Four clueless denials that a poly marriage issue exists
Remember William Saletan of Slate? He's the type specimen of a liberal who let himself be intimidated by the right into denying that poly marriage will ever be an issue — because obviously, polyamory itself can't exist. In 2006 he wrote,
The average guy would love to bang his neighbor's wife. He just doesn't want his wife banging his neighbor. Fidelity isn't natural, but jealousy is. Hence the one-spouse rule. One isn't the number of people you want to sleep with. It's the number of people you want your spouse to sleep with.
He's probably embarrassed by that now. His current defense retreats to a new position: poly relationships exist, but they can be more or less dismissed as optional frippery.
The Case Against Polygamy
Chief Justice John Roberts says the Supreme Court’s gay marriage ruling paves the way for plural unions. He’s wrong.
The gay marriage war is over. The polygamy war is on.
...In their dissents, and in their questions during oral argument, the court’s conservative justices have thrown their weight behind a new issue. They’re demanding to know why, if gay marriage is a constitutional right, polygamy isn’t.
At Obergefell v. Hodges oral arguments on April 28, Justice Samuel Alito asked on what grounds a state could deny a marriage license to a foursome of two men and two women. Justice Antonin Scalia asked whether states should be required to recognize polygamous marriages performed in countries where the practice is legal. Then, in his dissent issued Friday, Chief Justice John Roberts contended that “much of the majority’s reasoning” in support of same-sex marriage “would apply with equal force to the claim of a fundamental right to plural marriage”:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.
...Roberts is wrong when he claims that Kennedy has offered “no reason at all” why the law should treat polygamy differently from homosexuality. The majority opinion offers several good reasons. It just doesn’t explain how they apply to plural marriage.
Let’s do that now.... Kennedy does a lousy job of clarifying these considerations. Let’s spell them out.
1. Immutability. Kennedy tosses this into his opinion, bizarrely, as a side comment. Referring to gays who seek matrimony, he says, “[T]heir immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Later, he speaks of “new insights” that have transformed society, including this one: “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Kennedy doesn’t elaborate on these remarks, but they’re huge. Immutability is the biggest difference between homosexuality and polyamory. Even the pro-polyamory law review article cited by Roberts in his dissent acknowledges that immutability is a crucial factor in identifying unjust discrimination against classes of people — and that “polygamists are not born that way.”
2. Loneliness. According to Kennedy, “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” At the end of his opinion, Kennedy returns to this theme. He says gay people who are legally excluded from marriage are “condemned to live in loneliness.” You can’t say that about polyamorists. Legally, they may be condemned to monogamy. But not to solitude.
3. Exclusion. Kennedy notes that when laws forbid gay marriage, “same-sex couples are denied all the benefits afforded to opposite-sex couples.” He lists many such benefits, including tax breaks, inheritance rights, property rights, adoption rights, hospital visitation, survivor benefits, and health insurance. He also points out that children in same-sex households “suffer the significant material costs of being raised by unmarried parents.” That’s not true for kids in polyamorous households. Their parents can marry — they just have to pair up, leaving one adult, at most, unaccounted for....
4. Divided loyalty. Kennedy says marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He doesn’t explain how these ideals distinguish homosexuality from polygamy. But they do. Fidelity and devotion are concentrated virtues. When you spread them out among multiple spouses (or, yes, even among children — that means you, Duggars), you dilute them....
5. Conflict. Countless marriages have exploded and ended because two spouses couldn’t get along. With three or four spouses, it’s that much harder to keep everyone happy....
Read the whole article (June 29, 2015).
Thomas Leavitt posted this analysis in a discussion on the Polyamory Leadership Network (quoted by permission):
These articles are useful, because they outline, in precise detail, where they think our argument is strongest, and where they think they can make points...
1. Immutability — that's easy enough to refute. Lisa Diamond's work demonstrates the fallacy of this quite nicely. SSM marriage advocates, of course, following the path of previous American jurisprudence, choose "born this way" as an easy argument to make. It's not entirely untrue, of course, many people "are born this way" (as are many polyamorists, though I think you'll have a much harder time arguing for the existence of a "polyamory" gene, given the relative dearth of research... though I'm under the impression that there are techniques that could tease such an inference out of the data), but the full truth complicates the storyline.
2. Loneliness — the death or premature loss of a spouse is devastating, it could easily be argued that having multiple partners would buffer some of that, and lead to a higher quality of life in old
age... the oral history project that included the three ex-Navy men who had a 46-year marriage is an excellent example. Not to mention that three (or more) is more company, and less lonely, than two.
3. Exclusion — this is the EXACT same argument that was made against same-sex marriage... they're not excluded, "all they have to do is marry someone of the 'opposite' sex".
