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Same-Sex Marriage, Incestuous Marriage, and Polygamy:

I've written about how the fears that recognizing same-sex marriage will lead to recognition of incestuous marriage and polygamous marriage are, as a practical matter, ill-founded. Nor do I think that there's a logical equivalence between the three that means that, to be consistent, those who accept the first must accept the others. Recognizing same-sex marriage, I think, is likely to help society; recognizing the other kinds, I think, is more likely to hurt society.

Nonetheless, the slippery-slope concerns are made more plausible (though in my view still unpersuasive) by the way some advocates of same-sex marriage argue. For instance, consider this item from law professor Dan Pinello, a forceful supporter of same-sex marriage:

Republican State Senators Serphin Maltese and Frank Padavan are longtime foes of gay rights....

I call for a Maltese-Padavan Patrol whereby gay men, lesbians, and other supporters of marriage equality do the following:

1. At regular intervals of every business day --- even better, every hour of every business day --- telephone both the Albany and Queens district offices of Senators Maltese and Padavan to ask them questions such as "Why don't you support the right of all New Yorkers to marry the person of their choice?" and "Why do you think that lesbians and gay men should be second-class citizens?"

2. At regular intervals, e-mail the two senators with the same questions.

3. At regular intervals, visit both their Albany and Queens district offices to ask the same questions.

4. Whenever either Senator Maltese or Senator Padavan makes a public appearance, be in the audience to ask the same questions.

Now I'm pretty certain that most supporters of same-sex marriage (quite likely including Prof. Pinello himself) do not support the right of all New Yorkers to marry the person of their choice. They would presumably deny this right to New Yorkers who want to marry their siblings. They would also presumably deny it to New Yorkers who want to marry someone who is already married, even if the New Yorker gets permission from the other person's other spouse. (I don't think this can be dismissed by arguing that this doesn't involve the right to marry the person of their choice, which is to say only one. First, the new spouse would be exercising her right to marry the one person of her choice. Second, though the old spouse would be marrying more than one person, why shouldn't people who have the right to marry one have the right to marry two, if that's their choice? Saying that the right to marry doesn't work that way, because it inherently, by its nature, must involve only one marriage at a time per person, invites the response that the right to marry by its nature involves only one man marrying one woman.)

On the other hand, if indeed same-sex marriage wins using the "right of all New Yorkers to marry the person of their choice" argument -- if this right is therefore accepted, either by a court or by a legislature, or perhaps by courts and legislatures throughout the country -- then that would, it seems to me, strengthen the argument in favor of recognizing same-sex marriage or incestuous marriage.

True, defenders of same-sex marriage who oppose the other kinds of marriage could then say "no, we didn't really mean such a right that categorically, we meant the 'right of all New Yorkers to marry the person of their choice unless it's a sibling or unless their chosen person is already married.'" But that wouldn't be a trivial argument to make, and it's possible that at least some people who had become persuaded that there is a "right of all New Yorkers to marry the person of their choice" would feel that they ought to apply that right as it was initially enunciated, rather than to throw in qualifiers. So if you make the argument that Prof. Pinello is making, it's hard to ridicule the slippery-slope concerns that the other side raises. (As I said in my article, it's still possible to argue against those concerns, because of the practical unlikelihood that the pro-incestuous-marriage or pro-polygamy movement will have the force that the pro-same-sex-marriage movement now has; but the argument is not open-and-shut.)

And even beyond this, isn't the questioner who raises the "right of all New Yorkers" argument inviting a quick and effective slap-down, precisely because his argument on its face entails a consequence that most listeners wouldn't approve of, and that even the questioner probably doesn't mean?

Caliban Darklock (www):
Why is polygamy necessarily damaging to society?

It can be readily argued that incestuous relationships are damaging, because they implicitly encourage inbreeding which causes real and measurable genetic damage.

But precisely what damage does polygamy do? How does polygamy damage society?
7.17.2006 9:21pm
Thorley Winston (mail) (www):
So the best way to persuade people to agree with you is to harass their staffers? Looks like someone’s watched too many Michael Moore phony “documentaries.”
7.17.2006 9:32pm
studying for the bar:
Same question as Caliban Darklock: How did you determine that polygamy would be more likely to hurt society than gay marriage? I skimmed your article and it only addressed the slipery slope argument.

As I understood it, your reason that the slipery slope is not a worry in the case is because polygamy is not as popular as gay-marriage, so it can't overcome the fact that it's not deeply rooted in American tradition. But this says nothing about whether the acceptance of gay-marraige logially requires or supports the acceptance of polygamy. Nor about the judgment of which, if either of the two, would hurt society.

Is there some other reason you think polygamy would be worse for america than gay marriage? I assume you are friendly with and have observed good gay families, so you can make a judgment as to their utility based upon personal observation or studies that have been done. But you are likely not familiar with any polygamist families, so are there studies that would support your view that poligamy would hurt America?
7.17.2006 9:44pm
Tammy (mail):
Polygamy harms society in two ways:
1. Women are forced into a subservient role where their needs are secondary to a man who has to "serve" 1-4 other women. They are often treated like garbage. See here:
Polygamy.org
This may be more an indictment of LDS than polygamy, but they are the only quasi-sanctioned practioners I know. All the others I have met are bigamists that are sociopaths leeching off women in several states.
2. Welfare
Dual income families have enough trouble nowadays raising 2 kids. What happens when you have 5 wives, 20 kids, and one income? Food stamps, TANF, etc. We have more to worry about from these folks than Regan'sb fabled "Cadillac queens."
See here:
abuse of welfare by polygamists

While I don't understand it and think it is a bad idea for myself, I refuse to believe that these are representative of all cases. But I refuse to support polygamy until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.
7.17.2006 9:48pm
Colin (mail):
CB,

My understanding is that the supportable rationale for banning consanguinous marriage is not possible genetic harm, but social harm. Someone on a thread further down made the cogent point that we allow couples with very high chances of conceiving genetically damaged children to marry. (In fact, by default unrelated parents with a 100% chance of conceiving children with a debilitating genetic condition are able to marry.) And the actual danger of genetic harm to the children of consanguinous couples is generally overstated. The danger is more of a sort of predation, where children could be raised with the intent of putting them into a consanguinous relationship.

That's more or less the practical harm in polyamory, too. Even the ideal form, where fully educated and consenting adults are allowed to marry other consenting adults as often as they please, would have some serious social harms (such as a lack of eligible partners for the remainder). But that ideal doesn't seem to ever happen. The empirical evidence of situations such as fundamentalist Latter Day Saints cults is that polygamous and consanguinous situations both lead to very damaging family situations, in which children are not allowed to establish themselves outside of the family. One of the best and most accessible accounts of the real-life results of polygamous and consanguinous communities is Under the Banner of Heaven, which is a little disjointed but very telling.

I've explained it very clumsily, but other commenters have (and, I'm sure, will) do so more comprehensively. The big difference between polyamory and consanguiniy on the one hand and homosexual familes on the other is that there is empirical evidence that the first two have a definite and definable social harm. Anecdotal claims about the need for gender role models aside, I'm not aware of any solid research that supports the idea that same-sex couples are harmful to their children (or, more to the point, more harmful than no parents at all).
7.17.2006 9:53pm
Colin (mail):
See also Tammy's summary of the economic harms, which I completely overlooked.
7.17.2006 9:54pm
Malvolio:
the practical unlikelihood that the pro-incestuous-marriage or pro-polygamy movement will have the force that the pro-same-sex-marriage movement now has
Uh, why would that be? Polygamy, historically, has been the norm rather than the exception. It is still legal or tacitly condoned in every Muslim country, plus India, Thailand, Israel, and elsewhere. Today, in the US, polygamists are rather rare, but that's a consequence of the belief that marriage is structured a particular way -- if that belief is undermined by practical arguments about the utility of marriage, we will start seeing a lot more polies agitating for legal status.

Incest is rarer still, but there are already some people working for looser regulation: Cousin Couples for example.

Anyone who argues that gay marriage isn't a slippery slope just isn't paying attention. Anyone who argued in 1963 that legalizing miscegenation would lead to same-sex marriage would have regarded, not just as in error, but borderline insane. But 40 years later, proponents of same-sex marriage argue that two men have as much right to marry as a black man and a white woman. We are already on the slippery slope, the question is, how far do we slide.
7.17.2006 9:56pm
studying for the bar:
"Dual income families have enough trouble nowadays raising 2 kids. What happens when you have 5 wives, 20 kids, and one income?

I don't think that's true. Since the average American family has more than 2 kids and is doing quite well, I don't think you can say that they have much trouble raising two kids. Most people with one income can do just fine.

However, I suspect that your first point is probably a good one. Although I think that may be a result of the people practicing polygamy that I have seen in the media I view as lunatics and not just based upon their practice of polygamy. If more "normal people" practiced it, I may not think the same.

But the current practice of polygamy is certainly not an indictment of the LDS or Mormons as they don't practice it and immediately excommunicate anybody who practices it. Quite the opposite is true of how they treat gays in the community.
7.17.2006 9:57pm
TomHynes (mail):
A more troubling slippery slope problem is "minuscule" vs "miniscule". Miniscule was always wrong (except when refering to a type size); then it became a "variant"; now Eugene Volokh uses it unashamedly in his law review paper.
7.17.2006 10:03pm
Caliban Darklock:
"Women are forced into a subservient role where their needs are secondary to a man"

How? When a man says "marry me", what force does that exert on a woman? When a woman marries, what makes her "subservient"? What makes her needs "secondary"? I mean, it seems to me she has all the same rights as any man - which should imply that she can marry several MEN if she likes, too.

"Dual income families have enough trouble nowadays raising 2 kids. What happens when you have 5 wives, 20 kids, and one income?"

I would expect more or less the same as you'd get with one wife, four kids, and an eight-hour-a-week job. Since there's no particular law against that - it's just stupid - I fail to see the point in your argument.

After all, what if you have three husbands, four wives, and eight kids? How do you suppose, say, SIX incomes works out for that family?
7.17.2006 10:07pm
Just:
TomHynes,
I too enjoy parsing wordchoice.
Don't you think it should be "smackdown" (pronounced, ssssssmackDOWN) rather than "slap-down" in that last 'graph?

heh.
7.17.2006 10:08pm
Just:
Or wait,
Is that pronounced sssssMACkdown ?
7.17.2006 10:10pm
Joel B. (mail):
Dual income families have enough trouble nowadays raising 2 kids. What happens when you have 5 wives, 20 kids, and one income?

This could be backwards...one can easily imagine the situation where you have 5 spouses (of any gender), but lets say 4 women, 1 man, where you could concievably have the man and 3 women work, while one woman stays home to take care of the children, there probably would only be so many young children at any given point, you could acheive "economies of scale" at the familial level. I think this argument is best when you are discussing 2-3 wives however. I see no reason to think that polygamous families would be economically disadventageous.

Instead, it must be something else that keeps us from accepting polygamy.
7.17.2006 10:12pm
Caliban Darklock:
"The empirical evidence ... is that polygamous and consanguinous situations both lead to very damaging family situations, in which children are not allowed to establish themselves outside of the family."

I honestly don't see the causal relationship there, and I don't see that it's a natural or necessary component of polygamy. Sure, it MIGHT happen, but honestly - isn't it legal for monogamous couples to socially damage their children through forced isolation and repeated misconceptions? Why is it somehow more likely for polygamous families?
7.17.2006 10:16pm
Just:
"Instead, it must be something else that keeps us from accepting polygamy."

Jealousy
7.17.2006 10:16pm
Malvolio:
Quoting myself:

Anyone who argues that gay marriage isn't a slippery slope just isn't paying attention.
Having read (albeit not carefully) Eugene's paper on the subject, I find that he is, in fact, paying attention but nonetheless reaches an erroneous conclusion. His argument depends on premises which are either false (that polygamy is historically disfavored, which is only true for very small values of "historically") or contingent (that in 21st Century America, few people apparently wish to practice polygamy).

And let's not forget, the slope actually is slippery. If there is an ethical argument for allowing same-sex marriage that doesn't also apply to plural marriages, I haven't seen it yet -- and hoping that either politics or public-policy issues intervene to deprive would-be polygamists of their rights is neither practical nor particularly enobling.

That said, I want to add all this criticism of polygamy is somewhat unseemly. You or I may believe that plural marriage would be bad for women or children or taxation or whatever, but remember, these are marriages between (uh, "among") adults. It is for them (at least on a liberatarian-ish blog) to decide what is best for themselves and their children.
7.17.2006 10:28pm
PatHMV (mail) (www):
As I argue over at Stubborn Facts, the problem is solvable if we simply agree that the people have the right to establish, in law, the basic social structures of their own society. Once that is allowed, then the people can exercise their discretion to do what seems to fit for them in their time, and they can change it as their society changes.

Seeking a rigid ideologically consistent basis to distinguish between gay marriage and any other form of "non-traditional" marriage is doomed to failure for now. Society at large is the appropriate body to decide what will and will not "harm" the institution of marriage and society as a whole, and there is no requirement that their judgment in such matters meet some amorphous requirement of philosophical consistency.
7.17.2006 10:33pm
friend of the polygamists:
I agree with the others who critize Eugene for distinguishing between same-sex and polygamous marriages. You can't just say that polygamy would "hurt society" without offering any rationale. Doing so makes you no different than those who thought (and still think) that homosexuality "hurts society." And focusing (as some commenters have) on how some people use the practice to oppress women misses the point. There is nothing inherent in group marriage that mistreats women. Such a marriage could involve women (or men) exclusively.

I think these anti-polygamy statements need to be recognized for what they are: naked prejudice, with no difference from how most people felt about in homosexuality many years ago.
7.17.2006 10:35pm
Cornellian (mail):
We live in a society in which everything must be reduced to a single sentence sound-bite suitable for repeating in front of television cameras. People opposed to same-sex marriage sometimes use the slogan "every child deserves a mother and a father" and presumably that doesn't mean they support same-sex marriage so long as no children are involved. I think the tactics described are a bit intrusive and obnoxious but probably typical of political campaigns on any issue and it seems just silly to complain that their single-sentence slogan isn't sufficiently nuanced. It's a slogan and slogans are never nuanced.
7.17.2006 10:36pm
liberty (mail) (www):
One thing conspicuously missing from this argument: why does anyone have a right to marriage?

I am all in favor of gay marriage - I don't think it hurts society so long as marriage itself is respected and untampered with by government; the problem is when marriage is disrespected (and some argue this may come with gay marriage). If government stays out completely, then private groups - churches and so forth - can make the call.

But nobody has a *right* to any kind of contract - be it a job, marriage or purchase.

Discrimination lawsuits (and laws) and socialistic regulations have foggied the distinction in recent years; but it used to be that a private contract was private - and between the persons involved.
7.17.2006 10:38pm
studying for the bar:
Friend of the polygamists said:

"think these anti-polygamy statements need to be recognized for what they are: naked prejudice, with no difference from how most people felt about in homosexuality many years ago."

