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.   

Comments

[Andrew Hagen]

Role conflict? You are going to hinge the entire incest prohibition on the thin string of role conflict?

Okay. Let's take gay-marriage. If two men could get married, that could cause their mother-in-laws to wonder which one they are supposed to boss around.

That's role conflict. I guess we have to ban gay-marriage, after all.

Not good enough? Let's take two women who are married. They adopt a child. The child won't know which one is his mother. Thus, we will have role conflict. Another reason to prohibit gay-marriage.

Your argument is without merit.

Let's take this a step further. Why should a person in a gay-marriage helping to raise his partners' biological child be prohibited from having sexual relations with that child?

If the child is underage, we can agree that it would be statutory rape. That would still be illegal, at least temporarily.

Suppose the child came of age, however. Could then the two adults not have sexual relations? Remember, that they are pseudofather and pseudoson.

Perhaps that is why you say:

I believe, for example, that a state should forbid the marriage of a person and his stepchildren (through a divorce or deceased spouse)

Of course without citing morality, you have no reason for saying so.

Finally, let me raise another point on role conflict. It is totally false to say that there is some consensus among sociologists or anyone else that the reason for the incest prohibition is to prevent role conflict. Some studies of incest have been undertaken, but any researcher will tell you that we don't really know why it happens, how it got banned in the first place, or why it should be banned. We can list reasons to prohibit incest like role conflict. Ultimately, however, the only reason to ban it is morality.

[Galois]

If two men could get married, that could cause their mother-in-laws to wonder which one they are supposed to boss around.

That is a gender-based role. The roles I was dealing with are strictly family-based and deal with relationships that are formed when one is a child. At least the second example of an adoption deals with a relationship with a child, but again you are resorting to gender-based roles. I am also dealing non gender-based roles (parent-child) and with the specific harm of sexualizing that role. Yes, it's based on morality. For example, my arguments are based on the premise that it is immoral to have sex with another without their consent. It is based on a view that it is immoral to have sex with a minor or to abuse one's position of authority to initiate a sexual realationship. I have no problem with laws being based on the immorality of harming others that need society's protection. Ultimtatetly all laws have to be based on such moral views. What's wrong with murder?

Suppose the child came of age, however. Could then the two adults not have sexual relations?

I don't believe they should be able to. The possibility of the future sexual relationship increases the possibility of abuse in the current relationship. I don't think sex with stepchildren should be permitted regardless of age (or at least provided the stepparent-stepchild relationship formed when the child was a minor). Parents are generally given a lot of leeway into how to raise their child, but there are some limits when we believe they have abused that authority.

It is totally false to say that there is some consensus among sociologists or anyone else that the reason for the incest prohibition is to prevent role conflict.

Where did I ever say that? Role theory is one theory behind exogamous requirements. Another theory is alliance theory. There are probably others. I never mentioned there being any consensus or even that this was a popular theory. I presented it as a reason (perhaps legitimate, perhaps compelling) to oppose certain incestuous relationships. I noted the general idea had a name in sociology.

[Michael Friedman]

I think that the idea that role conflict justifies banning incest is kind of silly. Among other things, I have a hard time considering this to be a compelling state interest.

If it is, however, wouldn't this also justify banning gay from sports teams and the military to prevent role conflict that makes it harder to form a cohesive team because the "the new relation (and even the possibility of such relation occuring) interferes with the already existing relation"?

[Galois]

Actually, Michael, I think you bring up some good points. I don't think the state has a compelling interest in ensuring cohesive sports teams, though. As for the military, though, I actually do think the government has a compelling interest in cohesion, and I think the courts ought to defer to the military (and the commander-in-chief in particular) in determining whether such a ban is needed. Now, I don't think such a ban is needed. There is evidence from other countries of little or no problem with gays serving. Women now serve with men in the military. Finally, the military was racially integrated and survived that. So here is an example where I believe the policy should be X (gays should be able to serve in the military), but the courts should not force that policy.

You can find role conflict a weak reason, and maybe courts will as well. I think it's stronger than genetics, though. We may urge people with certain genetic risks to adopt instead of procreate, but we usually leave that decision up to the parents. I think the role conflict, though, is especially compelling in the parent-child, aunt-nephew/uncle-niece relationships. Those relationships generally form when the child is a minor, but the other is an adult with authority over the child. To allow relationships to even eventually develop I think is problematic for what can occur when the child is still a minor. The issue of siblings (and yes I agree with you Eww) or first cousins, I think is less compelling, but still a call for the legislature to make. Since siblings grow up in the same household, I would still think such relationships should be banned (even step-siblings). I don't think Bobby should be allowed to marry Cindy. I actually think first cousins should be allowed to marry, although perhaps I'm biased. My grandparents were first-cousins once-removed and currently would not have been able to marry in several states.

[lop]

what if the siblings were long lost brothers who did not grow up in the same houseold?

[Galois]

I would still set the law as brothers should are not allowed to marry. The legal relationship of sibling is incompatible with that of spouse. There is no method of terminating the legal relationship of sibling.

[aka]

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