Galois

The New Polygamy

At MarriageDeabte.com, Eve has a couple of posts pondering a new kind of polygamy.  What makes it new?  She draws a distinction between "the historically common kind, where a man can take many wives" and the new kind "where any number of people of either sex can combine in a kind of small-scale married communal life."  She links to this example of the new kind of polygamy and then provides the persona of Esperanza to defend this new type of polygamy.  She finally asks, "Is Espereranza wrong?" 

I would tell Esperanza, I wouldn't say that you were necessarily wrong, but what is it that you are asking for?  Same-sex couples are asking that the same rules of marriage that apply to everyone else apply equally to them.  Just read the laws gender neutrally.  That cannot be what Esperanza is asking for.  She must be asking for distinct rules.  Before we can judge whether we should rewrite the marital laws to conform to these new rules, we must know what they are.  So Espereranza please tell us how you would rewrite the thousands of statutes and policies which deal with marriage. Then we can begin to examine what effect these numerous changes might have.  For example, the anonymous libertarian polygamist Eve refers to writes:

None of us took our marriage vows lightly; we thought and talked and made contracts to spell out how the relationships would work and how they'd end, if they end. It works for us.

Is Esperanza also proposing that every married "group" will define their own unique obligations and divorce rules?  Such a system would be replacing civil marriage by a system of private contracts.  A few libertarians have proposed this style of "private marriage" which gets the government out of the marriage business (other than the usual enforcement of contracts).   I can think of a number of a problems with such a system, but I don't want to be attacking a straw man.  So I would like Esperanza to spell out how precisely her new system of marriage would work.  Would each person in the group be bilaterally married to each other person?  Would there be some proper subset of pairs which are married (and others which are not married)?  Or would there just be one group "marriage"?  If the latter, how does one define spouse?  In any of these cases how would divorce work?  Is there a limit to the number of people that can be involved in this group?  Can new people enter into an existing group?  What bilateral obligations exist?  What obligations does one have towards the group as a whole?  These are just a few of the questions that must be answered before we can begin to evaluate Esperanza's plan.

The Fundamental Right to Vote

(Updated 2/12/05)

I want to return to the argument made by some that if we say the fundamental right to marry can be used to strike down prohibitions against same-sex marriage, it must therefore be able to be used to strike down prohibitions against polygamy.  I simply don't see how this is supposed to follow.  The argument for same-sex marriage is not that there can be no regulations with regards to marriage.  On the contrary if the state is going to recognize marriage in any way there must be laws deciding how we determine whether two people are married and what are the consequences of that determination.  Same-sex marriage proponents merely claim that in a free society the choice of whom one marries must reside with the individual and not the state absent some compelling governmental interest in restricting that choice.   This seems clear to me, but  not to others so perhaps I am not understanding  them or they are not understanding me, or both.  To try to make myself better understood I thought an analogy might be helpful.

I believe we have a fundamental right to vote.  This does not mean I believe that the state should not be able to regulate voting.  On the contrary it must if the vote is to be recognized in any way.  Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily include the right to cast a ballot for the candidate of our choice.  That is in a free society the choice of whom one votes for must reside with the individual and not the state absent some compelling governmental interest.  Because of my belief in this right to vote I would be suspect of even those restrictions which placed parallel burdens on different segments of the society.  For example, suppose the law required that there be one senator of each sex from each state.  This law burdens men and women equally.  Neither group is advantaged or disadvantaged by it.  Nobody is excluded from running for Senator nor is anybody excluded from voting.  There may even be a legitimate goal advanced by this proposal.  It would result in a Senate that, in terms of gender, more accurately reflected the population.  Every state would have a Senator of each gender and the two would "complement" one another, and so forth.  I believe such a policy, though, would violate our fundamental right to vote for the candidate of our choice.

Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like?  Such a system, as in approval voting, could work.  In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system.  The right to vote cannot include the right for us to each decide which voting system we would like to use.  Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like.  In a similar manner while the state would need a good cause to deny someone the opportunity to run for office, it is certainly reasonable to restrict the person to one office at a time.      

