Mail Bag: Do You Think Polygamy Will Be Legalized in the United States?

Over the past few years, I’ve received a lot of questions about the role of polygamy in American society and, in some cases, whether I think it will ever return and whether I think it should be legalized following its restriction in the 19th century.  Since I’m working on several other mail bag responses I’m about to publish (most of which have to do with economics or portfolio management; e.g., one on currency fluctuations and investing), this was a welcome distraction.  I finally decided to talk about it publicly.  You may not agree but, like all things in my life, I’m interested in the facts and evidence, which lead me to end up very strongly on one end of the spectrum.

Re: About the 6th Circuit [upholding marriage bans on gays] with a new idea about marriage equality

Mail Bag Joshua Kennon PenThis masterpiece just caught my attention,  I can’t find anything wrong with the logic of Judge Sutton’s statement, “… there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.”

That logic has changed my mind!
Polyamorous marriage should be legal.

If the laws of the majority can be thwarted to the protect minority group (same sex couples). So can polyamorous couples demand the majority who established laws hampering them also be removed!

Am interested in your take on this fascinating logic, if you feel like sharing.

[Josh]

P.S. I love your blog!

From one Joshua to another, you asked for my opinion and I’m going to give it to you without holding anything back so forgive me if this is long.  I’ve been thinking about this for the past four or five years so, at this point, I’ve settled it in my mind and find the notion entirely unconvincing for a variety of reasons, which I will detail in what, unfortunately, has turned out to be a nearly five thousand word response.

In the United States, as well as in most nations throughout history, there are two primary legal mechanisms through which you can form a family when there is no blood shared between members.  The first is marriage, which allows a couple to create a new household unit entitled to more than a thousands rights and protections, including certain constitutional rights such as not having to testify against your spouse at a trial.  The second is adoption, which allows the non-biological parent or parents of a person (most often, but not always, a minor child), to confer all of the rights of biological kinship, including the right to be supported with food, shelter, clothing, and education until adulthood, intestate inheritance in the event of death without a will, and making emergency medical decisions in the absence of certain paperwork.

Under our constitutional system of government, when the majority of people wish to deny a person or group the right to enter into marriage or adoption through the collective power of the government, the representatives of the government have to demonstrate a justifiable reason for their actions based upon facts, evidence, and rationality.  Depending upon the circumstances, any justification that could seem sensible might do (rational basis) or it may take an exceptionally good reason that can survive intense examination, especially if the group targeted has a history of being oppressed (strict scrutiny).

Based on Human Behavior and Evolutionary Pressures, We’re Really Discussing Polygyny Not Polygamy in the Broader Sense

You mentioned polyamorous marriage but that’s not really what we’re talking about here.  You can theoretically have an open marriage, have multiple mistresses or lovers, live with other couples, or whatever you want if you are a person who experiences romantic love with multiple people.  The government cannot stop you under the constitutional right of freedom of association.  What we are talking about is legal family formation under civil law.  Polygamy – and, let’s be upfront in that we’re not really examining polygamy, but rather polygyny (one man marrying multiple women) since that is what it almost always devolves into as a result of various interacting biological, evolutionary, sociological, and economic mental models working together – none of the recent marriage equality wins hold much promise because the basis for striking down gender restrictions on marriage contracts have almost no applicability to the litany of reasons society may want to restrict matrimony to two people.  As we’ll get to later, I, many others, and even the dissenting judge, suspect Judge Jeffrey Sutton knew this when he wrote the majority opinion upholding the marriage bans on gay couples.

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There is a long history of well-researched, well-documented social science showing that polygamy inevitably leads to systematic, widespread, often difficult-to-escape oppression of both women and men, particularly in closed religious societies with charismatic or wealthy male figures in the center.  This not only has a tendency to lead to subjugation of female, it throws off marriage rates for a large portion of single males, which, in turn, leads to a litany of social ills.  It’s a function of basic economics, supply and demand, as Robert Frank, an economist at the Johnson School of Management at Cornell University and co-author of “Principle of Economics” with former Federal Reserve Chairman Ben Bernanke, pointed out in The New York Times.

For example, in what is the largest study on the topic to date, The University of British Columbia completed a research paper a couple of years ago that found the reason societies as a whole had evolved away from polygamy to monogamy was that polygamy came with a host of negatives for society that weren’t present in a two-person marriage system.  The second and third order effects of polygamy, which tap into evolutionary forces such as hypergamy, end up creating a country wherein a large percentage of males have no mathematical possibility at securing domestic happiness as the “best” males take a disproportionate percentage of females.  This leaves a huge block of civilization with no girlfriend, no wife, no children.  Without those things, men tend to get violent and/or cease caring about much beyond hedonism.  The UBC study found societies that had yet to evolve away from the polygamy model suffered significantly higher levels of kidnapping, murder, rape, assault, robbery, and fraud.

Or, as the summary for the University put it:

“The scarcity of marriageable women in polygamous cultures increases competition among men for the remaining unmarried women,” says Henrich, adding that polygamy was outlawed in 1963 in Nepal, 1955 in India (partially), 1953 in China and 1880 in Japan. The greater competition increases the likelihood men in polygamous communities will resort to criminal behavior to gain resources and women, he says.

According to Henrich, monogamy’s main cultural evolutionary advantage over polygyny is the more egalitarian distribution of women, which reduces male competition and social problems. By shifting male efforts from seeking wives to paternal investment, institutionalized monogamy increases long-term planning, economic productivity, savings and child investment, the study finds. Monogamy’s institutionalization has been assisted by its incorporation by religions, such as Christianity.

Monogamous marriage also results in significant improvements in child welfare, including lower rates of child neglect, abuse, accidental death, homicide and intra-household conflict, the study finds. These benefits result from greater levels of parental investment, smaller households and increased direct “blood relatedness” in monogamous family households, says Henrich, who served as an expert witness for British Columbia’s Supreme Court case involving the polygamous community of Bountiful, B.C.

Monogamous marriage has largely preceded democracy and voting rights for women in the nations where it has been institutionalized, says Henrich, the Canadian Research Chair in Culture, Cognition and Evolution in UBC’s Depts. of Psychology and Economics. By decreasing competition for younger and younger brides, monogamous marriage increases the age of first marriage for females, decreases the spousal age gap and elevates female influence in household decisions which decreases total fertility and increases gender equality.

To state it bluntly, over time, polygamy tends to lead to a lower and lower age of consent for women, who have less and less agency to determine their own fate in the face of family and societal pressure to “marry up”.  Meanwhile, you already have a situation where the males at the bottom of society have faced significant inflation-adjusted wage declines over the past few decades due to productivity gains and globalization, the cost of living has increased substantially for that same demographic who now face medical and student loan debt their parents didn’t, and now, you might introduce a situation in which they are unable to even aspire to marriage and children by drastically altering the ratio of available females?

That isn’t going to end well.

At best you have an arms race, to quote the earlier piece by Robert Frank, at worst you end up with pitchforks and guillotines because that’s where we’ll be if you foist that much more discontentment on tens of millions of prime-aged men.  I’d very much like to keep my head, thank you, and I imagine you would, too.  The idea that all of these guys are just going to sit down and take greater despondency and misery indefinitely while the top 20% of society reaps not only all of the money but all of the sex and progeny, too, is delusional.  It would take a few decades to play out but it seems woefully naïve to think “this time is different”. I’ve heard that too much in the stock market to know it’s bunk. Human nature is not apt to change over short periods of times and incentives – the very reason capitalism itself tends to deliver higher standards of living for more people as it harnesses those powerful incentives for the greater common good – apply in sexual selection just as much as they do in how you choose your laundry detergent or toothpaste.

Polygamy in the United States

The United States barely tolerates monopolies in the broadband industry. What makes you think society is going to accept the inevitable consolidation of prime marital partners among a handful of the rich and successful?

This is a truth so universally acknowledged based upon past experience that the United Nations considers polygamy a violation of fundamental human rights and calls for its abolition in the few remaining countries where it is permitted.  This is enshrined in U.N. International Covenant on Civil and Political Rights multilateral treaty.  It would likewise, also, possibly be a violation of the 14th amendment as it would permit unequal treatment of spouses in practice as explained in this essay posted on the American Bar Association’s website by Susan Deller Ross, professor of Law and director of the International Women’s Human Rights Clinic at Georgetown Law and author of Women’s Human Rights: The International and Comparative Law Casebook (University of Pennsylvania Press 2008).

Even Ignoring the Sociological Evidence, the Rational Basis for Prohibiting Polygamous Marriages Could Be Met In Dozens of Ways Under Our Constitutional Framework

In addition to the very real drawbacks, particularly second and third-order costs, sociology has already identified with legal polygamous marriage, all of which would easily pass the constitutional muster even using the lowest-level of scrutiny (rational basis), there are many other compelling state interests that could withstand scrutiny if the people wanted to ban multiple-spouse marriages.  Here are just a few:

  • The entire tax code would be broken overnight at a Federal level and in most states, leading to substantial harm against the poor and middle class.  A high income surgeon would be able to shield practically all of his income from taxes using spousal IRAs under current regulations; estate and gift tax limits would be completely destroyed as the unlimited transfers to spouses would be a loophole that permitted some families to pass on multi-billion dollar fortunes; itemized deductible expenses could be shifted, with no real basis to contest the shift, among various members of the marriage to drastically lower effective tax rates.  Religious cult leaders could intermarry their small congregations, abolishing all gift tax considerations in the community.  Right now, such outcomes are nearly impossible under the two-person marriage rule and limits.
  • Imagine John and Jane are married.  John then marries Alice.  Jane then marries Andrew.  In this scenario, Alice and Andrew have no relationship, though their spouses are married to each other.  If Andrew wants a divorce from Jane, how will the community property be split?  Given that Alice has an interest in John’s assets, which include his share of the marital property he holds with Jane, could Alice then sue Jane due to the financial harm she is suffering for the lost income, securities, and property upon the dissolution of a marriage in which she has no legal role?  Society already struggles with conflicts between divorced spouses, now imagine adding multiple spouses and ex-spouses.  It wouldn’t be long before what should be routine hearings look like the abomination that was Jarndyce and Jarndyce from Bleak House.
  • How would we protect spouses in the event their husband or wife wanted to enter into another marriage against their wishes?  For example, imagine a successful business owner with $30 million in net worth were married to his high school sweetheart and they are celebrating their 30th anniversary.  He decides he wants to marry his 25 year old secretary, too.  His wife objects.  Right now, that $30 million is their joint property.  To put it in corporate terms, the husband is effectively diluting her stake in the marriage business from 50% to 33.33% without her consent, representing a $5 million theft from her and her children, now going to the additional wife and her future children.  That is a material harm.  Even if existing assets were maintained under some sort of formula, future cash flows diverted to the new spouse are a material harm as they represent funds she could have spent, saved, invested, given to her family or charity, or used to reduce liabilities.
  • Tight-knit criminal organizations would be able to assail themselves of the constitutional protections against spousal incrimination, making the investigations and prosecution of such cases considerably more difficult.
  • Intestate deaths involving those who pass away without a will are written for a certain percentage of assets to go to the surviving spouse.  It would be chaos if there were multiple spouses.  Again, the spouses-of-spouses, once removed, from the deceased, could make compelling arguments that they were being harmed by being cut out of the inheritance since their indirect access to the money, which they had been using to support their lifestyle, is now ended.  In what uniform, equitable way could something like this be solved?
  • Inter-family custody battles could become nightmarish.  Imagine a man marries a woman and has children.  He then marries another woman concurrently and they have children.  The first wife and the husband die in a car accident.  Without a radical overhauling of the laws, the children of the first marriage are left in the care of the second wife, who would have parental authority over them, including prohibiting the grandparents from visitation in many situations.  Even if the second wife hates the kids, and is cruel to them, she may not want to give them up as a result of the survivor benefits Social Security pays out on dependent minors in certain situations or, alternatively, the added government benefits if they are below the poverty line.
  • Considerable increases in Social Security, Medicare, municipal pension, and private pension benefits could result, even in the case of ex-spouses, as the current mortality assumptions for future payouts were blown out of the water (add more spouses, one of them is bound to live longer).  For most of history, this objection was not a problem in the case of interracial marriage or same-gendered marriage because social pressure caused most individuals to marry conventionally, despite their personal unhappiness; e.g., had Hollywood legend Rock Hudson been an engineer at General Electric and died on the job, the pension plan would have been paying his wife (the woman he married for social cover to hide the fact he was gay) benefits up through her death in 2006.  Had he been allowed to marry the man with whom he wanted to spend his life, and build a family, the pension plan would have largely been in the same net position, suffering no financial harm.  The name on the benefit check would have been different is all.

