Polygamy and Polyamory

by John Holbo on July 8, 2015

What does our esteemed CT commentariat make of this Politico pros-and-cons of polygamy back-and-forth between deBoer and Rauch? (DeBoer’s response to Rauch here.)

Rauch makes one correct legal point that deBoer does not acknowledge (unless I missed him doing so somewhere): namely, it seems certain that legal bans on polygamy in the US can, hence will, have more success passing rational basis tests than anti-SSM measures enjoyed the last few years. Basically, you can tell a coherent, plausible story about how polygamy is probably on-balance bad for society, hence unwise to permit as a point of public policy. One of the things that dragged down the anti-SSM folks in the courts – to a lesser extent, in the court of public opinion – was their inability to articulate any non-silly (non-theological) theory of how SSM marriage could harm society/children/third-parties. Absent that, rational relations to legitimate government purposes failed and DOMAs fell like dominos. (Thus it came to pass that Judge Posner included this pithy sentence in an opinion: “Go figure.” Indeed, the state patently had not.) Rauch is doing way better with the social science survey data he cites.

But I’m not sure how far this gets him. ‘Rational basis’ is sort of misnomer, after all. The quote that gets rolled out on these occasions is from John Paul Stevens (paraphrasing or requoting Thurgood Marshall): “The Constitution does not prohibit legislatures from enacting stupid laws.” Even so, some sorts of stupid are disallowed. Rational basis reviews thus tend to have a Far Side-ish quality. Point being: Rauch is right that bans on polygamy are, at worst, the right kind of stupid, for barely passing legal muster. But morally we aspire to better than that.

It seems to me deBoer is on stronger ground when we cut to the moral chase. If marriage is a human right but some types of unions between consenting adults are disallowed just on utilitarian grounds (per Rauch’s argument) … well, then it looks like it wasn’t such a right, after all.

Adding some US law back in: if marriage is a right on ‘I’ve just got to be me!’ equal rights and dignity/due process/privacy grounds (in strict legalese: ‘it’s Anthony Kennedy’s world, we’re just living in it’) … well, then it looks like some folks are more equal, hence more equally dignified, than others.

In sum, there is moral/legal tension between arguing for SSM on rights grounds and against polygamy on utilitarian grounds.

This problem is not solved, though somewhat salved, by pointing out that there are excellent utilitarian arguments for SSM. People still believe the rights arguments, after all. (If you believe P, and P -> (Q & R); and if you believe U, and U -> Q; it is no good pretending that P does not commit you to R, merely because U does not commit you to R. Get it?)

There are also problems with Rauch’s utilitarian argument, considered on its own terms. It’s not unreasonable, but more speculative than he admits.

Let me just point out one feature of the future of the polygamy debate that deBoer sees but Rauch’s backwards-looking (historicist) perspective misses. The thought probably starts simple: hey, if you are going to let two women marry, it seems arbitrary not to let three women marry (or three guys). Now we are on a slippery slope to letting one guy marry two women. Polygamy only for same-sex n-tuples would be an arbitrary restriction of the institution of polygamy. It would discriminate against straight folks!

But there is, potentially, a significant bump on the way down this slide. It isn’t implied by the shift from the same- to opposite-sex cases, but we tend to assume it when making the shift. When you hear about three women wanting to get hitched you figure: three lesbian lovers. But when you hear about a man taking two wives you don’t assume the wives will be (bisexual) lovers of each other as well as of their husband. They are not all equals. You guess that the women will be subordinate spokes around a central, patriarchal hub.

Thus, there is a sense in which, historically, heterosexual polygamy can seem further from modern (egalitarian) norms of heterosexual monogamy than homosexual polygamy might be from homosexual monogamy. Hence an increased sense of the normality of homosexual marriages may tend to lessen our sense of the moral distance between monogamy and polygamy. And rightly.

That was way too abstract. Let me try again.

Polygamy, historically, has been (so far as I am aware) man-to-women, one-to-many. I don’t think it has ever been the case that the many wives of a single husband have been deemed married to each other. If the husband of 10 wives dies, the result has never been a SSM consisting of 10 females. Polygamy has been not just patriarchal but heteronormative. So once you add same-sex relationships to the mix, as legal and socially normal options, you open up historically unprecedented, potentially more egalitarian possibilities. Polygamous unions have never been, but could be, polyamorous unions in which everyone involved is equally married to everyone else involved. This sort of many-to-many polyamorism is, in practice, weird to most people. But, in terms of its individualism and egalitarianism, more readily conformable to modern notions of what marriage is about than, say, patriarchal polygamy, which may seem to require features we regard as not just weird but unjustifiably asymmetrical: it treats equal parties to a contract as non-equals. (We can argue about it!)

Rauch himself points out this puzzle as to whether a future model would follow past patterns: “Think about it. Does a polygamous license marry all the wives in a polygynous combination to each other, or each separately to the man?” But then he just emphasizes the tangle. He doesn’t pull the thread through. Obviously they might all be married to each other. That would be … very new. So who’s to say it would be bad, just because the bad old past was?

The historical, polygamous norm plainly does not track at least some patterns of potential, polyamorous practice; hence, the history of polygamy is not necessarily a predictor of the shape of potentially polygamous things to come.

I think it is very hard to say what shapes and sizes polyamorous relationships might typically assume, in the future, if social stigma against all that were reduced. So it’s hard to say what polygamy would look like, in the future, as a next-step legal outgrowth of how socially acceptable polyamory shakes out, then settles down to raise a family.

You can imagine a Brave New World of fully legalized polygamy in which there there is a resurgence of very traditional (old school, Old Testament!) polygamous unions. One man, many wives. Hierarchy, patriarchy. Also, the lite-version, á la Sister Wives (which I have never watched, so what do I know?) Suburban normal, except for the how the guy just has lots of wives. And a simultaneous emergence of highly novel social forms, normally involving some degree of polyamorous bi- or homosexuality. (‘Novel’ because it would be new for this to be regarded as normal, and sanctioned as ‘marriage’, not because no one is trying it yet.) I’m not saying the fact that legal many-to-many unions would be new means they would be good; just that it’s shaky to assume they would have to be bad in the way the bad old model is assumed to be bad.

Polygamy might turn out to mean a lot of different – some very old, some very new – things. Rauch complains about how complicated it might get. But if people decide what people really want (wanted all along) is a variety of sometimes complicated arrangements … well, it wouldn’t be the first time the law got complicated because people got complicated.

This still leaves at least one of Rauch’s utilitarian concerns untouched: what if a few alpha males end up scooping up a disproportionate number of females, fostering discontent – hence social unrest – among males unable to find mates?

I guess I’ll rest my case by circling back to my first argument: if you are attracted to ‘marriage is a right’, as a premise, speculations about social harms at the margins don’t seem like such powerful trumps. Also, if polygamy might mean a lot of things, utilitarians shouldn’t be in any great hurry to condemn the lot. More responsible to sort through.

Most people probably have a gut sense, one way or the other, about whether a future of legal polygamy would be, on the whole, humanly happier or not. I confess I don’t have such a sense (not because I am cognitively above base, gut-brain workings. I just seem to lack one in this case.) I can imagine it going different ways. It might turn out that even if people become tolerant of polyamory/polygamy, this won’t catalyze formation of lots of new social forms. Or resurgence of ancient ones. Maybe modern folks won’t pick poly, except around the margins, as they are doing now. Or maybe we will be surprised at how many of our grandkids come up poly. If so, maybe more people will actually be more able to find stable relationships that suit them, personally. Maybe our grandkids will see the past as a place in which poly pegs were painfully mashed into mono holes. Or maybe Rauch’s predictions of inequality and instability will come true and any increases in poly preference satisfaction will be offset by negative social externalities. Or both!

Lacking confidence in my capacity to predict this future, what I have left – my sympathy for rights arguments – inclines me to the poly side

This post feels unclear. Well, blame my jetlag. That’s the only explanation.

{ 286 comments }

1

Dylan 07.08.15 at 12:59 pm

Man, I just wasted a lot of time thinking “this is bizarrely coherent and intelligent for a John Quiggin post.” Not unclear at all!

2

Eric 07.08.15 at 1:11 pm

On one influential view, having a right to x means that we cannot prevent people from x-ing for certain types of illegitimate reasons. Once these reasons are excluded, we may still have legitimate reasons for preventing people from x-ing. This is an attractive view, because it allows us both to rule out certain forms of overbearing, unfair or discriminatory treatment and to engage in regulation based on utilitarian or interest-balancing considerations. In the case of ssm and polygamy, we might say that ssm is unacceptable because it can only be justified using unacceptable reasons (anti-gay animus, controversial theological reasons, etc.). As you note, however, there do seem to be legitimate reasons to limit polygamy. Whether these reasons are sufficient we can and no doubt will debate.

3

kent 07.08.15 at 1:36 pm

First, thanks for linking these, which I had not seen. I’m struggling to find a place where I disagree with you.

Here’s one thought.

“If I proved that segregated schools produced better test schools, would Jon Rauch say we should resegregate them? If social science demonstrated that interracial marriages had poor demographic outcomes, would Rauch favor recriminalizing those marriages? I certainly hope not.”

These are from DeBoer’s response. And they made me say, hmmmm. First, it’s interesting that he goes straight to examples of racial injustice — the place where liberals (rightly) feel most guilty and so we rush immediately to say no no no we don’t mean that!! Second, even with that rush in my head, I instantly said to myself: how much of a difference are we talking about? I think a whole lot of black parents would want schools re-segregated if it would mean their kids would have a clearly superior chance of a better life.

Let’s try with a non-racial example. 18 year olds have the right to vote. But let’s imagine that social science clearly proves that waiting until age 21 produces better lifelong engagement with the voting process, higher voting rates, and superior government resulting in, let’s say, improved medical regulation that would inexorably lead to a 50% drop in the rate of cancer. How many of us would want to raise the voting age? (All of us?)

OK, so that’s an easy one for the side of “some rights CAN be trumped by utilitarian considerations.” But this is definitely a “play it at home” game. Make up your own, and let’s see where it goes.

4

afeman 07.08.15 at 1:47 pm

I wish “polygamy” weren’t the go-to catch-all term for this, for obvious reasons.

5

reason 07.08.15 at 1:51 pm

I’m just a bit puzzled here. I thought marriage was a legal arrangement. I can never remember entering a three way contract (but I don’t have much to do with partnerships – so maybe it is just my ignorance). So the issue, it seems to me has to do with the exclusivity of the contract (you have to break it, to make another one). Doesn’t that change the whole argument?

6

JanieM 07.08.15 at 1:54 pm

From Wikipedia: In common law legal systems, a contract (or informally known as an agreement in some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them.

(emphasis mine)

7

Ben 07.08.15 at 1:58 pm

“In sum, there is moral/legal tension between arguing for SSM on rights grounds and against polygamy on utilitarian grounds.”

But we restrict rights all the time on utilitarian grounds? Like, every single one?

8

cs 07.08.15 at 1:59 pm

From a practical point of view, there must be a lot of laws on the books about the rights of spouses, that would have to be changed if there could be more than one spouse.

9

steven johnson 07.08.15 at 2:13 pm

A democratic premised on the equality of its citizens has an interest in contracts where all the parties are treated equally. In a marriage contract, the husband and wife should exchange services on a parity basis. A husband and wives (no one is talking polyandry, even if de facto polyandry may actually exist in real life,) cannot exchange services equally, hence is undesirable…and I’d say unenforceable without arbitrary and unlikely assumption that wives will be satisfied with part-time husbandly service, while the hubby can only be satisfied by full-time wifely service.

But I doubt that a principle of equality will be regarded as acceptable grounds for denying state enforcement of polygamous relationships. There is a deep-rooted animus against the notion of equality, at least among the serious thinkers.

As for utilitarian considerations, I’m afraid that their weight is first, proportional to the precision and accuracy of the cost-benefit analysis. Second, it is reliable only when the benefits can be transitively ordered.

10

Consumatopia 07.08.15 at 2:20 pm

Do SSM supporters really have to agree that there is a right to marriage? For a lot of us, SSM wasn’t about freedom, it was about equality, and the right we were defending wasn’t a right to marriage, but a right to equal protection of the law.

DeBoer’s argument that “consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty” leads to strange places. Should we permit traditionalists to enter into marriages in which divorce is not allowed, or only allowed with the husband’s consent? Or why should this argument stop at marriage–why shouldn’t it apply just as strongly against laws prohibiting labor contracts below minimum wage? DeBoer is building his case for polygamy on libertarian principles, so why shouldn’t those principles force him to accept libertarianism more broadly?

(Also, it’s a little bit ambiguous what “legalize polygamy” means. If he’s just saying that we should stop prosecuting consensual polygamy as bigamy then I would have to agree, but I’m guessing he’s advocating full legal recognition of poly marriages.)

11

marcel proust 07.08.15 at 2:33 pm

Something up between you and Belle, John?

12

G 07.08.15 at 2:43 pm

Poly relationships already are, and have been for awhile now, pretty normal among gay and queer communities. It’s an accomplished fact at this point, not a speculative or imaginary matter.

13

reason 07.08.15 at 2:48 pm

I still think the point has been missed about exclusivity. In western lands the marriage contract is exlusive (i.e. you can only have one concurrently). Otherwise what is the point of it (the commitments are to some extent anchored in law, they aren’t open ended)? Once you allow polygamy, you have exclusive contracts running in parallel (since they won’t necessarily be made at the same time). Seems like a joy for lawyers and hell for everybody else. Imagine a double or triple divorce.

14

reason 07.08.15 at 2:50 pm

So in summary, it seems to me the alternatives are not polygamy extending marriage, but polygamy ending marriage as a special sort of contract (and making it a normal contract).

15

Z 07.08.15 at 2:58 pm

I found Rauch’s essay so intellectually weak it is borderline offensive. (I mean “when a high-status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real-world pattern), a lower-status man gets no wife.” Really? Could you be a little more sexist?)

That said, the most salient fact about the legal recognition of polygamy is, it seems to me, the one de Boer also glosses over the fastest. Whether we approve of it or not, the legal recognition of polygamy is nothing, legally speaking, like the extension of the marriage to same-sex partners: the latter involves in principle (and often in practice) a one word change in the law (if that), the former is (for better or worse) a completely new institution. For many key legal aspects of marriage (who holds parental authority, who owns what, who inherits what from whom, who is legally responsible for whom…), it is just not true that division by 2 is the same as division by n. For better or worse (again), marriage is a relatively fixed lump of legal rights and obligations which broadly corresponds to monogamy (in the social sense, at least). Most people are sufficiently happy with this lump. I don’t think the relatively fixed lump corresponding to polygamy exists yet (excluding the ludicrous suggestion that it be imported from an other anthropological universe, as Rauch intimates).

Emphatically, this is not an argument against the legal recognition of polygamy, it is just an observation that I’m not quite sure what “legal recognition of polygamy” is supposed to entail precisely, and I doubt many people, including polyamorous people wanting legal recognition, do.

I do believe that if many people start desiring a sufficiently homogenous bundle of legal rights and obligations codifying polygamous relationships, they will eventually get it either through a completely different legal framework or through ad hoc stipulations with their lawyers (the US seems to like this kind of arrangement a lot, at least in TV shows). In fact, I’m sure some of them more or less do already. Why not, after all?

16

kent 07.08.15 at 3:13 pm

A complicating factor:

(A) I think there are probably relatively few people (maybe a couple percent – likely fewer than the number who are gay – but of course that’s just a guess) who truly feel that they can only be happy in a polyamorous relationship of some sort – any sort – so long as they can have more than one person to love.

(B) I think there are a very, very large number of men who think it would be pretty awesome to be able to have 2, 3, 4 or more women available to get them laid any time they felt like it – particularly if they could have the social sanction of ‘marriage’ to define them as mainstream people rather than deviants.

It feels to me like deBoer is talking about (A) and Rauch is talking about (B).

Is it possible one group might have such rights and the other not? (Does motivation matter if we’re talking about “rights”? Obviously not. And yet….)

I honestly don’t know how to think through all this.

17

kent 07.08.15 at 3:17 pm

Fwiw: Z @ 14, I disagree with the 1st paragraph (while agreeing wholeheartedly with the rest of @14): Rauch is making an empirical point about the societies in which polygamous marriage has been tried to date. He’s not saying it has to work that way, or ought to! He’s not advocating for sexism, just pointing out that sexism has historically been the outcome of polygamy.

(I have not reviewed the literature to know whether or not Rauch is correct about this; only making a point about the nature of his argument.)

18

Anderson 07.08.15 at 3:39 pm

Being married entitles one to certain benefits and legal advantages, most if not all of which were designed with a duo in mind.

3-way polyamorous relationships may or may not fit well into that, but another question is, why stop at 3? If me and my 12 good blokes want to enter into a polyamorous baker’s-dozen union, why can’t we?

And once we’ve agreed that, yeah, 13-way polyamorous relationships don’t have to be allowed, then it becomes a matter of legislative line-drawing … much like the statutory-rape age line … that will pass rational-basis review.

… I have no objections to polyamory myself. I keep thinking I’d love to go to L.A. and write a magazine article about the D&D-playing porn stars I follow on Twitter who live in a 3-way polyamorous relationship.

19

Elf Sternberg 07.08.15 at 3:45 pm

Rauch has a right and wrong of the “alpha male” debate, although how he managed to get all the way through it without using the terms “The Johnny Carson Effect” or “hypergamy” are beyond me. (“Hypergamy” has become a rather pejorative term, thanks to the so-called “men’s rights movement”; they use it as a slur against any woman who, as they see it, won’t put out to them because she’s seeking someone of higher status.)

He has the right of it in that it’s a genuine concern; societies did often organize around that principle, on the grounds that at the time men had the majority of capital resources. But he also ignores what the rewrite of our divorce laws have done. The “Johnny Carson effect” is such that wealthy and powerful men can and often do attempt to lock up the best reproductive years of a number of women, only nowadays they can only do it through serial monogamy. (I suppose one could argue that Trump and Gingrich have followed a similar path.) And given that our criminal classes are made up mostly of men who have no reproductive opportunities…

I’m sure this is a fascinating topic for sociologists and anthropologists. I have no idea how all this intersects with the so-called “release valve” theories of pornography (the rather well-documented phenomenon that sexual assault rates fell rapidly as broadband Internet access reached a given county in the US), but it’ll be great popcorn viewing.

The voting age game John proposed chillingly leads (at the margins) to a Logan’s Run scenario, now that I think of it.

20

Z 07.08.15 at 3:48 pm

@kent Rauch is describing the main problem of polygamy (“the problem” in his words) as the fact that “lower-status men” (nice choice of words here) do not “get” (ditto) women because they have been “take[n]” (ditto) by “higher-status men” (ditto), devotes 8 lines to “the problem” then notes in two lines that polygamy is not good for women “either”, and even there he first mentions “competition” between women before (at long last) acknowledging the elephant in the room: assuming sexism as he does (so historically), the problem of polygamy is that it has treated women as chattel. That really rubbed me the wrong way.

But you are totally right that it was an unnecessary distraction on my part to harp on this, and I guess there is a generous reading in which this was an exposé of the mind-set of (traditional) polygamous people, not a reflection of Rauch’s opinion. Anyway, I apologize for it.

21

Tyrone Slothrop 07.08.15 at 4:36 pm

@11: Something up between you and Belle, John?

FTW.

22

bianca steele 07.08.15 at 5:09 pm

I’m just so surprised that John H. is taking so seriously the most moronic form of the rights-based argument that since same-sex marriage is now the law, multiple marriage must be also. (I haven’t read Rauch’s piece yet, but he’s usually sensible, and I’m wondering why he took that seriously too.)

It was said that marriage was a human right because the culture believed pairing off for life was psychologically necessary for mental health. Kids are raised to believe they’ll fall in love and get married, and then some kids fall in love with people of the same sex and they miss out. (There were also arguments about the consequences of pairing off without legal marriage benefits.) There aren’t, to my knowledge, many people who believe that others’ well-being can depend on their being in a marriage with three or five people in it. No one is told by their family that they’ll only be really grown up when they take a third spouse into their marriage (except for small groups of Mormons and maybe some Muslims).

If it’s about rights of association, like, on the other hand, then it’s about saying people should be able to form their own little communities and have them considered marriages: they pool their incomes and so on, and get special tax benefits. Sure, if you think it’s about “rights” in a certain sort of way, this is eminently logical–but a version of the actual argument that is deformed and abstract to the point that it shows the person arguing doesn’t really care about the people who are affected by it, and doesn’t really understand what’s at stake. It’s like, “hey, what are people talking about? oh, it’s about rights, I know what those are!”

In between, somewhere, there’s an idea about sexual freedom. But I don’t know of any laws (maybe they do exist somewhere) against polyamory itself. It’s just as legal for multiple people to live together if they’re having sex as if they’re not.

23

alkali 07.08.15 at 5:10 pm

Z @15: For many key legal aspects of marriage (who holds parental authority, who owns what, who inherits what from whom, who is legally responsible for whom…), it is just not true that division by 2 is the same as division by n. For better or worse … marriage is a relatively fixed lump of legal rights and obligations which broadly corresponds to monogamy … Most people are sufficiently happy with this lump. I don’t think the relatively fixed lump corresponding to polygamy exists yet … Emphatically, this is not an argument against the legal recognition of polygamy, it is just an observation that I’m not quite sure what “legal recognition of polygamy” is supposed to entail precisely, and I doubt many people, including polyamorous people wanting legal recognition, do.

I think Z is correct in identifying this practical consideration as the most significant obstacle to legal recognition of polyamorous unions.

Z poses an empirical question about what PA people want in terms of legal recognition about which I have wondered myself. Other than the privilege of registering with the city clerk, is there a consensus among PA people as to what legal recognition should entail?

Here are three questions that come to mind (one could generate others):

1) Will legally recognized PA marriages or unions survive the death of one member? If not, how will the rights and obligations of surviving members be resolved?
2) Suppose a member of the PA marriage/union has a child by another member. Do all members of the PA marriage/union have parental rights and obligations as to that child, including in the event of the dissolution of the marriage/union?
3) How is it contemplated that employer-provided health insurance would work?

It seems to me that if there is significant dispute over the answers to these questions, or if the answers challenge the premises of the questions in significant ways (e.g., “Well, first, we’ll have to have single payer health insurance …”) then it is highly unlikely that we are going to see legal recognition for PA marriages/unions.

24

Marshall 07.08.15 at 5:16 pm

Personally, I really really wish marriage weren’t about sex. If people want to form random domestic partnerships to promote healthy economy, enhance tranquility, and (optionally) see to the raising of children, tax advantages could be allowed, whyever not. On the other hand, in some (currently outlaw) libertarian circles the Bull Moose gets to marry all the nubile youth, and that is something society has a valid interest in preventing.

25

gianni 07.08.15 at 5:17 pm

Historically, we see a link between polygamy and a strong anti-homosexual sentiment. Preventing sexual contact/relations between the wives was taken seriously, and among some wealthy (polygamous) men (even today), the ideal is/was to have different wives in different houses.

I think in a world where homosexual relations are far more normalized, polygamy is a fairly different phenomenon than the traditional model. [Getting away from the whole ‘women as property’ thing also helps with bringing polygamy fully into the category of polyamory as well.]

On the practical level, however, I am not sure that marriage laws written with 2 person couples in mind are easily extended to multiple person partnerships. Especially in a situation where the ‘n’ is quite large, we might expect certain individuals within that group marriage to play more of a ‘hub’ role than others, and thus this person’s death leading to some challenging legal questions as the relationships between other members fragment. Other challenging questions would be divorce proceedings and custody rights for group marriages.

Polyamorous unions don’t seem like a big deal when you assume that they all will work out smoothly, yet this will hardly be the case. These practical questions have no bearing on my views of polyamory from a moral perspective, but I can see how someone actually involved in the ‘nitty-gritty’ would find this whole thing to be a huge headache.

