More than once, we’ve discussed at this site what both I, and my excellent co-author, consider to be the bright-line between extending marriage rights to gay couples, and tolerating polygamy. As far as we’re concerned, the slippery slope is no such thing, and recognition of marriage equality need not (and must not) encompass plural marriage.
Curiously, what’s generated so much debate here is a slam-dunk case in the legal world. Here’s why. Over the years, from the admittedly opaque and deceptively simplistic text of the Fourteenth Amendment -
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Legal scholars and judges have inferred a two tier equal protection doctrine. Per equal protection doctrine (in very brief), the state may “classify” most citizens without fear of denying equal protection, so long as the legislation is rational on its face. However, when classifying so as to separate citizens on the basis of race or gender, or otherwise burden “discrete & insular minorities,” ((The famous Carolene footnote four.)) the state must satisfy a higher burden of proof. Without going into too many terms of art (I’m sleepy), the state’s justification for separating based on race or gender has to be damn near convincing, and in narrow service of an important government objective. ((Lawyers out there – I know, I’m conflating intermediate & strict scrutiny. The subject as a whole is beyond the scope of this post.))
While the Supreme Court justices have yet to draw the parallel, it’s remarkably easy to extract from race and gender that trait that entitles race and gender-groups to higher constitutional protection: immutability, or, close linkage with personality. And it’s similarly easy to see that, based on its near-immutability, sexual orientation should entitle gay men & women to the same constitutional protections against arbitrary discrimination. So, (1) sexual orientation is immutable, (2) immutability historically entitles groups to heightened constitutional protection, (3) courts should evaluate legislation that discriminates on the basis of sexual orientation at a higher tier of review and, (4) such a heightened review scheme would strike any ban on same-sex marriage. Easy. The way the law is written now, same-sex marriage is a slam-dunk case, once we have a Court willing to deal with the political fallout.
The same “immutability analogy” cannot be drawn, though, in the case of polygamy. On the force of the Equal Protection Clause alone, since one’s numerical preference in marriage is not an immutable trait, the state can deny the right to plural marriage upon a rational basis. Which means, essentially, for any reason or for no reason at all. Without regard to whether current law makes sense, that’s how it is: despite political debates, legally, gay marriage is an easy “yes,” and plural marriage is an easy “no.”
Curiously, while the law makes a hard political question easy in the marriage context, the law also tends to make easy political questions incredibly hard. Here’s one: suppose a state university requires that men and women live in separate dorms. Is that an abridgment of the equal protection clause?
Politics and common sense both say no, but key elements of constitutional history scream out to the contrary. While the state can surely levy legitimate interests in defense of keeping men and women in different dorms (safety, security, privacy, discretion, and even – God help us – morality), any justification seems to whither when one draws the comparison between race and gender, and suggests that separate dorms amount to the de facto segregation and subordination of, per any of those justifications, women. Looking to constitutional history, the promise that gender-segregated dorms would be similarly equipped and furnished does not make the separation any more palatable: fifty plus years later, the phrase “separate but equal” should still ring in our ears. I don’t have any answer to this dilemma – other than, perhaps, to insist that categorization is not necessarily subordination, and to insist that the equal protection clause should only be concerned with the latter. But, for the one woman who would prefer to live with men, or the one man who’d prefer to live with women, that’s small comfort indeed. Help?
1. Other than being taboo to mainstream society (and therefore political poison for any advocacy group to endorse), what’s wrong with plural marriage?
2. How do you know that a numerical preference isn’t an innate personality trait? My own observations would suggest that while some people are perhaps innately monogamous, others are more comfortable with polyamory *despite* their upbringings or any other social influence.
3. Isn’t this basically saying that the Constitution supports the naturalistic fallacy (i.e. if it’s “natural” — innate — it’s protected, but if it’s a personal preference based on observation and reason… sorry, Charlie)? I would think that “pursuit of happiness” would cover anything that could be reasonably argued as pursuant to one’s happiness, so long as it doesn’t interfere with anyone else’s.
Posted by Woozle | January 12, 2009, 7:18 am1. Tendency towards abuse is one reason, but it’s obviously a thorny justification. Everything tends towards abuse. I think the objective, easy, legal case is that it would duplicate the government’s benefits to married persons, and therefore give an unfair advantage to polygamists and incentivize the behavior. While same-sex marriage ought not fundamentally adjust the relationship between the government and married persons, allowing polygamy would.