I don't think naked prejudice is the right term. Their prejudlice may be based upon many different rational. Maybe ignorant prejudice, but not naked.
7.17.2006 10:43pm
friend of the polygamists:
"Ignorant" is fine. Can't say I put a lot of thought into the word "naked." Just sounded good at the time.
7.17.2006 10:47pm
Cheechy:
Incestuos marriages are forbidden primarily to avoid the production of defective children. So why wouldn't two brothers be allowed to marry each other? (I once met a guy who told me that he had had a sexual relationship with his identical twin brother. Honest!) Once same-sex marriage is allowed, there would seem to be no rational basis for prohibiting incestuous same-sex marriages.

The REAL solution is to get government out of the marriage business entirely. Marriage is a practice that antedates government. Let individual adults voluntarily enter into whatever sorts of marital contracts they wish to make.

Our problems arise, in this as in so many other cases, when government arrogates a monopoly to itself.
7.17.2006 10:47pm
logicnazi (mail) (www):
The objection raised in this post to the rhetoric of equality seems no more compelling to me than similar objections to the ADA.

The standard rhetoric for supporting the ADA goes something like, "being disabled doesn't make one less of a person" and "disabled people have an equal right to a job as non impared people" and similar slogans (likely with better more PC wording). This is a reasonable an persuasive case. It would be uncompelling to object that this rhetoric demands that parapalegics be hired to perform dock work despite their obvious inability to life heavy objects.

In the ADA case and in anti-discrimination rhetoric generally the underlying assumption is that equal treatment is required in the abscence of a compelling cost/harm (excepting those resulting just from bigotry). If one could make a compelling case that gay marriage would create a serious social harm then this would be good reason not to allow gay marriage but all the arguments to this effect are pretty hokey.

Yes, in a perfect world polygomous marriages and incestous marriages ought to be permited. However, it turns out that polygomous marriages are often vehicles used to oppress women in patriarchial subcultures and incestous relationships are often the result of abuse (and perpetuate that abuse) and those involved in those relationships will not always refrain from reproduction. In other words to the extent this type of marriage ought to be prevented it is because it has clear harms and thus escapes through the implied 'no compelling harm' exception to the equality rhetoric.

In general the slippery slope argument about gay marriage is a red herring and it is no different in this case. Either polygomy and incestous marriages have serious harms associated with them diffrentiating them from gay marriage or they don't. In the former case those harms furnish the distinction needed here. Like many other situations pragmatic needs prevent us from treating all people equally (no different than allowing inheritance). In the later case these practices ought to be allowed and this is a unproductive attempt to link gay marriage to other ucky practices that really aren't bad.

I suspect that the reality is this group doesn't have any opinion on polygomy or incest and the slippery slope argument is an unfair attempt to make them take a position on a matter that everyone thinks is wrong but most people don't have a worked out explanation as to why it is wrong.
7.17.2006 10:53pm
liberty (mail) (www):
To add to what i said: one could say that a marriage is not a right any more than a job is a right, that a worker cannot expect a job but can expect the right to engage in a contract with a willing employer: and i agree. It should not be illegal to make a contract. However, someone must agree to such a contract, and government should not be in the business of providing jobs (as an employer of last resort), or to provide marriages.

The minister of a marriage is akin to the auctioneer, realtor or middleman who allows trade between a buyer and seller; or any kind of private dealer who allows two others to trade, determining their eligibility to make such a trade. Frauds are kept out and a contract is deemed valid according to certain guidelines. A broker who does not hold clients to a certain standard loses his legitimacy and loses future clients.

Marriage has no meaning if *any* clients may come to a broker and be given a deal. That is why Vegas marriages are not held in as high esteem as marriages contracted nearly any place else.

If a man and his sheep may be married; three women and two men; a goose and a rabbit; a pimp and 18 of his whores; at some point marriage loses its meaning.

I am not implying that gay marriage is similar to any of the above.

But the minister who determines what marriage is and what it isn't has this right, just as any person in a position to determine the legitimacy of any contract, as a private dealer with a stake in its legitimacy - and no person has the right to any contract as contracts are private affairs.
7.17.2006 10:56pm
A. Zarkov (mail):
“Polygamy harms society in two ways:
1. Women are forced into a subservient role where their needs are secondary to a man who has to "serve" 1-4 other women. They are often treated like garbage.”


That’s precisely the argument that some feminists make against marriage. I’m afraid you will have to present more compelling evidence for this assertion beyond one example.
7.17.2006 11:01pm
nc3274:
I will try to avoid judgment-laden metaphors like "slippery slope," but I think that there are links between the same-sex and polygamous marriage positions, even if they are at different stages of development.

I am surprised that nobody's yet mentioned that a divided Utah Supreme Court recently (this year) upheld the state's bigamy statute (State v. Holm, sorry I don't have a cite, but it is easy to find). One of the main questions was the application of the Supreme Court's decision in Lawrence v. Texas, which overruled Bowers v. Hardwick.

Note that Holm wasn't claiming a right to a state marriage license--he just wanted to avoid conviction under the anti-bigamy statute. Holm strikes me as reaching a very strange conclusion, since it seems likely that a man cohabiting with two women would likely be protected by Lawrence, but because Holm undertook a religious ceremony with no legal consequence, he is a criminal. (I'll leave it to our resident First Amendment experts to comment on whether that position is consistent with general First Amendment principles, but suffice it to say that the prosecutions under the bigamy statute appear to be mostly "add-on" charges that accompany sexual conduct with a minor or other acts. My understanding, which is admittedly based on hearsay, is that the state doesn't go after people who enter into these relationships when everyone is over 21, live together and just keep quiet about it.)

In any case, the point is that the basic liberty interests underlying the arguments of each group have some cross-over effect.

That's not to say that there aren't persuasive distinctions between same-sex and polygamous marriage--not the least of which is that legal recognition of polygamous marriages could lead to all sorts of economic distortions, problems with inheritance, parental rights, etc. But I think the Utah Supreme Court's obvious move to tackle Holm's case by analyzing Lawrence suggests the potential for a jurisprudential link.
7.17.2006 11:11pm
nc3274:
I will try to avoid judgment-laden metaphors like "slippery slope," but I think that there are links between the same-sex and polygamous marriage positions, even if they are at different stages of development.

I am surprised that nobody's yet mentioned that a divided Utah Supreme Court recently (this year) upheld the state's bigamy statute (State v. Holm, sorry I don't have a cite, but it is easy to find). One of the main questions was the application of the Supreme Court's decision in Lawrence v. Texas, which overruled Bowers v. Hardwick.

Note that Holm wasn't claiming a right to a state marriage license--he just wanted to avoid conviction under the anti-bigamy statute. Holm strikes me as reaching a very strange conclusion, since it seems likely that a man cohabiting with two women would likely be protected by Lawrence, but because Holm undertook a religious ceremony with no legal consequence, he is a criminal. (I'll leave it to our resident First Amendment experts to comment on whether that position is consistent with general First Amendment principles, but suffice it to say that the prosecutions under the bigamy statute appear to be mostly "add-on" charges that accompany sexual conduct with a minor or other acts. My understanding, which is admittedly based on hearsay, is that the state doesn't go after people who enter into these relationships when everyone is over 21, live together and just keep quiet about it.)

In any case, the point is that the basic liberty interests underlying the arguments of each group have some cross-over effect.

That's not to say that there aren't persuasive distinctions between same-sex and polygamous marriage--not the least of which is that legal recognition of polygamous marriages could lead to all sorts of economic distortions, problems with inheritance, parental rights, etc. But I think the Utah Supreme Court's obvious move to tackle Holm's case by analyzing Lawrence suggests the potential for a jurisprudential link.
7.17.2006 11:11pm
e:
On the side question of polygamy, I believe it would be harmful for effects beyond welfare fraud and child brides.

Biology, history, and intuition tell me that polygyny will always be more common than polyandry even if we somehow wipe our social slate clean. What this means is loads of angry young men. The solution for the imbalances of polygyny in the past has been to kill off men in war. Perhaps men killed off in war is also a driver to polygyny, but either way I think polygamy is tied to violence in society, even if remote from a seemingly loving and workable household.

I'm afraid I only skimmed the comments, and apologize for any repetition.
7.17.2006 11:19pm
Luke:
I don't find the slippery slope argument compelling at all. Gays are not responsible for the social/economic harms caused by polygamist or incestuous marriages, even IF the latter two groups do use legalized gay marriage as a talking point in their politicking. Gays, like all others, are responsible for their actions and theirs alone, not those of polygamists and incestors(sp?). In any case, the "slippery slope" argument only makes sense if one views gay marriage as part of an incremental "assault on marriage", a laughable narrative to anyone with an understanding of marriage that goes back further than 50 years, and even more so to someone who specializes in or has knowledge of basic anthropology.
7.17.2006 11:23pm
SeaLawyer:
When you strip away what Marriage is by allowing ssm then you are on the slippery slope. Lets not forget that children are the real reason for Marriage. Last time I checked 2 men cannot produce a child.

I have yet to hear one valid reason to allow ssm.
7.18.2006 12:05am
ctb:
I think the case for polygamy is much stronger than the case for gay-marriage, expecially based on Lawrence. This is because advocates of polygamy don't seek official government recognition that their families are equal to "traditional marriages" (because common sense says that it's not)—something the gay marriage advocates can't grasp.

Instead they only ask that the government does not criminalize their private, intimate relationships (whether or not it includes sexual relations). In fact, the dissent in the Utah opinion cited by another poster relies on Lawrence to say simply that private, consensual adult relationships cannot be crimialized.

I have been waiting to see a post on this site about the Utah opinion, and especially the application of Lawrence by the dissent. Hopefully Dale or Eugene will post on it sometimes. I think it hasn't merited a post because it applies Lawrence to proygamist relationships, which they argue is very unlikely to happen...Surprise!
7.18.2006 12:09am
Nom De Droit (mail):
What of bisexuals? Remember, gays and lesbians have "teamed up" with bisexuals (along with trangendered) in a coalition (LGBT). If we are in favor of rights for bisexuals to the same extent we are for gays and lesbians, legalization of polygamy would seem to be necessary. After all, who are we to prevent a bisexual, who by definition has sexual relationships with both sexes, from fulfilling completely his sexual orientation? He would seem to require a plural marriage with a woman and with a man. Thoughts?
7.18.2006 12:10am
marghlar:
If there is an ethical argument for allowing same-sex marriage that doesn't also apply to plural marriages, I haven't seen it yet...

Well, the equal protection argument parses that nicely, because although sexuality is pretty darned immutable, the desire to marry multiple partners is far less so. (Although that probably deserves more Free Exercise protection than the courts have been willing to afford, in the religious examples...)

That being said, I think that there are good arguments for allowing polygamous marriages as a policy matter, and I'm not even sure that the arguments against incestuous marriage are that strong. But I doubt either of those run to the level of constitutional claims (absent religious belief).
7.18.2006 12:16am
Nom De Droit (mail):
Marghlar, what of my argument re: bisexuals? Isn't bisexuality immutable? If so, the your equal protection argument would seem to require polygamous marriages be available to them, no?
7.18.2006 12:21am
marghlar:
Marghlar, what of my argument re: bisexuals? Isn't bisexuality immutable? If so, the your equal protection argument would seem to require polygamous marriages be available to them, no?

Well, the question is, if bisexuality is immutable, what follows? They still have the right to form a pair bond with a person of their choice. You would need to show that the desire (in bisexual people, if you like) to form multiple pair bonds is immutable -- a much more difficult showing. I doubt that it is nearly as hard for anyone to choose to marry one, rather than several, people, as it is for a straight person to choose to marry someone of their own gender, or vice versa.

Outside of the religious context, I have difficulty accepting that there is a need for multiple marriages. By contrast, both gay and straight people desire to form pair bonds, and have little control over who they would like to pair bond with. To selectively award benefits to some pairs, but not others, on the basis of an immutable characteristic, seems to be at the heart of the EP principle. I have trouble buying the argument that the desire to marry multiple people is of the same nature.
7.18.2006 12:32am
marghlar:
In other words, there is a difference between being oriented so as to be able to couple happily with either sex, than to be oriented so that you must couple with members of both sexes in order to be fulfilled.
7.18.2006 12:33am
Nom De Droit (mail):
Marghlar,
But isn't the emphasis on "pair-bonding" just a recognition that social pressure stigmatizes plural relationships? After all, many married men have mistresses whom they lead a dual life with, suggesting that a desire to have multiple partners exists but is suppressed by society. I don't see the relevance of limiting the "right" to a pairing only. The right to SSM has been about fulfilling sexual desires and having those desires stamped with the state's blessing, so doesn't seem limited to a pair
7.18.2006 12:44am
yourpal:
Just a small correction: Dan Pinello is not a "law professor".
Pinello is a disbarred attorney (as a quick search here will indicate) who teaches undergraduates in the Government Department at John Jay College of Criminal Justice in NYC.
His views may or may not make sense; just correcting reference to his credentials.
7.18.2006 12:46am
Malvolio:
Do my desires have to be "immutable" before I have the right to indulge them? Why would my desire to marry another man be more immutable than my desire to marry two women? If immutability is some kind of precondition, is the marriage of man who later decides he is a homosexual automatically annulled?
7.18.2006 12:50am
Ship Erect (mail) (www):
Nom De Droit, when did marriage have anything to do with fulfilling sexual desires? When people get married, they stop having sex.
7.18.2006 12:51am
marghlar:
To be clear, the immutability requirement comes from conceiving SSM as an equal protection issue.

I don't really buy into the notion of "substantive due process," which would provide more generalized constituitonal rights to do whatever the hell you feel like, because you feel like it should be in the constitution. I think that is just anti-textual.

But I think that the equal protection clause, fairly read, applies to this situation. The immutability requirement is a standard part of equal protection doctrine.

And NDD, I really do think that the desire to only have sex with a person of a particular sex is immutable in a way that a desire to have sex with multiple people is not. I don't have a lot of science to cite to for this proposition -- it just represents my experience of the world, including both straight, gay and bi people. Lots of bi people happily settle down to form a pair bond -- happens all the time. I don't think many truly gay or straight people are happy crossing sides in order to pair bond.
7.18.2006 12:59am
liberty (mail) (www):
>But I think that the equal protection clause, fairly read, applies to this situation. The immutability requirement is a standard part of equal protection doctrine.

But does it have anything to do with any actual right of citizens?

Marriage is a contract. There is no right to marriage - and equal protection governs equality before the law - but if marriage is a private contract, it should not be affected by such doctrine - no?
7.18.2006 1:03am
Positive Dennis:
Whether or not polygamy is harmful seem to me to be moot. If we are going to say that two men have a right to be married, they why not one man and two women? I think that zero drug use would benefit soceity but that does not imply that I am pro prohibution.

Positive Dennis
7.18.2006 1:08am
Kevin L. Connors (mail) (www):
The only way polygamy can be challenged within the framework of libertarian first principles is via its ancillary offenses, such as fraud (as when a person is secretly leading a double life), of statutory rape (as is typical in "Mormon polygamy"). But we already have laws about those.
7.18.2006 1:20am
Truth Seeker:
I think Eugene has been overly influenced by some gay friends who are great couples and he hasn't met enough polygamous families. Either marriage is for one man and one woman or it should be open to anyone who desires state sanction of their union. Rather than a slippery slope it is a cliff, either you're on it or over the edge.
7.18.2006 1:22am
marghlar:
Marriage is a contract. There is no right to marriage - and equal protection governs equality before the law - but if marriage is a private contract, it should not be affected by such doctrine - no?

