Deregulation

Opening Marriage

Do same-sex unions pave the way for polygamy?

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The debate over same-sex marriage moved closer to center stage last November, after the Massachusetts Supreme Judicial Court ruled that denying marriage rights to gay couples violated the state constitution.

To a large extent, the debate is now less about homosexuality than it is about marriage. Except on the far right, objections to same-sex marriage are rarely couched in terms of moral objections to homosexual relationships. Historically in our culture, the argument goes, marriage has meant the union of one man and one woman. Change it to include a union of two men, and who's to say that it shouldn't be redefined further to include one man and two women, two women and three men, or any other possible combination?

At first glance, this argument may seem like a red herring. Yet it is taken seriously by noted legal scholars who are hardly hostile to equal rights for gays, such as Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit and Eugene Volokh of UCLA Law School. Volokh, who supports same-sex marriage but believes the issue should not be settled by the courts, cautions that "slippery slope" arguments should not be dismissed lightly.

Not long ago, warnings that the Equal Rights Amendment or laws prohibiting discrimination on the basis of sexual orientation would lead to the legalization of gay marriage were dismissed as "hysterical" scare tactics. Yet the Massachusetts court relied precisely on such provisions to strike down the same-sex marriage ban as discriminatory.

The Massachusetts ruling states that the right to "marry the person of one's choice" is a fundamental right, albeit "subject to appropriate government restrictions in the interests of public health, safety, and welfare." Could it include the right to marry more than one person?

In the recent book Same-Sex Marriage and the Constitution, political scientist and lawyer Evan Gerstmann argues that polygamy is different since the would-be polygamist can still marry the person of his first choice. Yet one may counter that having multiple spouses is the polygamist's first choice—or that, as Posner notes in his review of Gerstmann's book in The New Republic, the woman who wants to be the polygamist's second wife is barred from marrying the person of her first choice. (Most commentators seem to equate polygamy with polygyny.)

Indeed, gay marriage proponents have offered no substantive arguments to show that the reasoning used to assert the right to same-sex marriage could not be extended to plural marriage as well. They merely point out that at present there is no push to legalize polygamy. Likewise, the Massachusetts court majority dealt with the issue by stating that the plaintiffs in this case "do not attack the binary nature of marriage."

Yet a polygamy rights movement could certainly gather cultural and political momentum in the future. If that happens, Volokh suggests, some courts may discover a constitutional right to plural marriage, "citing the Massachusetts decision as an eminently logically applicable precedent."

Would that be such a terrible thing? If someone has two, three, or six spouses of either sex, they are presumably all consenting adults; if they are harming anyone, it is only themselves. My own belief is that polygamous relationships are likely to involve imbalances of power and even psychological abuse, and that they carry a high risk of instability and stress. "Polyamory" advocates talk a lot about transcending sexual jealousy, but plural marriages are rife with jealousy and tension even in cultures where polygamy is a longstanding tradition. (One reason plural marriage may prove far harder to legalize than same-sex marriage is that people who have been personally hurt by polygamy will be available to speak out against it.) But if that's what some people want, should the state restrict their choices for their own good?

On the other hand, legalizing polygamy would alter the state of marriage in general far more than gay marriage could. Allowing Jane to marry Ann does not in any tangible way change Sally's marriage to Bill; allowing Sally and Bill to marry other people while remaining married to each other changes it drastically. Even if they never exercise this option, the mere possibility of it could cause enough anxiety to destabilize a marriage subtly.

While legalizing same-sex unions is extremely unlikely to entice any heterosexual man to leave his wife and marry another man, having multiple partners could potentially be a temptation for anyone, though it's likely that social disapproval would still discourage plural marriages for most people.

Then again, the potentially harmful consequences of polygamy could exist without legalized plural marriage. Open marriages and de facto plural marriages already exist. Such relationships may even receive a measure of legal recognition: In 2000 the longtime mistress of married television correspondent Charles Kuralt won a court dispute with his widow over a property he owned in Montana.

The primary issue is not the legal benefits for multiple spouses but the perception that the state, and by implication we as a people, will be giving sanction to something a majority of Americans regard as morally objectionable—which, of course, is also at stake in the debate over gay marriage.

One proposed solution is simply to get the state out of the marriage business. As the Cato Institute's David Boaz asked in a 1998 article for Slate, "Why should the government be in the business of decreeing who can and cannot be married?" Boaz suggested that people could simply enter private marriage contracts, either standard or personalized, and the government could enforce these contracts like any other agreement, with no differential legal treatment on the basis of marital status. Meanwhile, religious institutions could decide what kind of unions to solemnize.

Boaz explicitly proposed the privatization of marriage as a solution to the gay marriage debate: "It would put gay relationships on the same footing as straight ones, without implying official government sanction. No one's private life would have official government sanction—which is how it should be." At the same time, his article is based on the assumption that privatized marriage will still be a union of "two individuals."

Boaz confirms that he would indeed favor such a limitation. "Two people seems like a good number for a marriage," he says. "People should be allowed to make just about any contracts they want among themselves. But the laws that relate to 'marriage' reflect society's desire to support marriage as an element of stability in social order and the raising of children." For that purpose, he believes, the government has a right to place some restrictions on which contracts it will recognize as marriages—at least as long as special laws related to marriage continue to exist.

But that brings us back to square one in the gay marriage debate: Recognizing the legality of a marriage implies its endorsement by society. A partial deregulation of marriage is unlikely to satisfy either conservatives or libertarians. But then, true privatization of marriage would likely generate furious opposition as well. Conservatives would see it as the final destruction of the family. Meanwhile, many advocates of same-sex marriage would no doubt feel that the marriage rights they had won were reduced to an empty prize. They might even suspect that the heterosexual majority was willing to destroy the institution of marriage rather than open it to gays.

Whatever the philosophical merits of such a proposal, the chances of privatizing marriage in the foreseeable future are virtually nil. Far from being depoliticized, marriage is likely to remain a major battlefield in the culture wars.