[Crossposted at Family Scholars Blog]
In “What is Marriage?,” Girgis, George & Anderson (for convenience, I will refer to them as “George,” after their most senior member) argue that there is something called “true marriage” that exists apart from culture. But the truth is, huge numbers — probably the majority — of human cultures would not have agreed with George’s definition of “true marriage.” Many or most cultures have recognized polygyny or polyandry, for example. More recently, an increasing number of cultures recognize same-sex marriage. It’s extremely counter-intuitive to say that there is an objective, universally true definition of marriage which many or most human cultures have gotten wrong.
George writes:
Marriage’s independent reality is only confirmed by the fact that the known cultures of every time and place have seen fit to regulate the relationships of actual or would‐be parents to each other and to any children that they might have.
It seems dubious to claim “the known cultures of every time and place” to argue that marriage has an “independent reality,” while simultaneously defining “real marriage” in a way that contradicts how marriage was defined in many or most of those known cultures.
In my view, marriage is the institution by which people who aren’t each other’s immediate kin, become each other’s immediate kin. (This has the useful secondary effect of making two families, who may not have had previous connections, into kin.) Unlike George’s definition, my definition is accurate for the overwhelming majority of known human cultures, including — as far as I know — all present-day human cultures.
But although there is a core definition of marriage, shared by virtually all human cultures, there are also details which vary between cultures. So if I were defining marriage in the present-day US, I’d say it’s the institution by which two unmarried, consenting adults who are not close kin, become legally and socially recognized as each other’s immediate kin.
George argues that “revisionists” are unable to explain why incestuous marriages shouldn’t be legally recognized:
Many revisionists point out that there are important differences between these cases and same sex unions. Incest, for example, can produce children with health problems and may involve child abuse. But then, assuming for the moment that the state’s interest in avoiding such bad outcomes trumps what revisionists tend to describe as a fundamental right, why not allow incestuous marriages between adult infertile or same sex couples?
In my case, I’d first say that marriage is a kin-making institution, which by definition transforms two unrelated (or at least not closely related) people into close kin. It makes no more sense for marriage to turn close kin into close kin than it does for an alchemist to transform gold into gold. It’s already gold.
Second, I’d point out that limiting incestuous marriage to adults would not solve the problem of child abuse, and could conceivably make it worse. Legal recognition of incestuous marriage could give sexually abusive fathers (or mothers — but in most cases, sexually abusive parents are fathers) a strong incentive to sexually abuse their daughters, in hopes of crushing her will before she comes of age, so she’ll agree to marriage.
Finally, I’d argue that child health and child abuse are not the only harms of incest. Importantly, legalizing incestuous marriage between the infertile would transform currently existing families, by introducing the possibility of marriage into relationships that have never had that possibility. It fundamentally changes the relationship between father and son, or between sister and brother, if we add the possibility of marital union to those relationships.
A question often asked of SSM opponents — one they’ve never persuasively answered — is “how would your family be harmed if two women you don’t even know get married?” A traditional nuclear family in Massachusetts was no different after the Goodridge decision than before. But legalizing incestuous marriage would introduce new, intrusive and unwelcome possibilities into existing families, by making siblings, and even parents and children, evaluate each other not only as family members but also as potential mates and spouses.
* * *
Since there’s no evidence that same-sex marriage is harmful, SSM opponents commonly resort to a second-degree harm argument: We must not recognize SSM, because denying legal recognition to SSM is crucial for preventing incestuous marriage. (Or bestiality, or men marrying androids, and so on and so forth.) Although it’s unclear if George makes this precise argument, it’s a common argument among SSM opponents, and therefore worth addressing.
The implication of this argument is that legal recognition of SSM would necessarily (or at least plausibly) lead to the legal recognition of incestuous marriage.
But that’s not how change actually happens. Incestuous marriage will never be legally recognized in the US until millions of Americans become persuaded that it should be legally recognized. And there is no sign of that happening, because of SSM or for any other reason.
SSM opponents (particularly those less sophisticated than George) might respond that if the courts can recognize a right to SSM, then they could also force incestuous marriage down American’s collective throats, regardless of how disgusted Americans are by the prospect. But again, this argument shows a fundamental misunderstanding of how change happens. Judges do not create social change out of thin air; it is only in an atmosphere of commonplace (although not universal) acceptance of homosexuality that a court ruling had any practical power to bring about recognition of SSM.
In other words, legal incestuous marriage cannot happen until millions of Americans are persuaded to support it. The incestuous marriage objection to SSM therefore only makes sense if we assume that there are no persuasive arguments against incestuous marriage apart from banning SSM. But as we’ve already seen, that’s not the case.
But what if, as SSM opponents may believe, there are no persuasive arguments against incestuous marriage? Well, if there are no arguments against it, then why do we need to oppose incestuous marriage at all? More importantly, if there’s not a single persuasive argument against incestuous marriage, why believe that banning SSM will prevent incestuous marriage from ultimately being recognized?
Finally, consider the crucial issue of fairness. The argument that we must ban equal marriage for same-sex couples in order to prevent incestuous marriage treats LGBT people and their families instrumentally; it dehumanizes them by treating their lives and needs as if they are of no consequence, mere tools to be used (and if necessary destroyed) to prevent a bad policy outcome.
How have same-sex couples earned being punished for the sins of incestuous couples? Not in any way. What justifies singling out same-sex couples for this treatment? Nothing I’ve seen. Singling out same-sex couples for second class status in this way is unjust.
* * *
Related to this post, I’d encourage everyone to read the discussion of how George’s use of the word “discrimination” is slippery on the blog Waking Up Now.
We must not recognize SSM, because denying legal recognition to SSM is crucial for preventing incestuous marriage. (Or bestiality, or men marrying androids, and so on and so forth.)
I say we step up, and ban marriage entirely. It’s the only way to be sure.
I don’t think the argument against incestuous marriage that marriage equals the making of a family bond and siblings or parents and children already have a family bond is valid, as the spousal family bond preempts other family bonds: your spouse has first inheritance and first medical decision rights above any of your other family members, so marriage as kin making would still serve that function. However, your argument as to why it is appropriate to treat even consensual adult incestuous relationships as being harmful seems sufficient to me, as does the argument that it ain’t never going to happen because (a) there basically aren’t any such relationships, and (b) basically nobody favors even tolerance for incestuous relationships, much less marriage rights. Only the harm argument seems relevant to someone of George’s philosophical bent.
Actually, now I’m curious what George’s argument against incestuous (heterosexual) marriage is. I don’t see how his definition of marriage disallows incestuous marriage…
Incestuous marriage is a red herring, in large part because even if permissible, it cannot happen except in abusive or exceptionally unusual circumstances. Humans, like most mammals, have an inbuilt aversion to selecting immediate kin as a mate, to such an extent that we’ll even perceive adopted siblings the same way (largely because our sense of smell is so defective we can’t even detect an individual’s relatedness to us by odor, unlike most mammals). Only under truly exceptional circumstances (usually siblings raised apart) or abuse will it even be possible.
Interesting side-note – an isolated sibling-sibling marriage is actually far less risky to the genetic health of the offspring than multiple generations of more distant relative marriage (cousin-cousin, etc.) that often occurs in isolated, tight-knit communities (particularly from cultures where arranged marriage is common), because inbreeding damage is cumulative. Four generations of cousin-cousin marriage are more likely to produce genetic disease than a single brother-sister pairing, precisely because the “genetic damage” from each successive inbred pairing is passed on to the next. This is why such damage tends to be most common in small breeding pools where multigenerational inbreeding occurs simply for lack of better options (the effects of genetic drift in such a small population exacerbate the problems).
Banning incestuous marriage amongst immediate relations is mostly about preventing abuse, as nearly 100% of such marriages will involve coercion. If we wanted to genuinely prevent genetic damage, regulations would focus more on multi-generation systems and use proper measurements like Fst (a genetic measurement easily done in most labs) and pedigree collapse (number of actual ancestors vs. expected number in a purely binary tree)
TL;DR – Banning incest is mostly about preventing abuse. Most mammals, including humans have built-in inbreeding avoidance mechanisms which can only be circumvented by force or exceptional circumstances. Genetic consequences of inbreeding are most severe multi-generationally, rather than individually.
Didn’t a variety of cultures either allow or specifically encourage incestuous relationships, especially within the ruling class(es?) Egypt comes to mind, but I’m almost certain I’ve heard of others as well.
Yes, for the preservation of existing political power within dynasties. Keeping political power within the family, as it were.
Yeah, you sometimes get weird rules for ruling classes. IIRC, they’re almost always specifically counter to a strong taboo in the rest of society, a kind of “we’re so special we can do it anyway.”
I’m not a serious history buff. It just seemed odd to be promoting “history” as being universal, especially when some history specifically includes incest.
George does claim a definition of marriage:
That’s an impressively oblique way of saying “marriage is really about the ability to have children together,” which they can’t outright state because that’d imply that childless op-sex marriages aren’t real. I’m especially boggled by the phrase “of the type that is naturally fulfilled by,” as if we had some nice simple agreement about what “fulfills” a relationship, and what fulfillments are “natural” or otherwise.
The paper does a remarkable job of implying, without stating outright, that polygamy is never “real” marriage, regardless of how many cultures have it. He does say that if a biological inclination to multiple partners is ever found, that won’t be grounds for okaying poly marriages.
It seems to use the conclusion–“Marriage is the kind of union that is shaped by its comprehensiveness and fulfilled by procreation and child‐rearing.”–as a definition. (“Shaped by comprehensiveness,” WTF?) I’d expect a number of op-sex marriages without children to object to the notion that they are “unfulfilled.”
And as far as I can sort out, absolutely nothing in the paper argues against the notion of op-sex incestuous marriages. It dodges the entire notion of “family” as being part of the purpose or function of marriage; its concept of marriage is tied entirely to sex between two people, and the supreme importance of potentially-child-creating sex. (Or sex that goes through the same motions as child-creating sex, for those couples where fertility is not possible.) It uses some amazingly convoluted language to avoid saying why “real” marriages involve this kind of sex and other kinds of sex aren’t good enough to make a marriage.
Isaac had to marry his cousin Rebekah, because his parents disapproved of him marrying a pagan Canaanite woman. Then Jacob married his two first cousins, Leah and Rachel, the daughters of his mother’s brother. Then Esau married his first cousin, Bashemath (Mahalath), because his parents disapproved of his non-related, Canaanite wives. Granted it’s not verifiable history, but probably it reveals something about the ancient marriage traditions of pastoral, tribal peoples.
It is still an extant practice, and it was not and is not isolated to ruling classes. Kin marriages (usually cousin marriages) are preferred by some groups as a way to keep family property and inheritance literally within the family and to keep such property from diminishing or being divided through generations.
If a person’s grandchildren each marry a separate unrelated person, each grandchild will separately produce (x) amount of great-grandchildren, who may all have claims upon the family legacy. But if the grandchildren marry each other, it would take two grandchildren to produce the same (x) amount of great-grandchildren. By marrying grandchildren to each other, the number of great-grandchildren inheritors is reduced, even halved, than if the grandchildren each find a non-related spouse.
Really interesting post.
You don’t have to go back that long to a time when (a) there basically weren’t any (openly) gay relationships and (b) basically nobody favored even tolerance for gay relationships. Not sure you can be that sure of your ground there.
“Harm’s” a bit strong. But the answers are (1) presumption of legitimacy, (2) law relating to children of the family, and (3) consumation. Those aspects of marriage law will have to change (most likely through new precident being formed, though activists do want and may get changes to statute) with SSM.
SSM activists have always been split between arguing “it won’t change the institution” and “it will remould/destroy the patriarchal nature of the institution”. The second group are right.
It isn’t. Spouses are closer than blood relatives. My spouse has rights that I couldn’t give a close relative, even if I wanted to (financial support rights, for instance).
You’ve closed that door to yourself. How can you rely on the ick factor? You’ve already completely removed sex from your conception of marriage (it’s about kinship and caring, not consumation, right?, isn’t that what relatives do?). You’re writen a very eloquent post saying even people who have had their gonads shot off should be allowed to marry, and the physical act doesn’t matter. You can’t just jump back to the old ways and go ewwwww.
If incestuous marriage was allowed, it would rapidly become the norm. The law will vary depending on where you are, but if I married my mum here are some of the implications. We’d be covered by each others health insurance, I’d inherit her pension rights on her death, as her husband her estate would pass to me untaxed and gifts between us would be untaxed, if she helped me raise my child she’d get more rights to make decisions… These are very useful rights to have, even if you’re not sleeping together.