There are dozens of ways to get there but the objections are so manifold, and the demonstrations of harm so tangible, there is no intellectually honest path to reach the threshold of striking down prohibitions on the legal unions.  None of these problems are present in the case of rescinding racial or gender bans on marriage contracts.

In the Legal Tradition of the United States, Practically None of the Arguments Used to Permit Interracial Marriage and / or Removing Gender Restrictions on Marriage Can Be Applied to Multiple-Spouse Marriages

In contrast, the arguments against interracial marriage couldn’t withstand any level of scrutiny.  There was no definable benefit of maintaining “racial purity” that offset the marked harm suffered by Richard and Mildred in the now famous Loving v. Virginia.  It was naked, raw, racism and bigotry searching for a justification of the belief that black Americans were somehow sub-human and not worthy of equality.

Likewise, in the marriage equality cases for gay couples, the 50+ courts that have struck down the bans in recent years (as contrasted with the 2 or 3 that have upheld them) have systematically examined the claims that restricting marriage based upon a person’s biological sex and found them absurd to the point of derision.  There is not one reasonable objection to prohibiting a person to enter into a marriage contract based solely on whether he or she is male or female that amounts to anything more than prejudice.  Society in no way benefits from forcing a gay person to marry a spouse of the opposite gender or remain single for life.  It achieves nothing, while benefiting civilization in no way, shape, or form, existing solely to express disapproval or animus.  How would America be stronger if Neil Patrick Harris were miserable and married to a woman?  He and his husband have biological children.  How would they be better off if the parents were unhappy?

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Case in point: The position that marriage is about procreation fails because even in the days of no-fault divorce, discovering your spouse was barren was not a good enough reason to dissolve the union, undermining the assertion.  We allow the non-procreating elderly to get married, undermining the assertion.  We allow couples to use birth control within marriage as it is considered a fundamental marital privacy right thanks to Griswold v. Connecticut, undermining the assertion.  We require no oath that the couple intends to procreate at the time of marriage solemnization, undermining the assertion.  We allow women who have had hysterectomies to get married, undermining the assertion.  We no longer permit legal discrimination against children born out of wedlock, undermining the assertion.  We have the ability to test for paternity thanks to the rise of genetic science, undermining the assertion.

None of these arguments work with polygamy.  The successes of the marriage equality movements over time – first interracial marriage, now removing gender restrictions – don’t translate to the state objections to multiple-spouse marriages, the latter of which are legion.  None of the wins, or finding of fact, are really helpful in making the constitutional case.  The only reason people seem to think it does, at least in my opinion, is the Lawrence v. Texas case, which said moral disapproval of a relationship in and of itself is not sufficient to criminalize that relationship.  It’s one of the reasons the lawyers and judges involved waive off concerns about a slippery slope.  The arguments that achieved the victories don’t work.  You’d have to find a new legal theory and, frankly, I can’t see one unless the judiciary decides to move the goalposts entirely and dispense with all historical precedent.

The Interesting Conspiracy Theory of the 6th Court Ruling

There is a hypothesis – take it for what you will, but there are too many puzzle pieces that fit for it to be discarded out of hand – in which the 6th court ruling was a purposeful attempt by the judiciary to set up a circuit-level conflict so the Supreme Court could deliver another Loving ruling.  Justice Ginsberg talked about the case back in a discussion in September, saying the only real chance the court would have to jump in during the upcoming session, ruling before next summer, would be if the decision broke the huge streak of wins and upheld the bans against gay people.  Judge Sutton, the conservative who wrote the majority opinion and once clerked for Justice Scalia, was whispered in the past few months to be on the side of marriage equality and is the same man who ruled in favor of Obamacare, setting it up for John Roberts to uphold the health care mandate across the country.

The majority opinion is written so carefully, in such a way that it begs to be struck down, that the dissenting judge, Martha Craig Daughtrey all but accuses them of teeing up the ball for the Supreme Court to legalize marriage equality nationwide while ignoring the real couples in front of them that now have their lives on hold.  Specifically, she writes:

Because the correct result is so obvious [after pages and pages of quoting other rulings and changes in precedent], one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same- sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.

I’m inclined to agree with her assessment.  It’s just too perfect.  You couldn’t ask for a better case to appeal to the Supreme Court than this one.  In addition to bringing up absurd legal arguments that will be dismissed out of hand (and they know it for the reasons we’ve already discussed), such as the polygamy quote, the majority opinion goes out of its way to talk about how there is no real reason to deny gays the right to get married, saying things like:

“Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.” – Majority opinion, page 20

Then turns around and says gay people should be subject to a vote of their fellow citizens on whether or not they get these rights as it isn’t the role of the judiciary to step into the question because the states might have been motivated by the biological reality of procreation:

“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.”

Thus rehashing the procreation argument that many of the 50 or so other courts have addressed and we already touched upon earlier right after savings that gay people are parents, parroting Kennedy’s pro-equality rulings.

It talks about the right of a State to determine its own marriage laws but then jumps into a discussion of Loving, which contextually provides an example of where the state were overridden and makes such absurd claims as that case supporting traditional marriage rather than the radical expansion of individual freedom it was!  To go from “states should decide, not courts” to “let’s talk about Loving” is either an act of supreme stupidity or a sleight-of-hand for further up the food chain, especially when the assertion is so wild:

“When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

The majority ruling, at times, all but mocks the so-called “sanctity of marriage” argument that the state is concerned about setting an example for others:

“States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue.” — Majority opinion, page 22

It goes on and on, example after example, page after page.  It looks too much like an inside job, contradicting itself, past Supreme Court decisions, and all other appellate courts.  It’s possible it’s not – the 6th circuit in Tennessee is, after all, the most reversed circuit court in the country, originating a big percentage of cases that are struck down or reversed – but it looks too much like a gift to the marriage movement.  It’s so wonderful it’s almost like Justice Kennedy was in the room with a checklist making sure it contradicted everything he’s done in the past generation so he can reverse it with quotes from his old cases.

Even the timing is suspect.  The decision looks like it was pre-written (it mentions 19 states having marriage equality when the number is now 31 states thanks to the Supreme Court) and withheld until after the election, released just in time to get the ACLU’s appeal on the current year’s calendar at the Supreme Court.  The ACLU, in turn, decided it was going to skip the en banc request of the circuit court, which it very well might win, and go straight to the high court.  By all accounts, it looks like the powers that be want to get the South to fall in line and this was the mechanism to do that.

What I don’t know is whether the decision will be 5-4 in our favor or 6-3.  There is a part of me, and I cannot explain the reason, that thinks John Roberts might use this as a chance to secure his legacy on the court, writing a decision in favor of marriage equality that will eventually rank up there with Brown v. Board of Education, Loving v. Virginia, etc.  It will be, most likely, the single most important decision of his tenure on the court in terms of legacy and the measuring stick by which he will be judged for not only the rest of his life, but in the history books.  He’s a very smart, calculating man.  I don’t know if he will want to opportunity to pass because if it does, he’ll never be able to make up for it.  He keeps his cards too close to the vest, though.  Even his vote against DOMA wasn’t based on the question of equality, but a technical maneuver that, I suspect, was misdirection.  I’m also not sure that the subtly implied arguments against adoptive parents (his children are adopted) are going to sit well with him as he reads the testimony that effectively calls him a second class parent, something the 6th circuit judges knew when they wrote that majority opinion.

The whispers, and evidence, could be wrong, though.  It’s possible the judges really just were that incompetent (I’m not taking anything for granted) but you generally don’t get that far in life if you are.

Whatever you do, take the time to read the dissent.  It’s hilarious and (by judicial standards) brutal.  It begins on page 53 out of 75 (black numbers) or page 43 (blue number).  Her response to the idea judges don’t have the authority to protect the constitutional rights of citizens against majority rule, but instead must let the people decide everything or at the very least “wait and see” until some unknown time in the future regardless of the people seeking justice in the courts today, is one of my favorite parts:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

To Bring It All Back to the Polygamy Question, I See No Intellectually Honest Path in Which the Court Could Strike Down the Prohibition

To bring all of this back to your question, personally, I see almost no probability of legal, polygamous marriage happening in the near future.  That may change but the downsides are so obvious, so historically established, and so well studied, I’d be shocked if you could convince most of the members of the judiciary, most of whom are typically well-educated, particularly as it pertains to the historical rights of the poor and women, that it was a good idea.  It would take decades to play out – you’d have a few generations of well-adjusted, happy, polygamous marriages until the free-market forces began to set-in and mate competition went through the roof 30, 40 years down the line – but I’d bet a lot of money it’d be disastrous in the same way no-fault divorce has been in regards to poverty rates and out-of-wedlock births for one, simple reason: I believe the best indicator of the future is the past.

Polygamy was one of the greatest, long-term, most diversified, organically arising experiments ever conducted in the history of humankind and universally fails in comparison to two person marriage because it is comparably sub-optimal both on an individualistic, and ultimately, a system-wide, basis.  Most civilizations, throughout most of human history, had polygamous marriages and almost all discarded them through a natural social evolution in favor of monogamy, equality for women, and a cache of other net positives.  Turning back the clock on that seems incredibly stupid and, in many ways, unjust given that it would effectively be yet another war against the poor who would be disproportionately harmed by the inequality.  The fact that a legislature could point to this surfeit of objections, none of which require any moral judgment at all nor that contradict the racial or gendered marriage gains, means there’s almost no way to assert the sole motivating factor against polygamy is animus.

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Disagree?  Let me hear it.  Give me your best argument against it but I think the weight of the burden against so much evidence, and so many basic mental models ranging from fields including economics to psychology, is too much for you to overcome.  I don’t think you can unleash polygamy on society again without also unleashing a host of oppression and oppressive forces in the decades that follow.  I see no pathway whereby such a thing is possible.  I’ve gone over it again and again in my mind and human nature is too well defined.  The poor end up suffering.  Women end up suffering.  Men end up suffering.  Crime rates increase.  The rich win.  That’s fundamentally immoral, in my opinion.  To short-sightedly believe that a system that has historically delivered so much misery should be permitted by using a quote that I, and many others, suspect was purposely contrived to undermine that very argument is not wise.

I suppose I could have skipped all of this and used the international language of the Internet – cat – to answer your question.  Upon examination of the evidence, I conclude:

  • carikku

    It seems to me that the issue of marriage, including the permitting of same-sex marriages and polygamy, is of such monumental significance regarding how people live their lives, that it is not something that should necessarily be decided by judges but perhaps by a national referendum (using the term to mean a direct vote in which the entire country vote on a particular proposal) which I’m not sure that you have in the US?
    I have heard that many Americans resent the fact that the permissibility of abortion was decided by judges rather than by citizens themselves, either by direct vote, or indirectly through democratically-elected politicians.

