Wednesday, August 12, 2009

The Gay Marriage Legal Trajectory Argument Revisited

After my polyamory post mishap the other day, a reader named Jude raised some good questions asking me to tease out the reasons why I think that the legalization of gay marriage would lead to the legalization of other forms of marriage, especially polyamorous or polygamous marriage. I'll summarize the questions and try to answer each one, because they're worth exploring. If you want Jude's full questions, follow the link above and read them in the comments.

1. Why is it that allowing marriage to be inclusive of same-sex unions will lead to a concept of marriage that is divorced from monogamy? Don't most advocates of same-sex unions still hold to a concept of love and marriage that contains some concept of fidelity as monogamy?

Because it's not so much a "why" question as a "why not" question.

Strictly speaking, there is certainly no logical connection between homosexuality and polyamory. But what gay marriage advocates often want to do is say, "Why is marriage between one man and one woman? Where did we get that from and who says it still has to be that way? Why not let it be between one man and one man, or one woman and one woman?"

If we allow that legal foundation to change, then it seems obvious to me that a polyamory advocate or a polygamous FLDS family say, "Why is marriage between only two people? Where'd we get that from and who says it still has to be that way? Why not let it be between more than two?"

So you start messing with basic principles, and you get statements like this (from this article) from a practicing poly, "Any people who wish to form a marriage with all the rights and duties of a marriage should have the legal right to. The spurious arguments of marriage being for procreation of children is (sic) ridiculous." It's a total why not question.

More thoughtful people might frame it another way, but the pro-gay-marriage cultural voice says, "Equality for all!" or "Down with Prop H8!" or whatever else. Why not? Why not equality for polys too? What foundational principles, what precedents will there be left that define 'marriage' as between two people instead of more? Or for that matter, why is, to quote the question, "monogamy" the only way to express "fidelity"? That's how they'll frame it.

2. While polyamorous "triads" may be clamoring for cultural acceptance, why should we think that they would gain it, even if gay marriage does? Numerous "non-traditional" forms of sexual union and marriage have tried for cultural acceptance and been laughed off (or shouted off) of the public stage, such as the man-boy love folks and beastiality folks?

Simple: because the one precedent that will surface as the basis for marriage will be consenting adults. Both of the examples given here and any other such laughable ones break that principle.

The American view of freedom is, "I should be allowed to do and say whatever I want with whomever I want as long as I/we are adults not harming others." So polys will say, "We're consenting adults. Why stop us from marrying if you want to?"

3. Why should we think that there would be an easy transition in legal precedent in the legalization of polyamory even if there were cultural pressure for its acceptance? In the case of gay marriage, it seems that the same legal precedents set for dealing with matters such as divorce, inheritance, etc., for heterosexual couples could be readily appropriated. But it is not so clear that this would be the case for polyamorous couples because of the addition of another partner. It seems that new forms of legal messiness would arise. For example, what sort of legal precedent would need to be set if one part of the triad wanted to divorce one spouse, but not the other?

One word: laywers.

It's not that it will be easy- I never said it would be. But polys and their lawyers will see this problem and address it. Perhaps a legally required pre-nup with extreme attention to detail would solve a lot of the asset issues. And since polys see themselves as one unit (not a series of units) one person's exit would mean the break of the whole unit. Perhaps you could simply have a, "One person's exit means that the whole marriage needs to start over." I'm not sure- I'll leave it to polys and their lawyers to figure out, but it doesn't strike me as an especially tough obstacle.

4. What standards other than just "being in love" are included in traditional heterosexual marriages that exclude homosexual (or other) unions?

Here is the heart of the issue. Why does the government define marriage as it does?

Well, we've always done it that way. When our laws were drawn up there could have been no consideration of the possibility that people would one day fight for gay marriage. So why were they drawn up that way?

I'm no expert, but I'd guess it has something to do with some widely held religious principles! That doesn't mean we must still define it that way, and you'll note that I've not said anywhere here that I'm against the government doing any of this stuff. Frankly, I'm still undecided. I lean towards wanting the state to grant nothing more than civil unions and allowing churches and other private institutions handle "marriage."

In any case, perhaps we should put this all the other way: why wouldn't the legalization of gay marriage lead to the legalization of poly marriage? What principles would stand in the way of that if you are one who thinks this idea is so crazy?

Because here's the thing: I hear this argument called extremist and unfair all the time, but the heart of most of that thinking is, "Well, because marriage is between two people regardless of gender." Or sometimes there isn't even that much.

