Wednesday, September 06, 2006

Who Thinks Gay Marriage and Polygamy Are Connected? Judges Do.

Many proponents of homosexual marriage are perplexed, even offended at the idea that gay marriage creates a precedent or slippery slope that will lead to the legalization of other prohibited unions, especially polygamy. They see no connection between the two. I expect that most proponents of polygamy feel the same way about gay marriage, especially the Mormon fundamentalists who are not, to say the least, pro-gay.

Yet from the legal point of view, it would be hard to legalize one without legalizing the other. Thus far, the legal definition of marriage has been one man married to one woman. The "one and one" formula was nailed down in the 19th century polygamy cases. The "man and woman" standard has always been implicit in the law. Lately a number of state constitutions have been amended to make the man and woman standard explicit, as does the federal Defense of Marriage Act.

If, though, there were a successful legal challenge to either part of the "one man and one woman" standard, it would be hard to explain why the other part would not fall, as well. Restricting marriage to heterosexual couples was ruled a violation of constitutional equal protection standards in Massachusetts. There is no reason, in principle, why restricting marriage to couples (as opposed to larger groups) would not also violate equal protection standards. That did not happen in the Massachusetts Goodridge case only because no one asked the court to. If a heterosexual standard of marriage is just "prejudice" or "mere tradition" or "imposing religious standards," all those same arguments could, and would, be made about a monogamous standard of marriage.

To homosexuals, or polygamists, who want to get married, the two kinds of union are worlds apart. To judges and legal thinkers, on the other hand, they sure look like the same issue.


SPorcupine said...

As attorney-in-residence, I militantly disagree.

Marriage laws work as rules for the relationship of one person to one other person. That leaves all sorts of things very clear, such as:

* If A is in a coma, A's spouse B is the one who signs medical authorizations.
* If A dies, B inherits if A has no will, and may be entitled to inherit some stuff even if A has a will saying otherwise.
* A's income can be garnished to pay off debts B signed for.

Adding in C and D is just not easy. If A has two spouses, who gets to make medical decisions? If A wants to marry a third spouse, do B and C have a say? If not, aren't B and C losing property rights? And, for a further twist, does B have parental rights or any other rights in relation to children conceived by A and C?

Nearly all of marriage law has a clear meaning when applied to a same-sex couple. Nearly all of it becomes a tangled mess with millions of questions when applied to any group of three or four.

Alan said...

First of all, you present no evidence that any judge anywhere has ever ruled that polygamy is OK because gay marriage is OK. So, the assertion in your title that judges think gay marriage and polygamy are connected is completely false. They don't. You have no evidence that even one judge thinks that. These debates have been interesting so far already without "sexing up" your posts to present ideas that are patently false and/or unsubstantiated. Frankly that's way below level of discussion you've so far attempted to encourage.

You are trying to make the case that gay marriage leads to polygamy. However, given your reasoning, there's no reason that polygamy couldn't be legalized widely *first* (well, except for the very good reasons sporcupine describes above.) That is, polygamists (who are largely heterosexual) could challenge the one-man/one-woman argument which might make it easier for gay marriage to be legalized. The order is unimportant because the two are not linked in any way.

The fact that you think it's easier to bring a legal challenage because other groups have done so in no way forces courts and legislatures to consider the two groups together. For example, LGBT folks have been pushing for years to get the Employment Non-Discrimination Act through Congress to add sexual orientation to the list of groups we won't discriminate against in hiring. However, lots of people make the argument that protecting race, religion, Vietnam veteren era status, height, weight, etc. are fundamentally different than protecting sexual orientation. Apparently people can very conveniently draw lines when they want to. In fact, protecting someone's job because they served in the Army during Vietnam has nothing to do with whether someone else should face discrimination at the work place because they're gay. The two are separate. Lines can be drawn because the questions and issues are different.

Your argument is that changing marriage law in any way makes it easier to challenge marriage law in every way, as if real, understandable lines cannot be drawn. Those lines have been drawn before. The legalization of interracial marriage did not open the door to polygamy, for example. Laws have been changed about the age of consent and those laws have not opened the flood gates to the legalization of incest, for example.

And anyway do you honestly think that denying marriage rights to gay people would stop challenges to marriage law by polygamists??

