Where the Boys Aren't VII

New at Reason: Even in Gavin Newsom's America, Cathy Young foresees an uphill battle for polyamorists

Comments

[JJB]

"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."

If marriage laws are about society's desire to support and encourage those who raise children (which is one of the primary arguments I repeatedly hear about this issue), I have yet to hear any politician or interest group state that couples who biologically can't have children (such as couples in their 60s and beyond, or younger, infertile couples) should be denied marriage licenses if they want to get married.

Having children is a clearly component of the reasoning behind marriage laws. However, so is the desire to promote companionship between loving adults. So, in order to not be hypocritical, anyone who wants to ban gay marriage because of reasoning that rests on arguments about raising children should also ban marriage for couples incapable of having children.

All the more reason that the government should not be in the marriage business in the first place.

[Jeff Clothier]

I'd love to argue with you, but I can't. Excellent post that pretty much puts a period on the topic as far as I'm concerned.

[Shannon Love]

Court are bound by logic and precedence in ways that the legislative is not. Courts quite often find themselves forced to issue rulings that everybody agrees will lead to perverse or unjust outcomes. Gay marriage will only trigger a slippery slope to the destruction of civil marriage if it is implemented via judicial fiat. A court must create gay marriage by basing it on some other unrelated right such as the right to ?marry the person of one?s choice? Once it has created this precedent, then all other marital restrictions would fall as well.

The legislative is not bound by precedent. It can reverse hundreds of years of law if the majority think doing so is a good idea. It can set any limitations it pleases as long as doing so falls within its constitutional scope. If the legislative votes to extend marriage to same sex couples it can do so and then stop. There is no slippery slope, just a statement that the majority thinks that it?s now a good idea that same sex couples marry. They can say other remaining restrictions remain good ideas.

The battle over whether we should have gay marriage or not (I think we should) is really just a side show. The real important questions is: how to we make major, unprecedented changes to our laws? Will we succumb to the fascist impluse to hack through the law to reach the result we want or will we do it the hard, slow, democratic way?

[pornfan]

Wow, Tim. Fairly obscure porn reference. I'm impressed.

[Shannon Love]

JJb,

Actually, the inability to produce children has historically been valid grounds for divorce or annulment. All marriage law both in Western and other cultures is grounded on the presumption that children will likely result.

The entire legal framework surrounding marriage is based in some way on children. Almost all restriction on marriage other than those based on the age of consent relate to the children the marriage might produce. Consanguinity laws (can't marry siblings and cousins), miscegenation(interracial) laws, venereal disease testing etc. all at least touch on the effect these factors will have on the children the marriage might produce.

Gay marriage did not exist as a legal concept in any form at anytime in law (definitely not in the last 500 years) in part because gay marriages would not produce children. The benefits related to modern marriage unrelated to children that gay couples now deserve, are largely inventions of the twentieth century.

On good reason to expand marriage to gay couples is that we have technologically largely severed sex from reproduction. It was once a safe presumption that if two heterosexuals had a sexual relationship children would eventually result. Laws attempted to restrict sex to married couples in order to insure that the resulting children would be cared for. Now that is no longer the case, and the institution of marriage has changed for heterosexuals. Extending the institutions to gay couples will have much less impact that it would in the pre-birth control era.

The idea that marriage as a legal and cultural institution is unrelated to welfare of children is clearly without merit.

[Mark Anderson]

"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."

I do believe that 50% (or more) of good ole fashioned heterosexual relationships have these qualities. I think what the opponents of gay and poligamous marriage are really afraid of is that these other forms of marriage may prove to be more successful than one man, one woman marriage. If gay marriage were made legal and rates of divorce and spousal abuse were lower than hetero marriage, how silly will the 'destoying the sacred institution of marriage' sound? Well, I guess a little more than it already sounds.

[Jean Bart]

"The idea that marriage as a legal and cultural institution is unrelated to welfare of children is clearly without merit."

And the idea that marraige is all about the welfare of children is also without merit. By rejecting one extreme you throw yourself on the pike of another.

[Jean Bart]

Shannon Love,

Indeed, the laws against miscegination, etc. had as much to do with the propagation of social, etc. elites as they did with the "welfare of children," even more so in many societies where a small class of individuals effectively wielded most of the official political, economic, etc. power. You will find this to be especially true where slavery existed in the post-Columbian New World (e.g., South Carolina, Brasil, Cuba, Jamaica, etc.).

