After same-sex marriage, is polygamy a further slide down the slippery slope, the next step of progress, or a separate issue entirely?
For the last 10-15 years, people who brought polygamy into a discussion were usually talking about something else. Polygamy was supposedly the next stop on the slippery slope we would step onto if we legalized same-sex marriage: Once you start fiddling with the definition of marriage, the doomsayers prophesied, there is no clear place to stop. In the Supreme Court’s recent marriage decision, Chief Justice Roberts brought that argument into his dissent:
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.
Slippery-slope arguments are often a way to create flashy distractions from the issues that are actually present: If you have no coherent case to make about why a loving, committed same-sex couple shouldn’t be married, you talk instead about legalized polygamy, incest, pedophilia, and bestiality. Maybe no one is actually making those proposals yet, but they could at some point down the road.
On the other hand, some slippery-slope arguments actually are prophetic. In his Lawrence dissent in 2003, Justice Scalia warned:
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.
Twelve years later, here we are.
And sometimes, when we look back on prophets of doom, our modern eyes see them as unintentional prophets of progress. The downward slide they feared, we recall proudly. For example, shortly after the Civil War, Rev. R. L. Dabny published a retrospective justification of slavery and secession: A Defence of Virginia. In it he warned the North of the horrors its abolitionist notions would ultimate bring to pass:
But other consequences follow from the abolitionist dogma. “All involuntary restraint is a sin against natural rights,” therefore laws which give to husbands more power over the persons and property of wives, than to wives over husbands, are iniquitous, and should be abolished. The same decision must be made upon the exclusion of women, whether married or single, from suffrage, office, and the full franchises of men. … But when God’s ordinance of the family is thus uprooted, and all the appointed influences of education thus inverted; when America has had a generation of women who were politicians, instead of mothers, how fundamental must be the destruction of society, and how distant and difficult must be the remedy!
Wives owning property! Women voting and running for office! Surely society must collapse from the unnatural strain of such abominations. Why didn’t we listen when Dabny warned us? If only we’d kept blacks in slavery, we could have avoided all this.
[You knew that was sarcasm, right?]
So OK: But for a few dead-enders, same-sex marriage is a done deal now. So polygamy’s usefulness as a slippery-slope horror is over. But are the predictions correct? Is that where we’re heading next? And if we get there, will it be a downward slide or an upward climb?
In Politico Magazine, Fredrik deBoer got right to work with “It’s Time to Legalize Polygamy“. Jonathan Rauch then answered with “No, Polygamy Isn’t the Next Gay Marriage“. And deBoer responded on his blog with “every bad argument against polygamy, debunked“. Another worthwhile piece promoting polygamy (with a better collection of links) is William E. Smith’s “Who’s Scared of Polygamy?” on Religion Dispatches.
I’m not going to take a pro or con position, but I would like to shape the discussion a little.
If you’re worrying (or hoping) that some judge will legalize polygamy next week, stop. Think about how hard it would have been to implement same-sex marriage during the Washington administration: At the dawn of the American Republic, men and women had different legal rights, and husband and wife were unequal legal roles. Same-sex marriage would have been absurd then, because women were legally incapable of playing the husband role, and before they could become wives, men would have to give up inalienable constitutional rights. To make same-sex marriage legal then, the whole legal relationship of men and women — which was embedded in countless laws — would have had to change.
But everything was different by 2003, when the Massachusetts Supreme Court considered the question. Massachusetts had passed an Equal Rights Amendment into its Constitution in 1976, so men and women were equal under the law. The U.S. Supreme Court had thrown out Louisiana’s Head and Master law in 1981, so husband and wife were legal equals. All that really had to happen to make same-sex marriage a reality was to change the forms from Husband and Wife to Spouse and Spouse.
(You can accurately describe American marriage after 1981 in a lot of ways, but “traditional marriage” is not one of them. I don’t know of any traditional society where husbands and wives have been equal under the law.)
