others) begin to sound a lot like some of the arguments against same sex marriage--it's a complicated, nuanced situation. Suddenly polygamy isn't all that similar to monogamous marriage just like some argue gay marriage isn't all that similar to traditional marriage. Gay marriage has its own set of complications and uncertainties, perhaps not as profound, but it does have them.

And I guess I just don't see why a Court couldn't dole out remedies in about the same fashion it does today, except for multiple partners. Divorce seems easy enough. Inheritance seems easy enough. Custody seems easy enough. Sure it's more complicated but I just don't see any of these questions being much of a barrier. What was done between two would be done for three or four. So what?

The emphasis on this argument by gay marriage proponents strikes me as a way to avoid the obvious. We outlaw polygamy because we don't think it's a moral or productive family structure and not because it's technically difficult to implement. But if Dale said this, he might sound uncomfortably similar to the other end of this debate.

So, one question: can we at least admit that the technical difficulties noted by Dale here are not the real reason we prohibit (even criminalize) polygamy in this country? And, accordingly, they will not be the real barrier to the legalization of polygamy, if that is ever to come.

Isn't the real reason we don't like polygamy similar to why so many Americans are reluctant to buy into the idea of gay marriage? I don't want to imply that one must love or hate both. But opposition to each is based on moral judgments, the sort of moral judgments we are told don't belong in public policy. Is admitting these sorts of moral judgments do belong in public policy too much for those advocating gay marriage? Is that why we only hear about the "complications" of polygamy? Is Dale afraid to sound like Mary Galagher on the polygamy issue?
4.3.2006 12:33am
Marcus1 (mail) (www):
Brian, (quoting Medis here)

>I think the necessary statutory changes is reflective of an inherent structural problem with "group marriages".<

Yep, I think that's it. It's not that we can't be bothered to change the wording of a few (or a lot of) statutes, but rather that the way and the extent to which this would be necessary would substantively change the nature of the institution, and call into question our basis for doing so.

As in, it would really reinvent the American institution of marriage, in a way that miscegenation didn't and gay marriage really wouldn't either. It goes beyond a simple extension of the right to marry and into a complete restructuring. It may sound glib and lazy at first, but I don't think it really is.

It's like, we could change marriage to allow a football team to get married so they can all inherit eachother's property, but are the extent of the changes really justified?
4.3.2006 12:33am
"...would substantively change the nature of the institution."

Where have I heard that before?
4.3.2006 12:42am
Marcus1 (mail) (www):

>This argument does seem to be a bit of a bait and switch. When it's about gay marriage, the rhetoric is about rights, justice, compassion and equality. But when the polygamy question arises the arguments from Dale (and others) begin to sound a lot like some of the arguments against same sex marriage--it's a complicated, nuanced situation.<

I think the answer to this concern can't be put in a single sentence. In truth, there are a wide variety of reasons for why we would allow a certain kind of marriage. Any one argument has responses and criticisms, and then we just have to decide in the end which case is stronger.

As I said above, my feeling is that many of the arguments against gay marriage are actually more valid against polygamy. This is to say, gay marriage opponents have a point that allowing gay marriage would be a change. But proponents are also right that it would be a very minor change, and that there are very strong arguments in favor of making the changes. So you're right, gay marriage proponents dismiss the notion that it is a significant change, but that's just sort of the nature of rhetoric.

Polygamy, on the other hand, would represent a much bigger change to the nature American marriage. Thus, this would imply that it would require some greater justifications. But in fact, I think the justifications are much weaker, in addition to the change being much greater, for a variety of reasons relating to the "rights talk" that you referred to.
4.3.2006 12:53am
"At heart, your argument against our hope for acceptance is that being gay is a choice, and that if society accepts gays, then more people will become gay. That has been disproven so many times I won't bother making the argument. But I hope that you don't really think that."