Gay marriage offers many of the same social, economic, psychological, and physical benefits of a sterile heterosexual marriage. That much has been shown by research. However, the fact that Adam and Steve's marriage is as beneficial as a heterosexual relationship in no way means that a marriage between Tom, Dick, and Mary is going to be equally beneficial. In fact there are plenty of reasons (and sporcupine has described just a few) that it may not be beneficial. Thus there are obvious differences between polygamy and gay marriage.

Why group gay marriage in with polygamy? There's only one reason: because they've always been forbidden. But of course, since polygamists can be heterosexual there's no link there. It would be just as (un)reasonable to lump polygamy in with heterosexual marriage and then claim that heterosexual marriage leads to polygamy. (In fact, it would be easier to make that argument.)

There is no cause and effect relationship between them. You're simply using post hoc arguments.

I wonder why the focus on polygamy. Have people realized their arguments against gay marriage are useless, that it's a battle that will eventually be lost and now they're grasping at straws? Usually in these arguments incest and bestiality are brought in, just to make the topic really juicy. I'm glad to see you didn't bother with the stupidity of those arguments.

Stuart Gordon said...

I'm no lawyer and so I think most of this is out of my league. It seems that Gruntled is talking about polygamy because it is one of the aspects of marriage that societies have dealt with. We aren't talking about homosexuality in a vacuum; we're talking about institutions of human communion. Obviously, there are implications for the whole system when one of the parts is changed.

I don't have an opinion on cause-and-effect, nor do I have a hunch about what courts will do. But I see nothing foolish about considering the question. Alan's criterion of evaluation seems to be that marriage is beneficial to gay people, and that polygamy may not be beneficial. It seems strictly utilitarian.

Can you not imagine advocates of polygamy testifying to the healthy benefits of their arrangement, such as Gruntled linked in that recent post? If sporcupine is correct, polygamy makes things more complicated for lawyers and courts, but it doesn't make them impossible, any more than does joint custody of children of divorce.

WHA said...

Isn't it interesting how "big" topics can bring together such disparate groups?

1) Everytime there's a wet/dry vote (I realize this may be completely foreign concept to many of you) in the neighboring counties here in Kentucky, the conservative Christians and the bootleggers join together to defeat the proposition.
2) Most environmental conservation in the U.S. is accomplished by a combination of tree-hugging hippies and redneck hunters (I somehow fit into both categories, being the exception that proves the rule).

The mention by Gruntled of joining fundamentalist Mormons and homosexuals made me think of these unions. Nothing substantial, just an interesting thought.

Alan said...

"Alan's criterion of evaluation seems to be that marriage is beneficial to gay people, and that polygamy may not be beneficial. It seems strictly utilitarian."

Well, if you want to be fair, that isn't my only criterion. However, it is an important one and it is a criterion on which, it seems, laws can be made. In fact, my primary concern about the polygamy is Scriptural not utilitarian.

Of course proponents of polygamy may try to argue that there are benefits to such arrangements. My argument is that any such defense on their part is wholly unrelated to any arguments I would make about gay marriage.

Stuart Gordon said...

Fair enough. Too bad we have no committed polygamists in this conversation.

Mark Smith said...

"Fair enough. Too bad we have no committed polygamists in this conversation."

My wife would kill me first. :-)

Alan said...

It was hard enough finding one guy to put up with me. Two would be pressing my luck. Not to mention it would double or triple the amount of ironing I'd have to do. :)

Paul Jolly said...

Not to jump ship, but I believe that someone yesterday brought up something that I feel contradicts your point today, Gruntled.

At one time marriage law was not simply one man and one man, but one woman and one woman of the same race; race was one of the pillars of “traditional marriage” the way heterosexual relations is now. Your logic (if one pillar falls, the others would be subject to fall) does not hold historically because one of the pillars did fall in the past and the others held. It was ONE + WHITE + MAN and ONE + WHITE + WOMAN; when the middle requirement was dropped the other two stood without it (contrary to what detractors at the time claimed would happen, I’m sure). Who’s to say that changing the last requirement would cause the first to fall?

ONE survived without WHITE, why can’t survive without the last classification as well.

Gruntled said...

The interracial marriage analogy is a fair question, one that has often been canvassed in this debate. I think the difference is that marriage is primarily about the care of children. That is why homosexual marriage goes more directly to the core issue of marriage than race does. The analogy, good or bad, doesn't settle the question about the prudence of same-sex marriage, but I do see a distinction.