You can see where I’m going. If marriage is now about kinship and caregiving, and it has a bunch of legal rights to help this, then why exclude blood family? I think in the next 50 years we’ll see more steps in that direction (tempered by the much greater threat it poses to the tax base than SSM).
Could you explain what you mean here?
If your argument is simply that legalizing SSM will mean a change of some sort to existing laws, sure, but that’s quite a ways away from saying that it’s going to affect the families of SSM opponents in such a way that they have a non-bigoted reason to oppose it. I mean, that’s why ‘harm’ is the key word here.
—Myca
james,
I do agree that Amp’s elision of a sexual component from his broadest, cross-cultural definition of marriage is incorrect (I’m unaware of any cultures that don’t assume a sexual component to marriage), but I think you misread him if you think that he is removing that component from his concept of marriage entirely. While a sexual relationship is not legally required for marriage, it remains a core portion of marriage culturally (within this culture), and no one is trying to change that. While marriage is a broad enough and blurry enough cultural concept that it can include celibate couples, it makes sense to exclude people from marrying who are culturally required to not have a sexual relationship and to deny them access to marriage because it would imply that that sexual relationship would be socially permissible.
If you can’t tell the huge differences between gay sexual relationships and incestuous sexual relationships, or why there is a value in not validating incestuous relationships, I really have nothing to say to you. If you are right that the arc of history leads us to validation of incestuous sexual relationships, that is an argument I am willing to be on the wrong side of history for. However, as there are basically no secretive, abusive incestuous adult sibling relationships, much less secretive loving incestuous adult sibling relationships (responding to your attempt to create a false parallel by sliding in the parenthetical “open”), I feel confident that your suggestion that we may be on the verge of a incestuous sibling rights movement is absolute nonsense.
Of course, it is the case that domestic partnership agreements (where they have been created) have been used by a few people to gain insurance benefits for siblings or parents in locations where a city had domestic partnership registry and corporations had agreed to recognize domestic partnership registration for insurance purposes, because we have no cultural associations with the concept of domestic partnership, and no assumption of sexual relationships within domestic partnership. The social and legal validation of the importance close kin relationships, and the ability to distinguish legally “My sister, who I see once a year,” from “My sister, with whom I share a house and a bank account, and with whom I plan to grow old,” is possibly a useful one, and I wouldn’t be completely surprised if that usage of domestic partnership agreements for that purpose continued (particularly once marriage equality is achieved). On the other hand, I think it is pretty unlikely.
Expanding on Myca’s point, I don’t even see how the relevant changes in law would even have a noticeable effect on opposite sex marriages. There is no requirement that the relevant changes to the law be worded in a completely gender neutral manner. If the courts or the legislature decide that the presumption of legitimacy should not apply to same sex couples, they can easily specify that it doesn’t apply to same sex couples (or that it applies under the following conditions but not under some other conditions) without making any change to the law for opposite sex couples. So it is not even that the changes wouldn’t be a harm, they just wouldn’t be relevant.
And, as Myca points out, responding to “show me some harm that would be caused by X” with “well, this isn’t a harm, but…” is rather obviously non-responsive and irrelevant. A possible change in the presumption of legitimacy for someone else is rather a different thing than increasing incestuous sexual abuse.
I am VERY surprised that this isn’t its own post yet, but:
Obama and the DOJ have announced that they consider DOMA to be unconstitutional, and will not be arguing in favor of its support in the courts.
AG Holder’s memo is HERE:
http://www.justice.gov/opa/pr/2011/February/11-ag-223.html
Read it and rejoice.
That’s not quite what the Obama admin has announced. They’ve announced that they find section 3 of DOMA to be unconstitutional only in courts where no precedent for rational basis wrt gays and lesbians has been established. In those courts they believe that heightened scrutiny is necessary and that section 3 will not survive that. I guess they believe that section 3 does meet the requirements for rational basis.
This is stated in the following portion of Holder’s memo:
It’s a first step and surprising, but hardly what one would hope for.
They’re also continuing to enforce the law, which seems bizarre; if you’re a Federal worker and apply for benefits for your same-sex partner today, you’ll get turned down. Then you’ll have to sue…and then the same Federal government which says you have to follow the law will decline to defend the case.
IANAL so maybe there are good reasons for this split-personality, but from a common-sense perspective it just seems odd.
Robert, see the argument from Volokh reader “Stash” I quoted in my new post — it addresses exactly that point.
You were just waiting for me to comment so you could post that. Don’t lie.
I don’t believe in these objective ‘harms’. I would if SSM was going to cause the end of the world. But the more likely situation is if you want to be able to annul a marriage due to consumation, and you can’t because the law is changed, that’s a harm as far as you’re concerned. But other people may not want anything to do with consumation, and may be glad it’s gotten rid of, in which case it’s not a harm to them.
I’m not going to judge either way and get into a fight over who’s right (they may all be right as far as their relationships are concerned). I just don’t buy the idea that we can argue whether something is/is not an objective harm therefore people are/are not bigotted.
If you’d rather the law that applies to you be one way, and it’s another, I can see why you’d be irritated.
james,
Can you point to anyone working to change the law concerning annulment based on non-consummation? Can you explain why you think that those changes would be applied to all marriages rather than just making distinctions based on the respective sexes of the partners?
No. I don’t think it’s some sort of conspiracy, more of a structural inevitability.
Loads of gay people are getting married. Eventually one of them will enter into a marriage they regret, want to get it annuled rather than a divorce, spot the indeterminacy around consummation and raise it before a court – most likely as one of a whole bunch of arguments they’re throwing at their spouse. At that point a judge is going to have to do some work fitting the existence of SSM together with the heterosexual notion of consummation.
SSM advocates have been bringing lawsuits (and judges have been backing them) based on the idea that we shouldn’t be making distinctions based on the respective sexes of the partners. That might change, but I don’t think saying everyone’s ‘married’, but heterosexuals have a different set of rules they have to play by, is going to be the endpoint.
I wasn’t suggesting that you were suggesting a conspiracy, I was suggesting that when you said “though activists do want and may get changes to statute” you were talking about actual people attempting to do something (maybe you meant in relation to the other two subjects you mentioned, but not consummation?). Okay, so you are engaging in pure speculation. I find your speculation unconvincing.
The argument that same sex couples should have the right to marry is not the same as the argument that there should be no recognition of sex differences in marriage law. If some married couple can inherently not engage in PiV sex because they don’t collectively have a penis and a vagina, it is likely that a judge will acknowledge some exception to non-consummation based on failure to have PiV sex, but it is unlikely that they will abolish the ability to claim annulment due to lack of PiV consummation for het couples.
The non-consummation annulment seems to be a subset of mistaken marriage annulment (such as thinking that you and your partner want children and then discovering that you fundamentally don’t agree) or fraudulent marriage annulment. Same sex couples can’t generally have a reasonable expectation that PiV sex is going to be part of their marriage, so absence of PiV consummation rather obviously should not constitute grounds for annulment. However, that would have no effect on het married couples seeking an annulment on the grounds of non-consummation.
Certainly, it is possible that some judge will decide that a same sex marriage can be annulled because the marriage was never consummated by PiV sex (which would seem to me like the law being an ass). I find it even more likely that a judge will decide that a same sex marriage can’t be annulled because the marriage was never consummated by PiV sex, on the basis that PiV sex was an known inherent impossibility for the couple at the time of marriage (which seems more reasonable to me). However, I find it profoundly unlikely that any judge will decide that a het marriage can’t be annulled even though the marriage was never consummated by PiV sex, merely because a same sex marriage couldn’t be annulled on that basis (this seems like an unreasonable misapplication of gender equality under the law). I find it even more unlikely that this would happen not just in a single case, but that it would become the law of the land.
Now, there has been a general tendency towards entirely dropping annulment based on non-consummation (many US states don’t have it, and the UK seems to have recently abandoned it), so it is possible that that trend will continue (but I think that is probably true independent of marriage equality, the existence non-consummation annulment in the US does not seem to track with marriage equality at all). It is also the case that many states in the US already use vague language such as “physical capacity for marriage lacking” or the specific language such as “impotency” or define consummation as co-habitation rather than PiV sex (I finally found a list of annulment laws), so it is possible that other states will choose to eventually modify their marriage laws along those lines, but doing so is unlikely to significantly change the nature of what is covered by annulment law for heterosexual couples.
This was already decided in California long before the SSM cases. California (and I assume other states) have ‘putative father’ laws, where a man who holds himself out as the child’s father (and a few other requirements, like ‘the bio dad is not contesting’) may be legally considered the dad even if a) he isn’t the biodad and b) couldn’t possibly be the biodad, for example he’s sterile, or even if he admits he can’t be the biodad.
Also, every state of which I’m aware has some presumption of paternity of the wife’s children by the husband – the circumstances under which this can be rebutted vary (sometimes a third party can challenge it, sometimes there’s a time window for disputing, etc.). But we presume this paternity merely by fact of the marital relationship. The law doesn’t say “but if the husband is sterile, or was in Afghanistan when the baby was conceived, he’s not allowed to say he’s the child’s father”. That’s what the presumption means.
So why is it so difficult to simply extend this presumption to ‘the other spouse’?
I’m pretty sure a court ruled at some point that penis-in-neo-vagina sex doesn’t count, and can be grounds for annulment. And the reverse, neo-penis in vagina also.
That’s mainly used either as a separation argument to keep 100% child custody, or for the family of the defunct to inherit, at the detriment of the widow. It’s used against trans and intersex people almost exclusively. In the Corbett case, it was to divorce without leaving her inheritance rights.
The Corbett vs Corbett UK case set the tone since 1970, and up until 2004 with the Gender Recognition Act to legally change sex (including for marriage purposes).
One of the arguments of Judge Omrod in that case was:
#3: The judge claims that a vagina created by surgery is not adequate for consummation IF created in a transsexual.
He allows for intersex women to have reconstructed vaginas, but not transsexual women. Of course, said intersex women needs to be diagnosed as such for it to count at all.
I’m pretty sure this argument was also used, maybe in Texas or Florida courts?
In Florida, post-op trans women can’t marry men, and vice-versa for trans men. I think Texas is similar.
The consummation argument, as argued by the Church, is that both parties need to be fertile, for consummation to occur. Trans but especially intersex people are often infertile. Trans people are definitely infertile post-op.
For it to matter, it depends upon what the secular notion of marriage is based on. If it follows the same notion of consummation = procreative sex that could lead to pregnancy.
It was well-known that Justice Omrod was Gay. His pre-determined position before the trial was that transsexual women were all gay bottoms trying to game the system. and get what he could not have – marriage to the man he loved. He ruled accordingly. and the language he used was breathtakingly hostile.
This was a terrible decision from a stereotypically transphobic gay man.
http://eatthattoast.com/2010/07/slippery-slope/
LOL!
You have used the count of cultures to argue against the man-woman criterion of marriage. Readers who have agreed with your rmeakrs might fairly expect that if this backfires on you, Ampersand, you will not flip-flop to abandon such a count as insignificant.
Your assertion is quantified: “huge numbers”, “probably the majority”, “many or most” human cultures.
You would be hard pressed to come up with a count that justified such descriptors for polyandry.
Likewise for the SSM idea. You necessarily seperated SSM from the expanse of human cultures across the historical and anthropological records and necessarily used a different quantifying descriptor, “increasingly”, which effectively means you conceded that the SSM idea does not produce a result that justified the other quantifying descriptors.
Polygny does have a much higher count. It, like polyandry and unlike SSM, is two-sexed. Multiple marriage is a series of husband-wife unions. For instance, the second wife does not marry the first wife; they have a husband in common. A third wife does marry the same man but does not marry the other wives. In each marriage the spouses become kin (if not already kin) and the prioritization of kinship is bound by cultural protocols; the sexual basis for consummation and adultery and paternity is two-sexed and not sex neutral nor one-sexed. The limits on multiple marriages in such cultures derives from the core meaning of marriage. Multiple marriage is an inferior form of sex integration and an inferior form of provision for responsible procreation; but it is nonetheless a cultural response, albeit a flawed response, to the core meaning of marriage.
