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“Virtue is more to be feared than vice, because its excesses are not subject to the regulation of conscience.”     Adam Smith

March 17, 2006

Gay Marriage, Polygamy, And Individual Liberty

by Doug Mataconis

There are several pieces out today on the issue of whether the arguments being advanced in favor of gay marriage will, over time, be used by those who practice polygamy as support for the argument that their relationships should be legalized.

First, Charles Krauthammer writes on the issue and argues that the answer is emphatically yes.

In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one’s autonomous choices in love, then the first requirement — the number restriction (two and only two) — is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

This line of argument makes gay activists furious. I can understand why they do not want to be in the same room as polygamists. But I’m not the one who put them there. Their argument does. Blogger and author Andrew Sullivan, who had the courage to advocate gay marriage at a time when it was considered pretty crazy, has called this the “polygamy diversion,” arguing that homosexuality and polygamy are categorically different because polygamy is a mere “activity” while homosexuality is an intrinsic state that “occupies a deeper level of human consciousness.”

But this distinction between higher and lower orders of love is precisely what gay rights activists so vigorously protest when the general culture “privileges” (as they say in the English departments) heterosexual unions over homosexual ones. Was “Jules et Jim” (and Jeanne Moreau), the classic Truffaut film involving two dear friends in love with the same woman, about an “activity” or about the most intrinsic of human emotions?

To simplify the logic, take out the complicating factor of gender mixing. Posit a union of, say, three gay women all deeply devoted to each other. On what grounds would gay activists dismiss their union as mere activity rather than authentic love and self-expression? On what grounds do they insist upon the traditional, arbitrary and exclusionary number of two?

One of the strongest arguments in favor of gay marriage that I’ve encountered is the one that says that the government has no right to intrude into the personal relationships of consenting adults and forbid them from entering into a legal status, in this case marriage, that they wish to enter into freely. This doesn’t mean that government is endorsing the relationship, any more than it endorses a producer of pornographic films who forms a corporation to run his busines. It merely means that the government is allowing people to engage in consenual activities that affect nobody but themselves. The logic, if you accept it, seems to me to be unassailable and its hard for me to find an argument that says that polygamy is per se different.

Andrew Sullivan responds to Krauthammer on his blog:

I respect Charles Krauthammer too much not to offer a small rejoinder to his thoughtful column today. He fairly represents my side of a debate we already had a few years’ back. I stick with my position. I believe that someone’s sexual orientation is a deeper issue than the number of people they want to express that orientation with. Polygamy is a choice, in other words; homosexuality isn’t. The proof of this can be seen in the fact that straight people and gay people can equally choose polyandry or polygamy or polyamory, or whatever you want to call it. But no polygamist or heterosexual can choose to be gay. If you’re not, you’re not.

Exactly, and if people want to choose to live in a polygamous relatiohship, why should the government tell them they can’t ?

I think legalizing such arrangements is a bad idea for a society in general for all the usual reasons (abuse of women, the dangers of leaving a pool of unmarried straight men in the population at large, etc.).

Aren’t these the same type of sociologically-based arguments that people use agianst gay marriage ? What about the argument that gay marriage shouldn’t be recognized because it doesn’t promote procreation ?

Ann Althouse also writes about Krauthammer’s column and comes up with her own distinction between gay marriage and polygamy

Legal marriage isn’t just about love, it’s an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can’t file a joint tax return. That’s not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn’t appeal to our sense of fairness.

So now its a fairness argument ? Since when are individual rights subject to the consideration of whether or not their implementation is “fair”, and who decides exactly what fair is ?

Finally, Kathleen Kersten has a column in the Minneapolis Star-Tribune similar to Krauthammer’s:

Redefining marriage to include people of the same sex will open a Pandora’s box. As a New Jersey appellate court judge wrote recently, if “marriage [is] … couched only in terms of privacy, intimacy, and autonomy, then what non-arbitrary ground is there for denying the benefit to polygamous … unions whose members claim the arrangement is necessary for their self-fulfillment?”