[scott]

kwais,

"I think that the gay community just wants to use the gay marriage issue to force the rest of everyone to accept them as normal and valid"

this might be true for some folks, but i don't believe it's correct for the majority of lesbians and gays. in my experience i've only heard straight people make this assertion. this is much more a fight for equality in the eyes of the law than a fight for equality in the eyes of some bible-thumping freak somewhere. (besides, the public at large will eventually accept gays as normal and valid regardless of the outcome of all this marriage stuff. its inevitable)

[Randy]

I like the following:

"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 philosophy of those who'd perpetuate discrimination is often mind-boggling. "We can't stop discriminating against THESE people, because if we stop, we'll probably have to stop discriminating against these OTHER people, too!"

[Shannon Love]

Jean Bart,

You are correct, I worded my sentence poorly. Traditional marriages laws are not concerned with the "welfare" of the children but they are concerned with the resulting children for good or ill. I let the preceding paragraph bleed over.

I should have stated it: "The idea that marriage as a legal and cultural institution is unrelated to children is clearly without merit."

Some laws, like consanguinity laws, sought to prevent harm to the individual child first and the larger population second. Others, like miscegenation were premised on "protecting" some abstract group like a "race" at the expense of the individual. However, in all these cases the marriage is restricted based on the consequences of the children it might produce.

My central point, that most marriage law is about the consequences of the children that the marriage might produce, still holds.

[dlc]

"How do you figure that the public at large will eventually accept the gays as normal and valid?"

Not to answer for Scott, but...

Look at the polling splits on the gay marrige "question" between the 18-35 group and everyone else. Marginalized groups receive increasing acceptance through generational change. In fact, "change" in general becomes acceptable as older generations die out because the "change" is nothing new to the younger generation. To a lot of people my age (25), homosexuality was never something hidden or "evil," so acceptance comes more natually. For older generations, they may harbor more of a desire to go back to the good old days of the closet and 'confirmed bachelors.'

[Jean Bart]

Shannon Love,

Well, I would argue in many instances its less about the consequences to the children, and more about the consequences of power transfer or how elites reproduce themselves. Which goes to myany of my arguments about the nature of marraige laws as inherently opposed to individual liberty and as tools of statists to order a society along their particular statist, totalitarian, fascist, religious, or etc. designs. But I am glad to see you stepped away from the abyss I pointed out earlier.

[singleton]

Perhaps creating these new unions will be as complicated as creating busines entities and thousands of rules will be spawned governing the size and ability to right and penalties or all parties in the case of termination or restructing. Shannon's right - marriage is about allowing two people to be a single unit in the eyes of the law.

Why wouldn't people confuse "polygamy with polygyny" - from a legal standpoint how could they be different? We only counting the names on the papers, we don't care why these folks hooked up.

[TomHynes]

Legalizing polygamy does only increases the rights of currently married people. Currently, if I tell my wife I a going to marry Julia Roberts, she will divorce me. When polygamy is legal, and I tell her I want Julia Roberts as my second wife, she is still going to divorce me, but she would have the option of staying.

Libertarians should come out in favor of polygamy and gay marriage and not draw distinctions that don't exist.

[Shannon Love]

Jean Bart,

"I would argue in many instances its less about the consequences to the children"

Sorry, I'm not making myself clear. It's not the consequences TO the children that traditional marriage law and custom addresses but rather the consequences OF the children. In other words, the consequences of the children's very existence.

Most traditional law and custom evinces a studied indifference to the happiness of individuals. Instead the laws and customs emphasize the individuals responsibility to others. The purpose of marriage restrictions was to prevent individuals from making poor choices that would rebound negatively upon others. This offends our modern individualistic and libertarian sensibilities but to be fair, our forbearers had less of a margin for error than we do. If we experiment in our personal lives, our children will not starve nor will our extended families suffer socially, politically or economically. This was not the case in the past and is still not the case in most of the non-industrial world.

Your top down approach to analyzing the origin of marriage laws falls into the statist trap. Like a statist, you presume that some group processes both the knowledge and effectiveness to create the consequences they desire. This is seldom the case. If you take a snapshot of the world view of the elite of any era you will see that they are usually as clueless about the workings of the world as anyone else. Indeed, the more power an elite has within a society the more hallucinatory it's world view becomes.