Polygamy today resembles same-sex marriage in the Washington administration. Changing the forms to allow an indefinite number of spouses wouldn’t come close to defining it. Are we talking about Biblical (or Mormon) polygamy, where one man marries several women? Jacob and Leah and Rachel, say, or Solomon with his “seven hundred wives of royal birth and three hundred concubines“? Or a group marriage where everybody listed is married to everybody else? Or maybe a chain marriage, where Bob marries Carol marries Ted marries Alice, but Bob and Alice are just friends? Or is some central couple the prime relationship, with other spouses secondary? The possibilities are endless, and the law would have to account for them.*
However you picture it, giving polygamy legal recognition would mean establishing legal infrastructure to answer questions that don’t come up in binary marriages. In a group marriage, can one spouse divorce the others, or does the whole relationship dissolve and need to be reformed? What’s the property settlement look like? Do all spouses have equal rights and responsibilities regarding the children, or do biological parents have a stronger legal bond? In a Biblical polygamous marriage, are all the wives equal, or does the first wife have a special role?
In any of the polygamy models, it doesn’t take much imagination to spin out questions that may not be unanswerable, but aren’t answered in any obvious way by current law. Such questions go all the way down to the most trivial level: What fee should a clerk charge for a plural marriage license? Are current fees based on per-person or per-marriage logic? That question never comes up as long as all marriages are between two people, but someone would need to decide God-knows-how-many minor issues like that.
Consequently, a court can’t simply order to a county clerk to issue a three-person marriage license. The judge would have to rewrite big chunks of the legal code, which a judge is not equipped to do, even if one thought he or she could get away with asserting that kind of power.
Is polygamy a legal right? A somewhat more realistic fantasy/nightmare goes like this: A judge might find that three or more people have a right to the legal advantages marriage offers, even if the judge can’t say exactly how that right should be implemented. That would have to go through a legislature, which is equipped and empowered to rewrite large chunks of the legal code.
So a judge could order the legislature to rectify the situation within a specified time. The legislature would probably refuse, and then the judge could assess damages against the state, which the governor could refuse to pay, and from there who knows where it all goes.
A key part of that scenario, though, is that the legal argument for a right to polygamy is sitting there inside the same-sex-marriage jurisprudence, waiting for some bold judge to notice it. In spite of John Roberts’ dissent, I don’t think that’s true.
In order to have this discussion, though, we need to set aside the particular opinion Justice Kennedy wrote, which really is as bad as the dissents claim. (I covered that when it came out.) It’s not at all typical of marriage-equality opinions, and it contains little in the way of a legal framework that could be extended to polygamy or anything else. I suspect it will have the same kind of influence that Kennedy’s similarly mushy DOMA opinion had: In subsequent lower-court decisions, judges made their rulings consistent with the outcome of the DOMA case, but didn’t attempt to apply Kennedy’s reasoning, such as it was.
The way pro-marriage-equality judges other than Kennedy have approached the issue is through the equal protection of the laws, a position I summarized in May: The opposite-sex marriage laws create an advantageous institution (marriage) and extend its benefits only to opposite-sex couples, when same-sex couples could be included by simply editing the license form, and no credible evidence suggested that negative consequences relevant to the mission of the government would ensue. (The possible offense to God claimed by anti-gay activists is not something the Constitution instructs the government to take notice of. Read the Preamble.) Under those circumstances, there’s really no way to claim that gays and lesbians are being granted the equal protection of the laws promised by the 14th Amendment.
What lies in the background of that argument is that the separation between gays/lesbians and the benefits of marriage is not something the affected individuals can easily fix on their own. Sexual orientation may or may not be innate, but it is not generally changeable in adulthood. And while legally, a gay or lesbian person could enter into a marriage with someone of the opposite sex, it’s hard to see that as a satisfactory solution. Consequently, because of who you are, you might be unable to take advantage of the marriage laws.
That argument is much harder to make for polygamy, which feels more like a lifestyle choice than an innate orientation. The government set up an advantageous path hoping to induce you to live one way, but you decided to live another way. I would defend your right to make that choice, but I don’t see how it gives you a right to the advantages of the other lifestyle.
Maybe some other legal argument for a right-to-polygamy is possible, but I don’t know what it is. I think you’d need to show that favoring binary relationships is an irrational thing for the government to do, and can’t conceivably lead to any social benefit the government might reasonably want to achieve. Constructing such an argument would be much harder than just cutting and pasting from the same-sex marriage arguments.
If polygamy isn’t a right. If polygamy isn’t a right inherent in the laws currently on the books, then if people want it, they need to convince legislatures to pass new laws. And that means convincing a large chunk of the electorate (who may or may not have polygamous fantasies) that a society that openly includes polygamous households is better — or at least no worse — than the society we have now.