26

gianni 07.08.15 at 5:23 pm

bianca @ 22 makes some very good points, but the last bit “It’s just as legal for multiple people to live together if they’re having sex as if they’re not” misses the mark a bit.

There are documented cases of polyamorous groups facing discrimination and being barred from certain living situations that would have been open to a 2 person union. Just as with homosexual unions, there is a significant amount of space between ‘X is legally permissible’ and ‘X behavior is legally protected from discriminatory action’.

27

bianca steele 07.08.15 at 5:24 pm

OK, I have heard dual career couples (in circles where domestic help is uncommon), say “we need a wife!”. How about this for an Atwood novel: Hagar Marriages, where an affluent couple take a lower-status woman, not currently encumbered by marriage, to do menial tasks and raise their children with her own? No messy SSI! No need to give days off!

28

bianca steele 07.08.15 at 5:26 pm

Gianni,

Then those laws ought to be fixed. But within living memory, for example, a mixed race couple was legally barred from cohabiting (not simply discriminated against), when it was perfectly legal for them to simply share rent.

29

John Holbo 07.08.15 at 5:27 pm

“But we restrict rights all the time on utilitarian grounds? Like, every single one?”

That’s why I said ‘tension’, not ‘contradiction’. Here’s an analogy. If you shout ‘fire!’ in a crowded theater, that is direct, immediate and unambiguous enough in its harm that it trumps free speech rights. But few (these days) would argue something like this: if you let X publish Y, then (based on historical data) a lot of people will adopt attitude Z, and if R happens as a result of Z (more historical data) then things will go sort of badly for U …. Admitting this sort of argument for marriage, as opposed to publishing, seems to indicate taking the right to marry whom you choose (if they also choose you, and everyone is a grown-up) a bit lightly in at least some cases.

So yes, utilitarianism can and does trump rights, but not usually the sort of utilitarian argument Rauch is offering, which is speculative and highly indirect, and working by way of the possible actions of third parties (whom we might hold directly responsible for their possible actions if we don’t like them, rather than holding the first party culpable for them in advance, in effect.

“Something up between you and Belle, John?”

I’m just glad to see her (when she finally gets home!)

“Whether we approve of it or not, the legal recognition of polygamy is nothing, legally speaking, like the extension of the marriage to same-sex partners: the latter involves in principle (and often in practice) a one word change in the law (if that), the former is (for better or worse) a completely new institution. For many key legal aspects of marriage (who holds parental authority, who owns what, who inherits what from whom, who is legally responsible for whom…), it is just not true that division by 2 is the same as division by n.”

This is true but it seems to me relatively weak as an ethical argument, although stronger as a prediction that the law will be slow to take this path, if it ever does. It is certainly possible to have contracts between 3-parties, although 2 is kind of standard. It wouldn’t make a lot of key legal aspects more complicated than they already are for divorce. A lot of people sort of have two households already, often with two sets of kids. Divorce is a sort of slow-motion polygamy, for lots of folks, as Elf says. The legal system lurches through. But, while we are on the subject of divorce, it’s true that divorce in the context of a legal 3-party marriage contract, in which everyone is (or may be) married to everyone, could get very complicated. If you divorce one of your spouses, do you have to divorce both? So forth.

Everyone would need to see a lawyer before they got married, maybe. And plausibly this would be a good point for the state to get out of the marriage business – make it entirely a matter of private contract – rather than involving itself more deeply in the kinds of complications that aren’t really its competency, probably.

“3-way polyamorous relationships may or may not fit well into that, but another question is, why stop at 3? If me and my 12 good blokes want to enter into a polyamorous baker’s-dozen union, why can’t we?”

Presumably the only thing stopping you would be the difficulty in getting everyone to want to sign on the dotted line. As in D&D – to use your example – it gets increasingly hard to get everyone together, the bigger the number of members of the party get.

30

John Holbo 07.08.15 at 5:32 pm

“I’m just so surprised that John H. is taking so seriously the most moronic form of the rights-based argument that since same-sex marriage is now the law, multiple marriage must be also.”

For the record, I don’t know why Bianca thinks I am taking seriously the argument that since same-sex marriage is now law, multiple marriage must be also. Was there something in the post that suggested to you this seriousness on my part, Bianca?

31

John Holbo 07.08.15 at 5:37 pm

“But I don’t know of any laws (maybe they do exist somewhere) against polyamory itself.”

https://en.wikipedia.org/wiki/Brown_v._Buhman

32

bianca steele 07.08.15 at 5:40 pm

Yes there’s a reason, which I’d rather not name (though you do, and AFAICT reiterate). I know there has long been a faction in the pro SSM camp that thought, for example, “Big Love”, would make people more accepting of SSM–though really it was deeply critical of heteronormativity, IMO, and in the end couldn’t persuade itself that Bill Paxton was a better man than Harry Dean Stanton (the backwoods cultist). But that doesn’t mean name checking a faction makes a nonmoronic argument.

33

L2P 07.08.15 at 5:41 pm

” It is certainly possible to have contracts between 3-parties, although 2 is kind of standard.”

Now you’re entering metaphysics. Generally, multiparty contracts aren’t really between 3 parties. Instead, they are a set of interlocking 2-party contracts. A will give something to B, B will give something to C, and C will then give something to D, and D will give something to A. A and C don’t interact at all other than being part of the chain. It’s not always entirely clear, under contract law, what rights and obligations A and C actually have to each other, even with well-drafted documents.

That’s why polygamy is very different than same sex marriage. The rights and obligations between two parties are very different than the rights and obligations between multiple parties. There’s a number of different models (AB and AC, or ABCA, or A=>B and A=>C, or A<=B and A<=C, and so on), before you even get into what those rights and obligations actually are.

Marriage is a legal relationship, not an ethical one. It might be perfectly ethical to have multi-party relationships, but there's certainly no reason to say that those multi-party relationships must ethically have the same status as two-party relationships.

34

gianni 07.08.15 at 5:41 pm

bianca
For sure. At least in the US, there are a fair number of really odd rules still on the books regarding cohabitation and gender, number of persons, etc. I recall that my university could not offer housing for sororities that did not have a male wing on at least one floor because of one of these rules. Some real antiquated stuff.

And as for “within living memory” and “a mixed race couple” … I don’t even….
these things are fraught enough in the here and now that I prefer not to think about how things were in recent history.

35

John Holbo 07.08.15 at 5:51 pm

“Yes there’s a reason, which I’d rather not name”

Well, it’s hard to argue against a reason that’s a secret! (Maybe I have secret arguments against the secret reason? Who’s to know?) Basically, you seem to be assuming that I’m assuming that, for every good moral argument, there must be, perforce, an existing, equally compelling legal argument. That would be a endearingly Panglossian, ‘there oughta be a law’ view of how the law works. It is certainly not my view.

36

John Holbo 07.08.15 at 6:00 pm

“Marriage is a legal relationship, not an ethical one. It might be perfectly ethical to have multi-party relationships, but there’s certainly no reason to say that those multi-party relationships must ethically have the same status as two-party relationships.”

It’s a legal relationship with ethical aspects. And one of its ethical aspects, according to a lot of people, is that you are allowed to have the one you want, so long as the relevant parties consent. So that gives you a reason – perhaps not a sufficient one, but a real ethical reason – to allow multiparty relationships, despite an inevitable amount of legal complication. You are quite right that a 3 party contract is really an interlocking of 2-party contracts. Well, then, make the three party contract that.

37

bianca steele 07.08.15 at 6:06 pm

I think you’re trying to trick me into naming what I’m determined not to name (or even, frankly, read, on account of my own secret counter arguments). Nope, I won’t do that! It will have to remain a mystery, on both sides.

Not sure what you mean by moral argument in this case, anyway. I think it comes down to not understanding what “right” means, or not caring what “right” means. Whether he not caring is an intellectual or a moral failing, I don’t know for certain. But if it’s not the latter, argument seems a bit pointless. I think the point has been passed when the answer to that question is in doubt. But YMMV, I guess, if you see a point to pretend arguments that aren’t arguments.

38

Marshall 07.08.15 at 6:18 pm

@bianca steele 27
No tedious commute with shopping on the way home! No getting kicked to the curb some Tuesday before lunch! An equity share! … works for me, I think, best of a world that does have rich and poor in it.

39

John Holbo 07.08.15 at 6:25 pm

“Not sure what you mean by moral argument in this case, anyway. I think it comes down to not understanding what “right” means, or not caring what “right” means. Whether he not caring is an intellectual or a moral failing, I don’t know for certain.”

If you honestly don’t know – or might not know – what ‘right’ means, I guess you could start here.

https://en.wikipedia.org/wiki/Rights

Of course, if the trouble is that you don’t care …

In all seriousness, Bianca, I am mocking you (I do not deny it!) because I honestly (I am not kidding!) have no idea what argument you are attributing to me. I know you think it is very moronic. That’s a clue! But not enough to set me on the track. If you want to cure me of my wrong notion (and why else mention that I suffer from one!) you simply MUST point out its flickering shadow against the wall of the cave in which I dwell. There is no other way to start me on my slow, painful path up into the light.

40

Z 07.08.15 at 6:30 pm

This is true but it seems to me relatively weak as an ethical argument,

Did I even suggest I was making an ethical argument? If so, it was not my intention. All I’m saying is that SSM was an extension of something that exists, whereas legal recognition of polyamory requires the invention of something new. For the record, I don’t believe there are good, compelling ethical arguments against this invention (though I also don’t believe that a society is necessarily ethically compelled to create new legal frameworks to legally sanction individual choices).

Everyone would need to see a lawyer before they got married, maybe. And plausibly this would be a good point for the state to get out of the marriage business – make it entirely a matter of private contract – rather than involving itself more deeply in the kinds of complications that aren’t really its competency, probably.

Somehow, I think the reverse course is much more probable in the near future. That is, because the vast majority of people are apparently satisfied with the actually existing state-sanctioned lump called marriage (or with nothing at all), states will stick to it and leave to the small minority of person who wants something else to figure what they want for themselves and get it through ad hoc legal means. I guess you can call the outcome of this arrangement a marriage, if you insist upon it. Now I may have watched too much HBO, but I had the impression that wealthy Americans could get there already (legally settle in advance many species of financial and familial concerns, for instance).

Also, while we are on the topic, it would greatly please me if Americans realized that viewing marriage as a species of contract is not a legal universal, so that unless all this discussion is meant for the US context only (which is fine), the comparison between marriage and (other) contracts is not obviously relevant (it is, of course, also not obviously irrelevant).

41

John Holbo 07.08.15 at 6:37 pm

In the interest of friendliness, this case from Bianca is a good one: “How about this for an Atwood novel: Hagar Marriages, where an affluent couple take a lower-status woman, not currently encumbered by marriage, to do menial tasks and raise their children with her own? No messy SSI! No need to give days off!”

It would no doubt be absurd if polygamy turned into a scheme for skirting labor laws. But this is the sort of thing that would be relatively easy to prevent, legally. (Good dystopian novel, bad legal hypothetical, then.) There is obviously a massive downside risk for the schemers even absent obvious legal reforms to specifically prevent this. No one would want to get dragged into divorce court by a domestic helper suing you for 1/3 of what you are worth. Sure, you got that prenup, but who’s the say it’s going to hold now that she’s got a good lawyer, eyeing his small sliver of the pie? Modern marriage comes with all sorts of rights and claims and presumptions of equality. It’s therefore not your go-to candidate for a scheme to deprive workers of rights and claims by ‘marrying’ them.

42

Dean C. Rowan 07.08.15 at 6:40 pm

John Paul Stevens, note the spelling.

43

Matt 07.08.15 at 6:40 pm

“Heterosexual men with insufficient redeeming qualities to attract a mate will become dangerous unless we ensure heterosexual women have no other option but to marry them” has to be one of the worst arguments possible against poly marriage in 21st century America. It assumes that men are beasts, women are sexual property, and the role of sexnocratic government is to ensure Sexual Services Equality for repulsive heterosexual men. It also ignores that sex outside of marriage is now acceptable to most people so constraining sex-options via legal marriage-options is doomed anyway. Was Rauch bribed to throw the game?

44

AcademicLurker 07.08.15 at 6:44 pm

John@41: There’s an active conversation in science circles right now about the implications of the new overtime rules for postdoc pay in academic labs, and whether this will be an additional burden on already strained budgets. No one has brought up the Polgamy Option yet. I’ll float the idea at one of the science blogs and report back.

45

John Holbo 07.08.15 at 6:55 pm

“Also, while we are on the topic, it would greatly please me if Americans realized that viewing marriage as a species of contract is not a legal universal, so that unless all this discussion is meant for the US context only (which is fine), the comparison between marriage and (other) contracts is not obviously relevant (it is, of course, also not obviously irrelevant).”

Marriage is legally a kind of contract in a lot of places outside the US. You might just be saying that there’s more to it than just signing on the dotted line. But if that is your point, I have to object that this state of affairs is not lost of Americans. They get all socially worked up about it, like other humans. Very emosh about this stuff, often.

46

John Holbo 07.08.15 at 6:57 pm

“No one has brought up the Polgamy Option yet. I’ll float the idea at one of the science blogs and report back.”

That is an awesome idea for a science fiction novel. Polygamy as a norm for structuring large research facilities.

47

John Holbo 07.08.15 at 6:58 pm

Spelling of ‘Stevens’ corrected.

48

Z 07.08.15 at 7:33 pm

Marriage is legally a kind of contract in a lot of places outside the US.

But it is also legally something else in a lot of places (Germany, France, Japan as well as China and Russia if I understand correctly the latter’s family law). That’s all I’m saying.

Or perhaps I’m saying slightly more. Maybe I’m saying that distinguishing between legal relationships (being a child almost universally, being a spouse in some places), human relationships not in the former category (being a friend almost universally, being a sibling in some places) and legal contracts (being an employee almost universally, being a spouse in some places) is sometimes a better perspective-ethically, legally, analytically- than conflating 2 or 3 of these categories.

49

bianca steele 07.08.15 at 7:39 pm

@44 I was thinking of posting something on my blog about something MacIntyre says about “utopian” proposals for academic reform, and Thomas More, I think the Polygamy Option would fit right in.

@39 John, I don’t know whether you’re arguing anything at all! I know you linked to Rauch, who made an argument, countering an argument apparently (though moronically) made by someone I’m not naming. But who am I to say you know what’s in Rauch’s mind, or anyone else’s? Rauch (now that I see there are two pages to the article, poor visual design there) refutes two arguments. The first argument is that we have same sex marriage because we’ve decided that marriage is a right that should be granted to everyone unless there’s a reason against it, like the right to sign contracts at age 18. But that’s not the case. It only seems to be the case if you think like this: there’s traditional marriage, where you can make substantive arguments, and then there’s “liberalism” or “modernism,” where you only get abstract rights with no real content.

The second argument is that marriage is an “institution” that everyone ought to be able to share in. What this means, who knows? I mean, I know what it means. It means marriage is an institution and marriage is good. I don’t get what’s gained by calling it an institution here, as if the word decided the question. If marriage is good for reasons X and Y, then it’s not better for reasons X and Y plus being an institution. I think “institution” is just another empty counter, like “right.” I mean, sure, there are institutions that people ought to be able to participate in, like voting, but from that what is the secret reason marriage is that kind of “institution”?

50

bianca steele 07.08.15 at 7:41 pm

And sure, my version of a substantive argument has some input from social science and other cultural entities that the traditional point of view might prefer not be permitted in an argument at this level of abstraction.

51

Trader Joe 07.08.15 at 8:05 pm

Didn’t we have a blog piece here a year or so go after some right-wing nut-job equated SSM and polygamy and called it a slippery slope? Seemed like a the time the collective commentariat here all said…what a nut-job, SSM is good and it means nothing whatsoever for polygamy.

Now here we have JH basically saying, not only is there no slippery slope, its a direct line – maybe the right winger had a point after all?

52

Abbe Faria 07.08.15 at 8:17 pm

“All I’m saying is that SSM was an extension of something that exists, whereas legal recognition of polyamory requires the invention of something new.”

That’s very specific to the US, which really is unique in not recognising polygamy because of the way anti-Mormon sentiment has historically motivated enormous hostility to and criminalisation of these unions.

In the rest of the world SSM is new, but polygamy is long established. Most countries have had to recognise polygamy in some form, just based on practical considerations and the needs of trade and running Empires. Courts will generally recognise polygamous marriage contracted overseas by overseas residents as legitimate, and will admit their validity for the purposes of child custody, inheritance, contract disputes, and so on. They haven’t gone the way of the US and decided to pretend those marriage just don’t exist, and there is centuries of legal background in place. SSM on the other hand dates to 2001 and is genuinely new (it’s also not as simple an extension as people like to admit, there has been finnessing of aspects like consummation and the presumption of legitimacy).

53

John Holbo 07.08.15 at 8:35 pm

“countering an argument apparently (though moronically) made by someone I’m not naming.”

It makes a difference whether you are referring to deBoer or else Bill Paxton’s character in “Big Love”, which I confess I have not watched. But I sort of know what it’s about. Ok, to save you from having to mention he-who-must-not-be-named by name – lest he be summoned? – if deBoer if Voldemort, just refer to him as ‘Mulberry’. And if Bill Paxton’s character in “Big Love” is Voldemort, just refer to him as ‘Finland Station’. That should keep everything straight.

“I don’t know whether you’re arguing anything at all!”

I am now convinced that this is true. Yet I submit that the post contains sufficient basis for you to acquire such knowledge, should you desire it.

Your glosses on Rauch’s arguments don’t make sense to me, Bianca. I don’t get stuff like this at all.

“But who am I to say you know what’s in Rauch’s mind, or anyone else’s?”

Well … you’re you. (Aren’t you?) And I’m me. That’s a start. Is there a problem with you attributing to me knowledge of Rauch’s thoughts, on the basis of my reading of verbal expressions of them (by him), and your reading of verbal expressions (by me?) This is a fallible procedure, sure, but what’s your point, beyond that?

“there’s traditional marriage, where you can make substantive arguments, and then there’s “liberalism” or “modernism,” where you only get abstract rights with no real content.”

‘Where you make substantive arguments’?

If this some sort of ‘if you can’t argue with your wife, who can you argue with’ joke, I’m not getting it. And why does ‘liberalism’ mean rights can’t have content? Do I seem to be arguing against rights? Or against content?

“What this means, who knows? I mean, I know what it means. It means marriage is an institution and marriage is good. I don’t get what’s gained by calling it an institution here, as if the word decided the question.”

Is this some zen thing? What is gained by calling an institution an ‘institution’?

Not much, I suppose. But it hardly seems mysterious, let alone darkly nefarious. Does it seem suspect to you that I call my cat a ‘cat’, which I do (as if the word decided the question!) You are sidestepping the question of what question I am sidestepping.

“that the traditional point of view might prefer not be permitted in an argument at this level of abstraction.”

Again with the riddles! What is the ‘traditional view’ of not permitting social scientific evidence? You are not talking about me at this point, I trust. I’m obviously not opposed to presenting relevant social scientific evidence. But you still seem to be disagreeing with me. How so?

Bianca, I usually get where you are coming from. But here I’m drawing blank after blank. I really am.

Z: “But it is also legally something else [not a contract] in a lot of places (Germany, France, Japan as well as China and Russia if I understand correctly the latter’s family law).”

Really? What are you thinking a French marriage is, if it doesn’t hinge on a sort of contract? Googling “French marriage contract” I am getting hits; they don’t seem to say the thing in question is as nonexistent as you think.

54

John Holbo 07.08.15 at 8:46 pm

Trader Joe: ” Didn’t we have a blog piece here a year or so go after some right-wing nut-job equated SSM and polygamy and called it a slippery slope? …
Now here we have JH basically saying, not only is there no slippery slope, its a direct line – maybe the right winger had a point after all?”

Hmmm:

http://crookedtimber.org/2013/03/11/weird-arguments-about-love-and-marriage/#more-27877

Two years ago I was taking basically the same line as I am today:

“On the other hand, the argument against polygamy Sullivan quotes on his blog today is conspicuously weak, not the ‘excellent counterpoint’ he claims it to be.”

I’ve long felt that the moral rights argument for SSM indeed produces a moral slippery slope towards polygamy, but I have never been confident that this will be legally lubricating in practice.

55

Suzanne 07.08.15 at 9:06 pm

@15: Richard Posner has raised the same issue. In some polygamous communities it does become a problem, particularly when the number of wives is related to status. The alpha males snap up all the women, to the detriment of younger men. In modern American polygamy, the phenomenon of “lost boys” – teenagers or young men cast out of the community for trumped-up reasons in order to ensure the availability of lots of prospective wives for the privileged males – is well known. Presumably things would work differently with a posited modern 21st century enlightened polygamy, but it’s not ludicrous to raise the point.

It certainly might be helpful to have such unions regularized, particularly in the case of a population shortage:

General Turgidson: Doctor, you mentioned the ratio of ten women to each man. Now, wouldn’t that necessitate the abandonment of the so-called monogamous sexual relationship, I mean, as far as men were concerned?

Dr. Strangelove: Regrettably, yes. But it is, you know, a sacrifice required for the future of the human race. I hasten to add that since each man will be required to do prodigious… service along these lines, the women will have to be selected for their sexual characteristics which will have to be of a highly stimulating nature.

Ambassador: I must confess, you have an astonishingly good idea there, Doctor.

56

Trader Joe 07.08.15 at 9:06 pm

@54
Yes, that’s exactly the one I was thinking of. I clearly didn’t recall exactly the slant that you took (which is clearly internally consistent with today’s post), but if memory serves the commentariat was more than happy to bash the right-winger for suggesting that one thing could lead to the other.

If I’m reading today’s post correctly, you seem to suggest that Justice Kennedy’s affirmation of a “right” to marriage and the particular way he went about it actually leaves a quite wide open door for the poly-crowd to rush through if they just get their arguments together. Is that correctly read?

Seems like the basis of a counter-argument is going to lay somewhere in the confluence of protections of children, protections for a ‘weaker’ spouse (in a three way relationship more potential for ganging up), complications in dissolution and allocation of spousal benefits among the parties. Not sure I’m ardent enough on any of these to make the argument myself, or at least make them well.

57

Consumatopia 07.08.15 at 9:19 pm

“I’ve long felt that the moral rights argument for SSM indeed produces a moral slippery slope towards polygamy”

Which moral rights argument? Kennedy’s argument? Yeah, Roberts is probably correct that it leads to polygamy. But it’s not hard to think of other arguments for SSM grounded in moral rights that don’t imply that polygamy should be recognized. Rauch’s argument–that without gay marriage gays are basically excluded from marriage altogether–doesn’t seem to imply anything about polygamy. The argument for legal equality–you might recall that the equals sign played a prominent role in SSM imagery–does not imply that polygamous unions must be recognized.

Maybe recognizing polygamy is the right thing to do, but deBoer’s argument that supporting SSM means we should support polygamy is nonsense. Quite simply, while libertarians and egalitarians were on the same side for SSM, there is a good chance we’ll end up on different sides for polygamy.

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Z 07.08.15 at 9:19 pm

What are you thinking a French marriage is, if it doesn’t hinge on a sort of contract? Googling “French marriage contract” I am getting hits; they don’t seem to say the thing in question is as nonexistent as you think.

Are you suggesting that I wouldn’t know my own legal status because of… one Google search?

A French marriage is explicitly not a contract in French law, it is the recognition that two people are now married, that is to say have entered a specific legal state accompanied with certain rights and obligations (much as the state of being alive, in that way). The google hits you are getting are (probably) because a “contrat de mariage” in French is something like a prenup in the US (though my understanding is that prenup are much more unrestricted), so of course they exist (I have one, though many married couples don’t; most in fact, I believe). But they are not contracts marrying two persons and the marriage doesn’t hinge on them at all.

Same kind of thing in the other countries I mentioned, but the fine points are less relevant than the general opinion of my 48.

