Supreme Court

Stuff Gay People Like

|

Over at the Opinion L.A. blog, emeritus reasoner Tim Cavanaugh makes the (bi-)curious case for gay marriage as a home-wrecking ball aimed at the straights:

One personal confession: I've always had two journalistic reservations with the whole gay marriage issue. The first is that it's practically impossible to come up with an illustration for a gay marriage story that is not either two men embracing, two women embracing or a wedding cake with two grooms on top. The second is that I've always found the people I agree with on this issue (pro-gay marriage) to be completely boring, and the people I disagree with (anti-gay marriage) fairly interesting. […]

Gay marriage supporters trip over themselves in their hurry to declare that polygamists or polyandrists or other sexual renegades can never be welcome in good society.

As a political tactic, that rush to conformism makes sense, but I fear it's more than just an act. If I learned anything during my long San Francisco sojourn, it's that gays can be every bit as boring and conservative as straights. Now I don't demand that anybody has to become a bomb-thrower just to get the tax breaks and other privileges straight couples enjoy. But it would be nice for somebody to acknowledge that gay marriage would be worth supporting even (or especially) if it did lead to the parade of horribles, or some consenting-adults portion of that parade, that opponents find so scary and so fascinating.

As a native and recent resident of the Golden State, and a confirmed judicial-activism hypocrite, I'm nothing but tickled pink that for a few months anyway our homosexualist friends (and enemies) will be able to marry and receive full recognition for it from state and local governments. At some very basic level denial of marriage is one of the true Last Acceptable Prejudices, and to the extent the guvmint is in the paper-recognition business, I have never understood why a legal prohibition against Heather's Two Mommies marrying isn't the worst kind of discrimination—i.e., state-enforced.

I'm glad to be living in a brave new world in which, as this fascinating New York Times magazine feature details, some young gay people won't even know what it's like to live a furtive life of secrecy and shame. Unless they want to, etc.

Steve Chapman made the case against California judicial activism yesterday.

NEXT: The Cost of Yearning for Zion

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. first!

  2. Gay marriage supporters trip over themselves in their hurry to declare that polygamists or polyandrists or other sexual renegades can never be welcome in good society.

    Round two:

    I’m perfectly willing to allow plural marriages. Although that is likely to require a complete overhaul of the state and federal laws governing rights and priviledges associateed with marriage (a worthy goal as well).

  3. I’m still at a loss to understand why marriage requires a government sanction or license at all. What laws join together, let no court put asunder? That ain’t the way I learned it.

  4. Gay marriage supporters trip over themselves in their hurry to declare that polygamists or polyandrists or other sexual renegades can never be welcome in good society.

    Sort of like 19th century Irish-Americans were one of the most racist groups around, despite the fact that they themselves were victims of similar discrimination. The more shunned by society you are, the more important it is for you to be able to shun someone even lower on the ladder.

    I’m glad to be living in a brave new world in which, as this fascinating New York Times magazine feature details, some young gay people won’t even know what it’s like to live a furtive life of secrecy and shame.

    Oh, please. In places with high concentrations of homosexuals, public homosexual relationships are already accepted. In places where they’re not, do you really think a piece of government paper saying “marriage” on it is going to change that?

  5. Wow, you Reason people really are all for the gays aren’t you? While I was reading this post I couldn’t help but notice your ad on the right of the screen advocating man-boy relationships.

  6. Sort of like 19th century Irish-Americans were one of the most racist groups around, despite the fact that they themselves were victims of similar discrimination. The more shunned by society you are, the more important it is for you to be able to shun someone even lower on the ladder.

    I thought the same thing when I read the post, Chris.

  7. Not that there’s anything wrong with that.

  8. I’m still at a loss to understand why marriage requires a government sanction or license at all.

    Legal convenience regarding making two individuals interchangeable in the eyes of the state when it comes to executing certain transactions.

    Isn’t that obvious?

  9. Gay marriage turns straight people gay and gay people Mexican. Everyone goes down a notch.

  10. Hit and Run was much better when Tim Cavanaugh was in charge.

  11. In places where they’re not, do you really think a piece of government paper saying “marriage” on it is going to change that?

    Yes.

    As we’ve seen in school- and workplace-desegregation efforts, the actual lived experience of interacting with people, and seeing them going about their lives, breaks down old stereotypes, changes some people’s minds, and causes their children to grow up with a different view right from the beginning.

    Support for gay marriage skyrocketed in Massachusetts in the years after the Goodridge decision. The sky didn’t fall, the promised orgies in the streets didn’t appear, neither divorce nor out-of-wedlock births increased, and the people who were making so much noise were proven, beyond any reasonable doubt, to be wrong.

    People came to see that gay couples were ordinary people, with families and mortgages as pants with asses in them, just like everybody else.

  12. Once again, this is why I propose turning the legal machinery of corporate law on the problem of marriage. Instead of having special assignments and giving the government the power to specify who can be in what kinds of relationships, we can instead allow people to define whatever relationships they like, and give the government a single-point-of-contact for interacting with the related group- the fictional-person of the household corporation.

    A household corporation would be a special class of taxable not-for-profit with different rules governing how assets are held and taxed. Members of the household corporation hold shares in the household (divided according to the rules administered by the household). Liability is transferable (a not-so-limited liability corporation). The household corporation may adopt children so long as the birth parent is a member of the corporation. Divorce becomes a matter of dividing the corporation’s assets among the shareholders; I think this mechanism would require a pre-built contract.

    At any rate, any kind of relationship could be adjudicated in this fashion. From the traditional nuclear family to an extended family to a group-marriage to college roommates sharing expenses. Everything from child custody to hospital visitation could be administered by at the level of the household corporation. Consanguinity need never be considered.

  13. do you really think a piece of government paper saying “marriage” on it is going to change that?

    Nice strawman. The object is not to “force” people to change the attitudes toward gays that society has taught them. Rather, it’s to *recognize* the fact that attitudes *have* changed.

  14. as pants with asses in them

    Did you slip that in there on purpose? Is your funny back?

  15. While I was reading this post I couldn’t help but notice your ad on the right of the screen advocating man-boy relationships.

    Really? I got hot young chineese women who want to be my wife and love me long time.

    Personally, I want the governement to get completely out of the relationship business. If a benefit is transferable, it’s transferable. While I can see some rules for dependents might be important, everything else is not government business.

  16. joe and Rhywun, you guys need to get together and get your story straight (npi).

  17. While I was reading this post I couldn’t help but notice your ad on the right of the screen advocating man-boy relationships.

    I think those ads are different for everyone. Doesn’t Google decide which ads you get based on your known surfing habits?

    (ahem)

  18. If two (or more) people wish to entwine their lives, for a weekend, or for fifty years, I’m all for it. Unfortunately, the “gay marriage” issue isn’t about human dignity, or selfless devotion, it’s (as so often is the case) about getting to stick your hand in somebody else’s pocket.

  19. joe and Rhywun, you guys need to get together and get your story straight (npi).

    ?

    joe has his opinions and I have mine.

  20. Gay marriage supporters trip over themselves in their hurry to declare that polygamists or polyandrists or other sexual renegades can never be welcome in good society.

    Like kinnith, I’ve no problems with convoluted marital relationships. I’ll even accept distinctions between full and limited partners. Face it folks, marriage is two things –

    A religious ceremony. The Roman Catholics consider it one of the seven sacramants. This is something the government has no business being involved in. None, Zero, Zilch.

    It is also a contract about sharing assets and responsibilities. Enforcing contract law is a valid government function, but limiting those contracts to only one group of people (monogamous hetersexuals) is blatant discrimination.

    Simple logic leads to the conclusion that if we have government recognized marriage, it is bigotry to exclude gays and lesbians.

  21. Doesn’t Google decide which ads you get based on your known surfing habits?

    C’mon people. Why are you even looking at ads? Firefox and Adblock rulz.

  22. Pssssssssst… New World Dan, Chris…
    I was talking about the REASON ad
    The one with the picture
    Of the man and the boy hugging him…
    *cough, cough*

    Aw, forget it.

  23. it is bigotry to exclude gays and lesbians

    What about camels? (Just in case.)

  24. Rhywun,

    joe just argued for the position that you claim was a strawman.

    While I think that if joe did not exist, we would have to create him, he is not my creation.