4. Divided loyalty — in today's age, "fidelity" is no requirement for marriage as it is, and his comment about "even among children" shows how utterly weak it is. You don't love oldest child any less because they have a younger sibling, or vice versa. This isn't even an argument.
5. Conflict — again, staying married isn't a requirement of getting married, no one's seriously suggesting that we abolish marriage because of a high divorce rate, and the child custody issue is a total red herring here... yes, figuring that out may require some thought, but... maybe not. We have plenty of precedents in today's blended families. Just treat non-biological parents as step-parents, with all the non-rights that that implies.
...The only substantive arguments that can be made against multi-partner marriages are complexity of implementation, and given that our society has worked out legal frameworks for far more complex multi-party relationships than even the most exotic poly marriages could ever hope to achieve, that doesn't seem like a big issue.
Now, contrawise, from a litigation and legislative standpoint, I do think it makes a big difference. Changing the law to make SSM legal was essentially trivial, and did not require judges to rewrite statutes from the bench (in many cases, they bounced even the changing of the wording back to the legislative bodies with a mandate to get it done). Changing the law to make multi-partner marriages work is probably more substantive in nature, although "make it so" is still an option [for a court].
...Seriously, though, "opposition research" of this sort is valuable. And in a sufficiently mature movement, the response is not a detailed rebuttal or a debate, but simply putting out our own message. We're already way ahead of the game, when the opposition starts out by conceding multiple points, and we have the logic of a Supreme Court justice on our side, even one who is horrified at the thought of us.
● Elsewhere on the political spectrum, at Time magazine the libertarian writer Cathy Young recycles material from a 2014 article where she shrank from libertarianism in a moral panic:
Polygamy Is Not Next
The logic of same-sex marriage does not inevitably lead to multi-partner marriage
...There has also been a steady trickle of articles from the left asking what’s so wrong with legalized multi-partner marriages. Some even argue, as writer and academic Fredrik deBoer does in a recent Politico essay, that polygamy should be the “next horizon” of social liberalism.
...The battle for same-sex marriage was won, both in courts of law and in the court of public opinion, by framing the goal as “marriage equality” — that same-sex couples should have access to the same rights and privileges as their heterosexual counterparts.... The legal rights and benefits of modern heterosexual marriage are gender-neutral.... There was simply no good way to justify denying the same rights to two partners of the same sex.
By contrast, the entire existing structure of modern marriage is designed for a dyad....
There is another difference. Attempts to stop same-sex marriage floundered partly because no one could show how male/female unions would be harmed or even affected by same-sex ones. Legalizing multiple spouses, on the other hand, would immediately affect every couple by opening a potential door to new partners in the marriage. Yes, this would presumably require everyone’s consent, but at the very least, those who want monogamy would have to explicitly stipulate this,
(Saying what relationship structure you need? The horror!)
and even then a monogamy clause could probably be renegotiated later.
Inevitably, too, a movement for plural marriage rights would be accompanied by a push to destigmatize other forms of non-monogamy such as open marriage. The message that sexual exclusivity in marriage is optional — accompanied by visible and positive images of non-monogamous unions — could have a ripple effect. Before long, the spouse who insists on fidelity could be forced to justify such an old-fashioned preference.
...If social liberals in the academy and the media decide to champion non-monogamy as the next frontier of liberation and equality, they could make some headway in promoting acceptance of such lifestyle choices. But the likely result would be a new conflagration in the culture wars — particularly since, this time around, these choices do affect other people’s marriages....
Read the whole piece (June 30, 2015).
● And another, by Jonathan Rausch of the Brookings Institution, writing at Politico. His take: ignore modern, gender-equal polyamory altogether; it's all about primitive patriarchs hoarding women.
No, Polygamy Isn’t the Next Gay Marriage
Group marriage is the past — not the future — of matrimony.
I am a gay marriage advocate. So why do I spend so much of my time arguing about polygamy?...
If I sound exasperated, it's because the polygamy argument doesn't stand up to scrutiny. That doesn't stop it from popping up everywhere....
Unlike gay marriage, polygamy is not a new idea. It's a standard form of marriage, dating back, of course, to Biblical times and before, and anthropologists say that 85 percent of human societies have permitted it. This means we know a thing or two about it.
Here's the problem with it: when a high-status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real world pattern), a lower-status man gets no wife. If the high-status man takes three wives, two lower-status men get no wives. And so on.
...The situation is not good for women, either, because it places them in competition with other wives and can reduce them all to satellites of the man.
...By abolishing polygamy as a legal form of marriage, western societies took a step without which modern liberal democracy and egalitarian social structures might have been impossible: they democratized the opportunity to marry....
