Big Love

BIG LOVE:

FROM SAME-SEX MARRIAGE TO POLYGAMY

Philip E. Devine

Professor of Philosophy

Providence College

One Cunningham Square

Providence, RI 02918 USA

pdevine@providence.edu

BIG LOVE:

FROM SAME-SEX MARRIAGE TO POLYGAMY

(Abstract)

Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle, ought also to defend polygamous marriage.  For all the arguments that support same-sex marriage also support polygamous marriage, and polygamous marriage has advantages over the same-sex variety when it comes to providing a framework for the procreation and education of the next generation. My argument does not reach defenders of traditional (heterosexual, monogamous) marriage.   I also criticize liberal theory for neglecting friendship in favor of liberty and equality, in a way that bears on the marriage issue.    

 

 

BIG LOVE:

FROM SAME-SEX MARRIAGE TO POLYGAMY

It is possible to defend gay and lesbian relationships while accepting that marriage is by definition heterosexual.[1]   Some people believe that sexual activity outside marriage is always wrong, but no one I know of makes the morality of gay or lesbian sex turn on whether the parties are publicly recognized as married to one another   When, however, we examine institutions rather than individual relationships, it becomes clear that those who support same-sex marriage have no reason to refuse their support to polygamy as well.  (I assume that the polygamous wives in question are all above the age of consent, and are aware of, and consent to, one another’s existence.)

In Part I of this essay, I set the stage with some general remarks about the logic of marriage and the strategies for dealing with this and other essentially contested concepts.  Part II is devoted to a defense of my central thesis, Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle[2], ought also to defend polygamous marriage.  Part III pursues the argument into some points of liberal theory, which might lead its adherents to reject polygamy while accepting same-sex marriage.  Part IV deals with some broader issues, such as the rejection of ‘heteronormativity’ and the larger implications of the influence of Nietzsche and Foucault on our public discourse.  

I.

Marriage, like democracy, law, and philosophy, and as I recently learned, rural, is a contested concept – one whose sense, reference, and normative force depends on who uses it and why.   Marriage is an honorific label, conferred upon some relationships (usually but not always sexual), which our society has deemed it desirable both to affirm and control.  The honorific marriage is conjoined with an age-old definition, observed even in societies where open homosexuality was common, of marriage as a relationship between a man and a woman (though not in all societies only one woman).    That the emperor Nero is reported to have ‘married’ Sporus (whom he had  had castrated) as a man and Doryphorus as a woman shows nothing about what was considered healthy or normal even in imperial Rome.   The moral of the story was that, as emperor, Nero could do – or though he could do — whatever he wished.[3]  

As an honorific marriage is inevitably inegalitarian, since it favors some relationships, and consequentially some sexual dispositions, over others; it is therefore under pressure in what has been aptly called a culture of mandatory relativism.  Those who object to the inegalitarian dimensions of the concept will want to disestablish marriage, while permitting it to exist as a private arrangement recognized by churches and other non-state communities, not extend state-recognized marriage to same-sex couples or polygamous associations.   Such a view is suggested by Douglas Laycock, [4] by Nancy Polikoff, [5] and by Tamara Metz.[6] 

 In this essay, I do not put sneer quotes around marriage where the parties are of the same sex or more than two in number, but beg no questions thereby.  For people who think such ‘marriage’ a contradiction in terms, or a metaphysical absurdity, may read the phrase as we read counterfeit coin and decoy duck.  One defender of same-sex marriage declares that “allowing two people of the same sex to marry shifts that institution’s message.”[7]  And to change the message of an institution is to change the meaning of the corresponding word.   Likewise, the phrase traditional marriage may suggest bride prices and the like.  I am referring to the understanding of marriage that the majority of Americans still hold, as a relationship between a man and a woman, in intention a least permanent, from which offspring characteristically though not invariably follow

Nor is the question of marriage the only example of conceptual conflict in the contemporary world.  We dispute whether elective abortion is health care, an impoverished suburban area is rural, and whether a transsexual, before or after the operation, is a woman or a man.    The problem of communication across an intellectually revolutionary divide therefore arises.[8]  

There are two different ways of responding to this situation.  One of these defines a particular sense of marriage, and hence also a particular version of the institution itself, as ‘natural.’  Sometimes this contention is made by appeal to revelation, or to the self-understanding of a particular faith-community.  Thus the recent Pastoral by the American Roman Catholic Bishops quite properly begins by evoking the Catholic marriage ritual.[9]  A strictly philosophical defense of the idea of natural marriage as a “two-in-one flesh communion” rooted in “reproductive type acts,” [10] must overcome five obstacles if it is to persuade Protestants and Jews, not to mention unbelievers.

First, there are relationships virtually everyone calls marriages that are difficult to view as rooted as in reproductive type acts.  If the bride has undergone a hysterectomy, pregnancy and childbirth on her part would involve as radical a miracle, or nearly so, as a man’s conceiving.  (In the recent case, the person said to have given birth as a man was a transsexual whose female reproductive organs were intact.) [11]  Perhaps the sexual acts of a sterile couple are ‘reproductive type’ in the way an anencephalous infant is a rational animal, but this is to explain a difficult case by a difficult case. [12]  One can circumvent this obstacle by building heterosexuality, even apart from its reproductive potency, into our understanding of natural marriage.  For marriage is a way of coping with a central form of human diversity by establishing intimate unions between members of the two sexes.[13] This view may be correct, but it is useless in arguing with those who are inclined to support same-sex marriage.

Second, the institution that has most carefully attempted to embody ‘natural’ marriage in institutional forms is committed to the view that many relationships conventionally understood, even in the most conservative circles, as marriages are not such.   For the Catholic Church holds that true marriage is indissoluble, and that ‘marriages’ that follow divorce are consequently non-marriages.  (This is a different proposition from the commonplace observation that divorce, especially where there are children, is a tragedy.)   But the Church also grants annulments on a variety of grounds.  As an official spokesman puts it, 

When couples do separate and divorce… the Church examines in detail their marriage to determine if, right from the start, some essential element was missing in their relationship. If that fact has been established, it means the spouses did not have the kind of marital link that binds them together for life.”[14]  

In such circumstances, and they are fairly common, it turns out that a couple conventionally regarded as married, and presumed by Church authority to be such until their relationship failed, was not married at all. 

Third, also ad hominem to Catholics, the (admittedly exceptional) marriage of the Blessed Virgin Mary and St. Joseph is traditionally regarded as sexless.   If so, they did not engage in reproductive type acts or enjoy one-flesh communion.  Yet their relationship is regarded both as true marriage and as a model for the marriages of ordinary people.

Fourth, all natural law arguments face a common problem:  they frequently fail to convince.  The persistence of moral disagreement is a problem for utilitarians and Kantians as well, but if we claim that our understanding of marriage is rooted in human nature, we are driven to the claim that (in the words of the movie Dr. Strangelove) large numbers of our fellow citizens are “deviated preverts.” [15]  Or else we must go beyond philosophical reasoning and join theologians in their talk of original sin as an explanation of entrenched moral error.

Fifth, even if a purported marriage is not such by nature, it can be so by legal fiction.  If all the corporations that, legally speaking, had their headquarters in Delaware, in fact did so, there would be no room in Delaware for anything but corporate headquarters.  Likewise a Massachusetts marriage (whose two-woman version used to be called a Boston marriage) might be a marriage by courtesy.

II.

Such being the case, it seems better to plunge into the maelstrom of contemporary controversy rather than attempt to impose upon it a conception of marriage a priori.  I begin with what was until just recently the socially established understanding of marriage, as a relationship between one man and one woman, and examine the implications of various modifications of it. I recall the classical Roman definition, which contributed to the recognition of non-ceremonial ‘common law’ marriages:  “a monogamous union if a man and a woman, total community of life, a partnership according to human and divine laws.” [16] I would have included in my older definition of marriage — permanence, at least in intention.  But the Federal Defense of Marriage Act, 1996,[17]  echoed in the legislation of many States,[18] does not exclude even explicitly temporary marriages.