  25. It is the use of your word “force” that make the argument a strawman, Chris.

    Nobody is forcing anyone to do anything. If you want, you can keep telling yourself that the gay couple isn’t “really” married.

    You’ll just have less company, as people will come to the other opinion in much larger numbers, without any force involved at all.

  26. it is bigotry to exclude gays and lesbians

    What about camels? (Just in case.)

    The constitution documents the rights of people, so I believe we can easily limit the discussion to consenting adults.

  27. What about camels? (Just in case.)

    I’m sorry, did you really just say that? Are you joking? (surely, right?)
    I always wanted to punch people who, while being interviewed on TV, insisted that “next they’ll want to marry animals!”

  28. What about camels? (Just in case.)

    Obviously animals, being property, are unable to enter into contracts. No mareriage as it were. If you want to have sex with one, feel free.

    OTOH, an ed/pekingese relationship would probably be violating applicable state animal cruelty statutes.

  29. It is the use of your word “force” that make the argument a strawman, Chris.

    I didn’t use the word “force”, that was Rhywun. So I guess I’m in the clear.

    You may well be right about changing public attitudes toward homosexuality, but those changes will be retarded more than advanced by changing the definition of marriage by govt fiat.

  30. My wife and I were married by a Justice of the Peace 32 years ago in Georgia. For all practical purposes we were joined in a civil union, but we are recognized as being “married” by all fifty states and the federal government.

    As far as the government is concerned, marriage is a civil contract that bestows a wide range of rights and responsibilities.

    After my son was born, the priest wouldn’t agree to baptize him until my wife and I renewed our vows in the church. The Roman Catholic church is completely within it rights to decide whether or not a “marriage” performed outside the church constitutes holy matrimony.

    I see no conflict here.

  31. joe just argued for the position that you claim was a strawman

    They’re two different positions.

    Yours implies that the goal of legalizing gay marriage is to change the anti-gay beliefs of people who were raised that way.

    joe’s says that yes, some people will change their minds with “legal” mechanisms in place.

    There’s nothing contradictory there.

  32. I like how people trot out centuries-old legal definitions in support of the idea that more extreme sexual arrangements could never be considered marriages, at the same time as they wish to throw the milennia-old definition of marriage to the four winds.

  33. I didn’t use the word “force”, that was Rhywun. So I guess I’m in the clear. Oops, I guess you’re right.

    You may well be right about changing public attitudes toward homosexuality, but those changes will be retarded more than advanced by changing the definition of marriage by govt fiat. That was not what history suggests. Desegregation changed people’s attitudes across the country, and legalizing gay marriage has changed people’s attitudes where it has been implemented. Support for gay marriage on the day the Goodridge decision came out was 1/3 against, 1/3 for, and 1/3 for civil unions only, in Massachusetts. Today, support for gay marriage is something like 50%.

    The opponents of marriage equality understand this quite clearly.

  34. Chris Potter said, “I think those ads are different for everyone. Doesn’t Google decide which ads you get based on your known surfing habits?”

    I believe the moose was referring to the ad recommending you treat your sugar daddy to a reason subscription for Father’s Day.

  35. Rhywun,

    No, I questioned whether gay marriage could really change people’s attitudes toward gays, in response to Mr Welch’s claim that it would do so. I wasn’t implying any sinister motive behind gay marriage supporters.

    Though I have heard a few who seem to think this will change public opinion, most seem to just want the legal nuts and bolts (which I’m okay with) and the government sanction which comes with the word “marriage” (which I’m not okay with) for their own sake, regardless of the effect on public opinion.

  36. I like how people resort to “but it’s always been that way” as a last defense against a societal change they don’t approve of.

  37. Baseball is baseball, whether the third baseman is a girl or a boy.

    But if there are 15 people on a team, or if there are three teams on the field, the game they’re playing is not baseball.

  38. in support of the idea that more extreme sexual arrangements could never be considered marriages

    It’s hardly surprising that gays have little interest in fighting polygamists’ battle for them.

  39. If the third baseman is a horse or a two-year-old, he’s not playing baseball. He’s just standing there while other people go about trying to play baseball around him, without a third baseman.

  40. joe,

    Why is it not baseball if there are 15 fielders? Because the rules say so.

    So it seems you’re saying my arbitrary definition of marriage is hideous and unfair, but your arbitrary definition is right and obvious.

  41. @joe: Maybe we should let the players and the sporting organizations define what exactly constitutes baseball, and let the government just step in to help them adjudicate civil disputes.

    That would allow people to start tee-ball leagues, or maybe play volleyball instead, if they like, but still get the same protections as the more recognizable and established baseball teams.

    //Not to torture you’re tortured metaphor further, or anything.

  42. If Leona Helmsley can legally leave her dog a $12 million inheritance, why can’t I marry a camel?
    I’ll tell you why. It’s blatant camelism. And there’s no place for it in this great country of ours.

  43. joe,

    You realize that your analogy implies that you can be married to nine people, possibly including 7-year-olds, right?

  44. I am confused.

  45. It’s hardly surprising that gays have little interest in fighting polygamists’ battle for them.

    Then they lose claim to the phrase “equal marriage for all”, don’t they?

  46. I knew it would happen. Ya give the freaks gay marriage and now they want bestiality.

  47. If the third baseman is a horse or a two-year-old, he’s not playing baseball. He’s just standing there while other people go about trying to play baseball around him, without a third baseman.

    But if a man and woman are running around in the middle of a polo game without a horse, they’re not playing polo. So does that mean that only marriage with horses is legitimate?

  48. But if there are 15 people on a team, or if there are three teams on the field, the game they’re playing is not baseball.

    Nice cop out joe. After spending all day yesterday promoting equal protection, you give up when faced with the logical conclusion of that chain of thought.

    So when gay marriage opponents say its the first step to plural marriage, they are probably right. However, that doesn’t justify prohibiting gay marriage.

  49. Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with gay marriage check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: http://www.OUTTAKEonline.com

  50. disclaimer: that was me.
    and that other one too.

  51. @Charlotte: I disagree. Marriage is a social convention, not a civil right. The state should not be able to recognize marriage nor give special preference to domestic relationships of a certain variety.

    Down with state sanctioned marriage!

  52. Well, since we’re talking about baseball and gay marriage

  53. all bs aside. Can someone tell me if gay marriage is recognized by the feds for tax purposes?

  54. Chris Potter,

    Why is it not baseball if there are 15 fielders? Because the rules say so.

    Baseball was played exactly the same way before and after the rules about African-American players were eliminated.

    While it would be played in a very different manner if each team had 15 players.

    So, no, it really doesn’t make sense to pretend that those two rules are equivalent. One changes how baseball is played, and the other changes who may play baseball.

    You realize that your analogy implies that you can be married to nine people, possibly including 7-year-olds, right? No, because it does not. It “implies” that there is a difference between rules about the demographics of those on a baseball team, and rules about the number of people who play it.

  55. But if a man and woman are running around in the middle of a polo game without a horse, they’re not playing polo. So does that mean that only marriage with horses is legitimate?

    You aren’t making any sense. The fact that you need a horse to play polo says nothing about people “marrying” horses.

    How about less reaching for a gotcha moment, and more intelligence?

  56. I wasn’t implying any sinister motive behind gay marriage supporters.

    Fair enough. Apologies if I misunderstood you.

    Then they lose claim to the phrase “equal marriage for all”, don’t they?

    I think it is fair to say that most people–including gays–are interested in a partnership of two. The argument that “if we allow gays to marry then we have to allow group marriage” is silly–as if the gender of the participants is a variable that is in any way comparable to the number of participants (or the species of the participants for those who carry the argument to an even more ridiculous extreme). Just because the genders are different from traditional marriage doesn’t automatically give other variances equal justification for official recognition.

    PS. I have no problem with (consensual) polygamy. I just think it’s a battle for polygamists to fight, not gays.

  57. kinnath,

    I’m not copping out, and that is not the logical conclusion of any chain of thought I’ve ever put forward.

    That YOU cannot conceive of a difference between plural marriage and monogamous marriage says nothing about my argument.

    I’ll argue my own positions, thank you. I really don’t need you to assign positions to me.

  58. You realize that your analogy implies that you can be married to nine people

    I marry by National League rules, so I can only be married to eight people. No DHs in this household!

  59. joe,

    You surely don’t think sex between a man and woman is the same thing as sex between people of the same gender.

