Monday, August 17, 2009

What if This Article Was About Polyamory or Polygamy?

By chance I came across a Wall Street Journal article titled "Gay Marriage and the Constitution" the other day in a museum exhibit discussing freedom. It is an op/ed piece by David Boies. Boies is one the chairman of Boies, Schiller and Flexner, LLP, an apparently major law firm that has been involved with, among other cases, United States v. Microsoft and Bush v. Gore.

The article turns out to be remarkably relevant for the discussion here over the last couple days about the gay marriage progression argument. The heart of that discussion, as I have labored to constantly restate, has been the issue of legal precedent. You could ask the question this way: why should or shouldn't we allow homosexuals to marry? My reading of the pro-gay-marriage camp is that, above all else, if consenting adults are in committed, love relationships, then why should they not be allowed to marry?

And as I have argued in the past, I understand that point of view from a state perspective. What reasons do state or federal lawmakers have, if any, to not allow people to marry? Until recently, the reason has been that we have defined marriage as being between one man and one woman only. Why do we do it that way? Well, because we always have.

So here is my challenge to those involved in this discussion: as you read the article, can you find any argument used by this high-powered lawyer in a universally respected newspaper that could not be applied by polygamists and polyamorists to their own cases?

I'll say from the beginning that there is one, and it is in this quote: "But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters." This is a remarkably bold claim based on remarkably scant evidence. But even if you agree with Boies on this claim, I hope you will see that this is not really the heart of the legal argument so much as a way to fend off one objection.

The central claim, rather, is in the opening sentence of the third paragraph: "The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it." If I was a lawyer for the poly cause, I would heartily agree and add, "So why not the people you love? What's so different and wrong about that?"

As older, more traditional generations continue to pass and younger, more progressive ones rise up, does anyone really think that our culture would find much reason to disagree?

18 comments:

Ryan said...

I think you're grasping at straws.

With your logic, perhaps marriage should be abolished completely, since the idea that two people may legally consummate may eventually lead to just about any kind of "sinful" behavior.

I say you forget the Polyamory argument (straw man) and start addressing the Homosexual argument for what it is, and not what it isn't.

Andrew Faris said...

Ryan,

Besides the further "sinful behavior" (your words, not mine, by the way) I mention, what other behavior would my logic lead to?

Andrew

Ryan said...

I don't understand your question, but I don't think it's relevant to your discussion, just another sidestep.

Your main point is: "If I was a lawyer for the poly cause, I would heartily agree and add, 'So why not the people you love? What's so different and wrong about that?'"

The thing is, you are not a lawyer for the poly cause, nor are the lawyers for the poly cause making that case.

It's an enormous jump for you to make a case that isn't even being made by the proponents you purport to represent, but adding to that the idea that your fantasy situation is a good argument against gay marriage... Well, it just disappoints me. Surely you have something better?

Anybody can make any case based on set judicial precedent, that's obvious... but that doesn't mean they can make a reasonable case. Right now, this country has a reasonable case for gay marriage. When the polyamorous marriage case emerges, you can deal with it then... but you can't use an invented possible future situation in order to make a case against an established present issue. For now, how about you stop making straw man arguments and address gay marriage question on its own merits.

If you can.

Ryan said...

Ah... just found Johnnie's comments on your last post on this issue.

He says it better and with much more detail than I wish to put into any of my comments here.

In my honest opinion, I think the Christian community really needs to find a better defense argument if they are going to continue to be closed-minded about this issue.

You haven't found it yet. Is it too much to hope you'll one day see the light?

Andrew Faris said...

Ryan,

You said, "With your logic, perhaps marriage should be abolished completely, since the idea that two people may legally consummate may eventually lead to just about kind of 'sinful' behavior."

I'm asking you quite simply what other behaviors you have in mind, since I have only argued for two (i.e. polyamory and polygamy, which would go together for the sake of this discussion). Surely there must be some, if my logic is as open-ended as you claim it to be.

And let me restate that I have nowhere in these posts argued against gay marriage. If you can find me a quote in either post or in any of the comments that says otherwise, I'll retract my statement.

Andrew

Ryan said...

Ah. Ok. Probably a bad way to phrase it, let me try again...

