Wednesday, April 05, 2006

Polygamy vs. gay marriage: Round XVIIILQM

Dale Carpenter over at Volokh Conspiracy a few days ago had a good post discussing ways of distinguishing in a principled way between gay marriage and polygamy, and how to get the former without getting the latter. He summarizes a post at Noli Irritare Leones on the subject: the law is designed for pairwise gender-neutral legal-status marriage already. Legal distinctions based on gender differences are hard to get past intermediate scrutiny these days, and the at-most-two-to-tango requirement dates from time immemorial (or at least Reynolds, 98 US 145, from 1870-something). So just dropping the hurdle that you need a mismatched pair should be simple. On the other hand, changing the law to allow multiple spouses--do both of the original partners need to consent before one can add another spouse? how are possessions of each spouse treated vis-a-vis children of that or another spouse?--could be a fair bit trickier.

This seems to me, again, though, like mere legalist analysis. While it may be easier to change the statutory language to enable gay marriage, the shift to polygamy is in some ways more natural with respect to the natural end of marriage. If you believe, like I do, that at least the prime historical purpose of marriage was to create a familial unit in which children could be raised--and fine-textured small-group identities created and protected--in a way that interfaced multiple generations with, and propogated, the polis, then multiple mixed-gender spouses partake of the quiddity of marriage in a more fundamental way than gay spouses of either gender do. (Whether this historical function of marriage and the nuclear family has been obviated by technology, a strong state, and changing mores is an open question. I think marriage has been shifted in purpose in effect, but not totally reworked in its foundations.)

The notion that polygamy is more nuclear than gay marriage, of course, assumes that the gay couple does not adopt. But adoption for both straight and gay couples is a pendant case from the Weberian "ideal type" of marriage: adoption for its existence relies on the central case (a straight couple procreating within a potential family unit) and then a malfunction of that case, where the couple dies or gives up the child. The adoption of a child by an infertile striaght couple, or a straight couple with the caritas to help an orphan, or a gay couple for whatever reason, is one step farther removed from the central case than polygamy. (Interestingly, Catholic natural law scholars struggle to distinguish the marriage of an infertile straight couple and that of a gay couple. I respect their fight, but I'm not sure I'm convinced; I'd say the two are functionally, and perhaps ethically, similar. Perhaps I can be educated...)

So while gay marriage might require fewer changed words in a text, polygamy is more obviously useful as a social institution. This is probably evidenced by the fact that, if we rank the numbers of the three types of marriages in the world, it would perhaps look in general outline something like half polygamous, half monogamous, and a tiny, tiny remainder of gay couples. This is not a strike against gay marriage; but it does mean we should think twice before declaring gay marriage "natural" (rather ironic language:) while refusing to do so for polygamy.

As I have said before, I have little settled opinion on the propriety of gay marriage or polygamy. I suppose if I had to make a decision as King Sean, I would legalize gay marriage and gay adoption and polygamy. But the "reasoning" against polygamy ("women would suffer") seems to me to be fairly prejudiced in the same way gay-marriage-proponents protest against ("straight marriage, or children, will suffer"). It's just a gut feeling without much careful analysis. Dale Carpenter's post seems one, or perhaps two steps up from that. Polygamy would perhaps benefit from the same exposition that modern articulate Muslim women are currently giving the issue of the veil, a view well-summarized by Katharine Bullock in her Rethinking Muslim Women and the Veil. Maybe the advocates of normalizing polygamy would lose; but so far they've been demonized more than heard.

(See, e.g., Rauch's article in the National Journal. I love Rauch: he's as great a libertarian advocate as there is. But it has been argued, elsewhere and often, that polygyny in fact strengthens the position of women [co-wives can exert more power over a single husband; women will be concentrated in high-status and high-influence households; the alternative to polygyny is informal concubinage and mistresses; ceteris paribus women tend to marry later in polygamous societies because it takes time for the husband to accumulate a second bride-price, which helps women; and so forth]. And noting that no liberal democracy has ever been polygamous is a fact, not an argument. Similar is the fact that crime rates are higher in polygynous societies, and the convenient explanation that bare branches explains this. I don't much like polygamy: when I say I want to fall in love and get married, that just means in my mind that it will be one incredible woman. But the arguments against polygamy certainly don't have any force in making me think that way.)


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