  60. The same, how, Chris.

    There are similarities, and differences.

  61. I think it is fair to say that most people–including gays–are interested in a partnership of two.

    Most people are interested in a partnership of one man and one woman, but you pay no heed to that, do you? So why should polygamists pay heed to your two-person marriage definition?

  62. There are similarities, and differences.

    It is those differences that, ummm, make all the difference.

    I see the perspective that say those differences arent big enough, but thats an argument about where to draw the line, not the fact that there is a line that needs to be drawn.

  63. It’s OK, Shake, because whoever you decide that you are, I still gonna love you. But just not in a gay way, because God makes all people in different sizes and shapes and problems, but he only makes the people he hates gay. That’s you. You it, boy. You gay!

  64. joe,

    To illustrate, if the batter had a glove instead of a bat, and the fielders all had bats instead of gloves, the game would change, right?

  65. I think it can be realistically argued that a
    man-woman-woman-woman
    relationship is closer to a
    man-woman
    relationship than a
    man-man
    relationship is to
    man-woman.

    As can the opposite.

  66. Yeah, that’s a weak argument.

    The reason the argument about gay marriage is different than that for polygamy isn’t about popularity, but about the different relationships and responsibilities they establish.

    If one of my wives and I split up, does she get half of my stuff? Does she get 1/6 if I have five other wives? The law is silent on this.

    Whereas recognizeing gay marriages doesn’t have this problem, or any similar problems. The existing marriage laws cover the situation just fine.

    Gay marriage is about allowing more people to play baseball. Plural marriage is about playing a different game.

  67. You surely don’t think sex between a man and woman is the same thing as sex between people of the same gender.

    sigh…and the thread started off so reasonably as an argument between the traditional conservative “don’t rock the boat” argument for keeping marriage defined as is vs. the progressive “positive societal change via government dictate” argument.

    Now we’re down to arguing which hole is the proper one for sex.

    Into the gutter it is!

  68. robc,

    It is those differences that, ummm, make all the difference.

    Those differences are important in many ways, but not in the area of the law.

    None of the factors that make gay and straight relationships different change how marriages work, in terms of applying the law.

  69. Chris Potter,

    To illustrate, if the batter had a glove instead of a bat, and the fielders all had bats instead of gloves, the game would change, right?

    In the case of baseball, yes.

    However, in marriage, the equipment one is using doesn’t change how marriage works. Male and female spouses “play” exactly the same way, at least as far as the law is applied.

  70. If one of my wives and I split up, does she get half of my stuff? Does she get 1/6 if I have five other wives? The law is silent on this.

    That’s because the law is set up with two-person marriages in mind. There’s no reason to think it couldn’t be changed to accommodate polygamy.

    Also, robc is right about heterosexual polygamy being closer to heterosexual monogamy than it is to homosexual monogamy. Heterosexual polygamy can be thought of as several man-woman marriages coexisting, while gay marriage requires fundamentally altering the definition of marriage.

  71. i support whatever configurations people want to make, but i think it’s in everyone’s interests (at least in private) to recognize that it is a cop-out to say “well, boys or girls are ok, so long as there’s only one of each” isn’t an equally arbitrary configuration.

    [insert disclaimer about ideal libertarian world where everyone minds their own fucking business here]

  72. That’s because the law is set up with two-person marriages in mind. There’s no reason to think it couldn’t be changed to accommodate polygamy.

    I agree. My point is, it would have to be changed – lots of marriage law rewritten – if the government recognized plural marriages.

    While not a jot or tittle of the law would have to change if we recognized gay marriage, except the references to gender, most of which have already been removed. It would merely be a linguistic change, which would have no substantive effects on how the laws operate at all.

  73. Heterosexual polygamy can be thought of as several man-woman marriages coexisting, while gay marriage requires fundamentally altering the definition of marriage.

    Cleaving to one flesh? Forsaking all others? Not just in sex, but in life, and in defining how is part of one’s family?

    That all goes away if pluaral marriage is recognized.

  74. @joe: So, your argument against polygamy is that we don’t have a legal framework in place to handle it.

    Which is wrong. Corporate law handles polygamy neatly- the group marriage can be treated as a corporation. With a small amount of legal tinkering, we can abolish state sanctioned marriage in favor of household corporations, which support nuclear families, group marriages, extended families, or any kind of relationship that we have not yet conceived of.

    Explain to me why:
    1) Sexually active couples deserve special protection, but cohabiting platonic friends do not.
    2) Extended families do not get the same protections as a married couple (can an uncle, husband and son all share ownership of property? Not unless they form a corporation or work out some other contractual arrangement!)

    You’re right- plural marriage offers some pretty nasty legal issues. All of which are neatly resolved by my solution. So, why should we keep marriage in the state at all? Let it revert to the community and let the state interact with relationships via corporate law.

  75. to recognize that it is a cop-out to say “well, boys or girls are ok, so long as there’s only one of each” isn’t an equally arbitrary configuration

    There’s a strong historical precedence argument that states that it’s not arbitrary. Historical precedence arguments aren’t absolute, and have proven to be flawed (woman’s suffrage, slavery, etc.), but they shouldn’t be discounted out of hand.

  76. None of the factors that make gay and straight relationships different change how marriages work, in terms of applying the law.

    Only if the law is completely unconcerned with the existence of a sexual relationship within the marriage. And if that’s the case, allowing gays to marry only those of the opposite gender doesn’t violate their Loving v Virginia rights, since sexual relationships have nothing to do with the legal aspects of marriage.

  77. I haven’t made an argument against polygamy.

    I’ve explained why changing the law to recognize gay marriage is different from changing the law to recognize plural marriage.

  78. vegetarianhomosexual | May 20, 2008, 12:33pm | #

    I am confused.

    It’s the lack of protein in your diet.

  79. I’d just like to note for those who are interested that Neil’s actual identity has been exposed by Jesse on the Katrina rebuild thread. None of us were right. But now we know who to compliment.

  80. @joe: And I’m arguing that we can do it all with one blow, and allow any other configuration by reusing existing legal precedents and abandoning all the ones relating to marriage.

  81. I may be showing my ignorance, stupidity, naivte, or all of the above but. Once the standard of one man one woman is set aside, doesn’t that open the door for other configurations from a purely legal standpoint? Should the difficulty of rewriting the laws for multiple spouses play a role in determining the legality of such marriages?

  82. With a small amount of legal tinkering, we can abolish state sanctioned marriage in favor of household corporations, which support nuclear families, group marriages, extended families, or any kind of relationship that we have not yet conceived of. Actually, that would involve rather a large amount of legal tinkering. As opposed to recognizing gay marriages.

    Explain to me why:
    1) Sexually active couples deserve special protection, but cohabiting platonic friends do not.
    2) Extended families do not get the same protections as a married couple (can an uncle, husband and son all share ownership of property? Not unless they form a corporation or work out some other contractual arrangement!)

    “Deserve” has nothing to do with what I’ve written, as I’ve explained above.

    Why “do” they? Becasue the institution of marriage pre-dates the state, and the state merely recognizes this institution.

  83. Chris Potter,

    Only if the law is completely unconcerned with the existence of a sexual relationship within the marriage. Gay people don’t have sex?

    Oh, you mean “Only if the law in unconcerned with the mechanical details of how married couples have sex.”

    Which is true; since the law is wholly unconcerned with the mechanical details of how married couples have sex, the differences between man-woman and same-sex sex are meaningless in this debate.

  84. @brotherben: As I’ve pointed out above, writing laws to handle group marriages can be simpler if we treat marriages as corporations. We already have the legal framework in place to handle that. We could roll out a corporation based marriage system today, without changing an iota of the corporate law. In practice, we’d want to make some minor changes to get a best-fit replacement to really fulfill the role of marriage in the most constructive and expansive fashion possible.

    The purpose of marriage is to form a two-person (plus offspring) corporation. I’m merely suggesting we generalize that to a household corporation suitable for any cohabitant or resource pooling relationship.