I propose the following thesis. Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle, ought also to defend polygamous marriage.  Whether they ought also to accept incestuous, polyandrous, group, or cross-species marriage; marriage for a fixed period of time, marriage to a robot or fantasy partner, or various sorts of threesomes is a matter for further inquiry.  

The case for same-sex marriage, briefly put, is as follows:

(1)  Some people either are (a) immutably homosexual in their inclinations, (b) identify themselves as gay or lesbians, or  (c) have concluded, after due reflection, that a union with a person of the same sex is better for them than celibacy or a heterosexual union. 

(2)  Such persons deserve equality of legal status with heterosexuals.  Alternatively, differences of treatment between homosexuals and heterosexuals – what is here called ‘discrimination’ – deprive homosexuals of full citizenship. [19] 

Therefore (3) same-sex marriage should be legalized

Te argument as a whole, though not logically tight, seems valid.[20]    Premise (1) of this argument seems true, though disjunct (a) concerning immutability is controversial.  Hence our attention must be concentrated on premise (2), which requires that homosexuals and heterosexuals be allowed the same right to marry persons of their choice.  I here contend that this argument, if sound, also applies to polygamists.  Hence the thesis of this essay is that, if we are prepared to redefine marriage to include the relationship between same-sex couples, we ought to also allow polygamous associations.  
            Advocates of same sex marriage have greeted the polygamy argument with impatience.   The first sentence of “Homosexuality and the P[olygamy] I[ncest] B[estiality] Argument” by John Corvino is “Some bad arguments never die.” [21]  Nor are such sentiments an isolated phenomenon. [22]  Corvino’s article concerns the morality of homosexual relationships, not their legal recognition as marriages, but many of the considerations at work in the arguments are the same.  Wolfe’s response to Corvino focuses tightly on the morality of sexual acts.[23]  I am concerned with institutions, not with personal morality, and so need not consider issues such as contraception, masturbation, non-coital heterosex,[24] and non-marital cohabitation.  That an argument is made by Conservative politicians and columnists does not in the least indicate that it is unsound. 

My thesis is conditional, and can be interpreted in two ways.  One can interpret it as presenting a reductio ad absurdum of Cambridge Liberal (hereafter Liberal) understandings of marriage, of which proposals for same-sex marriage are only one manifestation.  (The capital L distinguishes one contemporary version of liberalism from the sense in which virtually all Americans are liberal.) [25] 

If we interpret the thesis in this way, it does not require us to agree with. James Donovan when he says,

The conservative recourse to this slippery slope argument against same-sex marriage signals a concession–formal to the argument itself, but actual in the choice of the argument at all–that the complaint against same-sex marriage based upon its intrinsic qualities has failed. Proponents of gay marriage, in other words, no longer have to prove that it is good, or even that it is not morally bad.[26] 

To the contrary we are arguing against those people who say that same-sex marriage is good, that they are committed to holding a position they may want to reject.  Even people who find the idea of two men or two women marrying a joke in questionable taste, or even that homosexual practices are abominable because contrary to the order of creation, can offer reasons to those whose perceptions are different from their own.

The second interpretation, however, accepts that same-sex marriage is the wave of the future.   If crucial elites within American society are irrevocably committed to Liberalism about marriage, in a sense that requires the legal recognition of same-sex unions,[27] then my arguments point to a way of defending older understandings of marriage against the moral lessons embodied not only in same-sex marriage but also in no-fault divorce.  For if the state withdraws from the task of distinguishing marriages from less valued relationships, then traditions will be free to maintain their own definition of marriage in their communities and act accordingly.   Metz has observed, “Were the state to withdraw from its current, contested role, alternative but more effective sources of ethical authority would likely fill the void”[28]  On such premises, marriage would be a matter for the church, synagogue, mosque, New Age spiritual group, humanist association, or group of friends and family members, of which the parties are members or which they approach to ratify their relationship.[29]  Intra-communal disputes about marriage, like the “Who is a Jew?” question[30] or the debates among contemporary Anglicans/Episcopalians about sexual issues,[31] will be resolved, if otherwise irreconcilable, by schism. (The state will have to decide the resulting property disputes.)  Whether non-state communities would in fact provide the needed ethical authority to support disestablished marriage is one of the points where political philosophy becomes a matter of risk-assessment.

The expressions civil union and domestic partnership equivocate.   Either such unions are private contractual relationships, which the parties are free to enter but which impose no obligations on third parties, or else they are state-sponsored institutions which may infringe on the consciences of those who object to them.[32]   The claims of equality apart, the desire to impose affirmative obligations on unwilling others is the principal reason why advocates of same-sex marriage insist on marriage.

On both interpretations, my argument concerns the logic of the relevant reasons, not historical prophecy.  The charge of arbitrary discrimination against polygamists is difficult to answer, unless one is prepared to assert that marriage is monogamous by definition.  Nor does my argument suppose that same-sex marriage would be acceptable, except for “slippery slope” considerations linking it with polygamy.  On the contrary, my argument is of the same form as that which maintains that abortion and infanticide, apart from differences in public sentiment, are the same sort of actions – an argument that cuts both ways.[33]  I do not contend that same-sex marriage and polygamy are identical forms of behavior, even morally, but that the arguments for the first are also arguments for the second.   As far as effects are concerned, assessing them requires at least a generation.   The experience of other societies is illuminating, though sorting out causes and effects can be tricky.[34] 

III.

A.

The Supreme Judicial Court of Massachusetts,[35] in its influential decision concerning same-sex marriage, admits that it is redefining marriage.[36]  (In contrast, the Vermont Supreme Court stopped short of requiring the ‘m-word’ for same-sex relationships, [37] though the legislature proceeded to drop the other shoe.)[38]   It is the right to marry in a redefined sense that gay and lesbian advocates are now attempting to establish across the nation. [39]  The issue under consideration here is whether, once marriage has been redefined in this way, there are principled grounds for resisting a further redefinition.

The California decision[40] overruled by Proposition Eight after a bitter campaign[41] is instructive, since it specifically rejected the Attorney-General’s argument that ‘domestic partnerships’ were sufficient to satisfy the requirements of the California Constitution.    The California Supreme Court said that marriage is “of fundamental importance to both to society and to the individual” and that the state is under an obligation to “to grant official, public recognition to the couple’s relationship as a family” – a clause that raised the prospect of the active promotion of homosexual unions, say through the public schools. [42]   When it said that marriage provides   “a ready and public means of establishing the legal basis of one’s parental relationship to one’s children, “it evoked considerations that apply – centrally at least — to biological fathers in heterosexual relationships.  A biological mother does not require certification of her maternity, and adoption will secure the rights of non-biological parents. But the California court failed to say why this institution is of such importance to either society or the individuals concerned that the state must recognize and support it, and hence also failed to explain why such reasons extend to same-sex couples and did not extend to polygamous groupings.   As Metz puts it, “The California court … seems to have stumbled upon something it wants both to embrace and deny, to protect and reject:  the something that makes marriage special.”[43]

 There cannot be a moral, legal, or constitutional right to marry whomever you want.  He or she may not want to marry you.  Laws limiting marriage to opposite sex couples do not distinguish between men and women, nor is the impact of such laws noticeably harsher on either sex. Nor is discrimination against the homosexually oriented exactly the issue.  For it was always legally possible, though not advisable, for gay men and lesbians to marry a member of the opposite sex – for the purpose of procreation or some other reason.  The party asserting (unfair) discrimination in disputes about same-sex marriage is, in short, not gay men or lesbians as individuals, but same-sex couples desiring recognition as spousesThe analogy with anti-miscegenation laws makes the issue clear, though defenders of tradition respond that sexual difference is pertinent to the nature of ends of marriage in a way racial difference is not.[44]   Hence the question is whether such distinctions should count as unfair, as nearly everyone would agree in the case of refusal to allow mixed race couples to marry, or merely an instance of the classifications that any legal system must make.   For all law discriminates:  statutes forbidding sex with children discriminate against those can get sexual gratification only from children.[45]

 The attempt to define, on principled grounds, an official list of oppressed minorities, classifications unfavorable to whom are discriminatory,  has failed.  Evan Gerstmann reports suspect classification approach, used by the judiciary to resolve equality issues, is in shambles.