If we’re debating in a legislature rather than before a judge, then I think the burden of proof shifts a little on both sides. To win in court, a polygamy supporter would need to show that banning it is completely irrational. To win in a legislature, they’d just need to argue that allowing it makes more sense than banning it. deBoer sums up:
my argument for polygamy is that there are people in the world who want it, and I recognize the inherent and total equality of the dignity and value of their relationships in comparison to two-person relationships.
As in same-sex marriage, we’re talking about real people doing real things. What’s our basis for telling them not to? I’m not saying there is no basis, I just can’t explain what it is off the top of my head.
On the other side, a legislature would have to debate a real proposal, not just an idea. Exactly what relationships are we giving legal form? How do all the details work? In particular, a law shouldn’t create holes in the system, which would be easy to do. (If my health insurance plan covers my spouse, maybe I could establish universal health care by marrying everybody. Or maybe I could solve the immigration problem by marrying all of the undocumented immigrants. Yes, those examples are ridiculous. But it’s not hard to imagine more realistic unintended scenarios, where groups might redefine themselves as marriages to take advantage of a poorly phrased law.) deBoer argues that the difficult logistics of polygamy isn’t a reason not to do it. But a real proposal would have to deal with those logistics.
In short, I would tell both deBoer and Rauch the same thing: I’m convincible, but I’m not convinced. The anti-polygamy argument isn’t sharp enough, and the pro-polygamy argument isn’t detailed enough. But however the issue eventually comes out, it will do so on its own merits, and will not follow automatically just because gay couples or lesbian couples are getting married.
* I’ve questioned whether I should even use the word polygamy to cover all these possibilities, since it often refers specifically to Biblical polygamy, with polyandry referring to a woman with many husbands. But the articles I’ve referenced are comfortable with that usage, so I have reluctantly followed it.
The Weekly Sift 
Comments
You shouldn’t feel uncomfortable with using “polygamy”. It’s the correct term, and while a lot of people will assume you mean polyandry, polygamy is the gender-neutral word and I’m not aware any convenient alternative. Also, I think that if someone’s mind is going to automatically go to Biblical polyandry then it’s going to do that whatever term you use to refer to non-monogamous marriage. (In fact, I think we should stop using the term “Biblical polygamy” and call it the more accurate “Biblical polyandry”.)
As a heterosexual polyamorous person, I can tell you that it does feel like an orientation. My aversion to monogamy feels *more* fundamentally a part of me than my lack of interest in sex with men. So at least for *some* people, calling it a lifestyle choice is reminiscent of people telling gays that their choice of partners is a lifestyle choice as well.
My understanding that polyandry means a marriage involving one woman and multiple men. Polygyny is multiple women and one man, is it not?
Wow, yeah, total brainfart.
I can’t make a serious comment yet, I’m still digesting. But the t-shirt made me think of something I’d heard long ago:
“Television? The word is half Greek, half Latin. No good can come of it.”—C. P. Scott
The google search that found that also uncovered that there is a word for this: https://en.wikipedia.org/wiki/Hybrid_word The article includes an interesting list of examples.
I’ve been telling people the same thing about what passes for our “attempt” at having The Conversation about race in the US – we’re still cobbling together words on the fly like “Afro-American” and “post-racial” which just shows how we still haven’t got the vocabulary (or the concepts preceding the vocabulary) to even have the “conversation”.
I seem to remember from school that bacteriaphage is part Latin and part Greek. They missed that one.
I love your analyses, but with all the significant things that are happening around us, I am disappointed that you chose this trivial issue to spend your valuable time on. As you pointed out, it’s just a distraction not a serious issue. Personally, I’d love to see you catch up on your stump speech analysis, so we can get a better feel for the positions of the candidates!
This issue might be trivial to you, but I think it matters quite a bit.
You think this matters in practical sense, because you or somebody you know is participating in a polygamous relationship and want recognition? Or you think this matters in the intellectual sense where you simply like clear answers? Because I’m guessing this a sort of “how many angels on a pin head” question that sparks great debate and furor about religious principals and theoretical rights and government control while affecting hardly anybody. I guess I’d be interested in seeing demographics.
Analysis of stump speeches at this point in the campaign is the equivalent of commentary on “professional” wrestling or “reality” TV shows. Analysis becomes part of the entertainment for those who can stomach it. From stump speeches we will never get a feel for the thoughtful positions of the candidates, only a feel for their political posturing as designed by their handlers.
