Wednesday, February 24, 2010

Restating The Issue

Alan, despite many protestations to the contrary and much pretzel-like logic, does not have an answer to the question posed by Bill and I. Since he seems confused on the point, I am going to spell it out clearly.

There are several rationales for not allowing gay marriage. Namely, the status quo is the status quo, which possesses its own justification. But also that it doesn't seem to have democratic support currently and marriage plays an important role in society's reproduction. You get the point.

The rationale that is often used to justify allowing gay marriage goes something like this: If consenting adults of the same sex want to enter into a marriage contract, then the government really has no right to stop them.

Now, under this rationale I can easily say why relaxing marriage to include gay marriage wouldn't include marrying goats or children. They aren't adult human beings who can consent.

However, I cannot find a reason under this rationale to allow gay marriage, but not allow polygamy and incestuous marriage. If they are consenting adults, then the government still has no right to get involved.

Alan's proposed distinction between polygamy and gay marriage leaves much to be desired and is ultimately inconsistent:
We do NOT have a multi-partner marriage contract in this nation because no state has added it to its social contract. There is no constituency for it as far as I can determine--no married partners clamoring to add a third person to their contract, no group of three persons asking that they all be permitted to enter into marriage.

So, to summarize, his argument is that polygamy wouldn't be allowed for two reasons. No states currently have it AND nobody is asking for it. The first part of the explanation is just odd. Only a few years ago the status quo was that there were no states that had added gay marriage to the social contract. Yet, that didn't stop Alan from supporting gay marriage (I'm assuming). So, that isn't really a good rationale. Second, just because nobody is asking for it isn't a rationale. It's just a statement of the current political environment. And even more importantly doesn't speak to where the right for gay marriage comes from.

If it's a matter of what the current political environment will support and what people ask for, then there is no implicit right being violated. The political majority can simply decide just as easily not to allow gay marriage or even repeal it after it has been granted. So this is fundamentally unsatisfactory as a rationale for a right to gay marriage.

Alan still hasn't resolved the problem despite spilling much virtual ink. And ultimately I think he acknowledges this when he writes:
I cannot rule out that a state may, in the future, decide to add [polygamy] to its social contract.

But again, is this simply the product of democratic, majority rule legality? If so, then saying that some right to gay marriage is being violated by the current democratic, majority rule definition marriage loses a lot of its punch. Furthermore, if it is a matter of the definition of the social contract and not rights per se, then court rulings finding the right to gay marriage are somewhat odd. Presumably, the social contract would have to be democratically redefined absent an inalienable constitutional right to gay marriage.

Personally, I'm willing to bite the bullet and just say that we ought not get involved in affairs of consenting adults and then in the same breath say that we ought not allow incestuous or polygamous marriages arbitrarily. Alan seems to think he has a bright line between the two, but doesn't. And when asked about the lack of a bright line, distracts the conversation away by saying nobody wants to cross it right now.


Withywindle said...

And there are poly people pressing the issue already. Sooth, I know some.

Andrew Stevens said...

Traditionalist Mormons and Muslims anyone? There was a long struggle for polygamous marriage in the U.S. from the middle of the 19th until the early 20th century and it's definitely not completely dead. The best guess is that there are about 40,000 traditionalist Mormons still living in polygamous families in the U.S., Canada, and Mexico and between 50,000 and 100,000 Muslims living in polygamous families in the U.S. They don't agitate for legalization because it's easier to just keep quiet and hope the government doesn't find out about it. In this regard, they are far more oppressed than homosexuals.

rahowe said...

As you know, the issue for me is discrimination, specifically, when is it appropriate to discriminate and when is it not.

On the last post, Bill suggests that the discrimination against gay marriage is precisely the same as discrimination against multi-partner marriages and that the arguments for legalizing the former necessarily require legalizing the latter. You and others second that here. But, you are mistaken.

I note in "Goats" that we discriminate when doing so is in the public interest. I note that we allow blind people to fish, but we deny them licenses to drive. The public interest in keeping them off the streets is clear. The public interest in denying two members of the same sex to enter a marriage contract is far less obvious. Indeed, courts and legislatures and district councils have found the justification for this discrimination so obscure that they had ended the discrimination.