[The] criteria [of suspect classification] have proven to be completely impossible to work with.  The Court has utterly failed to define any of the crucial terms such as ‘history of discrimination,’  ‘immutability,’ and ‘political powerlessness.’  It has continually applied these terms so inconsistently as to make them virtually useless in framing a legal argument.  ….  [Moreover,] for practical purposes the constitutional doctrine concerning suspect classes since the mid-1970’s. … The only time the Court used [these] criteria … is to deny groups suspect status. [46]   

It is at least as arguable that ‘discrimination ‘against the polygamous reflects irrational prejudice as that discrimination against those desiring same-sex unions. That marriage in our society is by definition monogamous is no more (and possibly no less) persuasive than the fact that it is by definition heterosexual. 

The issue of polygamy cannot be ignored,[47] dismissed as unreal,[48] or treated as peripheral to the debate.[49]    For polygamy has been widely practiced in many societies, although only by men who could afford it.  Moreover, polygamy is now a live issue in Russia,[50] and immigrants to Europe and America from polygamous countries will bring multiple wives with them and demand both recognition and social services for them all.  National Geographic has recently published an article on polygamy in America that lends color to the claim that Fundamentalist Mormons and other polygamous groups are a persecuted minority.[51]

 In this context, I examine the pertinent arguments.  Polygamous groups can assert all the interests that gay and lesbian couples assert, in gaining legal recognition for their associations.  In a celebrated (or notorious) passage, a plurality of the Supreme Court asserted. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the concept of human life.”[52]   Chai R. Feldblum explains the doctrine as follows 

I use “identity liberty” to describe the liberty the Casey plurality to capture in its “mystery of human life” description, a description repeated by Justice Kennedy in the Lawrence majority. … [Such liberty] may be a person’s liberty as a parent (including the decisions whether to have a child and how to raise a child), a person’s identity as a spouse or lover (deciding what form of intimacy one wishes to engage in, a person’s racial, ethnic or national identity, or a person’s gender identity.[53]

Our as she puts it elsewhere, “These are not small decisions. These are those big decisions in life that go to the core, essential, elements of our selves.”[54] 

The decision to marry polygamously, at least if those spouses already in place consent, is as good an example as any of a decision falling within identity liberty so defined.  For polygamy is part of the practice of some religious groups, and ‘polyamory’ part of the self-understanding of many men and some women. [55]   (By polyamory I mean the propensity to maintain more than one romantic relationship – as opposed to a brief sexual encounter — at one time or in close sequence.)   Moreover, as Corvino points out against Christopher Wolfe, polygamy is “open to procreation … (indeed, abundantly so).”[56]

But the rhetoric of identity liberty is so open-ended that it can be used to justify anything.    Hence a narrower argument is desirable.  Though the argument is in tension with the language of identity liberty, it is often said that some people are, for genetic or other reasons, inescapably gay or lesbian.  No other form of sexual expression is available to such persons.  But for every person that is immutably homosexual, there are a host of people who are immutably polyamorous. For some such people their polyamorous nature will be “a profound element of human identity” in Andrew Sullivan’s language.[57]  And there are socio-biological reasons to believe that such men will be abundant, since promiscuous behavior enables men to distribute their genes widely.  In any event, it would be absurd to regard polyamorous inclinations in a man as in any sense pathological.

If such a man finds himself linked to a wife who no longer excites his desires, he is as effectively denied legitimated sexual expression as any gay man or lesbian.  Divorce is always an option, and many men take advantage of no-fault divorce laws to rid themselves of aging or ailing wives to marry younger women.  But to do so is to leave the older wife adrift.  Polygamy would make it possible for her to retain her place in society, and continue to receive both moral and material support.   To be sure, there is a difference between forbidding someone to marry a particular individual, and forbidding him to marry everyone he wants to marry.  But to make this argument is already to treat monogamy as normative. 

It may be true, as many writers have argued, that polygamy may dilute the emotional bonds between husband and wife, and between father and children.  But it does not seem that we are entitled to impose on minorities our notions of familial intensity. Perhaps contemporary middle-class families would benefit from a cooler emotional atmosphere.  The various forms of anti-social conduct associated with polygamy might be attributed, as they have been with gays and lesbians, to the outlaw status of polygamy.

Lawrence Tribe observes:

The circles that our adultery and bigamy laws have drawn around married couples have established partitions that fall with an undeniably cruel weight upon individuals who fall in love or lust with someone else’s spouse.  But these laws … cut no wide swath through the population to limit the options open to any particular oppressed minority.[58]

This remark holds only if people in polygamous religious and cultural traditions do not count as oppressed, nor do women who prefer “man-sharing” to living without children and male companionship.  One advocate for such women, Mary Mitchell, writes:  “Don’t get me wrong.  I still believe in marriage.  We just need to update some of the rules.” [59]   Or –dropping the reference to oppression – the argument requires that refusal to provide a polygamous option is a less serious restriction than refusal to provide same-sex option. 

There was a serious public attempt in Nineteenth Century America to extirpate the Mormon religion, in part at least because of their practice of polygamy.  The Supreme Court upheld a conviction for bigamy where the husband believed that such a marriage was his religious duty, in part on the ground (hardly cheering to contemporary Liberals) that “polygamy has always been odious among the northern and western nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic or African people.”[60]   In the resulting struggle, many Mormon women supported their men-folk.[61]

At the end of his very helpful discussion of the polygamy issue, Gerstmann attempts to distinguish same-sex from polygamous marriage.

There certainly seems to be a difference between a right to marry who you want and marrying however many people you want.   Multiple marriages raise several legitimate state concerns that same-sex marriage does not. … Polygamy threatens the social safety net by diluting social insurance. … Polygamy could create confusion over the issue of custody, who has final say over the medical decisions in the case of an incapacitated spouse, and so forth.  … Finally, and most importantly, a right to multiple spouses has no logical stopping point.  If a person can have two wives, then why not twenty, fifty, or a thousand?[62]

  A polygamous widow who receives a third of her late husband’s Social Security benefits is better of than she was as a woman whose marriage is unrecognized and has to rely on her own benefits alone.  An easy rule is that the eldest wife should make medical decisions for her incapacitated husband, and that husbands should make medical decisions for their wives, unless the patient plainly provides otherwise or the proxy suffers from a manifest conflict of interest.  The limits of polygamy are provided, not by logic, but by the material and other resources of the would-be polygamist.   And in any case the “no logical limits” argument is one of the most important arguments against recognizing same-sex marriage in the first place.  (I emphasize once again that I am assuming that polygamous wives are of age and aware of one another’s existence.)

Issues concerning kinship, including incest, pose more serious issues for the defender of polygamy.  Confusions about kinship already arise from divorce and remarriage, and even more so from regular homosexual relations, even if not legally recognized; as well as from practices, such as artificial insemination by stranger and surrogacy, that gay rights advocates tend to favor.  If I fell in love with or in lust for my sister’s partner’s son by an unknown father, would this desire count as incestuous?  If I had been a semen donor during the relevant period, so that there was a possibility that I was his biological father, would this change the situation? 