UPDATE:  In introducing this post at MarriageDebate.com, Eve Tushnet writes:

Not sure how far this gets you given that a) a huge part of the SSM debate is over whether sex difference is relevant to marriage in a way that it is not relevant to being a senator, and b) a lot of the "ssm-->polygamy" claims rest on particular rationales for ssm that are different from the anti-sex-discrimination rationale that Gabriel finds most persuasive.

Let me address Eve's second point first.  Although it is true that I find the sex discrimination argument the most persuasive, this post was based on a different argument, namely the fundamental right to marry. When in my analogy I compared it to a situation in voting where lines were drawn based on sex I did so to try to parallel to some extent the situation we face in marriage.   In doing so, though, perhaps I obscured the right to marry argument somewhat.  If it helps let us suppose a different restriction on the right to vote.  Perhaps the legislature decides that in order to combat political corruption and undue influence they were going to prohibit anybody from voting for anybody with whom they are related or with whom they have done business in the past.  Again I suspect this would be unconstitutional even though everybody would still be eligible to vote and the law is applied to everyone.

As for Eve's first point, I simply note that how sex difference is relevant to marriage would arise in evalutating the state's interest in prohibiting SSM (or how it's relevant to governing and representation would arise in its interest in requirng a senator of each sex).  That would not have anything to do with whether a compelling interest were needed. 

Is The ACLU Trying To Strike Down Child Molestation Laws?

I don't agree with every case the ACLU pursues--for example I thought their quest to remove a small cross hiding in the Los Angeles County seal was foolish--and I certainly don't agree with every legal argument they make.  But I was shocked to read at Dust in the Light that the ACLU was apparently arguing that there was a constitutional right to molest children.  That didn't seem very likely to me so I decided to check it out.  The argument, it is claimed, appeared as a footnote in the case of Kansas v. Limon which involved one resident of a school for developmentally disabled youth, who had just turned eighteen the week before, performing oral sex on another resident who was only fourteen.  The ACLU got involved because if Limon had been female she would have had a maximum presumptive sentence of 15 months in prison, but being male was sentenced to over 17 years in prison and must subsequently register as a sex offender.  That is because of a so called "Romeo and Juliet Law" in Kansas which makes sex between teenagers a lesser offense, but it applies only when the teenagers are of the opposite sex.  I read the ACLU's brief and it focused entirely on equal protection arguments.  Limon was treated drastically differently because he was gay and he was treated drastically differently because of his gender. 

So where did people get the idea that the ACLU was trying to strike down child molestation laws?  Well the post at Dust in the Light referred to a post by Clayton Cramer who had claimed the ACLU had also made a due process argument in their case.  He was referring to footnote four in which the ACLU said, by way of offering an alternate theory,

In addition, the exclusion in the Romeo & Juliet law must satisfy heightened scrutiny because it provides gay teenagers with differential access to a fundamental right.

 

Note that this is still an equal protection argument.  Under federal law there is generally two ways in which an equal protection claim can force a heavy burden on the state to justify its unequal treatment of individuals.  One way is if the differential treatment was based on some suspect classification like race, or in this case, gender.  That is the main argument being made here.   The other way, though, is if the subject matter of the unequal treatment concerns a fundamental right.  For example in Bush v. Gore the Supreme Court was concerned about differential methods of reading ballots which implicated one's fundamental right to vote.  The ACLU is arguing that if their main arguments as to why the state has a heavy burden to justify this exclusion fails, as a fall back they claim the burden still exists because the case involves matters of sexual intimacy.  They do note that a teenager's rights are more limited and there is greater justification for those rights to be restricted.  And they don't argue that it should not be restricted here either, but they do feel it should be restricted on all teenagers equally.   In fact, voting rights are a great analogy here.  States may certainly restrict the ability to vote to people over the age of eighteen.  Should a state allow sixteen year olds to vote, though, it would seemingly be quite problematic were they to only give voting rights to sixteen year old students who take AP History classes. 