Ok, you believe the logical step from homosexual marriage is polyamorous marriage. I say, why stop "connecting" there? Why not figure out where homosexuals got their ideas from? Why not follow the rabbit trail back to heterosexual marriage, which may be responsible for the idea of state-sanctioned sexual relationships?

You take your logical step to the "next level" but you don't follow it back, logically. If you were truly consistent, we could say even hetero marriage shouldn't be allowed, because it may cause people to think about all sorts of crazy things, interracial marriage, gay marriage, polygamy... etc. who knows what else?

Interesting, because as far as "progressive" ideas go... polygamy or polyamory, as you'd call it, aren't exactly new ideas. The jump in logic to assume that GAY marriage is the thing which will set it off is obviously fallible, otherwise, perhaps you'd quit sidestepping and start addressing what you're really getting at.

And I have to agree with Johnnie, just because you haven't explicitly wrote it, doesn't mean gay marriage isn't the obvious point of all your posts on polyamory. It's fairly transparent, you don't have to try and fake it. In fact, I'd respect you more if you just came right out and said it... this is all you have.

If you don't have any decent arguments against homosexuality, you can always let it go... You don't have to disguise it as a "logical step" post and say it has nothing to do with gay marriage, when it so clearly does.

Bruce said...

Somebody remind me: why is it in the state's interest to get behind marriage. (Yes...it's for the children.)

Johnnie said...

Look. Again. Let's say I live in house on the corner of a cul-de-sac. And I live with a woman to whom I am legally married by the state. And next door to me live two men who are in a loving monogamous relationship. And next to them live a man and a woman who are, like me, married. But also in that house live three other women who are also in a sexual relationship with the man and who all consider themselves to be in a committed polygamist relationship.

Does the state have a problem with any of that? So long as the adults are consensenting, it does not. That guy can fill his house with as many women as the house will hold, and break no laws whatsoever.

Andrew, your argument continually ignores the fact that the gay marriage argument is NOT about consenting adults having consensual relationships. Polygamists and polyamorists are not going to use Boies's arguments because his arguments do not apply to the case they would have to make. If they were arguing that the state should allow them to live together, then yes. But they would have to argue for the state to extend the rights and benefits it extends to married couples to married groups--which involves changing the state-definition of marriage in a much more profound and wide-reaching way than extending those rights and benefits to gay couples. Boies's case wouldn't go nearly far enough in making the case of why that should happen. Or why their rights are being denied, since, in fact, the only rights being denied are those of the third and subsequent spouses.

Certainly you can read in Boies and in all kinds of other legal discussions of the gay marriage case certain threads that might be used in a legal case for polygamy. But as Ryan and others have pointed out, so what? The lawyers for the poly case cannot simply say, "well, gays got it so now you have to give it to us" because the differences are so immense. They would have to mount a very different kind of case, one that, so far, you have not been able to imagine.

Johnnie said...

Well, shoot, again I sent it off to quickly. (When the Cards win and the Cubs lose, AND I get to listen to Vin call the game...well, I just get too excited.)

Anyway. Back to my cul-de-sac. Now you say there is "scant evidence" that gays are born that way, but most experts would disagree with you there. And let's just say, for the sake of argument, that the evidence is convincing enough for the courts. So my wife and I enjoy all the benefits the state gives us for marrying. (My wife and I don't have to have children--we could be elderly newlyweds, or medically unable to procreate, or just choose not to, the state doesn't care. Bruce's point is beside the point--even if the state encourages marriage for "the children" it extends those rights equally to all couples, childless and childbearing alike.)

And my neighbors, the two men, cannot enjoy those benefits. The legal question is, especially if the evidence that homosexuality is not a choice is strong, is that fair? Or is the state treating them unfairly? That's it. That's all there is to this case.

For the polygamists to say THEIR rights are being abridged...well, again, they have to mount a completely different case. They are consenting adults? The state says, good for you, go at it. They want property rights and custody of children and health benefits and legal protection as heirs and next-of-kin? They also have to argue that the state is treating them unfairly, just like my first set of neighbors do. But I think you can surely see that the cases each of these folks has to make is vastly, vastly different. They may start out somewhere in the vicinity of one another, but soon enough they will become very, very different.

Han said...

Perhaps you will consider this better reasoning for defending the traditional understanding of marriage at:
http://embracing-controversy.blogspot.com

Han said...