Gerstmann worries about the possibility that “multiple wives might increase the incidence of incest … between half-siblings.” [63]To the extent that incest between half-siblings is more likely than incest between full siblings, it is also less repellent (and in any case the divorce of couples with children already creates this problem). The most difficult problem is that of relations between young men and their fathers’ younger wives, which were strongly tabooed in the ancient world.  But incest could remain a crime, and if polygamy were legal, it would be relatively easily to specify which relationships count as incestuous.  

Finally, many women experience an atavistic abhorrence of sharing their man or their home with another woman.  How much weight we should attach to what Leon Kass calls “the wisdom of repugnance”[64] is a complicated issue, especially since such repugnance varies considerably from individual to individual and from culture to culture.  But advocates of same-sex marriage have already resolved to set the ‘ick factor’ aside.

B. 

 I have so far argued that polygamous relationships, where the wives are of age and aware of each other’s existence, are as deserving of the name marriage as same-sex unions.  But there are reasons why polygamous unions are preferable to same-sex unions.  Such reasons cannot be in the nature of the case be anything like demonstrative, but in practical contexts they carry considerable weight (we may call them “principled prudential reasons”). [65]

 Like monogamous, heterosexual marriage, polygamous marriage provide a regular framework for relations between the two biological halves of the human species, each of which is then able to correct the limitations of the other   This remark may seem to a bit of rhetorical ‘heterosexism,’ more suitable for public advocacy than for philosophical reflection (and so one reader found it).  But if we rule it out, we also rule out appeal to the special value of life-long committed relationships between two people.  

Moreover, let us assume, as not every one will,[66] that men should be held responsible for the reproductive consequences of their sexual acts (and that, when they are prepared to fulfill their duties, this gives them a legitimate interest in their offspring’s future)..   Such was the view of the founder of English-speaking liberalism, John Locke,[67] as well as of the “saint of liberalism” John Stuart Mill.[68]   Both polygamy and monogamous marriage provide a framework for preventing disputed or conflicted paternity, and for enabling biological mothers and fathers to co-operate in raising the resulting child.  (By conflicted paternity I mean a situation in which both parents and children know that social and biological fatherhood diverge; the use of DNA testing has aggravated this problem.[69] )  A woman who teaches her son baseball is not quite a father; a man who makes his sick daughter chicken soup is not quite a mother.  A father is better placed than a mother to teach his son the meaning of his erections and spontaneous emissions, and a mother is better placed that a father to teach her daughter the meaning of her menstrual periods.

 Polygamy also satisfies the child’s need for a known father as well as a known mother:  as a pair of writers who make every effort to make lesbian parenting seem healthy concede, “It is very normal for children to ask about and long for a father. … We encourage you to hang in there when [your child] works through her grief.”  (They recommend “father fantasies.”) [70]    The view that children require a parent of each sex is, to be sure, controversial among sociologists, but reasonable enough that prospective mothers should not be penalized for acting on it.  Nor does it matter to what extent sexual differences are, as they say, ‘socially constructed’; what matters is that they are real in the experience of children.

There are, to be sure, ‘principled prudential’ arguments against polygamy. (It is my understanding that the Islamic community has generally abandoned polygamy on this sort of ground.[71])  To adapt an argument made by St. Thomas Aquinas, polygamy is inconsistent with even a weak understanding of sexual equality. [72]  If the wives are contemporary women, who believe they have rights to their husband’s time and attention, the strain upon their shared husband will be considerable.  When we add the demands of caring for the resulting children, a good polygamous husband will have to be a superman.

 Another objection to polygamy is that polygamous wives (or polyandrous husbands) may quarrel among themselves or gang up on their common spouse. There is the problem of the superfluous man, which Fundamentalist Mormons are reputed to solve by expelling boys. As Jonathan Rauch has put it, “if one man has two wives, it follows that some other man has no wife.”[73]    A similar problem arises, however, as a result of same-sex marriage, should it become more common among women than among men, for men seeking stable heterosexual relationships. [74]  Such a problem has afflicted women in areas a high concentration of homosexual men, leading some of them to go to Alaska, where, as it is said, “The odds are good although the goods are odd.”  The force of this argument depends on two plausible empirical assumptions:  the legitimation of same-sex marriage will make same-sex relationships (and consequently gay and lesbian orientations) more socially acceptable, and that female sexuality is more strongly influenced by the social and political climate than male (otherwise the leftover males could console themselves with one another). [75]

We are concerned here, not with our ideal of marriage, but with minimum requirements of acceptability for a marriage license.  Those who enter marriage of any sort should be above the age of consent.  To prevent fraud and other forms of abuse, the state should require that a new polygamous wife should be made aware of her sister wives, and that the wives in possession should consent to any new addition to the household.  But, beyond that, if we accept the rest of the argument made here, women should be free to enter into an unequal relationship if they so choose (the alternative might be childlessness or raising a child alone).  I might think that a couple who decides not to have children, but to have dogs instead, is behaving in a less than ideal fashion.  The same is true of a marriage for reproductive purposes only, in which the bride’s family (and the bride herself under pressure from them) regards the groom as a ‘sperm donor.”    The first of these marriages, and possibly the second, would be regarded as invalid in Catholic canon law.  But there is no case for refusing to recognize these relationships as civil marriages.

Polygamy, it may be said, is inconsistent with our notions of romantic love, whereas there can such love between same-sex partners.[76]  The word romantic is crucial here, since there is love between parents and children, between fellow soldiers, or between siblings.   Romantic love includes, however,  the Platonic ideal of chaste homoerotic attachment, the parties to which, like Socrates, might have wives and children as well as boyfriends.[77]  Marriage is irrelevant to such forms of love.   Only if we stipulate that ‘romantic’ love is both exclusive and sexual at least in intention, but do not require parties of opposite sexes, does the concept of romantic love provide a ground for distinguishing same-sex from polygamous relationships.  It seems to me odd that so intimate a feeling should be the ground of a legal as opposed to a personal or a communal relationship.  As Joseph Rauch puts it, “from society’s point of view, the main point of marriage is not, and never has been, to sanctify love.  … In fact, society doesn’t much care whether spouses love one another, as long as they meet their marital obligations.” [78]  Romantic love may even be an enemy to marriage, if it leads spouses to expect violins in the background when they do such things as clean a cat box.

            Corvino questions the relevance of Platonic love in the following passage:

There is no reason  to assume—and indeed, there are good reasons to doubt—that one can  remove the sexual aspect of relationships and have all others remain the same. Sex can be a powerful and unique way of building, celebrating,

            and replenishing love in a relationship. This is one important reason

why heterosexual people have sex even if they don’t want children, don’t

want children yet, or don’t want any more children. It is a reason why

sexless marriages are often cause for concern. To assume that one can

subtract sex without affecting the rest of the equation is to take a naive

and reductionistic view of sexual relationships. This is not to say that

physical intimacy is always connected with other forms of intimacy: sex

is sometimes impersonal, mechanical, or fleeting. But sex is often much

more than that, for heterosexuals and homosexuals alike. The physical

union of the partners manifests and contributes to a larger union.[79]

Sexless heterosexual marriages may be problematic (I would not put it any more strongly), but I for one find nothing troublesome about sexless ‘Boston Marriages,’ or about the corresponding long term roommate arrangements between men (Sherlock Holmes and Dr. Watson may serve as a model).  Sometimes such relationships are sick, but the same is true of relationships of any other sort  

In any case, Corvino’s argument can be made on behalf of polygamous relationships. [80] For Fundamentalist Mormons, the mutual love of every party to a plural marriage, including the nonsexual love of ‘sister wives’ for one another, is crucial to the relationship.  And the conquest of jealously required in sharing a man with other women is part of the spiritual benefit claimed for such relationships.