If there was any doubt about what the ACLU was arguing here, it should be laid to rest by their reply brief (internal citations omitted):

The Kansas legislature has already decided that consensual sexual activity between teenagers who are close in age should not be punished as severely as sexual abuse of a teenager by a much older adult.  Requiring the State to treat gay teenagers equally will not prevent the State from prosecuting and convicting adults who sexually abuse young children, nor will it prevent the State from prosecuting and convicting older teenagers who engage in consensual sexual activity with a 14 or 15 year old. Contrary to the State’s assertions, Matthew [Limon] is neither seeking to invalidate age of consent statutes nor asserting a “privacy interest in committing sexual offenses against children.”  Matthew is not asking this Court to overturn the Romeo & Juliet law; to the contrary, he wants to be charged and prosecuted under it.

And later....

Moreover, the State does not explain how Matthew’s argument undermines the statutory framework for protecting children. The existing statutory framework protects young children under a set of laws that are not implicated here. And it protects teenagers by making it a serious crime for a much older adult to sexually abuse a 14 or 15 year old and by imposing smaller penalties – while still making it a crime – for an older teenager to engage in consensual sexual activity with a 14 or 15 year old. Thus, younger teenagers
are protected from older teenagers and older teenagers are protected from excessive prison terms. Matthew’s is simply asking that the State be required to treat gay teenagers and heterosexual teenagers equally when it punishes them for consensual sexual activity with other teenagers.

The above paragraph ends with the following footnote:

The State attempts to distinguish Lawrence because it did “not involve minors."  But equal protection principles do not change simply because a case involves a minor. The equal protection principles discussed in Lawrence apply here with equal force. In contrast, because this case involves a minor, Matthew has not asserted a due process claim, and concedes that the State’s interest in protecting younger teenagers justifies subjecting older teenagers to the criminal sanctions imposed by the Romeo & Juliet law.

Thus we see that, no, the ACLU is not trying to strike down child molestation laws, nor any laws, in fact.  They are merely tring to get a current law to apply equally without regards to gender.

Changing the Laws of Marriage

Lately, I've been thinking about two seemingly unrelated arguments against same-sex marriage.  One is that we shouldn't change the laws of marriage, which apply to the heterosexual majority, for the sake of accomodating the homosexual minority.  The other is that if we are going to allow same-sex couples to marry, why not allow polygamy or incestuous marriage.  My most detailed response to the latter argument came last February in a series of two posts and a follow-up.  I just wanted to emphasize one point that might have gotten lost in all of that. And it relates to the first argument above. 

Same-sex marriage, at least in Masachusetts and several other states, would not change the laws which govern the marital relationship.  Same-sex couples would be subjected to the exact same laws that currently apply to opposite-sex couples.  Likewise opposite-sex couples who marry would continue to have the exact same laws apply.  For example, should same-sex marriage become legal in Connecticut, the laws which govern my marriage to my wife will not change.  One can argue--and we certainly do--about the cultural impact of allowing SSM, but in terms of the law the only change would be which couples may enter into marriage, not the legal consequences of marriage.  Polygamy, on the other hand, changes a law which governs marriage and it changes it for everybody.  Whereas the law now says a married person may not remarry without obtaining a divorce, it would no longer require that.  Although this is not the only problem with polygamy, it is a serious one.  I believe it would have a  significant  detrimental impact on the marital relationship.  Likewise no-fault divorce changed the laws which govern the marriage relationship itself.  The rules for what may end the marriage changed, and this quite naturally had an impact on the marital relationship.  Again since the laws changed for everybody, its potential effect reached everybody.  Even those that don't get a divorce are aware that divorce could happen even if they do nothing wrong. 

In some sense, changing the prohibitions with regards to incestuous marriage is more like the change in same-sex prohibitions in that, with regards to marriage, it is a change of who may enter into the relationship and not a change of the laws which govern the consequences of marriage.  But such a move does indeed change the laws which govern those other kinship relations.  So just as legalized polygamy and no-fault divorce could impact the marital relationship, legalized incestuous marriage could impact other family relationships.  In this respect alone I see a huge difference between same-sex marriage on the one hand and no-fault divorce, polgyamy, or incestuous marriage on the other.  And, of course, there are other differences as well.   