My family’s dignity is not trivial.
Almost exactly 3 years ago, I lost my domestic partner to cancer, 8 weeks after diagnosis. We chose not to get married, but to have powers of attorney and healthcare proxies, etc. SOMETIMES they were honored, SOMETIMES they were ignored.
If I knew how it was going to be, we would have gotten married, just to establish a legal next of kin relationship.
So… I KNOW what this “trivial” thing means.
Next week, a Hillary article.
It matters to the many people practicing non-monogamy (including myself and dozens of people that I know). In studies that I have seen, the number of people affected is over a couple million in the US (less then 10 million but more than 2). I can think of many minorities of a similar size that matter in society, that have a voice and some agency.
I agree with BobD. Let’s pay attention to more significant issues.
You, of course, are free to write about whatever you want – it’s your blog. But I also would love to see more of your analysis of the stump speaches of the other so-many-I’ve-lost-count presidential candidates.
One important consideration, for me, is: is somebody hurt by the law being the way it is?
When poly families have kids, one couple can marry, giving legal protection and rights to their unit… but what of a parent who has a child left out of that union? It would seem to me that they are harmed (and the father of that child also harmed) by being denied legal recognition. Whether we’re talking about children, inheritance, medical decisions, or the flowery language of inherent dignity preferred by certain Justices, I see the same cases for harm and tragedy in this as any of the other previously denied legal arrangements.
What state harm is that compared to? Apocalyptic pronouncements that polyamory will lead to terrorism set aside, it seems mostly that people primarily complain about how difficult it would be to write up laws to deal with it. However, it seems to me that we already have a robust legal infrastructure in place for dealing with complex legal partnerships with varying numbers of people who have a resources in common.
The argument that polyamory is just a lifestyle choice flies in the face of history and biology, as well. “Bastards” have been so consistently produced by society that they’ve often have unique laws and social expectations. On the other hand, 1-2% of children (at least) are fathered by somebody other than the mother’s husband. Large numbers of men and women cheat in their marriages. Multi-partner families can be found around the world in a variety of arrangements – and have been throughout history.
We know some species tend strongly to lifelong monogamy. Other species are entirely casual. Humans fit neither of those patterns.
Non-monogamy is as biological, as universal, as traditional, as important, as any other arrangement.
Honestly, I think people kind of know that there really isn’t any substantive argument against this left… it’s just uncomfortable for them to think about and they don’t /want/ to accept the outcome.
I know it feels weird to come to terms with, but… if actual people are being harmed by the laws as they are, then shouldn’t your position be that you need to be convinced by the proponents of the status quo that the harm is necessary and tolerable… instead of being theoretically open to being convinced that adults should be able to form the families they choose?
I agree. What is the defense of limiting a civil marriage contract to two persons? I believe some people in unions which include more than two adults (and often children) are harmed by their inability to have their loving committed family relationships legally recognized without complex and often impossible legal wrangling. It is to society’s benefit to provide a way for them to have standard marriage rights and responsibilities recognized and enforced by the government.
There are other broader societal costs to keeping polygamy and polyamory illegitimate. People have to fear for their jobs because there’s no employment protection…. which often leads to being forced to lie to their children because young children aren’t great at secretes. It’s also easier to foster children as a single adult, then as a non-traditional family.
It also says that cheating and lying is more morally upright than communicating well and being honest in a relationship that fits you.
There are certainly real costs.
“polygamy…feels more like a lifestyle choice than an innate orientation.”
I don’t think this is a useful argument. For a heck of a lot of opponents to gay marriage, homosexuality felt more like a lifestyle choice than an innate orientation.
Exactly. They /could/ marry a woman and have children. Many have and do. Why should their life satisfaction with a married partner of their choosing be a factor?
Similarly, why should it be important for interracial marriage to be legal? Those people could even find other partners of their preferred sex to have children with! The government made it advantageous to marry somebody of your own race, if they choose to engage in an alternative lifestyle, what right to they have to demand those same privileges?
Love is love and families are whatever those families say they are.
The arguments that I have with polygamy are the same ones that I have had with same-sex marriage. I object to extending the tax advantages that society has granted to conventional couples to other parties. It is discrimination against singles. I would rather see society even that aspect out first. Once that is taken care of then I am open to flexible association. It would be more like what currently (and classically) has existed for partnerships.