I don't think that argument has been really disproven. You must assume there are only straights and gays, and that little can be done to influence sexuality. This is, of course, false as we know there are bisexuals. A bisexual is likely to engage in more homosexual conduct in a tolerant society than in one where he/she faces severe penalties and social stigmatization. Sexuality may be something of a continuum, as Kinsey proposed, and if that's true, I think increased tolerance would necessarily lead to more homosexuality. Why that would be such a terrible conclusion to a homosexual, I don't know. If there's nothing wrong with homosexuals, what's wrong with more homosexuals?

And even if the effect on the number of those preferring homosexuality didn't change, that doesn't mean homosexual activity wouldn't. Heterosexuals would be more likely under a system of perfect tolerance to "experiment" with homosexual behavior.

All of this, I think, should be pretty apparent. Yet you disagree. Explain.
4.3.2006 12:55am
"As I said above, my feeling is that many of the arguments against gay marriage are actually more valid against polygamy."

I agree! But having staked so much of this debate on demonizing the opposition as irrational bigots and hatemongers (not Dale in particular), I can see why they're reluctant to concede the similarity.
4.3.2006 12:58am
Sarah (mail) (www):
To what extent are current laws structured the way they are (specifically referring to two people) in reaction to polygamy? I can think of a handful of state constitutions that specifically address it... and polygamy was introduced into public discourse in the United States as a "major social problem" about 160 years ago; I don't think gay marriage has been a huge social question for even 20% of that time. Could it be that a huge number of changes would need to be made because... that's exactly the purpose for which these laws were written? To make it really hard to introduce legally sanctioned polygamy? The polygamists in Utah in the 19th century weren't particularly looking for outsiders to endorse their lifestyle, but I know people thought the problem serious enough to put men in prison for the crime of just cohabitating with multiple adult women. Why not so serious to make sure marriage is really well defined as a two-person relationship, the next time a marriage law is amended or created?

I don't know the answer to that question, but it seems like a valid one from my almost totally uneducated point of view. Especially considering how fundamentally things like property and divorce laws had to be changed when women started becoming empowered, and how little the bureaucratic state had to do with marriage even two centuries ago. Wasn't it mostly left up to churches to record and solemnize these things?
4.3.2006 1:00am
You Know Who:

Okay. Because there is no way to determine orientation (or romantic love), a key question, then, is: Would the cost of expanding marriage to include same sex marriage outweigh the benefits? Expanding marriage to include same sex marriage would expand the pool of people (heterosexual female friends; polygamous heterosexual wives) who marry solely to secure benefits (e.g., social security). Does this expansion trouble you?

On a related note: What evidence would you need before you could conclude that same sex marriage was bad for society? Suppose, for example, you found that the introduction of same sex marriage across different societies typically led to a reduction in marriage among straights; or to an increase in unwed people raising children. (The proposition that same sex marriage would lead to polygamous marriage seems implausible, in my view.) Would these -- or any other such events -- tip the balance in favor of you opposing same sex marriage?
4.3.2006 1:09am
Ken Arromdee (mail):
And since the alternative to gay marriage is simply gay promiscuity, the secular policy arguments against gay marriage just doesn't make any sense. The alternative to polygamy, however, is presumably monogamous marriages, which I think there are strong secular reasons for promoting.


The alternative to gay marriage is gays living together without marrying. The alternative to polygamy is multiple people living together without marrying.
4.3.2006 1:39am
Frankly, "it would be too hard to change the relevant statutes" is a really lousy justification for not making a legal change, and not one that will resonate with the populace at large.

I'm taking family law this semester, and we talked about this issue extensively, and as far as I can tell the reasons for prohibiting polygamy, possibly aside from "non-monogamy is just immoral," (which I don't find particularly persuasive anyway) are pretty crappy. My only reservation is that most of the demand for polygamy is demand for polygyny among subcultures that tend to be seriously oppressive of women.
4.3.2006 2:10am
Marcus1 (mail) (www):
Ken Arromdee,

>The alternative to gay marriage is gays living together without marrying. The alternative to polygamy is multiple people living together without marrying.<

Well, I was speaking a little loosely. My point was that state recognition of gay marriage promotes monogamy among gays, which is a good thing. I don't think it promotes actual homosexuality, whatsoever.