    Personally I am in favour of marriage equality, but I agree that de jure polygamy has no place in society, and that it should be restricted to de facto situations.

    • Alex

      I disagree as then you would have a cult of the majority where a significant portion of society is actively trying to force a minority group to behave and live their lives the way the majority wants. Going into the realm of abortions is its own five thousand word response but in terms of marriage equality imagine holding a referendum just ten or twenty years ago. The majority of America at that time would have voted against same-sex marriage and would have forced a smaller yet still significant percentage of society into heterosexual marriages despite the objections from that minority.

      • innerscorecard

        I think separation of powers really is a good method for controlling these effects for exactly the reasons you described.

      • carikku

        “…a cult of the majority where a significant portion of society is
        actively trying to force a minority group to behave and live their lives
        the way the majority wants” – that essentially is the beauty – and horror – of democracy. And it’s what is already happening.
        If the US had a referendum, and voted in favour of legalising same-sex marriage or polygamy, it wouldn’t mean people were forced to marry their own gender or take multiple spouses, just that it was an option. If the referendum rejected the notion, then the current situation would stand. Either way, no majority is forcing a minority to do anything (that’s not already happening).
        Some things are best determined by courts – deciding what constitutes a criminal act for instance – but in terms of how one’s life should be lived including who/how many people one marries goes to the very make-up of society and should perhaps be determined by its citizens.

        • Alex

          “but in terms of how one’s life should be lived
          including who/how many

          people one marries goes to the very make-up of society and should

          perhaps be determined by its citizens”

          I agree that some practices are just so detrimental to society that they should
          be prohibited using the collective power of the public. For example, no matter
          how much joy murdering and raping are to some people there’s no way I would
          want those actions to be legal even if some judge says otherwise. Which is why
          if a court ever did legalize those actions I would actively try to reverse that
          decision by restricting the act at the highest level (amendment in
          Constitution). However in general I have an opposition to having the general
          public directly voting for things such as marriage due to the same reason I
          have an opposition to having my neighbor decide who I should date or what
          religion I should be a part of: that is I’m very incredulous to the idea that
          the general public acts in the most rational way. And to be perfectly honest
          (and frank) most people behave like idiots, letting their predisposition,
          ignorance, and bigotry make their decisions. Do you really believe that holding
          a national referendum to decide if women should vote in 1900 (which is staying
          on topic as it’s a part of how they live their life) wouldn’t have resulted in
          denial for that right (In the 1800’s and beginning 1900’s women were
          disenfranchised and therefore the voting public would only consist of males.)?
          What do you have to say to when just a couple of years ago when a state
          referendum was held in some states to decide on the issue of same-sex marriage the
          public decided to restrict the act on the state constitution level? Do you
          think that a national referendum should have been held to decide if Black
          Americans are allowed to go to the same school as White Americans during the
          1940’s and 50’s? How about letting the general public decide if someone of
          Asian descent could marry someone of German descent in the 1960’s thus repealing
          the Anti-miscegenation laws? Can you support the notion that the public should
          have had the deciding vote on whether or not Blacks should get to live the way
          they want through the banning of slavery in the 1800’s (Note that even though
          the North is considered to be a haven from slavery during this time by our
          history textbooks the majority of the North still supported slavery as it was
          vital to their industrial economy to keep the cotton flowing from the South. It
          was only the fact that a vocal minority of the public in the North held great
          disdain for slavery while the rest of the population were indifferent that
          allowed the North to prohibit the act)? I’m not necessarily arguing that the
          Courts are the end all and be all when it comes to making rational and
          progressive decisions – Plessy vs Ferguson is a testament that they aren’t.
          However I do think that due to the (generally) higher level of intelligence,
          rationality, and critical thinking skills that judges of Courts have, they are
          in a better rational mindset to make proper decisions when compared to their
          counterparts (the general public).

          (Sorry if my response is too long. I tend to ramble a lot.)

        • carikku

          Perhaps if my own response had been a little longer, yours wouldn’t have needed to be…;-) I seemed to have caused some confusion, for which I apologise.

          I think a referendum* would be a good way forward. I am not saying they are something that should have been more used in the past – you are quite right with your points about women gaining the vote and the breakdown of racist laws and more.

          What I did say though, was that things such as criminal acts (which include rape, murder etc) are best decided in courts of law, which (largely) should interpret the laws made by democratically-elected governments.
          However, I think that some of the things that the very fabric of society rests on, such as the institution of marriage (informed and competent adult individuals electing to enter into a legally-binding union for mutual benefit), are perhaps so critical that they should be decided by citizens collectively.

          I disagree with your statement that “most people behave like idiots”. I don’t think I’m naïve for believing that people are fundamentally good. Sure there are bad apples, and they are often very vocal ones, but most people are actually pretty decent.

          *I need to state though, that for a referendum to work (ie be a true reflection of the constituents’ values and preferences), the US would need to move to compulsory voting. (Meaning citizens are compelled to turn up to a voting booth and collect the ballot papers – whether they actually record their vote is up to them – before casting them in the ballot box.)

        • SixthCircuitBuffoonery

          I agree that resolving issues in the civil rather than judicial sphere will build a more durable consensus, and I think the Supreme Court was smart to allow the same-sex marriage issue to play out as it did.

          But I think the whole point is that it would be illegitimate for the people
          to collectively decide to discriminate against gay people no matter their motivations. Marriage under the American system is all-encompassing, and it touches on all aspects of life: property rights, insurance rights, social security, education benefits, etc. For someone to think a referendum could work, they would have to believe that it was alright to reach either side of the issue, which is to say that the citizenry could vote to either legalize or ban same-sex marriage. Do we really think that society gets to vote/legislate on who gets to sleep with whom in the bedroom (before Lawrence v. Texas)? Do we really think that society gets to legislate that same-sex couples in committed relationships have to pay more estate tax upon the death of their partner (U.S. v. Windsor)?

          The test is not whether we think the electorate will reach the right decision (perhaps they will), but whether it would be legitimate/constitutional for them to reach the wrong decision. Because it would be unconstitutional to deny same-sex marriage to homosexual persons even if a majority found it acceptable (as they have historically), this is precisely the kind of issue the U.S. Constitution empowered the courts to resolve.

        • carikku

          “For someone to think a referendum could work, they would have to believe that it was alright to reach either side of the issue…” – this is a really good point.
          Historically this has not always been the case (Australia’s 1967 referendum on whether or not to include indigenous people in the census is an all-too-recent example) but probably you are right that it’s how it should be.
          I was considering more the possibility of a referendum on polygamy (as the topic is on, was not intending to derail it to be about marriage equality) and while I am personally not in favour of the legalisation of polygamy (for so many of the reasons as cited in the 5000+ words above) it seems only fair that maybe this is something society gets to decide. Certainly a Yes or No wouldn’t necessarily mean the suppression of a minority (the way it could with a vote on marriage equality).
          I am not well-versed on the US Constitution (nor individual court cases) so can’t argue very well about that, but am pleased to have recently discovered this site and hope to learn more.

        • Alex

          “I disagree with… ‘most people behave like idiots'”
          You’re right. Most people are actually decent even if they make irrational decisions from time to time. I guess I was too cynical when thinking of all the atrocities committed in the past but yeah the bulk of society is actually filled with good people who have a sense of morality. I should have said that occasionally even good and well meaning people can make terrible decisions based on predisposition, ignorance etc…

          “referendum would be a good way moving forward”
          Now that the bulk of society has overcome its homophobic attitudes and irrational arguments I see no reason why a national referendum specifically on same-sex marriage wouldn’t result in the rational outcome. And you’re right when you imply that citizens should be collectively behind the right choice before any sweeping legislation is enacted by the government (instead it should be a gradual progress to be more effective) because then you end up with a situation where the bulk of society will find any way to persecute that group as evidenced after the 15th, 16th, and 17th amendment was passed in the late 1800’s by the Radical Republicans yet it still took almost a century before Blacks would be treated equally.

          However I’m still not convinced that a national referendum would be appropriate right now on any other aspect of marriage. But you are right on your other points :D.

        • carikku

          I’m not completely “convinced” either – hence my wishy-washy use of the word “perhaps” throughout my posts 🙂

    • innerscorecard

      In the US, the over-ruling of judges’ interpretation of laws by the people can be accomplished through either alteration of the laws through the passage of new laws by the legislature, or when those laws may be unconstitutional, by alteration of the Constitution. But alteration of the Constitution is a very difficult process, intentionally and rightfully so.

      • carikku

        Cheers.

    • LordSquidworth

      You have the courts to avoid a majority suppressing a minority.

      While multiple wife’s is a real economic issue, gay marriage is really about keeping a minority down. For a country based on personal freedom, we sure like to tell others how to live their lives.

  • Mark Bright

    Josh,

    Your premise that we are discussing polygyny instead of polygamy is, if I have ascertained correctly, the foundation upon which your argument is built. I believe it is wrong. To say that a vast majority of polygamous marriages taking place today would result in one man marrying multiple women is to say that we have made little to no social progress since polygamy was last legal. We do not live in the 1800’s anymore. Our exponential growth as a species in the past 200 years has seen significant progress for womens’ rights. Are there still blatant examples of sexism (e.g. how much a woman earns compared to her male counterpart) today that exist and get swept under the rug? Absolutely. But for arguments’ sake, men and women are on an even, legal, unoppressed playing field. There were probably only a handful of cases of polyandry that occurred pre-1890. Imagine telling women today that they have no constitutional right to marry multiple men, should polygamy ever become legal…

    Societal ills not withstanding, I completely agree with (and am very amused by) your speculations regarding the chaos that would ensue in divorce courts should handfuls of Johns and Janes suddenly realize that BEING IN LOVE IS A COVENANT BOND SHARED BETWEEN TWO PEOPLE AND TWO PEOPLE ONLY (and you will NEVER be able to convince me otherwise).

    • Mark Bright

      Joshua*? I do not know which you prefer…

    • innerscorecard

      I don’t think this is right at all. As Joshua discussed, there is a “lollapalooza” of different biological, cultural and psychological effects that practically would make it so, even if it wasn’t true in an absolute sense. Men and women are not exactly identical.

    • Allen Jarboe

      Mark,

      While I had the same initial thought as you did, the actual reasons Joshua is using are equally relevant to polygyny and the encompassing polygamy. (He even uses polygamy in the opening sentence or two discussing them.)

      Also I am curious about the distribution of a man with two women vs a woman with two men in modern “poly” couples. (And yes… let’s just keep it at three for the moment for simplicities sake.) I have no idea where to even start looking for statistics of this nature, it may be my afternoon adventure on google to try and find something. I know this is an incredibly small sample size, but the majority of people I know (or are friends of friends with) that are in a poly relationship are of the two men and a woman variety.

      • innerscorecard

        But I think that’s because the couples who hold themselves out as “poly” currently are those willing to have an alternative lifestyle that isn’t legally recognized. By contrast, those with more “mainstream” preferences for the other way around would be more likely to just have kept mistresses and/or be serial monogamists, and not declare themselves proudly as “poly.”

        • Allen Jarboe

          A very good point, but how many wives also wind up having a long term affair? I think this could devolve into a very complicated matter to sort out. Would a mistress/or affair want to be considered as a relationship unit if it were legal? Or do some people just like to be serial monogamists as you describe. It’s never been my main interest, but I can see why people make a career studying human sexuality.