There is ample evidence that polygamy has many severe consequences for third parties and for society as a whole, and the social interests at stake are very obviously related to a legitimate government purpose (many purposes, in fact). There's no way the ban on polygamy could fail a rational-basis test....
Read his whole article (June 30, 2015).
Fredrik deBoer, the author of that flag-planting piece It's Time to Legalize Polygamy, delivers a powerful rebuttal to Rausch: Every Bad Argument Against Polygamy, Debunked (July 1, 2015).
● Richard A. Posner — a U.S. Court of Appeals judge for the 7th Circuit and a senior lecturer at the University of Chicago Law School — makes a similar comment in an otherwise insightful piece for Slate:
...But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women....
The whole article (June 27, 2015).
Labels: legal, marriage, Supreme Court: Obergefell
Keep up the good work, Alan. It's amazing how some people don't want to let adults be adults and have their rights.
The "there would be too much work to do to make changes" just tells me that opponents are just lazy. Removing the term "Marriage" from the laws is not an onerous chore, they just refuse to accept the necessity.
Researchers at Indiana University are interested in learning about consensual non-monogamy. The researchers are looking for adults over the age of 18, who are married or in a committed relationship with at least one other person, and have been or are now in a consensually non-monogamous relationship. Please visit the following link to read more about the survey, and to take a brief set of screening questions to see if you qualify. If you do, the survey will take approximately 20-30 minutes.
I guess I shouldn't be too surprised, but I still can't help but notice how many of these arguments can be reduced to treating women as property.
@awfulhorrid -- well, they are all conflating plural marriage with polygamy, even though (unless my memory is badly mistaken) Roberts cited polyamory in his decent. That's because 90+% of these arguments don't apply to a polyamorous approach to plural marriage, only a polygynous approach to plural marriage, which these folks are inaccurately equating with polygamy (polygyny=multiple wives, polygamy=multiple marriages. polygyny/=polygamy). The minute you start treating plural marriage as something that should be equally available to men and women, is the minute they've lost almost all credible ground.
I lived with two women for almost 30 years in a poly triad. It was real for us and we never had a poly related problem. We all loved each other and knew what we brought to the table so we never had jealousy or insecurity issues.
Sorry for the late comment - I'm not familiar with your blog as I'm just an old boring monogamist and only ran across your blog as a result of a google search while doing research for a law review article I am writing on the equal protection implications of Obergefell (sorry if thats too technical). Long story short, "immutability" as used in equal protection law is a contested legal term of art and its meaning or meanings differ from other domains - such as biology, psychology, literary theory, etc. So, while Lisa Diamond's research is interesting, she will be the first to tell you that the studies she conducted sampled a very specific population using a non-random snowball sampling and therefore cannot be generalized to all women. She would also emphasize that she was not studying "sexual orientation" as commonly understood but rather a public sexual identity constructed in reaction to various life course changes. However, in the last few decades the federal courts have moved away from a strict interpretation of immutability where it is assumed that each individual member of the suspect class was the proper level of analysis to a higher level of generality where the class as a whole is examined. This allows for a certain level of fluidity in any one or more members so long as every member wasn't fluid. This just means that some or most people do have fixed orientations and others do not and those roughly track the sub-categories of gay, straight and bi/fluid. Diamond has repeatedly cautioned people to not misinterpret her studies to mean that every woman is fluid or bisexual - lesbians as a category generally experience a fixed orientation that remains so over time even if a small percent experience that they discover or develop an attraction to a man. Additionally, many appellate and lower federal courts have clarified this requirement as "constructive immutability" which means that since sexual orientation is so fundamental to our identity rather than trivial or incidental, it would be unreasonable to demand that people change even if it were possible. Now, after spending all that time explicating the various nuances of the concept in the law, for all practical purposes, it is irrelevant as far as sexual orientation goes since the court has made what amounts to a judicial finding of fact that is binding on lower courts unless the Supreme Court reverses itself in the future, which is not likely so long as the membership in the court doesn't lose one of the 5 votes that signed on to Kennedy's opinion. However, all of the above is beside the point since the question was about the likelihood the polygamists using Obergefell as precedent for their own constitutional challenge. In which case, for equal protection purposes polygamists would have to meet the four prong test, which includes immutability, as a class. Introducing evidence that sexual orientation is not immutable would probably be struck as irrelevant because again, polygamy would still have to meet the test and Obergefell is irrelevant to that analysis - it is settled law. So, a plaintiff cannot collaterally attack the finding in a separate case - i.e., attempting to use Lisa Diamond to prove that Kennedy was mistaken and should not have made such a judicial determination. The burden is still on a potential polygamy plaintiff to show how polygamists as a class meet the immutability requirement or somehow convince the court to abandon the immutability prong of the equal protection test...
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