2. I think all poeple are probably innately polyamorous, in that sexual monogamy doesn’t fit with society’s preference for committed relationships, but sexual polyamory isn’t the same as marital polyamory.
3. Unfortunately that’s right: if that’s what you mean by it, the Constitution does support the “naturalistic fallacy,” in that the document singles out historically stigmatized innate/natural traits for special protection. However, the Constitution does not afford no protection to non-natural traits: it affords less, and consigns the defense of those rights in the residual time to the polity. That’s a requirement for democratic governance, lest the legislature be stripped of all political power.
Posted by Ames | January 12, 2009, 9:50 amAs far as we’re concerned, the slippery slope is no such thing, and recognition of marriage equality need not (and must not) encompass plural marriage.
No matter how you slice it, allowing gay marriage is a ‘redefinition’ of the institution. It will no doubt be redefined again to include multiple spouses.
What I can’t figure out is if liberals truly don’t like plural marriages, or if they just seem to oppose them because it may be an obstacle to gay marriage. I guess it’s probably both. The potential for women to be placed on less-than-equal footing in plural marriages has got to trigger the air raid sirens in feministas. Also, the fact that many polygamists are also fundamentalists has got to be a big red flag as well.
I think though that if gay marriage proponents were truly looking to be fair they would say that they support all types of marriages between consenting adults, regardless of gender, number, etc.
Posted by Mike at The Big Stick | January 12, 2009, 10:21 am1. Good answer (there are lots of bad answers, so this isn’t casual praise!), but I have misgivings nonetheless
1a. Why would we not want to incentivize behavior which arguably leads to larger, more stable families?
1b. Re “tendency towards abuse”: surely this is partly the result of any illegal but highly desired activity (e.g. drug use). In other words: if polyamory is outlawed, only outlaws will be polyamorous.
1b. We should probably enumerate the ways in which marriage benefits actually “cost” the government.
2. “I think all people are probably innately polyamorous”:
2a. Possibly. There needs to be more science done on this. I have observed what appears to be intensely monogamous behavior from some people (to paraphrase: “I’m a one man woman, so if you cheat on me you’d better watch your back.”), but to what degree is this behavior the result of social constraint?
2b. In any case, if true, doesn’t this contradict your earlier claim about numerical preference not being innate?
3. Re Constitution singling out innate traits for protection: Is there specific language which points in this direction, or is this just how the courts have chosen to interpret the document’s intentions?
Posted by Woozle | January 12, 2009, 10:26 amP.S. the second comment above labeled “1b” should obviously be “1c” instead… (mutter mutter blog software with no comment delete function mutter)
Posted by Woozle | January 12, 2009, 10:30 amPC, we’ll agree that gay marriage would change the institution, but the question isn’t whether there’s an absolute change, but whether change along one axis (type) mandates change along another (number). Because they’re such different issues with a firm legal brightline, no matter how much Scalia ignores it, one axis doesn’t control the other, unless marriage is so shaky that any change necessarily implies all change.
And Woozle, hey, don’t shoot the blogger :). Stupid WordPress… and I’ll get back to you on the questions…
Posted by Ames | January 12, 2009, 10:43 am1. is the toughest question… it’s hard for me to answer without resorting to specific commentary on polygamy “as applied” by fundamentalist Mormons… ew.
2. I think women are inherently monogamous; men generally aren’t… while you’re right that more research needs to be done, I think sexual polyamorous tendencies are different than matrimonial polyamorous tendencies. If our society is to prize monogamy, marriage, and the family as a way of raising children, monogamy makes sense as a line to defend, lest marriage be seen as just a vehicle for sex. Of course that rhetoric sounds nasty – that’s the conservative argument against gay marriage – but it’s just that I value of marriage for the existence of the partners, not their identity.
3. It’s definitely judge-made law, but makes sense from the construction of the equal protection clause. It was drafted to protect race and, abstracting from race, the clause makes most sense if construed at LEAST to protect innate, non-merit linked traits like race, gender, sexual orientation etc. The case for protection of any non-innate trait is constitutionally and textually harder to infer, but we also recognize that it should exist… so the answer is to protect non-innate traits at a less severe, practically non-existent level.
Posted by Ames | January 12, 2009, 11:44 amI still think that the argument saying, your gender has no applicable reason to determine or restrict what person you marry and receive marital benefits for in the eyes of the government is different than saying, let’s get a group of 7 people together and give them marriage benefits .
That’s how I think of it, but maybe I’m changing up the language too much.