    • Societal ills not withstanding, I completely agree with (and am very amused by) your speculations regarding the chaos that would ensue in divorce courts should handfuls of Johns and Janes suddenly realize that BEING IN LOVE IS A COVENANT BOND SHARED BETWEEN TWO PEOPLE AND TWO PEOPLE ONLY (and you will NEVER be able to convince me otherwise).

      Can you imagine the new televised version of Divorce Court? Maybe I should start a cable network and do it. We could have audience voting in real time to determine which side should “win”. It’s all very Roman bread-and-circuses but it would make a fortune.

      (As for the substance of the comment, I agree with the other responses, which do a good job summarizing my thoughts. The objections would be just as strong even if you end up with a 1-woman-10-men model, but I think the inherent evolutionary pressures and sex-specific gender distinctions in neural patterns of behavior are too powerful, and too inextricably ingrained, to think such an outcome likely.)

  • innerscorecard

    I just finished reading your post. It was pretty definitive. I liked the separation of the legal and constitutional issues from the underlying “policy” reasons, and think your analysis of both was accurate.

    Hypergamy is already terrible. I see its effects everyday in China. It leads to misery in both genders (different components of each gender – that is, high-status females and low-status males). It would be far worse if polygamy were legal. When you mention in your writing about how the family is the original corporation and one of the most important building blocks of civilization, it really is the aspects of emotional and legal orderliness of the monogamous family that make this so. If polygamy were legal, the world really would be a far darker and more ruthless place, especially considering all the second and third order effects.

    • Connelly Barnes

      Are you living in China? I spent the summer in Beijing…

  • Joshua

    Maybe I’m naive, but I feel that the best answer to these problems is for the government to get out of the marriage business all together. Tax people as individuals, not family units, and let people decide for themselves how they want to run their affairs. These arguments about whether or not certain types of marriage should or shouldn’t be legal seem to miss the point for me. The government shouldn’t be sanctioning, promoting, or enforcing the types of relationships that its citizens decide to enter into of their own free will.

    • Brendan

      Consider this: what happens when two people want to dissolve a marriage and have children and property involved, and the two parties cannot agree on who has legal rights to what? How do the courts decide if there is no legal precedent on how to deal with divorce? This is especially problematic if a husband is the sole breadwinner and his wife is a home-maker (or vice versa). Legally, she/he did not earn the money and would therefore not be entitled to it unless there was some sort of legal agreement between them. As Church and State are Constitutionally separated, the courts would be in a really odd position to rely on what various churches or religious sects define the marriage contract by, and therefore the rights of both parties necessarily fall under secular law and need to be addressed by local, state and federal governments. The notion that the government doesn’t need to be involved is a side-step of the issue of gay marriage, so that certain politicians don’t have to be bothered to state their opinions on gay marriage so they can still appeal to the religious-right. I’m not saying that is your rationale here, but I am saying this is why certain politicians have floated this idea during the last few elections.

    • I’m with Brendan on this one. I think the idea is naive because we now live in an advanced civilization with a lot of affluence and well-defined laws that make this frontier-model of free-for-all marriage non-workable. The marriage certificate is, to borrow a concept from Lord of the Rings, the one true ring to rule them all. It streamlines the legal system in a way that prevents an incomprehensible amount of bureaucracy and taxpayer expense. As someone generally in favor of smaller government, and less people on the payroll of the common citizen, that strikes me as a good thing.

      Here are just a few examples:

      To protect families, our banking laws prohibit banks from exercising a common accelerated repayment clause known as “due on sale” when two legally wed people transfer real estate between them. This allows a family unit to better manage their portfolio, risk exposures, and estate planning. Absent the “one ring”, this protection would either go away or you’d have to ask bank call centers for permission and exemptions any time you wanted to rearrange your balance sheet, relying that someone in a cubical didn’t check the wrong box and create a liquidity crisis by demanding full repayment of your loan despite the property not really being sold.

      To protect families, we force employers to give family leave time to employees, without penalty, in the event of a medical emergency for the person they have designated as their legal spouse. Absent the quick “one ring”, employers would have to try and measure the depth of devotion an employee on a request-by-request basis, leading to a lot of hostility, abuse, and lawsuits. What if Johnny down in the loading dock has a new girlfriend every month and uses them as an excuse to get off work without losing his job? It’s a lot harder to pull off since dissolving a marriage and replacing the husband or wife is much more difficult.

      To protect families, the legal spouse of a man or woman killed by violent crime might be entitled to survivor benefits from certain funds. Absent the “one ring”, are the claims agents supposed to make a subjective estimation of the level of devotion between a given couple? What if they deny the claim? How many more lawsuits are going to be filed then? How many more judges, clerks, lawyers, and administration staff are going to be necessary to handle the higher level of paperwork flowing through the system?

      What if your significant other is hit and killed by a drunk driver? As the legal spouse, you can sue the driver’s for a loss of consortium as you’ve been deprived of intimacy that no one can repair. Without legal husband and wife designations recognized by the government, who would be permitted to claim such a tort? Should judges and juries be required to sort out the relative damage to a two-week old relationship versus a fifty-year marriage?

      What about stalking laws? If someone is stalking your legal spouse, you can seek protection from the courts in ways not possible if they were merely a coworker or friend. Absent the “one ring”, is the judge supposed to now expand his or her case work to look at every aspect of your relationship to determine if you are close enough to get these protections? How many more judges are we going to have to hire across the entire system to accommodate the work?

      What about improved cabins built on certain pieces of real estate subsequently acquired by the government? Water rights? Mineral rights? Presumed paternity? The right to co-adopt? The need to obtain a waiver on IRA contributions for the protection of the significant other? Everywhere you turn, we, as a people, have used the “one ring” rule to make the system exponentially more efficient than it otherwise would have been. It goes on, and on, and on, and on, for something like 1,138 different statutes under the law [PDF] in areas people don’t even consider. And that’s just Federal, not state and local.

      When I hear someone say, “Let’s stop the government from recognizing civil marriage” what I hear is, “Oh boy, I’d love the bloat the size of the government even more, spend even more taxpayer money on public official salaries and benefits, have an even less efficient bureaucracy, have to beg countless corporations or employers for exemptions that I can now use without thinking about it, all because I don’t like the emotional connotation of the word being used in a secular context.” It does not strike me as well-thought-out plan once you’ve looked at how we, as a civilization, use this legal designation in the way Disneyland and Walt Disney World use the Fast Pass system to better handle park crowds. It makes everything easier, government smaller, and saves countless sums of money. Why would we want to change it? It’s a terrible trade-off.

      • Joshua

        You both make several great points and I agree that the system we have built on the back of monogamous marriage is very efficient. There are several advantages that to the system. The question is whether the government should enforce relational norms for the sake of efficiency, and if so then to what extent. What if legalizing gay marriage somehow created a huge inefficiency in the system? Would that be a valid argument for denying these people the right to structure their lives how they see fit? I wouldn’t think so. Why should this argument apply to people wanting to structure their lives in other ways?

        • The question is whether the government should enforce relational norms for the sake of efficiency, and if so then to what extent. What if legalizing gay marriage somehow created a huge inefficiency in the system? Would that be a valid argument for denying these people the right to structure their lives how they see fit?

          Under the constitutional system we have here in the United States, and the legal framework that we’ve used for the past (going on few) centuries, the answer to the question is unequivocally, “Yes”.

          If it could have been proven in these 50+ court cases that marriage equality for gays exacted some sort of society-wide negative that was more important than the restriction of freedom, it would have been permissible for the bans to remain in place for the same reason we place restrictions on freedom of speech (e.g., you can’t yell “fire” in a crowded theater unless there really is a fire). In practically every one of those court cases, the judges gave those in support of the bans to call expert witnesses, and submit expert testimony, to support their point for precisely this reason.

          In every case, the best reason they could come up with was some derivation of “We don’t like gays” or “Our religion teaches being gay is a sin”, which is all but worthless in a court of law as you have to demonstrate some harm, some intelligent, clear fact-based reason for your behavior. Had the pro-traditional marriage side been able to actually articulate some sort – any sort – of rational basis for their animus, the gender limitations could have rightfully stayed in place. (They didn’t because they couldn’t. If you want an example of one of the most withering critiques of the stupidity of their arguments, listen to the audio of them being grilled by conservative, Republican judge Richard Posner, who tears apart the complete lack of logic or consistency in their assertions that somehow banning gays from the institution will accomplish any of the things they claim it will accomplish).

          The exact same test does, and will, apply to polygamy. That is the way the American legal system is structured and that is the way the court system determines which laws can be struck down or upheld under the three levels of scrutiny used in constitutional challenges. It is a balancing act between the individual rights of the parties involved and the rights of everyone else in civilization.

        • Joshua

          That’s an interesting response, not what I expected. I want to disagree with you, but I’m not sure how to do that. This probably means that I have some sort of flaw or shortcoming in my thought process. I need to think about this for a bit. Thanks.

        • Joshua

          After rereading your article and some of the other comments, and mulling it over for a few hours I think that you’re probably right about this issue. Something in my core makes me react whenever I’m confronted with an example of an individual or individuals being being coerced or suppressed by a majority in any way. While that is still true in this case it seems that there probably wouldn’t be much left of our orderly society without some level of restriction or suppression on family formation. Thanks for taking the time to respond in detail, I’m consistently amazed at the level of thoroughness you bring to these topics.

  • Diana

    It seems to me that the advent of birth control has fundamentally altered the biological relationship between men and women. This may (I’m not sure) have bearing on the question of whether hypergamy is the inevitable result of polygamy.

    • Brendan

      I’d have to disagree. Birth control freed women from the chains of their reproductive cycle which is a bit of an evolutionary cheat code which allows the accumulation of resources until a woman is ready to have children if she desires. Biologically, our relationships are still the same, except that children don’t always immediately follow marriage. How that creates conditions for polygamy is not clear to me.

      • Diana

        Reproduction is a huge biological part of our relationships! I behave wildly differently in my sexual relationships from my ancestors because I have control over my reproduction. Maybe I just haven’t researched the issue enough, but I don’t see why allowing polygamous marriages would necessarily result in fewer men marrying more women in a society where (1) reproduction is a choice and (2) neither sex is subservient to the other. I don’t see women who want to propagate their genes being any less picky than men who want to propagate their genes – why would they put up with their husband having multiple wives unless they wanted to? If the issue is that fewer men would tolerate the possibility that the child their wife is bearing is not theirs, then why would more women tolerate the certainty that the child their husband has fathered is not theirs? Birth control didn’t just free women – it played a part in freeing society from its fixation on reproduction. More babies is not automatically better – in fact, it’s worse, because it divides resources between children who are all likely to survive – and now we can limit how many babies are born. The logic that states that a marriage with more baby-growers is somehow more inevitable than one with more baby-seeders doesn’t seem relevant.

        The way Joshua is portraying polygamy in this article surprised me, because my assumption when anyone talks about legalizing polygamy is a relationship where three or more people all want to be married to each other – A marries B, A marries C, and B marries C. In our society, A marrying B and C (while B and C are not consentingly married to one another) would be repugnant.

        • Diana

          In addition, just about every comment I read assumes a “one man multiple women” or “one woman multiple men” model – why on earth would a “multiple men multiple women” model not emerge in our current cultural climate?

        • There has been (and is on-going) an extensive discussion of this very point elsewhere in the comment thread if you want to check it out and take part in the discussion =)

  • Scott McCarthy

    All the divorce and marital property objections overlook a very, very simple solution. Write a law that says, in effect, “no marriage shall be valid if a party to it is not married to all persons that their spouse is married to.”

