Gabriel Rosenberg’s response to the “gay marriage will make it impossible to outlaw group marriage” argument, from MarriageDebate.com, deserves to be widely read:
Consider the following example. Ella wants to run for governor, but the state refuses to allow her on the ballot because she is a woman. She sues on equal protection grounds. The state argues that “governor” is by definition a male (a female would be “governess”). The state points out that the governor has always been a man and there are numerous statutes like “he shall be elected…” The court rules for Ella and changes the definition of governor to be gender neutral. Sometime later Ben and Jerry seek to run for governor jointly as one candidate. Like Ella they are refused and sue to gain ballot access. Did the Ella decision lead us on a slippery slope to co-governors?
Rosenberg is illogical.
First, the only principle invoked in the governor example is the principle of non-discrimination on the basis of sex. That’s it. Nothing more. But that’s not the only principle invoked in the gay marriage debate. In that sphere, one much more often hears arguments such as, “People ought to be able to structure their lives how they wish,” or “People ought to be able to marry where there is a loving relationship,” or “Such families already exist and simply must be treated equally.”
All of those principles would apply equally to polygamy. Polygamous families already exist — so why aren’t they treated equally? Polygamous families arise out of loving relationships — so why not treat such arrangements as marriage? Etc., etc.
Rosenberg’s second point: Rights attach to individuals, not to couples. But so what? All the polygamist needs to do is rephrase his claim. Rather than say, “I and Janie want to marry Sue,” he merely needs to say, “I as an individual want the right to be married to Janie and Sue at the same time, because I love both of them and the government should treat my desire equally.”
The slippery slope he’s responding to is allegedly caused by the decision in Goodridge – not by the debate as a whole. And he’s quite correct – the logic in Goodridge is not really applicable to groups.
“I as an individual want the right to be Governor at the same time Sue is Governor.” Nope, doesn’t work, even reformulated as you suggest.
Finally, the question isn’t “is there some brand of logic by which the court could favor pologamy?” The answer to that quesiton is always “yes,” just as the answer to “is there some logic by which the court could favor murder” or anything else is always yes. You can alwasy construct some sort of logic chain leading from “A” to “C,” after all; if the ability to form such silly chains was enough to make a decision illegitimate, virtually all decisions would be illegitimate.
The question is, “does this set a precident which will make it impossible for future courts to logically refuse polygamy?” And the answer to that, in Goodridge’s case, is clearly “no.” The Goodridge decision left in place many ways to distinguish gay marriage from group marriage.
Way to say what I wanted to say forst, Amp! But I will add that homosexuality and polygamy are inherently, essentially different things. A homosexual is just a type of person, like a man or a woman, or blue-eyed, or dark-haired, whereas a polygamist is defined by the act of polygamy. It’s a big, big difference, legally and morally. And any judge could figure that out, as sure as any competent council could argue it.
And if you really think that polygamous families arise out of loving relationships, then you should do some research into Colorado City, Utah, and the frequent rapes of teenage girls forced into marriage with middle-aged men who have been raping teenage girls for decades already. I’d say SSM is in stark, stark contrast to that.
I may be illogical, but my arguments are not.
In Goodridge the plaintiffs’ arguments and the justices’ ruling were all based on the principle (and constitutional wording) of non-discrimination on the basis of sex. All three of their constitutional arguments rested on this principal. They never argued, nor did the justices rule, that all loving relationships are entitled to marriage or that all existing family structures must be treated equally. The only principle reinforced by the decision was that the government must justify classifications based on sex.
As for my second point that rights attach to individuals. You are correct that it could be avoided by an individual seeking the right to two marriages at the same time. This is certainly the traditional notion of polygamy. I had demonstrated at MarriageDebate.com how the Goodridge decision not lend support to a lawsuit challenging the requirement that a person seeking a marriage license be single. Mark Tardiff then responded that “the problem of a second marriage license can be avoided by three persons presenting themselves together to request a license.” I refer to this as “group marriage.” Now you are trying to avoid the problems with “group marriage” by seeking a second marriage license. It’s a vicious circle. It also illustrates the problem of trying to defend against hypothetical lawsuits.