But the central flaw here is that the State has brought the discriminatory institution of marriage well past the arena of private contract, conferring special benefits that are only available to people who can qualify to be married. If the state wanted to get the hell out of the regulation of marriage and leave it all to private contract, that would answer the constituitonal problem. (I think it would be bad policy, because it is good to promote stable two-parent households, gay or straight, for child-rearing, but that is sub-constituitonal.)
7.18.2006 1:48am
The Voice of Reason (mail):
But I refuse to support polygamy until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support divorce until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support abortion rights until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support women's suffrage until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support the feminist movement until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support marriage until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support democracy until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support friendships until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support love until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.

But I refuse to support life until I hear of a situation in which all cases are truly happy and each individual is in an equal footing, able to walk away easily, is being supported enough emotionally, etc.
7.18.2006 1:55am
The Voice of Reason (mail):
Actually any person is allowed to have as many spouses as he or she wants, so long as one arranges them sequentially. Since you can have an infinite number, I'm not sure why you can't have more than one at a time. It's rather silly, if you think about it.
7.18.2006 1:57am
Hans Gruber (www):
"People opposed to same-sex marriage sometimes use the slogan "every child deserves a mother and a father" and presumably that doesn't mean they support same-sex marriage so long as no children are involved."

Though people get married for all sorts of reasons, the reason the state is involved with marriage is 95% due to the role marriage plays in the rearing of children (the other 5% has to do with regulating sex and gender equality/inequality). Thus, it follows that somebody who doesn't think society should encourage gays to have children is also somebody who doesn't think society should recognize and support gay marriages.
7.18.2006 2:18am
Bob Van Burkleo (mail):
The line 'people should be able to marry the person of their choice' does muddy the water because that isn't the situation. What is wanted is the right for every citizen to have a reasonable possibility of license to the civil contract of marriage with someone they would actually want to 'build a life with' (the immigration services catch phrase for defining a marriage).

Even though the right to marriage is a fundamental right the state can regulate even fundamental rights, speech, property, whatever. What has changed from yesteryear is that we now know there is an identifiable group of citizens that can only be reasonably expected to marry someone of the same gender. So the gender combination restrictions is not merely regulating their right but effectively proscribing their legally recognized exercising of same.

Polygamists already can license the existing contract with someone of the opposite gender that they would actually want to marry. That they might want to marry more is an entirely different situation. Further there is no identifiable type of citizen that can only be reasonable expected to be polygamous, e.g. "I had 2 wives and loved them all dearly but one died and now I can have no affection for the remaining one". Their right to marry is being regulated, but it is NOT being proscribed. And all that's without even touching on the point that middle eastern/biblical/mormon styles of polygamy would institutionalize unequal rights to the marriage participants.

Similarly there is no type of citizen that could only be reasonably expected to marry siblings, and there are very different reasons for proscribing them unrelated to the ones involved in the same gender problems.

The reality is the reasons so many courts have ruled for marriage equality is there is NO characteristic of citizen in a same gender marriage that isn't also present in opposite gender ones that can license the contract in support of marriage from the state. There is no gay marriage, just marriage.

People who think there is a slippery slope are thinking of 'gay marriage' as if it weren't just 'marriage' but some other thing. Its not - one citizen wanting to enter a mutually exclusive contract with another citizen. All citizens have a fundamental right to marry and they should all have a reasonably sized pool of potential cosigners to license the civil contract in support of marriage with.. All heterosexuals do, homosexuals do not but deserve one regardless.
7.18.2006 2:25am
Hans Gruber (www):
"So if you make the argument that Prof. Pinello is making, it's hard to ridicule the slippery-slope concerns that the other side raises."

But if you don't use the argument Pinello is making, then it's harder to frame the issue favorably (e.g. bigots against the enlightened). If there are some icky marriages where it's OK if we discriminate, then why isn't it OK to discriminate against gays too? Call this the sticky slope. Once people realize we discriminate everyday against behaviors and people we find icky, it's harder for them to accept discrimination against gays is necessarily bad. People favorably disposed toward gays are not likely to be affected, but others, a not insigificant number I believe, have been more or less browbeaten into supporting gay marriage for fear of being labeled a bigot or homophobe.

Part of this problem, I think, stems from the tenor of the gay rights struggle generally. Facing a natural aversion to homosexual practice, gay rights activists chose to go with the "none of your business, what does it hurt you" line of argument, instead of "there is nothing wrong with homosexuality" argument. Or this is at least the general view of "tolerance" which has prevailed. Faced with tolerance instead of acceptance, the Pinellos are more or less forced to go with the general "freedom for everybody" argument, because the average American, when pressed to give a reason, won't be able to tell you why polygamy is worse than homosexuality. He just knows it's OK to frown upon polygamy but not homosexuality.
7.18.2006 2:31am
The Divagator (mail) (www):

Seeking a rigid ideologically consistent basis to distinguish between gay marriage and any other form of "non-traditional" marriage is doomed to failure for now. Society at large is the appropriate body to decide what will and will not "harm" the institution of marriage and society as a whole, and there is no requirement that their judgment in such matters meet some amorphous requirement of philosophical consistency.

PatHMV, holy moly, someone finally got it right. Well said.
7.18.2006 2:33am
Paco Jones:
Cite for the Utah Supreme Court case, State v. Holm:

2006 UT 31

Link: http://www.utcourts.gov/opinions/supopin/Holm051606.pdf
7.18.2006 2:36am
Mark F. (mail):
Incest is rarer still, but there are already some people working for looser regulation: Cousin Couples for example.

Marrying your cousin is legal in California.
7.18.2006 3:05am
CBI (mail):
SSM does not, to my mind, fundementally change the structure of marriage as it's widely understood in the US. Two people joining under a legal contract to share life, wealth, child rearing, health decisions, etc. The basis remains the same regardless of the gender involved--two people.

Legalizing polygamy/polyandry would require a complete restructuring of established principles...social security benefits, intestate provisions, maintainance provisions, visa classifications, custody rights, government benefits...

As for incestous marriages? Lord help me for admitting it, but my aunt married a close cousin...those kids are just not right. That's enough proof for me to think it's a bad idea.
7.18.2006 3:46am
Cornellian (mail):
If we are in favor of rights for bisexuals to the same extent we are for gays and lesbians, legalization of polygamy would seem to be necessary. After all, who are we to prevent a bisexual, who by definition has sexual relationships with both sexes, from fulfilling completely his sexual orientation? He would seem to require a plural marriage with a woman and with a man. Thoughts?

I don't see that any such thing is required. If one considers a bisexual person as someone who is sexually attracted to others regardless of their gender, then I see no reason why that mandates polygamy anymore than the fact that a straight man is attracted to multiple women mandates polygamy. You get to marry anyone you like not everyone you like.
7.18.2006 4:03am
Cornellian (mail):
Same question as Caliban Darklock: How did you determine that polygamy would be more likely to hurt society than gay marriage? I skimmed your article and it only addressed the slipery slope argument.

The difference seems pretty obvious to me. In the case of polygamy, every man who marries a second wife necessarily implies that some other man will go without a wife and have to remain single. If we want people to get married rather than remain single, polygamy cannot be permitted.
7.18.2006 4:06am
Cornellian (mail):
I think Eugene has been overly influenced by some gay friends who are great couples and he hasn't met enough polygamous families. Either marriage is for one man and one woman or it should be open to anyone who desires state sanction of their union. Rather than a slippery slope it is a cliff, either you're on it or over the edge.

Interracial marriage was a slippery slope situation too. Either marriage is to someone of the same race or it should be open to anyone who desires state sanction of their union.
7.18.2006 4:08am
Cornellian (mail):
Though people get married for all sorts of reasons, the reason the state is involved with marriage is 95% due to the role marriage plays in the rearing of children (the other 5% has to do with regulating sex and gender equality/inequality). Thus, it follows that somebody who doesn't think society should encourage gays to have children is also somebody who doesn't think society should recognize and support gay marriages.

Getting married implies a vast array of legal rights and obligations relating to inheritance, decisions about medical care, taxation and any number of other things, none of which are dependant on having children. I'm not sure where you get the 95% figure, is that from the Bureau of Made-Up Statistics?
7.18.2006 4:11am
David Friedman (mail) (www):
'1. Women are forced into a subservient role"

I think this is backwards. As I argued long ago in the discussion of the economics of marriage in Price Theory and Hidden Order, legalizing polygyny increases the demand for wives and so bids up their implicit price--meaning that both polygynous and monogamous wives are in a position to demand more favorable treatment in marriage. In a society where daughters belong to their fathers, the increased price goes to the father as bride price, but in a society like ours, it goes to the wife.

Also, various people argue, in effect, that all the polygamous relationships they are aware of are ugly. Given that polygamy is illegal, sensible people engaging in such relationships--I've known of a few--maintain a low profile.

Or in other words I, like some other posters, cannot see why Eugene regards polygamy as a bad thing.
7.18.2006 4:24am
Bob Van Burkleo (mail):
.

Incest is rarer still, but there are already some people working for looser regulation: Cousin Couples for example.

Marrying your cousin is legal in California.


Yes its odd how many people don't know that the majority of states in the US allow first cousins to marry without restriction, and some allow it ONLY if they can't procreate (another nail in the 'marriage is for breeding' argument)
7.18.2006 4:48am
zarevitz (mail) (www):
CBI wrote: "my aunt married a close cousin...those kids are just not right. That's enough proof for me to think it's a bad idea."

Believe it or not, the marriage of your aunt and her cousin did not cause nor aggravate the problem. It was that your aunt and her partner had procreative sex, not that they were married (those kids would have had the same problem even if your aunt and her partner were not married). Should the law prohibit close cousins to have procreative sex? For the polygamy marriage--does the law prohibit three men, three woman, two men and one woman (or any other combiation) from living together and having procreative or nonprocreative sex?

I think all this debate originates in that the State benefits one type of unions against others types of lifestyles; it benefits married people against unmarried ones (including single ones). I agree with Cheechy that the solution would be that the government gets out of the marriage business. In my view, marriage should have the same civil effects as the First Communion does, i.e. none.
7.18.2006 5:36am
Perseus (mail):
For a philosophical critique of polygamy in the form of the old-style harem, see Montesquieu's Persian Letters. The modern variety would no doubt be kinder and gentler, but many of the social and psychological difficulties of the arrangement would remain. In cases where a religion sanctions and promotes polygamy, it would presumably have the effect of making the arrangement somewhat more stable, but I'm guessing that the bulk of those religions are "patriarchal," which many like Tammy (above) find objectionable.
7.18.2006 5:37am
Daniel Chapman (mail):
SSI - "SM does not, to my mind, fundementally change the structure of marriage as it's widely understood in the US. Two people joining under a legal contract to share life, wealth, child rearing, health decisions, etc."

Except it's widely understood that a MAN AND A WOMAN join under a legal contract etc. etc. If you're going to fudge things, why not just drop the number "two" from your definition too? "People joining under a legal contract..."
7.18.2006 7:55am
Cornellian (mail):
SSI - "SM does not, to my mind, fundementally change the structure of marriage as it's widely understood in the US. Two people joining under a legal contract to share life, wealth, child rearing, health decisions, etc."

Except it's widely understood that a MAN AND A WOMAN join under a legal contract etc. etc. If you're going to fudge things, why not just drop the number "two" from your definition too? "People joining under a legal contract..."


He said the structure of it wouldn't change (presumably the legal structure), not that it would be absolutely identical.

And dropping the number "two" doesn't work in our existing legal system. We have a well settled system for determining who gets to make decisions on behalf of a married person who gets sick, who inherits when a married person dies without a will, etc. none of which work where there are three or more people involved. Our present legal structure for marriage would have to be completely re-written for polygamy, but would not have to be for same-sex marriage. As a policy project, implement same-sex marriage would be easy. Implementing polygamy would not.
7.18.2006 8:20am
Federal Dog:
It is highly amusing to watch ideologues dismiss out of hand the ACTUAL EXPERIENCE of people who have lived in polygamous cultures. As though that fact somehow escapes dispassionate observation. Until you have some response to people who have actually lived the damage caused by polygamy, you have nothing to add to any discussion of it.
7.18.2006 8:25am
AppSocRes (mail):
Professor Volokh: Remember those silly dissenters in Lawrence v. Texas who used "slippery slope" arguments to suggest that declaring anti-sodomy laws unconstitutional would lead to homosexual "marriage"? To mix metaphors: The legal system of this country has gotten the water close enough to boiling that the frog is going to die.

Judges and lawyers are mostly idiot savants. They are brilliant at formulating arguments within a legal framework and moronic at seeing or even caring about the ultimate political, economic, and social impacts of those arguments. The whole situation reminds me of Njal's Saga, where a clever legal argument gets a defendant off the hook, but ends by destroying an entire society, the republic dependent on it, and of course the legal system that caused the disaster.
7.18.2006 9:07am
dk35 (mail):
I'm struck by EV's silence on Pinello's other suggested question, namely whether one thinks it is acceptable to continue living in a society where Americans who have gay romantic/sexual relationships are treated like second-class citizens. After all, that is really what this is all about, eh?

This, of course, also adds context to Pinello's other question, much needed context that EV failed to provide. Without the context, EV is arguing against a strawman.
7.18.2006 9:11am
logicnazi (mail) (www):
Let me distill my point down really simply.

Either polygamy and incestous marriages create significant real harms thus distingushing them from gay marriage and blocking any slippery slope argument or they do not. If they do not then it follows that there is no harm to allowing them and the slipperly slope is unproblematic.

It is no more reasonable to object to granting people a marriage right because some people might want to twist this into a practice with real harms than it is to object to libertarianism on the grounds that some people would claim they had the right to kill other people. When the action starts harming other people that changes everything.
7.18.2006 9:34am
Colin (mail):
Friedman,

That's a very interesting theory on the increased value of wives in a polygynous system. But is there any evidence for it? Either for the increased value benefitting the bride's father or, more significantly, the bride herself? The only example I know anything about--LDS fundamentalists--doesn't seem to bear this out.
7.18.2006 9:45am
Just:
dk,
Do you not read here much?
Of course he acccepts this.
Most who counsel patience do.

Still, understanding the personal background and watching him wrestle towards a greater fullness of being are effective timekills. I'd compare it to reading Court opinions: that said, I am not so sure these discussions are fingers on the pulse of the people. Less navel gazing, more work crafted to acknowledge and accomodate reality, please. (Why is that so hard?)
7.18.2006 9:49am
Aultimer:
The SSM-helps-society and polygamy/incest-hurts-society distinction is one of practical effect rather than logic. It's based on the experience of foreign and tolerated-but-illegal examples of both categories, where the evidence largely supports SSM and condemns the others.

One thread of the argument seems to say that it isn't legitimate to base our society on those bad experiences - "we already have laws against statutory rape and welfare fraud." There are compelling arguments for implementing communist or socialist government, but experience indicates otherwise. Right?
7.18.2006 10:06am
Ming the Merciless Siamese Cat (mail):
I agree entirely. Americans should have the legal right to marry the person of their choice. I choose to marry Angelina Jolie. Please have the legislation declaring Ms. Jolie my wife drawn up immediately.
7.18.2006 10:31am
Ken Arromdee:
I think this is backwards. As I argued long ago in the discussion of the economics of marriage in Price Theory and Hidden Order, legalizing polygyny increases the demand for wives and so bids up their implicit price--meaning that both polygynous and monogamous wives are in a position to demand more favorable treatment in marriage. In a society where daughters belong to their fathers, the increased price goes to the father as bride price, but in a society like ours, it goes to the wife.