Kersten is obviously opposed to gay marriage and is using the polygamy argument as an argument against gay marriage itself, but her doomsday prediction of what marriage might turn into if society keeps going in the direction it has been doesn’t really sound that bad:

What’s the likely endpoint? Marriage may be redefined out of existence, and replaced by a flexible, contract-based system of government-registered relationships

In other words, people would live their private lives in the way that they wanted. What’s so wrong with that ?

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15 Comments

  1. Marriage, as a religious institution, would not be “redefined out of existence”. In Germany, where marriage is only recognized by the state if it is performed by a judge, still has a significant majority of the population who get married in a church and then have a civil union administered by the state in order to legally recognize the contract between the two people.

    The problem is, primarily, that we have created a situation where the legal contract and the religious ceremony are one and the same. In my reading of the First Amendment, the government should not be recognizing a religious ceremony as being a binding legal contract anyhow. The best thing that could happen for the religious definition of marriage is for the state to get out of the business altogether.

    Comment by Eric — March 17, 2006 @ 11:01 am
  2. Polygamy

    In late 2003, a little known issue caught the attention of my wife and me: Polygamy…Our attitude was that consenting adults should be able to engage in any relationships they want. The problem is; however, many of these ?wives? are not consenting a…

    Trackback by Fearless Philosophy for Free Minds — March 17, 2006 @ 11:41 am
  3. Brad:

    As long as we are talking about consenting adults (and I can see that you are), I completely agree with you; it is not the state’s business. Many of these arguments against alternative marriages (gay, polygamist, etc.)have to do with certain legal benefits married couples receive versus non-married couples. It is absolutely ridiculous for the state to pay Social Security benefits to multiple spouses in the event that the bread winner dies.

    The argument should be that the state should not be providing these sorts of benefits at all to anyone. If anyone should help out it should be voluntary. It is sad to see that so many ‘conservatives’ have completely missed the boat on this issue. I guess it’s up to us to set them straight.

    Comment by Stephen Littau — March 17, 2006 @ 12:23 pm
  4. My apologies Doug. I saw Brad’s name on the post below this one and thought he wrote it. You are both very accomplished writers so it was an honest mistake. Both of you keep up the great work; The Liberty Papers is quickly becoming my all-time favorite blog.

    Comment by Stephen Littau — March 17, 2006 @ 12:30 pm
  5. FYI, I tried to post this comment on Doug’s blog, but Haloscan wouldn’t let me… BTW I posted in response to Doug here.

    We’ll probably have gay marriage in the US within 5 years (in some states), and pretty well within 20 years nationwide. 20-25 years after that, we’ll have legally sanctioned polygamous marriages. Whether or not they’ll be officially called marriages by the governments providing the license, remains to be seen. But this is coming, whether people like it or not.

    We can either fight the battle as one of morality between christians and “those heathens”, which is bound to eventually be lost by the christians, as they’re creating a system by which their religion confers upon them benefits that are being denied to others wrongfully. Alternatively, we can understand and trumpet the idea that marriage is a religious concept, and that the state shouldn’t be involved. If the religious folks really want to protect the sanctity of marriage, they’ll divorce it from the State (pun intended :-) )…

    Personally, I don’t really care if two gays or 8 polys want to “marry” each other. It doesn’t affect me either way. Although, I can imagine what the introduction of QINKs (quad-income-no-kids) will do to real estate values!

    Comment by Brad Warbiany — March 17, 2006 @ 1:50 pm
  6. The ultimate purpose of marriage is conservation of capital and raising children. From that perspective, a polyandry (of consenting adults) is clearly a better tool than a monogamy. Instead of fighting Mrs. Grundy with arguments that will be sure to lose with the Christian majority, let’s co-opt their own arguments.