There is no discrimination in denying people access to a contract that does not exist; I don't care how badly one wants to shoot the cat next door.

The contract for three people to marry is FUNDAMENTALLY different from the contract for two people to marry. The former carries so many untested burdens that few want to hazard that journey. It is not in the public interest to, for example, have an estate executor appear before a judge to ask:

"Your honor, I am, according to the new law, to divide equally the estate of Mrs. Brown between her two surviving spouses. I cannot determine if equal means between Mr. Brown and Mr. Smith or if I should include the two sons of Mr. Brown and the three sons of Mr. Smith in the equation. This stems in part from Mr. Smith's eldest son indicating that he wishes to live with his brothers from Mr. Brown as the two remaining spouses have determined to dissolve their union."


"Yes, your honor. The state law approving multi-partner marriages seems to indicate the children belong equally to the three partners. It would seem neither husband has a superior claim."

Or, imagine the judge asking, "Let me get this straight. Mr. Brown and Mrs. Brown are petitioning the court for divorce, but Mr. Smith will remain married to both Mr. Brown and Mrs. Brown?"

"Yes, your honor. Mrs. Brown agreed not to contest the divorce petition and has reached an agreement with Mr. Brown. However, Mr. Smith indicated he would contest the proceedings and so Mr. Brown has dropped his petition with regard to Mr. Smith."

"So, Mr. Brown and Mrs. Brown will no longer be married to each other, but both will remain married to Mr. Smith?"

"Yes, your honor."


These problems are not part of two-party marriage, no matter who is involved. Now, I refuse to say multi-partner marriage will never be added to a social contract. No one can rule that out. And I am fairly confident that we can eventually work out the problems if we decided to give it a go. But, I assure you that approving same-sex marriage is not just a small step away from legal polygamy. And arguments that ending discrimination in the one case and not the other is improper ignore that fact that discrimination is not always impermissible. It is in the public interest to avoid problems from multi-partner marriage. The same is not true of same-sex marriage. It would be quite permissible for a judge to refuse to legislate from the bench on polygamy.

Incestuous marriage can lead to offspring with severe abnormalities. The public has a continuing interest in preventing that. Same-sex marriages do not have this problem, either.

Andrew Stevens said...

This is just rank discrimination, isn't it? Didn't people make similar arguments against interracial marriage and aren't people making similar arguments against gay marriage now?

Your argument appears to be based around divorce customs, but Muslims have been dealing with polygamous divorce for many centuries now. And none of the problems you mentioned seem at all difficult to handle. E.g. children virtually always remain with the birth mother. Granted, Muslims don't deal with polyandrous marriages, but paternity testing has eliminated practical objections to a similar solution for them. The difficulties of dividing up estates is a difficulty we already deal with in our serial monogamy culture. Anyone who has had children from their first marriage who marries someone who has children from their first marriage and then has children together is in fairly similar predicaments. We don't forbid divorcees from remarrying for this reason. Anyone in such a situation is aware of the importance of having a good will. And the divorce scenario in which Mr. and Mrs. Brown remain married to Mr. Smith, but not to each other, is not a realistic situation, but I don't see a problem if all three are fine with it.

By the way, should we allow adult incestuous marriage if one or the other partner is sterile? Maryland is currently considering a law which would ban first cousin marriage (right now legal), but makes exceptions if both cousins are over 65 or if at least one partner is sterile. There are states where this is already the law.

FLG said...


Let me illuminate the issue I have with this discrimination argument that you've proposed. You keep using the analogy of a license, and so I'll use that.

Basically, your argument is that we have qualifications for licenses. If a gay person or a straight person meet the qualification for a deer hunting license, then if we deny one but not the other on this basis alone it is discrimination. Ergo, gay marriage should be allowed.

However, if we change deer license to license to marry a partner of a the opposite sex and elk license to license to marry a member of the same sex, then maybe the objection makes more sense.

I'd like an elk license.

We don't offer those. You can have a deer license.

Deer don't tickle my fancy. I really want an elk license.

Sorry, don't offer those.

That's discrimination. If I want to hunt elk, then I damn well should be able to.

The question then becomes why somebody ought to be able to hunt elk, not really a question of discrimination. And then what justification can be offered to allow elk, but not wild boar (polygamy or incestous). I can come up with one why not house pets (children or animals).