  85. There’s a strong historical precedence argument that states that it’s not arbitrary. Historical precedence arguments aren’t absolute, and have proven to be flawed (woman’s suffrage, slavery, etc.), but they shouldn’t be discounted out of hand.

    ehh, there’s plenty of historical harem-building and the like as well, particularly in deeply power-imbalanced social situations where one dude can basically horde women.

    but at this point in history, that’s not something which would necessarily happen. i’ve heard it argued that it would, mind you – that rich men would basically cause a marriage shortage – but i think polygamy is a fairly narrow attraction and that pair bonding, at least short term, is far more attractive to most people.

    but that doesn’t mean our understanding of what marriage is isn’t essentially arbitrary. that’s not a bad thing, either! it should serve the needs of individual people, rather than the needs of social powers – just as marriage now isn’t about handing off a woman from her father to her husband. (in most situations)

    i see joe’s point about how it’s more of a rule change to start including more people, but since what we’re dealing with, in essence, is an extended liability contract, maybe it’s time to blow out the game of baseball for something more creative.

  86. since the law is wholly unconcerned with the mechanical details of how married couples have sex

    marital rape is no longer legally winked at, though.

  87. Joe, In the above post,( 1:05pm) were you using biblical referrances to oppose polygamous marriage?

  88. t3knomanser,

    @joe: And I’m arguing that we can do it all with one blow, and allow any other configuration by reusing existing legal precedents and abandoning all the ones relating to marriage.

    Well, then, I agree. We could do that if we wanted.

    My point is that recognizing gay marriage doesn’t even require us to to that, just apply the marriage laws as they are. Hence, it is a different issue than plural marriage.

  89. @joe: “Why “do” they? Becasue the institution of marriage pre-dates the state, and the state merely recognizes this institution”

    That’s not a reason. That’s an excuse. Extended families also predate the state, but that isn’t recognized by the state. Why should the state recognize it?

    There’s no compelling reason to include marriage as a privileged class of relationship; there are many other relationships that fulfill the same social function; better to let people develop their own relationships and give them a framework to extract social benefits from the government regardless of the mechanics of the relationship.

  90. joe,

    If the law is not concerned with the “mechanical details”, then why is it discrimination to only allow men to marry women and vice versa? It’s not discrimination for the law to forbid men from sharing a multi-toilet public restroom with women, so why should marriage be any different?

  91. @joe: “My point is that recognizing gay marriage doesn’t even require us to to that, just apply the marriage laws as they are.”

    Well, yes. But I’m attacking the deeper problem- privileged social relationships. Legalizing same sex marriages is a band-aid over a fairly critical bug in our legal frameworks.

  92. brotherben,

    Once the standard of one man one woman is set aside, doesn’t that open the door for other configurations from a purely legal standpoint? It certainly opens the door from a moral standpoint. If one type of sexual minority is entitled to have his family recognized, why isn’t another type?

    But not from a legal standpoint. Eliminating discrimination in how existing marriage laws are implemented is quite a different matter than creating a whole new set of marriage laws.

  93. I don’t have anything to say about gay marriage but I have noticed that the few junior high school age kids I know use the term “that’s so gay” when they think a situation is silly or stupid.

    I suppose it’s better to be thought silly or stupid than some kind of unnatural evil-doer. I wonder though if the gay activist groups haven’t gone a bit over the deep end if the upcoming crop of kids takes away the impression that their movement is a little loopy.

  94. brotherben,

    Joe, In the above post,( 1:05pm) were you using biblical referrances to oppose polygamous marriage?

    No, I was using biblical language to express points about how marriage functions. I chose to do so not because I think bibilican authority is a good argument, but because those phrases are clear, well-recognized language which make the points I wanted to make.

  95. “gay” has been used like that since i can remember (so at least the late 80s).

  96. “Gay people don’t have sex?”

    Not according to Bill Clinton.

  97. The state does recognize extended families, t3. They just don’t recognize them as a marriage.

    And what I wrote was a reason. You asked why the law was that way, and I told you. Don’t get mad at me for accurately relating history.

    There’s no compelling reason to include marriage as a privileged class of relationship Maybe. The point I’m making is that the equal protection doctrine requires that marriage laws recognize marriages between two people of the same sex, and not other household arrangements.

    If we adopted laws that recognized the FLDS church’s marriages, I’d argue that the state is required to recognize same-sex plural marriages, too.

  98. Who the hell cares about biblical definitions or historical definitions? equal protection means just that. We don’t live in a country whose laws favor one group based on what the fucking bible says.

  99. Chris Potter,

    joe,

    If the law is not concerned with the “mechanical details”, then why is it discrimination to only allow men to marry women and vice versa?

    Because those people love each other and want to form a family. Read your Loving vs. Virginia.

  100. It’s not discrimination for the law to forbid men from sharing a multi-toilet public restroom with women

    Says who? I don’t think that that’s currently settled case law. Just because a statute is on the books doesn’t mean it isn’t bound to be invalidated once challenged.

  101. joe,

    The equal protection doctrine deals with individuals, not couples. Your argument, correct me if I’m wrong, is that individuals must be allowed to marry the person they please. But if this is so, how can you justify not allowing a person to marry someone who’s already married to someone else?

  102. Pinette,

    If we don’t define what marriage is, how can we say whether the laws surrounding it provide equal protection?

  103. Because those people love each other and want to form a family.

    So marriage has nothing to do with sex?

  104. Joe, thanks. But I don’t see why there should be a legal difference between discrimination based on gender or number of spouses. I certainly see the historical, societal and religious arguments. The legal, not so much.

  105. “”gay” has been used like that since i can remember (so at least the late 80s).”

    Yeah I suppose so but these kids use it a lot more often than in those days.

    Anyway as they used to say, what-ever…

  106. I should say, so loving each other has nothing to do with sex?

  107. Chris Potter

    But if this is so, how can you justify not allowing a person to marry someone who’s already married to someone else?

    Did I just go into a time warp?

    Did that whole baseball analogy not happen? The discussion about marriages operating differently than polygamous relationships? The example I threw out about the disposition of marital assets when you divorce one of your six wives?

    The law forbids you from marrying someone who is already married because it is impossible to have a unions which functions like a marriage in such a situation. You and your spouse cannot enjoy the rights or meet the responsibilities of a marriage (as the law currently defines it), while a gay couple in a monogamous marriage can.

  108. Douglas Fletcher,

    Junior high kids are vicious little creatures. I don’t think we should put much stock into their musings either way.

  109. joe, I’m not saying we shouldn’t define marriage, just that the definition has to consider equal protection, not biblical definitions.

  110. So marriage has nothing to do with sex?

    More time warp.

    You’re just repeating your earlier arguments, which have already been answered.

    Do you know when that usually happens?

  111. I’m not copping out, and that is not the logical conclusion of any chain of thought I’ve ever put forward.

    It is the logical conclusion of “equal protection” of individuals rights with respect to the state. Even Scalia said that when he was bitching about the majority decision overturning the sodomy laws in Texas.

    I agree. My point is, it would have to be changed – lots of marriage law rewritten – if the government recognized plural marriages.

    And I said that same thing in the second post of the thread.

    Cleaving to one flesh? Forsaking all others? Not just in sex, but in life, and in defining how is part of one’s family?

    That all goes away if pluaral marriage is recognized.

    So what. The law shouldn’t care about what marraige vows are taken by the people involved. The state should only care about the rights and responsibilities associated with the civil marraige contract.

    But not from a legal standpoint. Eliminating discrimination in how existing marriage laws are implemented is quite a different matter than creating a whole new set of marriage laws.

    If existing laws are discriminatory based on a script interpretation of equal protection, then they must be jetisoned or altered.

  112. brotherben,

    But I don’t see why there should be a legal difference between discrimination based on gender or number of spouses.

    Because people in plural marriages cannot enjoy the rights and live up to the responsibilities of a marriage contract, as defined in existing law. Gay couples can.

  113. You’re just repeating your earlier arguments, which have already been answered.

    Do you know when that usually happens?

    Yes — when you’re not addressing my points and bringing up irrelevant analogies.

  114. I should say, so loving each other has nothing to do with sex?

    It has nothing to do with the mechanics of how you have sex. It has nothing to do with whether you and your loved one have similar genitals.

  115. Pinette,

    Pinette | May 20, 2008, 1:36pm | #

    joe, I’m not saying we shouldn’t define marriage, just that the definition has to consider equal protection, not biblical definitions.

    I agree. Nonetheless, the language I quoted does a good job expressing the concepts I wished to convey, and I’m not going to spurn a good source of clear language.