    Monogamy? Well, if you are married to your wife, and your wife is married to you, then check.
    Polygamy? Person A is currently married to Person B, but wishes also to marry Person C. Persons A and C cannot marry unless Person C also (simultaneously) marries Person B. [With no laws against same-sex marriage anymore, there should be no issue here.]
    You could extrapolate it to a woman with 100 husbands marrying a man with 100 wives. Still works. And is an economic windfall for attorneys specializing in prenuptial agreements and justices of the peace.

    But I’m sad that you have glossed-over the already low marriage rates, Joshua. Poor young men are already not getting married, and it’s got nothing to do with polygamy. Women currently have higher rates of educational achievement than do men – I really don’t understand why you assume the male bread-winner model in your objections (and,. perhaps consequently, assume so strongly that polygany would dominate polyandry).

    It seems rational to expect that the bread-winning gender would attract multiple mates of the non-bread-winning gender. As women start to dominate the skilled labor market, one would assume that polyandry would become increasingly common (using your own arguments), should polygamy become legal.

    Personally, I’d like to see the 8.13% of the population that actually controls our government (see: http://www.joshuakennon.com/the-supreme-court-effectively-legalizes-same-sex-marriage-at-the-federal-level-and-strikes-down-californias-marriage-ban/#comment-944938534 ) pass a constitutional amendment prohibiting government from involving itself in marriages in any way (à la Mike Turner of Oklahoma – see: http://abovethelaw.com/tag/rep-mike-turner/ ), but that’s probably a bit unlikely.

  • Jack Scheible

    Your primary objections to legalizing polygamy is that it would make a hash of current laws. In short, because the laws interfere with marriage, you favor laws interfering with marriage.

    Rather, we should get the government out of the marriage business completely. The government should neither sanction nor prohibit marriages. The biggest problem with governments’ sanctioning of same-sex marriage (actually the POINT of wanting such sanction) is primarily the use of government power to force people to respect a marriage they think is not respectable.

    A caterer should be allowed to refuse service to a same-sex couple or to a couple getting a second marriage. Don’t like it? Get another caterer. An employer should have the right to refuse spousal benefits to same-sex couples or to re-married couples. It’s HIS money. Don’t like it? Get another job, or start a competing business.

    If a woman wants to marry a man who is already married, who are you to tell her she can’t? You would force her to select someone with lesser qualities, because the higher-quality man was already taken. Who are you to force her to have inferior children?

    • No, absolutely not. My primary objection is the overwhelming historical evidence that it eventually leads to all sorts of social ills for society, including increased rates of violence, rape, assault, and other crime as the mathematics supply and demand create a hopeless situation for a large percentage of the population. I’m too cynical, and believe too much in historical evidence, to think this time is different.

      The reference to the current tax laws are an example of a so-called rational basis that would satisfy the lowest level of scrutiny given that the courts are extremely unlikely to consider those who engage in polygamy to be a “suspect class” entitled to heightened scrutiny. Under that constitutional test, an objection doesn’t have to be foolproof or even particularly wise.

      As for the government getting out of the marriage business, I’m writing back to someone else on that topic right now so I’ll keep it short. I think it is woefully naive, entirely emotional rather than rational, and a recipe for a Kafkaesque nightmare of government bureaucracy, red tape, and lawsuits. A simple analysis of such a scenario shows that it will inevitable lead to a larger not smaller government as the 1,400 rights, responsibilities, and protections extended to legal family units under the law are streamlined through the existence of a marriage certificate. The problems would be incredible, ranging from immigration to the inheritance of certain mineral and water rights; laws that the average citizen completely ignores and that, if they didn’t exist, would end up in a court system many, many times its current size with far more judges and far more paperwork.

      As for public accommodation laws, I’ve talked about them enough in the past to give my opinion on them. You can look them up easily.

      Regarding your final question, I’ve left the answer in plain sight. If you have to ask, you haven’t thought hard enough about it.

      • Jack Scheible

        In which case, I am sure you will agree that businesses should be forced to accommodate those who chose to exercise their Second Amendment rights by carrying openly?

        • Yes. Of course I would. I think the right to bear arms is a fundamental human right going to the core of the right to self-protection to the point that, when in doubt, I prefer to give broad deference to the second amendment.

          As a matter of fact, on the same topic, I’d go so far as to say states should be required to recognize gun permits issued by other states under the Full Faith & Credit Clause of the United States Constitution just as they do marriage licenses or a driver’s license. Whether or not one likes guns, the idea that they should somehow be immune in this one area strikes me as both historically absurd and intellectually dishonest. I think if you’re going to tell Mississippi it has to recognize a marriage license from New York, you can tell New York it has to recognize a gun license from Mississippi.

          To be fair, I do understand the temptation of the counterargument that private property rights are also constitutional rights that do not necessarily trigger the same concerns as public accommodation if you treat everyone equally; e.g., “You cannot step foot on my property unless you agree to disarm yourself” since the rule applies equally to all people, and you’re not singling out a single part of the market for discrimination by saying only white men, or 65-and-older people, or Christians have to disarm. That one is a little hard for me to get around because there is no comparable disutility as everyone has the exact same opportunities and can then make a choice as to whether or not they want to give business to the company making such a demand, making it an imperfect comparison.

          Where I think that counterargument falls apart, and the reason I ultimately reject it, is that it is not always possible to give your custom to another establishment. Imagine you are driving in a rainstorm in the middle of the night and have a conceal and carry permit. You pull over at the only available hotel and rent a room. They see the gun and try to deny you the room. You are exercising your constitutional right, you have nowhere else to go, and the idea you should be thrown out into the storm simply because they don’t like how you’ve chosen to exercise that constitutional right strikes me as both abhorrent and egregious.

          It’s such cases that lead me to conclude, in situations involving businesses open to the general public, discrimination against gun owners should be just as inexcusable when operating in the public sphere as discrimination against blacks, or gays, or women, or Republicans, or Methodists, or whatever other group a merchant or proprietor may dislike.

        • Jack Scheible

          At least you are consistent. Mine runs the other way, though. I believe that one’s rights end at another’s property. You do not have free speech rights in or on another person’s property. Neither do you have the right to bear arms on another’s property. Similarly, the owner or proprietor can refuse service to anyone for any reason, or for no reason at all.

          Freedom also means the freedom to be an 370H$$@.

    • Brendan

      While there is some merit for selfishness between human beings, we don’t need to completely abandon the system of checks on human folly we have developed over the past few centuries in regards to marriage or business. I’m not sure what your impression has been over time, but legally defining marriage as a contract between two people appears to convey the right balance of individual freedoms whilst benefiting society as a whole. The libertarian ideal that selfishness is the only real motivator and should therefore be encouraged, completely overlooks the fact that some human behaviors need no further encouragement (racism, sexism, bigotry); they’re quite strong enough on their own.

  • That’s a rather elegant solution to some of the rational basis objection, actually. It still wouldn’t solve the argument that the societal ills are inevitable based upon past evidence but as for the non-equitable material harm that could come to a non-consenting spouse who was having his or her marital property taken, it would work. I like it.

    It also wouldn’t solve certain other aspects of civil law (but again, it’s at least a start). For example, if the husband were in a car accident and dying, and three wives come in all having medical proxy power under the law, who gets to make the decision? I suppose you could write a seniority clause into the law so the first wife had the highest level of authority but that seems to be somewhat sub-optimal. Also, on an entirely personal note, I think someone would have to be a moron to enter into multiple marriages under such (as you modified here) terms because a spouse has the authority to do all sorts of things in certain states that can get you in trouble or put you on the hook legally, including taking on unlimited liabilities in the form of general partnership exposure, taking on marital debts without your knowledge, having a say in the education and religious indoctrination of your children, etc. As in engineering, the more breakpoints you add, the greater the opportunity for system failure. Each additional spouse would be another breakpoint.

    Were polyandry to become more common due to changes in society, a notion of which I am highly suspect because I don’t think certain base evolutionary traits lend themselves to such an outcome (e.g., one example: A woman with ten husbands can still only get pregnant once and carry one child at a time. Most men want kids and are not going to sit around caring for a female, no matter how rich, carrying another man’s baby. It’s too engrained the DNA for too large a percentage of the population), the societal ills could still be considerable on the flip side as you now had poor women who were disproportionately harmed by the arrangement.

    I’m working on a response to someone else right now about the idea the government should get out of marriage. I think it’s an emotional, rather than rational, reaction because civil marriage – legal household formation – is a mechanism to streamline the government and court systems. The more than one thousand rights, responsibilities, obligations, and protections that we tie to it in law would all require separate paperwork or court cases to solve in the absence of allowing a marriage certificate to trump everything else.

    For example, banking regulations prohibit banks from triggering a common accelerated repayment clause – “due on sale” – in the event a real estate property is transferred to a person’s husband or wife. That way, for estate planning reasons, risk management reasons, or whatever other personal needs they have, they can rearrange their balance sheet without having their financing pulled and, potentially, be thrown into bankruptcy court. Take away civil marriage and that now has to be something solved by individual paperwork filings, or court cases.

    What about disabled war veterans? If we take away widow or widower pensions because the government doesn’t recognize the relationship, are we, as a society, really going to tell some 70 year old woman she has to get thrown out of her house and eat cat food because her husband didn’t file the paperwork making her the heir to his pension? We don’t have to worry about that now because the marriage certificate does most of the heavy lifting.

    The Government Accountability Office has archived the list of statutes that use marriage certificates as a reference point. Take away the civil recognition of marriage and every one of those items becomes a lawsuit, a piece of paperwork, one more filing with one more bureaucracy. I think it’s madness. You’d end up with a government far larger not smaller, including greater taxpayer expense.

    (Glossing over the already low marriage rates, which you and I have discussed in-depth in past, was a function of readability. The point at which the word count crossed 5,000, I figured it was time to wrap it up. If anything, I’d say that by correctly identifying low marriage rates as a problem for society now, causing a lot of ills and demographic problems, you strengthen, rather than weaken, the idea that polygamy would be bad because it could only exacerbate the situation by definition.)

    • Scott McCarthy

      I get readability. Fair enough. So long as it was considered and not excluded because you perceived it as a potential weakness, then you’re still being intellectually honest, which I respect.

      Starting with the end first, I take the other interpretation of low marriage rates, though. The re-working of the legal framework to make civil marriage less important moving forward is looking increasingly like a sunk cost. So if we’re going to have to do it anyhow, why not go all the way and make it equitable for everyone, regardless of their situation (at least to the extent possible)? Genealogical records are going to have to rely less and less on marriage licenses moving forward anyhow. You can still compile ancestry records from birth certificates (as an example).

      If you don’t want people to use polygamy to achieve certain tax savings? Then get rid of the link between marital status and tax burden! The reason marriage is referenced so often is because, traditionally, doing so has been convenient. Given the decreasing marriage rate, the benefit of tying everything to marriage decreases. So tie it to something that’s more objective and/or relevant.

      As far as there being some inconveniences created with the addition of a third (or subsequent) spouse? The government disincentives any number of things by creating red tape. Don’t want to pay one red cent more than you owe in taxes? OK, go ahead and itemize. Want doing your taxes to be easy? Take the standard deduction instead. So long as you allow something, red tape tends to get upheld. Firearm ownership is an enumerated right, but you still have to fill out all sorts of paperwork, you can only buy from licensed dealers who do background checks, you have to pay excise tax on the gun and the ammunition, you can’t take delivery the day you make the purchase, certain models get arbitrarily banned, depending on what sort of firearm you want to buy, you may need to get your local Sheriff to sign a permission slip for you to have it, then send that form along with a check for $200 to the ATF, who will take 6-18 months to review your application, etc., etc., etc. That’s all been upheld. So if you have to take on marginal risk and/or expense to derive a (perceived or actual) marginal benefit, that’s a decision which is up to you.

