Monday, May 19, 2008

Why Ban Polygamy?

Todd Zwyicki at Volokh Conspiracy has an interesting post:
Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify. The primary justification I can see is a Hayekian one of prudential deference to tradition unless there is an extremely strong case for rejecting it. I would distinguish this from what I would understand as a Burkean objection, which I would read as tradition being prescriptive, rather than prudential. But whether this is an accurate distinction is probably a debate for a different day.

So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

Now my sense is that the courts simply say that they are distinguishable, but don't say why. They seem to simply say that they are different. And as Eugene's post implies, merely saying they are different without saying why doesn't hold up to scrutiny later.

The difference, as is often the case, is that legislatures often draw arbitrary lines, especially under their police power. But courts should be able to articulated a principled basis for their decisions rather than an arbitrary legislative-style line-drawing.

As I said, I don't have strong feelings on this, so my question is purely intellectual--I'd just like to understand better whether a principled line can be drawn here or whether this is largely arbitrary line-drawing.

Note that this is being framed as an intellectual, rather an political question. I don't imagine that we'll see a push for the country, or individual states therein, to legalize polygamy any time soon, if for no other reason than the fact that there is no sizeable coalition trying to advance that policy. Rather, the question should be seen as, if one supports same-sex marriage but opposes polygamy, what differentiates the two?

One of Zwyicki's commenters takes this notion further, claiming that to the extent that there is a non-arbitrary difference between same-sex marriages and polygamy, it's contrary to what we might expect:
I don't buy into the argument that same sex marriage has any legitimacy over plural marriages. Even today, there are far more people living in countries that allow plural marriages than allow same sex marriage. And, indeed, one of the largest religions in the world (Islam) condones polygamy, and there is some evidence that some, if not all, of the other "great" religions did so in the past. This doesn't even get to the FLDS and their religious doctrines. So, polygamy has a reasonably strong claim under the 1st Amdt. that same sex marriage does not.
As far as I'm aware, while Christianity never explicitly allowed polygamy, both Judaism and Islam have.

An obvious argument against polygamy is that it can be exploitive, particularly in cases where child marriage is involved, but I don't find this particularly compelling. In general, "X can lead to Y; Y is bad; therefore ban X" is pretty weak logic when Y can be prohibited directly. There is no parallel ban on "traditional" (read: monogamous, heterosexual) marriage, despite the fact that many involve various forms of spousal abuse, such as domestic violence and rape (unless you subscribe to Phyllis Schlafly's theory that "[W]hen you get married you have consented to sex. That's what marriage is all about.") Similarly, we could have laws against exploitive acts within polygamy, without banning the practice entirely.

To me, the most compelling difference between the two isn't really an inherent difference, but more a byproduct of history: the United States, and the West in general, have developed an understanding of, and common law rules governing, how "traditional" marriages function. We have accepted policies regarding property rights within a marriage, divorces, the death of a spouse, child custory, taxation and others, all of which are predicated on an understanding of a marriage being between two people.

For most legal questions regarding marriage, there is no functional difference between a marriage between one man and one woman, two women, or two men. It is easy to place same-sex marriages under the system that currently exists for heterosexual marriages, but allowing polygamous marriages would require thinking large swaths of established family law. For example:
*Adding another person to the marriage: Would the three of you have to have a ceremony at the same time? If two people wed, and the wife wants another hubby, does her first husband have to consent? Who is married anyway - a man to each woman, or all individuals to each other?

* When you marry, would there be any way to ensure that your spouse does not bring another person into the union later on? Mr. Zwyicki can surely imagine his discomfort if his wife were to wed another husband.

*What happens when you divorce? What if the second wife only came into the marriage because of her belief that the first wife did a good job of managing the children and keeping the husband's drinking under control, and the husband desires to divorce the first wife? Can the second wife object - after all, it's her marriage at stake, too?

*Have fun trying to divide property at divorce, especially if only one spouse divorces and the others remain married.

*Whose paycheck would count for child support and alimony? If the purpose of alimony is to have the divorced spouse live in the manner to which she was accustomed during the marriage, why would she not be able to get alimony from her sister-wives, if they worked and earned a paycheck?

*Upon whose death does the marriage terminate? If there is one husband and three wives, would the union terminate when the husband dies, when any one person dies, or when there is only one person left?
None of this is to say that such questions couldn't be answered, but just that we don't have widely accepted answers to them now. The fact that same sex marriage, unlike polygamy, can fit into the current legal regime governing marriage isn't a a normative argument against legalizing polygamy, but it does point to a significant difference between the two types of marriage.

UPDATE: Dale Carpenter provides several reasons why polygamy is different than same sex marriage:

*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.

*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.

*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).

*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts it.

*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.

Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.

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