  116. Most people are interested in a partnership of one man and one woman, but you pay no heed to that, do you?

    Most *heterosexual* people, you mean. The point is, pair-bonding is normal for gays AND straights. You, on the other hand, seem to think that being gay is in some way equivalent to being a polygamist; after all, they are both “different” from the heterosexual-couple norm, so they must be somehow equivalent to each other.

    Also, you seem ignorant of the fact that gays tend to be incapable of a romantic partnership with someone of the opposite sex. Polygamists, on the other hand, are perfectly capable of restricting themselves to just one partner.

  117. It has nothing to do with the mechanics of how you have sex. It has nothing to do with whether you and your loved one have similar genitals.

    So, you would have no problem with a sterilized father and daughter getting married to each other (so long as the son has reached an appropriate age)? There won’t be any children arising from such a union, so there’s no genetic concerns, and loving each other doesn’t have anything to do with genetic similarity, so why not?

  118. kinnath,

    It is the logical conclusion of “equal protection” of individuals rights with respect to the state.

    No, it is not, for the reasons I’ve already explained. Please, feel free to critique them. Or address them. Just saying “nuh-uh” and ignoring them isn’t going to prove your point, in the fact of arguments to the contrary.

    Even Scalia said that when he was bitching about the majority decision overturning the sodomy laws in Texas. Fuck Scalia, he’ll say anything convenient to get the result he wants.

    The state should only care about the rights and responsibilities associated with the civil marraige contract. And as I’ve written already, the rights and responsibilities of marriage, as currently defined in the law, cannot be met in a plural marriage. Ergo, there is not way to apply the marriage laws on the books to plural marriages in a non-discriminiatory manner.

  119. i agree with joe here,
    if 1000 people entered into a single marriage contract together in order to enjoy the (real or perceived) legal benefits of marriage, their arrangement would in no way resemble a marriage at all.
    that said, polygamy should most definitely be legal. Why the hell should the state care if those 1000 people want to consider themselves married?

  120. (so long as the daughter has reached an appropriate age)

  121. Potter, you are flopping in this argument.

    Yes — when you’re not addressing my points and bringing up irrelevant analogies.

    I’ve addressed every single one of your points, the analogy is not irrelevant, and I’ve explained why.

    Instead of even attempting to respond to the counter-arguments I raised, you are just repeating your earlier arguments as if you hadn’t seen the rebuttals.

    That’s what people do when they’re losing.

  122. People like Chris Potter can sit around trying to come up with as many ridiculous reasons as they like to prevent gay marriage, but the sea change has already started and it doesn’t even matter what people like him have to say. America is growing increasingly ready to accept harmless gay marriage, and social conservatives are going crazy trying to stop it, all in vain.

    Liberty!

  123. So, you would have no problem with a sterilized father and daughter getting married to each other (so long as the son has reached an appropriate age)?

    Because the law cannot discriminate on the basis of physical disability, and distinguishing between a sterlized vs. fertile male would do so.

  124. Joe, it only took 3-4 tries but I now see your point. thanks

  125. Most *heterosexual* people, you mean.

    No, I meant most people period — in the same sense you meant it when you said that most people want couples rather than larger groups.

    The point is, pair-bonding is normal for gays AND straights.

    And heterosexual marriage is normal for Europeans, Africans, Asians, etc. The fact that multiple groups consider something normal doesn’t make it so, does it?

    You, on the other hand, seem to think that being gay is in some way equivalent to being a polygamist; after all, they are both “different” from the heterosexual-couple norm, so they must be somehow equivalent to each other.

    Not at all. As I said above, heterosexual polygamy has much more in common with heterosexual monogamy than homosexual monogamy. If I said that allowing Buddhists to receive communion in the Catholic Church would only make sense if we also allowed Hindus to do so, that doesn’t mean I’m saying Hindus and Buddhists are the same thing.

  126. Fuck Scalia, he’ll say anything convenient to get the result he wants.

    And a great many conservatives were thoroughly pissed at Scalia, because his published dissent can now be used by supportors of gays and plural marriage to say that the US consitution does not allow laws that prohibit gay or plural marriage.

    Sometimes the written dissents are more important than the majority decision.

  127. And heterosexual marriage is normal for Europeans, Africans, Asians, etc.

    Not for the gay ones.

    This is about individual rights.

  128. chris potter, i don’t see what difference it makes what MOST people want anyway, at least as it pertains to this argument. please explain

  129. Rhwuyn is using “normal” to refer to the innate drives that define what it is to be human. It is normal to get hungry. It is normal to form pair bonds.

    Chris Potter is using “normal” to refer to social conventions.

    The former are relevant in determining the scope of our rights. The latter are not.

  130. It is normal for me to misspell other commenters’ names.

  131. I’ve addressed every single one of your points, the analogy is not irrelevant, and I’ve explained why.

    Yes, you offered explanations, but I didn’t find them convincing. It was not just me who found weaknesses in your baseball analogy, for instance, or disagreed with your protestations that the difficulties with changing the law to suit polygamy are the reason you don’t support it.

    That’s what people do when they’re losing.

    It is up to the readers of the thread to decide who’s making the more convincing argument, not the arguers.

  132. As I said above, heterosexual polygamy has much more in common with heterosexual monogamy than homosexual monogamy.

    Another ridiculous assertion that shows you have little understanding of sexual preference. You focus on the body parts rather than the dynamics of the relationship.

  133. “It is up to the readers of the thread to decide who’s making the more convincing argument, not the arguers”

    I have paraphrased this in my mind and come to the conclusion that you have no interaction with women.

  134. chris potter, i don’t see what difference it makes what MOST people want anyway, at least as it pertains to this argument. please explain

    I was referring to Rhywun’s comment way upthread, in which he stated that while gay marriages must be allowed, polygamous marriages could still be forbidden because *most* people are interested in forming couples.

    I was throwing that “logic” back in his face, showing how it could be used against gay marriage just as easily. I don’t really think that what most people think is important to morality, no.

    Rhwuyn is using “normal” to refer to the innate drives that define what it is to be human. It is normal to get hungry. It is normal to form pair bonds.

    joe, everyone gets hungry. Not everyone is interested in forming pair bonds — are you saying such people aren’t human?

  135. Because the law cannot discriminate on the basis of physical disability, and distinguishing between a sterlized vs. fertile male would do so.

    If it is a voluntary sterilization, as the vast majority of them are, how is that a “disability”?

    At any rate, trying to come up with logically consistent ways to expand marriage just enough to allow same-sex couples but not too much to start allowing other stuff seems like a pointless exercise. Allowing everyone the freedom to define their own personal relations however they wish, with no special privileges from the state, is the only truly “equal” protection.

    Though, for the record, I’ll say that allowing same-sex marriage is at least moving in the right direction. It’s worse to limit marriage to two-person heterosexual couples than to limit it to two-person couples regardless of sex, but that’s still worse than getting the state out of worrying about what constitutes a “proper” family or relationship altogether.

  136. Because the law cannot discriminate on the basis of physical disability, and distinguishing between a sterlized vs. fertile male would do so.

    Uh, if you’d be allowed to marry only if you’re infertile, that would only be discrimination if fertility is a disability. Wouldn’t that mean being able to walk is a disability also, and the govt owes me Social Security back payments for all these years?

  137. I have paraphrased this in my mind and come to the conclusion that you have no interaction with women.

    lol

    Or maybe it’s like the utopian fantasies of a wage slave working in a chicken processing plant dreaming of a perfect society where everyone is well-fed and equal and no one tells anyone else what to do…

  138. Actually, Chris, my wife’s cousin doesn’t get hungry. After-effect of brain surgery. He’s never going to be hungry again.

    That’s not normal. There’s nothing wrong with it, but it’s normal. He’s still human, though.

  139. Joe, does he find it pleasurable to eat a meal? or it just another task in his day?

  140. Brian Courts,

    If it is a voluntary sterilization, as the vast majority of them are, how is that a “disability”?

    Someone who has his leg amputated voluntarily is still considered disabled. There are people who have so much chronic pain that they’ve had their spinal chords severed surgically. It doesn’t make any difference before the law.

    Uh, if you’d be allowed to marry only if you’re infertile, that would only be discrimination if fertility is a disability. Wouldn’t that mean being able to walk is a disability also, and the govt owes me Social Security back payments for all these years? None of that makes any sense, nor bears any relationship to what I wrote. INFERTILITY is a disability. You cannot discriminate based on disability, one way or the other.

