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February 11, 2005

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JR

We begin by putting aside the traditional belief that the state has the right to regulate sexual activity. We agree that the state should not prohibit any consensual sexual activity between competent adults, regardless of the gender or the number of the participants. We agree that people who want to live together should be allowed to do so, married or not, and that the state has no business inquiring into their sex lives if they do. We will also agree, I think, that children born out of wedlock should have full legal rights, and further that an unmarried parent has full parental rights, ie there should be no illegitimacy. Do we also agree that there should be no legal penalties for adultery? And do we agree that divorce should be freely available, without a showing of fault, and without need of consent of both parties? And of course we have long rejected the principle that a married woman is not an independent legal person.
OK. Then, if the state should not regulate sexuality or subjugate one party to the other, or bind people together for life, then marriage as a legal matter is no more than the imposition of a set of rules binding on the parties and on others regarding ownership of property, inheritance, obligations to and rights from third parties, taxation, and guardianship in the event of legal incompetence. That is all.
Now. Suppose the male of a married couple wishes to marry a woman of legal age and competence, and she wishes to marry him, with the free consent of the first wife. We have already agreed that the second woman must be permitted to live with the married couple, that there should be no penalties if she has sexual relations with the man, and that her children from those relations must be fully equal in law-- in the right to inherit if the father dies, for example-- to the children of the wife.
Now let us suppose that the three go to a lawyer, who drafts a set of contracts, wills, deeds, and living wills designed to mimic the legal obligations and rights imposed by marriage as closely as possible. Is this objectionable? If so, why?
And if not, what compelling governmental interest is served by barring this man and woman who wish to marry from doing so?
Note further that the state does not absolutely prohibit them from marrying; it merely requires the man to divorce his current wife first, which he is permitted to do regardless of her preferences. What governmental interest is served by this rule?

A real Minority on the Internet and in the World

The point of gay "marriage" is to slothly and altruistically expand government intusion on the straight white man "da devil" through collecting tax and insurance benefits for same sex partners, that is to say screwing over the "evil" straight white man finacially again, something hip, cool, and "dropitletizhot" and MTVrad... it's SOMETHING THAT VICENTE BUSH WANTS TO ACCOMPLISH AND WILL PASS (Destruction of the white race)

Galois

JR,

Actually I do think there should be legal penalties for adultery, and I'm quite torn about what the laws of divorce should be. However, for the sake of argument let us accept all of your premises and turn to your question,

And if not, what compelling governmental interest is served by barring this man and woman who wish to marry from doing so?

Note, first of all that this post was about how the fundamental right to marry did not imply a fundamental right to marry multiple spouses and hence only legitimate, not compelling, interests would be needed. Regardless of what sort of interest would be needed, this post was not about the interests in prohibiting polygamy. But since you asked, the courts have found many state interests in prohibiting polygamy. Personally I believe one of the strongest reasons is that it is incompatible with the system of marriage we have. Kip Esquire expands on this in a recent post that you may find above in the trackbacks. It's not that one couldn't develop a whole new system just as we could also institute a whole new system of voting but (1) There is no need to do so, (2) I cannot evaluate what the harms of such a system would be until you give specifics for what the system would entail. Until that time I would just say the state has a compelling interst in avoiding contradictory laws and impossible laws as they would lead to confusion and instability.

Some other aspects of the justification for why polygamy should not be allowed were given in a previous post I wrote or this post written by Jon Rowe. I don't agree with Jon that this is the strongest argument against polygamy, but it certainly is something to consider.

JR

Galois-
We're not talking about a fundamental right to marry multiple spouses. A single woman wants to marry a single spouse. You claim that she has a fundamental right to do so, yet you wish to bar her from marrying the partner of her choice because he is already married. Her right to choose her spouse is being infringed. Legally she can sleep with him, share his home, bear his children - she just can't marry him.
And of course polygamy is not legally impossible. It is prevalent in Muslim and African countries and they have no difficulty with it. It caused no legal problems in Utah before the territory became a state.
I read Kip Esquire up to the point where he said (in bold italics- when someone starts shouting it usually means his argument has no persuasive force) that as a legal matter "Polygamy ... simply cannot [work]." Of course it can. There is the obvious counterexample of Sha'aria law, which governs the lives of hundreds of millions of people.
And what is it about polygamy that does not "work"? Inheritance? Illegitimacy? Divorce? Guardianship? Child-rearing? How would it cause problems more difficult of resolution than those arising out of the serial monogamy and the blended families that are now commonplace?
You argue that unlike polygamy, same-sex marriage is compatible with the system of marriage that "we" have. Yet only 50 years ago "our" system looked upon homosexuality with uniform revulsion. Homosexual acts were crimes in every state until 1955. The idea that same-sex marriage could be compatible with "our" system was not even thinkable for most people until very recently - the words "same-sex marriage" would have struck virtually everyone (including gay people) as a ridiculous paradox. Our parents (or grandparents depending on your age) would have been rock-solid certain that same-sex marriage would be incompatible with the system that "we" have. Now we see that these beliefs were wrong -- same-sex marriage is perfectly workable within our system.
Similarly, polygamy may be objectionable for many reasons, as you argue (without listing any), but the notion that the legal system couldn't deal with them isn't one of them.
What I see in your argument is a post hoc attempt to rationalize a result that you want for other reasons. You want to find a way to use the courts to compel the legal acceptance of gay marriage. To do so you need an argument that would not apply to polygamy, as you have no interest in legalizing polygamy and you know that the public would not accept it. Such an argument may exist but you are not there yet. If I may inject my personal views here (and I suppose I might have an obligation to do so, now that I've speculated regarding yours), I believe that gay marriage should be legal and that the legitimate way to legalize it is through legislation. I do not think our constitution -- which is a flawed document but it is all we have -- will support a fundamental right to marriage that encompasses same-sex marriage. A ruling to that effect would tear at the fabric of constitutional interpretation and leave the protections of the constitution weaker, not stronger, for the next case. I have read the Massachusetts Supreme Judicial Court decision, and I have great sympathy with it, but I am convinced that as a matter of law it is incorrect.