    Comment by Eric — March 17, 2006 @ 2:11 pm
  7. Homosexual Marriage And Polygamy

    I?ve made the argument in the past that state sanctioning of homosexual marriage will inevitably lead to state sanctioning of group marriage. Charles Krauthammer, one of the most gifted conservative columnists living today, makes that argument much mor…

    Trackback by Rhymes With Right — March 17, 2006 @ 10:18 pm
  8. I think that a healthy dose of secularization is called for here. For that to happen however, “libertarian” types would need to withdraw support from Republicans, whose base is comprised largely of religious conservatives. It’s a catch 22 though, because I happen to believe that the Democrat’s agenda is equally bad for the future health of America, in terms of economic and political freedoms. A viable third party sure would be nice right about now!

    Comment by Robert — March 18, 2006 @ 9:24 am
  9. Question: How is it possible for a polygamous party to form a BILATERAL contract?

    Answer: It’s impossible.

    The question pertaining to polygamy is very much separate from that of same-sex marriage. Polygamy is a more complex matter because it pertains to the nature of complex contracts within the law. What if one partner in a bond of three wants out? Worse, what if all three want out so they can go their separate ways? Who pays child support and who gets custody?

    Another scenario. In the hospital… A Terri Schivao type of ideal. Man is on the bed and two wives arguing over life and death. Who’s right is it to pull the plug or leave him alive.

    This man later dies without a last will and testament, who gets what in his estate?

    In a gay couple, the matters is as simple as the case of a heterosexual couple. In a bilateral contract, there is a clear scale being balanced between two people in divorce. In a hospital life-death scenario the single spouse makes the decision. Under the protection of a same-sex marriage, a gay person can pass property to clearly defined spouse.

    When there’s more than two people involved, there is no longer a clear path for separation. No longer is the contract fully reciprocal. Now it’s more of a legal partnership than a marriage.

    Aside from being a historic tool of patriarchal oppression (women as property), polygamy complicates marriage to the point that it is no longer marriage.

    And Andrew Sullivan is right. There’s no such thing as a “polygamous orientation”. A heterosexual person can learn to be happy with just one person. However, psychologists have found a same-sex orientation. A gay person with a person of the opposite-sex is not the same thing as a straight person with the opposite-sex.

    It’s almost like telling a Republican they have the right to vote so long as they vote Democrat, only it runs more closely, because how you vote doesn’t affect you as closely as who you spend the rest of your life with.

    Comment by Greling — March 18, 2006 @ 9:40 am
  10. Greling: “How is it possible for a polygamous party to form a BILATERAL contract?”

    who says it has to be bilateral? There are probably hundreds of thousands of adults in this country, if not more, who practice polyandry in some form. Consenting adults, I mean, not the abusive form practiced by folks who use Mormonism as a cover for their abuse. Why do they need to be coerced into a bilateral contract?

    Comment by Eric — March 19, 2006 @ 5:39 pm
  11. In early societies polygamy did not have any thing to do with the oppression of women; it was a way of ensuring survival. Especially for women, since it prevented them for having 14 to 20 children instead of 4 or 5. Probably fewer women died in childbirth. The gardening, processing of food, cooking, fetching water and their other duties were shared.
    All of which I think extended the women’s lives and helped provide a better life for their children. It also provided companionship, since usually the woman had left her family and her husband was not often there. I think that monogamous marriage has created an unnatural competition among women.
    Wasn’t marriage was an institution in society long before religion began to control it?

    Comment by VRB — March 19, 2006 @ 7:09 pm
  12. VRB, from what little I’ve read on the topic, what you are saying is correct.

    Comment by Eric — March 19, 2006 @ 8:29 pm
  13. I’ll grant to Greling that the law currently doesn’t have any real precedent for this. I.e. let’s say one member of the marriage is in a coma in the hospital, and one spouse wants to pull the plug while another spouse doesn’t. Who has the decision? It’s unclear. Same with divorce. If 1 member of a three-person marriage wants out, do they get 50%? Or 33%? Who knows? I think custody of children is easier, because you can always base it on what’s best for the child.

    But these sorts of matters will be made clear within a matter of years of the time polygamy would be accepted. You give the lawyers five years, and we’ll have some legal precedent to draw from.