According to this article at the New York Times, some couples benefit from filing jointly, and others end up paying more than if they filed singly.
The idea that legal protection has to be based on a “lifestyle choice [rather] than an innate orientation” misses the fact that we protect religious belief. That’s not an innate orientation either, yet it’s protected.
The law doesn’t protect “religious belief” it protects “religious expression”…
And of all “conversations” we are refusing to have as a society, this is probably the one we now avoid at our greatest peril.
Fascinating. I’m curious what my polyamorous friends will have to say about this.
Some years back, a poly friend of mine and I discussed the idea that the State (any government) should get out of the marriage business entirely, but, as you point out, that leaves a lot of legal problems unresolved with regards to kids and property and so forth.
If we want to do this, the structural part is easy. Each marriage still joins two people. Jacob has his marriage to Leah and his marriage to Rachel; Solomon has 700 marriages and a small army of accountants; Bob’s marriage to Carol, Carol’s to Ted, and Ted’s to Alice are three separate marriages; if (say) four people want to all be married to each other, that’s six marriages, one for each pairing. Many people will want to build less symmetrical structures than these examples. Each pair-bond can be dissolved independently by a divorce. The government needn’t get involved in deciding which pairings are “primary” or “secondary”; people who want a hierarchy can define their own, and back it up with contracts and living arrangements. (Whether to live together, have a joint bank account, etc. are already independent of marriage.) This is pretty clearly the most flexible approach and the one requiring the least redefinition. It answers about half the questions you’ve mentioned.
The hard part is that we will need to rethink all the parts of the ridiculously complex package deal that is marriage. There are many benefits to being the spouse of person X. Some we can probably still give to all X’s spouses; some we will want to divide among them, equally or as X chooses; some we may only want to give to one spouse of X’s choosing; some we may want to abolish entirely, or disconnect from marriage and reinstitute by contract. Health insurance benefits probably go to one designated spouse; the right not to testify against one’s spouse might need abolishing; most property arrangements probably need to start being decided explicitly. Responsibility for a child probably goes to its biological parents by default, unless other arrangements have been made.
(Honestly I think it would have been good to rethink all this and disentangle much of it from marriage a long time ago anyway. If the government wants to subsidize and encourage this or that behavior or lifestyle, which strikes me as dubious, it might be better to be more direct about it. You can give tax credits for having lived with the same person for more than five years, or whatever.)
I think the property aspects of this would be messy. Polygamy was simple in Solomon’s day because the man owned all the property; if he wanted to support many wives with it, that was his decision.
This is true. As we change over gradually from Inheriting Obligations to Negotiating our Commitments, we’ve already come to a point where the amount of financial (and other) resources people are expected to put into a marriage are largely up to the participants to decide on; likewise who inherits property after death, although if people neglect to make a will, there are default guidelines. I think alimony is mostly decided on a case-by-case basis, using complicated guidelines that weigh many factors and vary drastically from state to state. If we were going to institute polygamy, this would all need rethinking yet again, and I suspect that we would end up moving even more of it into the “whatever you guys have agreed on–the government doesn’t have its own position” category.
This wouldn’t necessarily be as drastic as the government’s deciding “okay, no more alimony for anyone unless you’ve specified it in a prenup.” More likely is that state governments would come up with new default alimony guidelines that factor in how many spouses each party to the divorce has. No matter what these guidelines say, a large percentage of prospective polygamists are not going to like them and are going to negotiate a prenup to override them.
(I mean, it’s pretty much the defining principle of polyamory that a relationship is whatever the participants agree it is. Monogamous relationships have been trending away from “assume your relationship will just work the way everyone knows relationships work” and toward “figure out explicitly what you want your relationship to be like”; polyamorous people have been working in that second mode for a while now, because the only generally accepted cultural idea about how polyamorous relationships work is that they don’t.)
Property rights in a monogomous relationship are pretty darn messy. How does adding another person to the mix make it messier?
A group marriage might not be messier, property-wise. But Daniel is describing chain marriage. So Bob merges his property with Carol, who merges her property with Ted. But Bob and Ted have no agreement. If Carol and Ted get divorced, does some of Bob’s property bleed through to Ted or not? How much? That’s the mess I’m anticipating.
Now, Anonymous is pointing to the kind of social change that could make polygamy less of a stretch. If negotiating a property agreement — something my wife and I still haven’t done after 31 years — becomes a normal part of monogamous marriage, then this objection goes away.