Recognizing polygamous marriages, however, I think does promote the actual practice of polygamy. And it does so, I think, at the expense of monogamous marriages.

Thus, I was saying that in real terms, the result of recognizing gay marriages is to promote monogamy over promiscuity, whereas the real result of recognizing polygamy is very different -- to promote polygamy over monogamy. And assuming that promiscuity is bad and that monogamy is good (and I think there are strong secular arguments to support this), the case for gay marriage is significantly stronger.


You're taking family law as a 1L? I agree that "it would be too hard to change the statutes" is a lame argument. But doesn't completely reinventing marriage raise actual policy questions? Of course, conservatives say that gay marriage would completely reinvent marriage, but I think the problem with that is that they're wrong, not that it's irrelevant. I think allowing individuals to choose the sex of their spouse really doesn't change much at all. Polygamy, on the other hand, would.

I think liberals take a more extreme position than is necessary or justified when they say that changing marriage is never a reason for concern. A change has to be justified, and particularly a really big change. The liberal position really has never been that marriage should be so malleable as to take any form. Rather, the argument is that gay marriage fits the form of marriage as it currently is. It isn't hypocritical to say that polygamy does not.
4.3.2006 2:45am
Randy R. (mail):
Your conclusions I agree with, actually. There is nothing wrong per se with homosexuality. But what is homosexuality? We -- everyone -- have a sexual orientation. All credible studies have shown that sexual orientation is set by the age of 7, whatever it is, wither gay, straight or something in between (such as bi). It could be set earlier, and probably is, but it's very difficult to determine the sexual orientation of a child before the age of 7. And all credible studies have shown that whatever your orientation, it doens't appreciably change throughout ones lifetime.

Now, of course, a gay person can suppress his same sex desire, and be get married and have kids. So can a bisexual person. But their orientation hasn't changed. The reason a lot of gay people get married is because they believe that actually living as a gay man or woman is not socially acceptable. That is of course changing. And because it's changing, more and more people are living out their true orientation at earlier ages. I think this is a good thing. When a gay person gets married, he is ruining his own life, and the life of his spouse. Surely, any woman deserves to know who she is really marrying, and deserves a hetero man. I think that is a good thing.

The number of gay people in our society won't change. Most studies again show that although more people are open about thier orientation, the actual numbers have remained likely the same.

As for straight men being more likely to experiment with gay sex in an open and tolerant society, there is little in the way of studies to suggest that. My gut feeling, though, is that there probably would be. But just as gay men have 'experimented' with straight sex (most of my gay friends have, at least in their youth), so too do straight guys experiment with other guys. This goes on all the time, and it goes on regardless of society's approval.

One more point, though. There is a group of men in any society who are violently anti-gay. A famous study in Atlanta proved that there is high degree of correlation between sever anti-gay attitudes and their own repressed homosexuality. In other words, there are many men are gay, but they internalize their hatred for gays so much that they actually are unaware of the fact that they are attracted to men. This often manifests itself in violence against gay men. Not only is this obviously not healthy for the men, it's not good for innocent gay men who get beaten up by them. (I have friends who were sent to the hospital with severe injuries at the hands of anti-gay attacks). If society were more accepting of gays, this would likely not be a problem.

One last point -- it has been shown that societies that are more accepting of gays, are actually more accepting of women. In other words, oppression of gays and women go hand in hand. One need only look at certain places in the middle east -- hatred of gays correlates with closely with the subjugation of women.

When societies allow all people the, gay men, straight men, women of all orientations, a chance to be themselves, it also relives men of the straight jacket of their own conformaties. This, I believe, benefits everyone.
4.3.2006 2:58am
Ken Arromdee (mail):
In other words, there are many men are gay, but they internalize their hatred for gays so much that they actually are unaware of the fact that they are attracted to men. This often manifests itself in violence against gay men.

