One of William Eskridge and Darren Spedale's main points in Gay Marriage: For Better or Worse? is that when the northern European countries legalized same-sex marriage it did not open the door to legalizing every other kind of union. They specifically note that gay marriage has not led to legal polygamy. "Pandora's box was opened," they cheerfully assert, "and it was empty."
Last September, as Eskridge and Spedale were finishing their book, a married couple, Victor and Bianca de Bruijn, took advantage of the Netherlands' registered partnership law to add a second wife, Mirjam Geven. Geven met the de Bruijns through a chatroom, and soon left her husband to live with them. Registered partnerships were invented to allow homosexual couples to legalize their unions. As I noted yesterday, though, most of the people who have taken advantage of the law are heterosexual couples. The de Bruijn-de Bruijn-Geven union hit the trifecta – he is straight, and both women are bisexual.
Strictly speaking, the Netherlands has not legalized polygamy, because registered partnerships are not precisely marriages, but "marriage-lite." Still, as Eskridge and Spedale make clear, all the northern European countries have effectively legalized same-sex marriage. Most of them did not call it that for political reasons, but the intent was transparent.
Would legalizing same-sex marriage here lead to polygamy? Yes, I think, and even faster than in the Netherlands. Unlike the Dutch, we already have a sizable and militant underground polygamous movement. The ACLU is already on board to defend polygamy. The street demonstrations by polygamists have already begun.
Despite Eskridge and Spedale's happy talk, the Pandora's box that some fear gay marriage might open really does have some other scary items in it.
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As early as 1931, Joseph W. Madden recognized there to be a problem in the legal status of marriage:
"It has frequently been said by courts, and even by Legislatures, that marriage is a 'civil contract.' But to conclude from these statements that marriage ... has all, or even many, of the incidents of an ordinary private contract, would be a grave error. In fact, these statements to the effect that marriage is a 'civil contract' will be found, upon examination, to have been used only for the purpose of expressing the idea that marriage, in the American states, is a civil, and not a religious institution..."
Handbook of the Law of Persons and Domestic Relations § 1-3, at 2-3
What is obvious to me in all the debates concerning marriage is that there is a serious lack of agreement concerning the status of marriage.
At a leadership conference a few years ago I was told that trying to fix the symptoms of a problem is not adequate when the real problem is a lack of ideological understanding. Along the same lines, I feel that we cannot attempt to deal with the gay marriage and polygamy "issues" until we come to a legal and societal conclusion concerning the status of marriage. Unless we can decidedly say from where the authority of marriage flows--be it church, state, society, or god--we will never be able to work out whether or not there can be alternative forms of marriage.
Agreed. So what is your suggested solution?
Although I'm sure a couple of semesters of contract law and one of family law will help re-form my opinion somewhat, I'm inclined to favor the view of marriage as a relationship (legal contract) entered into under the supervision of society (the public ceremony). The problems I see currently are that the contract is too easily breeched and dismissed and that society does not see itself as having a role--much less a duty--in supporting marriages. Perhaps a greater emphasis on covenant marriages, an increase in damages for a breech in the marital contract, and somehow increase the responsibility felt by society (still working on how to accomplish that one).
Polygamy as a social order is scary to me because it increases the power of the rich at the direct expense of the poor. The later wives also seem to get younger and younger, down to a system of fathers selling young girls to other patriarchs. I think polygamy is undemocratic in tendency.
The slippery slope I am worried about is not that gay marriage leads to polygamy, but that both lead to the privatization of marriage altogether. This is the problem that WHA is wrestling with too, I think.
I am using the term "gay marriage" to refer to the legalization of same-sex unions. The debate is over the meaning and legal definition of marriage. Every expansion of any legal category threatens to make the whole category unmanageable or meaningless as a legal status. There are already legal arguments being made that the state should get out of the marriage business altogether, regardless of how individuals or other institutions want to regularize their relations.
Whether marriage is internally democratic is a red herring in this discussion. In polygamous societies, the rich and high status men get most of the wives, and the poor and low status men get none. That is what strikes me as undemocratic.
I agree with Stuart, and we both have written about privatizing marriage before.
The analogy with extending voting rights does not seem to me to be apt. Voting is an infrequent act, whereas marriage is a state. The closer analogy would be in extending citizenship rights to illegal aliens, and there we are in the middle of just such a muddle right now. Suspect categories in discrimination laws, likewise, have been extended so much that they are already unmanageable, and do threaten to become meaningless.
Still, threatening to become unmanageable is not the same as actually becoming unmanageable; this point is still worth arguing with respect to gay marriage. Which is what we are doing.