Well, you've stumbled onto one of the problems yourself--the increased price goes to the father. Except that it isn't a binary "own"/"doesn't own" dichotomy, but one of degrees of control, so it can happen in a society where there isn't outright ownership of women. The greater the control the family has over the daughter, the less the wife takes advantage of the high price--and also keep in mind that what the family values as a price may not be the same thing the wife does. The family, for instance, may put more of a value on money and social status and less on what freedom the wife gets.

The free market analysis also fails to consider that the increased price for women may be reduced by reducing the size of the market. For instance, at least one Mormon splinter group has a habit of kicking out boys on flimsy pretexts, which reduces the "price" of the women. Likewise, Middle Eastern countries may encourage the death of men as soldiers (or suicide bombers).

And if you think of marriage as a free market, marriage has extremely high switching costs and vendor lock-in. A woman who tries to leave an abusive husband in a polygamous society may just be killed.
7.18.2006 10:31am
Jeremy T:
What about gay incestual marriages. Sister-sister? No genetic damage problems.
7.18.2006 11:12am
TC (mail):

What about gay incestual marriages. Sister-sister? No genetic damage problems.

Especially if they are twins!
7.18.2006 11:51am
Hans Gruber (www):
"Getting married implies a vast array of legal rights and obligations relating to inheritance, decisions about medical care, taxation and any number of other things, none of which are dependant on having children."

And why does the state provide this support? Because of the children! Do you doubt this? Heterosexual couples who are married their entire lives without ever attempting to have children are, in a sense, getting something they should not. But this is rare, and it was even rarer when the state became involved in marriage. Further, it doesn't make sense to withhold benefits until children are born because the state can rationally conclude that the marriage and its benefits promote stability which is necessary to start a family. Since heterosexual marriages naturally and ordinarily result in children, the state giving benefits immediately rather than upon the birth of children is not a irrational act.
7.18.2006 12:15pm
Randy R. (mail):
If marriage is mostly about raising children, then what about the experiences in CAnada, Belgium and the Netherlands? People are still getting married there, and having babies, and raising them.
7.18.2006 12:23pm
Hans Gruber (www):
"If we want people to get married rather than remain single, polygamy cannot be permitted."

In other words, polygamy is undesirable because it can spread, and if it spreads society wouldn't function like we would want. Homosexual marriage, however, cannot spread beyond a certain threshold, so it should be encouraged, even if it would be as or more undesirable as polygamy if it existed at high levels.

This begs the question: Why should society support something which would be unacceptable if more people could do it? Doesn't that suggest that society's interests are not being served by promoting gay marriage? But pushing gay marriage isn't about societal welfare, it's about absolute "equality" even when equality doesn't make sense.
7.18.2006 12:28pm
Just:

Q. If it's all about the children, what about regulating divorce and remarriage?

A. It's not really about the children.
7.18.2006 12:45pm
Jimmy (mail):
And back to the "marriage is for children" foolishness. When you get married, where are the children mentioned in the vows? Well? Sickness? Health? Those two are covered at least.
7.18.2006 12:53pm
Hans Gruber (www):
"Interracial marriage was a slippery slope situation too."

No, it wasn't. Racial discrimination is special under our Constitution, so accepting that racial discrimination in marriage is unacceptable meant very little about other discrimination which was not subject to strict scrutiny.

Discrimination against sexual orientation, however, is subject to the lowest rung of constitutional protection. The slippery slope, then, is very real because sexual orientation is not treated to heightened scrutiny; it is treated under the same standard as incestuous marriage. Still, one may argue that it's "rational" to ban incestuous but not gay marriage. Fair enough. But it's hard to argue that the slippery slope is more of a concern with gay marriage than it was with interracial marriage.
7.18.2006 12:56pm
Hans Gruber (www):
Marriage is, of course, about much more than children. The STATE'S INVOLVEMENT IN MARRIAGE, however, only makes sense in light of the interest in rearing children.
7.18.2006 12:59pm
Captain Holly (mail) (www):
I think this is backwards. As I argued long ago in the discussion of the economics of marriage in Price Theory and Hidden Order, legalizing polygyny increases the demand for wives and so bids up their implicit price--meaning that both polygynous and monogamous wives are in a position to demand more favorable treatment in marriage. In a society where daughters belong to their fathers, the increased price goes to the father as bride price, but in a society like ours, it goes to the wife.

You're actually correct. When my great-great-grandfather proposed to my g-g-grandmother (his seventh wife), her parents demanded -- and he agreed -- that she have her own house and property before the marriage, so she could live on her own and not have to deal with his other wives if she chose not to.

Although this may sound a bit mercenary, remember we're talking about 1850's Utah, which was a barely-civilized oasis in the middle of a harsh wilderness. Polygamy, as it was practiced in the 1800's, was far, far different than polygamy today. There was a whole different set of economic and societal paradigms in effect back then that render comparisons between historical Mormon polygamy and its modern counterpart invalid.
7.18.2006 12:59pm
anonyomousss (mail):
And why does the state provide this support? Because of the children!

hans, is this supposed to be a historical claim? i suspect that from a historical perspective the decisions to grant various rights to married couples had relatively little to do with the welfare of children and was mostly about interest-group politics. i could be wrong, but that's my guess.

is it a factual claim about the present - i.e. that our collective decision to keep legalized marriage around rather than abolishing it has been caused by our interest in the welfare of children? my guess is that it has more to do with the fact that it's been around for a long time, seems to work reasonably well for the most part, people are squicked by the thought of alternative social arrangements, and pretty much nobody has any incentive to generate arguments for abolishing it.

or is it a claim about justification? that is, that the welfare of children provides the one and only good reason for legal marriage? i think there are lots of good reasons, including but not limited to the welfare of children.
7.18.2006 1:00pm
JPS3L (mail):
Prof. Volokh,

Isn't the exact problem that you make reference to concerning the boundless nature of the marriage right that same-sex marriage advocates seek also a reason to find the entire issue to be non-justicable? Indeed, as Professor Carpenter’s comments on Volokh Conspiracy suggest, courts have struggled to articulate a meaningful definition of the “fundamental right” that same-sex couples are trying to obtain in the context of marriage. I suppose an initial question may be whether gay and lesbian couples are arguing for state-sanctioned legal unions that confer the same benefits as marriage or whether their argument is to change the definition of marriage itself to include same-sex couples? I raise this point because I believe that the marriage rights the courts have previously dealt with have all involved one man and one woman who are not already related to each other. See generally, Loving v. Virginia (“right to marry a person of another race”), Turner v. Safley (“right of prison inmates to marry”), and Zablocki v. Redhail (“right of deadbeat parents to marry”). Indeed, the only marriage case that I am familiar with that dealt with a different formulation of marriage was United States v. Reynolds, in which the Court declined to extend Constitutional protection to polygamous couples on free exercise grounds. With either strategy (i.e. marriage functional equivalency or changing the definition of marriage altogether), the conundrum remains the same: how does a court develop a legal standard that is broad enough to include same-sex couples while being narrow enough to exclude polyamory and incest? It strikes me that if too broad a definition is adopted, polyamory and incest would be included; while too narrow a definition would impermissibly discriminate against polygamous and incestuous couples. Put another way, the court could not announce a judicially discoverable and manageable standard that would meaningfully distinguish same-sex marriage from polyamory and incest. (Though, I agree that distinguishing same-sex marriage from incest is easier, at least insofar as consanguine couples intend to procreate together, which I understand to involve various health concerns for the baby.) Not surprisingly, Justice Scalia alluded to the problems associated with nebulous judicial standards in Casey, albeit in a different context.

The right to abort, we are told, inheres in “liberty” because it is among “a person's most basic decisions;” it involves a “most intimate and personal choic[e]:” it is “central to personal dignity and autonomy;” it “originate[s] within the zone of conscience and belief;” it is “too intimate and personal” for state interference; it reflects “intimate views” of a “deep, personal character;” it involves “intimate relationships” and notions of “personal autonomy and bodily integrity;” and it concerns a particularly “ ‘important decisio[n].”…But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society…Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 983-984 (1992) (Scalia, J. Dissenting) (Internal citations omitted).

Thus, it would seem plausible that a court could very well hold an issue like same-sex marriage to be non-justiciable precisely because of the difficulty associated with articulating a judicially discoverable and manageable standard. But even if a court articulates such a standard (however problematic it may be), there is still another argument to support the non-justiciability of this issue. The Carr Court also stated that “the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government” would serve as another justification for holding an issue non-justiciable. Accordingly, where an issue presents a question that both the legislative and judicial branches share a responsibility for resolving, the Court should not decide the issue in a political vacuum that ignores the input of the coequal branches of government. In this case, the Constitution states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, Sec. 5. Thus, Congress has the power to enforce the requirements of the due process clause and equal protection clause of the 14th Amendment, and not the Court alone. Moreover, since Congress has already defined marriage as, “a legal union between one man and one woman as husband and wife,” it would appear that a federal court decision to the contrary would express a lack of respect for the coordinate legislative branch. 1 U.S.C. Sec. 7. (While DOMA was not promulgated pursuant to its Sec. 5 authority, the statute nevertheless articulates Congressional intent vis-à-vis the definition of marriage; moreover, there is a reasonable inference that Congress’ failure to correct a perceived violation of 14th Amendment regarding traditional definitions of marriage codified in state law suggests that Congress does not believe such an injustice to be afoot.) In any event, whether the Court were to approach its justiciability analysis under the judicially discoverable and manageable standard rubric or according to its concern for respecting the constitutional obligations of a coordinate branch of government, it would seem that there is at least an argument that same-sex marriage raises a political question that is best left to the elected representatives.

While I acknowledge that this argument may actually be an argument against substantive due process litigation generally (as it was in Justice Scalia's Casey dissent), I still believe that the question of a nebulous definition of the marriage right being sought works to support a Court's decision not to decide such a case at all. Accordingly, it is not so much a slippery slope argument as it is an acknowledgment that a Court would be hard pressed to articulate a judicially discoverable and workable standard that would protect same-sex marriage while contemporaneously exclude polygamy and incest.
7.18.2006 1:00pm
KeithK (mail):
This whole discussion thread underscores how important it is that this issue be settled through the democratic process and not via the courts. There is a slippery slope here - the only question is how slippery it is. Legislators and the democratic process are much better equipped to determine where to stop on the that slope based on the preferences of society. The judicial system makes it a lot easier for a small minority to force an issue down the slope by finding a sympathetic court.
7.18.2006 1:07pm
Hans Gruber (www):
"It is highly amusing to watch ideologues dismiss out of hand the ACTUAL EXPERIENCE of people who have lived in polygamous cultures. As though that fact somehow escapes dispassionate observation. Until you have some response to people who have actually lived the damage caused by polygamy, you have nothing to add to any discussion of it."

Those who go public will, on average, be those who had a poor experience and are no longer part of a polygamous community. This bias exists because polygamy's continued criminalization/stigmatization. Those happy with the lifestyle are going to be less willing to share their story with the public because doing so risks their happiness and continuation of the lifestyle.

Are you going to take at face value the former or "cured" gays who have claimed to have been "damaged" by being gay? What is your basis for believing those who speak against polygamy but not homosexuality? Personal prejudice against the former but not the latter? And as far as anti-social or unhealty behavior, I'm sure the gay community has no examples of that, right?
7.18.2006 1:15pm
Caliban Darklock:
"If we want people to get married rather than remain single, polygamy cannot be permitted."

This makes no sense.

There's a young cashier at my local grocery store who is looking to get married, but is really unlucky in love. (I'm deliberately avoiding gender and sexual preference, because the principle is the same no matter what.)

If we were to say for the sake of argument that my wife and I both have strong feelings for this person and would not oppose adding a third partner to our marriage, why exactly is it *better* to leave this person miserable and single?

How exactly does it benefit society to have two married now and MAYBE four married later, as opposed to three married now?
7.18.2006 1:51pm
dweeb:
people who had become persuaded that there is a "right of all New Yorkers to marry the person of their choice" would feel that they ought to apply that right as it was initially enunciated, rather than to throw in qualifiers.

Aren't SSM opponents basically defending the right to marry the person of your choice with a qualifier that the person must be of opposite gender? What differentiates one qualifier from another?

That's the problem with your attempts to separate such issues. There's more historic precedent for removing the qualifiers you speak of than the one at issue. Changes to societal institutions are like potato chips; you can never have just one. The slippery slope arguments you claim are not valid have already been borne out in the Netherlands. Your reassurances ring hollow in a country on the trailing edge of the wave, because one can clearly observe the leading edge effects in other countries.
7.18.2006 2:03pm
Dan Hamilton:
And then you have the PC argument for polygamy. I believe that it is being used in Canada to get approval there. Religious freedom and multiculturalism. Muslims want to practice what their cultures have always allowed therefore how can we impose our culture on them. It is wrong to keep them from having multiple wifes.

The arguments about women being subserviant are also wrong. Under polygamy the new husband/wife would be marring BOTH people, all people in the marriage would have to agree. If not then you would have bigamy. This would be different than old style patrical polygamy but nessary under our laws. ALL parties to a contract must agree to the contract. How could it be otherwise?

Just think a PC arguement for Polygamy that doesn't even look at SSM. There are more arguments for Polygamy then there are for SSM. And some of you think it can be stopped.
7.18.2006 2:16pm
Don Miller (mail):
My family have the journals of my great-great-great-great grandfather and his son, my great-great-great-grandfather. Both men were early members of the LDS Church. Both eventually had 2 wives.

Both men kept seperate households for their wives. In the case of the son, he had one home in northern Arizona, and one in Southern Utah. He would live with one wife until the local sheriff got wind that he was in the area, then skip across the border to the other family. I am descended from the AZ family.

Posters are correct, the modern LDS church does not allow members to practice polygamy, as recognized by the world. One of the fundamental Articles of Faith states "We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law."

However, there are exceptions that allow the modern equivalent of a polygamous family in the LDS church. My Grandfather and Grandmother were married in a ceremony in an LDS Temple. We believe that their marriage is for time and all eternity. In other words, it survives beyond their death in the eyes of the church. My Grandmother died 20 years ago. Two years later my Grandfather remarried. He happened to marry a woman in her 50's who had adult children and had never married a man in a temple ceremony. My Grandfather, with the blessing of the LDS church, married her in a temple service as well. Over the next few years, 3 of her 4 children became "sealed" to my Grandfather as well. In the eyes of the church, these are his children, the same as if they were born to him and his new wife. These are religious adoptions of adult children, not legal adoptions.

So in the eyes of the LDS Church, my Grandfather has two wives and two families. In the eyes of the world, it is still okay because his first wife had died before he even met the second woman.

We have annual joint family reunions with both families to this day. We go to each others weddings, graduations, and funerals. I have seen the love and respect that both families have for my grandfather.