This argument has always struck me as a poisoning-the-well technique--the fact that someone hates something is offered as proof that they secretly like it. Thankfully, I have yet to see anyone claim that the Nazis had a hidden desire to be Jews, or that the Ku Klux Klan really would rather have been black if only they could admit it to themselves.
4.3.2006 6:16am
Dudley Crawford (mail):
I'm with Weasel II here. Why not promote a Libertarian solution to this? Get the government out of the business of lawyering on the contractual side of relationships. Simply let people go to lawyers and come to the government with their contracts. The government just accepts a legal contract. Since the basis of the government's [also businesses; i.e., pensions] interest in these personal contracts is about the money, let the individuals define where they want the money to go and get the government off the hook. Also, this is a good example of why SS is driving part of the argument. If we had private SS accounts, then an individual has every right to define who gets the gold, not the government. For myself, I don't care who gets married or how many as long as I'm not paying for it with tax money.
4.3.2006 9:25am
You Know Who,

I think we may have the same basic sense of how the social policy analysis of gay marriage should work--basically, a cost/benefit framework. For example, it is true that any increase in the kinds of marriages to which we accord legal benefits (e.g., gay marriages, interracial marriages, marriages of people of different religions, etc.) expands the number of options for those who wish to misappropriate the legal benefits of marriage. That will have some marginal effect on the total number of such misappropriations. But conversely, expanding the kinds of marriages to which we accord legal benefits should also result in an increase in nonappropriative marriages, ones which result in the social benefits for which we are providing legal benefits in the first place. So, the question when expanding marriage options is whether the "cost" associated with the marginal increase in misappropriations is outweighed by the "benefit" associated with the marginal increase in nonappropriative marriages.

A similar analysis would apply if providing legal recognition to gay marriages was shown to have some marginal effect on straight marriage rates or on the rate of children being raised by married parents. Insofar as legally-recognizing gay marriages was found to causally lower those rates, we would probably treat that as a cost and weigh it against the benefits of gay marriage. Of course, it seems entirely possible that the effect would be in the opposite direction, with legal recognition of gay marriages actually leading to marginal increases in both rates (after controlling for other factors), in which case we would probably view those effects as a benefit.

In sum, as a policy matter, I could be persuaded that legal recognition of gay marriages was a bad idea if it was shown that the costs outweighed the benefits. Of course, that is just the solicy policy part of the discussion, and there may be issues of morality and justice that trump or augment the social policy analysis. But the interaction between policy issues and moral and justice issues is quite complicated, and I have no easy answer as to how we should incorporate all those diverse factors into our reasoning. Personally, though, I think all the sorts of factors I have mentioned--moral, justice, and policy--favor legal recognition of gay marriage, so the issue of how to reconcile them when they point in different directions does not appear to me to arise in this case.
4.3.2006 10:19am

I agree that gay marriages and group marriages both raise some complicated issues, and my point is really just that since the issues raised by group marriages are different, the analysis applied to gay marriages does not automatically transfer to group marriages.

But I'm a bit puzzled by your dismissal of some of the basic issues with group marriages. Take the entry and exit issues, for example, including "divorce". One basic question would be what conditions had to be met before an individual could join the group. For example, would all the existing members of the group have to agree to admitting the new member? That isn't the only answer, of course. In many real examples of group marriages, only one person has to agree to admit the new member (often the only male in the group who is legally accorded a hierarchical position in the group and entitled to make all such decisions for the group). Or what about a voting scheme? Should the entry rules be variable, perhaps subject to some sort of charter? Should we put limits on the entry rules in the name of public policy concerns?