Well shoot, I can't get the hyperlink function to work, so you have to cut & paste it in. Well, maybe Andrew will link to it and comment on it someday.

Johnnie said...

The blog that Han links to is simply wrong. The "rights" that the author dismisses as beside the point are, in fact, the entire point.

It may be that "Marriage’s true purpose is not about "rights," but rather primarily about the welfare and raising of kids / teenagers..." (although of course there would be much disagreement with that statement as well, historically, since "property" could make a pretty strong claim to what marriage was originally "about") but even if we grant that, the "original purpose" has nothing to do with anything. Perhaps Han, and this author, would like to see the US govt grant "marriage" only to couples with children, and when those children are grown, the "marriage" would end. That would be one way to do it, sure. But since the govt has decided to grant benefits and privileges to those couple who marry, regardless of children, the question, and the only question is, are gays in monogamous relationships being denied those rights unfairly? Some say yes, some say no, some say those rights can be given without using the term "marriage", and so on.

Especially since gay couples can and do have children, this blog is just absurd in its wrongheadedness.

David W. Congdon said...

I really don't care about whether the gay marriage arguments lead in that direction, but I'd like to take this conversation in a different direction by asking:

Why shouldn't legal protection be given to polygamy/polyamory?

Polygamy is practiced in cultures all around the world. Why shouldn't they be legally protected? I won't accept Scriptural arguments. We're talking about a pluralist democratic society. Appeals to sacred texts and traditions is inadmissible.

Now I happen to think that the premise of this entire post is a foolish "slippery slope" red herring. But let's set that aside, because it seems to me that the basis of the post is mistaken from the start.

Any thoughts?

Norman Jeune III said...

I have to say, this is a great thread. I love all the heated discussion. And I'm sorry Andrew, but I have to say that I think David and Johnnie are absolutely right in so far as they point out the legal distinction that this discussion entails. I think that David captured that point rather succinctly in his comments.

Great discussion on a heated topic.

Johnnie said...

David,

Although I'm no legal expert, I'll try to provide one answer to your question: why not offer legal protection to polygamy?

For one thing, depending on what you mean by "legal protection," polygamists are, in fact, offered just that (as are homosexual couples...or threesomes for that matter.) And here, I think, this dovetails nicely with Andrew's main mistake: the "consenting adults" argument which is NOT precedent for marriage but IS precedent for all kinds of laws that we can call the "sodomy laws". I don't know if there are states that still outlaw "sodomy" but we know that in the past there have been all kinds of laws making all kinds of sexual practices illegal, and that most of those laws are now off the books because the courts say that "consenting adults" can do pretty much whatever they want, sex-wise, in private. Homosexuals can live and practice homosexuality, and so, too, can polygamists live and practice polygamy. There's no law saying they cannot.

So the question isn't whether or not to make "groups of people of mixed-or-same genders living sexually together" legally ok. It IS legally ok.

The question is whether or not to confer the benefits and privileges--mostly economic--of state-sanctioned marriage to those other folks: homosexual couples, polygamist clusters, whatever.

They all have "legal protection" to live their lifestyle. But I think that it's quite clear that the homosexual COUPLES have a stronger, and much different case, when they apply for those benefits, than do the polygamists. Because those rights and privileges are written expressly for couples--if my workplace had to grant medical insurance to my spouses, no matter how many I had (just to mention one of thousands of similar such things), that would have a vastly different impact on the economy (again, just to focus on one thing) than bumping homosexual couples up to the "official spouse" category would.

The thing is, all kinds of laws (tax, inheritance, property ownership, etc etc etc etc) were written with COUPLES in mind. Yes, we can imagine (or fear) those laws being re-written for polygamists. But the gays are saying: THESE are the laws AS IS, and it is unfair for us to be excluded from these benefits. That's a different deal.

And please remember that consenting adults, mix-and-match 'em as you want, can call themselves "married" and do whatever they want in most parts of this country--that really isn't what we're talking about.

greenyuppie said...

In a previous comment you stated:

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".

I understand that you declined to answer my question based on differing denotations for the word ‘objectivity.’ Nonetheless, I think we can all appreciate that Biblical objective truth alone is insufficient grounds for public policy decision-making. Recognizing that you are absolutely working on the authority of Biblical principles makes me question whether you would apply the same rigor of analysis to law and constitutionalism, as you do to Biblical understanding. At worst, I think you may feel that legal and constitutional standards can be comprised for the sake of Biblical truth.