“If negotiating a property agreement — something my wife and I still haven’t done after 31 years — becomes a normal part of monogamous marriage, then this objection goes away.”
Personally, I think you HAVE negotiated, and negotiate in mini – mostly unspoken – defaults and contracts every day of your 31 years. That’s how, IMO, it gets to be 31 years.
The real question should be not “Whither Marriage” but how it got to be about property…or perhaps that’s what it really was about all this time.
That makes me tired just thinking about it…
Polygamy can be a bad deal for women – we’ve got “stone age” patriarchal precedents for this type of arrangement, as well as recent issues with certain cultish polygamous groups in USA.
Now polyamory – that’s an interesting potential, if not emotionally complicated for those who launch such a relationship life style. Other alternatives; “open” marriage, sexual friendships?
Responding to the polyamory t-shirt – so what’s the big deal with mixing Greek and Latin suffixes and prefixes – done all the time in European and English languages.
The culture has changed in the last 100 years. And the laws. Before women’s suffrage, feminism, Title IX, Victoria Claflin Woodhull, Sally Ride, and the basic right for women to own property, women were The Property of their husbands. One-man-many-women unions were unions of domination: men over women. While the possibility still exists that one man has dominated more than one woman, it is not NECESSARILY the case any more. With that caveat: equality within the relationship, I see nothing inherently wrong with polyamorous covenants. Doug’s analysis is right on (as usual), there is a lot of law that needs to be brought forward, But morality can be decided outside of legality.
I think that my time is finite. I prefer to spend my finite time on getting big money out of politics. Maybe I’ll worry about polygamy after we fix our broken campaign finance “system.”
Couldn’t we simply eliminate the laws banning bigamy, which, as a criminal act could be covered by laws against fraud? Then every polygamous marriage would simply be a series of two-person partnerships. (Good article, by the way. )
That’s what I was saying, but the hard part is that our legal system gives a huge assortment of privileges to a person’s spouse, and some of them cannot be given in full measure to all fifteen of a person’s spouses, or not without seriously disrupting some established balances.
The legal basis for “allowing” polygamy are the same for allowing “same-sex” marriage; the 1st’s “Establishment” clause and the 14th’s “equal protection” clause.
“Establishment” clause; if “marriage” is a religious sacrament then the US Government is prohibited from establishing its form or observance. If it is secular ONLY as it pertains to Government involvement, then by the “equal protection” clause polygamists cannot be denied their opportunity to have their unions recognized.
As for changing current laws to accommodate “plural” marriage, marriages should NOT be licensed at all, but those wishing to do so should have the opportunity to REGISTER their union with the County Clerk’s office. Tax laws need to be changed so that the word “marriage” (in all its conjugations) is replaced with “Joint Filers” WITHOUT specifying the number or familial relationships of the filers. Thus 3+ people living in a household should be able to file jointly be they roommates, grandparent to grandchild 3 generations, cousins, siblings or whatever. These are minor tweaks, even if they require a major shift in attitude.
Property rights/obligations can be handled under current contract law just as when a partnership is dissolved. Uncontested, the participants figure it out themselves and file the appropriate forms with the appropriate agency. Contested it goes into court for resolution. This includes the “property” known as “children.” Marriage, sans religious trappings, IS a contract after all.
Great analysis, my only caveat would be to add that not just a major shift in attitude might be needed, but a more progressive, encompassing version of contract law, as well as a resolution of whether property or access to resources confers extra-legal rights upon the holder, neither of which, in my view, have seen major updating since the 1600s.
And any attempts to make bestiality or pederasty “official” would also be held at bay by simply holding the line at who can enter into a contract.
And yeah, I saw what you did there with “all its conjugations”
The slippery-slope arguments that take us to bestiality and pederasty seem really off-base. Even if marriage is just another contract, contracts have to be based on consent.
That’s my point exactly. Unless someone, for reasons of culture or religion, has an irrelevant belief system regarding the nature of people or the nature of contract (or the nature of consent) there really is no issue.
The same thing would apply with incest; an existing familial relationship would render a contractual relationship improbable because whatever else family members may be, they are not “equals” as we understand it, at least some of the dynamics may preclude the ability to give informed consent.
The same thing with “Biblical” or Mosaic law regarding polygamy. The Biblical models are based upon power and control of resources, which renders a legal contract improbable.