  141. I was throwing that “logic” back in his face, showing how it could be used against gay marriage just as easily.

    Only by ignoring biology. Your arguments are reminiscent of the “gay men are perfectly free to marry women” school of uninformed thought.

  142. brotherben,

    I think he can enjoy the taste of food, and sometimes even seeks it out for that reason, but it’s usually just a task.

    Even the pleasure of food is diminished, when it doesn’t help to satiate hunger, apparently.

  143. Your arguments are reminiscent of the “gay men are perfectly free to marry women” school of uninformed thought.

    And the “people who hate the Federalists are still free to praise John Adams” school of First Amendment law.

  144. Rhwuyn is using “normal” to refer to the innate drives that define what it is to be human. It is normal to get hungry. It is normal to form pair bonds.

    Chris Potter is using “normal” to refer to social conventions.

    Life-long monogamous pair-bonds are not normal in a biological way like hunger. I think anthropologists would say it was not even practically normal for most of human evolution (and even today many debate whether it is normal given peoples actual behavior). To that extent it is much more a social convention than hunger, or the desire for sex, and thus not a good way to distinguish your argument.

    Again, this seems to me to be too much of a logical stretch aimed at expanding the definition just enough but not too much.

  145. You cannot discriminate based on disability, one way or the other.

    Then where are my Social Security payments? And why am I not allowed to compete in the Special Olympics?

  146. Upon further review, Scalia only said that the ruling in Lawrence undermined laws prohibiting gay marraige. It would have been other, hyperventilating conservative commentators that said it also undermined laws against plural marriage — not that they’re wrong.

  147. Someone who has his leg amputated voluntarily is still considered disabled.

    joe, I suppose that is true, though I’m not sure that similar enough as even a voluntary amputation is done for a serious medical condition.

    The obvious question, rather than arguing by analogy, is: is sterilization considered a disability today? I don’t know the answer, but I suspect not as I’ve never heard of it.

    Oh, and the second part of your comment is responding to someone else as I didn’t say that, though it sort of looks like I did from your response.

  148. Your arguments are reminiscent of the “gay men are perfectly free to marry women” school of uninformed thought.

    And yours are reminiscent of the “polygamists are free to marry unmarried people” school of uniformed thought. Brian Courts hits the nail on the head — you’re trying to cast a net just wide enough to catch what you want and avoid what you don’t, and it’s just not possible.

  149. Because people in plural marriages cannot enjoy the rights and live up to the responsibilities of a marriage contract, as defined in existing law. Gay couples can.

    What are these rights and resposibilities? Here are the few I can think of:
    Tax law generally recognizes two individuals for a joint return – OTOH the third spouse could be considered a dependent, or simply file a separate return.

    Intestate succession – tweak to provide equal rights for every other spouse; or require wills.

    I agree that SSM can be implemented by merely allowing a couple to get a marriage license. Polygamous marriage can be implemented almost as easily.

    FWIW, I completely agree with t3knomanser’s solution.

  150. Chris Potter, to get soc.sec. disabilty insurance payments you have to apply for them. They are payed from the date of that application forward. They have a laundry list of allowable disabling conditions.

    As for the special olympics, stick to the physical contests my friend.

    teehee

  151. So Chris, have you been arguing that “if” one accepts that equal protection allows gay marriage that it must also allow plural marriage?

    I just want to keep things straight.

  152. Because those people love each other and want to form a family.

    So marriage has nothing to do with sex?

    I also didnt realize love was a requirement.

  153. Polygamists, on the other hand, are perfectly capable of restricting themselves to just one partner.

    Apparently not.

  154. kinnath,

    If such acceptance comes from the argument paralleling Loving v Virginia, that is, that a person should be allowed to marry anyone they want, then yes, one must accept that people can marry others who are already married to someone else.

    I ultimately believe that argument to be fallacious, but I’m trying to stay focused here on the topic of the original post, that same-sex marriage advocates tend to furiously reject the idea of expanding marriage any further.

  155. That’s what people do when they’re losing.

    Thats also what people do when their original counter-arguments were correct and the rebuttals were worthless.

  156. It is normal to form pair bonds.

    Based on divorce rates, STD transmission rates and etc. I would say “No it isnt”.

  157. If such acceptance comes from the argument paralleling Loving v Virginia, that is, that a person should be allowed to marry anyone they want, then yes, one must accept that people can marry others who are already married to someone else.

    Got it.

    I ultimately believe that argument to be fallacious, . . .

    I disagree, but that’s not important.

    . . . but I’m trying to stay focused here on the topic of the original post, that same-sex marriage advocates tend to furiously reject the idea of expanding marriage any further.

    Right, it seems “unfair” for gay marriage advocates to argue that marriage should be open to them but not “those other people”.

  158. Brian Courts,

    Life-long monogamous pair-bonds are not normal in a biological way like hunger. The “life-long” part, certainly. There is nothing normal in a biological way about even living this long.

    But “forming pair bonds” – that is, loving someone as your life-partner, and wanting to form a family with that person – is an innate part of the human experience. Even polygamy is a version of this, as the husband is forming such a bond with each wife in turn.

    We don’t, on the other hand, have an innate drive to enter into three-somes or six-somes, each member falling in love with all of the others. It’s just not how we’re wired.

    Sulla,

    On the narrow legal point of equal protection, the fact that we would need to make those tweaks matters a great deal. The fact that we would need to make up new laws to cover plural marriages means that the marriage laws, as they currently exist, are being withheld from polygamists for some reason other than discrimination, while the fact that gay couples can be covered by the existing laws quite easily, without any novel legal remedies, indicates that it is just the discrmination justifying their inferior treatment under the law.

  159. I also didnt realize love was a requirement.

    “John is a man” vs. “All men are John.”

    “People who love each other have the right to marry” vs. “People can only get married if they love each other.”

    If you don’t understand the role of love, then read the Loving decision.

    People have the righ to puruse their happiness, and denying them the right to marry their beloved denies this to them. That there are people who get married when they aren’t in love tells us precisely nothing about this point.

  160. If such acceptance comes from the argument paralleling Loving v Virginia, that is, that a person should be allowed to marry anyone they want, then yes, one must accept that people can marry others who are already married to someone else.

    Unless the prohibition meets the strict scrutiiny test. As has been mentioned. Numerous times.

  161. In other news, people who advocate for the legalization of drugs often oppose the legalization of theft.

    Because, you see, those are two different issues.

  162. Joe needs a time out.

  163. Sulla,

    One of the rights of marriage is the inheretence of your deceased spouse’s estate.

    Another is the right to an equal division of marital property in case of divorce.

    Good luck applying existing marriage law to those cases.

  164. But “forming pair bonds” – that is, loving someone as your life-partner, and wanting to form a family with that person – is an innate part of the human experience. Even polygamy is a version of this, as the husband is forming such a bond with each wife in turn.

    Bullshit.

    Historically, women were chattel property. Fathers giving away their daugthers to the grooms was not a metaphor. Marriage was about the accumulation of wealth and the inheritance rights of the male childern.

    This is exactly why arguments supporting “traditional” marriage based on historical precedent are wrong.

    Romantic love and pair-bonding is a modern notion that has no bearing on the previous millenia worth of marriage law.

  165. One of the rights of marriage is the inheretence of your deceased spouse’s estate.

    Equitable distribution. No different than allocating an estate amongst children. Done.

    Another is the right to an equal division of marital property in case of divorce.

    Equitable distribution based upon a prorated share in the community property. Done.

  166. One of the rights of marriage is the inheretence of your deceased spouse’s estate.

    Another is the right to an equal division of marital property in case of divorce.

    Good luck applying existing marriage law to those cases.

    I think he will have good luck, considering there are straightforward extensions to existing marriage law that could accomodate multiple partners. It’s simply not the legal conundrum you seem desperate to make it into.

  167. Given the populations of China and India, not to mention the may predominately Muslim countries, I would put money on there being more arranged marriages in the world today, than western-style “romantic” marriages.

  168. I think the heart of the issue is to what extent someone comes to embrace normative arguments that a policy really should be just big enough to encompass his personal (including political) interest versus simply making a practical claim that some incremental change is better than the status quo. The former is troubling, the latter not as much.