Thus my [needlessly] modified question remains:

Why must Christians enter the muddled territories of trying to define heterosexual marriage in secular/legal/nonreligious/civil terms if they feel they are unconditionally justified [in denying same-sex marriages] by Biblical interpretation?

I would like to highlight a remark from President Obama’s ‘Call to Renewal’ speech, not only to invoke his infallible and illuminative presence to guide us out of this desolate blogosphere (read: tongue in cheek), but also because I think it summarizes one aspect of the crux for Christians in the United States wrestling with limits in legislative matters.

Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God's will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.

You seem to be somewhat dishonest with yourself and readers about the oblique elephant in the room by stating (earlier to Ryan) that “…I have nowhere in these posts argued against gay marriage.” I believe it would be more mature to fully disclose you motives up front, as most of the rest of us already have. (My disclosure: I consider myself an advocate for equal marriage rights in the gay community).

Also, please forgive that I forgot to sign my last post.

-Andy F., Chicago, 'Land of Milk-n-Honey', IL

Andrew Faris said...

Sorry it took so long everyone- yesterday was a busy day, and I just didn't have time.

A couple things up front:

1. In fact, I'm not opposed to gay marriage for the exact reasons that my good friend Andy mentioned below: I'm just not sure that there is great constitutional reason to say as much in terms of legal foundation. Thus this post awhile back (though I should note I've rethought some of that, you can see at least where some of my leanings have been). So Ryan and Andy, you're quite wrong to be frank.

2. That said, I understand why you got there of course and it still leaves the question of why I would post this stuff. And the biggest issue for me is that I hate the language in the article posted in this original post. I hate that the logic put forth is in large part, "How can you possibly legislate against the confirmation of two people's love?" If that WSJ article was an isolated incident of that logic, I'd probably not care. But it's not, and we all know it. The media and general public voice is, "You bunch of anti-love, discriminatory Christians."

My point, which should have been clearer (I realize it now, much thanks to the many thoughtful responses), is that you have to do something more than simply, "It's about love." That won't fly, because it's too broad and it allows more. And if that is the driving force, then I still think my slope argument works.

3. The thing is, as has been noted by others in these comments, homosexuals can basically have all of the same rights that married couples have except for the term "marriage". Hospital visitation, adoption, and so on- civil unions provides these with minimal if any exception. Which means that the clamor is as much for the significance of the term as anything.

This is where you have made some great points Johnnie. Jude started to say a few things about the difficulties that poly marriage would bring by nature of having more parties, and Johnnie continued that. Again, I think it's entirely conceivable that lawyers could work that out. I think cultural support and communication would be the key in all that. But I concede gladly that Johnnie has raised some worthwhile questions on that.

4. I also still don't think the cases as far apart as you all do, for what it's worth, but it probably depends on where you start from. And again I'd argue that the cultural tide is a liberalizing one that says, "If consenting adults are in love, then why shouldn't they be allowed to marry."

For instance, as Johnnie says, polys are accorded marriage rights, but only for the first two parties. But isn't that like saying that gay men are accorded marriage rights, just not to other gay men?

And it's certainly not fair to say that changing the definition of marriage from one man and one woman to one man and one man or one woman and one woman is not a massive change. It is. Historically speaking, it's beyond massive to the point of unprecedented. So I'm saying, though it would take time and be difficult, why is it so hard to imagine another massive change?

And maybe that's where some of the hang-up is: if you believe that changing the definition of marriage to include homosexual marriage is not that big of a change, then I think I understand more why you disagree with me.

I think it's a huge change and makes the definition of marriage go from something totally unmovable to something that can be tinkered with if only we can work out the financial details. And I'm saying that with the right laywers and some cultural groundswell in their favor, polys could make that happen.

Again, thanks for all the thoughtful comments and I wish I could get to all of them, but it's just too much.

Andrew Faris said...

Now I'm closing this thread. I'm tired of this discussion and have nothing more to add.

Except this: Johnnie, I get really excited when I hear Vin too. I consider it a tragedy that my kids will never get to hear him call a game. There's no one better.

Andrew