59

yenwoda 07.08.15 at 9:26 pm

kent @ 16 is on to something, I think.

The people who were passionate about SSM were diverse across gender, ethnicity, religion, etc. and parts of the movement were well connected to traditional hubs of political power, fundraising and celebrity.

I think the people who are passionate about plural marriage are going to skew very heavily toward white male Christian fundamentalists with few activists having access to the social resources that made the SSM movement gain national traction. And I think that will be a bigger bump in the slippery slope that DeBoer realizes, although I think he’s basically right on the merits of individual freedom and consent.

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John Holbo 07.08.15 at 9:27 pm

“If I’m reading today’s post correctly, you seem to suggest that Justice Kennedy’s affirmation of a “right” to marriage and the particular way he went about it actually leaves a quite wide open door for the poly-crowd to rush through if they just get their arguments together. Is that correctly read?”

Morally but not necessarily legally.

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John Holbo 07.08.15 at 9:35 pm

“Are you suggesting that I wouldn’t know my own legal status because of… one Google search?”

Well, I didn’t assume you were French just because you are Z! (I like Pepe Le Pew as much as the next guy, but I don’t assume people who go ‘zee’ at the start of everything they contribute to the conversation must be French.)

I asked a question on the basis of one Google search! I think that was perfectly epistemically responsible of me.

I confess to not having any real scholarly competence concerning the history of marriage contracts.

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John Holbo 07.08.15 at 9:38 pm

Let me be clearer: you may be right about the contract model being less general than I assumed. I am amenable to correction on this score.

63

Z 07.08.15 at 9:39 pm

Oh, OK. Sorry for the rude answer then. I interpreted “what are you thinking” the wrong way.

64

mpowell 07.08.15 at 9:45 pm

Well I thought deBoer has very little to hang his hat on. His entire argument effectively rests on the contention that, “this is not how rights work”. Well, I’m sorry, but rights are very much contingent on social facts. This is how you get from a thin concept of libertarian liberty to a thick concept of a liberal’s liberty. A lot of ‘rights’ are based on the concept of finding rules and principles that make people better off. So, for example, it is usually okay to form a contract with another party to exchange your labor for money. We generally talk about people having the right to make these kinds of choices freely. But there are all sorts of times when this is not okay. Oh my! This is not how right works! Sorry, maybe this makes it clear that a simple interpretation of the term ‘rights’ is not a useful mechanism for evaluating all questions of justice.

Fundamentally, SSM is much better described as a matter of equal protection of the law. And, yeah, you can argue that poly folks deserve more than a rational basis test. But do they really? Is it really that important to their identity? The fact that gay people are generally, actually gay and can’t just decide to do something else is pretty damn important here. At the same time, I think the argument against legal recognition of polygamy, especially given the current state of society on the relevant issues, probably passes more than just rational basis muster. In some idyllic future, perhaps not.

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Z 07.08.15 at 9:47 pm

the contract model [is] less general than I assumed.

Yeah, and even if it were almost universal, I’d still believe legal systems distinguishing human relationships and (other) legal contracts are better starting points for these kind of discussions than those which don’t. Polyamorous people will establish legal contracts, I’m sure many already do. Will they get polymarried? In the foreseeable future, I doubt it. Should they get to be polymarried? No strong abstract ethical arguments against but none also in favor as far as I’m concerned.

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John Holbo 07.08.15 at 9:55 pm

“I interpreted “what are you thinking” the wrong way.”

Ah, the interet, where the thought that someone is interesting in finding out what you are thinking seems a far-fetching reading of ‘what are you thinking’! I understand the source of your response.

But seriously, I have to think about this a bit. My reasoning, in more or less assuming the ubiquity of the contract model, is that it is – in European history, just starting there – substantially a property question between private parties. More usually families than the couple themselves. A legally formalized pact, crucially involving mutually agreed arrangements and distributions of property, hence a kind of contract.

Googling again, quickly, I found this, from Volokh. It seems reasonable, on its face; and, again, I haven’t really thought about the technical scope of ‘contract’ in this connection.

http://volokh.com/2012/05/20/is-marriage-a-legal-contract/

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Witt 07.08.15 at 10:11 pm

“Heterosexual men with insufficient redeeming qualities to attract a mate will become dangerous unless we ensure heterosexual women have no other option but to marry them” has to be one of the worst arguments possible against poly marriage in 21st century America.

Thank you very, very much for saying this.

68

bianca steele 07.08.15 at 10:12 pm

John H.:

Re. “social science”: I had in mind the kind of argument kent@3 quotes: “If science told you to go jump off a bridge, I suppose you would jump off a bridge!?”

I really do think the best way of reading your post is as pointing to other people’s arguments, with your own writing just a kind of extra that isn’t important. But okay, you make an argument near the beginning, for one: Rauch counters an argument that an obstacle to SSM has been taken away, therefore all arguments to marriage in all cases have been taken away, therefore the right to marriage exists in all cases. Rauch ignores the possibility–as far as I know, only for the purpose of that article, not existentially or anything–that there are positive arguments in favor of two-person, same-sex marriage. He’s just addressing the negative arguments. You accept HWSNBN’s statement that the negative arguments are all that matters (which I disagree with). You kind of accept Rauch’s argument that the negative arguments against multiple marriage are stronger than HWSNBN thinks they are (which I agree with).

Then you go on to say that HWSNBN is actually right, when you think about it in a certain way, that Rauch is wrong. You more or less dismiss the social-science arguments (in much the way kent@3 quotes), and admit that once those have been dismissed, and once you’ve dismissed the possibility of positive arguments in favor of two-person, same-sex marriages, suddenly it’s arbitrary that any kind of marriage shouldn’t be permitted. Well, of course it’s arbitrary, if you’ve dismissed the possibility of the arguments that are possible.

I can only assume that “it’s arbitrary” is the outcome you wanted before you started. That may be unfair. But from what I can tell, HWSNBN really does think “it’s arbitrary” really is the only argument that exists. And from that point of view, your post looks like Serious Academic Support for the idea that “it’s arbitrary” is the only argument that exists.

So, further on, you write as if we aren’t going to know what any multiple marriage is going to look like. Well, that’s not true. It might look like Mormon polygamy (if the LDS Church reverses its position on polygamy). It might look like acceptance of Muslim polygamy. IIRC Judaism even permits polygamy when the state does. So those are the traditional sorts. There will be little groups of people who want to form a family, like there are now, and want some kind of custody, or benefits, or tax relief, but those will be few as they are now. There will be little groups of people who currently have families consisting of more than one adult, and who might use multiple marriage to keep it in the family: people who are divorced and remarried but want to keep their families together. There will be religious cultists like David Koresh. Most of the people who want to be married in groups of more than two will fall into patterns that already exist–just as people who want to be married to someone of the same sex fall into a pattern that already exists. But in the latter case, the pattern that exists is already called “marriage.” Which simplifies things a whole lot. And makes the rest of the post, where you speculate about what plural marriage might look like, on the assumption that we have no idea, seem more or less moot. Again, if we dismiss what we already know, everything magically looks arbitrary!

Okay, this is possibly how it looks from an academic philosophy standpoint. But I assume Rauch knows how limited this kind of argument is w/r/t actual law. AFAICT HWSNBN does not. He thinks this kind of thing is a knock-down argument that can be wielded by anyone with a tall enough soapbox and a loud enough voice.

69

bianca steele 07.08.15 at 10:16 pm

After “I can only assume that “it’s arbitrary” is the outcome you wanted before you started.” insert “That’s what would be the case on the assumption that ‘the concept of marriage’ is a traditional one, and if you reject tradition, you can have no ‘concept of marriage,’ only arbitrary polemics.”

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parse 07.08.15 at 10:17 pm

And look at the first comment on the Volokh article:

“Very good article. In French law marriage is clearly defined as a contract (which requires consent, subject, cause and capacity) although it is a specific contract because of its particular subject. By the way this debate also exists in France where some lawyers say marriage is more an “institution” than a contract.

On this topic see art. 144 of French Civil Code : ‘A male and a female may not contract marriage before they have completed their eighteenth year’ and art. 180 ‘A marriage contracted without the free consent…;”

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Cheryl Rofer 07.08.15 at 10:17 pm

#46: “No one has brought up the Polgamy Option yet. I’ll float the idea at one of the science blogs and report back.”

That is an awesome idea for a science fiction novel. Polygamy as a norm for structuring large research facilities.

It’s also a possible alternative for Tim Hunt’s problems.

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Cheryl Rofer 07.08.15 at 10:18 pm

eh, that second paragraph should be italicized too.

73

Z 07.08.15 at 10:21 pm

A legally formalized pact, crucially involving mutually agreed arrangements and distributions of property, hence a kind of contract.

But see, many aspects of human life fit the first part of your definition, especially in pre-industrial societies. Yet we wouldn’t want to think of all of them as contracts (which I take to describe the narrower “exchange of promises” kind of relationships), nor do we necessarily think that analyzing them as contract is necessarily helpful (it can be, for sure). Take “being the oldest male child of X” for a prime example: certainly not a contract, yet a legally formalized relationship with X (though calling it a pact would perhaps be stretching it, it is also true that actual biological paternity was easily trumped by social paternity in that respect) which in many societies involved mutually agreed distributions of property (“you get the farm”).

Now I do have a question in turn: do spouses actually legally promise each other something in exchange of something in the US (as Volokh says in the link), and if so what? (In France, they conspicuously don’t do so: the language is all about rights and obligations, never tit for tat.)

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Kyle C 07.08.15 at 10:25 pm

My goodness, are there lawyers in the CT commentariat? The whole scuffle over multi-way contracts seems to have died down, but crikey, surely you’ve heard of, um, a partnership? Each partner owes duties to the others collectively, and the partnership agreement is a contract. A general partner may act as the agent of the others. There are law firms with 1,000+ partners. Conceptually this is far from exotic. And debating whether marriage “is” a contract is of course fruitless, like all definitional debates in law. It is what we make it. The hard question is whether we should or must open the marriage partnership to more than two people.

OTOH some family relations are decidedly not contractual, so I can vaguely understand the French position represented above. Parenthood and guardianship are not contractual and are not negotiable on terms other than those set by the state, although I believe this is because at least one party enters the relationship as a minor. If the French want to call a voluntary legal relationship between adults that imposes reciprocal rights and responsibilities “not a contract,” d’accord, have at eet, but that doesn’t change anything that matters.

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Dean C. Rowan 07.08.15 at 10:29 pm

It isn’t entirely clear to me how a prohibition against multiple concurrent marriages violates a right to marry. Linguistically, the term implies two parties, e.g., the entry in OED reading, “to take a husband or wife.” I’m not begging the question here. Even a proponent of polygamy would have to acknowledge that each of several marriages is a discrete transaction. Rauch’s hypothetical “polygamous license” is indeed “new,” and I would argue so new as not to contribute much to the discussion except as non sequitur.

Put another way, neither monogamy nor polygamy is essential to marriage. Either condition will suffice. One could even imagine prohibitions against purely monogamous relationships, albeit for stupid reasons. But marriage is essential to both monogamy and polygamy (and, one might add, to divorce). Restrictions on polygamy (and divorce) have no bearing on a “right” to marry.

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LFC 07.08.15 at 10:30 pm

Haven’t read most of the OP or comments b.c I don’t want to spend time on these particular issues right now, but the first comment in the thread

Man, I just wasted a lot of time thinking “this is bizarrely coherent and intelligent for a John Quiggin post.” Not unclear at all!

is a bit absurd (not to mention gratuitously insulting). Holbo’s posts are often thoughtful, but the notion that they are models of coherence compared to JQ’s doesn’t hold water, imo. Both posters are usu. coherent enough, in their different ways (which is not to say, of course, that I always agree w them). Why the first commenter in the thread felt impelled to engage in this little bit of cattiness, I don’t know.

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John Holbo 07.08.15 at 10:57 pm

I’m off to bed. Clearing the decks …

Thanks for pointing out that comment to the Volokh post, parse. That’s interesting.

Bianca, there are two possibilities. Either you have misunderstand what I wrote in the post, or I have misunderstood what I wrote in the post. If the latter, it was some sort of automatic writing fugue state induced by jetlag in which, I presume, the malevolent spirit of HWMNBN moved my fingers.

I really don’t know how to respond usefully to things like “I can only assume that “it’s arbitrary” is the outcome you wanted before you started.” For the record, I don’t think that my conclusion can be thumbnailed as ‘it’s arbitrary’ (whatever that means), much less that I am engaging in pathological confabulation to reach this insufficient (so far as I can make out) end.

If you truly are just assuming – not arguing – well then, why should I just assume your assumption about my assumption is correct? And if you secretly actually have some reason for thinking I’m aiming at ‘it’s arbitrary’, unbeknownst to myself – where’s the harm in stating it? I don’t understand this insistence on stating that I am wrong, conjoined with a reluctance even to hint why.

What is the ‘it’ I am assumed, by you, to assume is arbitrary? Marriage? Liberalism? Rights? The difference between SSM and polygamy? Can you at least tell me what ‘it’ is without risking the wrath of HWMNBN, a.k.a. ‘Mulberry’?

UPDATE: Ok, what’s really baffling me, causing me to doubt ‘it’ is this. “all arguments to marriage in all cases have been taken away, therefore the right to marriage exists in all cases.” What the hell is that supposed to mean?

Z: “But see, many aspects of human life fit the first part of your definition, especially in pre-industrial societies. Yet we wouldn’t want to think of all of them as contracts (which I take to describe the narrower “exchange of promises” kind of relationships), nor do we necessarily think that analyzing them as contract is necessarily helpful (it can be, for sure).”

I guess I would call a lot of stuff ‘contracts’ that you wouldn’t. As Volokh says, a promise is a kind of contract. Promises don’t have to be tit-for-tat either.

“Take “being the oldest male child of X” for a prime example: certainly not a contract, yet a legally formalized relationship with X (though calling it a pact would perhaps be stretching it”

I don’t think being the oldest male child of X is anything like a contract or pact. So here your sense is maybe broader than mine somehow. Being the first son is just a fact. Legally formalizing it – having your child ‘recognized’ – is also not really a pact or contract, although it may create obligations. Not everything legal is a contract, and not every contract – promise – is part of a legal system (as opposed to a tribal honor system.) I guess the term sort of slops around and I hadn’t really thought about it before.

in the US, exchanging vows is ceremonially traditional, but that isn’t the legally binding bit (so far as I know!) Also, there’s no tit for tat in the vow language. No one says ‘I’ll do this IF you do that.’

Finally, Cheryl does propose a novel solution to Tim Hunt’s problems.

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John Holbo 07.08.15 at 11:01 pm

“The whole scuffle over multi-way contracts seems to have died down, but crikey, surely you’ve heard of, um, a partnership? Each partner owes duties to the others collectively, and the partnership agreement is a contract.”

Good point.

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steven johnson 07.08.15 at 11:27 pm

Abbe Faria @52 “Courts will generally recognise polygamous marriage contracted overseas by overseas residents as legitimate, and will admit their validity for the purposes of child custody, inheritance, contract disputes, and so on.” Do these courts assign equal rights in these matters to all parties in the polygamous marriage? I am under the impression that they recognize the husbands as having greater privileges. I suggest this is wrong, as it violates the principles of equality. Although maybe this is more a socialist/communist thing than a democratic one?

Kyle C @74 “Each partner owes duties to the others collectively, and the partnership agreement is a contract. A general partner may act as the agent of the others.” How can it be valid for the state to recognize the general partner’s superiority in matters of daily life? Marriage may be a contract but it is not commerce, unless you are of the persuasion that marriage=prostitution.

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brandon 07.08.15 at 11:51 pm

My problem with the polygamy debate, which I have greeted with a week-long eyeroll, is who are the beneficiaries? Who has been forced to live a double life because they can’t join in a polygamous marriage? Whose oppression are we ending? I mean in the case of fundamentalist/cultist polygamy I can well think of who we’d be hurting by legalizing it – young women – but who are we helping, that offsets this? The whole debate just seems like straight up rules lawyering.

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bianca steele 07.08.15 at 11:54 pm

John @ 77

Hey, it sure looks like you tricked me into admitting that when I said I didn’t know what you were arguing for in the OP, I was lying!

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Bloix 07.08.15 at 11:58 pm

#74, #78 – which is the whole point. There was a time when business and law partnerships were associations of a small number of people who knew each other well, and being a person’s partner was a relationship that required a strong bond of trust and reliance. Being a partner meant you profited from your partner’s work and you had legal liability for your partner’s mistakes. You didn’t enter a partnership lightly, and it was difficult to get out of one.

Today, with changes in the law that permit partnerships with thousands of partners, partnership is merely one a number of types of business organization. The relationships are firmly governed by law and explicit written contracts, not by trust. Maybe that’s better, but the concept is entirely different.

So with marriage. Marriage used to mean sexual exclusivity; it doesn’t mean that now. Anyone can sleep with whoever they want. It used to be the only socially acceptable way for unrelated adults of different sexes to live under one roof. Not so any more. It used to be for life unless there was a serious breakdown in the relationship; not now. It used to have serious implications for the legal rights of children; it doesn’t anymore. It used to deprive women of their property rights; not today.

What it means now, mostly, is the right to certain government and employment benefits, a limited sharing of legal responsibility to others, and a public declaration of a binding relationship to one other person that affects how others deal with you. You are expected to share a home. You both get invited to things. When one is sick, you both go to the hospital. You are viewed, more or less, as a unit.

Now imagine multi-party marriages with five or ten members. How would they function? Would you have to invite all ten to your barbecue? Would a hospital have to take a vote of nine on end-0f-life care for one? Would the employer of one extend health insurance to all ten and all their children? Would the government provide social security survivor benefits to nine? Could you marry nine people in Honduras and bring them all into the US as your spouses? No, that’s not going to work, is it?

Unlike modern business partnerships, which are nothing like old-fashioned partnerships but still make sense for some businesses,large polygamous marriage makes no sense. They would have no social or legal function, because socially most people would not recognize them as marriages and extending existing legal rules to them would break down almost immediately.

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Kyle C 07.09.15 at 12:16 am

Steven Johnson @79: My only point was that in theory multiple spouses/partners could all act as agents for each other, just as two spouses can. I started to write “each partner” but remembered that there can be limited partners.

84

Consumatopia 07.09.15 at 12:40 am

I have to ask, do advocates of polygamy think that it should be legal everywhere, or just in the West? When women’s groups abroad campaign to end patriarchal polygyny in their own countries, do you think that is misguided on their part?

85

LWA 07.09.15 at 12:43 am

I’m sort of with Brandon @80 here:
We create and define rights mostly to hash out competing interests of stakeholders- property rights of landlords versus tenants, speech rights of newspapers versus privacy rights of individuals, and so on.
But who are the stakeholders in the poly debate? I know they exist, but in so tiny numbers, so scattered and diffused, it seems like an issue that no one really cares about except theorists or politicians looking to use it as a cudgel.

In the end, most of the boundaries which define our rights are just rationalizations of preferences- the court tests for what constitutes a religion for example are logical applications of moral intuitions.

Which is all to say that currently polygamy doesn’t enjoy the cultural preference sufficient for us to recognize it, even if one could mount a perfectly logical argument equating it to SSM.

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js. 07.09.15 at 1:57 am

This is so bizarre. It’s as if the obsession with marriage has finally been taking past its breaking point and turned into a reductio. (I don’t just mean you, JH—just this whole debate.) I mean, look: it is presumably within our ken to grant complicated groupings of people complicated sets of legal rights. I take both Kyle C @74 and Bloix @82 (first para) to be evidence of this. So if we want to devise a way to give grant a certain bundle of legal rights and entitlements to certain groupings of individuals, let’s just do that—whether the parties in such groupings are fucking each other is surely irrelevant. (I expect the parties in partnerships aren’t, for the most part). If the worry is that Mormons, Muslims, or whoever would be able to take advantage of such rights-offerings to set up unjust or oppressive arrangements, surely we could prevent that by other legal means.

And anyway, the idea that marriage grants one some special sort of dignity is so incredibly idiotic, it deserves to be scrubbed from history, not made the basis of “extending” marriage. I mean, maybe I should marry myself? Can I?

87

John Holbo 07.09.15 at 2:22 am

“I mean, maybe I should marry myself? Can I?”

https://www.youtube.com/watch?v=A-ONRt9ER6Y

Always glad to clear stuff up.

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Crouchback 07.09.15 at 2:28 am

OK, it seems everyone’s avoiding the elephant in the room. Basically, Rauch is assuming that there are innate differences in median male and female sexual preference, while the advocates of polygamy legalization do not. Rauch assumes that if polygamy was legal:

1. Wealthy, high status and otherwise ultra-attractive men would seek multiple spouses and would find women willing to join in polygynous marriages.

2. Wealth, high status and otherwise ultra-attractive women would NOT want to seek out (and financially support) a stable of young, handsome studs, at least not to the same extent as men.

3. Therefore legalized polygamy would play out like historical polygamy – a handful of men at the top taking multiple wives without compensating behavior from women. If we start with a roughly equal number of men and women, this will inevitably result in some men losing a game of marital musical chairs and not being able to marry. Note that it is irrelevant how attractive the men at the bottom are in absolute terms – simple arithmetic says some of them are bound to lose. Blaming them is like blaming the unemployed in a depression.

4. Again, based on historical polygamy this is likely to lead to a generally unpleasant society for anyone not a high status man. Rauch isn’t making any moral comment on whether the male behavior is appropriate – he is simply saying that if we have 15-20% of the male population unable to ever marry or otherwise have relationships, they’re likely to react poorly.

What Rauch doesn’t note is the gender selection technology could fix this in the long run. If people come to realize low status men are unlikely to marry, low status families may choose to mostly have girls, thus eliminating the surplus male population over time. Whether this is a good outcome is a judgement call.

Now Rauch could be wrong. Women might flat out reject any idea of becoming a second/third/etc wife to a large enough extent that polygamy has little social impact. Alternately, we could see wealthy women embracing polyandry and paying for their own personal stables of lovers, thus balancing out the Newt Gingrichs of the world. I think there’s a reality show for Kim Kardashian here. But I think it’s important to make the underlying assumptions clear.

Personally I’m inclined to side with Rauch if only out of precaution. Unlike gay marriage, there’s a plausible scenario for polygamy harming society and no compelling argument to allow it other than “I want it.” Laissez-faire works poorly in economics for anyone not on top of society – I’m inclined to think the same for sexual mores.

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js. 07.09.15 at 2:40 am

Holbo,

Is that the same Sparks as these guys!? Holy shit! That’s amazing.

90

Collin Street 07.09.15 at 2:45 am

Actually, the specific problem with polygamy and surplus men arose because of a conflation of “high-status” and “male”: there were high-status men to absorb the surplus low-status women, but no high-status women to absorb the surplus low-status men. In today’s less-sexist world this shouldn’t be as much of a problem.

[which I wouldn’t have thought needed pointing out…]

91

John Holbo 07.09.15 at 2:51 am

Quick response to some of the slippery slope arguments. Then I’m off again.

There is an undeniable logic to the point that at least some sorts of polygamy would be downright absurd. So it might seem we don’t want to end up on a slippery slide from SSM to polygamy, lest we end up having to legalize something silly. Not three people who love each other and want some kind of legal sanction for that but 1000 people who want to all marry each other’s vacuum cleaners or whatever damn nonsense you want to cook up just to embarrass the very notion.

I guess I’m not soooo worried about that because – maybe this was unclear – for me this isn’t some exercise in pure abstract principle for principles sake, ergo I’m on the hook for any absurdity that might seem to follow from pure logic. You want to think about your principles because you think your principles are good (I hope) and you want to figure out what’s right. What makes sense. The interesting question isn’t: could there be nutty, impossible relationships fitting this description? Obviously so. The interesting question is: could there be healthy, happy ones? Think about why people didn’t think SSM marriage made any sense, what sorts of things changed their minds. What they learned about people. Could something like that happen for polygamy? I’m inclined to say: maybe. And if it happened, I think my principles, plus the fact that a lot of people had (by hypothesis) been won over to accepting this, would probably make me one of those people. If a lot of people freely decide something of the sort is for them, I really feel I should try not to get in the way. That would be the time to remind myself about how this case is parallel to SSM. (Just as it’s good for SSM folks to push the Loving v. Virginia case, as a reminder.)

