Is the case for polygamy as strong as for same-sex marriage?


Opponents of same-sex marriage warned of dire consequences if they were legalized, that pressure would build to make polygamy also legal and people would demand the right to marry their children or siblings or their pets. Now that the Supreme Court has authorized such marriages in the Obergefell ruling, they may decide to show that their warnings were not mere hyperbole and test that proposition by making such marriage license requests.

This would not be a new tactic. Some may recall an earlier post of mine from a year ago where I wrote that back in 1975, a county clerk in Colorado issued a license to a same-sex couple to marry because there was nothing in the rules that explicitly forbade it. Her action caused an uproar but before she was overruled by the state’s attorney general, a man came in and asked her for a license to marry his horse.

A man has now applied for a marriage license to marry two women, using as his argument the Supreme Court dissent by chief justice John Roberts that said that if the court could approve same-sex marriage, then how could it argue against polygamous ones?

The Supreme Court’s ruling on Friday made gay marriages legal nationwide. Chief Justice John Roberts said in his dissent that people in polygamous relationships could make the same legal argument that not having the opportunity to marry disrespects and subordinates them.

Collier, 46, said that dissent inspired him. He owns a refrigeration business in Billings and married Victoria, 40, in 2000. He and his second wife, Christine, had a religious wedding ceremony in 2007 but did not sign a marriage license to avoid bigamy charges, he said.

Collier said he is a former Mormon who was excommunicated for polygamy and now belongs to no religious organization. He said he and his wives hid their relationship for years, but became tired of hiding and went public by appearing on the reality cable television show “Sister Wives.”

This is interesting. It is not clear that this particular case is being done simply to make a point. Given his history, it may well be that Collier is genuine in his desire to have multiple wives. I wonder if those who made the slippery slope argument will support Collier in his case?

Reader Jason sent me a link to an excellent article by Richard A. Posner, a judge of the U.S. Court of Appeals for the 7th Circuit, that describes Roberts’s dissent in the same-sex marriage case as ‘heartless’ and criticizes its reasoning.

Posner says that one should not forbid something unless it imposes real costs on others.

John Stuart Mill in On Liberty drew an important distinction between what he called “self-regarding acts” and “other-regarding acts.” The former involves doing things to yourself that don’t harm other people, though they may be self-destructive. The latter involves doing things that do harm other people. He thought that government had no business with the former (and hence—his example—the English had no business concerning themselves with polygamy in Utah, though they hated it). Unless it can be shown that same-sex marriage harms people who are not gay (or who are gay but don’t want to marry), there is no compelling reason for state intervention, and specifically for banning same-sex marriage. The dissenters in Obergefell missed this rather obvious point.

I go further than Mill. I say that gratuitous interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits—in fact no offsetting benefits at all beyond gratifying feelings of hostility toward gays and lesbians, feelings that feed such assertions as that heterosexual marriage is “degraded” by allowing same-sex couples to “annex” the word marriage to their cohabitation.

So does that mean polygamy should also be made legal? He says that one could make an argument that polygamy does impose some costs to others that could be grounds for disallowing it, and in the process contradicts Roberts’s sweeping statement that the idea of marriage between one man and one woman has been the universal rule for millennia.

That’s nonsense; polygamy—the union of one man with more than one woman (sometimes with hundreds of women)—has long been common in many civilizations (let’s not forget Utah) and remains so in much of the vast Muslim world. But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

Of course, if one allows both polygyny and polyandry and there were enough women with multiple husbands to roughly balance out the men with multiple wives, that might mitigate the societal costs. But that kind of parity could not occur until there was gender parity in other major areas like income and wealth and jobs. There would be other complications as well that have to be addressed, such as inheritance and parental and property rights but presumably those societies that currently allow polygamy have developed rules for dealing with them. It may be that the existing rules in the Muslim-majority societies that allow only polygyny favor men, and one would need to develop gender-neutral rules in order to pass muster in the US.

Posner’s argument is that one should not forbid something that does not cause harm to others. But that is a philosophical argument, not a constitutional one. I argued before that arbitrariness by itself is not grounds for invalidating something. The constitutional argument has to be whether forbidding something violates the constitution. The court ruled in the case of same-sex marriage that banning them violated the 14th Amendment. What would be violated by forbidding polygamy?