The SSM idea is an response, too, and that takes the shape of outright rejection of he marriage idea ie the core meaning which is deemed bigoted and hateful and harmful. Hus SSM cannot be counted with polyandry and polygny as counter examples of marriage as the union of husband and wife.
If you would rather point at exceptions, rather than many if not most, human cultures (or even present day human cultures) much less the probable majority, fair enough. But best not to mischaracterize that as something else. You may have mischaracterized inadvertently or out of a hurried flub you had not comprehended. But you can correct yourself at any time.
While your count of polyandry is in error, and while your qualified count of SSM concedes much, your count of polygny is more plausible even as that count contradicts your remarks against the count of George et al.
Confusion of categories is a profound weakness in SSM argumentation.
If you meant to count (or to include a count of) two-sexed groups rather than series of twosomes, then, the count still does not favor your opening quantified remarks about marriage in human cultures.
But conflating the twosome limit with the limit on number of concurrent twosomes, if that is indeed your intended meaning (please clarify), would be instructive both in terms of your argument against the man-woman criterion that has been made with the rhetorical emphasis on homosexuality and in terms of drawing lines of eligibility based on kinship or relatedness and based on the twosome.
Please confirm, clarify, or correct:
1) You think that it is extremely counter-intuitive to say that here is a core definition of marriage, an objectively true definition, which many or most human cultures have gotten wrong.
2)You feel it seems dubious to claim such a definition while at the same time defining marriage in a way that contradicts how marriage has been defined in many or most of those known cultures.
I’ll add more later.
Chairm, I think you’re laboring under some misconceptions here.
The greatest misconception (and Ampersand, feel free to correct me here) is that you seem to think that Ampersand is arguing some kind of “democracy” of marriage … like, if most cultures have rejected SSM, we should too. If most cultures have embraced polygamy, we should too.
As near as I can tell, he’s arguing nothing of the kind.
His argument isn’t that granular … from my reading, it’s more about challenging the idea that there’s some sort of definition of marriage that exists outside “marriage-as-a-human-practice.” He’s talking general rules, and you seem to want to argue specifics.
Or, to put it another way, let’s imagine that we’re talking about, say … insects.
There’s been a new creature discovered … a lavender-winged beetle-looking creature called the “SSM Beetle.” The debate is about whether or not it should be included as an insect. George argues against, and as evidence, he offers a definition of “insects” that excludes the SSM Beetle, but it also excludes thousands of species that everyone is in general agreement ought to be included as insects. Thousands of other creatures that nobody has ever seemed to have a problem calling insects until just now. In fact, weirdly, it excludes the vast majority of creatures we’d traditionally classified as insects.
Ampersand has a proposed definition of insects that includes both the SSM Beetle and all the other things we’ve always called insects.
Your argument seems to be essentially, “but the vast majority of things we’ve called insects have not had lavender wings.” And sure … but that’s not his argument.
…or maybe I’m completely off base. Ampersand, is this more what you’re getting at?
—Myca
Myca, I think you’re entirely on-base. Thanks!
“Polygny does have a much higher count. It, like polyandry and unlike SSM, is two-sexed. Multiple marriage is a series of husband-wife unions. For instance, the second wife does not marry the first wife; they have a husband in common.”
Okay. But to be intellectually consistent under that reasoning, polygyny is not at all a “series of husband-wife unions,” but a series of unions between, say, 1/4 of a man and 1 woman, 1/4 of a man and another 1 woman, 1/4 of a man and yet another 1 woman, and 1/4 of a man and still another 1 woman.
When one man is married to multiple women, it is a fiction and an absurdity to say that his marriages supports “the marriage idea” as one man and one woman.
Ampersand, your remark indicates that you agree with myca’s comment in its enitrety.
Did you not invoke the count of cultures? Yes you did. That is no misperception. You sought to quantify for the sake of rendering an accurate definition of your own.
In the breadth of known human cultures, the practice of men marrying men, or women marrying women, does not count in huge numbers or majorities nor does it even qualify for the descriptor, many. The count would need to include as confirmed all the speculative exceptions and include the smattering of present day anomalies to quantify the practice as a tiny drop in the sea.
But since the count clearly favors the two-sexed relationship, as even the example of polygamy demonstrates, it would be counter-intuitive, as you put it, and dubious, as you put it, to define marriage as other than two-sexed. Or to claim that allthese known cultures had it wrong in the aggregate an it is only the smattering of present day portions of western culture that now finally has it right.
But if, as Myca said and as you agreed entirely, the count of cultures is not decisive, then you would not have invoked such a count as the basis for proposing your definition.
But you did.
Moving forward, please confirm, correct, or clarify: You reject the notion that marriage has an independent reality. There is no true marriage despite your offered definition
Such a rejection would render inapt Myca’s Beetle analogy since the decisive stuff of marriage would not be something intrinsic to the type of relationship but rather something extrinsic.
The stress on practice is presented in lieu of a principled basis for something classified as marriage. That would mean recasting the thing endlessly maleable and thus not actually definablle by stuff integral to it.
By the by, while you made a prediction about the future of incestuous marriage, George did not. His query – and the challenge he set forth- is about the principled basis for something like marriage. Your remarks about incest demonstrate that your proposed definition is incoherent and incomplete.
More later.
Polygamy is a series of husband and wife relationships. It is an inferior response to the core meaning of marriage. (I did not say polygamy supported the marriage idea.) That it is a series is what makes it inferior even though it is two-sexed.
Yet lawful polygamy does make unrelated people kin as per your stated purpose of marriage, Ampersand.
By, it, you meant the law and not marriage is what makes the unrelated into relatives. At least your remarks strongly suggested that view.
You reject George’s argument that the flow goes from independent reality (bodily union and the comprensive nature of the husband-wife union) to recognized reality (the law’s special status for such a union).
So a limit on eligibility would become the new definitive feature and purpose of the grant of special status. Some related people would be shutout for the purpose of a conservng the legal fiction that makes those unrelated by more closely related than those related by blood.
The eligibility law for SSM has nothing to say about a government guarantee that the families of unrelated people will not be disrupted; and nothing about grooming related or unrelated partners. Some related people are eligible, groomed or not; all unrelated are eligibe even if groomed.
I think you distort the principle that marriage makes people related as husband and wife; you offer an incomplete definition and, given the way you have attacked the marriage idea, you leave yourself no principled basis for drawing coherent limits on eligibility to SSM, much less to marry.
More later
Fannie your quartering of the man in your comment about polygamy does indicate tat you understand that 1) it is a series of two-sexed unions and that 2) dividing the man thusly is a flaw.
Ampersand, fraternal polyandry entailed a wife shared by brothers. Polygny has its counterpart with a husband shared by sisters. Human cultures have also included variations on thoe already-close-kin sharing a wife r a husband.
These series of unions are do not fit your supposedlu accurate core definition. Indeed your definition is incomplete as a commenter noted earlier: marriage makes the man and woman a special kind of kin, each to the other, and not merely close kin.
You relied on a count of cultures but you often slip into the error of confusing the general with the particular instance of marrige. In your proffered redefinition you explicitly referred to the instituion and so your effort was for distinguising a type of relationship as a public institution. You looked to a purpose as one you thought to be universal in response to George’s remark, which you quoted, about the independent reality of marriage.
That indicates that you have conceded that there is an independent reality that you tried to distinguish.
So, apart from things extrinsic such as law or customs, what d you think the marital relationship does that causes an unelated man to become close kin to an unrelated woman? You have pointed to an effect … the unrelated become related … without identifying the cause.
To use your own thinking from your remarks about bodily union, if unrelated by blood it would be unlikely that they’d actually become blood related or related more closely than blood relations.
You may be relying on a metaphor or a mythical transformation regarding relatedness. Or you are running right into the centrality of bodily union which is entailed in comprehensive union.
I’ll blog about that at Opine and would welcome you as a reader — lurking or commenting there.
I think your various responses to George suggest that you are groping to reason backwards from your predetermined result – imposition of SSM by whatever heap of contradictory argumets you can improvise. Even if that means mimickry of an argument you have not actually addressed.
Your responses also indicate that intuition is part of the puzzle. Moral intuition and conscience. Hence your concern about something being counter-intuitive. Moral reason and moral feeling need to be reconciled.
Chairm, in fraternal polyandry two or more brothers share a wife, but the brothers are not married to each other. It’s obvious, if you watch interviews like the one I just linked, that the wife considers herself married to both brothers and vice versa, but the brothers do not consider themselves to be each others husbands.
One way to make this clearer is to consider what happens when someone leaves the marriage. If a brother gets angry and leaves (or dies), the marriage goes on; if the wife gets angry and leaves the brothers (or dies), the marriage is over. That works because the brothers aren’t, and never were, married to each other.
So no, the existence of fraternal polyandry doesn’t contradict my core definition.
However, I should point out that my core definition is observational, not moralistic and judgmental like yours is. If you could point to some cultures in which sibling marriage — by which I mean, siblings marrying each other directly — is as common as fraternal polyandry is (which is not especially common – certainly less common, nowadays, than same-sex marriage), then I’d have to change my definition. But that wouldn’t be a big deal to me.
And it wouldn’t rescue George’s argument. Even if my observed core of marriage is mistaken , that doesn’t change the problem that George’s supposed “universal” definition doesn’t match the way actual human beings have married in a huge number of human cultures, now including gay couples in a handful of states and countries.
Tell me, do you think George considers a fraternal polyandry marriage to be a real marriage? Do you?
Didn’t a variety of cultures either allow or specifically encourage incestuous relationships, especially within the ruling class(es?) Egypt comes to mind, but I’m almost certain I’ve heard of others as well.
Since Roman times, Western rulers marrying nieces (avunculate marriage) has been rather common, particularly for Spain (often marrying nieces from Austria):
In Spain alone, Philip II, Ferdinand IV, Philip IV, Amedeo I, the Infante Carlos and Ferdinand VII married nieces. Heck, Ferdinand VII married two of them!
Moving forward, please confirm, correct, or clarify: You reject the notion that marriage has an independent reality. There is no true marriage despite your offered definition
Such a rejection would render inapt Myca’s Beetle analogy since the decisive stuff of marriage would not be something intrinsic to the type of relationship but rather something extrinsic.
I don’t see how. If marriage is something agreed upon by society rather than something with “an independent reality”, then that makes it very much analogous to how we decide what “insects” are. Relatedness is real, but the exact cutoff for the category “insects”/Insecta is artificial. (For that matter, using the set of kingdom-phylum-class-order-family-genus-species, with all the sub- and super- familes, orders, etc further proving it.)
Ampersand, as I have explained to SSMers far and wide, polygamy is a series of man-woman unions. In your coment you have agreed.
My previous comment had already aswered your question: the comprehensive union of husband and wife entails bodily union that is not possible for a type of arrangement that is comprised of more than one man and one woman. My point still stands: polygamy is two-sexed and deals with the very thing that you quoted George observing.
Readers should keep that in mind when considering your attempts to justify banning some same-sex scenarios from SSM.
Likewise with your use of the terms moralistic and judgemental.
The count of human cultures across the anthropological and historical records indicates that your core definition is incomplete.
1) You have not directly responded to George’s observation – the observation you quoted above in your blogpost. He drew significance from that observation. In you blogpost you changed the topic and did not return to that quoted observation.
If your definition is purely observational then you might have dealt directly with George’s uncontested observation. If your definition is not purely observational, that would suggest a few problems with your other responses. I’ll come back to that.
You stil owe the discussion at least a couple of explanations that would lay beneath your core definition.
1) The answer to the question, what is marriage, precedes affixing a label and status on the type of relationship.
If your observational definition necessarily puts the cart before the horse, okay. But please confirm, correct, or clarify: You do not believe that marriage has an independent reality.
2) Without depending on metaphorical relatedness, how do you think that husband and wife became close kin when they were not already close kin? Indeed, how did they become closer than blood relations before the label and status are affixed to this type of relationship?
Your thinking about the impossibility of a non-metaphorical bodily union would strongly suggest that you’d object to defining marriage based on faith in a metaphor. You said that would be immoral.
George did not rely on a metaphorical bodily union. You misconstrued his argument.
But even if you think you understood the argument correctly, your stated objection still limits your own answer to the question, what is marriage. It would be a big deal for you to drop that objection rather than drop your core definition. Do you rely on a metaphorical kinship?
If you drop your profferred core definition, then, you owe a new answer to the challenge. Not a slightly revised definition but a new definition.