    Another example of where this kind of question comes up is in drug law reforms. It is irritating to see the marijuana (or worse, medical-marijuana) legalization advocate saying we shouldn’t legalize “those other” drugs because they’re different. Well yes, they are, but once you open the door to debating how different is “too different” you’ve conceded the state’s fundamental roll in an area it shouldn’t be in the first place and you’re committed to constantly fighting the drug-warriors on their turf.

    The same goes for marriage — if you’re going to split hairs over what is “normal” and what determines how “normal” something has to be (biological v. social, some combination of them, how much of each, etc.) to get a state sanction and some special privilege, you’re conceding that these are legitimate questions for the state to answer. But if that is the case then you’re up against a lot of people (social-conservatives) who have a very different idea of what is “normal” and in the end it’s hard to see why either side has a fundamentally superior grasp, or claim to represent, what is truly normal and what is not.

    The better solution, is to recognize that regardless of what you or I think is normal the state simply has no business getting involved in making that distinction in matters of interpersonal relationships and family organization.

  169. Sulla,

    On the narrow legal point of equal protection, the fact that we would need to make those tweaks matters a great deal. The fact that we would need to make up new laws to cover plural marriages means that the marriage laws, as they currently exist, are being withheld from polygamists for some reason other than discrimination, while the fact that gay couples can be covered by the existing laws quite easily, without any novel legal remedies, indicates that it is just the discrmination justifying their inferior treatment under the law.

    I disagree – sexual orientation is not subject to strict scrutiny. I can’t see how banning SSM would fail a rational basis test but banning polygamous marriage would not.

    As pointed out below, many laws currently on the books are written for heterosexual marriage. The changes to make them fit SSM are no greater than those for polygamy.


    One of the rights of marriage is the inheretence of your deceased spouse’s estate.

    So in a polygamous marriage, every spouse gets a share of the decedent’s estate (unless validly disinherited). It would not require any more changes than legalization of SSM would. For example, Delaware provides (12 Del. Code 321):
    [in references to marriages after the execution of a will]

    “If the testator leaves a widow, she shall have the same part of his estate, real and personal, as she would have been entitled to if he had died intestate;”

    SSM:

    “If the testator leaves a surviving spouse, he or she shall have the same part of the deceased’s estate, real and personal, as he or she would have been entitled to if the decedent had died intestate;”

    Polygamy:

    “If the testator leaves any surviving spouses, each shall shall have the same part of the decedent’s estate, real and personal, as each surviving spouse would have been entitled to if the decedent had died intestate;”

    Another is the right to an equal division of marital property in case of divorce.

    I can not speak for every state, but in Virginia, that is wrong. If the parties can not agree on a division of property, a judge will impose a division based on statutory factors such as length of the marriage and contributions of the parties. A judge could very easily be called upon to do it for a polygamous group. Judges get called upon all the time to make tough decisions about who owns what, e.g., when one spouse is a member of a partnership – how do the assets and liabilities of the partnership get distributed.

    Good luck applying existing marriage law to those cases.

    Most people don’t realize that “existing marriage law” is a pretty barebones structure, with default positions that are pretty easy to contract around (mostly with pre-nuptial agreements). If you don’t want a judge deciding how to divide property, you get a pre-nup.

  170. In other news, people who advocate for the legalization of drugs often oppose the legalization of theft.

    Two people who love each other and want to reap the benefits of marriage – GOOD

    Three people who love each other and want to reap the benefits of marriage – NOT GOOD

    Yes, Joe, there is a difference between two and three. Is the difference between monogamy and polygamy equal to than the difference between drugs and theft?

  171. But do gay couples have a higher incidence of gay children? What are we going to do with all those theatre and fashion design majors? The Bravo Network can’t hire all of them.

  172. 170 comments! Teh Gay is a moneymaker!

    By the way, Same-sex doesn’t make a mockery of marriage, but no fault divorce does. Covenant marriages for all. In for a penny, in for a pound (or 75 judging by most wives…)

  173. kinnath,

    All of that is true. It’s also not relevant to my argument.

    I wasn’t making references to traditional marriage, as it was defined by different societies. I was referring to “pair-bonding.”

    What’s more, if you look at the literature of just about any of those societies, you will find all sorts of stories about young people ignoring the diktats of their fathers and of society. For love.

  174. Equitable distribution. No different than allocating an estate amongst children. Done….Equitable distribution based upon a prorated share in the community property. Done.

    Sounds like a plan. As opposed to existing law.

    I can make up theoretical polygamous marriage laws, too. The fact that we have to, while we don’t have to make up any theoretical marriage laws for gay marriage, is the point I’ve been making all day.

  175. It’s simply not the legal conundrum you seem desperate to make it into.

    It is simply not the difficulty of the problem that matter here, but its existence.

    As I keep explaining. Without apparent effect.

  176. Well you still haven’t addressed my polo analogy, so bite me.

    I mean, if you have people riding people or horses riding horses, doesn’t that change the game?

  177. Sulla,

    I realize that discrimination based on sexual orientation is not currently subject to strict scrutiny under federal, just a rational basis test. I can even go so far as to agree with you that the ban on both gay and plural marriages can both pass the rational basis test.

    I think they should be subject to strict scrutiny, but that wasn’t my point, either.

    My point was about the ease with which current laws can apply to gay people, and the difficulty of applying them as is to polygamous groupings, demonstrates that there is a difference in the non-discrimination argument when applied to same-sex marriage vs. polygamous marriage.

    “If the testator leaves any surviving spouses, each shall shall have the same part of the decedent’s estate, real and personal, as each surviving spouse would have been entitled to if the decedent had died intestate;” And, what part of the husband’s estate is Wife #2 entitled to? All of it? Some fraction related to the number and order of spouses? We can answer this question, certainly – but the fact that we need to demonstrates that existing laws cannot cover plural marriages.

    On the division of marital assets, in many states, the law provides for a 50/50 division in case of a no-fault divorce. Again, we can just change the numbers, but change them we must.

  178. Sulla,

    Two people who love each other and want to reap the benefits of marriage – GOOD

    Three people who love each other and want to reap the benefits of marriage – NOT GOOD

    I’ve written not a word about polygamy being not good. Please stop assigning arguments to me. I make enough by myself, thanks.

  179. It is simply not the difficulty of the problem that matter here, but its existence.

    As I keep explaining. Without apparent effect.

    There is a problem implementing SSM – laws need to be rewritten, implicitly or explicitly. The problem in implementing polygamy is no greater.

  180. I did address the polo analogy. I said that people without horse can’t play polo.

    Your analogy doesn’t make any sense, and I told you that.

    I don’t even see anything approaching a point in that analogy, except to give you an excuse to accuse me of making a comparison I never made.

  181. I’ve written not a word about polygamy being not good. Please stop assigning arguments to me. I make enough by myself, thanks.

    What was the point of the comparison to theft and drugs then?

    Forgive me for assuming, but my intepretation is that you are asserting that SSM and polygamy are qualitatively different.

    I disagree agree with this assertion, so I am arguing that your analogy is flawed.

  182. There is a problem implementing SSM – laws need to be rewritten, implicitly or explicitly.

    No, they don’t. You can apply exactly the same laws. You don’t have to make up a single new doctrine.

    As opposed to plural marriage, when you’d have to make up, at least, a doctrine of proportional membership in a marriage.

  183. What was the point of the comparison to theft and drugs then?

    Exactly what I said it was, in the last sentence of that comment; that they are different issues, so there is no hypocrisy in saying yes to one and no to the other.

    Forgive me for assuming, but my intepretation is that you are asserting that SSM and polygamy are qualitatively different. Qualitative does not mean “better or worse.” Orange vs. blue is a qualitative difference.

    I am not arguing that one is morally better than another.

  184. Nobody is forcing anyone to do anything. If you want, you can keep telling yourself that the gay couple isn’t “really” married.

    Right. There’s no force involved in the government passing a law forcing you to do something — provide health insurance benefits, etc. — or else.

    /sarcasm

    The issue isn’t people holding a private ceremony, religious or otherwise, saying certain people are married. Everyone in every state already can do that. The issue is the government having the power to force others who were not parties to the “marriage” transaction to do certain things based on the state’s definition of marriage, over and above the enforcement of the private contractual agreements between the “married” people.

    The latter is libertarian, the former — not so much so.