At the peak of polygamy in the 19th Century LDS Church, less than 10% of marriages were for polygamous relationships. The vast majority of relationships were monogamous. Historically more women survived to adulthood than men. I believe that polygamy developed as a method of providing a societal safety net for the extra women. In modenr US society, more men are surviving to adulthood than women now. Traditional polygamy doesn't provide the same societal benefit anymore because it would exacerbate the lack of eligible women.
7.18.2006 2:24pm
anonyomousss (mail):
At the peak of polygamy in the 19th Century LDS Church, less than 10% of marriages were for polygamous relationships.

this is just factual quibbling and mostly unrelated to the topic under discussion, but do you have a cite for this? those kinds of claims are hard to evaluate without knowing how things were counted. e.g. if a man was married to two women, was that one marriage or two for the purpose of your statistic?
7.18.2006 2:32pm
paulhager (mail) (www):
Everyone seems to be ignoring the form of polygamy known as polyamory - multiple wives and husbands.

For nearly all of human existence, children were reared in a tribal, extended family. That is "natural". The so-called nuclear family is an aberration only around a century old and it arguably doesn't work very well. About the only way to bring back something like an extended family that could function in the modern world would be some sort of group marriage, possibly like the "line marriage" described by Heinlein in THE MOON IS A HARSH MISTRESS (of course, other group marriage arrangements are possible).

It is critically important that human beings have the opportunity to experiment with different family arrangements. I expect that group marriage for those who are unhampered by genetically programmed stone age jealousy will actually be vastly superior for child-rearing and that the descendents of those arrangements will eventually become dominant.

I'd also add that if the state does have a role in marriage - as a libertarian I think it generally doesn't - then the ONLY rationale that makes sense is for the state to promote the creation of the next generation. Gay marriages are not procreative and there is no reason for the state to promote them in any fashion. Polygamous marriages, on the other hand, can be procreative and should therefore always be favored over SSM.

Therefore the whole SSM debate is completely inverted - if there is to be some sort of social priorty in liberalizing marriage laws it should favor legalizing polygamy BEFORE SSM.
7.18.2006 2:37pm
Closet Libertarian (www):
Don't discount the Big Love effect: http://www.hbo.com/biglove/

HBO makes polygomy look ok (stylized pros and cons of course). People often imitate TV.

I think this makes the slipery slope argument more plausible. Gay marrige is different but it does open a door to redefining marriage.
7.18.2006 2:48pm
josh:
An interesting post from someone who complains of Slate.com taking things out of context when posting GW's Bushisms of the day.

The professor in question never advocated for anything other than same-sex marriage rights, so the comment "the right of all New Yorkers to marry the person of their choice" must be read as merely relating to those persons. The "right" he's speaking of is simply an abbreviation of everything he's been advocating previously.

Moreover, I wonder whether the real animus in Volokh's post is the militancy of the call to arms, so to speak. Right now, I think homosexuals across the country who are seeing activist courts codify discrimination into the laws have every right to be a little pissed and to take the course of civil disobedience.
7.18.2006 2:51pm
Cornellian (mail):
"Interracial marriage was a slippery slope situation too."

No, it wasn't. Racial discrimination is special under our Constitution, so accepting that racial discrimination in marriage is unacceptable meant very little about other discrimination which was not subject to strict scrutiny.


Those are two separate and distinct issues. Whether or not SSM is a "slippery slope" is a policy or logical issue. That's separate and distinction from the legal implications of allowing SSM. Something can be a slippery slope legally, whether or not it's dealt with, directly or indirectly, the federal or a state constitution. By your logic, SSM to polygamy wouldn't be a slippery slope either, because the federal Constitution doesn't protect polygamy, ergo enacting SSM wouldn't, constitutionally, mandate polygamy.
7.18.2006 3:00pm
paulhager (mail) (www):
Randy R. says:

If marriage is mostly about raising children, then what about the experiences in CAnada, Belgium and the Netherlands? People are still getting married there, and having babies, and raising them.


Not to put too fine a point on it, all of those countries have low fertility rates - so low that they are slowly dying out (Canada may compensate somewhat through immigration). I don't think that SSM is really that important a factor - the social welfare state + tax burden is the main culprit. However, the only "general welfare" argument that can be advanced in favor of state involvement in marriage must be to maintain the existence of the state itself. Chronic low fertility is a serious problem and THAT should be the focus of legal/social action with respect to marriage. There is no way in which SSM is a solution to that problem.

Let's be clear. Marriage is a universal cultural rite that reflects genetically determined human behavior geared to perpetuating the species. The fact that no culture has ever recognized gay marriage - or at least we have no record of such - suggests that it has been rigorously selected against for tens of thousands of years at least.

As a matter of law, I have no problem with permitting homosexuals (could be more than two, BTW) to enjoy the legal benefits of marriage but, in recent years, I've been finding the hypocrisy, stridency, and bigotry of the gay marriage movement more than a little off-putting. The best one can say of the movement it that it is politically tin-eared.
7.18.2006 3:04pm
Ken Arromdee:
The professor in question never advocated for anything other than same-sex marriage rights, so the comment "the right of all New Yorkers to marry the person of their choice" must be read as merely relating to those persons.

That doesn't follow.

The comment must be read as *intended* to refer merely to those people. However, he could have made an argument whose reasoning applies to more cases than those he intended to include.
7.18.2006 3:05pm
Cornellian (mail):
And why does the state provide this support? Because of the children! Do you doubt this? Heterosexual couples who are married their entire lives without ever attempting to have children are, in a sense, getting something they should not. But this is rare, and it was even rarer when the state became involved in marriage.

Of course I doubt it. Why should I believe that the state regulates marriage "because of the children" when that regulation applies regardless of whether there are children involved, and when one's obligations to one's children apply regardless of whether there is a marriage involved? Concern for the raising of children certainly has some impact on some aspects of why marriage is regulated in a particular way, but it's hardly the sole or even the primary determinant of why marriage is the way that it is.

And were childless marriages ever rare? Did widowed women never remarry in the past, and thereby enter into marriages in which no one expected children would be the result?
7.18.2006 3:06pm
Captain Holly (mail) (www):

this is just factual quibbling and mostly unrelated to the topic under discussion, but do you have a cite for this? those kinds of claims are hard to evaluate without knowing how things were counted. e.g. if a man was married to two women, was that one marriage or two for the purpose of your statistic?


According to this source, it was between 1 and 5 percent of Mormon men. It's from Wikipedia, so take it with a grain of salt, but it's similar to other sources that I've seen which gave estimates at 3 to 5 percent.
7.18.2006 3:11pm
obi juan (mail):
1) A woman sues saying that she wants to use the men's restroom. She says that it is inherently discriminatory that only men can use the men's restroom, and only women can use the women's restroom.

2) The court agrees that it is inherently discriminatory and gives the legislature 45 days to rectify the situation.

3) The legislators want to make a law that puts a unisex restroom alongside the men and women’s' restrooms, but asks the court if this would satisfy their ruling.

4) The court rejects that solution finding that women are men, and men are women. There is no difference between the sexes and either should be able to use each other's respective restrooms. To create a separate bathroom is discriminatory.

5) And so now restrooms are open to anyone.

Replace “restrooms” with “marriage” and “unisex restroom” with “civil union” and you have what happened in MA. Your talk of activist right wing courts codifying discrimination is silly.
7.18.2006 3:12pm
Cornellian (mail):
Let's be clear. Marriage is a universal cultural rite that reflects genetically determined human behavior geared to perpetuating the species. The fact that no culture has ever recognized gay marriage - or at least we have no record of such - suggests that it has been rigorously selected against for tens of thousands of years at least.


And allowing the wife equality with the husband was "rigorously selected against" for tens of thousands of years too, so what?

And as for "no culture has ever recognized gay marriage" are Spain, the Netherlands and Canada not cultures? Have any of those cultures collapsed as a result of having SSM?
7.18.2006 3:13pm
Ivan:
Eugene Volokh:
Now I'm pretty certain that most supporters of same-sex marriage (quite likely including Prof. Pinello himself) do not support the right of all New Yorkers to marry the person of their choice. They would presumably deny this right to New Yorkers who want to marry their siblings. They would also presumably deny it to New Yorkers who want to marry someone who is already married, even if the New Yorker gets permission from the other person's other spouse.

It is actually a quite common phenomenon that people support some abstract principle merely because it sounds good, without bothering to think even about its most straightforward implications. For example, a majority of people would probably be in favor of the principle that one is entitled to the ownership of one's own body, if asked in abstract terms. However, only a tiny minority would ever even consider accepting some of its direct implications (e.g. the injustice of the drug war, right to sell one's organs, or the right to assisted suicide). Things are very similar when it comes to freedom of speech, which just about everyone understands as "freedom of speech as long as I don't find it too disturbing or offensive."

Political arguments are not about logical inference, they are about arousing emotion -- and an abstract arguent that arouses favorable emotions in most listeners is perfectly effective, regardless of its effect on the small minority that actually bothers to explore its logical implications. Consequently, most political rhetoric will fall apart under even the most superficial intellectual scrutiny, and Prof. Volokh's post gives just one (quite moderate) example of this.
7.18.2006 3:22pm
Bob Van Burkleo (mail):

Replace “restrooms” with “marriage” and “unisex restroom” with “civil union” and you have what happened in MA. Your talk of activist right wing courts codifying discrimination is silly.

What's silly is your equating 'marriage' with a place. Now if you were actually equating it with the right of 'bodily elimination' you might have had a stronger case.

'Separate but equal' has been rejected by a federal courts let alone the states who's constitutions often acknowledge more rights to the citizen. That's the way it would be here in Washington state - they couldn't exclude either citizen access to the civil contract based on the gender of their contract cosigner. All they would be doing would be creating 2 unconstitutional contracts, one of which is 'marriage lite' (not recognized federally or outside the state). Just as over 70% of the registered domestic partners in Seattle are heterosexual expect a state civil union to be just as attractive.

Even if there is a state civil union contract, the couples will still be 'married', they will still have 'husbands', 'wives' and 'spouses'. All this grousing about a word that some people think they are going to be able to somehow restrict the usage of when they have no such power or right. Gay couples already marry naturally and religiously, whether they are licensed by a 'marriage' contract or a 'civil union' they will still be married civilly.
7.18.2006 3:34pm
Bob Van Burkleo (mail):

Except it's widely understood that a MAN AND A WOMAN join under a legal contract etc. etc. If you're going to fudge things, why not just drop the number "two" from your definition too? "People joining under a legal contract..."


Because this is an equal access issue. If the state had no civil contract in support of marrage there'd be no problem - no citizen would have access. But the reality is the state does license a contract in support of marriage, and if it does so the contract must be reasonably accessible to all married citizens or have a really really good reason why it isn't.

Gay couples marry naturally and religiously - issue is why don't they have any reasonable ability to license the EXISTING contract with the only gender of spouse they can reasonably expected to have? There are no citizens that can only be reasonably expected to have multiple spouses, there are no citizens who can only be reasonably expected to marry a close relative. This is an equal access issue with gay citizens the only ones with no reasonable ability to license the civil contract in support of marriage.

Law is a made-up tool for dealing with the real world the way it really is and for it to remain valid it does have to touch base with the real world every now and then.
7.18.2006 4:04pm
Bob Van Burkleo (mail):
Let's be clear. Marriage is a universal cultural rite that reflects genetically determined human behavior geared to perpetuating the species.

I would have to say you are clearly wrong - that mammals will breed without remaining partnered is obvious. Our need to marry stems from our 'genetically determined human behavior' of pair-bonding, mediated by vasopressin and oxytocin and even though initiated by sex doesn't not need or require breeding to occur to be established or the personal and social benefits to be acheived.

Yes, that children often occur as a result of these pair bondings and that because of the pair bonding the children have a better developmental environment is a given. But the fact still remains that all citizens have a need to pair-bond, that they are happier and healthier if they pair-bond and many of these pairbonded couples that don't breed themselves will be raising the children by or of others - the ability for themselves to breed is not a requirement for the benefits to occur.

''Genetically determined human behavior' is a reason why adult citizens should be given the greatest opportunity as possible to pair-bond and why it would be beneficial to the group to have them do so.
7.18.2006 4:16pm
Malvolio:

Judges and lawyers are mostly idiot savants. They are brilliant at formulating arguments within a legal framework and moronic at seeing or even caring about the ultimate political, economic, and social impacts of those arguments.
Good! This is a nation of laws not a nation of men. Judges are tasked with upholding the law, not editing to fit their own private notion of the "public good".
7.18.2006 4:20pm
Holly:
If the government's interest in marriage was really "for the children" divorce and birth control would both still be illegal. Perhaps those were true beginnings of this slippery slope to gay marriage and beyond. Reproduction has become both scientifically (IVF) and socially distinct from partners in general and marriage in particular. I'm cool with that, personally, but a lot of people aren't. And they, correctly, see gay marriage as the next step. Marriage was once the joining of two families, of two young people into the adult world. It was a contract with society as a whole, not just the spouse. Now, like so many other things, marriage is about the individual and their wants and desires. Once again, I'm personally cool with that, but I can see how many people objecting to the trend see gay marriage as a disgraceful expansion of the personal desires above all else worldview.

Gay marriage would absolutely open the door for "consenting adults" to push for their right to consent to marriage. And I have no logic, no rational to stop them, nor do I particularly wish to. Morality and perferences for your culture's social structure are not rational topics.

Okay, I'll give the hetero-only crowd credit for one sub-conscience piece of rationality: interest group politics. Jane Galt makes some great points about how stay-at-home mothers benefit from most women being stay-at-home, and vice versa. For similiar reasons, everyone having a family structure like yours increases the benefits for your family structure, socially and politically. I know I don't want to compete in the workplace against a woman who can just leave her kids at home with her co-wife, even if they're sick. I realize the same could be said of a women with a stay-at-home husband or even a nanny, but it would still expand the pool of people that would grumble when I had to stay home with my kid.
7.18.2006 4:32pm
Duncan Frissell (mail):
Additionally Eugene,

The 'gay' community is an open class currently consisting of L,G,B,T,Q,etc. No one can determine what the class will contain at any future point.

And at least one member of the class (bisexuals) can only fully express sexuality in a multiple partner marriage. This is also a source of slippage. The same analysis may also apply to 'questioning' individuals (depending on how each answers the question).
7.18.2006 4:36pm
Jamesaust (mail):
I guess I'm confused at Eugene's confusion implied in seeing a narrow restriction on sibling marriage linked to a broad restriction on "duplicate" marriage for someone already married. (Note: polygamy is traditionally understood to involve a man marrying an *unmarried* female, since marrying a married female then creates some manner of relationship between the two husbands - a "line marriage"?)

While polygamists might attempt to explain away the social ills associated with polygamy as a result of societal repression and not the institution itself, it does seem unavoidable that polygamy, widely practised, has several distinct problems:
1. I am unaware of any society that has practised it that was not also a society that held women to an inferior status relative to men.
2. Economically, the only practical practioners are men who are fabulously wealthy (the sultan of Brunei) or those who engage in extensive fraud (welfare, etc.).
3. What do you do with the "extra" males?

It seems fairly obvious to me that these (and other) problems provide a strong interest in preventing such a practice. Indeed, #3 strikes directly against marriage by creating a distinct imbalance in partners. What's more, society has a strong interest in preventing large numbers of unmarried males, particularly not married against their will, from existing.