Conversely, what conditions would have to be met before an individual could be expelled from the group? Could only one other member be able to force out another member? Should it take all the other members to do so? Should it be a voting matter? Not only are the answers to these questions not obvious as a matter of first impression, it is not even obvious how this should interact with the entry rules. For example, suppose we adopted a consensus entry rule, meaning all the existing members of the group have to agree to admit a new member. Does that imply that a member can only be expelled by consensus, or does it imply that a member could be forced out by any one member, given that each "senior" member originally had a veto over entry?

To put this in concrete terms, suppose Wife #2 appears in a state court suing to "divorce" Wife #4, citing irreconcilable differences, an allowed cause for divorce under state law. Does it really "seem easy enough" what should be done in this case?

Again, I don't think all these concerns are fatal to group marriages--we undoubtedly could work out rules if we deemed providing legal recognition to group marriages in some form to be socially beneficial, although I think it is pretty obvious that would have to be done through legislation, since the common law hasn't developed anything close to the necessary rules. But again, it seems to me that the structural issues really are quite different when it comes to group marriages, such that we can't simply assume that legally-recognizing group marriages would be good social policy--and that is even if we have no "moral" objection to them.
4.3.2006 10:46am
Don Miller (mail):
I thought I would share the little bit of family knowledge about how the LDS Church practised polygamy originally. This knowledge comes from the journals of my great great grandfather and his father, both of whom had two wives.

In both cases, the second marriage was a result of a religious leader (bishop) calling the couple into an interview. During the interview the Bishop would tell them that there was a woman with a coulple small kids who had lost her husband and needed a new husband who could take care of her and the children. The Bishop then asked if them if they would be willing to take on the woman as a second wife.

Husband and wife would go home, talk, pray and consider the question. They also had to review thier personal finances. Arrangements were made for the couple to meet the woman and her kids, if they didn't already know them. When both parties were in agreement, they would go back to the Bishop. In private interviews, the Bishop would ask each person if they agreed. If both agreed, the marriage would be set up.

Upon marrying, the husband was obligated to provide a second home for the new family. Both wives and their children were required to live in seperate homes.

In the case of the 3-great grandfather, he died before the US got agressive about passing legislation regarding the practice. In the case of the son, he built one home in southern Utah and one home in Northern Arizona. He spent the last 20 years of his life moving between the two families to keep ahead of the Sheriff. As a side note, my grandmother was from the Arizona side of the family.

LDS people didn't believe in divorce, so even after the Church stopped the pratice, it didn't require, or sanction, divorce for existing relationships. Historically, there was probably a need for good lawyering on ex Post Facto grounds for some of these people.

My understanding was the consent requirements were the same for 3rd, 4th, 5th etc wives. The husband and all existing wives were interviewed seperately, if anyone had reservations or voted no, the marriage would not be granted by the Church. LDS Church records indicate that no more than 10% of the marriages performed by the church during the time they practiced polygamy were plural unions.

I have no knowledge of how child custody, medical decisions, or inheritance laws would have worked. In my family history, the husbands each left a will.

I have no personal knowledge about how polygamy is practiced by the splinter groups in UT and AZ. Based on the accounts I have read and heard about it, they have drifted a long ways from the original purpose.
4.3.2006 12:30pm
Houston Lawyer:
The vast majority of SSM advocates state that the State shouldn't disallow marriage between any two consenting adults. But throw in the polygamy argument and all of a sudden these same people say "no, you can't allow that", "that would be wrong", and "that would result in consequences we don't like". Been there, done that.
4.3.2006 12:41pm
Randy R. (mail):

You may not understand the argument, but it is true. The study in question began with a questionnaire of college men, and it asked their views towards gay men. Only the ones with the most extreme hostility were asked to participate further. The further studies included an interview of their feelings towards gays, and then they were put in a secluded room to view three types of pornography, gay, straight, and lesbian.

Turns out that about 80% of the these guys, the ones who self declared their extreme hostility to guys, had erections only during the gay pornography.