Per the post, I fully admit that plausible social harm arguments can be made here that are just lacking in the SSM marriage case. Legally, there is going to be a stopper. The question is: do I think it would be a good idea, morally, to use that stopper? Or would I instead think the best thing to do would be to try to craft legislation that allowed somewhat weird, previously impossible plural marriages – without saying anything flagrantly stupid. Just because, other things equal, if people are going to be happier that way, you should let them.

Is there some way to define healthy, hence ideal permissible polygamy, as opposed to bad, inherently destructive, socially toxic polygamy. It strikes me that there are probably both sorts of relationships, in fact. At least I have no good reason to believe that there aren’t both kinds, potentially. So it would probably be a good idea to try to distinguish them. Not that I think that is easy, by any means. But since real social acceptance will be both the driver behind any such change, and a kind of practical check on craziness, I’m just not worried that somehow everyone will get to be married to everyone else who has the same birthday, or some nonsense.

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John Holbo 07.09.15 at 3:05 am

Shorter version: a lot depends on whether there turn out to be, really ‘poly people’. This needn’t be an identity, as opposed to a consistent preference. Basically, I’m against frustrating people’s preferences about something that matters a lot to them, unless there’s a very strong reason why we have to sacrifice their desires, to save society from disaster. That makes my view sound trivially correct, since I hope none of you are in favor of needness frustration. But a little bit of making my view sound trivially correct may counterbalance the sense, on the other side, that I’m asking for something inherently absurd.

93

John Holbo 07.09.15 at 3:12 am

“Is that the same Sparks as these guys!? Holy shit! That’s amazing.”

Sparks is an amazing band, thanks for noticing. They are still putting out stuff. They just released an album with Franz Ferdinand as FFS. Crazy.

Fun fact. Belle hates hates Sparks. But I love them!

94

afeman 07.09.15 at 3:14 am

brandon @80: All through the legal evolution of SSM I’ve thought of a um triplet I’m friends of friends with consisting of two cisgendered women and a transgendered woman who have been living together for at least 15 years. I don’t know if they actually want to be married, but I’ve always wondered if they were greeting the whole business with eyerolls themselves.

95

afeman 07.09.15 at 3:14 am

Which, of course, would be polygamy in the strictest sense.

96

Consumatopia 07.09.15 at 3:18 am

“maybe this was unclear – for me this isn’t some exercise in pure abstract principle for principles sake, ergo I’m on the hook for any absurdity that might seem to follow from pure logic.”

I was a bit confused on that score, if only because your original post echoed some of deBoer’s language, and deBoer really is committed to the abstract principles, marriage-as-a-fundamental-right-consequences-be-damned, which would seem to apply as strongly to a thousand consenting adults as strongly as it does to three.

It seems like the pragmatic thing to do would be to let poly people form appropriate contracts, enforced by the government when reasonable and perhaps even with civil union-like benefits but not recognized by the government as “marriage”, wait a generation to see how those turn out, and if it seems to work out give them full marriages.

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John Holbo 07.09.15 at 3:33 am

“deBoer really is committed to the abstract principles, marriage-as-a-fundamental-right-consequences-be-damned, which would seem to apply as strongly to a thousand consenting adults as strongly as it does to three.”

I guess I don’t read him that way. Does he commit to absurd craziness, clearly? Let everyone marry 1000 people, though the heavens fall? He sees the bullet, bites the bullet?

98

js. 07.09.15 at 3:36 am

a lot depends on whether there turn out to be, really ‘poly people’

Well, there already are poly people, obviously. (I’m not sure what the “really” is doing there.) And if polyamorous relationships/hookings up/whatever become more socially acceptable, it stands to reason to that a lot more people would “turn out to be poly”. (Hell, it wouldn’t surprise me if most people turned out to be, well, non-mono in one sense or another.) And if we assume that under conditions of social acceptance, various other social assumptions held fast, then yeah, it’s not all that unlikely that you’d have poly people fighting for marriage rights. It’s just that the moral I draw from this is somewhat different from the one you draw.

99

js. 07.09.15 at 3:39 am

Oh, and more importantly: A Woofer in Tweeter’s Clothing is all sorts of fun. Now quite curious about the newer stuff and will check it out soon. Thanks!

100

Consumatopia 07.09.15 at 3:49 am

He doesn’t, that I can see, actually say that he would accept a thousand people getting married. But it’s logically implied by what he does say–that marriage among any set of consenting adults is a right, and rights must be respected no matter the consequences.

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John Holbo 07.09.15 at 3:53 am

I notice Pitchfork just did a kind of retrospective.

http://pitchfork.com/features/starter/9673-trend-upsetters-10-essential-sparks-songs/

It is crazy that they have been around since the 1960’s and are still doing new stuff.

They have the best song titles that aren’t by Morrissey. Hence the appropriateness of this:

102

John Holbo 07.09.15 at 3:54 am

Just thought the thread needed a little lightening up anyway.

103

John Holbo 07.09.15 at 4:05 am

“Well, there already are poly people, obviously.”

One of the arguments against the analogy with SSM is that being a gay guy who has to marry only a woman is a way bigger hardship than being a straight guy who’d like two chicks on the line – y’know what I mean: nudge nudge, wink wink – but has to settle for only one. There’s a difference between being, effectively, sexually crippled by your society and just not getting the perfect thing you dreamed of in your wildest dream. People are naturally more concerned to avoid the former than the latter, insofar as it becomes a public policy issue by implication. To me it’s an open question how much of a personal hardship it is for people who are poly-inclined to live in a society that doesn’t recognize that. If the answer is ‘not much’ that says one thing, if the answer is ‘surprisingly, way more than you think,’ that would be good to know, too. I don’t like dismissals of the analogy with SSM that foreclose the interest – and ethical importance – of trying to answer such questions. ‘Poly isn’t an identity!’ Well, even if not, sex and ending up in the kind of relationship you’d most like to be in (with all the trimmings, if it wouldn’t be trouble!) is still worth quite a lot.

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js. 07.09.15 at 4:20 am

One of the arguments against the analogy with SSM is that being a gay guy who has to marry only a woman is a way bigger hardship than being a straight guy who’d like two chicks on the line – y’know what I mean: nudge nudge, wink wink – but has to settle for only one.

Yes, but it’s not the argument that I’m making. (I can’t tell if you think it’s the argument I’m making.) I think it’s altogether possible, plausible even, that lots and lots of people (and not just men) are forced into monogamous relations because that’s the only thing that’s really socially acceptable, outside of fringe niches. And this leads to cheating, breakups, divorces, unhappiness, etc. (I’m thinking). A lot of such people (among whom I don’t count myself) would presumably be a lot happier if polyamory were more socially acceptable, and would perhaps choose what look like some kind or other of polyamorous relationships. (Though I’m not sure what’s supposed to count as enough of a “personal hardship.”)

But of course, given the social assumptions we as a society take for granted, the only kind of solution that seems possible to this is an extension of marriage—i.e. a new kind of legally sanctioned social conformity. It’s this that I find utterly backwards.

105

John Holbo 07.09.15 at 4:28 am

“It’s this that I find utterly backwards.”

Well, I should probably stop expressing more opinions in this thread – it’s so tempting to form them on the spot! I think people are a bit too quick to think they know how it would turn out. Not you, in particular. But Rauch seems a bit too quick to think he knows just how it would go to hell. A bit more agnosticism, maybe. I guess part of me hopes the principled argument for the equivalence with SSM serves, not as a legal battering ram, but just as a – hey! sit back and have an open mind about this before you decide you know it all already – rap on the forehead. I realize I am hereby retreating, rather, from the substance of the post. Well, I am sort of jetlagged.

106

bad Jim 07.09.15 at 5:19 am

Why is it always assumed that slippery slopes go downwards? More often than not they slope upwards, making them difficult to traverse; that’s most likely the case here.

Serial monogamy is scarcely unknown, and the legal situations thus engendered seem to be manageable. I know one set of families in which serial monogamy was kept in a small circle, with lots of half-siblings and alternative homes in which to seek refuge in the event of an upset. It seemed to work reasonably well for them. Perhaps a corporate or co-operative model would have been more equitable, but why go to the trouble of crafting an optimal structure when jury-rigging gets the job done?

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Moz of Yarramulla 07.09.15 at 6:16 am

But who are the stakeholders in the poly debate?

People in poly relationships. And people who will have their mental problems exacerbated by formal acceptance of those relationships. I suppose also lawyers who will have to deal with it, bakers who will have to make cakes for them, county clerks who will have to process the paperwork and so on.

The issues in the US are apparently not fun, because of the various restrictions alluded to above. In Australia many of those don’t exist, for example I’ve never seen a rental agreement that says “you can’t have more than two adults in the house if and only if they’re in a relationship in the nature of marriage”. That would be awesomely weird (in a bad way).

But other marriage issues do pop up, and some of them are universally ugly. People who have children, for example, find that “their children” changes depending on the prejudices of whoever they’re dealing with, conceivably to the point where they lose access to their children. Or even get locked up, since polyamorous people are clearly paedophiles (cough).

Others simply find that visiting their spouse in hospital is impossible (their spouse has already visited, and they can only have one). Ditto all the other legal consequences of marriage.

At least property is relatively simple – when some friends marriage broke up they dissolved the legal entity (a trust of some sort, I think), and divided the proceeds according to their wishes. But the risk there is that if the dissolution had been contested the prejudices of the judge and lawyers could have led to various horrific outcomes, especially if the decision was that two of the parties had been de facto married and the others were just co-residents (who therefore would get, at best, their contributions to that property back… and good luck establishing that over a 20 year relationship).

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Moz of Yarramulla 07.09.15 at 6:24 am

I think one of the real complexities would be non-circular graphs. If you think of marriage as a collection of people and links there’s no reason why the linkage has to be bounded, let alone isolated. It’s quite possible (in the sense that I’ve seen it often) for A to be in a relationship with B. Let’s symbolise that with an = sign, meaning “two way relationship” rather than the traditional “A is now the same person as B”.

A “perfect triad” where everyone is married to everyone is thus “A = B = C = A”, because I can’t draw circular links in ASCII. A perfect quad is harder to draw because we need diagonals. But hopefully you get the idea.

Those are both bounded and isolated – there are a finite number of parties and they’re linked only to each other, there are no outgoing links.

More commonly polypeople are in V or W shaped relationships. A = B = C but A is not in a sexual relationship with C. And so on… A=B=C=D=E=F… and everyone has exactly two relationships. But you can bring your whole graph theory goodness into this, so A is married to B,C,D,E but C is also married to Q who is also married to X and Y, and Y is also married to Z, who recently divorced A.

109

marcel proust 07.09.15 at 6:54 am

JH responds:

“Something up between you and Belle, John?”

I’m just glad to see her (when she finally gets home!)

Perhaps you need a 2nd Belle (don’t we all) who could stand in for her when she is gallivanting all over the globe: either someone of your own choosing (PG) or someone for whom Belle also has feelings (PA).

110

Sebastian H 07.09.15 at 7:53 am

“Basically, I’m against frustrating people’s preferences about something that matters a lot to them, unless there’s a very strong reason why we have to sacrifice their desires, to save society from disaster.”

Libertarian.

;)

111

bad Jim 07.09.15 at 7:56 am

Monogamy, polygamy and polyamory are easily distinguished as sets of unordered pairs.

Monogamy is a set of pairs M in which if (x,y) is in M, there is no z such that (x,z) or (y,z) is also in M.

Polygamy is a set of pairs P consisting of an element y and a set X such that, for every x in X, (y, x) is in P.

Polyamory is a set of pairs A and a set X such that if x and y are in X, (x,y) is in A.

Hope that clears everything up. Any relationship between this and the way life is lived is probably accidental.

112

reason 07.09.15 at 8:08 am

JH @91
“Per the post, I fully admit that plausible social harm arguments can be made here that are just lacking in the SSM marriage case. Legally, there is going to be a stopper. The question is: do I think it would be a good idea, morally, to use that stopper? Or would I instead think the best thing to do would be to try to craft legislation that allowed somewhat weird, previously impossible plural marriages – without saying anything flagrantly stupid. Just because, other things equal, if people are going to be happier that way, you should let them. “

My problem with this all is that, it seems to me what is not being asked is “why is marriage something that the state ought to be involved in”. As somebody pointed out before, the arguments FOR formal polygamous relationships were of a libertarian type. But I thought libertarians questioned the need for the state to be involved in marriage in the first place. In a liberal society where the state does not declare sex outside of marriage to be a crime, nothing is stopping people becoming involved in these sort of relationships, or entering into contracts regarding property rights.

The legal recognition of marriage as an EXCLUSIVE relationship, has everything to do with giving people special rights and special responsibilities exclusively (towards specific individuals and dependents). Sure that could be extended to multi-person relationships, but the expense of enormous increases in complexity (and an increase in the already problematic danger of exploitation). Why should the state get involved? Surely that is key question – not whether the institution could be extendable. SSM in my view is not a slippery slope taking the state completely out of marriage. Polygamy is.

113

reason 07.09.15 at 8:22 am

Just an aside – what the hell is polyamory doing in the title. It is irrelevant isn’t it?

114

John Holbo 07.09.15 at 1:24 pm

“Why should the state get involved? Surely that is key question – not whether the institution could be extendable. SSM in my view is not a slippery slope taking the state completely out of marriage. Polygamy is.”

This is a fair point of view.

“Just an aside – what the hell is polyamory doing in the title. It is irrelevant isn’t it?”

Hmmmm, possibly it was just shameless clickbait. But I think the point was supposed to be this: to predict the future of polygamy, don’t just extrapolate a straight line from the history of polygamy; guess what the future of polyamory is like in a world in which SSM is a normalized option.

115

John Holbo 07.09.15 at 1:26 pm

“Perhaps you need a 2nd Belle (don’t we all) who could stand in for her when she is gallivanting all over the globe”

Hmmm, maybe I could find some woman with whom I would, platonically, share my great love of Sparks – a love that cannot properly express itself within the bounds of my current matrimonial arrangement.

Nah. I’ll just wait for her to get home.

116

JanieM 07.09.15 at 1:27 pm

I still don’t get what the difference is supposed to be between the two terms. Just that polyamory is a less traditional way of labeling the concept?

117

Anderson 07.09.15 at 2:00 pm

A, B, and C sue for the right to a 3-way marriage. They live in a polyamorous trio, and for (say) A and B to get married would leave C feeling unduly stigmatized and excluded, as would also be the case for B if A and C got married.

As I said at #18, I think legislative line-drawing will be upheld restricting marriage to 2 people, but I also thing that the foregoing “exclusion” argument can borrow from some of the SSM arguments. Maybe a state or two can experiment with this. Laboratories of democracy!

118

parse 07.09.15 at 2:16 pm

JanieM, I believe the polygamy refers specifically to marriage relationships, so people in polygamous relationship by definition have more than one spouse. Individuals in polyamorous relationships are not necessarily married.

119

Marshall 07.09.15 at 2:18 pm

Anything that creates networks of extensible committed face-to-face communities … marriages, proprietorships, coreligionists … is to be encouraged, as a saving step away from our acrimonious world of globalized individualism, aka the “adversarial” system.

120

Rich Puchalsky 07.09.15 at 2:26 pm

JanieM: “I still don’t get what the difference is supposed to be between the two terms. Just that polyamory is a less traditional way of labeling the concept?”

The Greek root -gamy is used not only for marriage, but also other kinds of reproductionn-related words in biology, so it’s icky. Polyamory is about who you love rather than who you are reproducing with, so it’s obviously a lot more classy and acceptable in a U.S. context.

121

John Holbo 07.09.15 at 2:27 pm

“I still don’t get what the difference is supposed to be between the two terms. Just that polyamory is a less traditional way of labeling the concept?”

Love and marriage, love and marriage, go together like a horse and carriage.

They are indeed closely related.

No, seriously. Polyamory is the love one. Polygamy, the marry one.

Conor Friedersdorf has a piece in the Atlantic I just noticed:

http://www.theatlantic.com/politics/archive/2015/07/the-case-against-encouraging-polygamy-is-strong/397823/

He makes a pretty good anti-deBoer argument.

Let me revise and resubmit my original thesis/argument, in light of further thoughts.

One thing I was not clear about is that I myself am ultimately pretty much a utilitarian about rights. So that means I am ultimately a utilitarian (not strictly, but pretty much.) So that means if there is ultimately an excellent utilitarian argument against permitting polygamy, I’ll accept that.

There are obviously strong, prima facie utilitarian arguments against it, on grounds that it would be complicated (that’s a stronger legal argument than a moral one) and have generally baneful effects on society (that’s a better argument). But there are obviously some good utilitarian arguments on the other side, too. People want to do this thing. It makes them happy. Maybe it would be better to let them. Maybe it will be hugely valuable for them, in fact, in which case we should be damn sure the alleged harms are real and unavoidable. One of the main reasons for being a utilitarian who respects rights is that not letting people do stuff just because you think it’s yucky is a source of much unhappiness in the world. You want to be careful not to offer a plausible utilitarian argument against polygamy, then top it off with a bit of intuitive yuck, and fail to finish the job: namely, really thinking seriously about whether the plausible utilitarian argument is, on further examination, a really good one. There is more uncertainty about this matter than Rauch credits in his piece. If there is something a lot of people really want – something that’s important to them – but it’s plausibly harmful to others, in a diffuse social way, our first response should not be: well, they don’t get to have it, then. Our first response should be: is there some way around this problem, so they can get what they want, or something nearer to it, without all the harms? Are we really totally sure these alleged harms cannot be managed?

If your first response is the first thing – no, they can’t have it! – I think you need to ask yourself whether your ‘yuck!’ response is maybe firing a bit prematurely.

On reflection, it’s probably unhelpful that deBoer has a headline that says ‘legalize polygamy now’. It would be fairer, in my own case at least, to say: think in an open-minded way about legalizing polygamy at some point in the near future, rather than just assuming that this thing has to be so horrible it’s not to be contemplated. Rauch’s point that anti-polygamy laws can easily pass rational basis tests sort of set me off. Because passing a rational basis test isn’t actually a good argument that there is anything really truly rational and good about any given piece of law. It’s merely a proof that one particular form of egregious badness is absent.

The point of the SSM analogy, I guess, should be this: if you think SSM ought to be a right, you ought to at least think hard about this other thing that is, really, substantively analogous to it in lots of ways. (Not being a rules lawyer, just trying to keep my eye on the ball: the ball being, what we think really matters.) That said, the point also stands that a fundamental disanalogy exists: there are no good utilitarian arguments against SSM, but there are apparently quite good ones against polygamy.

122

oldster 07.09.15 at 2:30 pm

Like Moz and Bad Jim, I’m worried about the algebraic aspects.

One thing is pretty clear: legally, divorce will have to work as an all-or-nothing deal (i.e. when any member of an n-tuple divorces any other member, then all members are simultaneously divorced from all members), or you’ll have to give up on common-property laws.

If you allow A to divorce from C but remain married to B, and C to divorce from A, but remain married to B, and if they live under a common-property regime, then it may be unclear whether A & C share a piece of property or not. Qua divorced, no; qua sharing it with B, yes. Divorce is not necessarily transitive, but “common” is.

Could the partnership model help out here? Surely the 1000-member law firms mentioned above are able to dissolve partially and selectively (i.e. not by the “all or nothing rule”) without the property-relations going to hell. They draft special agreements and contracts for who gets what in the event of dissolution.

Yup, that will work. But it’s a nightmare (or a lawyer’s wet-dream, which is another way of saying “nightmare”) and exactly what common-property regimes are designed to avoid.

Different point:

JH: “But Rauch seems a bit too quick to think he knows just how it would go to hell. A bit more agnosticism, maybe. “

There is reason to be more open-minded about how SSM may work out, and to be less agnostic about how polygamy will work out. SSM has never been tried in anything like the form or scope that it is now being tried. Polygamy has been tried, over and over again, in all lands and periods that we know about. It has always and everywhere worked out badly, esp. for women. Agnosticism about that fact would simply be turning a blind eye to the historical record.

123

bianca steele 07.09.15 at 2:31 pm

John,

So I open Whose Justice? Which Rationality? to a random page and hit on the dispute set up between Blackstone and Stair, pp. 228-235 or thereabouts. You side with Blackstone, I guess, that the pursuit of happiness overrides theological principles, and we need no principles except the passions, so you’re probably correct, if law resorts to first principles before anything else. And maybe it should, lest it deviate too much from common sense morality!

Somewhere in there there’s a typo where I replace “objection” with “argument”. I also forgot Atwood used the Hagar story in The Handmaids Tale already, not in the same way though. She also imagines that there are two tiers of marriage, one for wealthy members of the dominant religion, one called IIRC an “economarriage” for law abiding peons (enemies of the state have their marriages dissolved and then are enslaved). And the rotten apple of the Finland Station link shouldn’t have tainted the arguments in the rest of the crate.

124

reason 07.09.15 at 2:33 pm

Marshall @119
You have got to bit kidding, surely. Co-religionists? I don’t see how committed antagonistic groups of entitled extremists reduces acrimony. Use Syria and Iraq as an illustration in your answer.

125

bianca steele 07.09.15 at 2:34 pm

Cross-posted with 121.

126

John Holbo 07.09.15 at 2:40 pm

“There is reason to be more open-minded about how SSM may work out, and to be less agnostic about how polygamy will work out. SSM has never been tried in anything like the form or scope that it is now being tried. Polygamy has been tried, over and over again, in all lands and periods that we know about. It has always and everywhere worked out badly, esp. for women. Agnosticism about that fact would simply be turning a blind eye to the historical record.”

We’re shaving it pretty fine by the point at which we agree that we should be more agnostic about polygamy than about SSM. My main concern is that everyone should be somewhat agnostic about polygamy, rather than totally sure it must be bad (which many people seem to be.) It’s totally true that the historical record is lousy on this score. But ‘it’s never worked before’ is not, for me, a totally decisive argument. (After all, SSM has never worked before either.) In the post I try to articulate one reason why it might – might! – be different this time. Polygamy, in a society in which SSM is normal, might be different. That’s not a proof. But it’s something to think about.

127

John Holbo 07.09.15 at 2:46 pm

“and we need no principles except the passions”

Bianca and I have been crossposting. Just to be clear: I don’t believe that we need no principles except the passions. I believe in letting people do what they want, because happiness, which is sort of like that. But I also believe the opposite. People have these passionate ‘yuck!’ responses, and I think it’s a good idea to have principles as a check on that.

“And the rotten apple of the Finland Station link”

But Finland Station is Bill Paxton’s character in “Big Love”. Are you sure you are blaming him? (Oh, what a tangled web we weave, just for the sake of not summoning Voldemort.)

128

bianca steele 07.09.15 at 2:56 pm

Well those are eighteenth century passions, like hunger. And I’m not sure why I assumed that being a utilitarian meant you weren’t supporting the Blackstone pursuit of happiness part of the argument. Though I’m also not sure why you think Rauch’s utilitarianism can’t be consistent, but that would be off topic.

129

John Holbo 07.09.15 at 2:58 pm

“Though I’m also not sure why you think Rauch’s utilitarianism can’t be consistent”

To the contrary, I assume it can be. It obviously is consistent. But not all consistent views are correct.