Either way, it's not enough. Not all that long ago the idea that we would redefine marriage to include same-sex partners would have been as unthinkable and unpredictable as the idea that we would redefine marriage to include more than two people. I just don't get why some think that another redefinition is so crazy.

19 comments:

Jude said...
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Jude said...
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Andrew Faris said...

Jude,

I recognize how a progression works. If my whole argument was contained in those last few lines, then you'd be right.

But that's why I spent all that time answering all of your questions first!

Let me suggest that you asserting that the argument is weak without responding to any of my responses to you is assertion without argument. I'm no logician, but that's a fallacy too, is it not?

Andrew

Jude said...
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Jude said...
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Andrew Faris said...

Jude,

There doesn't have to be a logical connection between gay marriage and polyamory. There has to be a logical connection between the way they argue their cases.

And I'm saying there is. And come to think of it, maybe there are more logical connections that I can think of. For one, they both are expressions of sexual perversion. Second, they both are relationships in which every member is a consenting adult claiming fidelity to the other parties. Third, they both fight against cultural shame. Fourth, they both exist in a culture in which there is less and less shame for sexual perversions.

In any case, there is enough potential connection in legal precedents to carry over. And that's the most important issue.

More importantly, I think your reading of American culture is almost completely wrong. Why has there been so much cultural uproar against the Prop 8 vote? And note that the vote was very close, which is impossible if homosexuals were the only ones voting, since homosexuals comprise, if we're generous, 5 percent of the population. So obviously heterosexuals have banded with them.

And if some voices start clamoring similarly for polys, then I think the same thing will happen. I can't understand why you think otherwise.

Further, what about all of the charges that homosexuality is harmful to the homosexuals involved? People may say that about polys, and I'm sure they're right. But people have said that about homosexuality for a long time but few have seemed to agree. If polys can cite a few studies or offer even sophomoric arguments in support all under the name of "freedom and equality for all" then those issues will be overcome.

Consider how little the general population has really, seriously thought about homosexuality. Consider how tired the worst arguments are and then consider that they still get cultural play.

I don't know what more to say to you about this, but I hope that helps!

And by the way, no offense taken, but thanks for clarifying!

Andrew

Andrew Faris said...

Jude,

There doesn't have to be a logical connection between gay marriage and polyamory. There has to be a logical connection between the way they argue their cases.

And I'm saying there is. And come to think of it, maybe there are more logical connections that I can think of. For one, they both are expressions of sexual perversion. Second, they both are relationships in which every member is a consenting adult claiming fidelity to the other parties. Third, they both fight against cultural shame. Fourth, they both exist in a culture in which there is less and less shame for sexual perversions.

In any case, there is enough potential connection in legal precedents to carry over. And that's the most important issue.

More importantly, I think your reading of American culture is almost completely wrong. Why has there been so much cultural uproar against the Prop 8 vote? And note that the vote was very close, which is impossible if homosexuals were the only ones voting, since homosexuals comprise, if we're generous, 5 percent of the population. So obviously heterosexuals have banded with them.

And if some voices start clamoring similarly for polys, then I think the same thing will happen. I can't understand why you think otherwise.

Further, what about all of the charges that homosexuality is harmful to the homosexuals involved? People may say that about polys, and I'm sure they're right. But people have said that about homosexuality for a long time but few have seemed to agree. If polys can cite a few studies or offer even sophomoric arguments in support all under the name of "freedom and equality for all" then those issues will be overcome.

Consider how little the general population has really, seriously thought about homosexuality. Consider how tired the worst arguments are and then consider that they still get cultural play.

I don't know what more to say to you about this, but I hope that helps!

And by the way, no offense taken, but thanks for clarifying!

Andrew

Steve Hayes said...

I really think the term "gay marriage" is misleading. I am not aware of there ever having been any legal restrictions on gay marriage, though whether gay people have the inclination to marry is another question.

Jude said...
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Andrew Faris said...

Jude,

Regarding cultural readings, I suppose most of my thought is from being a Southern California resident during the Prop 8 fiasco. Generally the "Equality for all as long as adults love each other" mentality is pervasive here. I don't know where you're from, and if it's SoCal, perhaps we just talk to different folks or see things differently.

Regarding the harm issue, you're refusing to pay attention to something that I keep bringing up, namely, the all-important issue of consenting adults. Neither pedophilia or beastiality passes this qualification, and it is THE qualification in my opinion. If consenting adults claim loving fidelity toward one another, we shouldn't stop them from marrying. So the argument goes.

I'll be posting an article on gay marriage in the next day or two that I came across that I think will support this more.

Andrew

Johnnie said...