3) If you stick with the incomplete core definition you have put forth already, and if you somehow overcome your own objection to reliance on a metaphorical relatedness, you owe the discussion your thinking on how sexual relations between close kin is socially approved for the type of kin who are husband and wife but not for the type who are ineligible to marry. How is not incestuous if they became close kin? Perhaps they are not actualy related as close kin, afterall? Except metaphorically, in your view?
Along the way you might confirm, correct, or clarify: you believe that the kinship of husband and wife is unlike the kinship of blood relations; and you believe that the husband and wife form a different and closer kinship than blood relations such as between siblings and between parent and child and between uncles/aunts and nieces/nephews . Marriage does not make unrelated people close kin; marriage makes even close kin (where allowed) related in a special, or at least a different, way. Yet your definition is incomplete in this regard.
You might also explain what you mean by “core definition” in light of your claim that changing its core would not be a big deal for you.
A definition without essentials cannot begin to delimit (i.e. define) whatever you observe, much less conform to a principled basis drawn from observation of essentials.
It would appear that by admitting that your profferred definition is a disposable contrivance you have already suggested that your core definition is not a core definition.
Do you believe that marriage has an independent reality? If not, why not? If yes, what does the count of cultures have to do with your attempted answer to the question, what is marriage? Surely your readers might fairly expect something more substantive from you than superficial mimickry of the argument you reject.
To return to the examples of fraternal polyandry and sisterly polygny, both are more common across the anthroplogical and historical records than what you’d call “same-sex marriage”. Both are two-sexed. Both deal with the very thing that you quoted Georg as having observed. The SSM idea conflicts with the marriage idea on that basis; your starting place is somewhere else since you reject that basis.
Again the count of cultures does not disfavor George’s observation nor his argument. But it does not help your own.
Ampersand, in polyandry (one woman with multiple husbands) the men do not marry each other but that is not because they are already related; unrelated men do not marry each other when they share the wife ad her children. You have not found a distinguishing feature that contradicts the man-woman basis of this type of series of unions.
Polyandry also takes the form of son-father and nephew-uncle and other scenarios of related men but not of unrelated men marrying each other.
the comprehensive union of husband and wife entails bodily union that is not possible for a type of arrangement that is comprised of more than one man and one woman.
Nor is it possible for couples with certain disabilities or other physical limitations, nor couples where one member is in prison, nor couples where one member is in out of the country. Yet we allow all those to be married.
Are you saying that PiV sex is a requirement for marriage, and those couples that don’t do it–or are not capable of it–are not married?
confirm, correct, or clarify: You do not believe that marriage has an independent reality.
Independent of WHAT? Marriage is a human social institution; it exists within the context of other human social institutions. It has included, or excluded, different details in different cultures throughout the history of humanity. There is no absolute, Platonic, ultimate definition of ” human marriage” that applies to all cultures everywhere, ever.
While “man and woman having & raising kids together” is by far the most common use for “marriage,” it’s never been exclusive to that definition. Many cultures allow not only childless but sexless couples to be married. (Including ours.) Some allow what the US would consider same-sex couples to be married–most commonly by one person changing gender identity, but sometimes that’s done in ways that modern US wouldn’t recognize.
For most of human history, “marriage” was a method of controlling access to female sexuality and fertility. Women were property exchanged among men; “marriage” was the means of transferring ownership from a father to a husband. In the modern US, we reject this definition, which means we’re working with a new type of marriage.
The reason two people of the same sex couldn’t marry a hundred years ago was that a marriage needed a “ruler” and a “subject”–a relationship that required the woman to give up any right to her identity, her own name, own property, refuse sex, get a divorce, or determine the rearing of the children.
Why is your claim that a particular type of sex is required for marriage–when it wasn’t then–more valid than the claim that marriage in the US has “always meant” a woman being subject to a man’s will?
It’s well-established that having sex (especially not of any particular type) is *not* required for a valid marriage, but at one point, a woman giving up her name & right to own property *was* required.
Marriages are now, legally, equal partnerships. There is no longer a need to have one partner give up a separate identity or the right to make personal decisions.
I have begun to notice how much the anti-SSM rhetoric is about enforcing gender roles rather than supporting families. There’s a whole lot of focus on genitalia as defining one’s place in a relationship that has no legal definition*, with an assumption that insisting on a particular physical arrangement of the partners will cause a particular type of relationship, and that a different physical arrangement is not capable of having the relationship at all.
(*As far as I know, no state defines how a married couple must act or feel toward each other or their community, nor what actions they must commit, especially not as distinct from what actions and attitudes are allowed for unmarried couples. “Marriage,” the relationship, as opposed to the legal condition, is no more defined than “friendship.” If I’m mistaken, please feel free to provide examples.)
“Independent reality” means “God’s plan for marriage”. It’s like creation science; they know that you can’t pass legal muster arguing that God said so, therefore they wrap it in layers of secularized rhetoric.
I started out writing something, stopped, started again. At first I was going to say that I think Chairm was only talking about the validity of polygamy as a counterexample–in the FLDS, for example, one man can be married to multiple wives, but the wives aren’t supposed to have sex with each other–then I wasn’t sure. Chairm may be trying to equivocate here, muddying the distinction between the non-sexual connection between women married to the same husband, and the sexual connection between same-sex couples–trying to treat them as interchangeable because they both don’t include PiV sex.
Nitpick: this is true of agrarian societies and many post-agrarian societies, but not for all societies. While hunter-gatherer societies aren’t/weren’t feminist utopias, the concentration of wealth and power within some families but not others that became possible with permanent settlements and landowning, and the ability and need to pass on this property through the male line, made things worse for women in this regard (and increased rates of polygyny–and I believe that polygyny without polyandry does make things worse for women).
Agrarian and post-agrarian societies are those that we have the greatest historical record of, of course, but I don’t think we can say that hunter-gatherers are completely outside of history, since some of them still exist today, and many others didn’t stop being hunter-gatherers until the 20th century.
I dunno. I understand Chairm to appeal to the secular rhetoric of Plato: There exists some Platonic Ideal of Marriage, independent of mere human conventions, to which all human marriages aspire. How do we know this? Well, just look at the long history of societies recognizing marriages involving the union of (and least) one male and (at least) one female. And weren’t those societies involved with human conventions…?
To be fair, if I want to determine if something reflects “human nature” rather than mere culture, I look to anthropological data. If I discover that different societies have different gender roles, for example, I conclude that social expressions of gender roles do not reflect an immutable human characteristic but rather reflect culture.
I find it remarkable that so many societies have recognized male/female unions. Based on this evidence, I suspect that societies that eliminate this practice (and there have been a few) are unlikely to endure. I don’t preclude the possibility, but I’m skeptical.
As I understand him, Chairm seeks to extend this argument to address NEGATIVE proposition. He argues that the relative LACK of history of societies recognizing same-sex marriage demonstrates that recognition of same-sex marriage is incompatible with society. Or something like that.
I don’t find this style of argument quite as compelling. Yeah, there are various examples of same-sex relationships receiving various levels of public acceptance. But more to the point, this argument implies that innovation is impossible. If, in the long history of human societies, we find no examples of representative democracies, that proves that representative democracies are impossible! I just don’t buy it.
For what it’s worth, I think societies can establish certain types of institutions only when those societies become sufficiently RICH. We observe many different social institutions in agricultural societies that we don’t in hunter-gatherer societies. I sense the idea of religious pluralism can only exist in societies that are sufficiently stable to permit this type of dissent. I suspect that democracy is something that can only exist in societies that are sufficiently stable to permit this kind of dissent. (Note the relative lack of democracy in the military; the midst of a battle proves to be a poor time for a debate about leadership.)
A society that desperately needs labor may establish many social conventions encouraging reproduction. This may be a fair characterization of most societies since the dawn of time until very recently. But a society that is not so desperate for labor, or that can count on an unlimited flow of laborers from across the border, does not have the same need for those social conventions.
In short, even if I conceded that no other society has ever recognized same-sex unions until our own, I don’t find that a reason to conclude that this innovation is incompatible with our current society. I don’t find the argument compelling either on grounds of logic or intuition.
Finally, a word about form, not substance: I respect Chairm’s efforts to maintain a moderate tone even in response to rather exasperated posts. Alas, I have been the source of more than one exasperated post. The Socratic style of exposition has never been popular, and it seems especially poorly suited to web sites. I’m curious to learn more about people’s thoughts here – but I often find my curiosity has waned long before I get to the end of one of Chairm’s posts. Perhaps that’s a reflection on me; perhaps that’s a reflection on Chairm; perhaps a bit of both. But it’s a real source of communication failure.
nobody.really:
This is possibly the best counterargument to the “we must not change traditional marriage” argument which I have seen. It’s compact and easy to understand.
“But it’s never been done before.”
“So what? Human progress consists entirely of things which have never been done before.”
It does not therefore follow that things which have never been done before are progress, but it does neatly disprove that things which have never been done before cannot be progress just because.
People argue that marriage is this, or marriage is that. Phooey. Whatever it has been, in the modern day, marriage is law. Law is whatever a society says it is. As a society, we have evolved a legal institution, marriage, which grants rights, privileges and obligations. We have limited access to it, and we are now in the process of discovering that some of those limitations reveal our own bigotry. Some of us are arguing that the we should change the rules of access to do away with the bigotry …
… and some of us are arguing with heartfelt sincerity that we should redefine “bigotry” and call it Good.
Grace
I understand Chairm to appeal to the secular rhetoric of Plato: There exists some Platonic Ideal of Marriage, independent of mere human conventions, to which all human marriages aspire
Sure. But that secular rhetoric is the sheep’s clothing for a Godly Ideal of Marriage. That’s why you get buzzphrases like ‘bodily union’. You can’t really have a “union” in a polygynous marriage – there’s a rhetorical nod to such because it’s in the Bible and all – but it’s the fundamentalist Christian view of a man cleaving to his wife and of the sexual union that unites halves of a whole.
Well I don’t frankly see what Same Sex Marriage has to do with incest one way or the other, so I guess I’m right out of this discussion.
Will Same Sex Marriage lead to the extinction of Heritage varieties of tomato? Hm…. got me on that one.
The theory, Susan, is that SSM – by greatly weakening the implicit idea that government can set serious boundaries on people’s expressed sexual/marital preferences, and social recognition/validation of same – will lead to an expansion of other groups’ willingness and ability to argue for a legitimization of their unions.
Amp’s counter-theory is that there are real harms from incest or polygamy (for example) that cannot be shown to exist from same-sex unions, and therefore that government’s legal power to block those unions will be unimpeded, since there are legitimate secular purposes for preventing child abuse, etc.
And I think that he is correct on this, and definitely correct on the idea that there will be no movement in the direction of legalizing such unions until there are millions of Americans convinced that their legalization would do no harm.
But I also think that his argument is theoretical, and that eventually adult incestuous and/or polygamist marriage advocates will arise, will start convincing people, and will end up getting their unions legitimized. This will not be a direct result of SSM becoming the de facto rule in the US, but rather will be the result of the same general social trend: a loss of faith in the ability and/or right of government to be the regulatory mechanism for individual sexual and marital conduct, coupled with a growing recognition that the sexual preferences of others – whether those preferences seem distasteful, odd, amusing, bizarre, or compelling to ourselves – aren’t something that should be regulated by the state without massively compelling reasons. I think those reasons will hold up in the case of adult-child incest; they won’t hold up, in the long run, for adult brother-sister or cousin incest, or for polyamorists. Amp believes that the legal structures are the controlling factor; I believe that the legal structures are a convenient fiction that we use to rationalize what we were going to do anyway.
(And I should say, by the way, lest it be misinterpreted, that I am squarely pro-SSM at this point…but by the same token I am unable to articulate any compelling secular reason why Amp should not be allowed to marry his sister if she wants to marry him, or why Mythago and her husband should not be allowed to add the pool boy as the first of many add-ons to their partnership.)
Sadly for the pool boy, I can articulate a compelling secular reason, which is that nobody – and I say this having discussed the issue with a bazillion polyamorous folks – can articulate how civil poly marriage would work. (“But if C divorces D, are we still married….and who gets the Mercedes?”) Which I think by itself gets you past rational basis analysis.
As for incestuous marriages, again, I suspect it would be pretty simple to get past rational basis (off the top of my head, I can think ‘preventing intrafamilial sexual abuse’ as a biggie), and there doesn’t appear to be any incest advocacy group on the horizon – despite many states having loosened up on first-cousin marriage.