Societal vs. Individual

Eve clarifies that her concern with my arguments against polygamy and incest were not a matter of abstraction, but rather a concern that I was assuming a societal interest in marriage which is at the heart of the SSM debate.  She writes:

I would say, rather, that his reasons, however compelling to people already driven by "macro" social concerns and questions of societal benefit, assume that marriage is about social capital and societal benefit rather than being about the adult individuals who make up the union. And this societal vs. individual divide is one of the biggest factors in the SSM debate! So it is not so much "abstract vs. concrete" but a deeper conflict of visions--what, or whom, is civil marriage about? The people who want their union to be considered a marriage, or the citizenry at large, and most particularly the children?

I believe civil marriage is about society at large, the married couple, and the children of that couple.  I don't think it's a case of who am I choosing in this conflict.  I don't see the conflict in the case of SSM.  I think marriage is good for society regardless of the sex of the individuals in the marriage.  I also think it's good for the couple and especially good for their children.   I believe Jonathan Rauch will continue to make this argument in his forthcoming book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.  The description from the publisher reads:

Two people meet and fall in love. They get married, they become upstanding members of their community, they care for each other when one falls ill, they grow old together. What's wrong with this picture? Nothing, says Jonathan Rauch, and that's the point. If the two people are of the same sex, why should this chain of events be any less desirable? Marriage is more than a bond between individuals; it also links them to the community at large. Excluding some people from the prospect of marriage not only is harmful to them, but is also corrosive of the institution itself. The controversy over gay marriage has reached a critical point in American political life as liberals and conservatives have begun to mobilize around this issue, pro and con. But no one has come forward with a compelling, comprehensive, and readable case for gay marriage-until now. Jonathan Rauch, one of our most original and incisive social commentators, has written a clear and honest manifesto explaining why gay marriage is important-even crucial-to the health of marriage in America today. Rauch grounds his argument in commonsense, mainstream values and confronting the social conservatives on their own turf. Gay marriage, he shows, is a "win-win-win" for strengthening the bonds that tie us together and for remaining true to our national heritage of fairness and humaneness toward all.

That being said, I think there is a mistaken impression the Massachusetts SJC somehow ignored the arguments about the societal effects.  They did not.  They merely observed that the arguments as presented did not make sense.  The state argued that there would be some harm from nonprocreating couples marrying.  The court noted that if the state truly believed this, it was awfully strange that no nonprocreating opposite-sex couple was ever barred from marriage on that account.  It was even stranger that the laws made it easier for a woman on her deathbed to marry.  To accept the state's argument the court would have had to believe that the state really didn't want any nonprocreating couples to marry, but just hadn't figured out how to do anything about the problem except for the case of same-sex couples.  It would have also had to believe that the state made it easier for a person on her deathbed to marry in the hopes that she would conceive before dying.  I can't blame the court for not finding this argument credible.  Likewise the state had argued that it was trying to establish the "optimal" setting for raising a child.  The court was baffled by what children the state was possibly helping by its prohibition.  It certainly wasn't the children of the same-sex couples who were being denied the legal protections and security stemming from their parents' marriage.  It was rather hard to see how denying this one sizeable group of children these protections did anything to benefit the children of opposite-sex couples either. 

This idea is related to Eve's response to Ampersand where she contends that she's asking everybody to sacrifice.  It seems she's asking heterosexual couples to marry and to take care of their children and spouses.  I can understand that.  She's asking people to take responsibility for their actions.  I'm all for that.  It seems to me, though, that we should be asking the same of same-sex couples.  Same-sex couples are trying to protect their families and volunteering to take on addition legal responsibilities and obligations in the interest of their families.  Why is that wrong?  What would Eve have them do instead?