    Comment by Brad Warbiany — March 21, 2006 @ 6:05 am
  14. Better, of course, would be to keep private contracts …. private.

    Comment by Eric — March 21, 2006 @ 8:53 am
  15. You are all arguing in a dream land. No argument makes sense without first looking at your basic facts. Marx was wrong for this reason. People aren’t taught greed and self-interest. They are born that way.

    The state does, will, and always has regardless of the culture recognized and legalized the issue of marriage. The fact that this country recognizes the church marriage is simply setting aside a formality. The only issue this debate is about is benefits.

    The argument that the state should “get out of the marriage business” is both absurd and unreal. It won’t, and it can’t. How do you divide up property when contract is broken? How do you divide up kids? How do you determine child support? The answer is: by agreement with court oversight, or by court rulings. Either way, the state is involved, and always will be. There are real concerns about force and fraud in the break up of a marriage. It is not unreasonable for the state to have a system in place to make sure that a spouse who helped build a strong home by staying home rather than working is protected when the other spouse decides that it is time to buy a convertible and date his college aged kid’s roommate.

    Believe it or not, even a libertarian can see that having a stable home is good for society. Messing with a system that has worked for thousands of years is not to be done lightly, and frankly I think most of you have looked at your libertarian dogma book and said, hey, this is just like a business partnership. Let everyone join in. It isn’t a business partnership, except if your name is Clinton.

    Next, we have a system of benefits in this country that recognizes marriage. The State has a system, and private business has a system. The State has every right to determine that it will recognize only traditional recognized married families. No one is denied equal access under this system. Everyone has the exact same right to marry one person of an opposite gender. Of course, the govt also has the right to expand its benefits as it sees fit (barring certain constitutional issues such as race discrimination). And it does. NYC e.g. allows (or used to) “domestic partners” to get benefits from its city employees.

    Of course, private benefits can redefine this system as it sees fit. And it has. Lots of companies offer benefits to domestic partners or civil union relationships. Bully for them.

    Dealing with the added strain on the court system and benefits issues is a reasonable justification to limit marriage to its “forever in the history of mankind” definition, recognizing of course that polygamy has been allowed in some cultures over time — cultures where men were always dying fighting wars and new warriors needed to be made.

    Finally, everyone seems to ignore the obvious — you can live like a homosexual married couple or polygomous couple if you want, you just don’t have the recognition of the state or certain state offered benefits. You can live together, sleep together, leave property to each other in your wills, share benefits if your employer allows it (some employers don’t insure married couples’ spouses, so that is not certain anyway), write a living will for your partner, own property jointly and even have a “marriage” ceremony if your heathen preacher will give you one (I use the term heathen only because none of the texts of the major religions can remotely be read to approve of same sex marriage, and it is a stretch to argue for polygamy in them).

    Peronally, I have no problem with “civil union” type laws. I have no problem with employers chosing to give benefits to whomever they see fit. That said, I actually think civil unions are very suseptible to abuse and may be more trouble than they are worth for this so called “fairness” issue. As Canada’s law has proven, people just start looking for “benefits” partners, not life partners. Brothers and sisters and bowling buddies form civil unions to get one on the insurance of the other. Then they looke for another “civil union” for pay or out of friendship.

    This whole issue is a pandora’s box, and it isn’t just to be dismissed as religous fundamentalists run amock.

    Also, you can’t realistically talk about public policy as if the onion were peeled back to its core. The onion has layers that you must work with. We have state sanctioned marriage — always have and likely always will in the US until we are destroyed like Rome. We have lots of govt. benefits that depend in some way on the marriage recognition. They aren’t going away so we can make polygamy OK just b/c libertarians don’t like those programs.

    Finally, we have a population that recognizes the historical significance of marriage as it has been understood in Western countries for hundreds of years. It has worked. It isn’t some social experiment anymore. It deserves more than a Scalia like flip of the chin.

    Comment by KJ — March 30, 2006 @ 11:14 am

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