Andrew,

You keep coming back to this, and so clearly there isn't much sense in thinking that you'll see things differently. But I do feel compelled to say, one more time, that this argument simply doesn't work, for the basic reason that no laws can be debated or decided based upon what OTHER THINGS might take place. It's like arguing that we cannot pass a law requiring children to wear seat belts in cars because that could lead to children being forbidden to ride in cars (if they are so dangerous you need a belt, then how much better simply to avoid them altogether?) or we cannot pass a law requiring everyone boarding an airplane to pass through a metal detector because that could lead to a law requiring a nude search of everyone. (And I'm not sure you wouldn't find similar numbers in people advocating those things as advocating for legal polygamy--very small.)

It's certainly true that the Constitution would seem to allow at least a hearing of a legal challenge to the laws barring polygamy. As you say, one could make the argument for individual liberty in such matters between consenting adults. But would that argument truly be stronger if gay marriage, as opposed to civil unions, were allowed by law? It's hard to see it making much difference. Maybe a tiny bit, but not much. The "you gave it to them, now give it to us" argument is weak, given the vast differences between the two cases. (The only similarity is that both are something different from one man-one woman. True, but you cannot discount all those differences.)

For instance, the existence of civil union laws, the existence of equal protection, the existence of allowable adaption by gay couples, are all quite different from the situation polygamists currently find themselves in, not to mention the overwhelming difference in cultural acceptance. Whatever legal challenges are made in the future, after gay marriage passes, cannot just rise from a vacuum. And since you are talking about an ENORMOUS difference in numbers--numbers of gay couples vs numbers of people in polygamist relationships--it really seems silly to draw much of a connection between the two cases, and especially silly to fear that polygamy will actually become legal.

If (when) gay marriage is found to be a legal, civil right by the courts, and if (when) voters/legislators pass gay marriage into law, you can worry about the slippery slope and the next thing coming down the pike. But for now, I'll be happy to respect your arguments against gay marriage-as-such, but I cannot respect an argument against gay marriage-as-something else.

Andrew Faris said...

Well Johnnie, it took you longer to get in than I expected, but I'm glad you did. Good thoughts, truly.

Let me just note that I've not once in this post or any comment argued that this constitutes a reason to not allow gay marriage. That hasn't been the argument at all. To me, it just seems like the kind of thing that people need to be ready for if they are want to see the legal precedent become, "consenting adults who are in love" as the foundation of marriage in America.

So that's really my argument, namely that if people want to use those standards in support of gay marriage, then we have to be ready to take them the next logical step. Again, as I said to Jude (who has now deleted her comments for whatever reason- care to explain, Jude?), hopefully some of this will be clearer in a post that I should be putting up in the next day or two.

Andrew

Johnnie said...

I look forward to your next post on the subject, Andrew. And I appreciate that you are not, explicitly, arguing against gay marriage by making a claim that "people need to be ready..." for polyamory if gay marriage does come to pass. But I disagree--I think it's pretty clear that you are, in fact, making an argument against gay marriage by claiming just that: that we need to be ready for "the next logical step."

And I strongly disagree about polyamory being anything remotely close to a "logical" next step...particularly if we are talking about what will actually come to pass as opposed to what may come before a court somewhere, at some time.

In a comment to one of the deleted posts you say that both homosexuality and polyamory are "sexual perversions" and clearly you have every right to hold such an opinion. But I don't think you would disagree that holding that homosexual sex is a "perversion" is no longer a strongly held majority opinion among the citizens of the USA, the medical community, the legislators, or the courts...and since we're predicting future events, I'll go on record to predict that the percentage of those who hold such a belief will continue to shrink.

That doesn't make you wrong--if you believe homosexual practices are perversions, that's fine-- but it makes your connection pretty tenuous when used to predict a future of legal polyamory.

If the polyamorists and polygamists think they have a legal case and the public opinion and legislative support to push through legalization of their lifestyle, they will go for it, regardless of what happens next in California or any other state, or in the Supreme Court, in terms of gay marriage. And if they don't, they won't.

My main point is still that using any kind of "slippery slope" argument against a different pending law is flawed. "We should allow schoolkids to bring AK-47s with armor-piercing bullets to school because otherwise my farmer grandpa in Kansas will have to give the .22 rifle he uses to keep varmints out of his corn field..." is just weak. I look forward, therefore, to your next post.

greenyuppie said...

As you rightly point out, argumentative precedent has a strong legacy in American law. Thus, we should feel compelled to examine how this argument has expanded marriage eligibility retrospectively, rather than simply conjecture about future implications.