By contrast, same-sex marriages (almost always discussed as male-male marriages - who speaks for the lesbians?) ameliorates real or perceived societal problems attached to homosexuality. If society has an interest, for example, in limiting irresponsible behavior (a traditional jibe against gays - shhh, dont' tell the NY Court of Appeals), marriage would be a key mechanism to do so. Unfortuantely for many, logic is tossed out the window and prohibition of marriage is taken to be a justified "punishment" that solves nothing.

Saying that allowing one woman to marry another women will give way to polygamy is like saying counting every vote will give way to counting (some? every?) vote multiple times.
7.18.2006 5:09pm
Jon Rowe (mail) (www):

And at least one member of the class (bisexuals) can only fully express sexuality in a multiple partner marriage.


This is wrong. There is nothing in bisexuality that requires a bisexual to be involved in a relationship with both a man and a woman. Rather, it's a potential for full attraction to either gender.
7.18.2006 5:16pm
non_Lawyer:

There is nothing in bisexuality that requires a bisexual to be involved in a relationship with both a man and a woman. Rather, it's a potential for full attraction to either gender.
So, if a bi-sexual gets married (whether to a man or a woman), s/he is twice as likely to cheat?
7.18.2006 5:26pm
Elliot123 (mail):
Sea Lawyer:
"When you strip away what Marriage is by allowing ssm then you are on the slippery slope. Lets not forget that children are the real reason for Marriage. Last time I checked 2 men cannot produce a child."

The real reason for civil marriage is whatever the couple chooses. They can choose marriage for children, or they can choose it to pass the crack pipe.
7.18.2006 5:37pm
markm (mail):
Polygamy harms society in two ways:
1. Women are forced into a subservient role where their needs are secondary to a man


The same was generally true of monogamous heterosexual marriage a century ago. Even 40 years ago, the bride would vow to "love, honor, and obey", and the groom would vow to "love, honor, and cherish". Go back less a hundred years before that, and in many states the husband would legally control his wife's property, nor would the police and courts be likely to interfere if the man decided to enforce that "obey" clause with a stick, provided he didn't hurt her too badly...

Anyone care to argue that changing marriage from male-dominant to an equal partnership has lead to massive social decay? If not, care to explain why you think that a few percent of same-sex marriages will have greater impact than a great change affecting all marriages did?
7.18.2006 5:39pm
anonyomousss (mail):
So, if a bi-sexual gets married (whether to a man or a woman), s/he is twice as likely to cheat?

you have to make some bizarre assumptions about what affects the probability of cheating for this to work. if the probability of cheating is directly proportional to the number of potential partners, then bisexuality increases the probability of cheating by somewhere between 4% and 12% depending on what assumptions you use.

this is really just a silly game, though. roughly the same assumptions would lead you to the conclusion that the adultery rate in new york should be several factors of 10 higher than the adultery rate in small towns (because there are more people in new york, there are more people you could theoretically have an affair with). i'd be surprised if this were true.
7.18.2006 5:40pm
JerryM (mail):
And as for "no culture has ever recognized gay marriage" are Spain, the Netherlands and Canada not cultures? Have any of those cultures collapsed as a result of having SSM?

In fact,the marraige rate in the Netherlands has plummeted. Hardly anyone gets married anymore.
7.18.2006 5:41pm
Colin (mail):
In fact,the marraige rate in the Netherlands has plummeted. Hardly anyone gets married anymore.

Is there any evidence connecting that to SSM?
7.18.2006 5:47pm
non_Lawyer:
I really only posted that as a joke; but I have no idea where you get the 4% and 12% from.

Seriously, the only assumption you have to make is that "attraction to a person" = "potential for infidelity."

And if that assumption is given, then if I'm potentially attracted to twice as many people, (that is, the entire set of people, male &female), then my potential for infidelity should increase twofold (not 4% or 12%) regardless of whether I'm in a small or large town (the total number of potential mates doesn't matter -- I'm just multiplying by two).

As for your "New York" question, I would bet that small-town values in general would lead to less infidelity than the archetypal "anything goes" ethos of New York. Unless you happen to live in Peyton Place.

But anyway -- it was just a little joke that is way off-topic -- sorry!
7.18.2006 5:55pm
non_Lawyer:
By the way -- (then I'll shut up!)

"Attraction to a person" DOES NOT EQUAL "potential for infidelity" in my world, anyway.

Just wanted to clarify that.

Cheers.
7.18.2006 6:05pm
anonyomousss (mail):
non_lawyer, fair enough. my "statistics" were made up accounting for the fact that most people are straight and uninterested in having an affair with someone of the same sex, so being bisexual doesn't increase your options that much as a practical matter. i wouldn't be surprised if there's more infidelity in new york either (though i can think of reasons there might be less) but it's not going to be proportional to the population.
7.18.2006 6:11pm
John Herbison (mail):
As many commenters have observed, erosion of a State's right to regulate what classes of persons may marry one another is a slippery slope. The state of affairs that existed prior to marriage being recognized as a fundamental right in Skinner v. Oklahoma stood at the summit. Skinner, which invalidated an Oklahoma habitual criminal statuted that mandated sterilization of a person convicted for the third time of larceny, but nit a person convicted three times of embezzlemen, is at least one level closer to the base. Loving v. Virginia, which invalidated a statute which criminalized marriage between white and "colored" persons, is yet another level down.

The opposition to miscegenation in several quarters when Loving was decided in 1967 was just as virulent and intense as the current opposition in some segments of society to same sex marriage, if not more so. The Supreme Court nevertheless opined that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men", 388 U.S. 1, 12, such that restraints upon such liberty must be subjected to strict scrutiny on both Due Process and Equal Protection grounds.

Recent state court decisions have held that state statutes that, as to each person eligible to marry, eliminate as prospective partners fully half of the universe of willing, unmarried, unrelated adult persons, do not burden or impinge upon the fundamental right to marry. These decisions define such a right more narrowly in order to avoid application of strict scrutiny analysis. Putting aside the question of whether a same sex marriage ban is or is not valid under strict scrutiny, does anyone else find these state courts' narrow framing of the right to be intellectually dishonest in light of the above quote from Loving?

One more question. Do the proponents of the slppery slope argument contend that the Substantive Due Process component of Loving was wrongly decided? If not, why not?
7.18.2006 6:22pm
non_Lawyer:
anonyomousss (that's tough to spell!)

good points all round.
7.18.2006 6:24pm
Clayton E. Cramer (mail) (www):
I just love watching what happens when Professor Volokh asks the SSM fans to give a rational argument for why SSM is not just okay, but a constitutional right, but polygamy and incest are not. It is apparent that his goal is to get them to produce a "rational basis" argument that prohibits one, but not the other.

There is certainly a valid, non-religious argument against polygyny: men who marry multiple women create a large class of men who will not, and can not get married. The Muslim world's ability to produce large numbers of suicide bombers is a result of this--men who can't married here, but can be seduced with the promise of perpetual virgins in the next world as a reward.

However, this rational basis argument would collapse if both polygyny and polyandry were allowed, since we can presume that men locked out of "one man, one woman" marriages would engage in polyandry instead. In Chinese-American communities at the turn of the 20th century, the combination of the cutoff of imports of Chinese women and social stigma against interracial marriage meant that 5:1 and sometimes even 10:1 polyandrous relationships developed. (See David Courtwright's Violent Land: Single Men and Social Disorder from the Frontier to the Inner City for a discussion of this.)

There's a rational, non-religious argument against incest, because of the risk of defects (as recent events in a polygynous sect along the Utah/Arizona border show) But it is also true that with appropriate sterilization requirements, this becomes an irrational argument, by the standards of law professors and others who can prove that green equals red.

There is also an argument against incest and first cousin marriages based on the concern that excessively interbred families produce socially destructive clan structures. This is why the Catholic Church adopted its rules in the early medieval period to discourage close marriages, and this clannish problem plays a part in Iraq's problems, because of how common first cousin marriages are there.

Here's the harsh reality that a lot of people who don't want to confront: the primary reason that our laws prohibit certain forms of marriage is because they reflect the religious values of the vast majority of Americans (and about 5% of lawyers and law professors). If you want to take a consistent position about marriage, not only same-sex marriage is going to be Constitutionally protected, but so will be incestuous marriages, polygamy, adults marrying five year olds, and perhaps marrying animals. Who are you to say that there's something sick or crazy about marrying an animal? On what basis do you say that? Does a marriage cease to be valid just because one spouse is a vegetable?

The real struggle here is that homosexuals want same-sex marriage recognized on the basis that there's nothing wrong with homosexuality--only an ideologue would really insist that anyone should be allowed to marry anyone that he or she wants to marry. But that turns into a dispute about homosexuality--and that point, there's substantial majority disapproval.

Many will be reluctant to phrase it directly as opposition to homosexuality, because that would sound narrow-minded--so it pops us as, "There's nothing wrong with being homoseuxal, but I don't believe in gay marriage." Why? If there's nothing wrong with it, why not approve?
7.18.2006 6:33pm
non_Lawyer:
Clayton E. Cramer:

Great insight. It is true that it comes down to religious values regardless of how much people would like to remove it from that context -- precisely because religious values play a real and vital part in the real-world lives of most Americans.

Someone else said,

Law is a made-up tool for dealing with the real world the way it really is and for it to remain valid it does have to touch base with the real world every now and then.

Your post, Clayton, proves the point of that post in a way that the poster did not intend.

I think part of the problem is that some people confuse polite tolerance with doting acceptance. Polite tolerance is all anyone should expect to get for the choices they make, so why must Americans provide doting acceptance of homosexuality? If a person is homosexual that's their business and I really don't care, but it is irritating to be constantly petitioned for doting acceptance. After all, the most I hope for is polite tolerance of my beliefs.
7.18.2006 6:56pm
paulhager (mail) (www):
Cornellian writes:


Paul Hager writes:
Let's be clear. Marriage is a universal cultural rite that reflects genetically determined human behavior geared to perpetuating the species. The fact that no culture has ever recognized gay marriage - or at least we have no record of such - suggests that it has been rigorously selected against for tens of thousands of years at least.


And allowing the wife equality with the husband was "rigorously selected against" for tens of thousands of years too, so what?


Not relevant to my point which has to do with species preservation. Homosexual marriage has no benefit. More to the point, hunter-gatherers, which were very egalitarian have, in fact, been known to practice group marriage.


And as for "no culture has ever recognized gay marriage" are Spain, the Netherlands and Canada not cultures? Have any of those cultures collapsed as a result of having SSM?

Point one, I'm talking about evolution, not recent history. Point two is that I stated that all the countries you mentioned are slowly going extinct because of declining fertility, which you didn't bother to quote. Now, if you really want to push your argument there is no way that it favors your position. The only reason it doesn't affirmatively destroy your position is that - and I pointed it out in the section you didn't quote - the best explanation for declining fertility is that social welfare states make the costs of individual children prohibitive.

The party line in the gay marriage movement is that polygamy is evil and I'm getting sick of hearing it. It's pure bigotry and I don't think advocates should get away with it.
7.18.2006 7:17pm
non_Lawyer:
paulhager,

I doubt that gay-rights advocates are truly bigoted regarding polygamy (it would be too hypocritical). It's just that they're disingenuous about it, because to associate themselves with the cause of polygamy, though perfectly logical, would be politically inexpedient.

But, that's politics for ya.
7.18.2006 7:28pm
jrose:
I think the right "to marry the person of your choice" is shorthand for the right to marry someone who qualifies as a lifelong, romantic partner based on who your are. Current marriage law prohibits gay people from marrying any qualifying person. Bans against incestuous and polygamous marriages do not share such a prohibition.
7.18.2006 7:40pm
paulhager (mail) (www):
Bob Van Burkleo writes:

Paul Hager writes:

Let's be clear. Marriage is a universal cultural rite that reflects genetically determined human behavior geared to perpetuating the species.

I would have to say you are clearly wrong - that mammals will breed without remaining partnered is obvious. Our need to marry stems from our 'genetically determined human behavior' of pair-bonding, mediated by vasopressin and oxytocin and even though initiated by sex doesn't not need or require breeding to occur to be established or the personal and social benefits to be acheived.

We're talking past each other. The topic is humans, a subset of mammals, which should be obvious since I used the phrase "universal cultural rite". What non-human mammals do is completely irrelevant to the discussion since they don't possess culture. My statement encompassed both biology and genetics as it applied to humans as well as culture and behavior, which also has a genetic component. Why should all cultures have a concept of marriage and special rites for it? Given marriage's universality, there is, or at least was, a selective advantage. The same, unfortunately, can apparently be said of religion and magical thinking, but that is a topic for another time.


Yes, that children often occur as a result of these pair bondings and that because of the pair bonding the children have a better developmental environment is a given. But the fact still remains that all citizens have a need to pair-bond, that they are happier and healthier if they pair-bond and many of these pairbonded couples that don't breed themselves will be raising the children by or of others - the ability for themselves to breed is not a requirement for the benefits to occur.

Breeding is only important in the aggregate, yes.

I'd amend your statement to saying that all people have a need to bond - polygamists don't limit themselves to pair-bonds. That is the point here. My reaction to Eugene's original statement was accepting the idea that all the various forms of polygamy are socially detrimental. I say that if that were true then it wouldn't have been so common in human cultures. Moreover if homosexual "marriage" were so beneficial it should have existed naturally instead of being recently created in industrial society.

Now it may be the case that the optimal family arrangement is mother-father-children, with little or not connection to any other blood relative. This describes the modern nuclear family. I question this view and I doubt I'm alone. One way of creating an extended family would be a group marriage.


''Genetically determined human behavior' is a reason why adult citizens should be given the greatest opportunity as possible to pair-bond and why it would be beneficial to the group to have them do so.


Change "pair-bond" to "bond" and we agree.
7.18.2006 7:42pm
jrose:
Eugene,

Let's assume we cannot tolerate a right to marry the person of your choice because it would lead to mandated incestuous and polygamous marriages. What then would prevent a state from prohibiting the rich from marrying the poor?
7.18.2006 7:49pm
paulhager (mail) (www):
non_lawyer writes:


paulhager,

I doubt that gay-rights advocates are truly bigoted regarding polygamy (it would be too hypocritical). It's just that they're disingenuous about it, because to associate themselves with the cause of polygamy, though perfectly logical, would be politically inexpedient.

But, that's politics for ya.


You may be right. My first experience with the bizarre anti-polygamy position was in 1998 when I went to an ACLU-sponsored talk about gay marriage. When the speaker finished and asked for questions, I rose and asked him why, in his analysis, he never said a word about polygamy. I doubt his reaction to my question would have been different if I prefaced my question by saying, "I'm a Nazi and KKK member ...." I couldn't understand his reaction at all. Eventually, after a back-and-forth, he acknowledged my question and offered a reasonable answer. Afterwards he told me that "fundamentalists" use the slippery slope to polygamy argument to attack gay marriage. My view: so what? Fundamentalists are going to oppose you no matter what so why not be intellectually honest? That line of argument went nowhere.