  185. I disagree agree with this assertion, so I am arguing that your analogy is flawed.

    I disagree with this assertion, so I am arguing that your analogy is flawed.

  186. I dont get why this is a big deal.

  187. There is a problem implementing SSM – laws need to be rewritten, implicitly or explicitly.

    No, they don’t. You can apply exactly the same laws. You don’t have to make up a single new doctrine.

    No, you can’t. At the very least you need to implicitly impose a doctrine of gender neutrality when reading gender specific statutes such as the one I cited above.

    As opposed to plural marriage, when you’d have to make up, at least, a doctrine of proportional membership in a marriage.

    I thought your point was that for SSM we don’t have to make ANY changes. My point is that for both we have to make some changes; the change would be slightly greater in polygamy, but it would not be a huge change – you are essentially borrowing from partnership law. The degree of difference in the necessary changes does not justify allowing SSM and refusing polygamy.

  188. Sulla, I’m going to have to drop out here.

    I had the bad judgement to do actual work, and now I’ve completely lost the thread.

    I know, no one to blame but myself.

    Apologies.

    prolefeed,

    I agree with you, that libertarianism is silent on the issue of equal protection under the law. It seems that a libertarian would quite happily countenance blatant discrimination, if doing so would decrease the sum total of government actions. Those libertarians who disagree with that “solution” are bringing some other values and beliefs to bear.

  189. Sulla,

    Last point: SSM laws ARE gender-neutral. You would need change only the language on forms. There are no laws, to my knowledge, that treat a male spouse differently than a female spouse. It would merely be a linguistic change.

    Whereas actual new concepts would have to be created if we wanted the state to recognize plural marriages.

  190. What was the point of the comparison to theft and drugs then?

    Exactly what I said it was, in the last sentence of that comment; that they are different issues, so there is no hypocrisy in saying yes to one and no to the other.

    Then all it is how you frame it. I don’t see a difference between polygamy and SSM that justifies different legal treatment, just as I don’t see a difference between interracial marriage and SSM that justifies different legal treatment.

    Qualitative does not mean “better or worse.” Orange vs. blue is a qualitative difference.

    I am not arguing that one is morally better than another

    You are arguing the government is justified in discriminating against three people who want to get married, but not two people, based on the assertion that it is “harder” to accomodate polygamy because we need new legal doctrines.

    I am arguing that the government is not justified that the changes needed do not justify the discrimination.

  191. You are arguing the government is justified in discriminating against three people who want to get married, but not two people, based on the assertion that it is “harder” to accomodate polygamy because we need new legal doctrines.

    He’s not making an argument about justification. He’s making argument about practicality. When somebody makes a practical argument, it’s always worth listening to what they have to say, especially if you’re inclined to look at everything from a purely idealistic point of view.

  192. Sulla,

    Last point: SSM laws ARE gender-neutral. You would need change only the language on forms. There are no laws, to my knowledge, that treat a male spouse differently than a female spouse. It would merely be a linguistic change.

    “A husband shall have a right of action against another for abducting or harboring his wife. Furnishing shelter and food to a wife driven from her home by cruel treatment is an act of humanity and shall give no right of action to the husband.” O.C.G.A. ? 51-1-15 (Georgia)

    Who is the husband and who is the wife in SSM?
    Yes, most laws that distinguish between a husband and a wife are likely unconsitutional, but some can pass intermediate scrutiny.

  193. He’s not making an argument about justification. He’s making argument about practicality. When somebody makes a practical argument, it’s always worth listening to what they have to say, especially if you’re inclined to look at everything from a purely idealistic point of view.

    I addressed that – as a practical matter it is more complicated to implement polygamy. As a practical matter, the complexity does not mean that the two should be treated differently. As a practical matter, here’s how you implement polygamy – A judge or legislature says “In the absence of an agreement to the contrary, all married persons shall share equally in the rights and responsibilities of all other persons in their marriage.” You don’t like that, you have a pre-nup, just like monogamous married couples do.

  194. He’s not making an argument about justification. He’s making argument about practicality. When somebody makes a practical argument, it’s always worth listening to what they have to say, especially if you’re inclined to look at everything from a purely idealistic point of view.

    I addressed that – as a practical matter it is more complicated to implement polygamy. As a practical matter, the complexity does not mean that the two should be treated differently. As a practical matter, here’s how you implement polygamy – A judge or legislature says “In the absence of an agreement to the contrary, all married persons shall share equally in the rights and responsibilities of all other persons in their marriage.” You don’t like that, you have a pre-nup, just like monogamous married couples do.

  195. Gays need their own community. How hard is it to admit this?

  196. http://news.bbc.co.uk/2/hi/entertainment/7410431.stm

    another wedding announcement from California.

  197. You are arguing the government is justified in discriminating against three people who want to get married, but not two people, based on the assertion that it is “harder” to accomodate polygamy because we need new legal doctrines.

    No.

    I’m not.

    I’m arguing something else.

    I have not written a single word about whether the government is justified in not recognizing polygamous unions.

    I have written other things about polygamous unions. I have not written a single word about whether it is just for the government to refuse to recognize them.

  198. While I was reading this post I couldn’t help but notice your ad on the right of the screen advocating man-boy relationships.

    Really? I got hot young chineese women who want to be my wife and love me long time.

    And I got an ad showing a younger man embracing an older man, with something about “thanking your dad.” I assume this is some new euphemism for gay sex?

    There is a problem implementing SSM – laws need to be rewritten, implicitly or explicitly.

    No, they don’t. You can apply exactly the same laws. You don’t have to make up a single new doctrine.

    Leaving aside what a “doctrine” is, you do in fact have to rewrite exisiting laws, such as those in California, that repeatedly refer to marriage as being between a “man” and a “woman.”

  199. Is there a principled argument for recognizing gay sex but not recognizing polygamy?

  200. Actually, I’m not making a practical argument either.

    At this point, I’m not making any more arguments. I’ve given up hope that they will be understood and responded to in any form that approaches what I’ve actually had to say.

  201. “Leaving aside what a doctrine is?”

    OK.

    Other than that, Mrs. Lincoln, how was the play?

  202. R C Dean | May 20, 2008, 5:45pm | #

    Is there a principled argument for recognizing gay sex but not recognizing polygamy?

    Careful, Doctor Freud, I just waxed the floor.

  203. Oh, goody, which line do I get in so I can lose half my shit?

    What are these gay people thinking?

    I’d love to marry you, babe, but it’s just not legal. Oh how I wish I could have uttered those words years ago…

  204. Other than that, Mrs. Lincoln, how was the play?

    Oh shit, joe, my (now deceased) Dad used that expression all the time. Brought a smile to my face.

  205. I’m still pissed that I can’t get a tax break just because I’m single. I’m going to smack the next gay who whines that he’s being treated unfairly.

  206. I am not unsympathetic to polygamists who would want to go the route of marriage for interdependent relationships. However, in the case where it’s more than 1 person they marry, they can instead use the method of adoption to create a set of interdependent legal contracts.

    Based on the arguments of many anti-gay people, it seems like they would be against adoption since it allows people to create a framework for polygamy – am I rite?

    Similarly, t3knomancer’s suggestion to use corporate law is similar to my adoption suggestion. There are plenty of legal frameworks that can be used to provide a support network for polygamist families if there was enough need for it.

    Marriage is the only way, however, to place a non-immediate family member as a person’s next of kin in the eyes of the law – ahead of one’s brothers, sisters, parents, grandparents and children. This also serves to illustrate why polygamous marriages fail to establish a next of kin relationship. Granted, a polygamous marriage (much like adoption) could establish kinship, but the position of next of kin can only be reserved for one person.

    And as the government now enforces that one’s next of kin can only be a member of the opposite sex, it is just plain gender discrimination – there’s no need to even bring sexual orientation into the picture.

    Now if there were pre-canned contracts that establish adult adoptions of each other for $25 like current marriage contracts, that would be a good thing. Similarly, if there were a non-marriage contract that establishes next of kin status for a similar minimal fee, that too would help reduce the need for marriage for a lot of people.

    Oh wait, I forgot, conservatives want more people to actually get married – wait I take that back too, they want more people to actually be heterosexually married. As a result, they will never support the addition of more choices to the equation, even if it would make life easier for many people.

Please to post comments

Comments are closed.