It was not until 1967 that persisting miscegenation laws were overturned in the 16 remaining states (from a peak of 31 states in 1940). Looking at how these laws were defended, thus, can be useful. The defense of Virginia’s ban on interracial marriage argued:

“[T]he State's prohibition of interracial marriage …stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage, or the prescription of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.” (Loving v. Virginia, quoting Virginia Assistant Attorney General R. D. McIlwaine).

Employing this same argument places your own credibility on a slippery slope. Your following comment regarding the connection between homosexuality and polygamy suggests your position may be influenced by other established conclusions:

“For one, they both are expressions of sexual perversion. Second, they both are relationships in which every member is a consenting adult claiming fidelity to the other parties. Third, they both fight against cultural shame. Fourth, they both exist in a culture in which there is less and less shame for sexual perversions.”

You are making many broad claims that either cannot be defended objectively (Pt. 1, Pt. 3) or are broad generalizations (Pt. 4). Is it fair to say the principal source of opposition to same-sex marriage is grounded in Biblical interpretation, and that employing these other arguments comes from an inclination to address opponents objectively?

I am reminded of a quote by Ronald Stone, (one of Reinhold Niebuhr's last teaching assistants at Union Theological Seminary in New York City), who summarized Niebuhr's political approach:

"Far better to have good political ideas and a way to carry them out pragmatically than to win votes through pious protestations. Religious language should be inspired by love but translated through the vocabulary of justice into the political realm."

Flipping consciously or unconsciously between objective and spiritual frames of argument complicates your grounds for legislating Public Policy. It is on this point, that I would appreciate further elucidation in your next post (as opposed to buried among the comments). That is: Why must Christians enter the muddled territories of trying to define heterosexual marriage objectively if they feel they are unconditionally justified by Biblical interpretation?

Andrew Faris said...

I don't know how to make this clearer at this point: the big issue is legal precedent. The legal precedent that gay marriage advocates have argued for is that consenting adults who are in love should be able to marry. In their case, they say it's true regardless of gender. The poly case would be that it is regardless of number. THAT is the connection. So let's just be as clear as possible about that.

But Johnnie, you can't say that a slippery slope is always invalid. Surely it's a case by case basis. The reason that your gun analogy doesn't work is because the two don't actually lead to each other, so there is no slippery slope. They don't share a central legal precedent that defines the rest of the debate.

Greenyuppie seems to have understood that point, which I appreciate. I suppose I might just need to be clearer.

And greenyuppie, I'm thinking at some point I'd like to write a post that takes apart why I think the anti-gay-marriage and anti-interracial-marriage comparisons are invalid.

Your final question is a good one, and one that, frankly, Ian would probably be better trained to take up than I. He has mentioned in a past post that we run into some trouble on this issue since Christians think of marriage in some fundamentally different ways than do non-Christians, which makes it harder to have a discussion than we sometimes realize.

Either way, I think one thing you're missing is that I am absolutely working from some guiding biblical principles. That's because this is an evangelical Christian blog. I believe in the authority of Scripture.

That said, truth is truth. If the Bible says that homosexuality is a sexual perversion (let's not debate it in this comment- just go with it for a minute), then it is either right or wrong. Homosexuality is or isn't a sexual perversion. I think that there is good evidence for that claim objectively too. I've not defended it here, but maybe in some future post I will.

At this point I won't answer your final question because I don't understand it. I think the problem is that you and I define "objective" rather different, so perhaps if you could expand on that more, I'd be able to help you more. I don't think that "objective" and "not-biblical" are synonyms in this case. The Bible makes objective claims to truth. It is either right or wrong, but it is not outside the bounds of "objective".

Hope some of that helps.

Johnnie said...

Andrew,

Your point is clear, but it is also wrong. It's wrong because, mainly, the "legal precedent" you mention is NOT the argument advocates for gay marriage make, not at all. True, of course, they do include "consenting adults" in their language, because of course any marriage law must include language that both parties must be a) adult and b) consenting. But that isn't the same as "precedent." The argument isn't that "other consenting adults get to marry, and so should we." The precedent has to do with the equal protection clause of the constitution, which says that if the state extends rights and benefits to people, it cannot exclude other people from those rights who are members of protected minority (etc) groups. The state benefits married people in all kinds of ways--tax breaks, property ownership, wills, hospital visitation, and so on, and so the legal argument rests there: gays partners are being denied benefits that hetero partners receive. "Consenting adults" is a part of a marriage definition, not the legal precedent for one.