130

reason 07.09.15 at 2:59 pm

John,
I think though you (and perhaps everybody else) is missing a key point. Historical polygamy was always a very unequal relationship (basically an ownership thing). One notable difference with marriage (as it is in most modern legal systems) from most contractual relationships is that it is exclusive. This is both powerful and dangerous. That danger, implies careful regulation. (You can see that easily with for instance employment relationships – that the combination of exclusivity and differences in power is potentially problematic.) It is easy to understand what exclusivity means in a monogamous marriage – but I see it is as very difficult to define in the case of polygamy. In fact, I think legal polygamy must be a different sort of thing (maybe a partnership is the way to see it). I’m not sure you are not making a class mistake here.

131

parse 07.09.15 at 3:00 pm

Perhaps a response to one of the utilitarian arguments against polygamy would be to only legalize plural marriages where the number of female partners was equal to or greater than the number of male partners.

132

oldster 07.09.15 at 3:03 pm

“But ‘it’s never worked before’ is not, for me, a totally decisive argument. (After all, SSM has never worked before either.)”

[Disappointed sigh.]

Do you really want to equate the non-success of things that have never been tried before, with the non-success of things that have been tried before, many times?

“The lack of past success with X, which has never been tried before, does not dissuade us from trying X for a first time. Therefore, the lack of past success with Y, which has been tried ten thousand times and never worked, should not dissuade us from trying it a ten-thousand and first time!”

That’s what you’ve got? You’re going to equate untried experiments in innovation, with the paradigmatic folly of doing the same thing repeatedly and expecting a different result?

133

reason 07.09.15 at 3:03 pm

P.S. To avoid confusion – I’m not saying that polygamy is different than you think it is, I’m saying monogamous marriage is different than you think it is.

134

reason 07.09.15 at 3:08 pm

P.P.S.
To try an even different tack, maybe the legalisation of SSM was dependent on an evolutionary change in HSM (towards a partnership of equals), rather than an extension of the old fashioned notion of marriage.

135

John Holbo 07.09.15 at 3:34 pm

“[Disappointed sigh.]

Do you really want to equate the non-success of things that have never been tried before, with the non-success of things that have been tried before, many times?”

[Sigh at how things are going the way they always do, so why even bother being disappointed.] No, I don’t want to commit an obvious fallacy, but thanks for asking.

I’m, sensibly, encouraging people to remember that we who support SSM obviously don’t believe history is destiny. You learn from history. You don’t take history as a ‘get out of having to consider that the future might contain something new’ jail free card.

“It is easy to understand what exclusivity means in a monogamous marriage – but I see it is as very difficult to define in the case of polygamy. In fact, I think legal polygamy must be a different sort of thing (maybe a partnership is the way to see it). I’m not sure you are not making a class mistake here.”

This is important to think about. Marriage is exclusive. Polygamy isn’t exclusive. So polygamy shouldn’t be allowed. In a sense, the simple response is: well, obviously polygamy is a possible form of marriage. It’s existed before. (So one of the silly arguments against SSM – namely, it’s inconceivable – isn’t going to fly here either.) Polygamy has always been an exclusive relationship that’s a bit more inclusive than monogamy. I think it’s pretty obvious – but worth mentioning – that any relationship that gets recognized as marriage should be exclusive in some sense. It would be weird to have a variable polygamous marriage that worked like so: I’m a guy who gets a new girlfriend every month, and I want to be married to X, where X is that girlfriend, whoever she happens to be. And then if X = you, you get covered by my health insurance (or inherit my property if I die this month, or whatever.) That would be weird, granted. But I think this just gets back to the realism point: realistically, the law is never going to say ‘now anything that is even a barely non-contradictory form of polygamy is legal, however absurd’. It’s obviously going to be restrictive to well-definable, exclusive relationships of some sort(s). I don’t pretend that this is easy or obvious. The point that this is just very snarly, legally, is certainly important.

136

JanieM 07.09.15 at 3:35 pm

Yes, okay, in a way it was a dumb question (polygamy vs polyamory). In another way, in my pre-caffeine morning brain, what I was trying to get at was: both terms refer to relationships among more than two people; and neither term constrains what the genders of the people are (unlike polygyny or polyandry).

*****

Perhaps a response to one of the utilitarian arguments against polygamy would be to only legalize plural marriages where the number of female partners was equal to or greater than the number of male partners.

What would be the point of that? It seems like just a way to reproduce the inequities of e.g. Mormon-style polygamy, it precludes, for a woman, the option of having several male partners if she wants to, and it also precludes partnerships among groups of gay men.

So, huh?

137

Will Wilkinson 07.09.15 at 3:39 pm

FWIW, I took a quick crack at this the other day. http://www.economist.com/blogs/democracyinamerica/2015/07/marriage-and-polygamy I think the empirical arguments against polygamy drawn from the patriarchal, ineqalitarian illiberal past and present begs the question in a pretty bad way when monogamy was a patriarchal inegalitarian illiberal institution until, like, ten minutes ago.

138

reason 07.09.15 at 3:58 pm

“Marriage is exclusive. Polygamy isn’t exclusive. So polygamy shouldn’t be allowed.”

That is not what I’m saying at all. What I am saying is that they not obviously the same sort of thing. And the history doesn’t help – hence my P.S. & P.P.S. because I don’t think marriage is the same as it was in the past. In the past “a man took a wife”, and maybe “he took another”. Nobody thinks about things that way anymore. (Hence there is no question about who plays what role in the SSM).

139

Lee A. Arnold 07.09.15 at 4:00 pm

Solidly against polygamy, because I think that the SSM right follows from biological necessity, no matter what the Court construed. I would require the proof that a society, or most of it, accepts that some people are born polygamous in the way that a society, or most of it, accepts that some people are born homosexual (which has been accepted for millennia, no matter what Tony Scalia says).

Until then, I would rule out polygamy for moral and legal reasons. It isn’t needed morally. People are already polyamorous in monogamy, whereas they cannot be homoamorous in heterogamy. That is pretty much the practical point of SSM.

The legal questions resulting from polygamous property rights will necessitate so much new law that it overwhelms, for me, any justification by abstract individual rights to the new institution.

It’s also not clear to me that in reality, individual rights would be increased. I worry about stuff like a bunch of teenage girls, just over the age of consent, all running away to marry the same charismatic Svengali with a boombox and guitar, and then having to sort out those disasters legally and psychologically. It’s hard enough, the damage we all help to sort-out from some dysfunctional one-on-one relationships of our own acquaintance, both straight and gay: Individual subjugation also results from individual rights, and there is too much of it already.

140

parse 07.09.15 at 4:02 pm

JanieM, now it’s my brain that’s misfunctioning, and I’ve had my caffein. I mean to say marriages where the number of male partners was equal or greater than the number of female partners were the ones that would be permitted, to avoid Rauch’s nightmare scenario of privileged men scooping up more than their share of available women.

But your point about group marriages of gay men suggests another possibility, like carbon trading; a man can marry two women as long as he gets a sign off from a gay man who is marrying another man so that the gender balance of available partners is preserved.

141

Dean C. Rowan 07.09.15 at 4:09 pm

FWIW, PLoS ONE on gender distinctions in patterns of social networking: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0118329 “Here, we present cross-cultural evidence for gender differences in the preference for close friendships. We use a sample of ~112,000 profile pictures from nine world regions posted on a popular social networking site to show that, in self-selected displays of social relationships, women favour dyadic relations, whereas men favour larger, all-male cliques. These apparently different solutions to quality-quantity trade-offs suggest a universal and fundamental difference in the function of close friendships for the two sexes.”

142

JanieM 07.09.15 at 4:14 pm

People want to do this thing….

If there is something a lot of people really want…

People have touched on this, explicitly and by implication, but separate from all the deep philosophical questions, the practical side of this issue hinges on the mushing together of the deities only know what variety of constellations and arrangements under the misleading label “this thing” — as if it was just one thing, and we knew what it was. In reality, at this point it’s nothing more specific or carefully defined than “more than two.”

If you want to start a political campaign to try to get polygamy legalized (unlike, say, just flaming about it), sooner and later you’re going to run into the question of what thing it is, exactly, that you’re asking for. And then there’s going to be a big problem, because I’d bet that if you found a thousand people who said they wanted polygamy to be legal because it would make their lives happier, you’d find several hundred different definitions of what they thought they were talking about. Several hundred of the thousand would probaby want Mormon- or Muslim-style arrangements, and the rest would be all over the map.

During the years when SSM was being fought for in the U.S., people often gave “over a thousand” (counting state and federal) as the number of rights and responsibilities encoded in the law that gay couples were being denied because they couldn’t get married. As other people have written or implied in this thread (most vividly Bloix @82), every one of those provisions is currently framed on the assumption that the number of partners in the marriage is two. Every one of those provisions would have to be examined and perhaps revised to specify how things would work in a more-than-two partnership. This isn’t impossible, but it’s not a minor task either, and tackling it would surely require at least a rough consensus among the people lobbying for the right to more-than-two marriages.

Trying to think through how it would work leads me in two directions:

First, some of the complication of more than two (social security survivor benefits, for instance) could be eliminated if we had a decent, universal, birthright social safety net. Fat chance, at least in the U.S.

Second, maybe instead of an automatic, predefined bundle of a thousand rights and responsibilities, any pair or group who wanted to get married could check off which of the rights and resonsibilities they were signing up for. Some configurations would be forbidden as being exploitive, others would require more than a simple checkbox to define.

But at that point, why even keep calling it marriage?

*****

Personally I tried it for a very long time (obviously not in a legalized arrangement), and you couldn’t get me to do it again for any consideration. But if people want it, and they can form a coherent program for working toward it, at the very least it will generate a lot of interesting ferment in terms of people having to think through what marriage actually is and should be.

143

JanieM 07.09.15 at 4:16 pm

A little off to the side, I wonder: if there’s such a slippery slope, why isn’t it leading people to lobby for the right to be bigamists? I mean, if we’re throwing it wide open, why not that too? Surely a lot of people would be happier if they could be legally married to two people who weren’t married to each other. (I have known, in my own life, at least one person who could have made his second set of offspring legitimate if he could have married both mothers.) It’s interesting to think that people who might want that kind of arrangement aren’t writing about it out loud (at least as far as I know), whereas this business of SSM entailing polygamy has been infiltrating discussions of SSM for years.

Are people ashamed of being “bigamists” whereas they’re not ashamed of polyamorous relationships? If so, that’s fascinating.

144

oldster 07.09.15 at 4:19 pm

Lee A. Arnold:

“People are already polyamorous in monogamy, whereas they cannot be homoamorous in heterogamy. That is pretty much the practical point of SSM.”

Uh, what? Married men have sex with women they are not married to, and that counts as being “in” monogamy? Married men have sex with men they are not married to, and that does not count as “in” heterogamy?

I just don’t understand what your claim is here. Has not traditional, monogamous and heterogamous marriage been considered a barrier to “polyamory” (sc. adultery with the opposite sex) just as much as it has been considered a barrier to “homoamory” (sc. adultery with the same sex)?

145

reason 07.09.15 at 4:24 pm

JanieM @141
Thank you, very useful.

146

Patrick 07.09.15 at 4:31 pm

Am I the only one who thinks that patriarchy and misogyny were never valid reasons to ban polygamy in the first place, because adults who want to screw up their lives by degrading themselves for religious reasons should not be prevented from doing so, and can deal with the consequences of their bad choices on their own?

147

Z 07.09.15 at 4:33 pm

People want to do this thing….
[…]
If there is something a lot of people really want…

I’m with JanieM, as I was already @15. The debate is largely meaningless because we don’t know (yet) what is this thing some people want.

148

Anderson 07.09.15 at 4:47 pm

I don’t have a “yuck” response to polyamory.

I have a “how’s that tax return gonna look?” response to polyamorous marriage.

149

Nepos 07.09.15 at 5:01 pm

Long, confusing theoretical debates aside, is there actually a significant movement to legalize polygamy? Most polyamorous groupings that I’m familiar with aren’t particularly interested in legal group marriage. Even the majority of fundamentalist Mormons have worked out a reasonable system where the “first wife” is the legal one and the others work out an informal system of privileges and responsibilities. And the extreme polygamists (like Warren Jeffes) don’t care whether the government recognizes their marriages.

I realize that conservatives like hyperventilating about worst case scenarios and slippery slopes, but I just don’t see any evidence that legal polygamy actually has enough supporters to make the necessary push.

150

JohnD 07.09.15 at 5:06 pm

Another small practical snag with true polygamy in many countries: one of the key benefits of marriage in many countries is automatic assignment of children in a marriage to the husband. In ancient one-husband polygamy this was also fine (in fact, the way it enabled one man to have many recognised children was almost the point of the institution). Modern polygamy would clearly have to allow multiple husbands for one woman, which means that presumably either one of the husbands would have to actually claim paternity, or you have to register more than 2 parents, which would break a lot of other legal structures. I think the mix of these kind of practical legal issues, and the ‘algebraic’ issue strongly suggest that true polygamy would have to be built up as a completely new construct, which just wouldn’t look very much like traditional marriage.

151

Lee A. Arnold 07.09.15 at 5:48 pm

Oldster #143: “I just don’t understand what your claim is here.”

It was a clumsy way of stating that polygamy doesn’t meet the same degree of individual moral or legal need as SSM. Because without SSM, some gays cannot get what they want and need: a lifetime of physical, moral, legal commitment. If someone says that they want the lifetime of physical, moral, legal commitment of a polygamy, they ought to explain why an open monogamous marriage won’t already fulfill those conditions. (It could be a religious freedom explanation, but in that case the courts might want proof of the established corporate religion of all involved). Perhaps I should rewrite it though no less clumsily as, “you can step outside a marriage and have sex (and that may or may not be with your marriage partner’s consent), but you obviously can’t have same-sex with your marriage partner of the opposite sex, by definition”. So SSM is in my opinion a human right, but it does not automatically rule-in polygamy.

Sorry for confusion, but I was just using the anthropological (not traditional) definition of monogamy. It’s true, as you write, that traditional monogamy rules-out cheating or an “open marriage”.

152

Trader Joe 07.09.15 at 6:07 pm

@147
“I have a “how’s that tax return gonna look?” response to polyamorous marriage.”

Anderson, buddy, please take the afternoon off – hit whatever your local version of the Gold Club is, and come back to the discussion when you have the right frame of mind to think about the full range of implications, positive and negative, of polyamorous marriage.

153

oldster 07.09.15 at 6:08 pm

LAA–thanks. I figured there was something I was missing.

154

TM 07.09.15 at 6:48 pm

I can’t believe nobody has stated the obvious yet: Polygamy is sanctioned in the Bible so what could be wrong with it? After all, 30% of Americans claim to be Biblical Literalists.

155

TM 07.09.15 at 7:07 pm

As an aside, I can’t believe this was actually written: “Soon, it will be time to turn the attention of social liberalism to the next horizon.”

156

reason 07.09.15 at 8:22 pm

Patrick @145
“Am I the only one who thinks that patriarchy and misogyny were never valid reasons …”

a. Were they in fact historically the reasons?
b. Yes you probably are the only one thinking like that.

157

reason 07.09.15 at 8:30 pm

Look John H. I’m not sure how serious you are with this, but from my point of view you look a lot like the Black Knight in Holy Grail. You keep concedeing on why I see as key points, but think your argument is still standing.

You agree that SSH was not a threat to the status of HSM, but concede that Polygamy might well be.
You agree that SSH was a logical extension of HSM, but the legal issues involved in Polygamy are much more complicated.
You agree that Polygamy doesn’t fit into the same exclusiveness structure that is used to define marriage.
You agree that people wanting to practice polygamy and enter into some sort of property trust are not stopped from doing so.

So all told – any use of SSM as a stepping stone towards Polygamy is out the window. Sure we could still hold legalising Polygamy in some form as a potential possibility. But as other people have pointed out, good luck with the politics (not to mention the legal complications).

158

Dean C. Rowan 07.09.15 at 10:03 pm

“I’d like to have an argument, please.”

159

Moz of Yarramulla 07.09.15 at 10:14 pm

I would require the proof that a society, or most of it, accepts that some people are born polygamous in the way that a society, or most of it, accepts that some people are born homosexual

Now that I’ve stopped laughing, can I point out the enormous lengths most societies go to specifically to discourage and (futilely) prevent polyamory and (more successfully) polygamy? We have specific laws against the latter and the named crime of bigamy to describe it. I knwo very few people who think traditional monogamy is possible, let alone reasonable, so the term has become in modern usage what used to be called “serial monogamy”.

As another example, the Christians have mostly decided to stop talking about old testament marriage because it’s no longer allowed. King Solomon with his hundreds of wives and concubines; the legal differences between a slave used for sex, a concubine and a wife; the requirement that a man marry his brother’s widow (pity the youngest brother in a big family who could end up inheriting several wives). These days it’s all holy monogamy or serial monogamy and “moving right along the word of god is eternal and unchanging nothing to see here”.

If society didn’t recognise that those things are natural they wouldn’t have to do anything to stop them. We don’t have social pressure and laws to prevent people flying by flapping their arms, for example.

160

Moz of Yarramulla 07.09.15 at 10:29 pm

reason @156

You agree that people wanting to practice polygamy and enter into some sort of property trust are not stopped from doing so.

That seems like a strange thing to agree to, since it’s not actually true.

As I said before, the legal system is conflicted about this and it only seems to work if everyone agrees before they deal with the legal system… so it doesn’t work. The legal system is there specifically for when people don’t agree. What will happen, do you think, when two women can both prove to the required standard that they were in de facto relationships with the same man? I predict even less justice than usual.

There are huge social issues as well. “not prevented from…” Hmm. Some examples.

I ring my local school and say “we want to enrol our child”. They say “name the parents”… but there are only two slots in their system and we have four parents. In a sensible school they might, possibly, have a “step-parent” position or two. But since a child can only have two legal parent-or-guardian’s, most don’t bother. And I’m not a step-parent, I’m a parent, 1/4 of the parents my child has.

We go on holiday, just us adults. We check into a hotel, asking for a room with two double beds as we’re a married quad. Might work in the northern continental US, in the better hotels. Unlikely to work in Arkansas.

My wife goes into hospital. My husband is with her at check-in, so is recorded as THE spouse. I go to visit her, taking one of our kids. Probably ok during visiting hours, unlikely to work at other times if she’s not awake and demanding they let us in. Too bad if her phone isn’t on, or she’s asleep or something.

I’m told that in the USA it’s common for rental agreements, and sometimes housing association rules for homeowners, to restrict the number of unrelated adults living in the same house. I’m not married to my siblings, so in those situations I’d have to break the rules or pick which of my spice I wanted to live with.

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Anderson 07.09.15 at 10:33 pm

“when you have the right frame of mind to think about the full range of implications, positive and negative, of polyamorous marriage.”

And what would that frame of mind be, O Sage?

As 159 points out, the practical difficulties are acute.

162

Raven on the Hill 07.09.15 at 10:56 pm

I am not sure I entirely follow the OP or the following arguments, but when did that ever stop an internet commenter? So I will put some remarks, and hope they provide illumination.

Personally, while I am glad to see gays included in civil marriage, I am dubious of the process by which it was achieved, because it leads exactly to the difficulties we are discussing here. Stretching the law at need is a poor substitute for public debate and legislative process, yet there was no hope of rational public debate and legislative process in this matter. As with anti-lynching laws, a small minority of reactionaries were blocking the whole thing and would have done so for the indefinite future, so there was no recourse but to drag the matter to the courts.

As to the subject at hand, perhaps my views might be utilitarian. I have seen successful triples and open marriages and here, perhaps, civil law could be of some use. Rauch discusses some ways in which patriarchal polygyny fails. But modern egalitarian models also fail, drastically, heart-breakingly, painfully. A major problem is that group marriages seem to attract sexual and financial predators. One popular author who told excellent stories about group marriage turned out to be a creeper. Another turned out to be an outright abuser.

There may be spectacular success stories that I don’t know about; failure is drama, and material for stories, while success is essentially undramatic. Still, it is hard enough to resolve the disputes between two married people; it seems to me it would be exponentially harder, the more people involved.

I don’t think this is a problem that admits of a general solution based on universal moral or legal principles. Instead, it seems to be one of those problems that proliferate into endless special cases, and so far I do not see a way to simply those.

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js. 07.09.15 at 11:01 pm

guess what the future of polyamory is like in a world in which SSM is a normalized option

This again strikes me as a bizarre thing to say. Surely, it’s not the legal acceptance of gay marriage that matters but the social acceptance of gay life (esp. if we’re talking about polyamory). And the fact that we as a society can only conceive of the latter in terms of the former is, frankly, a problem. (Tho evidently I’m the only person who thinks so.) But it’s completely pervasive, this conflation of two completely different things within the idea of marriage. At one extreme you get something like this:

the SSM right follows from biological necessity

I don’t mean to pick on Lee A Arnold because I understand what he’s trying to get at, and again because the tendency is completely pervasive. But the thing said is absurd. How could marriage of any sort (or an entitlement to marriage of any sort) follow from biological necessity? It’s like saying pants follow from biological necessity because we are, after all, bipeds. But almost no one notices that this conflation even exists.

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Paul 07.09.15 at 11:14 pm

It’s really very simple. Heterosexuality is a gender attraction identity. Homosexuality is a gender attraction identity. There is also bisexuality which is some manner in between. Everyone on the planet is essentially one of these. Therefore, as Justice Kennedy so eloquently explained, all are entitled to marry the gender that matches their orientation, within common sense limits of not marring someone too young or an immediate family member because of the widely agreed upon harm that that causes.

Marriage is a lifestyle. Monogamy is a lifestyle. Being single is a lifestyle. Polygamy is a lifestyle. Lifestyles can be good, bad or indifferent, and it can be a matter of proper debate. We can decide which lifestyles to legally sanction and we have done so. It is highly unlikely we will go further than marriage (gay or straight), and in any case it does not logically follow from gay marriage – it’s apples and oranges.

Any one is free to make the case for polygamous marriage, but I doubt it will ever happen. One can certainly love more than one person, (I do), but at some point you have to make a choice, if you possess maturity and presence of mind. In my opinion, the problems with legal polygamy are huge.

Now I know a lot of liberals will call polygamy an identity, and a lot of conservatives call homosexuality a lifestyle. They are both wrong.

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John Holbo 07.09.15 at 11:31 pm

“Look John H. I’m not sure how serious you are with this, but from my point of view you look a lot like the Black Knight in Holy Grail. You keep concedeing on why I see as key points, but think your argument is still standing.”

If you agree with what I’ve been saying, then I’m happy to be the Black Knight. “It’s only a flesh wound!” You are welcome to regard my late comments as a total walk-back of the post. I regard them as a clarification of what I more or less had in mind from the beginning.

Everyone is a winner, so long as the loser – whichever he may be – is confused enough to think he’s the winner!

“I don’t have a “yuck” response to polyamory.

I have a “how’s that tax return gonna look?” response to polyamorous marriage.”

Presumably that IS a yuck response, at any rate.

“People have touched on this, explicitly and by implication, but separate from all the deep philosophical questions, the practical side of this issue hinges on the mushing together of the deities only know what variety of constellations and arrangements under the misleading label “this thing” — as if it was just one thing, and we knew what it was.”

In a sense this is a bit unfair. One point in the post was precisely that we just don’t know what size and shape(s) of polygamous relationships people might decide suit them, if the stigma were ever removed. That does not presume there is one ‘thing’ or that we know what it is. It presumes the contrary on both scores. But the points you make, that follow from seeing people would probably be all over the place, are good ones.

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John Holbo 07.09.15 at 11:47 pm

Perhaps it would be useful to distinguish two lines of critique of the polygamy proposal.

1) It’s bound to turn into that bad old thing we know so very well. And it’s bad.

2) It’s likely to proliferate into such an unknowable variety of things – many very bad, some probably just fine – that it strains credibility that a good law can be crafted. Hence this probably isn’t a job for the law. Maybe it’s a job for: getting the state out of marriage? Or civil reforms of a lighter touch variety.

Both critiques are at least reasonable. But they sort of contradict. I think 2 is much more likely to be on the mark. One thing that set me off about Rauch was that he seems solidly in the 1 camp. But most commenters here are in the 2 camp.