I myself have no fundamental problem with one person having multiple spouses as long as the relationships are between consenting adults and there is gender parity. At present there is no great pressure to make polygamy legal, though that may change in the coming decades. Although acceptance of same-sex marriage has been remarkably rapid as major social changes go, it still took decades to get to this stage.

Comments

  1. jcsscj says

    I don’t think that polygyny or polyandry is the correct generalization. The correct generalization would be that each of them are married to all the others. So it is not the case that 1 woman marries 2 men, but 1 woman marries 2 men and each man marries a woman and a man.

  2. says

    The ones asking for polygamy are the straights, not LGBTQ people. So how are LGBTQ people the ones causing the problem?

    We’re not, but as always, the far right want to cause problems and then blame shift. See also: the issue of laws discriminating against trans people in public toilets. Such laws are written to encourage violence against trans-people, not to “protect” cis-people from trans-people.

  3. anat says

    The correct generalization is any number of people, of any combinations of genders, each married to one another.

  4. Chiroptera says

    A big difference is that people who want to take part in plural marriages are not a “suspect class” who are generally discriminated against. This has usually been the basis of anti-discrimination suits. Even religions like Islam may allow but usually don’t require people to take part in plural marriages.

    It’s had to figure out under what legal basis that such a suit would be argued. Without being a member of a suspect class, then any laws banning polygamy would, I think (I am not a lawyer), be given a “rational basis review”, in which case all the legislature needs to uphold a ban is to demonstrate that they felt it served a legally legitimate social purpose. As Ed Brayton has said on his blog, laws rarely get stuck down on a “rational basis” review.

  5. lanir says

    When mapping how a law would approach more than two people in a relationship the simplest approach of them all being married to each other is probably the only logical one to take. When actually describing the relationships then not all participants have to be romantically attached to all others. Mutual respect is required for the arrangement to work. Mutual romantic attachment is not.

    The only real moral issue with polygamy is whether or not someone is getting short-changed out of it. Historically it sounds like such arrangements tended to take advantage of women so laws against it were actually redressing a social inequality. A debate on whether the unequal treatment of women has diminished to a point where removing barriers to polygamy would not affect that significantly would be interesting to see.

  6. Pierce R. Butler says

    lanir @ # 5: Historically it sounds like such arrangements tended to take advantage of women…

    In at least some cases, we find polygyny in cultures where large numbers of the younger men get eliminated in warfare, which some might see as arrangements to the disadvantage of males. Once started, such systems practically demand continuous fighting: peace would produce too much social stress…

  7. Hank Tholstrup says

    Surely a big difference is that being gay is a biological fact, not a personal choice. A gay person, who cannot ‘help’ being gay (it’s his natural state), falls in love and wants to marry his (or her) partner. Another person who wants to marry multiple partners is not essentially ‘poly’ in nature. Their wishing to marry multiple partners is a choice, like deciding to have a Mercedes AND a Ford, it is not something basic to their being. Anyway, this seems like an inherent difference to me.

  8. sundoga says

    We actually do have what I suspect will be seen as a “reasonable state interest” against polygamous marriage – our legal and taxation systems are, at the current time, unable to handle it. Same-sex marriage is still two people; the only things that needed to be changed were a few definitions and labels, and the system continues to function normally. But what is the proper method for determining the tax debt of six people filing a joint tax return? How do you determine the equitable distribution of wealth, and custody of children, if one person decides to divorce three others? Come to that, would all members of a marriage have equal custody of children, or does final say rest with the biological pair?
    None of these problems is insurmountable, but I would argue that we need to at least have a vigorous discussion of these issues before any move to make polygamous marriage state sanctioned is considered.

  9. Mano Singham says

    Hank,

    While I agree that the preponderance of evidence points to being gay being a biological fact, I am not convinced that it should be a necessary condition for allowing same-sex marriage. I have argued before that even if being gay is a choice (as some opponents still claim), they should still have all the rights of heterosexual people including marriage. Why should your choice of whom you love and want to marry be constrained by the gender preferences of others?