The funny thing about the regulatory argument is that SSM actually increases government control of relationships. That’s why many radical queer activists are anti-marriage.
Rational basis is a convenient fiction that we use to rationalize what we were going to do anyway. Someone will jigger up a workable polyamorous marriage law (and fifty kazillion lawyers will get enormous erections when they think about how much family law they will get to relitigate at $300/hour), someone else will point out that “intrafamilial sexual abuse” applies principally to children who aren’t allowed to get married anyway. And you’ll be a crusty 80-year old lawyer on the 4D holoblogs telling people that they can’t marry their sisters because “intrafamilial sexual abuse” and then you’ll get yelled at by the moderators for being a bigot who thinks that loving brother-sister marriages are the same thing as uncles molesting preteens.
And yeah, you’re right, there aren’t a bunch of brother-sister love and polyamorous-marriage-is-beautiful groups working the halls of Congress. I’m 43. In 1968, how many activists were there for SSM? A handful, totally unknown to the mainstream and derided within their own community as being lunatics and/or traitors to free love.
The regulatory argument fails because the government’s power to regulate isn’t being strengthened; rather, it’s power to legitimize is being strengthened, which in practice means a lowering of the barriers to new demands for legitimization. (“You did it for them!”) Do the people who think that SSM increases the state’s role think that the state would have an easier time of it to crack down on first-cousin marriages now, or a harder time? I think the answer is pretty obvious.
I don’t say it’ll happen tomorrow, or that it’s a total inevitability. (Nor, in the case of adult relationships, do I think it’s a bad thing.)
Rational basis is a convenient fiction that we use to rationalize what we were going to do anyway
I’m not sure what you mean by this. Legally, rational basis means “the government can do pretty much whatever as long as it’s not batshit crazy”.
The state quit cracking down on first-cousin marriage ages ago, and there has been no outcry from the masses. Nor has anybody said “Hey, you let first cousins marry, what about the queers?”
Not really buying the Future Parade of Horribles, either. The idea that society inevitably progresses towards libertinism is an attractive one to social conservatives, but you’ll notice people giggle if you talk about ‘free love’ these days, and that happened long before the AIDS epidemic.
Was there any rational basis in 1960 to prohibit gay marriage? No. Yet, gay marriage was banned. It seems fairly clear that “rational basis” tests are a rationalization, not a rationale.
I didn’t say that there would be an outcry from the masses re: first cousin marriages. I proposed a logical test. If the state’s power over marriage has increased, then in theory the state could crack down on first-cousin marriages now and have greater success. Do you believe such a crackdown would be easier today than it was before the expansion of the state’s role in marriage? Do your friends? If the answer is no, then you don’t in fact think the state has more POWER over marriage; it may have a role in more people’s marriages than before, but that is so because it has extended the service it provides to a wider group, not because it has arrogated more power to itself. Government expansion of this sort is not an expansion of the state’s ability to influence; it’s an expansion of the state’s obligation to serve.
Since I explicitly say that I would not disagree with the continued expansion of marriages to other adult couplings, I must object to your characterization as a ‘Future Parade of Horribles’. That is not the argument I am making; I am not arguing against SSM on the basis that it will lead to these other Bad Things, I am rather arguing that the acceptance of SSM will, beneficially for the most part, decrease the power of the state to resist future demands for relationship legitimization on the part of now-suppressed groups of people. Nor do I see this as an advance towards libertinism; putting more people into permanent state-sanctioned relationships is hardly libertinism.
Was there any rational basis in 1960 to prohibit gay marriage?
Sure. Loving v. Virginia wasn’t even decided until 1967. Hawaii, and I doubt it was the only state, forbade the “infirm or impotent” from marrying, there was still fault-based divorce, and coverture was the norm. When a state really, really enforces marriage as being about ownership of the V and baby-making, it has a much stronger argument for limiting marriage to opposite-sex couples.
Your question about first-cousin marriages is weird because it’s like asking “So do you think it’s easier for the government to find a right of privacy exists for abortion?” We’re past that, man.
Hence SSM. The state has loosened the ownership-of-wife-for-babies requirement of marriage, tossing away millenia of tradition. In California, same-sex couples already had rights to adopt, share households and so on. So it’s not really the huge shift you seem to think.
I have a few ideas how these changes might come about.
Based on this, and Scalia’s dissent in Romer (I believe), you will get some polygamist in Utah suing the state for banning polygamy in its Constitution, or raising the constitutionality of it in criminal prosecution.
You might have a bisexual who says that he can’t be happy unless he has his wife and his gay husband. Both of those relationships need to be dignified with the word, “marriage,” because otherwise one is valued more than the other.
Then, there is NAMBLA, and they would likely use this case (and my hypothetical attacks on anti-bigamy or polygamy laws) to attack age restrictions on marriage (after all, Socrates diddled Alcibiades when Alcibiades was a kid, and he grew up to be a great tyr…leader).
-Jut
“Polyamory” is a fancy new (and of course Latin) name for a very old practice. When I was a child in the 1950’s in a Los Angeles suburb, the family that lived next to us consisted of one man and two women, one of whom was legally married to the man, the other of whom was….? These were all adults and this arrangement was of long standing, and in fact lasted until the deaths of all the parties. (Understand of course that I am talking about adults, not the forced “marriage” of underage children.)
Among my own contemporaries I am aware of two such families, one with two women and one man, one with two men and one woman. Both families have several children, now adults, and both groups are grandparents now, just as I am. That these unions have not had, until now, any legal standing does not mean that this has not been going on.
Legalizing it would have many benefits for all concerned. Largely it would keep the money straight, and provide security for the children of such unions. I am not persuaded by the “oh golly it’s too complicated” argument. I have participated in corporate restructures which make divorce in such unions look like mere child’s play, but we all manage. Divorce in itself is complex, but I don’t see why a divorce in such a family is something our legal system could not handle. Give us lawyers some credit, OK? We could figure it out.
I also do not think that there would ever be more than a few such families. Most people have second and third thoughts about making marriage’s financial commitments (ever heard of spousal support?) to one person; the number of people who would be anxious to make those commitments to two or more adults will be vanishingly small. However, I am also quite unable to think of any compelling societal reason for forbidding it.
Oh one more thing. I did know one “polyamorous” (can we please think of a new word ASAP? one that doesn’t have “love” in it in any language? “Marriage” is not, properly speaking, about love, it’s about commitment) family, two women one man, where the guy was, to be blunt, a screw-up. There were children involved in this one too. The women put their heads together one day and showed this guy the door; the one who was legally married to him divorced him.
So, were the women still “married” to each other? I would say Yes. They continued to live together and to care for their joint children; when an adult son became ill with cancer they took him back into the home. They continued to be responsible for each other.
Were they having sex with each other? This is the kind of question which has always been out of bounds in polite society, and I think it should stay there.
JutGory, the polygamy arguments have been thrown at marriage-equality activists since….well, I can’t remember a time when they weren’t. And yet, the FLDS and other poly groups have not rushed to the courthouses to take their stand on Romer. Funny, that. It’s almost as if the ‘rational basis’ test is pretty hard to overcome, and issues with polygamy (which in the US would have to permit polyandry as well as polygyny) ranging from the actual number of people in the marriage and their various relations to one another, to concerns about the abuse of women and children. That’s what sunk polygamy in Canada, which, you may recall, has been all about gay-married people for some time, eh?
Regarding NAMBLA, perhaps y’all need to get your story straight on that one. NAMBLA doesn’t need to sue anybody. Plenty of states allow adults to marry children, and their fellow states recognize those marriages.
Sure. Loving v. Virginia wasn’t even decided until 1967. Hawaii, and I doubt it was the only state, forbade the “infirm or impotent” from marrying, there was still fault-based divorce, and coverture was the norm. When a state really, really enforces marriage as being about ownership of the V and baby-making, it has a much stronger argument for limiting marriage to opposite-sex couples.
Perhaps I am misunderstanding what “rational basis” means, as none of the things you list as having changed appear, to me, to have much if any connection to the question of whether the state has a legitimate interest in not recognizing same-sex unions. “Infirm and/or impotent” is neutral as regards sexual orientation, fault-based divorce does not appear to have any specifically gendered content, and coverture would appear to apply only to women; two men, at least, could successfully argue that it was irrelevant to their case. Loving’s declaration that marriage is a basic civil right is undoubtedly EXTREMELY helpful to the general case for SSM, but has nothing to do with whether there’s a rational basis for discriminating against homosexuals.
My question which you more or less sidestepped was, what was the rational basis for anti-SSM discrimination in 1960? Your list of kind-of-related-to-gay-marriage things is interesting, but doesn’t answer the question. What was the AFFIRMATIVE ARGUMENT that the state had, to prohibit SSM, that would have been successfully made in 1960 but could not be successfully made today, in a hypothetical give-me-my-gay-marriage-rights case?
I don’t think there is one. I think “we don’t like fags so get the fuck out” was the argument in 1960, and that all the lawyer talk is blather to cover over the slightly embarrassing fact that much of our jurisprudence is based purely on the current state of prejudice in the society. Not enough people in 1960 were tolerant of gays for such a gay-rights challenge to succeed, not enough people in 2010 are intolerant of gays for such a rights challenge to fail. The lawyer talk is cover for the emotion-based decision, not the foundation of some regime of pure legal logic.
Your question about first-cousin marriages is weird because it’s like asking “So do you think it’s easier for the government to find a right of privacy exists for abortion?” We’re past that, man.
Either you’re being deliberately obtuse or you’re just not getting why I brought it up, and either way I’m not getting an answer out of you. Suffice it to say that in my view the idea that the state’s power over marriage has increased seems facially implausible and demonstrably (if only in the hypothetical) untrue.
The state has loosened the ownership-of-wife-for-babies requirement of marriage, tossing away millenia of tradition. In California, same-sex couples already had rights to adopt, share households and so on. So it’s not really the huge shift you seem to think.
Um yeah, exactly. Adding number and familial status to the categories of “things which used to be relevant but no longer are”, similarly, would not be a huge shift conceptually (though it might be in terms of the legal work that would have to be done for poly marriage). We have made a giant move towards liberalizing the marriage regime and opening it to lots more people. That seems, rather obviously, to point towards new groups, formerly excluded, to start seeking inclusion as they see that the possibility is real.
Robert, let me get this straight. You claim you want to understand the legal basis that SSM was not legal in 1960, but you handwave any discussion you don’t want to hear as “blather” and “lawyer talk”? Can you explain to me the rational basis for why I should waste time acting as if your response will be anything other than BLAH BLAH HUGE LAWYER?
I didn’t ask about the legal basis as a generality; I asked specifically about the rational basis test. You are claiming that there was a rational basis, in 1960, for government to discriminate against gay marriage. OK, what was that basis?
The part I think is blather is that you insist that there was one, but when asked to point it out you handwave with quasi-related topics.
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They’re not quasi-related, Robert; they’re the answer to your question.
In 1960, in virtually all if not all states, the purpose of marriage as reflected in the law at the time very much was procreation and the rearing of children; we’re talking about an era where laws could discriminate against kids born out of wedlock and being unable to have children was a reason the government could refuse to let you marry. Was this kind of shitty? Sure. But the state could, with a completely straight face, say that the purpose of marriage was to encourage procreation and childrearing, the laws were clearly drawn and applied to reflect that purpose, and since same-sex couples can’t have biological children together nor is there any coverture in such marriages, there is a “rational basis” to prohibit them.
As you know I’ve said before, any state that wants to roll back its laws to as close to that time as modern laws permit is going to have a much better time of it than Prop 8’s supporters in fighting back SSM.
Was there bigotry and discrimination? Well, shit, yeah. But there weren’t laws that applied ‘you can’t have kids’ or ‘we don’t know who is in charge here’ only to same-sex couples.
If I recall correctly, there weren’t any challenges to anti-SSM laws until around 1971 or so, and those got the “well, but marriage is a man and woman QED” treatment.
Robert, coverture laws stood for the idea that men and women had separate, sex-based roles to fulfill in marriage; it was the idea that marriage was a female plug and a male plug. Of course the existence of coverture laws would add to an argument that banning same-sex marriage had a rational basis in law.
Laws forbidding the impotent to marry add weight to the argument that marriage is about piv reproduction; the state could more credibly claim that it wasn’t a matter of singling gay and lesbian people out, because look at the impotence laws.