PS: FYI, regarding your voting analogy, France has a law that 50% of a party's candidates must be women; Sweden until recently had a law requiring that 40% must be women (it was repealed as unnecessary when women's representation in parliament reached 50%). Perhaps you think that the French and the Swedes are denied a fundamental right, but they seem pretty free to me.

Galois
We're not talking about a fundamental right to marry multiple spouses. A single woman wants to marry a single spouse. You claim that she has a fundamental right to do so, yet you wish to bar her from marrying the partner of her choice because he is already married. Her right to choose her spouse is being infringed.

It is not being infringed by the government. You said yourself that she could marry him as long as he obtained a divorce from his first wife. He just chose the other wife over her. She also could not marry him even if were single but not intrested in her. To compare back to our voting analogy. Supose I wanted to elect Hillary Clinton governor. I could do so provided she resigned her Senate seat. (In some states she could keep the seat up until the point she took the second office, but either way she can't hold both offices at once). That does not infringe my rights. Nor can I vote for her if she doesn't decide to run for governor. Again my rights aren't being infringed.


And of course polygamy is not legally impossible. It is prevalent in Muslim and African countries and they have no difficulty with it. It caused no legal problems in Utah before the territory became a state....Of course it can [work]. There is the obvious counterexample of Sha'aria law, which governs the lives of hundreds of millions of people.

I said it could not work under our current legal system. Yes we could rewrite our laws to conform to Sha'aria, but I believe there are a number of compelling interests in not doing so. For one thing such a law (as well as your other examples) do not provide gender equality. So once again, I'm not saying a legal system cannot accomodate polygamy. I'm saying "our" legal system cannot accomodate it.

And you are right that 50 years ago it could not accomodate same-sex marriage. One reason as you said was because homosexual acts were criminal. Another reason is that the laws were not equal with regards to gender. To have allowed same-sex marriage would have required either one meber of the same-sex couple taking on the legal roles of the other sex, or completely rewriting the laws so that they are gender neutral. Compare that with today where in most states the laws are already gender neutral (even if the words used are not) so that same-sex marriage merely requires reading the law gender neutrally (an already acceptable practice of stauatory interpretation). No such remedy exists for polygamy.

What I see in your argument is a post hoc attempt to rationalize a result that you want for other reasons.

In some sense that is true. I believe prohibiting same-sex marriage is unconstitutional because it impermissibly discriminates on the basis of sex. Note however that I also want approval voting, but I am not arguing that the first past the post system violates our constitutional rights.

I have read the Massachusetts Supreme Judicial Court decision, and I have great sympathy with it, but I am convinced that as a matter of law it is incorrect.

Why? That opinion did not find a fundamental right to marry which included same-sex marriage. It said it did not need to decide that as there was no rational basis for prohibiting same-sex marriage. Unlike you claim I have listed reasons why polygamy would be problematic. It would require completely rewriting our laws (it is hard for me to be specific about the problems this would cause until you specify how the laws should be rewritten. All the specific systems you have proposed fail to provide gender equality).

I note that you have not given any argument as to why the MSJC decision is incorrect. Which reason proposed by the state did you find to be even a rational basis for prohbiting same-sex marriage?

Perhaps you think that the French and the Swedes are denied a fundamental right, but they seem pretty free to me.
I don't think they are being denied the fundamental right to vote because everybody can still vote for the party of their choice. I do think they are being denied the right to be treated equally without regards to sex. And I do think if a state required there be a senator of each sex (or required the governor each term to alternate between the sexes) we would be denied our liberties in a number of ways.
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