Wednesday, March 29, 2006

Gay marriage and polygamy

Folks who are critical of the suggestion that gay marriage will affect the way in which we view marriage may want to consider the impact that the debate has already had. For the first time, I suspect, in American history (outside of Utah), we are having a debate about polygamy. The reaction to HBO's Big Love (which self consciously echoes the gay marriage debate) is not "how awful" but "why not?"

Maggie Gallagher sees this as an example of the academic game of "hawks and doves". Increasingly, those committed to nontraditional lifestyles have become "hawks," aggressively insisting on not only tolerance, but approbation. Those who disapprove become "doves," keeping silent to avoid conflict. Hawks not only dominate doves; they turn doves into hawks.

In a related post, Gallagher writes:

Just as gay people were inspired and informed by black civil rights leaders, who had no intention of endorsing a movement to normalize homosexuality, much less gay marriage, polygamists are being inspired by the gay marriage movement to come out of the closet, and their arguments now strike many cultural elites (such as the editors of the New York Times Arts page) as plausible, worthy of being entertained, because of the way they echo the gay marriage arguments.

This in itself marks a cultural shift. It’s ultimate importance and power of course are yet to be determined. I don’t believe polygamy is an inevitable result of the gay marriage debate. But I think the push for gay marriage has already visibly altered our public culture of marriage. Things that were taken for granted, now must be discussed and defended.

She concludes:

I’m not saying you should be against gay marriage because of this. I am saying, you know, culture happens. Claiming that you can strip marriage of its one virtually universal rule (marriage is a union of male and female) and that cultural consequences are improbable, strikes me as well, head in the sand fantasy, the anti-intellectualism of intellectuals.


Seth Zlotocha said...

Pretty deterministic view of culture. Sort of like a set of dominos, huh?

Same-sex marriage leading to polygamy is nothing but a scare tactic used to prevent people from supporting legalized state unions for gay and lesbian couples.

For Gallagher to write "I'm not saying you should be against gay marriage because of this" is a flat out lie--to be sure, she uses it herself as a major justification for opposing same-sex marriage (her "rule of two," which you have used yourself).

The fact is same-sex marriage would involve an extension of marriage rights while polygamy would involve a complete alteration in the structure of marriage for everyone.

Polygamy is something that would affect all marriages by giving a spouse the legal opportunity to marry again and thereby fundamentally change the structure of the original marriage.

And for Gallagher to suggest that "culture" (which appears in her view to be monolithic and universal) will begin to open up to the idea of polygamy because of legalized same sex marriage is what's really anti-intellectual.

Rick Esenberg said...

Its not deterministic at all. As Gallagher says, hawks and doves is a game and the outcome of a game is never certain.

You can call it a scare tactic all you want, but the fact of the matter is that a debate about polygamy is starting in the wake of the gay marriage debate. Look at Big Love. Look at what's been going on in Canada.

Seth Zlotocha said...

The hawk and dove thing is a rhetorical ploy to make same-sex marriage advocates appear like the aggressors.

"Dove" is the last way I'd describe people like Ralph Ovadal or groups like Focus on the Family.

Debates about polygamy have taken place throughout history, regardless of a coexisting debate on same-sex marriage.

And the fact that pop culture has picked up on it in the form of a tv show says nothing more than that some tv exec thought a buck could be made on it. With ratings already dropping, even though it comes on right after the highly-rated Sopranos, that may not work out as planned.

But with all the attention the right is giving the show, who knows, it may just be able to make a turn-around.

Dad29 said...

Claiming that you can strip marriage of its one virtually universal rule (marriage is a union of male and female) and that cultural consequences are improbable, strikes me as well, head in the sand fantasy, the anti-intellectualism of intellectuals.

Seems more like a "will to power" problem; cf. Babel and the Tower for the rest of the story.

Seth's argument views the natural law as "deterministic." He's right: it is. We are born, we will die--extremely deterministic.

As to his "scare tactics" lingo, he's wrong: establishing a predicate of "licit" gay marriage leads inexorably to polyandry, polygamy, and other delights which cannot even be mentioned on this family-oriented blogsite.

But don't let the predicate get in the way--after all, Griswold had no further effects, right?

Seth Zlotocha said...

Deterministic law and deterministic culture are two different things.

And I don't think marriage is a natural law, anyway. In fact, there's nothing natural about the institution of civil marriage.

As for the argument that same-sex marriage will lead to the legalization of polygamy, I defer to analysis by legal scholar Joanna Grossman. Her discussion is in relation to the effects of the Lawrence v. Texas case, which overturned the Bowers decision of 1986.

In his dissent in the Lawrence case, Justice Scalia warned: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices."

In her article, Grossman contends that "the rights to commit adultery or bigamy look very unlike the right at issue in Lawrence (and thus would not generate heightened scrutiny at all)."

She rests this analysis on the fact that bigamy laws can be justified without a morality defense and that unlike private sexual conduct, which was the issue in Lawrence, "bigamy has never been protected by our society--to the contrary [it has] always been illegal, and a basis for marital dissolution."

Contrarily, Grossman maintains that laws barring same-sex marriage are vulnerable under the Lawrence decision since tradition can no longer be a justification for limiting privacy rights.

She explains in relation to laws barring same-sex marriage: "Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called 'morality' considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law."

So, in other words, it is completely justifiable to legally grant same-sex marriages without leading to the legalization of acts like polygamy, incest, prostitution, or any of the other claims made by Scalia and others making the slippery slope argument.

Anonymous said...

If you use Gallagher's logic that allowing gays to marry (which she's not against) may lead to polygamy the way the black civil rights movement lead to the gay civil rights movement, the conclusion is that we never should have had a black civil rights movement. How absurd and small minded.

Dad29 said...

Grossman wants to have it both ways.

The fiction of "gay marriage" IS a morals issue, too--just like bigamy.

And, by the way, 'civil marriage' is NOT 'natural law' marriage--but it is BASED on 'natural law' marriage.

That's why it is present in every culture, in every corner of the world.

Sorry to bring you the news.

Rick Esenberg said...

With all due respect for Professor Grossman, I don't see it as that simple. To say that we have never protected bigamy is not a distinction. We have never permitted same-sex marriage either.

Why is it clear that the prohibition against polygamy can be justified on non-moral grounds. On what other basis can we deny people the right to enter into a relationship that they freely choose. To say that polygamous relationships have often been exploitive is to 1) make a moral claim and 2)can easily be turned into an argument for recognizing polygamous relationships. If only multiple wives had the legal protections that marriage brings in, the exploitation would not have occurred.

Grossman is right that the Court said in Lawrence and Romer (and Casey) for that matter that morality cannot justify limiting some from of liberty that the majority was determined to protect, but it was an ill considered statement and cannot be expected to actually govern future decision-making.

Scalia is right there is no way to wall off his horribles without making moral judgments.

Seth Zlotocha said...
This comment has been removed by a blog administrator.
Seth Zlotocha said...

To say that we have never protected bigamy is not a distinction. We have never permitted same-sex marriage either.

But we have permitted marriage between two consenting adults.

Nothing close to bigamy has ever been legally protected in the US--to the contrary, it's an act that has been expressly held as illegal throughout the country and, in fact, serves a justification to end marriage.

And you don't think there's any way to outlaw prostitution, bestiality, and incest without using moral justifications? I can think of plenty.