This would be a valid question if I were judging the situation morally. My post was addressing (my opinion of) what the government may legitimately do in regulating marriage. The Lemon test, strict scrutiny, time/place/manner are all jurisprudential, not moral, principles.
Could the government prohibit incestuous marriages on the basis of the potential for delterious reinforcement and the consequent cost to society? The answer is yes, that is a legitimate government interest.
Cpuld the government require genetic testing before marriage to address the concern you raise? The answer is again Yes, for the same reason.
But notice that they are two distinct questions – and neither is “Should the government do X?” but rather “May the government do X?”
This one gets annouing owing to a repeated misconception, so if I seem slightly snarky about it, please do not take it as personally directed at you, jt.
I don’t believe anyone seriously contends that “the government should not enact morality” in the broad sense. Rather, what they mean by it, normally, I believe, is that government should keep its nose out of the private affairs of consenting adults where the consequences will not, or at least are quite unlikely to, bring harm to a third party, and where no force or coercion is present.
Does the government have the power to enforce laws against theft? Yes, indeed the duty to. Why? Because theft is immoral – it causes a specific harm to an innocent person who did not choose to become involved in the act made illegal – the theft. Rather, he is a victim of the act. Similarly for murder, rape, child molestation, fraud, burglary, breach of the peace, assault (with or without battery), etc. Crimes have victims.
The prohibition of marriages between close relatives and those where a minor is one of the parties contracting the marriage can be construed to cause harm to someone whom society is legitimately entitled to protect. That between consenting samesex adults IMO cannot. (Note that my argument on why polygamous marriages are not part of the slippery slope is a pragmatic one, not a moral one… If three or more persons believe they can make a marriage work, more power to them – but we will need a distinct code of laws addressing all the issues in marriage law as applied to multiperson marraiges.)
…what? That’s not moral, that’s factual, and based on the interest of the state to boot (defective offspring being less able to contribute to the welfare of the populace, and likely to need significant care).
I could argue the potential for birth defects isn’t significantly different.
In any case, following through on your argument, then there is no valid government interest in prohibiting gay siblings from getting married.
And as you’ve established many years ago, procreation isn’t a neccessary integral function of marriage anyway, and I’ve asked myself at times if even sex is neccessarily an integral function of marriage. Why can’t any two people for reasons other than sex and kids get married ? Allen and Denny Crane did.
In Canada, the legal argument by which same-sex marriage came to be was pretty straightforward: sexual orientation is a prohibited grounds of discrimination as analogous to the enumerated grounds under sec. 15 of the Charter (per Egan v. Canada); the common law principle that marriage cannot exist between two adults of the same sex discriminates on the basis of sexual orientation, and is therefore unconstitutional.
There being no *Charter *provision banning discrimination on the basis of number, there is no straightforward analogical Charter argument for legally recognizing polygamous marriages.
I think this is the key speedbump on the slippery slope to marriage free-for-all.
As mentioned by a few people, gay marriage is technically very simple - if everyone in the US suddenly woke up tomorrow ready to extend marriage rights to gay couples, any legislative body could assign the necessary paperwork to the high school intern as an afternoon project, and that intern could probably hit the happy hour early that day:
Draft up the necessary repeal or constitutional amendment to undo any ‘defense of marriage’ acts previously passed.
Modify the state marriage act (the feds can skip this part) to eliminate any references to ‘man and woman’.
Skim through any statutes that refer to marital status to take out gendered references and replace any such references with something neutral like ‘spouse’. The vast majority of these laws (and related administrative rules) will already be gender neutral, now that women hold jobs and pay taxes and whatnot.
Government recognition of polygamous marriage would be vastly more complicated. Not only would the entire body of family law need to be essentially rewritten, but off the top of my head marital status plays at least a minor and sometimes a major role in tax law, immigration, property, visitation and proxies, trusts and estates, bankruptcy, criminal (in the definition of certain crimes and in spousal privileges), employment, social security, military and veterans’ benefits, insurance, certain aspects of common law torts and contracts, securities, and probably a bunch of others I don’t know about. And the necessary changes wouldn’t be merely cosmetic, but rather ridiculously complicated policy decisions, made even more difficult by the fact that there are many many more ways to be polygamous than there are to be two-people-married.