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John Holbo 07.10.15 at 12:07 am

Apologies to Will Wilkinson #137 for the way he was stuck in moderation while I slept.

Hi, Will!

He links to his piece at the Economist:

http://www.economist.com/blogs/democracyinamerica/2015/07/marriage-and-polygamy

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Rich Puchalsky 07.10.15 at 12:17 am

deBoer, whatever the faults of his positive arguments for support of polygamous marriage, was essentially right about how liberals would argue about it.

For the rest, addictions are hard to shake and undignified to watch. The spectacle of people saying “SSM is here — that’s great, but what will I do without the fix of analyzing yet another conservative’s opinion on what Real True Marriage is?” and then turning and shooting up polygamy arguments right away is a little bit sad.

169

John Holbo 07.10.15 at 12:23 am

“… is a little bit sad.”

Where would you be without folks like me to make you a little sad, ergo a little happy, Rich!

170

bianca steele 07.10.15 at 12:31 am

@Will Wilkinson

I think it’s pretty widely accepted that the move from polygamy to monogamy is part of the move toward equal status for women and egalitarian marriages. The argument that polyamorous people like Moz should be able to visit their loved ones in the hospital and make custody arrangements that suit them (I actually don’t know what the legal status is of step-parents I know of who are doing half or more of child-rearing for kids their spouse has joint custody of) is very different from the argument that people who feel traditional polygamous marriage suits them should be able to do what they like, or that it should be allowed for one spouse in a two-person marriage to take their lover into the household. Should all the things men used to be able to do, like take control of their wife’s property, be turned back into a valid form of marriage? I feel like people should be able to live in communes if they like, and raise their kids communally if they like, but I’m not convinced it would be a good idea if they all had joint custody of each kid and were treated as a family for tax purposes and so on.

Re. the Black Knight, I can’t believe no one’s mentioned that before.

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oldster 07.10.15 at 12:35 am

As I recall, by the end of the fight the Black Knight was mono-gam-ous.

172

The Raven 07.10.15 at 12:49 am

“Getting the state out of marriage” would require abandoning the de jure fatherhood’s and children’s granted by marriage. I don’t think that’s going to fly. Modern technology and law has provided some de facto rights in this area, but that is not yet developed law, and I have doubts: it seems to me that those rights defined in this way would require the development of a body of common law which made those rights dependent on a long-term relationship between biological parents, which sounds remarkably like civil marriage.

173

js. 07.10.15 at 1:19 am

The spectacle of people saying “SSM is here — that’s great, but what will I do without the fix of analyzing yet another conservative’s opinion on what Real True Marriage is?” and then turning and shooting up polygamy arguments right away is a little bit sad.

I don’t know if you meant to include me among the “liberals” but I do hope it’s reasonably clear that I haven’t been arguing against polygamy per se. It just seemed a good occasion to argue against marriage. (And in fact, if you go back and look, not being so hot on the fight for gay marriage was my unpopular opinion on Belle’s “safe thread” from however many months ago.)

(Partly spelling this out because I often fear that my comments are too elliptical and no one actually understands what I’m saying.)

174

Moz of Yarramulla 07.10.15 at 1:21 am

Note that a chunk of the technical issues aren’t present in other countries where the government isn’t subsidising married couples. In Australia, for example, ticking “have spouse” and supplying a tax number doesn’t change my tax return.

The only place it might have some effect for us is where the government is propping up private health insurers by giving people back 1/3 of the premiums as well as taxing people who don’t have it, and we could have some combination of “family” memberships if we chose to support that wrong. Then we’d have to decide who claimed the premiums as deductions and who was covered. We can’t, BTW, buy family health insurance as a family, we need to have at least two separate policies (and split the kids between them). There’s no legal reason for that, it’s purely a social/ commercial decision by the insurers.

Right now blended families make marriage law so complex that I suspect it wouldn’t be much harder to add polygamy. I have seen one “monogamous” relationship breakdown that involved children and property split between five adults. She broke up with her de facto while they were living in a house owned by him, his ex-wife and her ex-husband, and there were kids by I think three combinations of those adults. AFAIK all the adults had contributed financially to the property, but they managed to sit down all in the same room and come up with a settlement that none of them was willing to challenge in court. Which is what counts. At least in that case society and most judges have accepted no-fault divorce and remarriage, and some are even starting to accept that men can be parents.

Incidentally, the USA recently saw a black man accepted as a parent in South Carolina after the birth mother tried to adopt the baby out. So there’s also an argument that we should focus on more important things that affect more people first. OTOH, ending racism and sexism in the USA is a very long-term project, and I suspect that the people who run the country will be more likely to accept “rich white people polygamy” than “stop cops shooting black men”, just going by the number of people who don’t regard the latter as a vote-changing issue. Ahem.

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John Holbo 07.10.15 at 1:29 am

“I don’t know if you meant to include me among the “liberals” but I do hope it’s reasonably clear that I haven’t been arguing against polygamy per se.”

I think Rich is complaining about the liberals defending polygamy, js. He thinks we are doing it only as an excuse to say conservatives are dumb, which spares us the more uncomfortable work of self-critique.

176

John Holbo 07.10.15 at 1:39 am

I could be wrong. Maybe by ‘shooting up’ Rich meant ‘shooting down’. I am sure he will be happy to clarify.

177

Lee A. Arnold 07.10.15 at 1:44 am

Moz Yarramulla #159: “…can I point out the enormous lengths most societies go to…”

…to do lots of things? Sure, but it doesn’t get you anywhere.

For one thing, you seem to have confused what is “natural” in your dictionary with what is “born” in mine. There are about 25 countries which allow polygamy, and about 25 which now allow same sex marriage, and so far as I can tell they don’t intersect. The countries which allow polygamy, do so out of traditional tribal custom. The countries which allow SSM appear to have decided that it an enlightened thing to do, because people are born that way, i.e. it’s just biology, with a physical imperative.

So please come up with evidence that people are born to be either monogamous or polygamous. Don’t bother adducing evidence from other species in the rest of the animal kingdom, whether pro or con; that isn’t the way people have made this decision.

For another thing, the question wasn’t about most societies, it was about the United States after Obergefell v. Hobson.

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JanieM 07.10.15 at 1:45 am

I thought it was a pun on “shooting up” (like an addict) and “shooting up” as in shooting up the place (with a gun), which I suppose could be the same idea as shooting down. It doesn’t make a lot of sense to me regardless, because I don’t think people’s attitudes toward polygamy match up very well with liberal/conservative. When people in recent years inserted the topic of polygamy into discussions I was involved in about SSM, they could be conservatives going on about the slippery slope, proponents of polygamy wanting to catch onto the coattails of the SSM movement, or proponents of “getting the state out of marriage entirely.”

Anyhow, poor Rich, we can never live up to his standards, I don’t know why he puts up with us.

179

js. 07.10.15 at 1:59 am

I thought it was “shooting up” as in shooting down. JH, you’ve read the the deBoer, right? In which case would he be proved “essentially right”?

180

JanieM 07.10.15 at 2:03 am

A paragraph that said additions are hard to watch, then talked about people “shooting up”? You really think it has nothing to do with that juxtaposition?

181

JanieM 07.10.15 at 2:04 am

“additions” –> “addictions”

Time to stop.

182

Moz of Yarramulla 07.10.15 at 2:14 am

Lee A. Arnold @177

confused what is “natural” in your dictionary with what is “born” in mine … please come up with evidence that people are born to be either monogamous or polygamous.

I don’t understand your distinction between “natural” and “born”. Can you explain that, perhaps using an example like homosexuality. How is homosexuality something people are born to be in a way that monogamy or polygamy aren’t? That’s why I look at where marriage came from, and in the USA that’s very much a religious tradition that doesn’t involve pure monogamy (traditional or modern forms). In the USA polygamy has been both legal and illegal at different times, and the definition of who can marry has changed so often I’m surprised people can keep up. The ages, genders, races and numbers have all changed.

To me, anything that requires significant social pressure to partially overcome is something that’s natural, that people are born to do. Whether that’s violence, speech or heterosexuality. But I welcome anything you can do to clarify that apparently crucial distinction.

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js. 07.10.15 at 2:15 am

JanieM — you’re a better reader than I am. Obviously, that makes so much more sense now.

(I haven’t read the deBoer or the Rauch, but was trying to work off what I thought deBoer’s anticipated “liberal reaction” would be.)

184

Moz of Yarramulla 07.10.15 at 2:23 am

Lee A. Arnold @177: calls to “please come up with evidence” from someone who hasn’t produced any themselves are a bit rich. I’m using my lived experience, so claims of “natural” and “born” … yeah, nah. You want to start introducing evidence for claims, lead by example.

It’s also funny when you transition from “there are 25 countries that…” to “we’re only talking about one court decision in the USA”.

185

JanieM 07.10.15 at 2:30 am

js. — eh, just this once. ;-) Although the mention of a “fix” kind of cues it too.

I didn’t read the deBoer or Rauch either. I had seen (skimmed) something else by deBoer recently on this subject; on that occasion I quit reading when I realized who was writing. HWSNBN indeed.

Maybe it’s ‘s frustrating for JH that we don’t all read this stuff, but it’s more than I can do to keep up with CT itself. And I, like Rich (or as I interpret Rich) really don’t care to devote a lot of attention to the conservatives that seem to fascinate John so much. As a gay person who has lived through seven or eight referenda in my state concerning civil rights and SSM (not to mention all the national attention to the subject), I have heard much more than I ever needed to from conservatives about these topics.

Still, having lived for many years in an open relationship, having had two kids without being married, having gotten married and divorced, and in general having lived a massively complicated and messy relationship life, I do find the subject of polygamy interesting…..

186

Consumatopia 07.10.15 at 3:02 am

If you just want civil unions or reforms to property and family law, then there’s no reason for you to care what other people think Marriage™ really is. But if you’re asking for the government and community to actually recognize your relationship an official marriage, then, well, aren’t other people’s opinions kind of the whole point? SSM activists didn’t merely want gay relationships to be legalized, they wanted them to be normalized. And that means engaging with what other people think.

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Lee A. Arnold 07.10.15 at 3:16 am

Moz Yarrramulla #182: “How is homosexuality something people are born to be in a way that monogamy or polygamy aren’t?… anything that requires significant social pressure to partially overcome is something that’s natural, that people are born to do…”

I think you answered your own question. Homosexuality cannot be overcome, even partially, by social pressure. So the word “natural” (to you) does NOT include homosexuality, which we must now call “ontologically irreversible or irrevocable”.

I will go so far as to suggest that this is the real reason that same sex marriage is now accepted in the United States (quite apart from the Supreme Court’s legal reasoning). It is because gays have no choice, and most people accept that about them, now. SSM wouldn’t have happened otherwise. I don’t think that de Boer or Rauch even mention this. It wasn’t always so: a lot of people believed that homosexuality was a choice, and that religion would cure it, and so on and on.

So gays had to hide. Their being was NOT overcome by social pressure, they just hid.

Now it is also true that gay marriage is accepted now because it has become clear that homosexuality does not harm “society/children/third parties” (as John Holbo writes above) — but this is a secondary reason. More important is that people now realize that many CHILDREN are gay, that this is not a choice, not superfluous, that they were born this way. They are on the right track, baby. Moz Yarrramulla #182: “How is homosexuality something people are born to be in a way that monogamy or polygamy aren’t?… anything that requires significant social pressure to partially overcome is something that’s natural, that people are born to do…”

I think you answered your own question. Homosexuality cannot be overcome, even partially, by social pressure. So the word “natural” (to you) does not include homosexuality, which we must now call “ontologically irreversible or irrevocable”.

I will go so far as to suggest that this is the real reason that same sex marriage is now accepted in the United States (quite apart from the Supreme Court’s legal reasoning). It is because gays have no choice, and most people accept that about them, now. SSM wouldn’t have happened otherwise. I don’t think that de Boer or Rauch even mention this. It wasn’t always so: a lot of people believed that homosexuality was a choice, and that religion would cure it, and so on and on.

So gays had to hide. Their being was NOT overcome by social pressure, they just hid.

Now it is also true that gay marriage is accepted because it has become clear that homosexuality does not harm “society/children/third parties” (as John Holbo writes above) — but this is a secondary reason. More important is that people now realize that many CHILDREN are gay, that this is not a choice, not superfluous, that they were born this way. We love them as they are. They are on the right track, baby. End of discussion.

By contrast, there is no evidence (that I know of) which shows that marriage, mono or poly, is an ontologically irrevocable condition of human beings. Reproduction, certainly. But marriage is an institution, a choice of the society. It is not the same kind of thing as sexual preference, which is a condition of being.

Therefore my argument is that 1. SSM does not entail the acceptance of polygamy, and 2. the individual right to polygamy would not outweigh any moral gain (which is negligible, because there is already a right to polyamory and open marriage) and it certainly does not outweigh the burden of additional legal complexity. (Observe, by the way, that Obergefell v. Hobson reduces legal and contractual complexity, although this is a minor point in addition to the right to your own irrevocable being.)

Now I happen to believe that people have a right to their own religion so if it should turn out that the challenge to allow polygamy was made on the basis of a recognized, established religion, that would change my answer. But not somebody starting a religion just to have a harem. End of discussion.

By contrast, there is no evidence (that I know of) which shows that marriage, mono or poly, is an ontologically irrevocable condition of human beings. Reproduction, certainly. But marriage is an institution, a choice of the society. It is not the same kind of thing as sexual preference, which is a condition of being.

Therefore my argument is that 1. SSM does not entail the acceptance of polygamy, and 2. the individual right to polygamy would not outweigh any moral gain (which is negligible, because there is already a right to polyamory and open marriage) and it certainly does not outweigh the burden of additional legal complexity. (Observe, by the way, that Obergefell v. Hobson reduces legal and contractual complexity, although this is a minor point in addition to the right to your own irrevocable being.)

Now I happen to believe that people have a right to their own religion so if it should turn out that the challenge to allow polygamy was made on the basis of a recognized, established religion, that would change my answer. But not somebody starting a religion just to have a harem.

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Rich Puchalsky 07.10.15 at 3:17 am

It was a drug joke, as I (wrongly) thought would be obvious from “fix” and “addiction” etc. It was intended to mean that as soon as we finally reached a political condition in which no one had to care about what marriage “really was” for a while, some people just couldn’t give up the sweet, sweet thrill of the next new iteration of the same old thing.

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Lee A. Arnold 07.10.15 at 3:24 am

That’s odd, I don’t know how that happened. To make it simple:

Moz of Yarramulla #184: “…calls to “please come up with evidence” from someone who hasn’t produced any themselves are a bit rich.”

–Sorry Moz I think it is now pretty much accepted among scientists and medical doctors that homosexuality is not a chosen condition, whereas marriage is an institution. If you are phoning this in from a time-machine telephone booth in 1950, maybe your temporal distortion is what caused that crazy glitch —

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John Holbo 07.10.15 at 3:26 am

“It was intended to mean that as soon as we finally reached a political condition in which no one had to care about what marriage “really was” for a while, some people just couldn’t give up the sweet, sweet thrill of the next new iteration of the same old thing.”

Oh good. My sense that Rich was probably just repeating himself didn’t let me down.

191

Rich Puchalsky 07.10.15 at 3:30 am

Everyone else was — why shouldn’t I join in the fun?

192

Moz of Yarramulla 07.10.15 at 3:42 am

Lee A. Arnold @187

Homosexuality cannot be overcome, even partially, by social pressure. … So gays had to hide … But marriage is an institution, a choice of the society

I agree completely with you on that. But I observe that polyamory is equally resistant to social pressure and therefore should have the same legal status as homosexuality. You seem to conclude that because it can be hidden, it doesn’t need legal protection. But only for polyamory, hidden homosexuals are apparently different in some way.

I am very tempted to argue that anyone who has ever loved more than one person is polyamorous rather than monogamous, because monogamy is loving one person. But that would be tedious wordplay. The underlying point, though, is that many people currently practice polyamory in the broadest sense, they just call it “being unfaithful”, “an open relationship” or “we’re still friends (who have sex sometimes)”. You see those people as an argument for denying polyamory and refusing polygamy, I see them as an argument for making their choices open and explicit.

1. SSM does not entail the acceptance of polygamy, and 2. the individual right to polygamy would not outweigh any moral gain (which is negligible, because there is already a right to polyamory and open marriage)

I wasn’t arguing that SSM was necessarily polygamous. We agree on point 1. I haven’t mentioned moral rights at all. Can you link to the legislation or case law that defends the “right to polyamory” and “right to open marriage” that you claim exists in US law? To me that would be an excellent starting point to extend the right to polyamory to the right to polygamy. But the mere non-existence of bans or lack of legal penalties is not the same as an affirmative right. Hopefully we can agree on that much?

and it certainly does not outweigh the burden of additional legal complexity

I’ve already spoken to the “additional complexity”, which is an argument against divorce, remarriage, joint custody and so on as much as it’s an argument against polygamy. Probably more so, at least initially, since there are currently more openly divorced people than polygamous ones.

In many ways we’re in the “no gays in Russia” stage of the poly debate, because as I have repeatedly mentioned there are very real legal and social consequences to people being out as poly. Until I can stand up in court and say I’m poly without that negatively affecting my chances of getting custody of my child, any wittering from the sidelines about “it’s not illegal” is pure denial.

193

Moz of Yarramulla 07.10.15 at 3:59 am

FWIW, scientific evidence for the existence of monogamy in humans is scant to non-existent, and what there is is contested. Evidence that some people and societies choose “monogamy” is obviously common, but evidence that those decisions were widely flouted is also common. There are a lot of questions around how people define marriage (which is why I’m scare quoting monogamy in this context), and widespread legal marriage as we understand it today is so recent that in most cases it post-dates literacy (for example).

I have ancestors who were “parish married” under names that are only ever referenced in the parish records, and in one case we think that a female ancestor was baptised under one name, adopted, then married under another. We know she was adopted, but we don’t have parish records of it. So we’re just guessing that the marriage record we have is her. Genealogy is fun like that. None of these people were registered with the state as distinct from the church, BTW. But then, in Australia we’re still ruled by the head of the Anglican chruch, so plus la change.

There’s a Quora question addressing your claim directly, and that links to a bunch of related questions. Summary: some people are, some aren’t, and some will die rather than be forced into their non-preferred option (in either direction).

A couple of pop-sci articles with references, from cnn and slate cover the obvious stuff and link to actual research.

194

John Holbo 07.10.15 at 4:00 am

“why shouldn’t I join in the fun?”

Just so long as we are clear that by “is a little bit sad” you really meant “is a little bit happy” I’m happy, Rich.

195

Rosey 07.10.15 at 4:21 am

At least in the non-gay poly marriages children will have at least one female mother and at least one male father! (And most likely begotten the old-fashioned way.)
The donor-conceived stories I read today would, for children’s sake, give more weight to non-same sex poly unions passing the court’s muster than the SSM did.
(Stories were at anonymousus.us)

196

reason 07.10.15 at 7:04 am

Moz of Yaramulla
You seem to be confusing social issues with legal ones.

197

Moz in Oz 07.10.15 at 7:16 am

Reason, once again you’ve changed the subject when you don’t have an answer. That’s bad faith and I’m not interested. Produce the evidence you claim that “everybody knows” or give up.

198

reason 07.10.15 at 7:20 am

Rosey,
all children have biologically exactly one father and one mother. Care giver/guardian and parent are different categories.

199

reason 07.10.15 at 7:26 am

Moz in Oz – what was the question? I was just pointing out that your arguments are all over the place. You haven’t really addressed the legal complexity (think of survivor pensions for instance). The wedge really is that giving the same rights to polygamous arrangements that THE STATE provides to monogamy would be a can of worms (which I think would result in the state being completely removed from adjudicating social arrangements – i.e. YOYO). Be careful what you want. You must surely ask yourself how it came to be that most societies see monogamy (whether legal or not) being the norm – almost regardless of religion. (And as for the complexity in divorce and custody etc – well increasing the number of partners increases the complexity by a power rule, and solving problems sequentially is easier than solving them all in parallel).

200

reason 07.10.15 at 7:47 am

P.S. Moz in Oz
I’m not particularly interested in the sexual proclivity argument, which I regard as somewhat irrelevant. Marriage as a legally recognised institution is mainly there for reasons of property rules and default primary responsibility for people (which is why it was less common when society was less prosperous – there was less property to worry about). There is an old joke that the penalty for bigamy is two mothers-in-law, which contains a serious point – marriage joins two families. That causes enough problems, multiply the numbers and things get worse. None of this may apply to you of course, but we don’t just make rules to suit you. We have to see whether the rules scale or not.

201

Thrasymachus 07.10.15 at 8:20 am

I’m very much in agreement with the OP. There may be strong consequentialist arguments against polygamy (and none against SSM), but it’s difficult to make those arguments if you start from the extravagantly libertarian premise that people have an (unrestricted) right to marry the person of their choice. In American political and legal theory, as well as in much popular discourse, rights are trumps. Once someone has successfully asserted a right the discussion stops there. (See Mary Ann Glendon’s , published over two decades ago).

For what it’s worth I think that De Boer has already answered many of the arguments made in this thread. So, for that matter, has Jerry Vinokurov in the CT thread from two years ago. For example, it’s surprising that people continue to argue against plural marriage on the grounds that it would be too difficult to implement. The numerous societies which have allowed plural marriage seem to have had little difficulty in devising rules to address these issues. These are not necessarily the rules that a modern liberal democracy would adopt, but there is no reason to suppose that it would be impossible to devise more acceptable alternatives. In any event, as De Boer correctly points out, logistics are never sufficient reason to deny human rights. He quotes the example of the Americans With Disabilities Act, which has required expensive infrastructure changes but is nevertheless a very successful and entirely justified law.

None of this means that De Boer is correct in endorsing plural marriage. It does, however, suggest the limitations of a thoroughly libertarian perspective, which seems to be the default for progressives on social as opposed to economic issues. We also need to be very, very careful about the consequentialist arguments employed in this debate. Such arguments might well be used in other contexts and in other ways that most liberals would not like at all.

202

reason 07.10.15 at 8:47 am

Thrasymachus
What exactly is the right you think we should extend to polygamists? I contend it cannot be the same thing as what we give to monogamists. As I see it, it is a different thing – and we can solve the problem either by removing (or changing) the rights we have extended to monogamists or by creating a completely new and different sort of right. So what exactly would you want to propose here?

“These are not necessarily the rules that a modern liberal democracy would adopt, but there is no reason to suppose that it would be impossible to devise more acceptable alternatives. “
Until you actually do make such a proposal, are you sure? I think that polygamy could be devised without great problem in those previous societies because all property was held by men, and wives were just seen as another property. These were very hierarchical structures. Structures with equality are much harder to regulate.

203

reason 07.10.15 at 8:57 am

P.S. I don’t actually think any society in the past did have real polygamous arrangements. What they had was men having multiple monogamous marriages in parallel. (i.e. The man made multiple individual marriages which ran in parallel – there were never groups of people exchanging vows with one another.) I think the proposal is more novel than people are assuming.

204

reason 07.10.15 at 9:11 am

P.P.S.
I seem to be the only one emphasizing this, but I think it is really important. Marriage as is, is not simply accessing a right. It includes the “forsaking all others” bit – i.e. it involves accepting a unique and EXCLUSIVE responsibility. Words really get in the way sometimes, we think we know what marriage is – but maybe we don’t.

205

Thrasymachus 07.10.15 at 10:04 am

Reason: I’m not a polygamy advocate. The existing examples of this form of marriage appear to have some decidedly unappealing features. I just have doubts about the moral case for preventing consenting adults from engaging in plural marriage, given that there are many other dysfunctional relationships that are not prohibited.