    However there is no doubt that the biological argument is much stronger than the freedom to choose argument and could well sway the case against polygamy.

  10. EnlightenmentLiberal says

    But that is a philosophical argument, not a constitutional one.

    I’ll debate that. It is a constitutional argument. It’s called the ninth amendment. At least that’s according to the widespread original intent and widespread original understanding.

    I’ll also argue that allowing straight marriage but banning gay marriage is a simple case of sexual and gender discrimination. Imagine that kind of restriction on any other kind of legal constract, and the absurdity presents itself. Whereas, it seems totally reasonable for the government to restriction the tax benefits et al of marriage to 2 people. There’s no IMHO reasonable analogue argument that can be made like sex discrimination.

  11. EnlightenmentLiberal says

    Err, hit “send” too early.


    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    As an example: Jefferson:
    The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg.

    Beating John Stuart Mill to the Harm Principle by approx 100 years.

    If you look around in the various quotes of the founders and their conception of common law rights and proper governance, it’s readily apparent that they did mean to codify the Harm Principle into law with the ninth amendment.

  12. blondeintokyo says

    Hmm. It’s interesting how they state it as, “a man has two wives” completely negating the woman’s point of view, which is that she has chosen to marry one man. Just because her husband happens to have another wife doesn’t mean she has only half a marriage, or that her marriage is somehow less than.

    They also forget that the vast majority of people don’t want to be married to more than one person. This is still by far a society that values monogamy. Even people who aren’t particularly religious still adhere to the ideal of monogamy.

    And finally, I must note that many people who are living the polyamorus lifestyle do consider polyamory to be an orientation of sorts. I don’t personally agree, as some are saying, that it’s somehow genetic; but a good many polyamorus people would not be able to be happy in a monogamous relationship. I know I wouldn’t.

    I have a problem with religiously mandated polygamy/bigamy because it’s a form of religious coercion. It can’t be said to be entirely consensual because these men and women were, in a way, brainwashed from birth to believe it is something they *must* do, and not something they *can* do. However, I also think that people have the right to live their own lives, and as there is no way for us to get into these people’s brains to make absolutely sure this is something they *really* want, it must be allowed in the name of person freedom.

    I just wish the media would understand the difference between polygamy and polyamory. I’m getting a bit tired of explaining that no, I’m not religious, and no, my relationship isn’t patriarchal, and no, my boyfriend’s wife is not my “sister wife”.

  13. Holms says

    I would suggest that there is a strong case to be made for 2 being the right number for a ‘standard’ marriage anyway: single parents are in a very precarious position, with obligations on their time not only to watch the child but also to earn a living. Two parents combining incomes on the other hand alleviates a large majority of that difficulty, while I suspect more parents beyond that would have diminishing returns in terms of increasing stabilty and child rearing. Two parents serves as a good default value that will work in almost all cases.

  14. Chris J says

    I agree with the slippery slope folks that group marriages (fully consensual) have the same sort of legal standing and should be allowed. The only reason not to legalize them short-term would be matters of implementation.

    In a group of four people, is there one marriage or is there 12? Can one person in the group also marry into a separate group marriage? When one of the group wants to divorce one person but not another, is that possible? Even excluding divorce, how do existing government benefits like tax reductions apply, or do they need to be re-tiered to take into account the possibility of more than 2 income earners in a family unit? How would adoption or child-birth work; is the child legally the child of just one couple or the entire group? What sort of model could be chosen that limits the amount of paperwork needed for a larger group, or is that larger amount of paperwork a feature to put a practical limit on the size of a group marriage?

    These may or may not be particularly hard questions, but they do have to be answered somehow. The thing about monogamous gay marriages is that it fits nicely into the 2-person assumption that straight marriages have had.

    Once those details are ironed out, though, there isn’t really any other reason to forbid group marriages, again as long as everyone involved consents.

  15. Mano Singham says

    Chris J,

    Apart from a nitpick (with four people it would be six possible marriages, not 12), I agree with the complications that you and others list.

  16. DsylexicHippo says

    I have no problem with the man who came in and asked her for a license to marry his horse. A donkey and a horse would make a fine couple.

Leave a Reply

Your email address will not be published. Required fields are marked *