There is another way to extend the governor analogy to compare to the situation of a person seeking multiple marriage licenses. A state may have a provision that says a man (now read gender neutrally) may not be a governor and a state legislator at the same time. Howard, a sitting legislator, wants to run for governor. He is told he may do so, but he would he have to give up his seat in the legislature.
This is similar to the case Joe brings up. The law states he may not be married to Janie and Sue at the same time. He is still allowed to marry Janie, but he must first end his marriage to Sue. I think both Joe and Howard have weak cases in court and were not helped at all by Goodridge or Ella respectively.
Rosenberg: “In Goodridge the plaintiffs’ arguments and the justices’ ruling were all based on the principle (and constitutional wording) of non-discrimination on the basis of sex. All three of their constitutional arguments rested on this principal.”
I don’t think you’re reading Goodridge accurately. The opinion simply never even mentions discrimination on the basis of sex. There are two occasions when it mentions discrimination on the basis of sexual orientation, but not sex.
Rather, the opinion includes lots of high-flown language about “government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner,” and the importance of “shaping one’s identity,” and “protected spheres of private life,” and “individual autonomy and equality under law,” and “Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family.” There is no reason why these principles wouldn’t apply equally to polygamists.
But doesn’t civil marriage confer power-of-attorney, spousal benefits, pensions, etc. of the sort that could logically be extended to only one person? I mean, how do you get two people to share power-of-attorney?
How is it possible to refer to sexual orientation without implicitly referring to sex? When the court referred to discrimination on the basis of sexual orientation it meant specifically discriminating against a person who wished to marry a person of the same sex. As the court noted in footnote 11, “Nothing in our marriage law precludes people who identify themselves (or who are identified by others) as gay, lesbian, or bisexual from marrying persons of the opposite sex.” It’s like saying in the governor’s case that the state is discriminating against women who want to run for governor. That’s true, but it is just a special case of sex-based discrimination.
The court also specifically referred (in footnote 21) to the fact that Article 1 of the Mass Constitution prohibits sex-based discrimination and pointed to the concurring opinion of Justice Greaney. That opinion explained the obvious. The classification at issue here is one based on sex.
Yes, the court referred as well to the overlapping liberty interest being infringed here, the fundamental right to marry whom one chooses. Goodridge was not the first time a court has mentioned this right. The only question was whether the choice of marital partner could be restricted on the basis of sex. Imagine that the court in the governor hypothetical spoke of how importnat it was to be able to run for public office and serve in government. Such statements only emphasize the burden done by restricting that right on the basis of sex. They do nothing to help Ben and Jerry’s case to become co-governors or Howard’s case to become a governor and legislator at the same time.
That the Goodridge ruling dealt at the core with an issue of sex-based classification can best be seen by the remedy employed by the court. It removed the classification and read the marriage laws to be gender neutral–in fact other than who may obtain a marriage license the laws were already read to be gender neutral.
In Goodridge the court noted that sex based classifications were no longer relevant in its marriage laws. By defintion, marital based classifications (used to prohibit multiple marriages) are relevant in every law concerning marriage.
Tactically, arguments about how legalizing gay marriage will lead to also legalizing having sex with animals, or group marriage, or further gaudy possibilities, remind me of nothing so much as all the bizarre scenarios that would supposedly eventuate from the passing of the Equal Rights Amendment.
What mattered then wasn’t that there was any likelihood to them at all. What matttered was that they were easy to dream up, easy to present, and made clear, vivid pictures in people’s minds. Those are hard to dislodge. Refutations of them do best when accompanied by a better picture. Catchy songs help too.
It’s good to win the argument. It’s better to win the fight.