"Current marriage law defines marriage as between two people: a man and a woman. Changing that so that marriage is still between two people: a man and a man, for example, in no way opens the door to polygamy."
Changing marriage law as stated here changes the fundamental definition of "marriage" from something fundamental (i.e. not defined by man) to whatever folks decide to make it. Of course it opens the door to polygamy.
Thank you all for an excellent stage in the conversation. I weigh in on gay marriage and polygamy in the next post.
Couple of things:
1) Excellent, excellent exchange of opinions! It warms my soul to see people with strong views able to debate those views without it turning into a yelling contest. I wish that everyone (myself included sometimes) could keep their emotions under control and maintain a civilized discussion, it’s really the only way issue can be resolved peacefully.
2) Speaking from a standpoint of pure logic, without passing judgment on homosexuality, polygamy, or the concept of “marriage” as it is traditionally understood; is there an argument that can be made for SSM that cannot also be used by polygamists as well? I ask that because I am not as familiar about the whole debate as others here seem to be. As I understood it, the main argument for SSM was that in a free country, consenting adults who love each other and are not hurting anyone else should be given the right to marry whomever they want. I freely admit that I could be wrong and that may not be the current prevailing argument, but if it is, it certainly could also be used to argue for polygamy, where consenting adults who love each other and are not hurting anyone else marry whomever they want.
3) While I do understand Gruntled’s argument about the wealthy men hoarding the women, and I can see the harm that polygamy would do to the “institution of marriage,” I think that, in theory, polygamy presents a very interesting free market approach to marriage. If monogamy is mankind’s natural state (as most traditionalists believe it is) wouldn’t it “win out” regardless of what the laws state about polygamy? I believe the stereotypical man would relish polygamy with great zeal, but the stereotypical woman would not allow it in a relationship and thus it would exist only in small enclaves (as it does now). Yes, in other cultures we see Sultans with 50 wives, but those women have been brought up to believe that their role was to be one of many, American women haven’t, and I don’t see them throwing up their hands and just giving in to this way of thinking simply because it becomes legal to do so.
Free market marriage: Name value alone could sell a million conservatives on the idea. J
I am late to the conversation but I thought I would also add that there is a natural law component to this marriage discussion as well. From natural law, the case is made that the family preceded the rise of the state and therefore the state exists to serve the family. The family (father, mother, children) is an enviable institution that the state may intervene in only in extreme cases and then to restore health. The state merely establishes procedures by which to grant legal status to those engaged in the institution.
The danger, according to natural law, is that the family becomes merely a tool of the state that exists at the states pleasure and to do the states bidding. When that boundary is crossed the socialization and nurture of children becomes the purview of the state which is merely “farmed out” to families. This is the slippery slope to totalitarianism. Defining marriage purely as a contract granted leads in this direction. It abolishes the family as the most elemental institution of civilization.
It would be hard to institutionalize polygamy here. Still, I think there are enough women who would go for the money to make the current imbalances much worse.
See, I'm under the impression that it takes a special kind of screwball of a woman to be a polygamist. It goes against the female's evolutionary make-up so much that I think it would take something radical like serious sexual or emotional trauma to cause a woman to go for that.
There are women now who are strippers and who pose for men's magazines (Hugh Hefner has...I think 6 girlfriends last time I checked) and I think it is those same kinds of women who would buy into polygamy. I think that any woman who would be damaged enough to accept a polygamous
husband, were it to become legal, is probably already so damaged that they are not in a healthy monogamous marriage in the first place. What
I'm saying is, we might see a lot of women moving toward polygamy, but we won't see a great shift in the culture as the women who accept polygamy would be the same ones who - in my opinion - are already on the fringes of society because of their sexual exploits - prostitutes, strippers, porn actresses and the like.
Robert George makes a natural law argument about (sexual) acts which are procreative "in intent" to distinguish sterile heterosexual unions from homosexual ones, but I think it is a bit of a stretch.
I'm a bit confused...is it being suggested that ONE media incident of polygamy in the Netherlands is proof that there is some sort of a movement towards polygamy where same-sex marriage is legal? I think you'll find many, many more polygamous unions in Utah than you would in the Netherlands, and Utah is about the last place I would expect to legalize same-sex marriage. As far as I can tell (also from what I've read of the Spedale - Eskridge book), it would be difficult, if not impossible, to suggest any "real" evidence exists that same-sex marriage has led to a movement towards polygamy and other forms of union.
I don't think the same-sex and polygamous social movements are the same, but I do think that the legal movement is the same. I think this because the ACLU has already written the brief that says so. They may not win, but I do think the cases for polygamy will be brought on the heals of every kind of same-sex marriage decision and law.
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