With respect to marriage, if the state is going to be involved, then as a heterosexual I want legal group marriage. This is not a frivolous position for me - I've had it for close to 40 years. If I thought gay marriage really would be a quick slippery slope in that direction I might be more supportive. But, if the price of supporting gay marriage is that I forswear my own civil liberties then I'd rather just oppose gay marriage.
7.18.2006 8:02pm
Tinmanic (mail) (www):
Clayton writes: adults marrying five year olds, and perhaps marrying animals

That's totally not going to happen. Neither a five-year-old nor an animal can consent to being married. You know better than to mention such absurd examples.
7.18.2006 8:29pm
Helen T. (mail):
A background question about polygamy:

In a polygamous marriage, are the women in a legal relationship to each other, or only to the man?

For example, if the man dies, what is the standing of the women to each other? Could each get remarried to different men, or would they all together get remarried to one man?

In modern phrasing- were polygamous marriages ever polyamorous?

Given that one polygamous culture I've read about uses phrases like 'sister-wives,' and that the wives can be actual sisters, I'd assume there's no polyamory there. But then what does their folk-legal-system consider them to be? i.e. siblings remain siblings even after parents die or are divorced. Are sister-wives permanently grouped as sister-wives, even if the man dies?
7.18.2006 8:45pm
Elais:
Clayton,

There is nothing 'wrong' about homosexuality, plain and simple. That homosexuality is 'wrong' to you is the foundation for everything you say.

Once you accept that homosexuality is just as 'right' as hetersexuality, all your arguements against homosexuality don't mean a thing.
7.18.2006 8:59pm
wMarty:
It's odd that the only people calling gays &lesbians "second class citizens" are their own so-called advocates...

But then again, they ARE advocating a "separate but equal" form of marriage here. Two men cannot "equal" a man and a woman any more than two apples can equal an apple and an orange. Two oranges are separate, and certainly never equal to two apples.

Want to become a real second class citizen? Get a second class marriage.
7.18.2006 9:14pm
Cornellian (mail):
If we were to say for the sake of argument that my wife and I both have strong feelings for this person and would not oppose adding a third partner to our marriage, why exactly is it *better* to leave this person miserable and single?

Because if the person marries the both of you, that necessarily leaves a man somewhere without a wife. Of course, this assumes that one doesn't buy into the romantic notion that there's only one right person out there for each individual and that the individual's relationships will necessarily be inadequate until the individual meets "the one." But then, your hypo necessarily does away with that romantic notion as well.
7.18.2006 10:05pm
Cornellian (mail):
And allowing the wife equality with the husband was "rigorously selected against" for tens of thousands of years too, so what?

Not relevant to my point which has to do with species preservation. Homosexual marriage has no benefit. More to the point, hunter-gatherers, which were very egalitarian have, in fact, been known to practice group marriage.


Umm, and making the wife subordinate to the husband helped species preservation how?

Anyway, homosexual marriage might well have considerable benefit for species preservation by reducing the sort of irresponsible behavior more common among single people than among married people.
7.18.2006 10:11pm
Caliban Darklock:
"Because if the person marries the both of you, that necessarily leaves a man somewhere without a wife."

So if a person of indeterminate gender and sexuality marries into my marriage, that *guarantees* some man doesn't get a wife?

On what planet?

But let's pretend it's a heterosexual woman.

There's no "necessarily" to it. Maybe that man doesn't want a wife. Maybe he doesn't want THIS wife. Maybe *she* doesn't want *him*. Maybe there are more women than men in the area, so there's no other man to marry her anyway.

The fact is, there is no law to prevent her from moving into our house, from engaging in sexual congress with either or both of us, or indeed from exercising any of the rights she would enjoy as a member of our marriage.

Unless she decides to leave.

At that time, she has nothing to *protect* the rights she enjoys as a member of a marriage. When a marriage alters structure, there are precedents for the division of property, for entitlement to alimony and child support and custody and visitation.

But if she simply moves in as a hedonistic decoration to a two-partner heterosexual marriage, she has no such precedent or entitlement. We could turn her out on the street and she could not stop us. We could tell her that she gets no part of the house, even if she's helped pay the mortgage for years. That she has no right to visit the children she helped raise.

And that is wrong. Her rights need to be established and protected. If they are not, then she is vulnerable to all manner of abuse and mistreatment without recourse to the law.

You can't guarantee any man access to a wife, and any effort to do so is *necessarily* an infringement on someone else's rights. You also could not guarantee a woman access to a husband, nor could you guarantee a gay man or a lesbian access to a life partner. But you can guarantee that husbands and wives and life partners have certain rights, and that those rights are protected, and that there is recourse to the law if they are violated.

It is rather difficult to argue that this is a bad thing.
7.18.2006 10:54pm
paulhager (mail) (www):
Helen T. writes:

A background question about polygamy:

In a polygamous marriage, are the women in a legal relationship to each other, or only to the man?

I've proposed that, in place of a "marriage contract" there be a "family contract". Thus everyone would be legally contracted to each other.


For example, if the man dies, what is the standing of the women to each other? Could each get remarried to different men, or would they all together get remarried to one man?

Assuming a one-man, two-women arrangement, the two-women would still have a family contract with each other. I would expect they'd want to bring at least one man into the relationship but whether one, two, or ten, it would be entirely up to them. Well, not quite. After new husband number one comes it, he'd have a say in who the next husband would be.


In modern phrasing- were polygamous marriages ever polyamorous?

I'm not sure what you mean by "modern phrasing". Polygyny is, by far, the most common form of polygamy practiced. Polyandry is fairly rare. Generally, both forms are associated with sedentary and/or "civilized" cultures. Those forms tend to require larger populations which implies animal herding and farming with attendant division of labor and elaborate social hierarchies. So far as I know, true group marriage is a phenomenon of hunter-gatherer societies, which are inherently egalitarian. I don't know if that answers your question or not.


Given that one polygamous culture I've read about uses phrases like 'sister-wives,' and that the wives can be actual sisters, I'd assume there's no polyamory there. But then what does their folk-legal-system consider them to be? i.e. siblings remain siblings even after parents die or are divorced. Are sister-wives permanently grouped as sister-wives, even if the man dies?


Without more information I can't answer this. My sense is that "polygamy" in "modern phrasing" you are using means one man, multiple wives. I'm pretty sure that is an incorrect definition - it's certainly incorrect anthropologically. If I rephrase your question to, "Have there been real polyamorous cultures?" then the answer is, yes. There's one called the Zoe located in the Amazon basin that's gotten a certain amount of attention in recent years - I think National Geographic did a TV documentary on them within the past couple of years. There aren't many extant hunter-gatherer peoples remaining today. They tend not to survive contact with the modern world for very long. Children quickly learn about a wider world and abandon the culture.

My interest is coming up with a legal framework for modern society and allowing marriage institutions to evolve from there. I expect that in the modern setting, adults would enter a group marriage as spouses and the other adults would be co-spouses. Given that there could well be a continuous renewal of a given group marriage by new spouses coming in as older spouses died off, it's possible for such an arrangement to be functionally immortal. I believe Heinlein's Line Marriage (which he never really explained in detail) operated that way.
7.18.2006 10:57pm
Truth Seeker:
Tinmanic writes:

Clayton writes: adults marrying five year olds, and perhaps marrying animals

That's totally not going to happen. Neither a five-year-old nor an animal can consent to being married. You know better than to mention such absurd examples.


Clayton's not using absurd examples, you're making absurd assumptions.

A five year old can't consent because our culture does not allow a five year old to consent. In other cultures over many centures five year olds could marry. You think its icky? Touche!

And who says an animal can't consent? If an animal obviously enjoys an arrangement one can imply consent. Why shouldn't a sheep have the right to pair bond and inherit property from a human?

You're just using the same kinds of societal rules, assumptions and prejudices against children and animals that have been used against homosexuals and if you are going to get rid of them in regards to homosexuals, then to be consistent you need to get rid of them in all circumstances.
7.18.2006 11:26pm
Helen T. (mail):
Thanks, Paul.

What I meant by "modern phrasing" was: were historic polygamous marriages a marriage of all people to each other, that is, were they polyamorous? Or was the marriage entirely dependant on the man- if he died, the others aren't in a marriage anymore.

As I understand it, a polyamorous triad would diagram themselves as:
1-2
|./
3
Like a triangle. The loss of any one person would leave intact the connections between the other two. If another person joins, then the new diagram is:
1-2
|X|
3-4


With polygamy, one could diagram the relationship as:
h-1
|..\
2 3

and if a new wife marries the husband, then
..h
/.|.|.\
1 2 3 4

But what were the connections between the wives? If the man died, what were the women to each other? Did the connection between wives have a legal status of some sort?
7.18.2006 11:36pm
Georgiana (mail):

Not relevant to my point which has to do with species preservation. Homosexual marriage has no benefit. More to the point, hunter-gatherers, which were very egalitarian have, in fact, been known to practice group marriage.


Our laws, at least in theory, do connect to the ways in which we now live, which is surely more than just species preservation. And given that your example is but one of many arrangements we humans have engaged in over time, it hardly suggests that a particular arrangement is perforce the best. Rather we are forced back to the question at hand, how to define today. How could one, or should one alter the two-party marriage contract to permit additional spouses? Or should marriage return to a private contract?

If one is relying upon incomplete evolutionary history for familial arrangements, it should be noted that a body of evidence has shown the importance of non-reproducing relatives, whether aunts, uncles or grandmothers, to the well-being and survival rates of offspring. Not to mention, the recent study showing higher rates of homosexuality among men with many older brothers.

So clearly, only couples with at least one gay sibling should be permitted to marry and have children. Or they must acquire a third spouse.
7.18.2006 11:52pm
paulhager (mail) (www):
Cornellian writes:

Paul Hager writes:

Cornellian writes:
And allowing the wife equality with the husband was "rigorously selected against" for tens of thousands of years too, so what?

Not relevant to my point which has to do with species preservation. Homosexual marriage has no benefit. More to the point, hunter-gatherers, which were very egalitarian have, in fact, been known to practice group marriage.


Umm, and making the wife subordinate to the husband helped species preservation how?


Are you deliberately not reading what I wrote, even when you quote it? Let me repeat it for you: "More to the point, hunter-gatherers, which were very egalitarian have, in fact, been known to practice group marriage."

Surely you understand that for nearly all of human existence, humans lived as hunter-gatherers. They were egalitarian. How you get "wives subordinate to husbands" out of that defies explanation. There is evidence that group marriage was one accepted form of marriage given that the practice has been observed in hunter-gatherer remnant populations.

Now, as to the lowering of female status in sedentary cultures practicing agriculture and herding, that's a fairly recent phenomenon - last 10,000 years or so. Did it have survival value? You are not going to like the answer because it is "yes, indubitably so."

Unlike hunter-gatherers where women spaced children out and may have even used herbal abortifacents, having lots and lots of children was a major economic benefit in sedentary cultures. It was a benefit to the family and a benefit to the state - lots of kids meant lots of soldiers and artisans. Extremely high birthrate meant that those societies quickly displaced "primitive" hunter-gatherers. If women are spending nearly all their time pregnant it really changes the relative status of men and women. Please note: in monogamous relationships, the female became subordinate - polygamy was largely irrelevant to the process.


Anyway, homosexual marriage might well have considerable benefit for species preservation by reducing the sort of irresponsible behavior more common among single people than among married people.


Nope. Species preservation is all about procreation. "Irresponsible behavior" among "single people" is completely irrelevant. Much, much more relevant is married couples who either don't have children or have only one.

One important question is, why does homosexuality exist? What's is its survival value? It would appear to have no value and one would expect it to quickly disappear. There have been various hypotheses advanced to explain why it hasn't. For example, our primate cousins, the bonobos seem to be bisexual fiends. Bisexuality may provide a measure of social cohesion for bonobos - some have argued that it does the same thing for humans. But, bisexuality is pretty rare in humans. Too rare to provide that function. Homosexuality is rarer still. And, homosexuality would quickly be selected against in hunter-gather societies. One possibility is that homosexuality is an adaption to sedentary, civilized societies. Having men who could function well without women when on an extended military campaign would be very useful. Homosexuality would provide both a sexual outlet and a social bond for soldiers. There would also be an advantage in that there would be a whole class of aggressive males who would not be competing with other men - particularly men in the civilian classes - over women.
7.18.2006 11:59pm
SLS 1L:
Helen, the details of the legal arrangements have varied across cultures. There are many ways one could theoretically design a plural marriage system if one was willing to exercise a little creativity. If that's what you wanted to do I don't think it's at all obvious which choice would work best.

There may actually be enough regulatory complexities here that the difficulty of designing a system would distinguish plural marriage from gay marriage from the point of view of rational-basis analysis. I say 'may' because I haven't thought about the issue very hard and it may turn out to be easier than I expect.
7.19.2006 12:09am
paulhager (mail) (www):
Georgiana writes:

[...]
How could one, or should one alter the two-party marriage contract to permit additional spouses? Or should marriage return to a private contract?


As I noted elsewhere, I favor a family contract. The function of the state would be to enforce it but that would be it. A family contract would function the same for heterosexual monogamy, homosexual monogamy, and all the various forms of polygamy.

The only reason I brought evolutionary biology into the discussion is to point out that if marriage practices in the U.S. are to be changed by law then the law must include polygamy; further, that if there is to be a preference then it should favor heterosexual polygamy over homosexual monogamy. I don't see why there should be a preference but so long as the SSM marriage movement asserts one in its favor I will actively oppose gay marriage. That's a view I've only just come to (literally crystallized by this discussion thread) but it is a response to years of listening to SSM advocates denigrating polygamy. And, there has all too often been an association of the SSM people with the "more deviation less population" crowd.
7.19.2006 12:26am
Helen T. (mail):
SLS 1L-

My questions are to fill a gap in my knowledge: I'd like to know what the legal status of wives were in relationship to each other. Do they have a legal bond that survives the death of the husband. How did it work in Utah, pre-statehood?

I mention polyamory because it illustrates one type of structure. As I'm monamorous by nature I'll leave the design of their systems up to people who'd be in them.
7.19.2006 12:29am
Tinmanic (mail) (www):
Truthseeker writes:
A five year old can't consent because our culture does not allow a five year old to consent. In other cultures over many centures five year olds could marry. You think its icky? Touche!

And who says an animal can't consent? If an animal obviously enjoys an arrangement one can imply consent. Why shouldn't a sheep have the right to pair bond and inherit property from a human?

You're just using the same kinds of societal rules, assumptions and prejudices against children and animals that have been used against homosexuals and if you are going to get rid of them in regards to homosexuals, then to be consistent you need to get rid of them in all circumstances.
There are plenty of ways in which children are treated differently than adults under the law (see, particularly, criminal law). Children aren't considered to have sufficiently mature judgment to consent to marriage. And do you honestly want to argue that an animal can provide consent to anything? Animals don't have sufficient brain development to provide anything near the legal definition of consent. They're. Not. Humans.

Are you really trying to argue for legal marriage to a child or animal? Or are you just playing devil's advocate? I suspect the latter. Or, if you're worried that advocates of marriage to children or animals are going to make the arguments you present, the patently obvious responses I just made should suffice.

You're creating straw men. Either you're truly worried about marriage to children or marriage to animals, or you're just grasping at arguments that can be used to oppose gay marriage.
7.19.2006 12:40am
Georgiana (mail):
paulhager

One can concede your point that if we are to discuss the legal institution of marriage, we should discuss it in all its permutations, including polygamy. Indeed I am persuaded that the private contracting of marriage is much to be preferred in a pluralist society, a view which certainly ought to permit polygamy. Private contracting also happens to coincide neatly with my particular preference for religion to be freed of state interference, as, for example in the state sanctioning of a marriage.

