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.

7 comments:

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.

Anonymous said...

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

Examples:
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.

Mark Smith said...

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

My wife would kill me first. :-)

Anonymous 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.

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.