Corvino responds,

It is true that you can use the same form of argument for PIB relationships: PIB relationships have benefits X, Y, and Z. But whether PIB relationships do

in fact have such benefits will not be settled by looking to homosexual

relationships. Put simply, to observe that many people flourish in homosexual relationships is not to prove that others might flourish in

incestuous, bestial, or polygamous relationships. Whether they would

or not is a separate question—one that requires a whole new set of data.[81]

At this point we are pressed to evaluate two entire ways of life:  one that retains the norm of monogamy but extends it to same-sex couples, and one that retains the norm of heterosexuality but extends it to polygamous groupings.  Corvino observes in another place:

The deep human tendency to disapprove “what we don’t like” often causes us to label our dislikes “unnatural: and to condemn things we do not understand.  The effects of such condemnation – the pain and isolation and fear, the wasted time an energy – are a far greater moral tragedy than sex between consenting adults could ever be.[82]

But this statement applies with at least equal force to polygamous as to homosexual relationships. I suspect that most of my readers have more acquaintance with homosexual than with polygamous or bigamous (as opposed to adulterous) people.

In any case, for the purposes of this essay, we are not concerned with the value of various kinds of relationships to the individuals themselves, but with the reason the larger society may have for recognizing and regulating them. Chief of these is providing a framework for the regular procreation and education of the rising generation.  Some heterosexual marriages are childless, intentionally or otherwise.   But intentionally childless couples can change their minds.  Couples not presently reproducing can build the foundation for later procreation, or co-operate in  raising children already in being. Unwillingly childless couples can adopt children, and thus provide, as gay couples cannot, a family life approximating the cultural norm. (Even if this norm is questionable, children are better off if they can decide for themselves whether to undertake experiments in nontraditional living.) 

Various ways of mimicking heterosexual reproduction reinforce my point. For example, one woman inseminates another with the semen of a man – usually of a stranger.   There are proposals to produce children by fusing ova or even spermatozoa. [83] Whatever the merits of such practices– and the risks of defects from fusing same-sex gametes would seem impermissibly great  — they do not accomplish one central purpose of heterosexual union, which links the love of the man and woman with the fusing of their lineages.  The risk of narcissism and of exclusion of the Other, in homosexual relations is accentuated when two women collaborate to produce a child guaranteed to be female.  Reliance on selective abortion might evade the question of defect if we can stifle our moral repugnance to such procedures, but not if the defects show up in later life.

 Moreover, heterosexual marriage provides for what is, from a social point of view, a secondary purpose of marriage, a stable framework for relations between the two sexes. This purpose may bulk larger in the feelings of the couple themselves than do procreative purposes.   For what heterosexuals characteristically desire from marriage, and what cannot be attained from homosexual relations, is not only affection, pleasure, or even offspring, but also the union with a person of the opposite sex which the union of the genital organs both effects and signifies, and of which children are sometimes the fruit.[84]   (Despite the sacramental overtones of my language, I am here making a strictly philosophical argument.)   Thus I give independent weight to the union of the two sexes, even apart from its reproductive potency; my argument is in this respect different from that of the new natural lawyers.  From society’s point of view, a few people who take part in an institution for reasons other than its central purposes do not seriously affect our shared understanding of that institution.  Recognizing same-sex or polygamous marriages on the other hand redefines the institution as a whole.   If we are prepared to undertake one redefinition, I see no reason why we should refuse the other.

IV

In response, Liberals can stress the centrality of equality to their argument.[85]   The state’s role is larger than merely insuring that all contracts are freely entered into; it also takes a role in forbidding contracts that it deems excessively unequal.  Even if both parties freely consent, it is still illegal for a client and a credit card company to enter into a contract specifying an interest rate higher than the legally determined maximum amount.  And Liberals could argue that a polygamous marriage contract is like this, i.e., that it, too, would be a contract that is so unequal that the state should forbid it even if the parties might freely consent to it.  Liberals could further argue that the existence of practical considerations to the contrary need not override the state’s ban on unequal contracts.  For example, it is easy to imagine situations where it would be in someone’s interest to form a contract with a credit card company at an interest rate higher than the legal maximum.  And Liberals could argue that the case with polygamy would be like this, i.e., that in this case, too, practical considerations do not trump the state ban on a polygamous contract that is, by its nature, very unequal.

Finally, the examples I give of less than ideal marriages which should nonetheless be permitted are marriages which are either intentionally childless or one exclusively reproductive.    But the standard Liberal assumption is that freedom and equality have a special status: they are universal or transcendental.  Liberals, for example, have no problem criticizing other cultures where freedom or equality is infringed, while such

criticism would be prohibited in all other cases.  And so Liberals would have no problem saying that the state should step in and forbid unequal marriage contracts (since equality is on the transcendental list) while also saying that the state should not step in and forbid intentionally childless or exclusively reproductive marriages (since family size and emotional intensity are not on the transcendental list).

            A more radical version of this critique of polygamy, and defense of same-sex marriage, attacks the former, and supports the latter, on the grounds that polygamy reinforces gender roles and is therefore reactionary, and that same-sex marriage undermines them and is therefore progressive.  Being defined at birth as male or female undermines a person’s capacity to define himself or herself however he or she wishes.   The attempt to radically change our understanding of gender can hardly stop with same-sex marriage, however, since this innovation is as likely to devalue heterosexual marriage as to increase esteem for same-sex relationships.  One must go on to ban ‘homophobic’ speech, [86]or at least use public education to indoctrinate children in ‘progressive’ attitudes.[87]  If parents claim the right to home-school their children, or send them to private schools, more draconian measures might prove necessary.  Since I am arguing within a vague consensus that we are living in a free country, it suffices to point out that social engineering of this sort furthers neither liberty nor equality.   For, both intellectually and politically, it requires a vanguard that stands above the rest of society and is authorized by its superior wisdom, or greater degree of commitment, to govern the rest of us for the sake of some distant utopia.

The first problem with this line of argument is that it sacrifices liberty to equality.  No doubt the state could insist that spouses in place consent before a new member should be added to their household, as it could ban marriage, polygamous or monogamous, with a child.    And it might even ban arrangements in which some wives are first- and others second-class.  But if a mature woman freely decides to join a polygamous household, for reasons persuasive to herself, refusing to allow her do so can be justified only on strongly paternalistic grounds, or on grounds the Liberal has already rejected, such a desire to preserve and protect the traditional institution of marriage as good, on the whole, for women, men, and children alike.   There is no reason to believe that all polygamous marriages are so predatory as to count as unconscionable for standard contract doctrine.  And few Liberals want to ban traditional marriage, even in the version where the wife stays home and the husband supports her, though in the view of many writers such relationships are unacceptably inegalitarian.[88]

            A second problem with the argument is that inequality is much more pervasive that the attack on polygamy or traditional heterosexual marriage suggests.  Human beings are always forming hierarchies:  in a same-sex relationship one party is likely to be dominant (though as in a heterosexual relationship power can shift from one party to the other).  In egalitarian political movements there are always leaders and followers.  If we nonetheless hold that all human beings are equal in fundamental dignity, we must do so in the understanding that we are fighting at least one persistent strain in human nature. If we appeal to religious sources of the egalitarian ideal, the same verse in Genesis (1:27) that tells us we were created in the image of God also teaches us that we were created male and female.