      The law doesn’t have to determine which spouse outranks which. If you keep government involved in marriage, then make the marriage license a 20 pages long instead of 2 pages, and have it include an advance health care directive, a basic will, and whatever else you need. (And make it relatively simple to amend, obviously – perhaps include some sort of veto or notification requirement, or something.) Frankly, I wouldn’t be opposed to doing this regardless of whether or not it’s connected with polygamy, just as a public service to people who can’t afford basic estate planning.

      There are equal protection, freedom of association, and religious liberty arguments to be made in favor of legalizing polygamy. The arguments against always seem to start with (and rely upon) a prima facia assumption that polygany would run rampant and polyandry would be trivially rare. You linked to an ABA article that didn’t even question this assumption before citing 2 different UN bodies that only even bothered to consider polygany, declaring all polygamy discriminatory against women! It’s like the only forms of polygamy ever conceived are either a poor, uneducated pimp of a man having a harem of high-earning wives, or a rich man having a harem of poor wives. All of this, by the way, ignores assortative mating. All of this assumes women approach marrying as a predominately economic choice. All of this assumes men approach marrying as a predominately reproductive decision. Maybe I’m wrong, but personally I cannot imagine a situation where legalizing polygamy would make it terribly popular on a societal level. This is the most independent generation of women that the world has ever seen; I can’t imagine any significant number of them (or their future daughters) would want to engage in polygany to begin with.

      And, this is more of an aside than relevant to the topic at hand, but due on sale clauses only mean that the bank has the right to demand payment; it doesn’t mean they’re actually inclined to invoke that right. There’s a whole sub-set of real estate that does “subject to” financing, where you sell a property you own to someone else, and you continue to pay your mortgage, while receiving mortgage payments yourself from the new buyer. If you’re not familiar with it, I think you might find it interesting (though not necessarily useful).

      • I think the reason the assumption holds that you’d see traditional one-man-many-women pairings, and why it is taken for granted as a matter-of-course, is because the greatest predictor of future human behavior is past human behavior. The last major survey of polygamy of which I am aware was a 1998 count by the University of Wisconsin that examined 1,231 societies finding that 186 were monogamous (which happen to be the richest, most powerful, most advanced nations on the whole; something that things like the University of British Columbia study indicate is not an accident), 453 had occasionally polygyny, 588 had common polygyny, and 4 had polyandry.

        Four. Throughout all of human history, only 4 out of 1,231 civilizations. Why? There are biological, psychological, and economic forces that align to make it so for the same reason that capitalism does a better job of increasing standards of living than communism: Human nature. We can say, “Oh women are different now” but I don’t buy it. When I see a distribution number like that, it tells me there are too many forces and force multipliers working toward a one-man-many-women setup that tends to lead to a winner-take-all situation with the winners being predominately rich men, part of which is tied to the relative genetic compounding rates of subsequent generations due to the way humans reproduce (one man can sire 100+ kids in a lifetime with relative ease whereas a female breadwinner couldn’t handle more than 12 to 20 and doing so would likely cause her source of income to evaporate). Even if the well-to-do created families of multiple adults and a handful of children, they’d quickly be made a minority as their relative population counts fell further behind their more rabbit-like contemporaries.

        if you are arguing that is not the case, I think the burden falls on that assertion to explain a reason that must be pretty damn convincing. (Not that it would matter. Even if the one-woman-many-men model did come into effect, you’d still get many of the ills, just on the flip side. You’d have a lot of women who were effectively driven out of the mate market, which is equally intolerable.)

        As for de-linking the incentives from marriage, I disagree for one reason: I don’t think we should protect all levels of society equally, I think we should offer equality of opportunity for protection to all levels of society while maintaining an incentive system that leads to the best possible system-wide outcomes. Unequal individual outcomes don’t bother me provided that base condition of fairness is met.

        In other words, it’s not exactly true that the rich benefit most from marriage so much as it is marriage itself creates all sorts of benefits and the rich are more likely to take advantage of them. If you could solve the marriage rates in the lower classes, they’d accrue all of those benefits right now, as well. The fact they are choosing not to take advantage of them doesn’t matter since the opportunity is still available should they opt to exercise it. I think that distinction is a vital one.

        We, as a civilization, know legal monogamy creates all sorts of benefits, including lower dependency on government welfare, longer life expectancy, less illness, less addiction, etc., etc., without any of the drawbacks of the alternatives. Right now, we offer every citizen a golden ticket that allows them to hitch their proverbial wagon to someone else. Why shouldn’t we use a carrot to try and modify behavior to get people into these pairs? Why should we take away all of these advantages, which work so well, because some people want more than one golden ticket or haven’t used their existing golden ticket and feel disadvantaged because they aren’t reaping the dividends it would if they had?

        • Matt

          Do you have any opinions on Singapore’s use of housing as a social policy tool?

          I’m not sure about any other countries that do this, but public housing is essentially tied to a family in Singapore for social policy reasons. Only in the last decade have single people been allowed to purchase a flat, but only after they are over 35 years old. These apartments are also in less desirable areas of town. I’m not sure where to draw the line between acceptable and unacceptable use of social policy and legal benefits for marriage, but something about Singapore’s system makes me uncomfortable. I’m not sure that treating single people essentially as second class citizens is beneficial for the society as a whole.

          Of course, attitudes toward marriage in Asia seem to be much different from attitudes here. Specifically, the concept of getting married for love seems to be much more prevalent here than in Asian societies, where I hear numerous stories from people that suggest more economic/social reasons for marriage. If people get married not for love, but in order to be able to purchase an apartment, is that really a good thing for society? In the case of Singapore, we aren’t talking about struggling singles who are on economically shaky foundations. In many cases these are relatively successful people who just haven’t been able to find a spouse yet.

        • I do not (have an opinion) because I’m not familiar enough with its consequences to have one at present. You just added something fascinating to my reading list, though! I can’t wait to look into this!!!

        • Scott McCarthy

          You seem to have overlooked certain advances in the biological sciences (namely surrogacy) that have significantly increased the number of children a woman can have today. Sure, she may only be able to get pregnant a dozen or two times in her life, but (scientifically), it is no longer impossible for a woman to be the biological mother to hundreds of children. Now, based on other comments you have made here over the past couple of years, I’m confident you know more about surrogacy than I do, but am I off base?

          This is also the first time in the history of the world (far as I can tell) that women have superrior earning power to men. Before you and I die, women will make up the majority of the skilled workforce. I can see no justification to presume the dominance of the male bread-winner model moving forward. Frankly, that would be economically suboptimal.

          I still think that low current marriage rates refute the assumption that marriage is a predominantly economic decision, though. People are foregoing economic benefits to remain single. And high earners get wed despite the marriage penalty. I’m not sure why you expect legalization of polygamy to turn any significant number of people into homo economicus in this regard. As for wanting to encourage monogamous marriage, obviously the current incentives are insufficient. So either society will have to offer marginal benefits, or accept that maybe some of the current “incentives” represent an independent societal good worth decoupling from a marriage license. As an example, is there really a case to be made that health care should be tied to your spouse? (I recall that both of us favor some form of single payer, but in the interim.)

        • Gilvus

          Scott, I’m a little late to the discussion but I don’t think Joshua elaborated much on the biological aspect of his argument, so I’ll interject here if you’re interested.

          I don’t think the issue here has to do with how current advances in technology (i.e. surrogacy and birth control) have significantly leveled the playing field for women in terms of career advancement and socioeconomic advancement (which it has, and it’s great). The issue is that human instincts are mired in the past. The urge to procreate and pair-bond is a fundamental instinct as primal and immutable as the urge to eat when hungry, sleep when drowsy, and drink when thirsty. Like it or not, reproductive instincts will drive a huge portion of marriage decisions; laws and regulations are there to guide marriage decisions by coercion while incentives and reproductive technologies guide decisions by dangling a carrot. But they’re only there to influence how we follow fundamental human instincts – those instincts are effectively unchanged from the days we hunted animals with clubs.

          What it comes down to is that men and women evolved different reproductive strategies to select their mates – men maximize their ability to propagate their genes by devoting most of their time to one woman while having flings with various other women, thus seeding “genetic insurance policies.” This mitigates his risk in many ways: advantageous adaptations, removal of unexpressed genetic disorders from his lineage, or simply if he and his “main” family was killed in a cataclysmic event like war or natural disaster – his “insurance policy” will have advantages he does not. In other words, natural selection rewards him for being 90% monogamous, 10% polygamous (I took liberty with the numbers, but you get my point).

          In contrast, women maximize their ability to propagate their genes by acquiring the genes of the most powerful, successful man in her peer group (i.e. having sex with him) but keeping a less-successful man as the long-term partner. This is because the competition for resources and attention from a mate is a zero-sum game – if she can’t hold the attention of the powerful man, the next-best thing she could do for her genetic lineage is to have the successful man’s baby while keeping a more attentive, less successful mate around. This seems like an outrageous claim, but there is hard, empirical evidence supporting the claim. There’s even a snazzy name for it, called the “Sexy Son Hypothesis.”

          This is the reason why I agree with Joshua’s assessment that the legalization of polygamy would heavily trend toward polygyny over polyandry, even if women become the breadwinners by a significant margin, and why his quotation of 4 out of 1,231 polyandrous societies didn’t surprise me at all. The instincts are hardwired deep into our brains.

  • Arceris

    I think you may be conflating heightened (or intermediate) scrutiny with strict scrutiny. While it has no practical effect on your argument, you say “it may take an exceptionally good reason that can survive intense examination, especially if the group targeted has a history of being oppressed (heightened scrutiny).” My constitutional law is a bit rusty, but the definition you’re providing appears to actually be that for strict scrutiny. Intermediate scrutiny is a lower level that allows some divisions to be drawn between individuals (for instance, males and females), where there are indeed recognizable practical differences between the groups. I say that this has no practical effect on your argument because I believe you’ve made a sufficient case under either level of scrutiny.

    • You’re right it should have read strict in the final draft, thank for catching that. I’m out shoppiing for a wedding gift and now have to figure out how to edit that from an phone, haha! I have no idea how I’m going to do it but here’s hoping I don’t wipe out the post when I try.

  • SixthCircuitBuffoonery

    I don’t think Sutton is “faking” it. This is not the first time he has advocated judicial restraint, and the language is actually quite similar to Scalia’s dissent in Windsor, with echoes of how resolving this issue in the courts rob “good people from both sides” from a “fair fight.” It is actually, in substance, not very different from what Ginsburg has said with regard to Roe v. Wade as well, which is that winning in the courts actually set back the abortion rights movement and was not in retrospect a particularly wise move. It’s just that because she’s a liberal judge, the media isn’t suspicious of comments like that.

    I think the most interesting question is not whether the Supreme Court will establish same-sex marriage as a right, but the justification they are going to use to do it. It’s a more complex iteration of O’Connor’s Equal Protection concurrence vs. Kennedy’s substantive majority opinion in Lawrence v. Texas. Is the ban on same-sex marriage a problem because it constitutes sex-based discrimination, and/or unfairly penalizes homosexual persons as a class, or because there is some fundamental right to marry?

    I haven’t thought too much about polygamy/polygyny, but I’m surprised that there aren’t at all any positive historical or anthropological examples. I agree that it probably doesn’t work in most modern societies, and I agree that there are good reasons to distinguish between same-sex marriage and polygamous marriages. But if I were to research this more, I’d also look at what a tradition like sharia law has to say on the matter, because it incorporates norms and expectations that might be quite different from that assumed by citizens of a Western-style democracy.