The legal argument against gay marriage suggests--not unreasonably--that a) civil unions can provide these benefits and/or b) gays are not being prohibited from marrying--that right extends to all--they are just prohibited from marrying each other. The inter-racial argument was the same: blacks can marry, they just can't marry whites, and so their rights are not being abridged. When those laws were struck down because the courts decided that those rights were, in fact, being abridged because restricting the choice of a marriage partner was tantamount to restricting marriage. So that's a weak argument...the legal-benefits-are-provided-via-civil-union argument is much stronger, so long as states follow through and make that so.

At the time of Loving v Virginia, as greenyuppie's quote shows so well, the slippery slope folks were afraid of the polygamists coming through this same door. And sure, as we've said, a case may be brought up somewhere, at some time, using the "precedent" of the inter-racial or gay marriage decisions to argue that the rights of polygamists are also being denied.

But the fact that that hasn't happened in all the years since Loving--when it was very much on the mind of the VA Asst Attorney General--should suggest that it isn't all that likely to happen now either. My gun control cases are, I do think, just as closely connected as your hypotheticals. A major part of the inter-racial and gay marriage equal protections arguments is that these marriages would be exactly the same as the receiving-benefits marriages between hetero couples, and clearly the polygamist argument would not be able to make that same claim...a major roadblock. A gay man asking his workplace to provide the same partnership health benefits to his partner as to his hetero married colleague is surely more easily justified than a polygamist asking for those benefits for his 25 or 225 wives.

And of course the other major flaw in your connection is that it only deals with gay marriage becoming law through legal challenge. We've already seen states pass laws through their legislators and in 2012 I predict we'll see California pass a law through public referendum. Your "slippery slope" doesn't even begin to apply their, unless you actually believe a state legislature or a state's citizens will be further down the slope to legalizing polygamy once they do pass gay marriage. I don't.

Johnnie said...

Sorry to reply to myself--I wish there were an "edit" option here--but here's a (final? maybe?) thought from me:

If "consenting adults" is the legal precedent polygamists are waiting for, there is no reason for them to wait for gay marriage to pass, is there? I mean, if the legal precedent is that consenting heterosexuals get to marry, then they have all they need to mount their legal challenge on the basis of a "consenting adult" precedent. If gay marriage passes the change in the definition will have to do with the biological "sex" of the partners, a change that wouldn't seem to help the polygamist case in the least, unless we are talking about gay polygamists. What the polygamists want is a change in the number of partners...and the first change (sex) would not seem to have very much at all to do with that. (Unless you fear a slipper slope on the order of, yes, the gun control argument--one change will invariably lead to other changes. Banning AK-47s in the subway will lead to banning squirrel rifles in the countryside...)

Andrew Faris said...

Johnnie,

Thoughtful responses as usual, even when I still indeed disagree.

I'll only respond to your last bit: the issue is that since there is only one legal relationship that we call marriage in most states in America, i.e. two consenting adults, one of which is male, one of which is female.

So there are four aspects of the definition: (1) the people must be consenting; (2) the people must be adults; (3) no more or less than two adults can marry, (4) one party must be male, the other must be female.

Gay marriage advocates argue that the male/female aspect is not only discriminatory, but arbitrary. Why a male and female only? Why not a male and male or female and female?

That sets the precedent for people to say that the rest of the definition is arbitrary? The poly folks will say, "Why only two people?"

Gay marriage sets the stage for that argument. The two aren't necessarily connected- I've not said they are. I recognize that people will still see good reason to argue against popular marriage. But in the mass mindset of our culture, which seems all the time to be taking the next more progressive step, that won't matter.

And that's part of why I think the poly agenda didn't come forward as much after Loving: the culture wasn't as ready. But look at Mohler's article I linked to last week (before I pulled the post)- it did show that polyamorists are clamoring for cultural acceptance as a practice that isn't abnormal or wrong. Homosexuals went through the same step, and as Mohler did aptly point out, much of this flows from sexual revolution/freedom type thinking.

So what I'm saying is that homosexuals are paving the way in each aspect for more acceptance of more positions. I suggest that one change to the definition of marriage will lead to others not because the types of sexual variations have so much in common, but because the stage will be set to keep playing with the definition. After it's been done once, why won't it happen again?

That's a long-winded answer, but if nothing else I really want to be as clear as possible, whether or not you agree.

Andrew

Andrew Faris said...

Oh yeah, and I think I'm going to close this thread and I don't plan on posting on this issue again any time soon unless there is some really good reason to.

I'm just getting tired of it. So the one I put up today shall be my last!

Andrew