            A third problem is justifying the claim that liberty and equality are universal principles, while other considerations equally powerful in human affairs are not.  Not all cultures value liberty and equality as much as we do (or at all).  Friendship in the broadest sense is at least equally important,[89] and it bears on our argument at two points.  First, polygamy allows otherwise lonely women to gain the friendship not only of her husband, but also of her children and sister wives; and, second, a common understanding of marriage contributes to civic friendship – something liberalism in all its forms tends to threaten.   The Liberal understanding of human nature treats our capacity to make rational choices is central and our existence as social, bisexual, animals secondary.   But sidelining flesh-and-blood humanity in this way has devastating implications for familial issues.  For, whatever else they are, families are institutions for enabling young human beings to attain a capacity for rational choice that they do not now possess.

            Finally, equality requires only that like people be treated alike,  and the question whether same-sex or polygamous groups are relevantly different from heterosexual couples, in a way that warrants ‘discrimination’ in matters of marriage, is the central question at issue in our debates.

.

V.

Much discussion of same-sex marriage distinguishes between ‘bracketing’ and ‘engaging’ the relevant moral intuitions.[90]  But, for the purposes of the present argument, it does not matter which course we take.  If we bracket moral and religious views hostile to homosexuality, we need also to bracket such views when they oppose polygamy.  If we engage the relevant moral questions, we must face the difficult question, why homosex[91] is acceptable and polyamorous sex is not.   For even advocates of gay marriage do not necessarily value sexual fidelity:  Andrew Sullivan defends “the beauty and mystery and spirituality of sex, including anonymous sex.”[92]  

A crucial concept in the gay rights argument is that of heteronormativity. As one defender of same-sex marriage puts it, “’Heteronormativity’ is or includes a powerful ethical preference for the same, or for sameness, and is as such antithetical to humanity’s pluralism. … Heteronormativity looms tyrannical over all human sexuality.”[93]   But since the plurality of human sexual behavior includes promiscuity, both homosexual and heterosexual, of the most extreme sort, there is no reason, on this ground, to oppose polygamy once one accepts same-sex marriage.  One might as easily speak of ‘mononormativity’ of ‘polyphobia’ as of their heterosexual counterparts    Then incest, bestiality, pedophilia, and whatever other sexual dispositions one might be able to imagine, are now prepared to demand social recognition.

The thought underlying such rhetoric is derived from Nietzsche and Foucault:   that all socially established evaluations are mere impositions of the collective will-to-power.  If this is so of the privileging of heterosexual monogamy, it is also true of the privileging of liberty and equality, to which advocates of same-sex marriage appeal.  When all of these are swept away, the road is clear to the imposition “new values” by force and deceit.

My argument is directed against individuals, communities and jurisdictions that accept same-sex marriage.  Those who hold firmly to traditional heterosexual monogamy may have other problems, but are not vulnerable to the arguments presented here. Traditional marriage and Massachusetts marriage are different institutions, which uneasily coexist within the same society and sometimes within the skin of a single individual.[94]


 


[1] See for example, Katherine Young and Paul Nathanson.Answering Advocates of Gay Marriage,” (Emory University, 2003), available at http://catholiceducation.org/articles/sexuality/ho0064.html., accessed December 18, 2009.  Though I found this article in a Roman Catholic source, its authors are neither Catholics nor defenders of Catholic sexual ethics.

[2]  In an e-mail to me, dated June 2, 2010, Douglas Laycock writes, “Philosophy is one thing; law reform is another.  With respect to law reform, I’m a big believer in one step at a time and the art of the possible.”  Defenders of same-sex marriage who think in such terms ought at least to admit that there goal is recognizing polygamous (and perhaps a wide range of other nonstandard) relationships as equivalent to traditional marriage.

[3]  See Seutonius, Lives of the Twelve Caesars, Nero, chaps. 28-29.

[4] Laycock, “Afterword,” in Laycock, Anthony R. Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty (Lanham. MD: Rowman and Littlefield, 2008), secs. IV and V.  The same view has been defended by another contributor to this volume, Jonathan Turley, “A Unholy Union,“ ibid.,, p. 60.

[5] Polikoff, Beyond (Gay and Straight Marriage (Boston:  Beacon Press, 2008)

[6] Metz, “Why We Should Disestablish Marriage,” http://academic.reed.edu/poli_sci/faculty/metz/metz-marriage.pdf, accessed December 24, 2009; and more fully in her Untying the Knot (Princeton:  Princeton University Press, 2010).  Metz points out that Harriet Taylor and William von Humbolt held similar views. (pp. 66-68); for rosters of contemporary scholars who support her proposal, see ibid., pp 165n.24 and 181-82n.38.

[7] E. J. Graff, “Retying the Knot,” Nation, June 14, 1996, reprinted in Philip E. Devine and Celia Wolf-Devine, eds. Sex and Gender (Australia:  Wadworth/Thomson, 2003), p. 334.

[8] See Thomas Kuhn, The Structure of Scientific Revolutions (Chicago:  University of Chicago Press, 1962).

[9] United States Conference of Catholic Bishops, “Marriage:  Love and Life in the Divine Plan,” November 17, 2009.  Available at http://www.usccb.org/laity/LoveandLife/MarriageFINAL.pdf., accessed December 17, 2009.

[10] So for example Robert P. George, “’Same-Sex Marriage’ and ‘Moral Neutrality,’” excerpted from Christopher Wolfe, ed., Homosexuality in American Public Life (Dallas TX:  Spence, 1999), in Devine and Wolf-Devine, eds., Sex, pp. 325-329.

[11] See Alan B. Goldberg and Katie N. Thomson, “Barbara Walters Exclusive: Pregnant Man Expecting Second Child,” November 13, 2008. Available at http://abcnews.go.com/Health/story?id=6244878&page=1, accessed December 23, 2009. 

[12] I am here responding to an argument made by James Hanink in correspondence.

[13] See for example Michael Novak, “Men without Women,” in Devine and Wolf-Devine, eds. Sex, pp. 312-16.

[14] Joseph M. Champlin, Ten Questions About Annulment,” 

http://www.americancatholic.org/newsletters/cu/ac1002.asp  Accessed December 16, 2009.

[15]  For an example of this approach, J. Budziszewski, The Line through the Heart (Wilmington, DE:  ISI, 2009).

[16] Gorän Lind, Common Law Marriage (Oxford:  Oxford University Press, 2008), pp 32-33, translating the jurist Modestinus (in D. 23, 21):  “Nuptiae sunt conjunctio maris et femininae et consortium omnis vitae divini et humanae iuris communicatio.”

 

[17]  ‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife” (sec. 3). And so far as I can see, the States might still be required to recognize other States’ polygamous marriages, so long as they do not involve “a relationship between persons of the same sex” (sec. 2).

[18] The Ohio Defense of Marriage Act, 2004, provides:  “A marriage may only be entered into by one man and one woman. … Any marriage between persons of the same sex is against the strong public policy of this state.  Any marriage between persons of the same sex shall have no legal force or effect in this state… Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”  http://www.aproundtable.org/issues/doma_nov21.html  posted February 9. 2004, accessed January 2, 2010.  California’s Proposition Eight, 2008, reads as follows:  “Only marriage between a man and a woman is valid or recognized in California” (Wickepedia, s.v.  “Proposition Eight”).

[19] For the citizenship argument, see Joseph Raz, “Liberalism and Trust,” in R. George, ed., Natural Law, Liberalism, and Morality (Oxford:  Clarendon Press, 1996), and the discussion of Raz’s argument in Wolfe, Natural Law Liberalism (Cambridge:  Cambridge University Press, 2009), chap. 5.

[20]  The argument is  not valid if (2) is interpreted in prima facie terms, since opponents of same-sex marriage advance important social interests justifying ‘discrimination’ in this case.