I’d add to Mythago’s list that in 1968, having gay sex was illegal in most of the country. No doubt you can make counter-arguments to these arguments, and I’d probably agree with your counterarguments, but that’s not the question here. I don’t say that these things were or are “rational,” in my lights.
But would they have been part of what Courts considered when applying a rational basis test in 1968? Yes, they would have. And it looks to me more like you’re the one hand-waving and dodging Mythago’s argument, rather than vice-versa.
Despite what I write above, I partly agree with this:
In most of the cases that reach the Supreme Court, there are multiple outcomes that can be defended with legally plausible logic, and in most cases one of those options will be settled on by the Court. Which of those outcomes the Court ends up selecting depends on (among other things) the emotional tenor of the times.
I think of it like a ven diagram; we have the level of bigotry against gays, and we have the legally plausible outcomes. The final decision will be one that falls within the overlap of those two circles. So legal logic is, as you say, not the pure, sole decider of outcomes. But it’s not completely irrelevant, either.
To expand on the bigotry issue: is it true that, in 1960, if a state had the exact legal environment wrt marriage that California has now (no-fault divorce, no penalties based on legitimacy, equal standing of husbands and wives, etc. etc.) that a court would still have denied SSM due to bigotry? Mos def. But it’s also true that a 1960s appellate panel consisting of David Bowie, Freddie Mercury and RuPaul would – if strictly following the law – would and should nonetheless have rejected a constitutional challenge based on sexual orientation alone.
Mythago:
Not really. This case is more closely analogous than Romer, I believe. I would not be the least bit surprised if it comes up.
After all, didn’t the orcas just get their 13th Amendment case thrown out? I mean, just because cats should be able to be a trust beneficiaries does not mean orcas should not be enslaved.
I think it was Tocqueville who observed that every question in America ultimately gets resolved as a legal question (paraphrase). Unfortunately, that means any yahoo with a bone to pick or a pot to stir, whether right or wrong, is going to make it a legal issue. And, the Courts, being the least political and, therefore, least accountable, seem to be the venue of choice for making that argument.
So, I just think it is a matter of time….
-Jut
Romer came down in 1996. It’s been kind of a long silence from the polygamists, if that case were their saving point.
I get that you “believe” and “think”. It’s convenient to opponents of SSM to launch a parade of horribles. I’d just like to know what your basis is for predicting that – more than a decade after Romer – we can expect not only a flood of polygamists seeking marriage laws to be overturned, but a successful flood. It didn’t work in Canada.
The main reason there’s been no flood of polygamists challenging the laws is that Mormon polygamists don’t want equal-partner polygamy where all members of a marriage have the same rights & legal relationship to each other, and the polyamory crowd is too scattered and diverse to push for legal changes.
The Mormon polygamy does *not* assume the wives are all married to each other–and that they could divorce the husband and stay married–so the connection between SSM and those marriages is pretty much nonexistent. And they’re the only group with enough resources & political clout to push for legal polygamy.
Most of the polyamory crowd recognize that “rational basis” includes “the state has an interest in keeping divorce, inheritance, property, and childrearing decision laws as simple as possible, and might bar marriages that ridiculously complicate all of these things.” While methods could be worked out for multiperson marriages, there’s no neat legal template to draw from, and the state is justified in the attitude “not gonna even consider it unless there’s a simple inheritance algorithm.”
There’s plenty of history for “how polygyny works”–which is mostly, “one guy owns sex & reproductive rights to a bunch of women.” Less history for polyandry, but it tends to be “a few guys share sex & reproductive rights to a single woman.” There is *no* legal precedent for “three or more people, all with equal relationship rights, have a marriage.” (If I’m wrong, please someone tell me; I’d love to know about any state-recognized cenogamy.)
@Elf: no, there isn’t, and I’ve been around and around on this (in a collaborative, not really adversarial, way) with polyfolk. Nobody can really figure out a good, working, state-fixed model for multiple marriage. I’m not saying it can’t be done, but it’s not as simple as taking what we’ve already got and filing off the “one male and female” requirement, which actually requires very little change, procedurally speaking.
I think you are quite right about fundamentalist polygynists.
But… there are loads of places (UK, Australia, the Netherlands) which don’t allow polygamous marriages; but which do recognise polygamous marriages contracted abroad and allow for polygamous divorces. And it works just fine, and they’ve had none of the problems you’re worrying about. There’s been no major rewrites of the law, courts just apply existing principles to the new cases.
Comity is the usual way of resolving those sort of problems. The US is kinda unique for being the most extreme anti-polygamy state in the word, in both dogmatically not recognising and criminalising these marriages. So, yeah, when you say there isn’t any existing law it’s not a surprise. US courts have been blocked from considering how to resolve these problems, so there isn’t any material on it. But it’s not because it’s impossible, courts work out how to effect extra-territorial contracts under local law all of the time – they could quite easily figure out how to recognise these marriages if people wanted them to.
There’s been no major rewrites of the law, courts just apply existing principles to the new cases.
Sure. The ‘new cases’ are polygyny, where one husband is married to multiple women who have no relationship to one another or any other husband. Assuming for the moment that you are accurately reporting that the law works like a greased trout through conduit in handling these marriages, how well do you think they would handle marriages where every spouse is married to every other spouse? Because, you know, that’s what we were actually discussing.
None of the places that allow polygamous marriages deal with *equal partnerships* in those marriages. If a man with three wives moves to Australia, can the three wives divorce him and stay married to each other? If one wife dies, is her property split equally among the remaining three spouses (which would be most relevant in case of a later divorce) and their children (and would those get the same share as her bio-children?), or do the husband & her bio-children inherit all of it?
Do sister-wives have more or less legal authority over each other than biological sisters? Bio-parents of those wives? (If one wife and the husband are hospitalized, who decides what medical care they get?)
There’s a difference between “we tacitly recognize that your country of origin calls what you have ‘a marriage,’ and it’s close enough to what we have that we’ll allow it to work that way, and we’ll just hope the numbers stay low enough that we can deal with problems on a case-by-case basis” and “we have a system to cope with divorce, inheritance, child custody, and health care across multiple spouses.”
They are not insurmountable problems; in fact, most examples are met with “that’s easy! you just [proposed solution].” But there are no simple underlying principles that make those answers obvious to an objective outsider, and no legal precedents. (If ABC&D are married, and A&B want to divorce C but keep D, and D wants to divorce A but keep B and C, what happens? What does the final marriage look like, and how is the property split among them?)
They are eminently fixable problems, answerable questions. The point is, they haven’t been answered, and there’s no systematic approach for dealing with the many kinds of issues that can (and would) arise.
Changing gender permissions for a marriage does not (anymore) change the legal roles of the two people in the marriage. Changing the number does; their responsibilities to each other shift according to the number of others. It’s not the same kind of legal shift.
Mythago, thank you for more clearly stating what you think. I see your point now, and I agree in part (though I like Amp’s Venn diagram conception and think he has the most right of it).
Yes, polygamy has a weird history in the US, largely because of the Mormons. (Fuckin’ Mormons!) And it’s true that we don’t have formal case law on the issues that particular type of polyamory presents, because it’s barred…but it should be noted that the fundamentalist groups themselves do have law, however imperfectly and partially applied (since it’s usually the polygamist leaders making the rulings, and surprise, surprise, they rule in ways that benefit themselves). But it’s not just chaos out there on the compounds; people have expectations based on understood rules, and those expectations are met often enough to preserve a modicum of faith in the system on the part of its participants (brainwashed victims though they often are).
So I don’t think that our system would be unable to adapt. Your poly friends haven’t come up with a framework that will work in our system for a lot of reasons, but “it can’t be done” cannot be one of them, since it’s done in other places. (I’d say that the current, de facto pointlessness of the endeavour has to be an enormous block to real progress being made; when John Von Neumann invented the switching methodology for the old long-distance system during a single transcontinental airplane flight, he did not invent anything new in mathematical terms that couldn’t have been conceptualized a hundred or a thousand years earlier; nobody had done the math before because there was no technology to implement the system, so what would have been the point?)
I am unaware of any legal authority an adult woman has over her sister. I am also unaware of any legal authority my husband has over me. So I guess….none in all cases.
In regular marriage under California intestacy law the property of a deceased spouse is split between the surviving spouse and the children. Here, spouses I guess. What’s wrong with that? If you make a Will of course that controls.
No modern American polygamy known to me personally uses the concept “bio-children.” Children of the marriage are everyone’s children. If it’s a polyandry it isn’t immediately apparent who the father is anyway. Me, I take people’s word for stuff like that.
It is a common misconception that your spouse automatically has the power to make your medical decisions for you. He or she or they do not. No one does, unless you have named someone to this post. No change here. The person who has the power to make those decisions is the person the sick one has designated.
Well, not yet.
To say that a culture which can operate a reverse credit-swap is incapable of dealing with polygamy is ridiculous. If it comes up we are perfectly capable of figuring it out.
Is there any real-world society that has adopted an “anything goes” standard when it comes to numbers? Not just “in our society elder men get to marry several wives,” but “in our society a man can marry several wives, AND 3 women 4 men and 3 transgender people can mutually marry each other, AND 3 men can marry each other, AND a woman can marry several husbands or wives who aren’t married to each other,” AND etc etc etc?
Because as I understand it from various opponents of SSM, that’s the future inevitably in store for Massachusetts, New York, and other states which recognize SSM. And that seems a lot more difficult to implement than, say, a fraternal husbands arrangement.
Which isn’t to say that it can’t happen. But it would require a large movement dedicated to making it happen; presumably one thing that movement would do is have lawyers writing model laws explaining how it all works. Lacking that large movement, however, it won’t happen, regardless of what happens with SSM. (I think you agree with me about that.)
@Susan — I am unaware of any legal authority an adult woman has over her sister. I am also unaware of any legal authority my husband has over me.
Legal authority: a spouse has the legal right to make decisions on behalf of a partner. Has the right to sign waivers on their behalf, and so on, esp. in medical emergencies. If a spouse is not available, another close family member may have this right. I’m wondering whether “sister wives” are legally considered sisters for these situations, and whether they are closer or farther, legally, than blood-kin sisters. (Spouses are closer legal kin than parents, for these situations.)
Whether or not there’s an absolute legal right to make medical decisions for one’s spouse, I assure you that hospitals don’t seek a court order before following a spouse’s instructions for care of an unconscious person. And if the person arrives with a spouse and a brother, the hospital will give priority to the spouse’s instructions.
the property of a deceased spouse is split between the surviving spouse and the children. Here, spouses I guess. What’s wrong with that?
Nothing wrong; it’s that an argument could be made for two different cases: if all the women are married to a man and not each other, he may be the only heir. If they’re all co-married, they could all be co-heirs… in which case, are her bio-children more favored, legally, than the other wives’ bio-children? Or do they all inherit equally?
No modern American polygamy known to me personally uses the concept “bio-children.” Children of the marriage are everyone’s children.
The courts, however, are very clear that there’s a legal difference between bio-children and stepchildren, and that would get even more complicated with co-spouses.
In the case of inheritance… I can see objections that someone who married into the family two years ago, with two kids in tow, should not inherit an equal share to the three spouses who’ve been involved with it for twenty-five years, and their kids who were raised by all three people.
—-
I don’t believe these are remotely unfixable problems–the point is, there are many scenarios in which “multiple spouses” will throw off the standard ways of dealing with legal situations. I am very much in favor of finding these fixes; I just recognize that the legal situation is murky and complicated, and that the state has an interest in avoiding creating legal quagmires.
Robert, again, the problem with trying to port fundamentalist polygyny to civil polygamy is that the former does not require equal treatment of males and females, doesn’t generally deal with the level of complexity that the larger world does, and has no provisions at all for dealing with any model other than one husband/many unrelated wives. I’m not saying it can’t be done, ever. But it isn’t going to be something that evolves gradually out of existing law the way SSM has.
Susan, I’m always hearing that handwavy “oh, well, we’re bright creatures, we can figure it out.” Well, then, let’s! How do we handle presumed paternity for a woman who has two legal husbands? If A marries B, has children with C, and B then marries D, does D have any community property interest in A’s assets if any or all parts of the marriage break up? For that matter, is D married to A at all? Do B and C have any kind of spousal privilege? Does A need anyone’s permission to go out and marry E through J? It gets really complicated, as polyamory is wont to do. Can the legal system handle that? Probably. I’d just like to figure out how, and even in discussions with people who understand the law and want such a thing to exist we end up no better off.