  • Matt

    You sort of alluded to it here, but the inequality caused within the family itself could get very brutal. Its seems that polygamy tends to cause power struggles among the females. There is always going to be a “favorite” wife, and hierarchy eventually becomes formally codified into some sort of “pecking order”, to borrow a term from biology. Even without the solid legal and economic consequences you mentioned, I think the hierarchy and oppression that comes internally would be reason enough to prohibit polygamy. You are basically inviting politics, intrigue, a sort of Lord Of The Flies scenario into the family dynamic even more so than it can already be. People in monogamous relationships already exhibit jealousy when their partner cheats on them, and I highly doubt the institutionalization of polygamy will do anything to change this.

    • innerscorecard

      The two most striking historical and literary examples which for me showed the heart of the matter were:

      1. The story of what Empress Lu did to Concubine Qi during the Han Dynasty:

      http://en.wikipedia.org/wiki/Concubine_Qi (read the italicized quote in the middle of the page, warning, very disturbing and gruesome);

      2. A Billion Eves by Robert Reed:

      http://will.tip.dhappy.org/blog/Compression%20Trees/…/book/by/Robert%20Reed/A%20Billion%20Eves/Robert%20Reed%20-%20A%20Billion%20Eves.html

  • Connelly Barnes

    My opinion is all behaviors both economic and personal by default should be permitted, and this should be codified into legislation and judicial precedent, unless a behavior can be scientifically demonstrated to cause severe social harm. Politicians and the public’s opinions are typically both unstable and misinformed so I think just like drug companies are required to prove their drugs have efficacy, politicians and voters should be required to prove by citing science in leading journals to pass any law that restricts anyone’s behavior.

    Now polygyny has been demonstrated historically to be quite harmful. I am no expert but I think the modern polygamy movement is quite different than that, and the parallels are imperfect between historical societies that treated women quite badly and the modern liberal United States. Therefore by default I think no law should be passed to prohibit polygamy, on the basis of lack of harm demonstrated in the modern nation state. If some harm does subsequently happen, then by all means reverse course and pass laws to prohibit polygamy! But in the absence of clearly demonstrated harm, everything should be permissive.

    Also I disagree with thousands of statutes codifying marriage and the nuclear American family into law. I think they all should be replaced by a legal concept like power of attorney, but where you can specify different permission levels similar to Unix file permissions. Then the legal system could first of all respect everyone’s liberty to live as they want, including implicitly LGBT rights, and better accommodate people from other cultures like China where extended families are important. Also I think everyone should be treated as single for the tax code, because we should not tax someone more or less just because they got married.

    I may have some basic philosophical differences with others. I see that the whole point of a liberal laissez faire system is to permit people to do whatever they please with their very limited time on Earth, even if it inconveniences others, so long as it doesn’t cause a very significant damage to anyone’s life, liberty, or property. In my opinion, everyone has the right to become morbidly obese, consume as much sugar as they want, drive fast as long as they don’t actually harm anyone, drive without insurance, etc. The reason is if you require only the existence of a rational-sounding argument to prohibit by statute any behavior, then you will dramatically increase the bureaucratic and taxation level, and also prohibit people from achieving whatever their dream is in their very brief time on Earth. Whether the dream is driving fast sports cars, eating extremely unhealthy foods, having an unorthodox marriage arrangement, shooting guns, doing designer drugs, creating a very small auto insurance LLC to insure a few friends on the road, or any other behavior, I think having a respect of human beings requires that you permit them by default to pursue their dreams.

    The outcomes of such a philosophy are much messier and we can actually see them playing out in real time in the Bitcoin community. But on the upside I think such a philosophy offers much more potential for realizing peoples’ potential and dreams. For example I think a laissez faire philosophy in Bitcoin is great despite some frauds that have happened within the community, because it offers the potential for (1) giving banking services to the billions of people who do not have them, (2) programmable contracts, property, and currencies, (3) undermining politicians when they try to prohibit services.

    I support legislating behavior or services in say requiring basic education, preservation of wildlife in national parks, or say prohibiting discrimination, because there have been demonstrated harms that have been amply documented in our recent history when these no legislation is used to modify behavior.

    It is a kind of speculation, and/or moralizing to legislate behavior — economic or personal — when no egregious harm has been demonstrated. When this is allowed to proceed you get the current U.S. system where you have things like taxis that are so expensive that people avoid even using them (compare with China), no street food vendors (compare with China), extremely expensive medical doctors (compare with China), mandatory insurance, etc. All the bureaucracies keep compounding, and in the end people also can’t pursue their dreams. For example if you’re a musician and you just want to do LSD and play the guitar, that might be criminalized.

    • SixthCircuitBuffoonery

      I’m very sympathetic to the argument that we should try to decouple tax benefits from marital arrangements as a matter of principle. But from a practical perspective, marriage evolved as a way of bestowing automatic rights precisely in order to avoid the kind of fine-tuning that you’re speaking of. I doubt that most ordinary Americans are able or willing to negotiate discrete legal arrangements relating to power of attorney or medical directives on an ad hoc basis, and I think this would cause a great deal of confusion for all parties involved. What we seem to be moving toward now is a system where marriage so defined, bestows a certain set of rights protected by the states and the federal government, and within which individuals might modify in order to express their preferences (through prenups or postnups, to a certain extent). Those for whom existing marital arrangements fall too far from what they are envisioning could easily choose to opt out of that system altogether. They can still have a wedding, eat some wedding cake, and most importantly, have wedding sex.

      But I do agree that American society will probably evolve in the coming decades to take account of the fact that more people are single now (and will remain single) than at any point in American history. At this given moment, there are more singles than married couples. I think we passed that point a few years ago. Take Social Security payments for example. Why should we designate a spouse for joint benefits rather than just a beneficiary?

      As for the idea that people should be allowed to do anything as long as it doesn’t harm anyone else, the challenge has always been deciding what to do when the effects of that harm are tangible, reasonably expected, but decoupled in both time and space. Most of this harm isn’t egregious (as you put it), but that doesn’t mean that there isn’t a reasonable, statistical expectation of its realization. On its face, it is absurd to tell someone he cannot eat all the fast food he wants. After all, unlike smoking, none of those calories make their way into another person’s body. And this is why there are no laws saying as much. But after 10 years, 20 years and 30 years of this behavior, his share of the American health care system will almost certainly be much higher, and his personal choices will be burdensome to others. And this is why we have incentives and disincentives. I think it’s OK to tax the hell out of soda and subsidize olive oil. On the other hand, something like laws against prostitution often seem to be motivated by a misguided sense of morality. There shouldn’t be any trafficking, and everything should be consensual. But this idea that harm arises out of two parties agreeing to participate in sexual acts in return for money is absurd.

      I suppose from a personal perspective, the struggle that I have is reconciling my inclination toward “laissez-faire” style economics and social policy with my belief that left to their own devices, people in general have proven unable to make sound long-term decisions, with this inability having profound social costs.

      • Connelly Barnes

        @Sixth:

        So to be clear, I was proposing replacing statutes that refer to marriage with statutes that refer to “close family privileges,” “extended-family privileges,” etc. These would include such privileges such as medical visitations, mortgage law, and so forth. Then any number of people who mutually want to grant such privileges would sign a government paper to gain them. Revocation such as e.g. divorce might be more complicated because there might be mutual property or children.

        I am generally a fan of laissez-faire and markets but also sometimes progressive, i.e. I am not doctrinaire on that point.

        I think taxes can generally be lowered by privatizing services and by incentivizing people to be rational.

        For example, similar to the negative-income tax, I think that not everyone should be paid in retirement from Social Security, but only those who lack a minimal income. This would encourage the vast majority of rational people to use more effective private market investment, and therefore decrease taxes without any loss of utility for most people, and without causing suffering for those who end up penniless in retirement. If 80% of people don’t need to use Social Security (where presumably even in the safest private investments they should have a similar return to Social Security) and the remaining 20% have an unchanged bill, then you reduce most Americans’ tax bill by 10% (12.4% Social Security tax * 0.8). I think it’s certainly rational to want a 10% lower tax bill with no loss of utility by everyone.

        I am also of the opinion that some government services should stay public if they can demonstrate low cost, high quality, and not causing people too much loss of liberty. For example, many public Universities are good and fairly cost-effective. A few government services like the US PTO are profitable and are working pretty well. I also like public science funding although this might just be because I am a scientist — I am not whether I have a rational basis to defend it or not (Are the long-term productivity improvements, number of startups, and innovations due to science funding worth the relatively low cost of science, and the slight loss of liberty that ordinary taxpayers have to suffer? Our country would arguably suffer harm if we de-funded all science, but how much harm?).

        In most cases I don’t think peoples’ poor choices should impact others. For example if a number of people become obese and this drives up health care costs, then insurance companies should be permitted by legislation to place those costs entirely on the people who became obese. It is rational to do so, and they already do bill higher premiums to the obese.

        I don’t think it is necessary to “tax the hell out” of anything, because that will drive prices up even on people who are not causing an expense. I think it’s more effective to rationalize policy, and use incentives to cause a net lowering of cost and a net increase of quality.

        Another simple example is the Post Office. They devoted some effort to shutting down startups that just scan and shred mail, so you don’t have to deal with physical mail. This was because it competed with their revenue which was from advertisers. That is essentially the opposite direction of behavior as what a rational taxpayer would choose. It would be more effective to shut down the Post Office, save the tax revenue, and tell all citizens to use electronic alternatives. Maybe you could keep around a few legacy Post Office shops for those without access to electronics, which would download mail and print it out from whichever startups spring up to replace the Post Office. If some physical good really has to go through the post then you could just use a private company like Fed Ex, where the cost would be higher. But that’s fine because it is logical to disincentivize people from unnecessarily moving around dead trees just to communicate information.

  • Michael

    Weren’t some of the same arguments you are currently using, specifically that this would be “bad for society,” used to speak out against legalizing gay marriage (primarily because certain studies showed that it was harmful for raising kids and traditional marriage – https://www.spuc.org.uk/campaigns/ssmsub20130301)? Previously heterosexual couples claimed the line defining marriage stopped with them and now it seems that homosexual couples are now claiming that the line stops with them.

    Here is where I see the greatest weakness in the argument – When marriage is redefined on the basis of love, (you are free to love and marry whomever you please) which is what the LGBT community championed, it makes logical sense that this extends beyond two people if desired. Will there be issues that will have to be dealt with legally and economically? Sure. But making these changes will be required (as they were throughout our country’s history with women, blacks, and other minorities) if marriage is defined on the basis of love.

    • Your position is, respectfully, a gross misunderstanding of the legal arguments used to achieve marriage equality under the United States Constitution. It’s as if (again, I mean this with the utmost respect and not in any way negatively) you haven’t read a single one of the decisions or cared to understand why the courts sided with those who sought destruction of the bans against same-gendered households.

      While the headline might have been “love is enough”, that’s not what wins court cases under our constitutional system of government. That was the PR campaign and made for some nice bumper stickers but love is not now, nor has it ever been, enough to strike down a marriage ban.

      Had the proponents of the marriage bans been able to demonstrate harm by striking down the gender restrictions, they would have won. They couldn’t. They were allowed to submit evidence and studies, which were evaluated by experts on the court and, in some cases, intensely examined.

      For example, the study to which you tried to link (it went to a 404 error but I’ve seen it before) was submitted to multiple courts for consideration. Had its findings been accurate, any of those courts could have used it as a justification to uphold marriage bans (one outlier in the 3 cases out of 50-or-so that voted against the equality side did mention it). However, the researcher was so intellectually dishonest, and backed by a religious group trying to ban gays from marriage for doctrinal reasons, that not only did his own university department subject him to an ethics investigation if I recall correctly, they put out a public notice saying they absolutely reject the terrible science he used to arrive at a predetermined conclusion as it made them look like hack jobs for hire. Specifically, he took damaged children from broken heterosexual homes where the parents had beat, raped, or harmed their children. Then, whenever those kids happened to be assigned to gay couples in the foster care system, he counted them – and all of their behavioral problems – as being the gay household behavior, contrasting it with the “normal” straight households. He then threw the study together in time for a specific court deadline hoping nobody would dive into the data. Given the high profile nature of the constitutional battle, though, people did and it destroyed his academic reputation.