It seems clear, however, that the issue cannot be resolved by simply defining marriage as involving “a unique and EXCLUSIVE responsibility,” unless one is prepared to argue that polygamous or even “open” marriages are not “really” marriages. There are far too many examples of marriages that were not understood as including a requirement to “forsake all others.” This requirement is analogous to the anti-SSM strategy of defining marriage as a relationship between a man and a woman, and is unpersuasive for similar reasons.

206

reason 07.10.15 at 10:06 am

Maybe I should try a different hypothetical – does Bastian Schweinsteiger have a right to form a contract with Bayern München to be paid to play football for them? Sure does. Does Bastian Schweinsteiger have a right to form a contract with both Bayern München and Manchester United to play football for them? Well no – because those rights are exclusive (at least if there some competition where both clubs are involved – and even if not – there are practical issues). So what do we mean by right here?

207

Thrasymachus 07.10.15 at 10:06 am

The Mary Ann Glendon reference in #201 is to her book Rights Talk. For some reason the HTML formatting did not work.

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Thrasymachus 07.10.15 at 10:19 am

#206: The analogy does not work, because you are assuming what you are trying to prove. If Bayern Munich and Manchester United AGREE to share the services of a particular player, should FIFA or UEFA prevent them from doing so? Either club is free to insist upon exclusivity (if they can get it), and there may well be good practical reasons why a sharing arrangement is impossible. We do know, however, that in the real world polygamous marriages exist. The issue is whether such marriages should be recognized, tolerated or prohibited by law.

209

reason 07.10.15 at 10:26 am

Thrasymachus @205
I guess you haven’t followed the thread. I regard the sexual preferences bit as essentially irrelevant here, at least in societies were the state doesn’t prosecute people for adultery. What I mean is that we cannot just extend the right we call marriage to multiples, because that “right” actually is the “right” to commit to exclusive responsibilities (which the state then recompenses by giving exclusive privileges). We really are talking about something quite different – and if we try to use the same concept, we have to change the concept we are trying to extend (i.e. in order to “extend” that right, we have to degrade an already existing one). Do you get what I mean now?

210

reason 07.10.15 at 10:29 am

In other words, I think the word marriage is causing confusion here.

211

reason 07.10.15 at 10:31 am

@#208
“should FIFA or UEFA prevent them from doing so”
I think they would!

212

Lee A. Arnold 07.10.15 at 11:08 am

Moz of Yarramulla #192: “You seem to conclude that because it can be hidden, it doesn’t need legal protection. But only for polyamory…because monogamy is loving one person. But that would be tedious wordplay…You see those people as an argument for denying polyamory and refusing polygamy…”

“Denying polyamory?” No. Maybe I am not paying attention to the definition of “right”. I think that there should be no legal discrimination against people who feel polyamorous. I observe that there has been little-to-no such discrimination, no signs in shop windows. I haven’t checked in with friends and neighbors, but I will guess they think that polyamorous people have the “negative right” to live their lives.

But how would you argue that the “negative right” to polyamory practically justifies or entails the “positive right” of instituting polygamy? You would have to get a sufficient number of the rest of the people in the society to believe that one cannot be a fully polyamorous being, without full contractual status and legal recognition of polygamy. What is your argument to convince them, there? Remember, you’ve already ruled-out “tedious wordplay”.

213

Thrasymachus 07.10.15 at 11:30 am

Reason: I’ve read every post in this thread, as well as those in its predecessor from two years ago.

From my perspective the issue is the use of the term “exclusive.” You appear to be importing an essentially contested concept into the definition of marriage, but that concept is contested precisely because it is not universally accepted. In principle there is no reason whatsoever why the privileges and responsibilities of marriage need be restricted to monogamous couples. You are aware, I assume, that there are MANY societies in which polygamy has existed. Marriage in those societies shares most of the features of marriage in monogamous societies – not least because even where polygamy is permitted most people have monogamous marriages. Even where monogamy is the rule it has sometimes coexisted with concubinage, “minor wives” as in Thailand, mistresses, and so forth.

Incidentally, when the great Alfredo di Stefano first moved to Europe both Barcelona and Real Madrid claimed to have him under contract. The Spanish soccer federation decreed that he should play for each team in turn. Real Madrid, to their eternal benefit, eventually reached an agreement with Barcelona in which they secured di Stefano’s exclusive services.

214

Belle Waring 07.10.15 at 11:35 am

For what it’s worth, I favor the legalization of polygamous marriage. Read what Moz says upthread. All the stories about life-long queer partners being banned from the hospital bedside in favor of relatives who were homophobes; all the women who, SSM not being an option, could be instantly and permanently separated from children they had raised life-long, because the other partner had given birth; all these tragedies that won over ordinary voters to the cause of SSM–all these exact same issues face people in non-legally-sanctioned polygamous/polyamorous relationships. Would divorce be snarled tangles of difficulty? Sure, sometimes. Are existing divorces often snarled tangles of difficulty? Manifestly, but we don’t think that’s a good argument to ban divorce or re-marriage. The best argument against polygamy is that societies/groups which currently practice it tend to be terrifyingly patriarchal and hostile to women’s rights. That’s…not a great argument. The society that practiced heterosexual marriage was terrifyingly patriarchal and hostile to women’s rights in very concrete ways until very recently. Think how recent laws against marital rape are, and how much they are still contested in discussion!

Assholes in Arizona of the Warren Jeffs type are scary, but might legal recognition of the rights of all the partners not empower women to say, “no, I won’t let you send my only son away forever”? Certainly we can’t say it would definitely have the opposite effect, i.e. that of empowering the cult leader/husband. What if the wives were married to one another also? Might they not have more sway rather than less when it came to possibly bringing another woman into the marriage, given that they would have to go down to the courthouse and sign legal papers? And in general should people not be free to do as they please? If the law were changed but accompanied by an extra level of scrutiny (is this girl underage, does this woman consent to marry this other), might it not reduce harms? I believe that prostitution should be legal in part because prostitutes as it stands are unwilling to go to the police when raped and beaten, because they’re much likelier to go to jail on the back of that report than get some John convicted of rape. People are convinced you can’t rape a prostitue for the same reason they used to be convinced a husband shouldn’t rape his wife. Feminism, not legal prohibition, is the solution. I think first cousins should be able to marry also; the ick factor is hight, but actual risks to children are tiny. We don’t prevent Jews born with a recessive gene for Tay-Sachs from marrying. I also favor decriminalization and harm reduction programs when it comes to drugs. I am honestly surprised to see this thread so opposed to allowing people to live as they wish, raise children together, etc.

215

Belle Waring 07.10.15 at 11:37 am

I am, however, irrevocably opposed to bringing another woman into our marriage who likes Sparks. They are a terrible band, although “Lighten Up Morrisey” is a good song. The one good song. All the others sound just the same but aren’t good.

216

Consumatopia 07.10.15 at 12:10 pm

I am very tempted to argue that anyone who has ever loved more than one person is polyamorous rather than monogamous, because monogamy is loving one person. But that would be tedious wordplay. The underlying point, though, is that many people currently practice polyamory in the broadest sense, they just call it “being unfaithful”, “an open relationship” or “we’re still friends (who have sex sometimes)”.

A key aspect of polyamory is that all the partners know about and consent to the entire relationship. So that wouldn’t include infidelity or serial monogamy. It might not even include most traditional polygyny–existing wives usually not having the right to refuse new wives.

This might give us a way to prevent “new” polygamy from becoming the same bad old thing as “old” polygyny. Our common objection to traditional polygyny is that the wives can be exploited by the husband as property. But perhaps the solution to this is not to ban polygyny, but to allow existing spouses to veto new spouses, continue permitting divorce, and impose restrictions on prenuptial agreements (which should deter billionaires from having vast harems–if every spouse has the power to walk out the door with a huge chunk of your fortune, it might not be wise to have too many spouses.) Even if the state gives up control of who can get married, it still has control of the terms under which everyone gets separated, which ultimately alters the balance of power in a relationship.

217

reason 07.10.15 at 12:15 pm

Bell Waring @216
“I am honestly surprised to see this thread so opposed to allowing people to live as they wish, raise children together, etc.”
I know I can’t speak for the thread, but I don’t think this fairly represents what the thread is saying. The thread is not saying they shouldn’t be allowed to do as they wish. They are (or at least I am) saying that it is not just the same as extending marriage rights (as was done with SSM). Marriage rights, as currently set up, are set up as exclusive and mutual, with more than two parties, who has what decision power and what responsibility is less clear (and get unanimity with two is difficult, with ten probably impossible). If such rights are to be set up, we just can’t extend what we have, we have to rethink the whole thing. (And I think the Schweinsteiger example is a very good one, for thinking through the issues).

218

reason 07.10.15 at 12:23 pm

Thrasymachus @213
” You are aware, I assume, that there are MANY societies in which polygamy has existed. “
See @203

219

Lee A. Arnold 07.10.15 at 1:42 pm

Belle Waring #214: “And in general should people not be free to do as they please?”

I do not think that this is how gay marriage is won, in most of the changed hearts and minds. It’s the prior realization that gays can do no other, because this is a natural-born way that people are, and the right to recognized marriage follows from this. Polyamory doesn’t carry that indelible imperative.

In other words, I think it is the recognition and acceptance of personal reality, NOT the cause of “individual freedom” per se, that was the prior and necessary foundation for the deep significance of “all these tragedies that won over ordinary voters to the cause of SSM”.

220

afeman 07.10.15 at 1:43 pm

I withdraw my objection to “polygamy”. You may all relax now.

221

afeman 07.10.15 at 1:44 pm

Crap, the headsmack tag got eaten.

222

TM 07.10.15 at 1:48 pm

Rich 188: “some people just couldn’t give up the sweet, sweet thrill of the next new iteration of the same old thing.”

DeBoer: “Soon, it will be time to turn the attention of social liberalism to the next horizon.”

223

Belle Waring 07.10.15 at 1:53 pm

*couldn’t rape his wife.

reason–I don’t even know that the analogy with SSM is so crazy, or that they manifestly would originate from different rights claims. I think people are little inclined to discuss the idea because a lot of people went on the record while arguing FOR SSM, saying “OMG what are you talking about no one favors polygamy, this is the least slippery slope ever. God, how could you even think that?” To have former allies turn right around and say, “yep, it’s hard to see why we should prevent 3 men from getting married and raising children” is more a politico-rhetorical problem than it is some bright-line utter discontinuity between SSM and polygamy. The fact is that no ones actively campaigning for polygamy. I’m little inclined to do it in their stead but should such a movement arose I would support it.

224

TM 07.10.15 at 1:54 pm

Out of curiosity, is it really not possible to draw up a legal statement saying that if I ever end up unconscious in hospital, persons X, Y and Z should be allowed to visit me (and A and B shouldn’t)?

225

John Holbo 07.10.15 at 2:17 pm

You can make a living will and also designate someone as your healthcare interaction proxy, yes, but I think it’s a big hassle and you’re usually not prepared for it when there’s a car wreck or whatever.

226

JW Mason 07.10.15 at 2:17 pm

Recall, the start of this is a post by Freddie DeBoer. Now, Freddie is a systematic thinker; he doesn’t just intervene in policy debates at random. And Freddie’s system is this: Whoever is trying to solve a problem, they are the real problem. Everything he writes is an exercise in finding a way to that same conclusion. Always with ostentatious more-in-sorror-than-anger sighing, of course.

So here: How can it be that the advocates of same sex marriage are really the ones denying people the right to marriage? Why, because same-sex marriage is just like polygamy, and yet SSM advocates don’t support polygamy. Who’s the bigot now?

227

John Holbo 07.10.15 at 2:17 pm

Sorry! the above was Belle, I’m using John’s computer. Sorry for this misleading, authoritative blue.

228

reason 07.10.15 at 2:18 pm

Belle,
read JanieM @142
in particular:
“During the years when SSM was being fought for in the U.S., people often gave “over a thousand” (counting state and federal) as the number of rights and responsibilities encoded in the law that gay couples were being denied because they couldn’t get married. As other people have written or implied in this thread (most vividly Bloix @82), every one of those provisions is currently framed on the assumption that the number of partners in the marriage is two. Every one of those provisions would have to be examined and perhaps revised to specify how things would work in a more-than-two partnership. This isn’t impossible, but it’s not a minor task either, and tackling it would surely require at least a rough consensus among the people lobbying for the right to more-than-two marriages.”

In using the word marriage (and thinking just a committed recognised relationship), we are skipping over a lot of what comes with extending a concept that has already been built based on certain assumptions. You don’t get to wave your hands and say everything built based on those assumptions still holds when you relax the assumptions (OK I know Chicago school economists do that, but we should hold ourselves to higher standards).

229

bianca steele 07.10.15 at 2:22 pm

The fact is that no ones actively campaigning for polygamy.

But this is key. All there is is an offhand remark from a dissent, which as Rauch points out is not an admission that polygamy must now be constitutional, and a gloat from someone who constantly rags on liberals that they’re going to be sorry now, and Wilkinson’s argument that if you supported SSM, you’re a libertarian, and now you have to support polygamy. So two trolls and an argument of the same sort as “you supported the union and now you’re morally obligated to admit you support immediate socialization of all property by means of violent revolution.”

And I don’t know who those activists will be. If it turns out eighty percent are supporters of the bad kind of polygamy, is it worth supporting them?

The hospital thing is one, incredibly stupid, and two, entirely separate from the state. Why can’t people designate who they want to visit them? And what’s the plan here, to shift focus from hospitals that might refuse to recognize same-sex spouses, because no one likes people who file civil suits, and somehow address the issue elsewhere? Not to be a broken record, but the only reason we’re considering activists will be that dumb is a troll from someone who likes to call them dumb.

230

reason 07.10.15 at 2:23 pm

Belle
and to repeat myself, it seems to me that the likely outcome of trying to push the square peg of however defined polygamy in the round hole of existing marriage rights, is that the round hole gets filled in and the whole thing abandoned. And I’m not sure anybody wants that.

231

Consumatopia 07.10.15 at 2:38 pm

Maybe recognizing polygamy is ultimately the right way to go, but we should start with the understanding that apparently free choices involving family and property often involve coercion. Radically changing laws and norms around marriage could make that coercion worse if we aren’t careful.

232

TM 07.10.15 at 2:39 pm

225: marrying several partners is hardly less of a hassle than a living will?

233

JanieM 07.10.15 at 2:46 pm

[[[ Geez, I was trying to respond to TM @224 and, again in my pre-caffeine brain (that’s my excuse, anyhow) I was far too slow. Also, thank you JW Mason. That’s the core of it right there. ;-) ]]]

Out of curiosity, is it really not possible to draw up a legal statement saying that if I ever end up unconscious in hospital, persons X, Y and Z should be allowed to visit me (and A and B shouldn’t)?

Who said it isn’t possible?

I, for instance , wrote quite explicitly, “This isn’t impossible, but it’s not a minor task either….” Other commenters have written similar things.

I am not going to reread the whole thread to see if other people are where I am, but where I am, and I thought I made it very clear, is: revising the marriage laws to accommodate polygamy would be difficult legally (in more ways than just the algebraic) and politically, but I would probably vote in favor of it; that would depend on the shape of the thing that was being proposed (old-fashioned women-as-property features? no way). (Not that there seems a likelihood of that coming up within my lifetime, but you never know.)

Nor, to be honest, would I campaign for it in the way that I actively wrote and (to an extent) campaigned for civil rights and marriage rights for gay people; there are other causes that are far more important to me, and there’s only so much time in the day.

234

socal texan 07.10.15 at 2:49 pm

As to the argument for SSM because of the biological basis of homosexuality, this is and always was a pretty contentious argument among some portion of the LGBT community. I think we went along with it because it was effective, but it basically says that the straight community must/ought to accept LGBT people because we can’t help being gay. And by implication, if we could be straight that would be preferable.

I would much prefer to live in a world in which we accept people’s right to form and legitimize same-sex relationships because those relationships are okay on their own terms rather than because we’re poor misbegotten souls who can’t help ourselves.

And by further implication, whether or not polyamorous relations are “innate” or whatever is really beside the point. If people want to form these types of relationship and want the state to recognize them, then we should evaluate that proposition based on whether poly relationships ought to be integrated into the existing legal framework from a utilitarian or rights-based perspective (with the ambiguity between these two approaches surely being highly contested). But we ought not to say to someone “you’re preference for relations are valid because they’re immutable but that couple over there, well, they ought to just go along with existing norms because we’re pretty sure it’s a choice.”

235

TM 07.10.15 at 2:54 pm

Slightly off-topic, but some time ago the employer (through a third party company) asked my spouse to prove that we were actually married. They would actually have unilaterally canceled my health insurance based on their arbitrary requirements (which I doubt is legal). Especially offensive and intrusive was that the marriage certificate wasn’t enough to prove our marriage – they wanted additional proof that we live together.

236

JanieM 07.10.15 at 2:55 pm

bianca: The hospital thing is one, incredibly stupid, and two, entirely separate from the state.

It is not entirely separate from the state, and I’m not sure it’s so stupid either; it’s more a stand-in for all the things that spouses can do and mere partners and lovers can’t, necessarily. Hospitals automatically allow spouses in to visit, and to make decisions (to some extent) for people who are incapacitated. They do not automatically allow anyone else to do anything, as a gazillion stories from gay partners would make clear.

And even if you could in theory sign a form saying who can visit, hospitals historically have not always honored such wishes in practice, especially with gay partners and in the face of hostile blood relatives. And anyhow, if you’re unconscious after a car accident or something, you can’t make your wishes known in the first place.

But I do agree with you about the trollery and HWSNBN and etc.

237

reason 07.10.15 at 3:00 pm

TM @234
So if one of you has to work interstate and you have a long distance marriage they cancel your health care?

238

TM 07.10.15 at 3:15 pm

Maybe there are other conditions they would accept. In any case, the marriage certificate wasn’t enough. This reminds me of the many situations when you have to prove your identity by providing a passport or other official document and also something like a utility bill which can easily be faked, but that requirement is supposed to prevent identity fraud. Never understood the logic.

239

TM 07.10.15 at 3:19 pm

“Hospitals automatically allow spouses in to visit, and to make decisions (to some extent) for people who are incapacitated. They do not automatically allow anyone else to do anything, as a gazillion stories from gay partners would make clear.”

But that is the problem isn’t it? It makes sense for the hospital to assume that the spouse, if there is one, is the person closest to the patient and should get to make the decisions. But with polygamy, which of the spouses is the closest? Just allowing polygamy wouldn’t solve that.

240

JanieM 07.10.15 at 3:26 pm

Just allowing polygamy wouldn’t solve that.

I didn’t mean to imply that it would. I was just disagreeing with bianca steele’s dismissal of “that” (hospital issues) as unrelated to the state, and stupid.

But your point @238 is the same point I have made more than once: legalizing polygamy would mean addressing how all these things that are defined for spouses in pairs would now apply to groups.

241

bianca steele 07.10.15 at 3:28 pm

Janie,

AFAIK hospitals let “immediate family” visit, is that not correct? Elderly people who live with more distant family members need paperwork and hospitals can be brusque about the need to prove it’s correct. Step parents and step children, non married partners, etc., don’t get in during times, or in wards, where only immediate family’s permitted. I think this may have included the maternity ward where I gave birth.

And though the state defines who immediate family is, I don’t know that they make the rules about visiting, and definitely not the rules about hospital procedures.

I don’t think you can give two people power of attorney, and presumably one would have to designate one spouse to make decisions.

To be clear, I am happy for people to be in relationships they want to be in, and to have rights. I don’t quite see what right is being discussed here.

242

reason 07.10.15 at 3:30 pm

TM @237
The passport doesn’t say where you live. If they need to chase you down, knowing where you live is a good start.

243

bianca steele 07.10.15 at 3:43 pm

Though that is really an elderly and sick-people issue. I worry that some people’s quick response will be to deplore liberal modernity and the decline of the traditional nuclear family, which would supposedly ensure everyone had plenty of daughters living nearby to take care of them in old age. Really, it’s about an acceptance that age and sickness merit humiliation, especially if people are by so-called traditional measures doomed to be lonely.

244

TM 07.10.15 at 3:48 pm

241: But the driver’s license does and still they routinely ask for “two pieces of identification”, even though the second piece is generally a joke in terms of how easy it is to fake. Seems to me like security theater.

240, 239: I’m not sure but I would have thought that there are state laws about these issues. It can’t be up to the arbitrary judgment of the hospital administration? That said, I’m not convinced, from a pragmatic perspective, that marriage law is the right way to address the legal issues arising from polyamorous relationships.

245

JohnD 07.10.15 at 4:22 pm

Hmm, some of the posts above saying ‘polygamy is doable e.g. King Solomon’ do seem to be ignoring the algebraic argument made earlier. As reason was saying just upthread, current marriage is essentially dyadic – two people making certain promises two each other. SSM is very easily slotted into that framework, and again as reason said actually traditional polygyny (or theoretically polyandry, provided you sort out paternity issues) is also pretty easy – you basically dealing with a set of one on one relationships – each one can be dissolved without affecting the rest, and I believe that in traditional polygynous marriages the various wives have no legally binding relationship (although there is usually an [in]formal hierarchy). You could get a long way just by legalising bigamy,

However, the combination of polygamy and SSM creates new, mould-breaking possibilities e.g. Man A is married to Woman B and Woman C who are also married to each other. In such a relationship it is just not clear to me what actually happens, legally, if Woman B wants to divorce Woman C. Equally, given in the modern world you couldn’t have a case where a man A is allowed to marry woman B and C but woman C is then prohibited from marrying Man D (which she absolutely would be in traditional polygyny), you can get (and probably would get) quite complex chains forming.

As oldster suggest upthread, if polyamorous people want a consistent legal structure to deal with hospitals etc, the obvious step would be to create a new thing called a group marriage, probably reusing some of the law around business partnerships, with each group marriage agreeing its internal legally-binding rules before the wedding . This seems more feasible than trying to rebuild traditional marriage. Part of the reason SSM is now making progress is that the hetero majority recognised that SSM really couldn’t ‘break’ traditional marriage because by definition nothing in their heterosexual marriages changes just because homosexuals can also get married. I’m not sure this applies if you try to fit polyamorous relationships into the existing marriage system using the courts.

246

JanieM 07.10.15 at 4:28 pm

As oldster suggest upthread, if polyamorous people want a consistent legal structure to deal with hospitals etc, the obvious step would be to create a new thing called a group marriage, probably reusing some of the law around business partnerships, with each group marriage agreeing its internal legally-binding rules before the wedding . This seems more feasible than trying to rebuild traditional marriage.

Sure. Then maybe all the partners could have a little embedded chip encoding all the provisions they’ve agreed to that matter in their relationships with the world around them. (Banks, hospitals, airlines, hotels, schools, the social security administration……)

247

JohnD 07.10.15 at 4:37 pm

JanieM – not sure that’s a rebuttal? Polyamorous relationships are by their fundamental nature more complicated, so yes, somehow mechanisms for making them work in the day-to-day world likely will be more complex – that’s why I’m suggesting a new mechanism. How do you see this working in practice?

248

Bill Benzon 07.10.15 at 4:44 pm

FYI:

The Future of Polyamorous Marriage: Lessons from the Marriage Equality Struggle

Hadar Aviram
University of California, Hastings College of the Law

Gwendolyn Leachman
University of Wisconsin Law School

August 23, 2014

Harvard Journal of Law and Gender, Forthcoming
UC Hastings Research Paper No. 118

Abstract:
Amidst the recent legal victories and growing public support for same- sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a poly- amorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and culture shape these struggles and their ability to produce social change.

We argue that legal mobilization for same-sex marriage has produced conflicting pressures for contemporary polyamorous activism. On one hand, same-sex marriage litigation has provided several doctrinal footholds for expanding marriage to polyamorous relationships. On the other hand, same- sex marriage litigation has simultaneously reinforced cultural stigmas against polyamorous relationships—stigmas that constrain the practical utility of those legal tools (especially as means for implementing broader social change beyond the letter of the law). By accounting for these conflict- ing legal and cultural pressures, this Article provides a comprehensive roadmap of the issues, strategies, and challenges likely to emerge along the path toward polyamorous marriages.