So, a state government basically has a couple choices here. They can attempt to treat poly-marriage like traditional marriage, and re-write the above laws to incorporate permutations from three people to three hundred people. This would be so incredibly complex and time consuming such that it may be impossible, and would invariably need to be modified constantly as new permutations of how people fit themselves together arose.
Alternatively, the government could get out of recognizing marital status completely, and just treat people as individual units for all purposes. People looking to form relationships would need to set up their wishes contractually where possible, like many gay couples do today. While the structural concerns here might be simpler, I think this would bring up some moral issues - lots of current marriage laws (i.e. divorce and custody, asset distribution where someone dies without a will) are designed to be protective in the event that the people involved cannot or will not protect themselves. As others have mentioned, societies that do legally recognize polygamous relationships almost all do so in the one man, many women format and do not recognize equal rights for all parties, or do not have the type of bureaucracy that accompanies all the areas of law I listed above. I’m pretty sure the personally-negotiated contracts are going to be vastly different between, say, a 16 year old becoming the fifth wife of a much older religious fundamentalist, a group of hippie liberals who want to turn their commune into a marriage, and an immigrant from a polygamist culture who wants to continue some of his or her traditions in the new world. Along with those issues, add in the number of people who just won’t bother with having ‘life organization’ documents drafted - it’s expensive, it’s time consuming, you have to get them all changed every time your situation changes (and that might be another issue entirely - I admit I have no experience when it comes to polyamorous relationships, so fight my ignorance if necessary, but it seems to me that relationships tend to be a little more fluid than the traditional binary system, with people moving in or out in various ways - the guy on Big Love didn’t get his wives all at once, right? While with friends of mine it tends to be a core two with a third spot filled by people who rotate in and out, serving terms of various lengths) etc. Some people may be perfectly okay with everyone contracting their personal relationships without the government’s involvement - I tend to be concerned that in most cases where the result isn’t particularly fair or negotiated in good faith it will be the women involved that get screwed. Full employment for lawyers, though, I suppose.
And then there’s in-between options. Maybe the state sets out default rules for multi-person marriages for really obviously family-related stuff - i.e. divorce, custody, health and asset proxies, and probate - while for all other areas of the law people are treated individually. My personal pet strategy is to develop a system for ‘personal entities’ that looks the the system for business entities, and then any group of any number can pick out the entity form that best fits their needs, just like businesses do. Each entity will have its own set of default settings, just like partnerships and corporations do, and personal entities can have charter documents that can alter some (but not all) of those defaults, just like partnerships and corporations do. And the entity could own property, and would have certain rights, and there would be rules for the dissolution of the entity, etc. Marriage is already essentially a business arrangement as far as the government is concerned, so I don’t think this would be too much of a stretch.
Wow. Obviously I’ve been thinking about this a little too much. So, um, in conclusion, I think there are some good reasons to assume that allowing gay marriage does not logically compel allowing marriage to donkeys or trees or siblings, or multiple people. The state doesn’t do plant or animal or inanimate object or child marriage because all the parties need to be able to consent. The state doesn’t do incest marriages because it wants to avoid birth defects. And the state doesn’t do poly-marriages because it would be too complicated to overthrow hundreds of years of precedent that is still applicable to the vast majority of people who need their divorces mediated and their assets distributed and green cards for their spouses.
Your post assumes that ALL homesexuals are “born with it” and “unable to change”. I have no idea of the numbers, but I’m pretty sure it’s not 100% on both counts.
What about bi-sexuals?
You can be dead and still be “white” (whatever that means), I’m not sure how gay (or straight) you can be after death. “Race” requires no actions, feeling, impulses or even brain functions.
I’m also curious about polyginy not being innate. I’m sure it’s not common in any way, but, again, more than 0%.
It has the potential to cause harm to another, and is therefore a moral issue. That which causes harm is morally bad, and that which causes benefit is morally good. That which causes neither benefit nor harm is not an issue of morality.
Unfortunately, certain segments of the population have taken to lying about what is and is not a moral issue, to the extent that many people have become confused about what morality is in the first place. Hence you get nonsensical statements like “We shouldn’t base our laws on morality; we should base them on what causes benefit or harm to people”.
I don’t see the relation between gay marriage and polygomous marriage. One has to do with the gender of the people who can form a legal institution. The other has to do with the number of people who can form a legal institution.