Alan said...

"I think the difference is that marriage is primarily about the care of children. That is why homosexual marriage goes more directly to the core issue of marriage than race does."

Heh. When all else fails, it's about the children, eh? ;)

I admit that I know very little about how things work in heterosexual marriages, but I've never known anyone who said, "I'd like to have children, so I think I'll find someone to marry me." Of course a couple generally (I would guess) talks about their desire (or not) to parent children, but I don't think having children is the reason most people get married. I suspect, initially at least, it's mostly about the love between the two people.

And, being married is not a prerequisite to having children, nor is the intent to have children a prerequisite to having children. We don't deny marriage to people who plan not to have children, nor do we deny marriage to peoeple based on their parenting abilities.

Stuart Gordon said...

"Marriage is primarily about the care of children." Alan disagrees. It's a claim worth engaging - not simply according to why people get married, nor by trying to atomize reasons for getting married (as if when we marry we could separate sexual attraction from compatibility from mutual tastes from a visceral urge to "make a family.")

Gruntled is making a philosophical claim, maybe theological. It's a claim that has fallen upon disfavor in the Romantic era. With the advent of more effective contraception, with the ebbing of social mores against sex outside marriage, procreation has gradually been made optional-in marriage and outside marriage. Does that mean that Gruntled is wrong?

Does marriage serve a purpose in society that is every bit as important - no, more important - than adult romantic satisfaction? Is that purpose the birth and rearing of children to be mature adults?

Alan said...

"Does marriage serve a purpose in society that is every bit as important - no, more important - than adult romantic satisfaction? Is that purpose the birth and rearing of children to be mature adults?"

I think that's a great question. Certainly the raising of children can be one important purpose. And I wouldn't want to be seen as discounting that. But I don't think it's necessarily the only one. I think there are a number of other important purposes. For example, I believe (and there's good research to back this up) that married people are more stable members of society not only psychologically, but also socially, economically, and even physically.

Stuart Gordon said...

It's clear why marriage rights matter to many gay couples, for those reasons. I can see the logic of including homosexual couples in what is, by most accounts, an institution that is vital for social health. I think that's what this blog is all about (the importance of marriage and family).

Clearly, our debates grapple with whether that logic adequately describes the reality of human relationships and society. Such things are not neatly logical. We have to think clearly, but we cannot presume that when we work out a syllogism, then human relationships will march in lock step. Love makes us do crazy things!

I can only assume that gay marriage laws would be considered incomplete without adoption rights implied. Deep down, there is within most (?) of us this desire to create a family. I won't go into the "why" of it. I will say, though, that I appreciate Gruntled's unapologetic affirmation of the necessary link between marriage and children.

Children are getting a bum deal in the Romantic era: so many born out of wedlock, so many made the casualties of divorce, so many simply overlooked because they don't fit into their parents' busy lives. Parents learn quickly the call of sacrifice or their children learn quickly what it means to be an appendage.

This question deserves a discussion with all the vigor of the one over gay marriage. It often lacks because children can't speak for themselves.

Alan said...

"I can only assume that gay marriage laws would be considered incomplete without adoption rights implied."

I don't know enough about the marriage laws in MA to say whether or not adoption is allowed. I do know that in MI and IN, second parent adoptions happen even though there is no way for same-sex couples to get married. So if there is indeed a necessary link between children and marriage, then states are doing a huge disservice to the children of same-sex couples by not allowing their parents to get married.

Anonymous said...

Some gay marriage supporters insist that denying gays to many is analogous to miscegenation laws where interracial couples where legally forbidden to marry. It would lead one to think that at no time in US history (or the history of the world) were blacks and whites allowed to marry. This comparison is false. There were four states that never had laws against interracial marriage (i.e. Alaska, Hawaii, Michigan and Kansas). And, while it is true that the majority of the states (thirty-one) did ban interracial marriage by law, only two had it enacted by constitutional amendment (i.e., South Carolina and Alabama). I am not aware that any state EVER allowed same sex couples to legally married. Ever. The analogy fall even further apart when one considers marriage laws world-wide.

Gruntled said...

Yes, gay marriage would be a legal, as well as cultural revolution like no other.