Yet I am troubled by an argument that employs evolutionary biology as a support for the practice of polygamy while it denies biology when it has shown homosexuality to be part of the human condition. Perhaps I am ungenerous, but it rather smacks of seeking the facts one wants, not the ones that are.

But if we proceed to the legal discussion at hand, of how one might change existing statute to shift toward private contracts, then I believe a worthy discussion can be had.
7.19.2006 1:40am
Garya (mail):
The argument against multiple marriage is that, based on the historical evidence and men's libidos, the real-world result would be well-to-do men would get multiple wives, leaving a surplus of disadvantaged men unable to get a wife or girlfriend. (This assumes, which I think is likely, that few well-to-do women would seek multiple husbands.)

Thus, straight polygamy would inherently lead to social instability from a surplus of sexually-frustrated, unmarriagable men. Unless you want to assume that these men would become Gay. :)
7.19.2006 2:25am
Cornellian (mail):
Nope. Species preservation is all about procreation.

Nope, it's not all about procreation. We could quadruple the birth rate but if we had 95% child mortaility we'd still be doing a pretty lousy job at species preservation. It's not all about producing children, it's also about getting them safely to adulthood and, in our modern times, having enough free time and people devoted to ensuring we have a civilization (including, for example, modern medicine) in which that is as easy as possible.
7.19.2006 3:56am
Cornellian (mail):
Surely you understand that for nearly all of human existence, humans lived as hunter-gatherers. They were egalitarian. How you get "wives subordinate to husbands" out of that defies explanation. There is evidence that group marriage was one accepted form of marriage given that the practice has been observed in hunter-gatherer remnant populations.

Nearly all of humanity's hunter-gatherer existence is pre-historic. Hunter gatherers don't build cities or leave written treatises on their lives. They don't even leave all that much in the way of archeological evidence. By asserting that they were "egalitarian" are you claiming that our prehistoric hunter-gatherer forebears lived according to some classical feminist ideal in which wives had equal standing with husbands and were not subject to their husband's authority? What's your evidence for that?
7.19.2006 4:03am
zarevitz (mail) (www):
Garya wrote: "The argument against multiple marriage is that, based on the historical evidence and men's libidos, the real-world result would be well-to-do men would get multiple wives, leaving a surplus of disadvantaged men unable to get a wife or girlfriend. (This assumes, which I think is likely, that few well-to-do women would seek multiple husbands.)"

That's wrong, because a "disadvantaged man" (code for "men that no-one wants to marry") would still be able to marry those women; he just needs their consent (and that of their other husband/s) to join their marriage.

Garya also wrote: "Thus, straight polygamy would inherently lead to social instability from a surplus of sexually-frustrated, unmarriagable men."

Is now "disadvantaged men" code for "men with whom no-one wants to have sex"?

Your proposed solution to help these men, i.e. to force some women to remain unmarried so that those "disadvantaged" men can marry (and have sex with) them even if those women have their own better choice, is disturbing.
7.19.2006 6:28am
paulhager (mail) (www):
Georgiana writes:

Yet I am troubled by an argument that employs evolutionary biology as a support for the practice of polygamy while it denies biology when it has shown homosexuality to be part of the human condition. Perhaps I am ungenerous, but it rather smacks of seeking the facts one wants, not the ones that are.


That wasn't what I was arguing - I may have been unclear. The issue under discussion relates to marriage practices/rites and state involvment in same. Heterosexuality can exist apart from marriage. However, marriage has always been associated with heterosexuality not homosexuality. I bring this up not to oppose homosexuals marrying since on principle I don't, but rather to draw attention to the bizarre anti-polygamy arguments typically offered by supporters of SSM.
7.19.2006 5:22pm
paulhager (mail) (www):
Georgiana writes:

If one is relying upon incomplete evolutionary history for familial arrangements, it should be noted that a body of evidence has shown the importance of non-reproducing relatives, whether aunts, uncles or grandmothers, to the well-being and survival rates of offspring. Not to mention, the recent study showing higher rates of homosexuality among men with many older brothers.

Exactly so - you are describing the extended family. As I pointed out early on, this has been the norm for all but the last 100 years or so of human existence. I don't see any way of bringing the extended family back into existence. Without getting into a long discussion here, suffice that one solution I came up with years ago, which happens to fit with my sexual orientation, is a polyamorous family. It would create an adult group of parents/caregivers for the children produced by the group. Would it actually function effectively as an extended family in the real world? I think so but I don't know - it does appear that there is a tremendous prejudice (particularly from people who should be supportive) against attempting such a family arrangement.

With respect to the incidence of homosexuality, I did discuss the puzzling nature of homosexuality as in, why does it persist. I mentioned a couple of hypotheses. The finding you note might tend to support the utility of there being males who would be willing to go out and die for the community but not compete for females. A lot of brothers would "signal" a male surplus so create a male who'll be good canon-fodder. I suspect that the evolutionary biologists will eventually come up with a good explanation for the phenomenon ...

Please note, whether homosexuality is "functional" or not - I actually tend to think it probably is or at least was until the recent past - it's really just an interesting sidebar. Clearly, homosexuals are endowed with the same unalienable rights as everyone else.

Apropos of "functionality", I like to tweak my fundamentalist male friends with the idea that male homosexuality shouldn't be viewed as any sort of negative. In fact, male heterosexuals should want to see a high percentage of male homosexuals since the latter will not compete with the former for women.
7.19.2006 5:48pm
paulhager (mail) (www):
Cornellian questions my statement about hunter-gatherers being egalitarian.

Nearly all of humanity's hunter-gatherer existence is pre-historic. Hunter gatherers don't build cities or leave written treatises on their lives. They don't even leave all that much in the way of archeological evidence. By asserting that they were "egalitarian" are you claiming that our prehistoric hunter-gatherer forebears lived according to some classical feminist ideal in which wives had equal standing with husbands and were not subject to their husband's authority? What's your evidence for that?

Anthropologists have studied remnant cultures. They have concluded that these remants typify prehistoric hunter-gatherers. The evolutionary biologists go along with this view. It is not controversial at all scientifically. Nor is it some sort of "feminist ideal". It is also fairly well established that fertility rate inversely correlates with female status. In other words, societies in which women have high fertility rates tend to be patriarchal. Lower fertility rates correlate with higher status for women. This isn't controversial either.

Regarding my statement that "species preservation is all about procreation" your quibble is noted. I can rephrase it to net fertility rate or some other term if you like but it amounts to the same thing. When there is a net population decline because births are not at least balancing deaths there is a serious problem. In the case of "civilized" societies which a high fertility rate, the fact is that they rapidly displaced societies with lower fertility rates. Much of the world history can be understood to have involved dynamic, expanding cultures overwhelming cultures with stagnant or declining birth rates.
7.19.2006 6:01pm
Clayton E. Cramer (mail) (www):
Tinmanic asks:


Are you really trying to argue for legal marriage to a child or animal? Or are you just playing devil's advocate? I suspect the latter. Or, if you're worried that advocates of marriage to children or animals are going to make the arguments you present, the patently obvious responses I just made should suffice.

You're creating straw men. Either you're truly worried about marriage to children or marriage to animals, or you're just grasping at arguments that can be used to oppose gay marriage.
If you read what I wrote, or what the person to whom you were responding wrote, you would know the answer: any argument that you can make about the right to marry someone of the same sex because there's no "rational argument" against it has the same problem with marrying children or animals. These restrictions are present and widely accepted, but they reflect religious beliefs, not the sort of rational arguments that you insist must exist to justify a law.
7.19.2006 6:16pm
Clayton E. Cramer (mail) (www):
John Herbison writes:

The opposition to miscegenation in several quarters when Loving was decided in 1967 was just as virulent and intense as the current opposition in some segments of society to same sex marriage, if not more so.
Really? Then why were there only 16 states that banned interracial marriage in 1967? Now, California's Supreme Court struck down that state's law, but many states had never banned interracial marriage, and a number of others had done so legislatively.

No state has created same-sex marriage except under demand from the tyrants in black, and only one state (Connecticut) has created civil unions without the tyrants in black telling them to do so.
7.19.2006 6:20pm
Clayton E. Cramer (mail) (www):
Elais writes:


There is nothing 'wrong' about homosexuality, plain and simple. That homosexuality is 'wrong' to you is the foundation for everything you say.

Once you accept that homosexuality is just as 'right' as hetersexuality, all your arguements against homosexuality don't mean a thing.
You don't even begin to realize that I can change a couple of words here and there in your statement, and it makes just as much sense.

"There is nothing 'right' about homosexuality, plain and simple. That homosexuality is 'right' to you is the foundation for everything you say.

"Once you accept that homosexuality is just 'wrong' unlike heterosexuality, all your arguments for homosexuality don't mean a thing."

If you accept that there are no moral absolutes, then your position is completely legitimate. But then your moral argument that I'm "wrong" about this explodes.

I don't expect homosexuals to share my view about homosexuality. It would be more honest for them to admit that they are prepared to impose their belief on the majority by having their puppets in black impose same-sex marriage laws on the states.
7.19.2006 6:27pm
Elais:
Clayton,

Unfortunately, I'm not a homosexual. Shocking, isn't it that a heterosexual woman doesn't share your view of homosexuality?

You seem perfectly preparied to imporse your 'beliefs' on the minorty by having right wing puppets destroy gay rights all over the place and discriminate against millions of Americans based solely on sexual orientation.

There is no 'imposition' here. No one is 'forcing' any heterosexual man or woman to marry a person of their own gender.

You may hate same-sex marriages, but you are free to marry a woman if you so chose.

Right now homosexuals are 'forced' to remain single or live the lie of marrying a person of the opposite gender. A very immoral situation.


A great many homosexuals simply want equal access to marriage and a great many heterosexuals support that goal.

The only tyrant here is you Clayton. The so-called 'tyrants' in black have ruled against same-sex marriage over and over again and you still whine that they are tyrants? If anything they are tyrants over gays and lesbians, yet you don't get outrage over that.

Hypocrite.


How on earth can you object to that?

That is your fatal fla
7.20.2006 1:38am
Tinmanic (mail) (www):
Amen to Elais!

Anyway, first:

Clay writes:
any argument that you can make about the right to marry someone of the same sex because there's no "rational argument" against it has the same problem with marrying children or animals. These restrictions are present and widely accepted, but they reflect religious beliefs, not the sort of rational arguments that you insist must exist to justify a law.


No, they don't reflect religious beliefs. If you read what I wrote:
Children aren't considered to have sufficiently mature judgment to consent to marriage. And do you honestly want to argue that an animal can provide consent to anything? Animals don't have sufficient brain development to provide anything near the legal definition of consent. They're. Not. Humans.


Nothing relating to religious beliefs there. All rational arguments. Sorry. Nice try, though.

Next: in your response to Elais, you assume that supporters of gay marriage believe that there are no moral absolutes. Who said there are no moral absolutes? Nobody said anything about no moral absolutes.

But judging the morality of homosexuality is ineffective. It's like judging the morality of the color blue; it simply doesn't compute, because you're talking about something that isn't inherently moral or immoral.

There are people who say homosexualiy is immoral, but they're usually referring to the Bible, in which case it's also immoral to eat shellfish or mix fabrics. What they usually mean is that homosexuality makes them feel icky. But ickiness is not a legitimate factor on which to judge the morality of something. You have to judge something in the context of our society and the people in it (e.g. balancing harms to society, if any, against harms to individuals, if any). Rationality is a factor as well. (See: the irrationality of applying legal consent rules to children and animals.)

Judging the morality of homosexual sex in such a context (I assume you're talking about homosexual sex, not homosexual love, even though a successful gay marriage would require both) - is a big question of course. I happen to believe that homosexual sex per se doesn't harm society and, in fact, it increases happiness in gay people, i.e. people who are of a homosexual orientation. As does the choice of being able to marry someone you love.

Furthermore, this is pretty interesting, and it's why I see this as less an opportunity to change your mind - which probably can't be done - than an opportunity to provide food for thought to other people who might be reading.
7.20.2006 3:32am
Tinmanic (mail) (www):
To clarify a point, you can't just say that homosexuality is morally wrong because you feel it is. You have to provide reasons why.
7.20.2006 3:35am
paulhager (mail) (www):
I wanted to take this opportunity to revise and extend my remarks with respect to marriage, anthropology, and evolutionary biology. First off, my undergraduate degree is sociology, with studies in anthropology and psychology. So, while I don't claim expertise (I went on to get a masters in Computer Science), I do have some "book learnin'" on the subject. I've remained interested in those fields over the years and have continued to follow developments. What I said regarding the study of hunter-gathers as a way of drawing conclusions about human behavior in prehistory is completely accurate. Nothing controversial there at all. The data from studying extant tribes is matched with findings from archeologists and paleoanthropologists to arrive at a picture of how humans probably lived prior to the advent of agriculture, civilization, and writing.

Over the years, some views accepted by anthropologists have had to change (for example, Margaret Mead's work was largely debunked). One of these ideas that seems to be facing a serious challenge is that hunter-gatherers tended to be relatively pacific. I'm about halfway through Nicholas Wade's book, Before the Dawn, which focuses on evolutionary biology (but references the above mentioned disciplines as well) to explain how we got to be the way we are. Wade cites recent work that indicates many cultural anthropologists suffered from severe cognitive dissonance when it came to recognizing violent behavior in hunter-gatherers. Far from being pacific, hunter-gatherers exterminated rivals and engaged in a high level of inter-tribe conflict as well. As I said, I'm only halfway through the book, however it appears that Wade is working toward suggesting that this high level of violence was a genetic trait that prevented the development of sedentary culture. It wasn't until more peaceful humans came along that sedentary culture became possible. We'll see.

Over the years, I've been almost literally drug kicking and screaming toward the view of the socio- and evolutionary biologists that a substantial component of human behavior of genetically determined. I realize that in some quarters this is not PC. Me, I follow the science.
7.20.2006 10:13am
Caliban Darklock:
Homosexuality is frequently viewed as immoral by men for one major reason: it is immoral for boys to go into the girls' bathroom or locker room.

Why? Because of sex. The potential for sexual tomfoolery is why we don't have unisex bathrooms and locker rooms.

And yet, here's this gay community that invariably comes brazenly waltzing into the men's bathroom or locker room, and there is commonly sexual tomfoolery among gay man in bathrooms and locker rooms.

So you have a problem. You can't make them go to the girls' bathrooms or locker rooms; that would be immoral because they're boys. But the boys' bathroom and locker room are immoral because of the sexual tomfoolery.

And therefore, homosexuality is by nature immoral. There is nothing they can do which *isn't* immoral on this front.

Heterosexual men are simply incapable of comprehending that anyone else - whether female or homosexual - is perceiving or pursuing sex any differently than they themselves do. And that means gay men MUST be constantly leering at other men and plotting ways to manipulate them into bed. After all, it's common for straight men to discuss how they're going to go get some girl drunk and take her home, so gay men must have *exactly* the same culture and behavior.
7.20.2006 2:26pm