In a subsequent interview on Frontline, the researcher said that he was convinced that these men had suppressed their same sex attractions to such a degree that they likely didn't even notice that they got erections only during the gay porn. At one point, the researchers thought it would be interesting to show the findings to the men to see what they think, but he said that they decided against it, fearing the safety of the researchers if these men were ever confronted with their true feelings.

And in real life this is true. The mayor of Portland was married and divorced, and he consistently voted against any gay rights and often gave speeches on the menace of gay men, sounding much like rick santorum. Turns out he was trolling for men on the internet. Then a congressman from Virginia had to drop out of the race when it turns out he was soliciting men for phone sex, and yes, he was quite anti-gay in his speeches and voting record. The list is quite long of such politicians.
4.3.2006 1:15pm
Randy R. (mail):
One thought about the Nazis and the Jews. In a way, they were indeed desiring to be like Jews. The Nazis believed that the Jews controlled the banking system worldwide, the German economy, and the cultural institutions.

Well, the Nazis wanted to control the worldwide banking system, the German economny and the cultural institutions. So they were indeed trying to be just like what they thought the Jews were.

We often see this phenomenon with extremist groups. Whoever they attack, they seek to replace with themselves, who would in fact act like like those they attack! In other words, George Bush is torturing the people he disagrees with, so we must remove him so that WE can torture people who disagree with US!

A little off topic, but interesting nonetheless.....
4.3.2006 3:40pm
Marcus1 (mail) (www):
Houston Lawyer,
The vast majority of SSM advocates state that the State shouldn't disallow marriage between any two consenting adults.
I'm pretty sure you're wrong about that. I've never heard a SSM proponent advocate the legalization of incestuous marriages. You're quite clearly presenting a straw man version of the SSM argument.
But throw in the polygamy argument and all of a sudden these same people say "no, you can't allow that", "that would be wrong", and "that would result in consequences we don't like".
And now you've turned into a ridiculous parody of a relativist. Is the only difference between various consequences whether "we like" them or not?

Me being you:

The vast majority of conservatives believe that killing people is wrong no matter what. But then you talk about abortion, and suddenly they say "no, you can't allow that", "that would be wrong", and "that would result in consequences we don't like". Been there, done that.

Good argument?
4.3.2006 6:04pm
markm (mail):
Social acceptance may not increase the number of homosexuals, but ancient Greece certainly had a much greater incidence of male homosexual behavior (if not homosexual pederasty), along with complete acceptance of such behavior and restricted opportunities for non-marital sex with women. OTOH, no degree of social disapproval has ever completely eliminated homosexual behavior, not even where it carried the death penalty. So there is clearly a small percentage of men who are homosexually oriented no matter the incentives and penalties. Presumably there is a larger percentage who are just as solidly heterosexual. Finally, there is a sizable group might be bisexual or heterosexual depending on the social pressures.
4.3.2006 6:28pm
Randy R. (mail):
Thanks for the post, Markm. You are correct on all points, but I would like to point out a nuance regarding the Greeks. Their version of socially accepted homosexuality was for an older man to 'mentor' younger men. The older man was supposed to be the penetrating one, and the younger man the receiver, and this was common and acceptable.

However, it was actually quite rare for two men of similar age to hook up and live together, as we commonly view gays. Even THAT was okay to some degree, but what was simply not acceptable was to be the receiving partner when a mature adult. That was taking on the role of a female, and was commonly ridiculed and periodically suppressed by the Greeks, as well as the Romans, who had a similar system.

We really don't know exactly how sexual relations existed in these ancient societies -- some argue that the homosexuality was limited to the elite. But the point is that the ancient Greeks were NOT exactly like what we think of gays and lesbians, and it would be careless to make any assumptions on what exactly the implications were.
4.3.2006 7:54pm
raj (mail):
Houston Lawyer:

You have made an assertion of fact. You claim to be a lawyer, and, if you are, you are familiar with evidence.

Can you back up your assertion of fact with evidence? I doubt that you can.
4.4.2006 12:50pm