Posted by Oneiroi | January 12, 2009, 2:42 pmAmes:
Of the people I know personally who are polyamous, two are female and one is male. I’ve also read online accounts of group-families, and most of those accounts were by women.
It’s arguable that women (and children) benefit more than men from the stability of having a larger number of adults in a family, especially if you’re taking the stance that “women like stability, men just wanna sleep around” (I’m not saying you are, but it’s a common assumption which has some merit, statistically speaking.)
Definitely not blaming you for the software ;-)
It certainly makes sense to protect immutable traits over choices, anyway — not so much as a matter of saying that what is natural is somehow “better”, but that you can’t change it so it’s not fair to discriminate against it. (As long as the trait isn’t demonstrably harmful to society — which, of course, is what conservatives claim about homosexuality etc., which at least is a fair basis for an argument. Unfortunately for them, the evidence doesn’t support this claim, so they generally move on to other less tenable arguments.)
PC: The nuclear family was a “redefinition” of marriage as well. The Bible, for example, includes many cases of polygamy, and polygamists are never (as far as I know) condemned. Just looking at American history (America being quite a recent invention, by some standards), families used to include many more relatives (aunts, uncles, cousins, grandparents) all living in the same house. I often wonder if the bubble in housing prices is partly to blame for the decline in this phenomenon.
For that matter, Native Americans had a rather different idea of marriage, which we “redefined” for them when we took over their country.
I think “both” is probably the correct answer — or, rather, some oppose it for one reason and some for the other. As far as feminism vs. polygyny, you’re probably right again — but again I refer to my anecdotal experience: not all women oppose it, and a substantial number firmly support it.
Polyamory is quite different from polygyny; the latter (where it’s specifically one-man-and-his-wives) sets a special role for the man vs. the women in the marriage, and as such it rightly raises feminist hackles. Group marriages (polyamory) tend to be much more egalitarian in intent.
Your fundamentalism point is also well-taken.
And I agree with your final point. If one defends Cause A on principle but then decides to go against Cause B for political reasons, one will eventually find oneself on hypocritical ground (and possibly hatching chickens which will come back to roost later on).
The only criterion anyone should be arguing about with regard to the legality of *any* activity — be that gay marriage, polyamory, drug use, assisted suicide, cross-dressing, water-skiing, *whatever* — should be the question of harm to society.
Posted by Woozle | January 12, 2009, 3:04 pm“1. is the toughest question… it’s hard for me to answer without resorting to specific commentary on polygamy “as applied” by fundamentalist Mormons… ew.”
I think this needs to happen though. The polygamy question involves more than a sexual preference because of the religious issue. I agree that legalizing gay marriage doesn’t necessitate legalizing polygamy, but they both involve some sort of constitutional freedom. I think there’s an inherent inequality in the practice of arranged marriage too, but wouldn’t it be infringing on people’s religious norms to exclude arranged marriages from state recognition? I don’t support polygamy as a practice and haven’t decided whether I think it should be legal, but there’s some food for thought.
As for your separate-but-equal dormitory dilemma, here’s a justification for you. A big part of why college life is a stepping stone to a bright future is the networking factor. I’m a woman. Let’s say I was a business or engineering major in college (fields that tend to be male-heavy). It would be harder for me to integrate into my field’s professional network if the rest of my classmates lived together (think about how much your dormitory affected your college social network). I could also imagine some social group or study session cropping up in the male dorm and turning into a stepping stone to professional contacts and success in my chosen field. I would miss out on that completely if I wasn’t allowed in the front door.
Posted by RP | January 12, 2009, 4:35 pm“3. It’s definitely judge-made law, but makes sense from the construction of the equal protection clause. It was drafted to protect race and, abstracting from race, the clause makes most sense if construed at LEAST to protect innate, non-merit linked traits like race, gender, sexual orientation etc. The case for protection of any non-innate trait is constitutionally and textually harder to infer, but we also recognize that it should exist… so the answer is to protect non-innate traits at a less severe, practically non-existent level”
Ah, so the 9th’s an inkblot?
Posted by Steve | January 12, 2009, 7:42 pmHonestly, I don’t think people read the 9th together with the 14th in that way. Which is weird, isn’t it, because that would make more sense than reading the 10th & 11th together.
Posted by Ames | January 12, 2009, 7:45 pmAmes, I think it’s weird (and infuriating and deligitimizing of our nation) because it renders the most important entry in the Bill of Rights a complete nullity. You understate the problems of failing to read the 9th together with the 14th.
Posted by Steve | January 13, 2009, 11:51 pm