Incest & Polygamy: The Responses

Well I've gotten some feedback about my two  posts on incest and polygamy.  Justin Katz has a lengthy and  thoughtful response, and introducing Katz's response Eve Tushnet writes:

I agree with all of the arguments Rosenberg musters against incestuous and polygamous marriage. I'm especially sympathetic to claims about "role conflict." But I agree with Katz that these claims may well not be strong enough to resist the tide of an understanding of marriage based solely on mutual affection and care--I mean, c'mon, does anything sound more abstract than "role conflict"? Rosenberg is still assuming that cultural "prejudices" will remain on his side even when confronted with photographs of happy "poly families" and appealing claims about rights and love and Whose Business Is It Anyway? In other words, Rosenberg is right about everything except the potential for a slippery slope--the crux of the contemporary argument.

Katz had similar thoughts:

...When it comes right down to it, while he has made some reasonable arguments — ones to which I may very well refer if things devolve so dramatically in the future — and considered various angles, the whole endeavor strikes me as beside the point.  The reason I say that is the tenuousness of the distinction between abstract contemplation and practical, political considerations...
...Moreover, the arguments put forward for same sex marriage — issues of privacy, consensuality, discrimination, civil rights, personal love and humanity, practical necessity for mutual care — easily overcome the vague principles suggested as barriers to such things as incest and polygamy. This is true for the simple reason that almost none of the barriers — with the exception of parent/child incest — has self-evidently, or even arguably (in some cases), better foundation than maintaining the link between marriage, procreation, and child rearing...

I attempted address some of Mr. Katz's more specific concerns in a comment to his post.  For this post, let me just note that the major concern of both Katz and Tushnet is that my arguments are too abstract for the courts. [or for the public?]  My major reason for writing those posts was to respond to attacks--not coming from Katz or Tushnet--that claimed there was no principled reason to support a right to SSM but not a right to incestuous or polygamous marriage.  I was not predicting what courts would do.

If I had to predict, though, I would say that courts would reject arguments for incestuous or polygamous marriage.  Polygamy actually has the weakest case of them all.  There is no equal protection concern.  Nobody can marry a second person without the first marriage ending.  Some opponents of SSM claim that similarly nobody can marry a person of the same sex. Such a statement, though, inherently makes reference to one's sex.  If that were enough to get around any equal protection analysis we could have separate employment opportunities for men and women.  Nobody could apply for a position designated for the other sex.   Perhaps a court might say that concerns of autonomy should require that three or more people may cohabit, but I doubt they would object to a marriage regulation that only makes reference to one's marital status.  Courts are used to thinking of things in gender-neutral terms, considering the individual and not the sex.  Polygamy requires considering two (or more people) the same way you would consider one person.

Incestuous marriage actually has a stonger case, in my mind.  In the polygamy case, a person seeking to marry another was allowed to do so provided he obtained a divorce from his first marriage.  In the incestuous case, as in the same-sex case, a couple is not allowed to marry no matter what they do.  And, as Katz points out, the existing familial relationship between the potential couple is not close to the status of the marital relationship in the law.  Still if one accepts that the state may prohibit marriage based on certain kinship relations, then the question becomes where to draw the line.  Despite what some critics have said about "activist" judges, I think the courts do leave such line drawing to the legislatures.  They only have objections when those lines are drawn basd on sex, race, religion, or a few other factors.

This is not to say that there aren't good policy arguments for trying to help two relatives struggling to raise a child of one of them, or two widowed sisters relying on each other for mutual support in their old age.  When Vermont established civil unions, they also established a reciprocal beneficiary relationship for individuals too closely related to enter into a civil union or a marriage.   I think this was a good idea, but do not think such a relationship would suffice for same-sex couples.  I will examine this RP relationship in more detail and try to explain my views on this subject in a subsequent post.  I believe the plaintiffs in Goodridge had a strong legal claim and were right to present that claim to a court.  I fully support the rights of others who object to other marriage prohibitions to present their claims to a court as well.  I simply don't think their claims are nearly as strong.