Number of Pages in PDF File: 68

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485853

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JanieM 07.10.15 at 4:44 pm

JohnD, not a rebuttal, just a joke.

I don’t “see this working in practice” — not in the sense that I think it can’t be made to work, but in the sense that I don’t think about it enough to have a vision of how it would/should/could work, beyond the fact that it’s complicated and you can’t just slot it into the current structure of the marriage laws. I’ve thought about some of these issues a lot in relation to SSM, which is personally relevant to me. If people for whom polygamy is personally relevant want to think about the practicalities enough to make some concrete proposals, they’re free to do that.

250

JanieM 07.10.15 at 4:48 pm

I don’t have time to read the long paper at Bill Benzon’s link right now, but this from the last paragraph is apt:

At this juncture, it is up to poly people to decide what is at the core of
their politics. Is it the affirmation and recognition of poly lifestyles that marriage
provides (an identity politics movement)? The freedom to define one’s
family and lifestyle without state interference (a liberal rights issue)? The
redistribution of social wealth to bridge the economic gap between statesanctioned
couples and others, such as nonsexual co-parents, extended families,
care-giving relationships, and elderly companions (a social justice issue)?

251

Rich Puchalsky 07.10.15 at 4:56 pm

For what it’s worth, I agree that deBoer’s original article was trolling, although I don’t see trolling as quite the problem that some other people do. Look at the vital needs that this metaphorical heroin dealer supplies! Where would people be without a new source for this kind of thing now that the old one has suddenly dried up?

Also for what it’s worth, I think that the pseudo-anthropological arguments of the form “we have experience of actually existing polygamy, and it’s always bad for feminism” are the worst part of this. Anthropology is familiar with a whole lot of existing polygamous arrangements, including some of them — like the polyandrous marriages that happen in some parts of Tibet in which a woman marries a number of brothers at once — which don’t fit this neat picture. But anthropology is very good at providing weird stories of people who aren’t like us and explaining these through material causes while normalizing our own social setup, which of course is timeless and has nothing to do with our own material causes.

252

TM 07.10.15 at 4:59 pm

“same- sex marriage litigation has simultaneously reinforced cultural stigmas against polyamorous relationships” (247, abstract)

In a sense, SSM is a confirmation of the nuclear family stereotype. I personally think that our cultural fixation on the nuclear family is unhealthy. I don’t know what could or should be done about it.

253

Dean C. Rowan 07.10.15 at 5:22 pm

In fact, Sparks is not a terrible band. They are certainly not to everybody’s taste, but then neither is Mozart, who isn’t a terrible composer. Sparks managed to transcend the ordinary pop/rock band conceit: find a sound, claim it, keep doing it over and over, for better or worse. It’s easy and accurate to pigeonhole Nirvana, for example, as “grunge,” because that’s about all they did. Sparks are, vaguely, pop, but both more and less so. They parody and satirize pop, and in so doing produce wild outlier tunes, eminently if embarrassingly singable. But, yeah, they’re weird.

254

Lynne 07.10.15 at 6:20 pm

Okay, I have to ask. Why is HWSNBN not to be named?

255

Raven on the Hill 07.10.15 at 6:25 pm

The libertarian arguments in favor of plural marriage are sounding like libertarian economic arguments to me, all very pretty in theory, and potential horrific failures in practice. I’d feel a lot better about the arguments if I knew of unambiguous successes, if I didn’t know of horrific failures, and if I didn’t know of the creepers and abusers who exploit the ideals of plural marriage.

Belle’s thought requiring all partners in plural marriages be granted by law equal rights in the marriage seems to me a good one, but I suspect, that, as with the Islamic law of treating all four permitted wives equally, it is a counsel of perfection and more likely to be honored in the breech than the observance. Even with supportive law and custom, it is going to be very hard to make plural marriages last as social units. The possibilities of internal conflicts are literally exponentially greater than in simple dyads and there will be outsiders trying to create conflict within and factionalize the marriage.

This is all very depressing. So here’s the music video for Perils of Poly, which at least is funny. Lyrics (and probably music, I can’t quickly find the credit) by a member of a long-standing triple.

256

Phil Shaw 07.11.15 at 4:57 am

Polygamy isn’t one man and three women getting collectively married. It’s one man marrying one woman, then another, then another. Three separate marriages, with one man in common. Switch ‘man’ and ‘woman’, mutatis mutandis.

257

John Holbo 07.11.15 at 6:16 am

“Polygamy isn’t one man and three women getting collectively married.”

Why not?

258

Moz in Oz 07.11.15 at 8:38 am

the traditional nuclear family

Do not forget why it’s called “nuclear”… it’s only as old as the nuclear age. Before you go getting all misty eyed about ancient marriage, remember that “mum dad and the kids” is barely three generations old. Multi-generation homes are much more traditional, and families with more than two members in each adult generation common. Our neighbours are two grandparents, two of their kids plus the spouse of one, and three grandkids. For that matter we have my sister-out-law as a housemate.

Insofar as I want marriage, I want it for the legal baggage and possibly the public sanction rather than the ceremony and celebration. I’m more of a “can’t wait for this to be over” than “yay the big day” person. I want not to have the negative non-rights of legal discrimination and possibly-illegal mistreatment removed, much more than I want the positive right to marry.

My activism on this front is pretty much limited to quietly pushing on things that I have access to. We all went along and met our newly elected MP, for example, largely so I could say “this is my husband Bob, my husband Sam and my wife Chris (and our kids….)”. He’s a nice Muslim man and didn’t boggle particularly, and was quite affable and friendly (as such people must be).

I’ll happily argue using the frame people are happy with, because I don’t think it matters whether people are “naturally” monogamous any more than it matters whether the Great Sky Fairy created the universe at 6pm on Tuesday the 11th of March, 1147BCE. The question is what we do with what we have now.

259

Moz in Oz 07.11.15 at 8:47 am

Phil Shaw @256:

Polygamy isn’t one man and three women getting collectively married.

No, that’s an example of it but not the definition. Even with just those four involved there are other possible polygamous arrangements, depending on the flexibility of the marriage laws or customs you’re using.

I sometimes think that a useful step would be to simply expand the maximum number of people in a marriage from two to three or four. Most long-term marriages seem to fall under that line, so from a pragmatic point of view it might do 90% of the work. But then once more we’d have defined the law for the convenience of the many at the deliberate expense of the few. Democracy is two wolves and a sheep voting on what’s for dinner, as I recall the objection being phrased.

There’s a fascinating discussion of names that has many parallels to the current discussion, and many comments make explicit that “this works for me so I want you to shut up about your problems”. A simple example is the “firstname lastname” convention that many anglo-americans use… when the Spanish use “firstname familynames”, many east asians use “lastname firstname” and so on. It’s interesting in its own right IMO, but also an informative parallel.

260

reason 07.11.15 at 1:11 pm

JohnD @244
“Part of the reason SSM is now making progress is that the hetero majority recognised that SSM really couldn’t ‘break’ traditional marriage because by definition nothing in their heterosexual marriages changes just because homosexuals can also get married. I’m not sure this applies if you try to fit polyamorous relationships into the existing marriage system using the courts.”

Exactly. Another way to put my objections (or rather to put my point that granting the “right” to polygamous marriage is not easy without a complete restructuring of law and society) is to say that I very much fear going this direction would be one step forward and two back. Maybe the better tack would be to find ways to solve practical problems without interfering with existing rights.

261

Consumatopia 07.11.15 at 1:43 pm

It seems like you need two words here. Suppose it’s a V or a W. We would want one word to refer to your relationship(s) with your immediate neighbor(s) in the graph. We also want another word to refer to your relationship to the entire graph.

I think traditional polygyny only used the first concept. A man had multiple marriages, each woman was only married to one person. But, ethically, in modern polygamy every inhabitant of the graph should have to consent to the entire graph (e.g. if one end of a V would like to become part of an N or a W, the other end of the V can veto that). To describe that policy, we would need a word to refer to the entire graph. Unless, that is, we are satisfied with “marriage graph” or “marriage network”.

262

The Raven 07.11.15 at 8:57 pm

Hmmm. People seem to be trying to invent egalitarian polygamy. Hmmm.

263

michael griffin 07.12.15 at 12:38 am

Good thing marriage doesn’t have anything specific and essential to do with biology, or all this rational argument might sound like mostly complicated noise.
On the other hand, it’s pretty much a given that, long before the invention of contractual marriage, alpha males reproduced at a significantly higher rate than less, let’s say, attractive males. It thus seems likely that at least in part, legally sanctioned, coupled marriage and especially the criminalization of adultery, is and was a strategy of beta and omega males to ensure their procreative success.
Also “egalitarian” governance of biology! Mmmff.
Male ejaculate, deliverable at least twice a day, in prime breeding years a bit more often, from onset of puberty to in some cases extreme old age, contains umpteen many many sperms, each one potentially capable of transmitting donor genes to potential offspring.
Female ova, deliverable once every four weeks from menarche to menopause, capable of gene transmission to primarily one, possibly two, very rarely three, almost never more than that, offspring.
Governing biology is a main responsibility of codified social regulation, but, if you’re gonna get at the substance of these issues, you have to at least talk about the biology being governed.
Of course, if your view is marriage has nothing to do with biology, none of this matters.

264

John Holbo 07.12.15 at 1:11 am

“Of course, if your view is marriage has nothing to do with biology, none of this matters.”

You are arguing that, if any of this discussion (prior to your comment) makes sense, then marriage has nothing to do with biology. Why?

265

John Holbo 07.12.15 at 1:16 am

Sorry, just to be clear: granting that marriage means governing biology (crude, but ok), why should polygamy not be a way of governing biology?

266

michael griffin 07.12.15 at 2:05 am

Crude? Ok, crude, but only out of commensurate politeness.
Polygamy itself is biological, governance of polygamy is governance of…I don’t see why we’re doing this.
Unless you’re working with the assumption that the consumerist p.o.v. is now ours for ever and ever, which seems woeful and severely myopic.
Certainly the main bulk of the comments are treating marriage as a biological *thing*, because of course sex and romance = biology.
But that, here, seems to be considered only as a matter of biological desire, or consumer appetite, to put it in what I consider to be a crude term.
The discussion, as much of it as I’ve read so far, seems centered squarely in that consumerist p.o.v.
Consumerist as in marriage is about the feelings of the want-to-be-married generating claims of rights, guaranteed or not, granted or not. With society enjoying the increased well-being that results from a happier citizenry.
That seems to me to be dangerous and ill-conceived, childish even.
Thus the assertion that the fuller biological substrate of the marriage contract and its consequences, not just the desire to be married, between whatever parties whenever, is also very important, and its examination and understanding from that angle are after being key parts of any discussion of who gets to marry whom.
Not just the argument toward societal well-being, which seems to rest mainly on preservation of a status quo, which is surely a more and more dubious goal now, but toward a future societal well-being, which I’ve always thought was why we had rules, at least I think that’s been the idea.
Without which fuller context – marriage to what end? – said discussion puffs along on its miniature track, going round and round amusingly, to not much of an end.

267

John Holbo 07.12.15 at 3:04 am

“Polygamy itself is biological, governance of polygamy is governance of…I don’t see why we’re doing this.”

Indeed, I think the fact that you don’t see is causing you certain problems in this connection. As you seem to see.

“That seems to me to be dangerous and ill-conceived, childish even.”

Well, lots of people have said that about liberal democracy and the whole ‘pursuit of happiness’ and rights thing before. Are you in that camp?

268

Moz in Oz 07.12.15 at 9:15 am

Consumatopia @261:

It seems like you need two words here. Suppose it’s a V or a W. We would want one word to refer to your relationship(s) with your immediate neighbor(s) in the graph. We also want another word to refer to your relationship to the entire graph.

Polyamourists commonly use metamour to refer to other partners of their paramours. (merkins usually use out the u in those words and I can’t remember which I’m supposed to like). With marriage I’d be tempted to use that, or coin a phrase akin to sister-in-law to refer to spouses, sister-in-wed perhaps. Although less emphasis on gender might be appropriate, spouse-in-law maybe.

269

michael griffin 07.12.15 at 10:33 pm

You mistook my facetiousness for sincerity? You? I refuse to believe this.
But piffle, the gist is, for me, balanced yet on the crux of the discussion’s p.o.v.
Tacit acceptance of present moment ‘rights’ trumping (!) all others, with a kind of slo-mo drift toward the ‘rights’ of future heirs of our doings, as their moment slides into actual being. But none of this ‘Seven Generations’ airy-fairy claptrap eh? Impossible to calibrate with the mechanical precision so necessary to sound academic debate.
Pointing, again, toward a consumerist slant on “the whole ‘pursuit of happiness’ and rights thing ” is apt enough restatement for me.
Immediate happiness as real discernible quantifiable ‘thing’ fading toward mere contentless speculation about possible future holders of that same right to happiness.
There’s a tension there whose resolution – myopic, selfish, essentially futureless – is being played out right in front of us.
The ‘rights’ of those whose present is/will be our future granted theoretical status, but only in increments of a decade or so, and secondary entirely to the clamorous mobs of now.
And that’s working delightfully, no? Aside from the impending collapse of the entire planetary ecosystem as presently configured I mean.
The consensus take on the long-term future is “Fuck it, I can’t see it from my house.”
I don’t think that was all that obscure in the original comment. Though somewhat fluffed up.
Consumer happiness and the claim of rights attendant thereto is just another more acceptable name for the desire for immediate gratification, which the world I’m living in has been holding up as an ideal state ever since I got here. To the aforementioned result.

270

John Holbo 07.12.15 at 11:01 pm

“You mistook my facetiousness for sincerity? You? I refuse to believe this.”

If you were me, I would assume you (I) was being facetious. But, in this world, a lot of people aren’t I. And that really makes it more interesting, in the long run, albeit less facetious, on average. Believe it!

“Consumer happiness and the claim of rights attendant thereto is just another more acceptable name for the desire for immediate gratification”

This is an odd model for marriage: immediate gratification. The only reason people get married is they want immediate gratification. I think you are confusing marriage with sex.

As to the rest: I’m not getting it, frankly. Here’s something that may help. I think you may be employing either F. Cornford’s ‘Wedge’ argument, or his ‘Dangerous Precedent’ principle. Or both. Can you confirm or deny?

“The Principle of the Wedge is that you should not act justly now for fear of raising expectations that you may act still more justly in the future — expectations which you are afraid you will not have the courage to satisfy. A little reflection will make it evident that the Wedge argument implies the admission that the persons who use it cannot prove that the action is not just. If they could, that would be the sole and sufficient reason for not doing it, and this argument would be superfluous.

The Principle of the Dangerous Precedent is that you should not now do an admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which, ex hypothesi, is essentially different, but superficially resembles the present one. Every public action which is not customary, either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.”

‘Consumerism’ is a bit of gauze you are draping over either the wedge or the principle. Through the translucency, I’m just not sure which. Or am I reading you wrongly?

271

Michael Griffin 07.12.15 at 11:51 pm

Correct. Wrongly. Now on phone so the constraints are …
I’m really under the impression I’m a serious observer of a serious discussion wh is missing a serious element bcuz of bias so pervasive it isn’t visible.
I have no ducks on the table. No veils in the fire.
Other than a sense that ideas matter greatly.
And rigorous thinking is fun.

272

John Holbo 07.12.15 at 11:57 pm

“bcuz of bias so pervasive it isn’t visible.”

Well then: what is it?

273

Michael Griffin 07.13.15 at 2:57 am

Maybe it would help if I said what I’m using “consumerist” for.
Not wanting stuff, not having stuff, but the moment of choosing.
It’s the sacred moment. The power of that.
That sense of your personal choosing, politicians, mates, movies, pets, children. Conscious choice as the apex of human evolution.
It’s a right few would willingly relinquish.
But it gets turned toward things that have to become Procrusteanized to fit it.
The bias is the centrality of individual choice.
That seems bizarre to me, yet normal as can be at present. So normal it’s weird to question it.

274

Michael Griffin 07.13.15 at 3:10 am

As far as the Precedent of the Dangerous Wedge:
I’m firmly of the strongly-held opinion that just and right action is demanded of anyone who can recognize its possibility.
That recognition and the discursive means to it are what I take to be the reason for what this is.
This typing and all.

275

John Holbo 07.13.15 at 3:21 am

“But it gets turned toward things that have to become Procrusteanized to fit it.”

There’s the rub.

Why shouldn’t I think you are just projecting?

More elaborately:

Freedom is well and good, but when people start wanting to choose stuff that I don’t want them to choose … then it is ‘consumerism’.

When they want a different shape bed than you want them to want, it is a Procrustean bed. But who is lopping limbs here? Maybe it’s the bed, yes. But maybe it’s you, just insisting that anyone who fits this bed must have been crippled, to fit it. So you don’t have to consider the possible that some folks are just natural-born shaped so this is a comfy bed, for them.

Pardon my incessant table-turning. (I can’t help myself!) But you owe some explanation as to why we should regard desires whose shape you evidently don’t like as necessarily having been cut and crippled, to get that way.

276

Ormond Otvos 07.13.15 at 3:54 am

As a veteran of a polyamoric relationship, I’m amused by the lack of imagination and/or attention to detail in discussions about it. Two men, two women. Three kids, two from one woman, one from the other.

The financial advantages, baby care, transport, economies of scale, variegated opinions, chances to vote on some things, more skills brought to bear, many hand make light work.

We built an enormous octagonal house, cleared several acres of land, had a fishing boat. It was a good idea. I’d do it again, actually. In retrospect, the kids were happy: we home-schooled (it’s how we met, forming an alternative school). Think about it. We did, and we did it, and it worked.

277

Sebastian H 07.13.15 at 5:44 am

“I’d feel a lot better about the arguments if I knew of unambiguous successes, if I didn’t know of horrific failures, and if I didn’t know of the creepers and abusers who exploit the ideals of plural marriage. “

Have you seen ‘regular’ heterosexual marriages? A huge percentage of them are complete disaster areas with creepers and abusers all over the place.

278

Michael Griffin 07.13.15 at 6:46 am

“desires whose shape you evidently don’t like” is so egregiously coy that I’m abandoning this.
You’re nowhere near my position, just casting around for it, like a CIA field op, fresh out of Yale, in country for the first time.
You really have no idea where I’m coming from, but you want to so bad.
Sorry John, fail. See ya.

279

John Holbo 07.13.15 at 7:34 am

Wouldn’t it be ironic if it turned out that the CIA actually put me up to it?

280

reason 07.13.15 at 8:33 am

Sebastian H. @277
Just imagine, we can have something that in comparison seems even worse.

281

Zamfir 07.13.15 at 10:27 am

@Ormond, can you describe what you would like to have seen on the marriage front, if anything? Do/did you consider yourselves to be married? Would like to have been formally married through the government? Are there specific legal/quasi-legal aspects of marriage that you missed? Do you have views on how a polyamorous legal marriage should look like?

282

dr ngo 07.13.15 at 12:39 pm

You really have no idea where I’m coming from, but you want to so bad.

Not I. I lost my taste for deliberate (perverse?) opacity a long long time ago. Just because no one understands you does not mean you’re smarter than everyone else.

283

ragweed 07.13.15 at 4:07 pm

I have close friends in a long-term polyamorous relationship that is at least into its third decade. It is a woman and two men, I think heterosexual (I have never quite felt it my business to ask “so who sleeps with who exactly”, but that is the sense I get – though the guys continued to live together while she was doing graduate work on the other side of the country). They are raising twin daughters, who are in their teens now. They Hand-fasted in a Pagan ceremony, so I presume they would get legally married if they could. And I can really so no reason why they should not have the right to form a legal union, to have both men recognized as fathers, to have the home they share treated as community property, to inherit from each other without taxes (especially for retirement accounts), and the host of other legal advantages come from being married.

The parental rights seem to me the most significant. There are ways around many of the other issues (medical powers of attorney, legal tenants-in-common agreement, family trusts, etc.) but not legal parentage. The kids legally list the mother and one of the fathers as parents, which leaves the third father completely without any rights should something happen either to the relationship or to his two spouses. If the legal father and mother were killed in a car accident, custody of the children would most likely go to their family members and the second father, despite having raised the kids their whole lives, would be treated as an unrelated party in custody hearings (much as it has been with same-sex couples as parents). If the grandparents wanted to, and found a sympathetic judge, they could completely deny visitation rights to the second father. (Countries like Australia tend to handle this a bit differently, so there would be greater chance that the second father could get substantial rights based on their involvement with the child – I think there was even a case kinda-sorta like that going on with two gay couples, though that involved a conflict among the parties as to the intention of the relationship).

Could there be other means than marriage to achieve this? Yes, but isn’t that where we were with SSM less than a decade ago? Domestic Partnerships, maybe, but don’t call it marriage? Whatever, but I can see no just reason why they should not have rights as a family.

284

Consumatopia 07.13.15 at 7:46 pm

@276, I’m not sure that touting the benefits of marriage for managing labor among a small group of people is really the frame you want here. The government may not regulate love, but it should definitely regulate labor.

@277, 280, the least convincing argument on the pro-poly side is “look how terrible binary marriage is!” To the extent that an institution is already abusive, legalizing or normalizing a wider set of practices within that organization might make it even more so, if we are not careful. Note that SSM proponents tended to make the opposite claim, that marriage was a wonderful institution so obstructing gays from participating in it was unjust.

@283, even if we do eventually legally recognize polygamy, we might not want to recognize all polygamous unions as marriages. For example, if there are “open” unions in which one of the members can go marry people without the permission of the rest of the, um, meta-spouses, there are a lot of reasons why we wouldn’t want those to receive the sanction of government recognition. However, even if the government doesn’t call them marriages, denying them some domestic partnership benefits (e.g. medical visitation, child custody) is too severe as a reaction. Thus we would end up with two kinds of polygamy, extending full recognition to one class, partial recognition and accommodation to the other.

This division into classes may seem like pointless busybodying on the part of the government, but bear in mind that there is one big argument SSM could make the polygamists cannot make–that SSM would have no effect on the marriages of heterosexual couples. The availability of polygamy would almost certainly change the balance of power in existing marriages (contra Moz@107, it’s not merely the formally accepting polygamy the wrong way will exacerbate anyone’s “mental problems”, it might hurt their material welfare.) I can’t say exactly how that balance of power would change (and, no, I’m not referring to Rauch’s reductive concerns about “lower-status men”, it’s the balance of power within relationships that concerns me, not that of people left outside relationships), but if you add the option to add additional people to existing marriages, it’s unlikely the both partners in any given binary relationship desire that equally.

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MPAVictoria 07.13.15 at 8:09 pm

Guys I just don’t see why anyone should care. Let people get married if they want. We can adjust the tax code. Heck maybe the extra health insurance costs will finally be the push the US needs to get Single Payer.

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Moz of Yarramulla 07.13.15 at 11:21 pm

Consumatopia@284

To the extent that an institution is already abusive, legalizing or normalizing a wider set of practices within that organization might make it even more so

That’s a very valid point. And one of the few objections to polygamy that I think is reasonable. The usual response of “other people doing something badly is no reason to stop me from trying. Either stop them or let me” doesn’t really work, either. My response is that if we first require perfection of the gatekeepers, anything after that is moot. Marriage, like all human activities, is imperfect, so that imperfection is no reason to deny marriage.

I think we’d be better addressing bad marriages in other ways, because those that are special in that an abusive partner will want polygamy are unlikely to be so different from other abusive marriages that the usual interventions will fail. In non-US countries there’s a variety of approaches that work in this area, but the core problem is poverty and/or fear of poverty. Women who leave an abusive relationship face a collapse in their standard of living and can expect to live on whatever the government provides. So the biggest help we can give is making that assistance sufficiently “generous” that people can live on it.

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