Now, we place all sorts of arbitrary numerical restrictions on all sorts of different institutions (for example, an S-Corporation is limited to 100 people (I think)). With regards to marriage, I think there has to be some sort of numerical restriction, because the participants in a marriage make intimate decisions about things like DNRs. For a small group of people, we might be able to reasonably infer that they have discussed these sorts of intimate decisions and come to some consensus, but for a 1000 people? Or ten-thousand? At some point, the number becomes so large that it is completely unrealistic to think the people involved have any kind of knowledge of the intimate wishes of every other person. So I have no problem with a numerical restriction on the size of a marriage. Two may not be the best place for it, maybe three, maybe ten. But on the other hand, two isn’t such an outlandish numerical restriction to put on marriage either.
If proponents of polygamy can come up with a reasonable legal regime to handle all the issues that crop up within a marriage, I’d consider it. But none of that has anything to do with the gender of the people constituting a marriage. Gay marriage is a wholly distinct issue from polygamy, and favoring one doesn’t mean you have to favor the other (in either direction).
They can have sex with anyone they want, but for legal purposes, there should be one and only one primary next-of-kin who is authorized to make key decisions in an emergency.
I hate this slippery slope argument, not necessarily because of its logical basis but because of what it purports to do; it wants us to believe that the demand for these legal rights are equal (or nearly) in strength.
According to Wikipedia, the percentage of polygamists in Utah numbers approaches 2%. It’s not unreasonable to assume that this is going to be where these numbers will be highest in the United States. In contrast, 2% is the most conservative estimate of the incidence of homosexuality in any given place. I’m not saying that this alone legitimizes gay marriage, but it’s not like permitting gay marriage is going to lead to a crisis where you have an entire social movement of polygamists, incestuous couples and zoophiles clamoring for the same rights.
It is possible to have a functioning polygamous marriage, in the same way it’s possible to get three people to agree on a pizza topping. The rub, as has been pointed out, is the practicality of restructuring the entire legal institution to accommodate this.
But we’re not talking about the numbers of people, we’re looking for the logical basis to legislate the way we do. In this case, statistically insignificant numbers don’t matter. If there’s a single bisexual out there who wants to marry his infertile sister, his fun uncle Steve, and his pet dog, well then by gum, we owe him an explanation of why he can’t so firmly planted in reason we could chisel it on a tablet it outside the Supreme Court. Truth is, there is going to be an endless number of scenarios which foil any rule you try to create. Yes, there will be arbitrary lines. If I can’t marry my sister, what about my cousin? How far removed do they have to be before it’s socially acceptable to hump them?
But if marriage is to be between two consenting adults, there’s no acceptable reason why it can’t be a same sex couple, unless ‘because that’s the way it’s always been’ counts. If the purpose of marriage is to procreate, you’d have to rule out infertile couples. The only way you could transform the argument into one of morality is by considering the homosexual acts themselves immoral. And try as they might, no study has been able to successfully link homosexuals with anything they consider deviant other than being homosexual.
Gay marriage does not open the door to anything. The state is not compelled to expand the scope marriage beyond that. If the last administration taught us anything, it’s that the government isn’t compelled to do anything it doesn’t want to.
sure and there can be. marriage is a contract right? triads or other groupings of more than two can put whatever contract between themselves they want on public record to be followed in an emergency, and failing that the partner that’s been together the longest has the decision making ability.
eg this problem is pretty easily solved and the fact that it breaks your neat book keeping rules for two people is not itself enough reason to rule out arrangements between more than two.
That isn’t how contract law normally works, though. A contract I signed last week is not subordinate to one I signed a year ago - I’m obliged to honour both. And while it might be mildly tempting to slap on a seniority clause of some kind, what happens if the marriage contracts were sealed simultaneously, as a man who marries two women on the same day? Is it required that one woman yield control to the other? By definition, the signing parties won’t receive equal consideration.
It’s true that any number of people can write up as detailed a contract as they like, but that doesn’t force outsiders to comply. Consider a member of a group marriage injured and on life-support. The members of his group marriage show up at the hospital waving their 200-page contract. Is the hospital required to delve into its fine print to figure out who can make the decisions? What if there’s a dispute among the spouses requiring consultation with a contract lawyer? Two-person marriages that collapse have already shown a capacity for years-long litigation where property and child-custody issues are at stake. I have to figure each additional partner raises the potential complexity an order of magnitude.
Well, write up such a contract, if you want. It won’t automatically grant the status that two-person marriages enjoy (and third parties are obliged to recognize) and the courts have no incentive to extend such because it invites a nightmarish avalanche of court cases. Picture a five-person marriage squabbling over community property when two of them want out.