[21] Ethics 115 (April 2005): 501–534.   At the end of the argument he writes of “irrational panic” and in another place that “the one thing [PIB] has nothing to do with the other [homosexuality].” “Homosexuality, Harm, and Moral Principles,” in Laurence Thomas, ed., Contemporary Debates in Social Philosophy (Malden, MA:  Blackwell, 2008), p.90.   

[22]  For similar sentiments see James M. Donovan, “Rock-Salting the Slippery Slope: Why Same-Sex Marriage is not a Commitment to Polygamous Marriage,” Northern Kentucky Law Review 29 (2002): 521ff.

[23] Wolfe, “Homosexual Acts, Morality, and Public Discourse,” Thomas, ed., Debates , chap. 6, esp. sec.3

[24]  I find the expression heterosex useful, though some social conservatives find it unduly friendly to the gay cause.

[25] For an attempt to use this broader sense of liberalism to circumvent contemporary ideological barriers, see Wolfe, Liberalism, especially chap. 7.

[26] Donovan, “Rocksalting,”  pp. 589-90

[27] For a discussion that suggests that the Supreme Court may be so committed, see David Masci and Jesse Merriam (both of Pew Research Center’s Forum on Religion & Public Life),”The Constitutional Dimensions of the Same-Sex Marriage Debate,” July 9, 2009.  Available at http://pewforum.org/docs/?DocID=425, accessed December 16, 2009.

[28] Metz, “Disestablish Marriage.”

[29] In the UK, the distinction between marriage as a religious and as a civil institution is better understood than in America, though the line between state and society is more blurry.   Prince Charles married his long-time companion Camilla, now Duchess of Cornwall, in a civil ceremony, from which the Queen absented herself.  They then had their union ‘blessed’ in a penitential ceremony over which Archbishop of Canterbury Rowan Williams presided.

[30] On this dispute, see Jack Wertheimer, A People Divided (New York:  Basic Books, 1993), chap. 9

[31] On this dispute, see Stephen Bates, A Church at War (London:  Tauris, 2004); R. R. Reno, In the Ruins of the Church (Grand Rapids, MI:  Brazos, 2002); and Ephraim Radner and Philip Turner, The Fate of Communion (Grand Rapids, MI:  Eerdmans, 2006).

[32] See Turley, “Union,” Laycock, Picarello, and Wilson, eds.,-Marriage and Liberty, pp. 78, 80, 95-97, on the external effects of civil unions; and Mark Stern, “Same-Sex Marriages and the Churches,” ibid., p. 223n.224, on those of domestic partnerships.  

[33]  For a defense of both practices, see Michael Tooley, Abortion and Infanticide (Oxford:  Oxford University Press, 1988).   

[34] For one view, see Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard 9, no. 20 (February, 2004).

[35] I here limit myself to judicially established same-sex marriage, since such establishment involves the strongest claims to be acting on principles that justify the ‘trumping’ of countervailing state, communal, and individual interests.  See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.:  Harvard University Press, 1977).

[36] Goodridge v. Massachusetts Department of Public Health, 309 Mass. 309 (2003).  .  

[37] Baker v. State, 744 A 2d   864  (Vt., 1999). 

[38] On why the ‘m-word’ matters, see Metz, Knot, chap.4, who proposes to remove the state from participating in its definition.

[39] For a  State Supreme Court decision that did not follow Goodridge, see Frank Conaway, et al. v. Gitanjali Deane , et al.,  (Maryland Court of Appeals, September Term 2006).   http://mdcourts.gov/opinions/coa/2007/44a06.pdf., accessed December 16, 2009.

[40] In re Marriage Cases, 43 Cal. 4th 757 (2008). My analysis draws on Metz, Knot, pp. 37-46.

[41] For the harassment of supporters of Proposition Eight, see Jesse McKinley, “Marriage Ban Donors Feel Exposed by List,” http://www.nytimes.com/2009/01/19/us/19prop8.html, posted January 18, 2009, accessed January 29, 2010.

[42]  In Lexington, Massachusetts, first grade students were assigned a book entitled King and King, which celebrated same-sex marriage in a fairy-tale context (no pun intended). The courts brushed aside parental objections on the ground that “Diversity is a hallmark of our nation.”  CNN, American Morning, April 20, 2006; Susan Bushey, “Lawsuit filed by Parkers, Wirthlins Dismissed,” Lexington Minuteman, February 23, 2007; Jonathan Saltzman, “Same-sex Teaching Upheld,” Boston Globe, February 24, 2007

[43] Metz, Knot, p.43

[44] Moreover, while anti-miscegenation laws keep the races apart, defining marriage as heterosexual brings the sexes together.  The proper analogue to traditional understandings of marriage is a bizarre law requiring spouses to be of different races.

[45]  These observations are required by remarks such as the following.  “The new territory we stake is not predicated on any other assumption that the Constitution, properly understood, offers nothing less than full and equal citizenship before the law, and after, and that its protections are sincere, not facetious.”  Gordon A. Babst, “Introduction,” in Gordon A. Babst,  Emily R. Gill, and Jason Pierceson, eds., Moral Argument, Religion, and  Same-Sex Marriage (Latham, MD.:  Lexington Books, 2009), p. viii.

[46] Gerstmann, Same-Sex Marriage and the Constitution (Cambridge:  Cambridge University Press, 2004), pp. 62-63.

[47] The word polygamy does not appear in the index of Polikoff, Marriage (nor does bisexuality, which raises the prospect of threesomes); she extends the civil partnerships that in her view should replace marriage only to “same-sex couples” (p. 132; my emphasis). 

[48] Richard Parker says, “Since the life of the law is (and should be) democratic politics – not logic – the legalization of other unions will occur only if and when there is widespread public sentiment favoring such an expansion of marriage.  I don’t foresee that soon; do you?”  In Lawrence Tribe and Richard Parker,  “Judicial Activism and

Gay Marriage:  A Debate,” Harvard Law Bulletin (summer 2004): 8ff., reprinted in John Arthur and William H. Shaw, eds., Readings in the Philosophy of Law, 4th edition (Upper Saddle River, NJ:  Pearson/Prentice Hall, 2006), p.  608. 

[49]  Metz, Knot, allows that polygamous groups might be granted the status of  I[ntimate] C[are] G[iving] U[nion]s  with which she proposes to replace state-sponsored marriage (p. 147), and that such groups should also be free to call their unions marriages without risking prosecutions for bigamy (p, 141).   But she also says that polygamous unions are “not … common enough to be include on the list” and “too provocative to include without explanation” (p. 179n.12).  So same-sex unions are not provocative?

[50] See Reuters, April 7, 2009, http://www.interfax-religion.com/?act=news&div=5896; Moscow Times, December 24, 2009.  http://www.themoscowtimes.com/news/article/a-muslim-revival-of-polygamy-and-camels/396767 both accessed December  26, 2009

[51] Scott Anderson, “Polygamy in America,” National Geographic 217, no.2 (February 2010): 45-57.

[52] Planned Parenthood of S.E. Pennsylvania v. Casey, 505 US 833, 851 (1992), quoted and followed in Lawrence v. Kansas, 539 U.S. 588, 574 (2003).

[53]  Feldblum, “Moral Conflict and Conflicting Liberties,” in Laycock, Picarello, and Wilson, eds.,  Marriage and Liberty, p. 139

[54] Feldblum, “The Right to Define One’s Own Concept of Existence,” Georgetown Journal of Gender and Law 7 (2006). 

[55] Corvino says that “very few people in contemporary Western societies seem interested in polyamorous relationships (a relationship with one partner is challenging enough).”  “PIB Argument,” p. 528.  What planet is he living on?

[56] Corvino, “Homosexuality,” p. 91.

[57] Sullivan, “Three’s a Crowd,” New Republic, June 17, 1996.