Incest & Polygamy (2 of 2): Justification

In the last post I examined how arguments for subjecting prohibitions on same-sex marriage to stricter scrutiny may or may not result in subjecting incest and polygamy prohibitions to higher scrutiny as well.  It depended on which arguments were made and how those rights were viewed.  Ultimately though, no matter what standard is used, the prohibitons against polygamy, incestuous marriage, and same-sex marriage must all be justified.  I will demonstrate here that the first two marital prohibitions may be justified and those reasons do not imply the latter prohibition is justified.  That is same-sex marriage does not necessitate incestuous or polygamous marriage.  Furthermore, I will note that the same-sex marriage prohibition may well have been justified in the past.  This exhibits the logical flaw in claiming it's impossible for there to be no rational basis for prohibiting same-sex marriage because the prohibition has existed for thousands of years.

As I noted in the last post both polygamy and incest prohibitions deal with prohibiting marriage because of the presence of another kinship relation.  In the polygamy case it is the marital relation of the individual to another spouse.  In the incest case it is the already existing kinship relation between the prospective couple.  I believe that the new relation (and even the possibility of such relation occuring) interferes with the already existing relation.  I think this is what sociologists and anthropologists refer to as role conflict but I'm no sociologist.  In any case, I will explain in more detail below about ways this conflict in roles creates problems.  First, however, I will note that the legal marital roles used to be distinctly defined by gender.  Likewise a person's role in society used to be legally defined by gender. Thus a huge conflict could have arisen from the preson of one gender taking on the legal role of another.  That problem no longer occurs today for two reasons.  In many states, including Massachusetts, the legal role of husband and wife is no longer distinct.  A few laws on the books may be gendered, but in all likelihood such laws would be required to be read gender neutrally should they be challenged.  Likewise, the legal role in society is no longer gender determined.  I'm not saying there are no differences between men and women, but rather there are no legal rights or obligations in the commonwealth of Massachusetts that apply to only one sex.  (At the Federal level a few remain.  For example, men must register with selective service.) 

So what specific role conflicts emerge from allowing polgyamy or incestuous marriage?  Foremost is the legal right of a married couple to have sexual relations conflicting with the legal prohibitions of adultery and incest.  Until recently legal prohibitions on homosexual relations would have caused a conflict, but such prohibitions no longer exist.  Some may argue that this is just evading the question.  SSM advocates have generally argued that prohibitions on homosexual relations are unjustified.  Couldn't one similarly argue adultery and incest prohibitions are unjustified.  The problem remains, though, one of role conflict.  If sexual relations were permitted with close kin that would sexualize such relations.  Siblings, for example, could no longer be as close with the knowledge that it was legally permissible for a sexual relation to develop whether or not such a relation actually develops.  Similarly the knowledge that a spouse is legally permitted to develop a sexual relation with another inhibits the development of a close relationship between the married couple.  I should note these harms occur for all, even those opposed to such relations.  Permitting homosexuality does similarly affect the relationships between men (and those between women).  The effect is not so significant, though, because unlike adultery and incest it's not interfering with the more important family relationships.  It only affects general social relationships like business contacts.  This might have been a problem in the past when business contacts were almost entirely between men (I believe this might explain why male homosexuality was and is viewed more harshly than female homosexuality).  In today's world we are used to making social contacts with both men and women.

Other role conflicts and confusions also emerge.  A person has certain obligations to care for his spouse.  If he takes on a new spouse the new obligations might conflict with his old obligations.  Some have argued that it would be okay if the old spouse consents.  This is problematic for several reasons, though.  First of all, marriage is not just a legal contract that can be modified on the whim of the parties involved.  It also involves a third party, the state.  The state spells out certain rights and responsibilites and only the state can waive those responsibilities.  More impotantly just how is the old spouse supposed to grant this consent?  Tom wants to marry Sally, so he goes to Sue to ask for permission.  I think it's reasonable to assume that just asking Sue could cause some problems in their marriage.  Suppose Sue doesn't want to give her consent.  She risks losing her spouse if she doesn't accede.  I believe this is a case where consent can't freely be given.  A similar issue of consent arises with regards to incest especially parent-child.  A parent exerts a great deal of authority over a child.  Even when the child becomes an adult there is reason to believe consent can't be freely given.  Compounded with this is the problem that if a sexual relation is allowed to eventually emerge that can affect and threathen the relationship when one is still a minor.  I should note that this is not confined to family relationships.  Minnesota has recently passed, and other states have followed, laws which criminilize sexual relations between patients and therapists even when consent is given.   