This is a kind of silly demand. I don’t mean that you are silly; I mean that your demand doesn’t fit in with our legal system.
The Anglo-American legal system, which dates back to (about) 1066, does not deal for the most part in abstracts. (“ooo what would happen IF this has happened which it hasn’t!?!”) We deal with what has happened. I hear that there are legal systems that take a different approach, but I wouldn’t know about that. Because there really isn’t a powerful poly movement right now in this country, the legal system hasn’t had to deal with the questions you raise. (And we are not in the business of dealing with hypotheticals by and large.)
How could these questions be resolved? Well, there are any number of ways. You acknowledge yourself that we could figure this out. Here we don’t “let’s do it!” unless there is a need for that. Legislatures are busy, and behind on their work. Ditto the courts. They are not interested in addressing hypothetical questions: they can barely keep up with their mandatory workloads. And you admit yourself, in an earlier post, that when people do come up with hypothetical (they can only be that, in this current situation) solutions, they aren’t good enough for you. What would be? Final legislative solutions? Don’t we need the legislatures for that?
It is a silly argument that because the legislatures and the courts have not addressed hypothetical questions, that they could not if presented with them in real life.
Do you have some kind of personal problem with poly relationships? You do seem kind of invested in this. You’ve been going around asking poly friends about this, you say. You post repeatedly on this question. You’re kind of pushing this “oh golly wolly how can we resolve these weird questions???” line pretty hard. I’m beginning to wonder if you have issues here. (I don’t. I’m a 66 year old monogamist. I don’t have a horse in this race, except that I believe in the resourcefulness of our legal system, and in individual rights.)
Certainly. May I introduce you to the world of complex financial instruments? (How many hours do you have?) This is mere child’s play by comparison. Of course we can, and if it becomes necessary, we will.
It really won’t do, as an argument against poly, that “oh gosh it’s too complicated we can’t figure it out.”
If individual liberties are increased, we would be better off, yes?
Some hypotheticals, though I do realize I shouldn’t be feeding this thing….
They’re both fathers, with child support included. They were married to the mother can you dig it.
B can’t marry D without A’s consent, B is married already, remember? The children A had out of wedlock with C? C is the biological father? This would be B’s problem, the presumptive father, and maybe C’s problem if paternity can be established. I cannot see what this paternity problem has to do with polygamy.
D isn’t married to any of these alphabets. No consent. No consent from A, and B can’t give consent all by itself. It’s married already.
Why would they? They were never married.
What’s spousal privilege anyway? I can’t figure out what this is. So far as I know no one has any, now or then.
Is A married already? (Now you’ve got me confused!) Then A would have to get consents of its current spouses before marrying again. A is already married (I think!)
Marriage is not some kind of token you pass around at the dope party, it’s a commitment. Currently, it’s a commitment, enforced by law, not to go off merrily merrily and marry someone else. (Bigamy is a crime, actually.) I don’t see any reason why this should change.
But you know surely that all this is up in the air, totally fantasy. Your questions are insincere, as you know very well.
No legislature, no court, has been asked to answer these questions, and your previous posts give you license to ignore these answers of mine as you have ignored all others, according to your own testimony. No one can know the final answers until some decision-making body makes some decisions.
_______________________
In other matters:
Elf, this is just plain not true. At least not in California, where I am licensed to practice law. Where for the love of God do people get these crazy ideas??
It is a silly argument that because these entities have not addressed hypothetical questions, that they could not if presented with them in real life.
It is not silly to say, “if people who understand polyamory and have seen many poly households cannot find a solid legal precedent to decide how to deal with a simple and likely hypothetical, courts without an understanding of these relationships would be likely to rule in ways that come across as unfair and discriminatory.”
Simple, very likely hypothetical: Woman with two husbands. She has a baby. Who’s the father of record on the birth certificate?
Option 1) Whoever they say.
Option 2) Cue mandatory blood tests, which must be paid for by, ah, someone.
Option 3) Birth certificate changed to allow more than 2 parents. (This may actually be reasonable, in the case of surrogate parents and sperm donors.)
Option 4) “Unknown” is listed; a separate legal document listing “custodial parents” comes into play.
Another simple, very likely hypothetical: Two husbands, two wives, one child. The child’s biological parents die. Who has a stronger legal claim to custody of the child: The remaining couple, or the child’s aunt? Does this legal claim shift if those two divorce?
Another: Two brothers marry two sisters. Are their children siblings, half-siblings, or cousins (if so established by blood tests) for the purposes of deciding if they can marry each other?
And that’s before we get into the abusive scenarios: A pimp marries four prostitutes so he can get their welfare checks legally–and so they can’t testify against him. A fraternity decides the best way to ensure loyalty is to require all members to be married to each other; they can divorce when they leave college. A pair of women prey on rich teenage boys, enticing them into marriage as soon as they turn 18 in order to get access to their families’ wealth. A group of terrorists (or “dissidents” or “freedom fighters,” if you prefer) all get married to each other so their communications are privileged and their activities together raise no overt suspicions.
All the abusive possibilities currently existing in marriage are multiplied if it’s not an exclusive relationship.
There are fixes. I’d *love* to see fixes. I want 3-and-more-people marriages to be legal in the US. But I recognize that the current legal principles don’t cover the situations that would arise, and I don’t want casual handwavery from the poly-friendly crowd–because the poly-friendly crowd isn’t who’ll be looking for loopholes, and isn’t who’ll be deciding the legal outcomes of troublesome situations.
I don’t think we can get legal poly marriages until we have an actual definition for marriage–something that describes not just “how society treats this relationship,” but “what it must be in itself.” Right now, marriage doesn’t have to mean love, or living together, or having sex, or raising children, or sharing assets; it’s a thin pack of legal restrictions, another thin pack of freedoms, and a large pack of external reactions.
What’s the difference between a group marriage and a corporation?
Elf, this is just plain not true. At least not in California, where I am licensed to practice law. Where for the love of God do people get these crazy ideas??
By the fact that the hospital my husband was admitted to, let me answer for him and give instructions to nurses. I don’t think I signed anything for him (except maybe the admission papers), but he was conscious most of the time. To be fair, I obviously had his full consent for all this, and the stay was covered on my insurance–but they certainly didn’t require him to sign anything that formally gave me the right to be involved in his medical decision-making.
What hospitals do is one thing. The law is something else. There is no absolute right, nor any right at all, for a spouse to make medical decisions for a spouse. At least not in California.
1. Of course there cannot be a “solid legal precedent.” This is a silly argument. There is no solid legal precedent, nor any precedent at all, for dealing with Martians, because Martians have not yet come before the court. Dumb argument. How can there be precedent when there are no cases??? That doesn’t mean they wouldn’t make a ruling if that happened.
2. “courts without an understanding of these relationships would be likely to rule in ways that come across as unfair and discriminatory.” Courts can make wrong decisions. In other news, the sun rises in the east.
Poly households need to work for justice under the law, just as biracial and same sex households have.
@ Elf re post 81, assuming this happened in California: they were wrong. We don’t need to get into poly issues to make this determination.
What’s spousal privilege anyway? I can’t figure out what this is. So far as I know no one has any, now or then.
Seriously?
http://bit.ly/yCYFLY
And it is hand-wavy to say “well the system will figure something out if we just let people do it”… this is how we wind up with legal judgments like vacating a person’s marriage after their spouse’s death due to a claim made by their in-laws that their marriage was not valid because they are transgender, just to mention one salient example. Or the family who lives around the corner from me in which the biological father of the family’s children is not listed on the birth certificate and may at some point in the future have to legally petition to be recognized as their father, because he is not the man legally married to their mother, even though all three live together and acknowledge him as the father and the fact that their bio parents are racially different makes their parentage blindingly obvious when you see the three adults plus kids.
If you want to make a habit of entering into highly significant personal agreements when you have no idea whether the law would respect them or not, fine, but many people aren’t comfortable with that
Here we don’t “let’s do it!” unless there is a need for that. Legislatures are busy, and behind on their work. Ditto the courts.
O RLY? Legislators never waste time on non-issues unless there is some kind of urgent pressing need?
@Elusis, you want to talk about the privilege not to testify against a spouse? Please. How often does this happen. OK, you win, all spouses in a poly should be bound by the privilege, happy now?
As to the rest, if you don’t trust our legislatures and courts to order our affairs with reasonable justice, perhaps you should either get involved in our political process to reform these systems, or, as an alternative, move somewhere where the systems are more just. (Please to let us know where this is.)
All these arguments against the legalization of poly relationships so far strike me as insincere. And as a cloak for something else. What? The posters will have to answer that one.
When I was a kid, my father, a self-described (and insincere) non-racist, opposed interracial marriage because it was “unfair to the children.” This was a make-weight, as so many arguments against poly strike me here.
“Oh golly wolly the relationships are too complex for a society which deals in reverse credit swaps daily to figure out.” (Huh?)
“Who could make medical decisions for anyone??? (ignoring that this is already settled law, who knew?).”
“Who is really the father? ( a sexist question).” (What does this mean? Who is the biological father? You sperm donors watch out!)
“Hey anyway legislatures make bad decisions in a lot of other areas so they will here too so let’s not do it.” (Taken literally this would bring all of our democracy down.)
“Who gets authority over whom, sisters or co-wives??” (My sister has some kind of authority over me? Call out the fire engines! (Note the sex bias: sisters, not brothers…))
What the heck is going on here?
This is a very weird discussion, fraught with unstated agendas.
“Who is the child’s legal father” is a legitimate and reasonable question. Sensible people, especially those who understand poly relationships, are aware that it’s irrelevant within a family–but the legalities of inheritance, business law, and custodial rights mean that it’s important to people who aren’t part of the family.
What the heck is going on here?
This is a very weird discussion, fraught with unstated agendas.
What’s going on here is that people who have seen how poly relationships get treated in today’s legal system, without the benefit of marriage, have no faith that calling them “marriages” will make police, judges, and hospital officials more open-minded and reasonable.
What is the good of poly marriages?
1) A small number of happier groups of people. (Most people have no interest in marrying more than one spouse.)
2) Small, but relevant, number of families, including kids, safer from persecution and foster care in the case of disaster.
What’s the harm?
1) More red tape. Possibly a lot more. Marriage certificates would need to be re-designed; states would need a way to indicate how many spouses a person has; various other forms & procedures would need editing. (Shrug. Big nuisance, some cost; very little actual trouble.)
2) Divorces can get tremendously more complicated. (Since marriages are supposed to last for life, this can also go under ‘shrug.’ Not supposed to happen, so the law is perhaps allowed to ignore the complications in advance.)
3) Inheritance law also gets more complicated. (I suppose that if one starts with the premise “all spouses are equally married, period, and only bio-children of the deceased are directly relevant for those who die intestate,” that can probably be handwaved past. There will always be individual cases where a judge needs to intervene.)
4) Tax law gets more complicated. *Now* we’re hitting real issues. Can a person claim three spouses as dependents? Five? Fifteen? Can each of four spouses file separately? Can they chose to file in pairs? If they file separately, can anyone in the marriage claim any of the children as dependents? (The real answer to this is, of course, “rewrite the damn tax code so it fits on a single page.” But that’s not an option we get to believe is actually going to happen.)
5) Insurance companies will balk at providing medical coverage for multiple spouses for the same cost as one. (If you don’t think this is big, you haven’t spent much time without health care coverage.)
6) Many new and creative methods of abuse of the system, and of spouses, would pop up.
The state has an interest in avoiding all six of these, and other problems that would arise. In order to push for legalization of poly marriage, someone would need to provide evidence that the good provided outweighs the harm–or else that the people who want poly marriage are being deprived of an essential human right, so much that the costs to society become irrelevant.
I suspect that the divorce complications alone are enough for the state to say “the good caused by allowing triads to marry & care for their kids is nice, but the damage caused to other families who attempt such a marriage, fail at it, and drag the kids through custody hell far outweighs that part.” And that really is apart from the situation of a pack of drug-dealers deciding to all marry each other so that their communications are privileged.
My agenda? I *WANT* poly marriages. I have dear friends in decades-long relationships that the state doesn’t recognize, and I want them to have that security. I want the option for myself. I’m not nay-saying to knock it down; I’m seeking solutions to the problems I know will show up.