“If my health insurance plan covers my spouse, maybe I could establish universal health care by marrying everybody. Or maybe I could solve the immigration problem by marrying all of the undocumented immigrants. Yes, those examples are ridiculous.”
I’m not convinced these are ridiculous, even though they sound that way at first. Not long after my wife and I eloped, we were in a bar and chatting with a guy about some of the financial benefits that had come with it — substantially lower car insurance was a pleasant surprise, and of course better healthcare. The guy, who was gay, responded that there were all sorts of benefits to marriage and in fact he had married a lesbian friend for this reason and he knew others who had done the same. I was surprised to hear this but it made sense and I don’t get particularly worked up about small-scale abuses of the system like this. It occurs to me that now that gay marriage is legal, he would have more reason to be reluctant to enter a false marriage like this: now if he finds someone he wants to settle down with, he will need to go through a divorce to have the option of marriage. This applies to biblical polygamy as well – a woman at least has good reason not to enter a fake marriage as they forgo the opportunity for a real one. But with general polygamy, why not marry lots of people you aren’t in an actual romantic relationship with? What’s the real downside? For another ridiculous possibility, could a mafia have a group marriage so that none of them can be asked to testify against each other in court?
I feel ridiculous suggesting possibilities like this, but I don’t see what prevents it. If polygamy were confined (at least mostly) to groups where everyone was romantically involved with everyone else then I think I’m pretty much on board. (Well, okay I’m not so convinced that feminism has been so successful in this country that we wouldn’t see a dramatic rise in polygyny without a comparable rise in polyandry and a rise in patriarchal norms, but let’s keep this comment about one concern.) The problem is the government shouldn’t be in the habit of verifying that married people are actually romantically involved with each other, but maybe in suspicious cases of people claiming spousal privilege in court they could be. If we had universal health care that wasn’t tied to employment that would go a long way in reducing the potential for abuse as well (and employers probably don’t want their employees extending their benefits to arbitrary numbers of partners as well). It may be enough to require that married couples intend to live together and share income and property. There’s nothing I’m convinced is fatal and unfixable, but I share Doug’s desire to see a more fully fleshed out proposal (and I’m not on board with Daniel’s proposal; my initial feeling is that marriage should be a transitive closure, so to speak, and should not normally be complicated by concerns over whether A and B’s kids are also B and C’s kids except in divorce or maybe if prenuptial or other agreements go to the trouble of spelling out a complicated relationship.)
Hm. Do you think you can get majority support for having the government require that married couples/groups “intend” to live together and share income and property? What do we do with couples or groups who fail to act on that “intention”, or the vast number of currently married couples who never had that intention? I think you’ll be fighting an uphill battle; our whole culture is moving the opposite direction.
Similarly, I think getting spousal privilege abolished entirely is probably less infeasible than having the government decide which marriages are (still) based on a romantic relationship.
(I was hoping the problems with the “transitive closure” or “clump marriage” approach would be apparent. One is that actual relationships and the feelings they’re built on are not transitive. A small closed group of people all romantically bound to each other is one kind of poly relationship, and often the first kind that occurs to people a priori, but it’s not the most common or generally workable kind, and it’s definitely far too rigid a structure to try to wedge all committed poly relationships into. Two is that if we use that model, it will instantly raise the question of why the same person can’t be part of two group marriages. (Say they spend half their time with one family grouping in Chicago, and the other half with their other family grouping in Seattle.) Three is that if this tight grouping is what you really want, you can build it out of pairings between all participants anyway.)
I think the first step towards greater recognition of polyamorous families and relationships – be they marital or otherwise – is addressing discrimination against poly people, and specifically child custody. There have been cases where social workers have determined that a child is not being harmed as a result of being raised by a polyamorous parent, even that the child would be better off in the poly household, yet judges have ruled otherwise. This parallels the legal history of GLBTQ rights recognition in American courts. Last but not least: Whether we consider polyamory/polygamy a “lifestyle choice” or an expression rooted in an “orientation,” it is still about consenting adults being able to choose the family or relationship structure which works best for them in their pursuit of happiness.
“That argument is much harder to make for polygamy, which feels more like a lifestyle choice than an innate orientation.”
Sure, to the layman. However, the available science doesn’t back this up. At all.
Just ask the American Psychiatric Association.
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