Another issue arises with regards to polygamy.  Many laws would seem to require that there be one individual spouse.  For example, if sickness or death strikes one, the spouse is responsible for making certain decisions.   If there are multiple spouses who makes the decision? 

Finally, a word about the incest prohibitions.  I've been referring to problems in role conflicts that arise when one is allowed to marry close kin.  Such concerns would arise whether the relation is by blood, adoption, or even marriage.  Most, but not all, current prohibitions are concerned only with relations by blood, that is consanguineal kin.  Their stated concern is often genetic, although there is strong evidence that in the case of cousins the concerns are way overblown.  Thus for example some states allow first cousins to marry provided they are incapable of procreation (which kind of destroys the whole same-sex marriage needs to be prohibited since same-sex couples can't procreate argument).  While the concern with closer relatives might be valid, I believe there the issues I mentioned above are factors to consider as well.  Thus I believe, for example, that a state should forbid the marriage of a person and his stepchildren (through a divorce or deceased spouse).  Precisely which consanguineal and affinal relations should be prohibited is a question of where one draws the line with respect to kin being too close.  Such line drawing is best left to the legislature and different states may, and do in fact, reach different conclusions.  The situation is like that of age regulations.  Once we establish that a line may be drawn based on age we defer to the legislature to determine which age.  While the different regulations do occasionally lead to conflicts and confusions they have been manageable and should be a guide for how to deal with conflicting laws regarding same-sex marriage.  Of course, I believe the US Constitution's 14th amendment requires same-sex marriage everywhere, but until the time that is recogized I do not buy arguments that a federal marriage amendment is needed to avoid the chaos of differing state regulations.   

Incest & Polygamy (1 of 2): Justice

I hear a lot about how the legalization of same-sex marriage will lead to the legalization of incestous marriage or polygamous marriage.  I have even heard how it is impossible for one to make a principled case for SSM without supporting incest and polygamy.  It is tempting to dismiss these claims by noting the same thing was said by those who opposed interracial marriage.  While that is true, it does not deal directly with the arguments being made.  Therefore I have undertaken in this post and the next to at the least explain how one can make a principled stand for SSM while opposing other forbidden marriages.  Furthermore I hope to pesuade others that likewise the Goodridge decision did not open the door to incest and polygamy.  In the second post I will examine some justifications for denying incestous and polygamous marriages and how they don't apply to prohibiting same-sex marriage.  In this post, I'll examine arguments for why the state should needed a strong justification to deny same-sex marriage and explore whether and how those arguments might transfer to the case for other forbidden marriages.  These arguments are genereally phrased as legal rationales for why SSM prohibitions should be "subject to a stricter scruitny".  They can also be thought of as moral arguments for why prohibiting SSM is so unjust.

One of these arguments for stricter scrutiny is that the state is interfering with a fundamental right to marry.  Even those who oppose the idea of unwritten rights will concede the US Supreme Court through numerous precedents over the last hundred years has recognized such a right.  In a concurring opinion to Zablocki Justice Powell expressed concern that this right swept too broadly and would be problematic in subjecting "bans on incest, bigamy, and homosexuality" to strict scrutiny.  The arguments thus come down to not whether there is a "right to marry" which has already been recognized and is unlikely to dissappear, but rather what is the nature of that right.  How broad or narrow is it? 