If there’s a ballot measure for “Should California allow more than two people to be married?” I’d vote yes. No question. I’d be content with “just let the legal system deal with the problems; that’s what it’s for.” But that makes an awful pitch to convince people who *don’t* see a need for legal recognition of poly marriages.
In order to get widespread support for the idea, we’d need to show that it wouldn’t make life worse for people who don’t directly want it. That their insurance costs won’t go up; that their taxes won’t go up or get more complicated; that they can teach their kids the value of finding their One True Love without public mockery; that nobody will try to coerce them into a marriage for bizarre business-contract reasons; that when they call a family to collect on a debt, they won’t get a runaround from multiple spouses instead of just two.
You don’t have to convince me. I am all for equal-partner poly marriages. The issue is convincing people who think it’s bizarre and perverse (and maybe greedy), who don’t see any need for such a complicated arrangement. Saying “oh, it’s not *that* complicated” doesn’t even convince the people who want it.
Susan, I’m also licensed to practice law in California. So you can kindly stow the dick-swinging about complex financial instruments. I get that a lot of corporate corporate lawyers think that the bigger the numbers you shuffle around for your Fortune 500 client, the more you know about ALL OF THE LAW, ALL OF IT. Ain’t so, and you and I both know it. If you didn’t, I think the fact that you had to find out what ‘spousal privilege’ is on a blog says a lot about how specialized lawyers can be.
You can also stow the ooo-you-guys-are-sekrit-haterz bullshit. Like Elf, I would love to see poly relationships legalized. If they were, very dear friends of mine could protect their relationships with something other than prayer for the goodwill of the California courts in recognizing written agreements other than marriage. And I’ve seen way, way too many nontraditional relationships have ugly endings because the law didn’t treat a partner- or more-ship as anything other than “roommates”.
Marriage law, certainly in California, very easily accommodates crossing out the “one M/one F” requirement. It doesn’t so easily accommodate adding a third person, or more. That will take a lot of thinking and, as any lawyer knows, a lot of figuring out how people will misuse that system and how it will fail people if it isn’t set up right. Perhaps for you this is an intellectual point-scoring exercise, in which case, you really have no business throwing a snit fit when people who in fact give a fuck actually want to do something other than waving their hands and hoping the courts sort it out. It’s not your life that’s going to be at the mercy of the 9th Circuit, so I guess you don’t need to give a fuck about anything other than winning a blog argument, hm?
Two things.
1) Can we turn down the heat a bit, please? This is ridiculous. I think it’s clear that both Mythago and Susan care about poly folks in poly relationships.
2) I’m not as convinced as Mythago is that the, “how to make poly marriage legal in a way that makes sense,” problem is insoluble. I am 900% convinced, though, that any solution will be much more complicated, legally, than instituting same sex marriage, which is the point when people say that SSM will lead inevitably to poly marriage. No, it won’t, because these are different problems.
—Myca
Hey I’m very sorry I ever got involved in this discussion. Apparently my idea that variant lifestyles are deserving of support is evidence of my bad attitude. I am “dick-swinging.”
Mythago, asserting that I am “dick-swinging” is so disgustingly offensive on so many different planes that I despair of explaining it to you (not that explanations are necessary, since you know very well how insulting and sexist this statement is, and, indeed, intend both).
I’m surprised that an accusation like that is permitted here. I am further surprised that a member of the bar would permit herself language like that. Anyway, I think you understand your statement very well, and intended it for the gross and disgusting and personal and sexist (and I’m a girl!) insult that it is, so trying to explain it to you is a waste of time, since the insult is deliberate.
Give me a break here while I go and throw up.
I am not gay, I am not transgender, I am not poly. (And I don’t have a “dick” just to make that clear in case anyone hasn’t figured that out yet. Yuck.)
I just think that we as a society should live and let live, and I don’t think that this is so inextricably difficult that we ought to just give up and abandon the effort and therefore continue to pound on the heads of our poly brothers and sisters.
My bad. Carry on, all you who disagree. Enjoy. I’m out of this this “discussion.” Good bye all. Take it off with my surprise. I thought this was a feminist site.
(I will not be surprised if mythago and others post even more gross and insulting posts than those that precede this one, but everyone should understand that those posts are pointless, silce I do not intend to visit this thread again. Enjoy.)
Yup, passive-aggressively implying that people are secret haters is just great manners, but using the phrase “dick-swinging” is beyond the fucking pale. (Yes, your handle is “Susan”. We get that you are probably a lady.) Also, I find that on the internet, when someone makes the “language!” argument, they’ve run out of things to say that are worth reading.
I know that Susan’s comment was not directed at me, and I’m still pissed off, that’s how bad it was.
Okay, I am hereby cutting off all discussion about Susan, dick-swinging, and who was and wasn’t rude and/or passive-aggressive. Susan has left the thread (for now, at least), so let it lie.
Further comments along those lines may be deleted.
So legalizing SSM may or may not lead to polygamy, incest, and/or dog-fucking, but it will DEFINITELY lead to increasingly bitter arguments on progressive blogs.
Myca @90: I certainly don’t think that the problem is insoluble. I do think that people who are serious about wanting poly relationships to have some kind of legal protection need to think about how to accomplish that – and no, I don’t have a magic solution either. Usually when I discuss this in poly circles a few people say “Oh, well, we can do the same thing with contracts!” and then QUILTBAG folks who are sick to fucking death of being told by straights that “you don’t need the M-word, you can have all the rights some other way” get shirty, and then we get into community property and presumed paternity and it just hella kills the conversation.
But you are right on the money: “OMG POLYZ!!!111!” will not happen, no matter how nicely you ask the 9th Circuit. It just doesn’t work that way.
I don’t think these are the enormous quandries or gotchas people are making out. First, as I have said, there are western countries which recognise polyamous marriage contracted abroad that face these problems, and seem to work things out just fine. Second, it’s crazy to demand we give one right answer to these hypotheticals when even with easy straight monogamous marriages different states and different nations would answer the same questions differently depending on where you married, where you live and jurisdiction. Third, courts already have some experience in this area from trying to find just solutions to bigamous marriages, so it’s not as unknown as you think.
I think Mythago hints as the right answer in #59. For all the ‘aren’t poly’s great, how trendy am I’ you get in these sort of threads, SSM marriage is a progressive western phenomenon and the trends that are leading to SSM are actually very anti-incestuous and polygamous marriage. The people who love GLBTQs absolutely fucking loathe the cultures where incestuous and polygamous marriages are legal. So the groups who are campaigning to get SSM legalised aren’t in the slightest supportive when it comes to that agenda, they’re absolutely on the prohibitionist throw the backward Muslims in jail if they try it here side.
1) Please indicate which countries have addressed polyamorous (not merely polygyny) and how they have done so. Noting that some countries have special handling of polygynous unions from other countries is not really enough detail.
2) Doesn’t the fact that the US has 50 different states make polyamorous marriage more, not less, difficult? But that said, Anglo-American law has certain commonalities.
3) “Bigamous marriages” involve sorting out which marriage is the real one, not managing multiple legal, coequal marriages.
4) You cannot really believe that “people who are/approve of same-sex marriage” and “people who approve of polyamorous marriage” are mutually exclusive subsets, much less that these groups exclude and hate all cultures where polygyny (not polygamy) is legal.
Seriously.
Literally everyone I know who (to my knowledge) is supportive of polyamorous marriage is also supportive of same-sex marriage. The correlation isn’t quite as solid going the other direction, but it is (once again, IME) certainly a greater overlap than the general population.
Also:
Hey James? Cite with evidence or cut it out.
—Myca
Elf, the lack of the other sex is not a sexual disability according to the homosexual emphasis in the argumentation and rhetoric of those who are SSM supporters (SSMers).
On the other hand the sexual basis for consummation (sealing or completing the agreement to become husband and wife) of the marital relationship is the sexual basis for annulment (no real marriage existed) and the sexual basis for adultery (grounds for fault and for dissolution) and the same sexual basis for the presumption that the husband will be the father (both biological and social and lawful father) of children born to his wife. That sexual basis is two-sexed. It is reflected in our marriage law. It sheds much light on the question, What is Marriage?
It is a type of relationship, as even Ampersand has acknowledged when explicitly referring to the public institution. It is not defined by particular instances nor by apparent exceptons but by its core as a type or relationship.
That is the point of considering the line drawn at adult incestuous relationships.
If the core definition is to make people related in a special way that is not possible otherwise, then, why is being related more closely than blood relations not de facto incestuous? Is the relatedness of husband and wife merely a metaphor that Ampersand has selected for the arbitrary purpose of excluding some legitimately loving and caring andotherwise good and decent types of relationships, perhaps? It des seem arbitrary given his pro SSM argumentation.
Your comment strongly suggested that SSM is not a sexual type of relationship, at law, in you view, given the lack of a legal requirement forcing participants to engage in sexual behavior together. You and Ampersand have pointed at disabilities to make that clear.
If it is so, then, the prototypical nonsexual sibling friendship cannot be justly barred. Likewise the usually nonsexual (adult) child-parent relationship. Or nonsexual groups of individuals.
As for sex equality: Within the husband-wife relationship there is the basis for sex equality given the partcipation of a man and a woman. Adding more persons of one sex does not increase sex equality, not in polygny, not in polyandry, as the anthropological record generally shows.
Excluding one sex directly precludes the basis for sex equality with a relationship – of two individuals or of a series of twosomes or of a threesome or moresome. The lack of the other sex cannot entail sex equality within the one-sexed scenario. Neither does it model sex equality whatever merits you might assign that scenario otherwise.
mythago, independent reality means it pre-exists the state; it is identifiable by its essentials or core (as can be deduced even from Ampersand’s mimickry of George’s argument). Other proSSM philosophers understood George’s meaning on this point. However in your view marriage does not have an independent reality, right?
Nte I am not asking about a religious reality but you can consider this in light of an irreligious or an atheistic perspective. If marriage does nothave an independent reality, how could it be accurately described even by Ampersand’s core definition?
Perhaps, Ampersand, you’d also acknowledge that in your proSSM view marriage has no independent reality? Your core definition is a put-on because you mimick what you tink is George’s put-on?
nobody.really, I had discussed polygamy because Ampersand relied on a count of cultures whereby marriage is clearly favored as two-sexed. His count stands against SSM.
George brought up the count of known cultures as a starting point (we need to start somewhere) when he said that
“Marriage’s independent reality is only confirmed by the fact that the known cultures of every time and place have seen fit to regulate the relationships of actual or would-be parents to each other and to any children they might have.”
Immediately after quoting that, Ampersand changed the topic.
Polygammy is generally not good for wives, mothers, their children, and the rest of society including unwed women, husbands, fathers, their sons and daughters, and unwed men. It distorts the law and societal regard for the institution of marriage.
Polygamy is a societal response to the core meaning of marriage but it is a flawed response. This goes back to the question, What is Marriage? Even where polygamy is allowed it is a minority practice; the vast majority of marriages are monogamous unions of husband and wife. Monogmous or polygamous, still two-sexed.
I have not argued that innovtion is impossible. But the opposite. Given the broad variability of marriage protocols across time and place, it is significant that the two-sexed basis remains. Before one improvises or innovates one needs a solid basis from which to work. Hence the challenge put forth by Robert George.
Grace Annam, thanks for readily acknowldging the recent novelty of SSM. Also, thanks for stating your view that marriage is merely a legal construct. The charge of unjust discrimination, however, becomes nonsensical within such a view. Robert George touched on that. Perhaps you’d counter by illustrating through adult incest or poly examples?
And, no, I do not argue that bigotry is good. Quite the opposite.
Ampersand, do you rely on a metaphor for your claim that marriage makes unrelated people related? If not, did you mean that blood tests would prove the married are in fact related genetically? I’d expect not. Related ‘by marriage’ would not suffice. What does marital affinity really mean and in light of your answer how is the closely related coule of husband and wife not de facto incest? It would seem, by your remarks, that the point is to make them closely related in a type of relationship that is very ambiguous regarding sexual behavior.
They become related though not born related. Like in adoption. They become closely related but not incestuously. And the incest concern is not about sexual behavior per se but indirect and speculative concerns about family harmony being disrupted by the friendship of siblings or of (adult) child-parent. In this way the cosely related would be denied what youdemand for unrelated gay persons who desire to become closely related.
Or somesuch. It is your core definition, proposed as the gay-neutral Version of the SSM idea, so pleas clarify.