So, I still await an explanation why gay marriage, but nothing more.

Anonymous said...

Muslims have been dealing with polygamous divorce for many centuries now.

How very interesting.

(Catholics have been dealing with a clear-cut ban on divorce and homosexual relations for even longer.)

rahowe said...

The objective of hetero- and homo-sexual marriages are both to hunt deer. They are after precisely the same thing. We refuse because the clothing they wear (their appearance) is unusual, not because their quarry is different. As you have pointed out, gay men and women are not refused entry into the marriage contract. In most states, however, they are refused the opportunity to choose their hunting partner. Andrew is right that this is little different than Loving vs. Virginia.

Andrew is also right that we can overcome some of the potential problems with multi-partner marriages (as I state), but we cannot do that from a judicial bench. A judge's ruling that a state must grant same-sex partners marriage licenses causes no difficulties for the state. Inheritance, tax, custody, visitation, and other laws tied to marriage are unaffected. However, as any judge with minimal foresight can see, a ruling permitting multiple marriage partners immediately opens a plethora of difficulties no state is prepared to handle. Now, I won't contend that there isn't a judge somewhere ready to make that mistake, but I expect he would be reversed when a state appeals the decision and lays out the challenges--that is, when it shows discrimination in this case serves a public interest.

Did not know about Maryland's "keepin' it in the family" statutes, but the exception at least makes biological sense. I imagine the state sees that advantages to itself accrued in marriage are valuable enough to permit elderly, non-reproductive cousins to lean on each other. I've been socially conditioned to cringe reflexively at that, but logically it passes muster. I think this is likewise the problem with same-sex marriage in many cases: it is unusual and we are conditioned against it.

You will admit, however, that Muslim polygyny without polyandry is a discriminatory practice, right? Divorce law in Iran, for example, is very discriminatory as a consequence of the difficulties multiple partners adds. When we say, as we are more apt to do as proponents of equality, that men and women can each have, say, two partners, how do we work that out? Do a husband and wife each get to pick one, or do they have to agree on a third? Do we insist, as Muslim law does, that the father gets the kids at a certain age to avoid wives claiming children that some would argue are not theirs? Why can't wife #1 contest the husband's divorce of wife #2 if she wants to keep her in the marriage? If #1 and #2 are still married but the husband has divorced #2, can the husband contract wife #3? What is her relationship to #1 (still married to her new husband) and #2 (still married to #1)? Who marks what on a tax form?

How, in any manner, is this similar to same-sex marriage, and why should these difficulties serve as a check on the uncomplicated addition of same-sex marriage?

Again, this is a red herring that adds the understood problems of polygamy to the simple addition being requested. The problems of same-sex marriage are inadequate to block its adoption, so more troubles must be found to buttress the opposition. This is dishonest. Direct the defense against multi-partner marriage toward the proponents of multi-partner marriage, not toward the proponents of same-sex marriage. They don't bring you these problems, and their request does not lead inexorably toward these problems.

The Playful Walrus said...

There is far more history (and current practice) of polygamy being officially recognized than a brideless or groomless pairing being recognized as marriage.

And yes, some states prevent first cousins from getting a marriage license together and other states grant first cousins marriage licenses. So much for equal protection and a "right" to a marriage license.

As far as first cousins and closer relatives - you can't argue that we don't allow it because of possible harms to children if, when you argue for removing the bride+groom requirement from state marriage licenses that marriage is not about children. Either marriage is about children or it isn't. So, if there is a "right" to a state-issued marriage license, you have to give, say, a brother and sister who grew up apart, met as adults, and experience "Genetic Sexual Attraction" a marriage license if they ask for it. Because marriage isn't about children, remember? And before you say "Okay, instead, we'll prosecute them if they procreate together and the child has genetic problems as a result." Well, then, aren't you stepping on "reproductive rights"???

Finally... while the "what about a man marrying a dog" slippery slope argument sounded silly to me, too, the fact is, in some places in the world, chimps, gorillas, and other animals besides primates are being given rights as "persons", or at least there is a serious movement to do so if it hasn't happened yet. Certainly a mature "person" can consent, right?

I've written extensively on this.

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