[58] Tribe in Parker and Tribe, “Judicial Activism,” p. 608.  Another version of the “options” argument is provided by Jonathan Rauch, “Marrying Somebody,” in Andrew Sullivan, ed. Same-Sex Marriage:  Pro and Con (New York: Vintage, 1997), pp. 285–88.   I use the Web version published by the Independent Gay Forum, http://www.indgayforum.org/news/printer/26894.html, accessed May 19, 2010.

[59]See Mary A. Mitchell, “Shortage of Eligible Men May Require New Rules,” Chicago Sun-Times (October 22, 2000):  24A.  I am indebted to the late Eleanore Devine for this reference.

[60]  Reynolds v. United States, 98 U.S. 145, 165 (1879).

[61]As David Chambers, “Polygamy and Same Sex Marriage,” Hofstra Law Review 26 (1997):  66-67, points out.

[62] Gerstmann, Same-Sex Marriage, pp. 104-05.  His whole discussion may be found at pp. 99-105.

[63] Ibid., p. 105.

[64]  Kass, “The Wisdom of Repugnance,” New Republic 216 (1997).

[65] I take this expression from Wolfe, Liberalism, pp. 242-47.

[66] The nature, sources, and extent of parental obligation is one of the points at issue in the abortion debate.   See Keith Pavilschek, “Abortion Logic and Parental Responsibilities,” in Louis Pojman and Francis Beckwith, eds.. The Abortion Controversy (Belmont, CA:  Wadworth, 1998), and Andrew Peach, “Abortion and Parental Obligation,” Life and Learning 14 (2004):  193-219  A group called the National Center for MenTM advocates “Roe v. Wade for Men.”    Press release available at http://www.nationalcenterformen org/page7.shtml.

[67] See especially his Second Treatise, para. 56. As Thomas West points out in his Witherspoon Lecture (Family Research Council, 2001), Locke was in contemporary terms a social conservative. There are, however, elements of this thought that might be (and have been) invoked to undermine his professed views. 

[68]Mill, On Liberty, chap. 5. Mill also called for tolerance for Mormon polygamy (ibid., chap. 4).

[69] See Ruth Padawer, “Who Knew I Was Not the Father?” New York Times Magazine, November 17, 2009, http://www.nytimes.com/2009/11/22/magazine/22Paternity-t.html?pagewanted=all, accessed December 16, 2009.

[70] D. Merillee Cluns and G. Dorsey Green, The Lesbian Parenting Book (Seattle, WA:  Seal Press, 1995), pp. 54-55.  April Martin, The Lesbian and Gay Parenting Handbook (New York:  HarperPerennial, 1993), p. 192, puts the matter this way, “Some children [of lesbian and gay couples] do express an intense longing for the other biological parent, talking about it frequently and emotionally. … It is also true that what is unimportant today may surface tomorrow with urgency.”

[71]See Gamal A. Badawi, “Polygamy in Islamic Law,” in which polygamy is defended as the lesser evil in some circumstances, both individual and social. http://www.al-islamforall.org/litre/Englitre/polygainis.htm.  Accessed January 6, 2010.  I am indebted to James Devine for this reference.

[72] Thomas Aquinas, Summa Contra Gentiles, Bk. III, chaps. 123-24.

[73] Rauch, “Marrying Somebody.”

[74] I owe this point to Corvino, “PIB Argument,” p. 528. 

[75] For a discussion supporting the second of these claims, see Arlene Stein, “From Old Gay to New,” reprinted in Devine and Wolf-Devine, eds., Sex, pp. 128-135

[76] There is an informative but confused discussion of this issue in Donovan, “Rocksalting,” pp. 557-563.

[77]Martha Nussbaum, “Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies,” Virginia Law Review 80, no. 7 (October, 1994):  1515ff, has denied that Platonic love requires abstention from genital sex.  (Or she has reduced this claim to a generalized hostility to sexuality that if taken seriously would mean the end of the human race.)   For replies to Nussbaum, see John Finnis, “’Shameless Acts’ in Colorado.” Academic Questions 7, no. 4 (1994), 10-41; and Robert George, “’Shameless Acts’ Revisited: Some Questions for Martha Nussbaum,’” Academic Questions 9 (winter 1995-96): 24-42.  For a critique by a Platonist who is also critical of Finnis, see John M. Rist, “Plato and Professor Nussbaum on Acts ‘Contrary to Nature,’” in Mark Joyal, ed., Studies in Plato and the Platonic Tradition (Aldershott, UK:  Ashgate, 1997), chap. 5.

[78] Rauch, ““Marrying Somebody.”

[79] Corvino, “PIB Argument,” pp. 512-13.

[80] Incidentally, Corvino errs when he says, “there are no such things as polygamous

“acts,” strictly speaking.” (ibid., p. 503).  If there can be marital acts – i.e., sexual acts that consummate or continue a monogamous marriage, so there can be polygamous acts, i.e. sexual acts that consummate or continue a polygamous relationship.

[81] Ibid., p. 513.  I consider this argument only insofar as it applies to polygamy, not incest or bestiality.

[82]  Corvino, “Homosexuality,” p. 91.

[83] As was suggested by William Eskridge in a debate with Gerard Bradley on same-sex marriage at Providence College (April, 2010).

[84]  E.g. John Finnis, “Law, Morality, and ‘Sexual Orientation,’” Same Sex: Debating the Ethics, Science, and Culture of Homosexuality, ed. John Corvino (Lanham,   MD: Rowman & Littlefield, 1997), criticized in Corvino, “PIB Argument,” pp. 515ff.

[85] This section paraphrases and responds to arguments suggested by Josef Velazquez in correspondence.

[86]  For detailed discussion of the freedom to preach against same-sex marriage, see Marc D. Stern, “Same-Sex Marriage and the Churches,” in Laycock, Picarello, and Wilson, eds., Marriage and Liberty, sec. I.

[87] See note 42.

[88]  But see Susan Moller Okin, Justice, Gender, and the Family (New York:  Basic Books, 1989) and her co-authored work, Is Multiculturalism Bad for Women? Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, eds., (Princeton:  Princeton University Press, 1999).   For a detailed critique of Okin, see Celia Wolf-Devine, “The Hegemonic Liberalism of Susan Moller Okin,” in Wolfe, ed., Liberalism at the Crossroads, 2nd edition (Lanham:  Rowman and Littlefield, 2003), chap. 3.  .

[89]  Aristotle for example says, “Without friends one would not choose to live, though he had all other goods.” Nicomachean Ethics 1155 a 5, trans. W. D. Ross in Richard McKeon, ed., Basic Works of Aristotle (New York:  Random House, 1941).                                                

[90] For defenses of same-sex marriage that avoid bracketing, see Babst, Gill, and Pierceson, eds., Moral Argument.  Neither monogamy nor polygamy nor fidelity appears in the index of this book.

[91]  See note 24.

[92] Sullivan, Letter to the Editor, Salon.com, http://www/salon.com/1999/12/15/sullivan, accessed 21 September 21, 2005.   He is summarizing the argument of his Love Undetectable (New York:  Knopf, 1998).

[93] Gordon A. Babst, “Consuming its Own?” in Babst, Gill, and Pierceson, eds., Moral Argument, pp. 184, 198.

[94] I am indebted to the Roman Catholic diocese of Portland, Maine for its well researched contribution to the same-sex marriage debate. Discussions with Patrick Breen, James Devine, James Hanink, Arthur Jackson, Christopher Lutz, George Rutherglen, Peter Simpson, Josef Velazquez, Patrick Walker, and Celia Wolf-Devine, as well as the comments of several anonymous readers, were also invaluable.

One Response to “Big Love”

  1. vita « Philip Devine's Blog Says:

    […] “Big Love.”  http://philipdevine.wordpress.com/2010/06/07/big-love/ […]

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