Some would interpret it as a right to marry someone, not a right to marry anyone.  We thus hear that gays aren't denied the right to marry since they may still marry someone of the opposite sex.  This view would indeed also eliminate any right to polgyamy or incestuous marriage.  I think this view is far too narrow, though.  For an eloquent expression of why the right to marry must include the right to marry the person of one's choice see the opinon of the California Supreme Court in Perez v. Sharp.  Alternatively just think how one would feel about a requirement that one must marry a person from the same--or better yet different--income levels.  It might go something like this.  If either you or your parents earned an income of over $60,000 in the past year you may only marry someone for whom that was not true.  Likewise if both you and your parents earned less than $60,000 in the past year you may only marry someone for whom that was not true.  The state could argue rationally that this is a way to combat poverty.  I think most people would feel the state does not have the power to interfere with whom we marry in that way.  Another argument made for how the right to marry is limited is that it is predicated on the ability to procreate.  This would not limit the right, though, so as not to apply to other forbidden marriages.  Finally it has been suggested that the right to marry is limited to the right to enter into "traditional" marriage.  Again though, this might not limit the restriction on polygamy which has a long tradition.  Even if one was only looking at traditions in the US, it would fail to limit prohibitions on first cousin marriage which did not appear in the US unitl the 1861.  Some states still do not prohibit such marriages. 

Thus depending on how one views the right to marry, arguments used by SSM advocates could be perceived as attempts to broaden this right in such a way as to also include a right to polygamy and incestuous marriage.  Such a right though would only establish the need of a state for stronger justifications against each type of prohibiton.  There still may be compelling interests to retain the bans on incest and polygamy.  Such is the view of Evan Gerstmann who persuasively argues for why the right to marry is broad enough to include the right to SSM.  Personally, I tend to agree except as it pertains to polygamy.  I view the choice of partner as an integral part of the right to marry, but in the case of polygamy the state is not denying an individual this choice.  Rather it requires that the individual choose.  If Tim wants to marry Sally he is permitted to do so provided he first obtains a divorce from Sue.  I should also note that it is possible to view the right to marry as a right as more of a right to designate someone as kin.  Under this view a person wishing to marry kin is not being unjustly denied this right since they are already related. 

One can make a principled stand for SSM, though, without even considering whether there is a fundamental right to marry. Whereas the argument above is based on freedom another argument is based on equality.  The problem with same-sex marriage prohibitions are that they classify based on sex.  Such is the view explained thoroughly by Andrew Koppelman.  Another time I will focus on why I agree with Koppelman and defend this argument against specific attacks.  For now I will just note the following.  Whether or not one believes that equal protection type clauses forbid classifications based on sex in this manner, there can be no doubt that SSM bans do classify based on sex.  Without resort to such classification there is no way to maintain the prohibition on SSM.  Even if one views the arguments for SSM as being based on a right to marry, the justification for the prohibition will necessarily address how a sex-based classification in marriage can be used to achieve some governmental interests.  Justifications for polygamy and incest prohibitons, on the other hand, will address clasifications based on kinship.  Tim may not marry Sally because he is married to Sue.  Richie may not marry Joanie because he is her brother.  Certainly one can make a principled argument that the law should be sex-blind and thus allow SSM.  If one believed the law should not recognize kinship, though, it makes no sense  to argue for the recognition of a marriage.  Likewise when we explore justifications, it will not be surprising that issues of kinship are relevant to marriage prohibitions while, in a society of legal gender equality, gender is not as relevant.

So what about the Goodridge decision?  Did that help the case for incestuous or polygamous marriage?  Well, no.  Although the opinion discussed at length the right to marry and equality concerns--in a manner quite similar to Perez--it did not subject the prohibition to strict scrutiny. Nor, contrary to some reports, did it it rule that the prohibition wasn't subject to strict scrutiny.  Rather it noted that the state had failed to justify the prohibition even under a rational basis.  Thus the case cannot be used by others to argue for (or against) a higher scrutiny in marriage prohibitions.  Some have remarked that if the longstanding sex-based requirements in marriage can be declared "irrational" there is no reason to believe the other prohibitions won't also be similarly viewed as lacking a rational basis.  In the next post I will demonstrate not only that there are compelling (and similar) justifications for polygamy and incest prohibtions, but also that similar rationales could have been used historically to justify a ban on SSM while failing to do so now because of recent advances in gender equality.