Can you not see how such a blanket statement is simply your own opinion on how a marriage relationship should work? And as such, it is not morally superior to someone else’s opinion that marriage should be between one man and one woman.
“But my opinion isn’t discriminatory” you might say. Sure it is. You deny the right of marriage to a polygamist, the other opinion would deny the right to a homosexual. Just because your opinion is more popular turns the idea of rights on its head.
You would also deny a man the right to marry his sister, even if it is proven that she is sterile? What is the rationale for that? Because it is icky?
The only argument you have against polygamy is the idea that it is just too hard to craft a law dealing with it. I don’t buy that. You could say the first marriage takes priority. You could say the last one does. You could legislate that a hospital has to bow to the wishes of the contract. You could craft it however you wanted to.
In what other portion of the law do we say that we would like something to be legal, but it’s just too damn hard to legislate?
sure I know that, but it doesn’t really change my point. Do you think bisexual people who do want a partner of either gender should be told “pick one and be happy?”
It’s not an arbitrary opinion, it’s a recognition of reality. As it stands, marriage is a legal status that carries certain rights and obligations and even simple two-person marriages carry the risk of extensive litigation when things become contentious. A conventional divorce can drag through the courts for years if the partners are willing to fight it out - what happens when it’s not one vs. one, but three vs. two vs. two vs. one, as when a hypothetical eight-person group marriage collapses? What happens when one of the spouses is in a car accident and doctors need a fast decision whether or not to try risky but potentially life-saving surgery? Do they have to run it by the contract lawyers? One of the spouses shows up waving a contract saying he has the right to make the decision, when the real contract actually gives that right to another spouse, who isn’t present. Are hospitals liable for the outcomes of misrepresentation? Do they have to track down and consult every spouse first and try to figure out who’s in charge? Are such contracts stored in some kind of public database for ease of consultation? These are not minor hurdles and time is critical.
I doubt I’d use that phrasing, but I guess it is discriminatory in the sense that I recognize that a distinction exists. It’s not a bigoted opinion, though, because the distinction I’m recognizing is a valid one: that are significant legal hurdles to drawing up a group-marriage law that isn’t forcing someone to sign away a right or two in deference to someone else. Will I have the right to make next-of-kin medical decisions for my critically-injured wife, or will her other husband? Who defers to whom? Would she have rights to make such decisions if he or I were similarly injured?
Possibly, but not for some purely arbitrary reason, such as the opponents of gay marriage are using. I can observe the hassles in the courts when marriages break up, and I can observe where group marriage in practice has led to women being subordinated. If you want to shrug off these concerns, be my guest.
Also, be my guest to call yourself married if you form a three-or-more relationship, but if it ever so happens that I need to legally interact with your marriage in some way, I feel no obligation to delve into whatever contract you’ve written up. Is there a single spouse I can deal with in case of an emergency? Good. If not, I’m disinclined to wade into that potential mess.
I don’t recall expressing an opinion on such marriages. I’d likely accept them with a shrug.
And every quibble has the potential to be fought all the way to the Supreme Court if the participants have enough money and anger.
Actually, I gave it some thought yesterday and possibly the better approach is not to try to rewrite marriage laws to accommodate polygamy, but to adapt existing partnership laws. A group marriage could be modeled on, say, a law firm, with mechanisms for partners to come and go and the overall partnership restructured under certain well-defined guidelines. Individual partners can specify that in the event of death or incapacity, the partnership itself has power-of-attorney, by majority vote under controlled conditions. The internal communications, like spousal privilege, can be treated as work-product and thus have some protection from governmental inquiry.
It’s entirely unclear that enough of the people (i.e. “we”) agree that group marriage is something they would like to be legal.
Thats the sticky issue with homosexuality, it can be both. I mean, essentially the only way you know about it for sure is through behavior, and behavior can be faked. I’m sure theres many fake gay people out there just as there are fake straight people. On the other hand, you cant fake white or black.
And maybe polygamy will be discovered to be innate, who knows?
I assume you’re talking about marrying both genders, not simply having partners. If so, then thats a good point. I actually hadnt ever considered that issue before. Maybe they should be. It’d be pretty hard to prove though, and certainly that nebulous situation shouldnt be the basis to rest some kind of anti-gay agenda on (not saying you are anti-gay).