Until the mid-1800's marriage laws evolved largely in a decentralized and culturally driven manner. It was not until the rise of the centralized industrial state that formal law began to trump common law. The opportunity for an elite to intentionally alter the forms of marriage is a largely modern phenomenon.

The basic form of marriage we currently have (monogamous heterosexuals) exist because, at least at in the past, it worked better than other forms. The institution evolved like a lifeform. Nobody designed it.

[scott]

kwais,

the reason i believe the public at large will eventually accept gays and lesbians as normal and valid is because we are normal and valid. perceptions in the past were formed by religious superstition and misconception. they still are to some extent...witness some of the dumb shit folks like vigilance matters' has said on other threads...but like dlc points out, homosexuality isn't hidden like it used to be. more straight people these days can base their opinions on experience instead of folklore, and there's no reason to believe this won't continue, even through any potential backlash.

[Mo]

What about Brewster's Millions? None of the above would be a great choice for this presidential race. Or is that Nader?

[Mo]

Oops, wrong thread 🙂

[Brad]

I'm always a bit baffled as to why the question of polygamous marriages is always asked of those in favor of gay marriage. Shouldn't the question be more fairly asked of the other side? It seems that most of those opposed to homosexual marriage claim weight for their position from tradition and/or the Bible. Why, then, don't they think polygamy be legal, as both sources are rife with it?

[Jean Bart]

Shannon Love,

Actually, people did design it; in many nations marraige laws were systematically designed to keep some elites in power (19th century Cuba and South Carolina are perfect examples of this). Now, how successful they are is another matter; but to argue that marraige grew wholly "organically" in my opinion goes to far; it in fact discounts human agency and is deterministic, and I eschew determinism philosophically and otherwise.

[Jean Bart]

Shannon Love,

It appears that we are in agreement on other matters though.

[Shannon Love]

Jean Bart,

You are of course correct that there are instances where local elite conscientiously shaped marriage law to their own benefit but I think it very much a matter of degree. I would argue that conscious attempts to create broad law and culture usually fail due to a lack of insight and power. The institution of monogamous heterosexual marriage crosses to many political and cultural boundaries to be the creation of any one elite.

The broad and parallel development of similar institutions in many different areas and cultures suggest some sort of environmental, economic, or technological conditions that drive the adoption regardless of the conscious actions of the locally powerful.

[Shannon Love]

Jean Bart,

You are of course correct that there are instances where local elite conscientiously shaped marriage law to their own benefit but I think it very much a matter of degree. I would argue that conscious attempts to create broad law and culture usually fail due to a lack of insight and power. The institution of monogamous heterosexual marriage crosses to many political and cultural boundaries to be the creation of any one elite.

The broad and parallel development of similar institutions in many different areas and cultures suggest some sort of environmental, economic, or technological conditions that drive the adoption regardless of the conscious actions of the locally powerful.

[dj of raleigh]

Kathy's article was excellent, great!

Each person must really decide on the status quo,
or letting it go, and it will surely go,
"for better or worse."

Which is the only comment I could give to Cathy,
that For Better or Worse would have been a better title.
I read it and immediatedly wished I had written it.
Way to go Cathy Young, who's sitting on the stove.

[chairm]

Human agency has existed alongside human nature for as long as there have been children born of men and women. This is at the core of the domesticating influence of marriage. That elites may have regulated marital status for their own benefit is a testament to the power of the procreative model of marriage itself. Tap into the resonating power of marriage and benefit from its influence.

Today another elite is attempting to universally undermine the procreative aspect of marriage so as to supposedly "even the playing field" for non-procreative relationships. On one hand there are the appeals to determinism -- "love defines marriage" and sexual relations is not a choice; on the other hand the appeal to human agency -- "procreation is irrelevant to marriage" and fatherhood is optional; and the two-in-one appeal of "progress" is inevitable. The same-sex "marriage" juggernaut consists of a sometimes amusing and and oft-times perplexing combination of concepts.

[dj of raleigh]

er...ah...I meant Cathy...of course

[Mitchell Carmen]

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DATE: 05/20/2004 06:10:00
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