      To conflate that one thoroughly discredited, often derided (sometimes in the court decisions themselves), practically career-ending nonsense of a “study” – which did receive its day in court and was considered as part of many of the marriage decisions – with data going back thousands of years, intense, respected studies performed by a wide range of universities, across practically every continent, race, political environment, religion, culture, and government structure, detailing the negative side effects of polygamy and its ultimate devolution into oppression of the poor, greater crime rates, etc., is irrational. The weight of the evidence, and experts, was on the side of no material difference in parental outcome as a result of sexual orientation, which is why that study was found to have no merit in almost every case. That is not the case for polygamy. Different evidence leads to different outcome. You can’t just walk into court and say, “We love each other” and change the law. You have to prove the government’s prohibition is not only unjust but lacks any sort of merit.

      I think this is one of the reasons you see a lot of eye-rolling or out-of-hand dismissals from the pro-marriage equality side when polygamy comes up. It’s one of those things you hear mentioned that has no relationship to the questions involved, especially if the gay rights side ever secures a “suspect class” designation for sexual orientation, which may someday happen as it already has in one appellate decision.

      In other words, the personal motivation for gay couples to get married is love and devotion, but the legal justification for being entitled to it under the constitution of the United States has never depended on that. The courts mention it to try and move hearts but it’s not a necessary component of the argument making it non-analogous.

    • SixthCircuitBuffoonery

      I think these are good questions. And I think they arise because marriage has not historically evolved to serve one purpose, and so deciding what kind of arrangements fall under its umbrella don’t seem to serve up much internal consistency when you pick it apart. But let me try to play both sides of the argument here. (I’ve always been a little bicurious …)

      Would we have a problem if three men were to engage in a polygamous/group marriage? Or if three women were to engage in a polygamous marriage? I think gay marriage proponents should be intellectually honest in the way that they are applying the historical record. As Nancy Cott noted, marriage has not meant one thing throughout history, and a key tenet of the modern marriage equality movement is that looking at the fact that marriage has meant a partnership between a man (or men) and a woman (or women) obscures that it may have been distinguished by assumptions about race, property transfers and gendered roles. Similarly, there is little reason to believe that if polygamy/group marriage ever takes hold in the modern West in a big way (I doubt that it will) that it will follow a historical pattern when the underlying culture and vocabulary of love is so different.

      I think our discussion about polygamy in the coming years will become more nuanced, as we move away from binary gendered assumptions. When Catherine MacKinnon and Andrea Dworkin argued that sexual relations were often fundamentally coercive and that pornography was fundamentally oppressive, they did so out of the (misguided assumption) that men watch porn and women perform it. We now know this to be false. Pornhub’s survey of sexual preferences shows, in fact, that women are more likely to search for more extreme porn than men. “Gangbang,” “double penetration,” and “rough sex” and “bondage” make it into women’s top 16 search terms. They don’t appear in men’s top 16 (although gay male porn apparently ranks number 7 in men’s searches.) Similarly, the fact that many men and educated women prostitute themselves is now complicating discussions about sex-based discrimination in prostitution.

      I think it bears repeating that less than two decades ago, advocates of polygamy would probably have thought that gay persons would be natural allies, and that this has turned out not to be the case requires some analysis. Less than two decades ago, gay rights activists rejected attempts to co-opt marriage equality precisely because the idea that marriage was defined as an arrangement between just one man and one woman seemed irrelevant to many of their lived experiences. Gay communities have always had less of an aversion to open relationships and alternative structures. This is a part of their history that they have chosen not to emphasize for strategic reasons, but I think it bears repeating that gay people were until recently making the same arguments that anti-marriage equality advocates are now making. Although I don’t feel particularly strongly about polygamy in the modern West, I don’t think the historical record can be applied unproblematically to what a polygamous or group marriage would like in a place like the United States. Should we deny three educated men who agree to marry each other simultaneously a marriage license?

      But let me show my hand now, and reveal what I do think and feel strongly about. I believe that feints to polygamy are more often than not motivated by either ignorance or homophobia. It stems from an attempt to invoke the language of disgust because of a failure to reach more rational reasons for why same-sex marriage should be banned. This is why we commonly hear people saying that if we allow gay people to marry now, tomorrow it will be incest, bestiality, polygamy, and so on. The reason why this argument is so popular is that its effectiveness stems from emotion. Its mere invocation wins over some people, since many will be unwilling to rationally consider if polygamy should be allowed, or put their minds to teasing apart what makes incestuous love different from marital love.

      The argument you are making finds its strongest articulation in Robert George, Ryan Anderson, and Sherif Girgis, which I recommend if you’d like to explore your own conservative position in greater depth. For all their high falutin’ expositions, a non-religiously grounded conception of traditional marriage comes down to the assumption that men and women bring different things to a relationship. The Catholic Church calls this “sexual and affective complementarity.” The conservative press will say that “children need a father and mother.” This position is hard to develop, because while it is biologically grounded, it is not persuasive socially. There are some women who are more nurturing, and plenty who are not. There are many fathers who fit into our conceptions of what makes fathers fathers, and others who do not. This is to say that we have historically crafted socially compelling images of what fathers do and mothers do that is now disintegrating, but for reasons that have little to do with the gay rights movement, and everything to do with the true equality that women have now caught up to (not fully, but more approximately.)

      This is why I think the Court should rule that discriminating against gay marriage is sex-based discrimination. The strongest (and only) substantive argument made by conservatives boils down to an assumption about gendered roles. I always wonder why the liberal press never pushes harder on this question. What can a father and a mother give a child that two fathers or two mothers cannot? The logic always seems so self-evident, but it is not.

      • Michael

        I appreciate both replies. Here are some thoughts on each:

        Joshua,

        1. I afraid you may have gotten tripped up by the study I referenced. The only reason I used that study was it was one that was used against gay marriage in numerous instances. My intent was to point out the fact that “studies” can be used on both sides on the issue to seek to justify one’s position (regardless of their perceived validity). All studies are somewhat flawed because all research flows out of preconceived notions and biased opinions. There is never an objective researcher on any issue and there is little research to demonstrate that society would be harmed by “three educated men who agree to marry each other simultaneously” as referenced by SixthCircuitBuffoonery. My point, therefore, was to say that it is problematic to state that two gay men may marry but three may not. Who gets to draw that line?

        2. I think you give judges too much credit. Once again, they bring their own preconceived notions and biased opinions to the bench. This is exactly why so much stock is put in who wins elections. Judges, on both sides of every issue, possess the power to legislate from the bench.

        SixthCircuitBuffoonery,

        1. I appreciate your understanding of what I had written. In my estimation the biggest question is “Who gets to decide whether or not polygamy should be legal?” I would imagine that those living in a polygamous relationship currently feel the same way that those living in a homosexual relationship did before it was legal.

        2. While I understand your last two paragraphs, I must respectfully disagree. I am a conservative Christian pastor (surprise!) and believe that marriage is not ultimately a state issue but a biblical institution reserved for a man and woman. So I would agree that the Bible is clear on the issue of gender roles and marriage (outlined in Genesis 1-2 and re-emphasized by Jesus in Matthew 19:4-5). I know we could debate this until the cows come home but I did want to put my cards on the table. I have a close relative who is married to his partner – I do not hate him. In fact we have a great relationship even though I disagree with him on this issue.

        I do believe that same sex marriage will be legalized in all 50 states in the next few years (current court cases are pushing for a national decision) which will pose a concern for pastors like myself. Currently, ordained pastors operate as agents of the state in regards to performing wedding ceremonies (that is why pastors say, “by the power vested in my by the state of __________, I pronounce you husband and wife”) which means, legally speaking, all pastors would be required to perform same-sex weddings if it is the law of the land. However, I do think pastors will be able to refuse to do such ceremonies and will likely be removed as agents of the state in this respect. As a result, couples would be able to have a pastor perform a ceremony but would be required to go to the courthouse to be officially married in the eyes of the state.

        • SixthCircuitBuffoonery

          Damn, I lost the reply I had typed out because either Disqus was down temporarily or it was not posted because I used the word “gangbang.” I can’t be bothered to type everything out again.

        • It wasn’t filtered SixthCircuitBuffoonery. I just checked and there is nothing being held in moderation so it looks like it was either the Disqus servers or a browser glitch (I’ve instinctively started to copy to the clipboard as I go to prevent it whenever responding).

          It’s a shame it was lost. Your responses have been a lot of fun to read and definitely among my favorite in terms of the way they are structured and reasoned as I’ve been lurking, watching everyone talk or work out the arguments.

          You might want to consider signing up for a Disqus account so you can keep all of your comment history or get notified of replies (though, on the downside, I won’t get the joy of seeing your bizarre fake email addresses; sorry about using up your lunch break today).

        • SixthCircuitBuffoonery

          Thanks Joshua! Yeah, it was probably just bad luck on my part. I usually just pop into your blog during breaks and dash off something, so I didn’t save anything, unfortunately. I’d love to connect with you at some point when work gets less crazy – I’ll email you!

          I’m actually a little embarrassed by the fake email address names. I honestly can’t remember what I wrote and I hope it wasn’t anything too outlandish. You’ve used up more lunch breaks than I can remember – that’s how good this blog is!

        • I think I understand your concern now, so let me get to the crux of your argument. You say:

          My point, therefore, was to say that it is problematic to state that two gay men may marry but three may not. Who gets to draw that line?

          But it’s not problematic if a person understands how the courts are structured or the burden of proof at trial. (Please note this is entirely limited to the United States as it only applies to the way decisions are made under our system of the government. If you’re from Canada or the United Kingdom or anywhere else, none of this applies since you’re operating under a different legal system.)

          To understand the reason the logic of your question doesn’t hold under our present constitutional system, and why so many people, especially among the elite, ridicule it or seem to not care about the concern, think of it like this: The courts did not decide that two men have a right to get married even if that is the practical effect.

          Rather, they looked at the state’s decision to restrict marriage license to people of the opposite gender and asked the state to provide a justification for that restriction and made them explain how the action of restricting marriage based on gender furthered that legitimate state cause.

          For example, Indiana comes in and says, “We restrict marriage based on the gender of the applicants because we want all kids to have a mom and a dad.” And then the judges say, “But prohibiting two people from getting married based on their gender doesn’t help further that cause because gay people aren’t going to go marry straight people, anymore, yet they’re still going to have kids. Single mothers aren’t more likely to want to get married because their gay neighbors can’t. So even if that were your goal, the ban doesn’t help you get any closer to your objective therefore it’s irrational. Give us another reason, any reason.”

          Then Indiana comes back and says, “We restrict marriage based on the gender of the applicants because we want to channel irresponsible procreation into a stable family unit.” And the judges say, “Okay, but how does punishing the children of gay couples, of which there are hundreds of thousands being raised right now in the United States, make it more likely that if Johnny gets drunk at the bowling alley and knocks up Sally, he’s going to put a ring on her finger? It doesn’t. Give us another reason, any reason.”

          Then Indiana comes back and says, “It’s always been this way and the people have a right to live by the traditions they value.” And the judges say, “How can tradition be a legal justification for anything in the United States when talking about government power? Bans on interracial marriage were traditional. Almost everyone supported them at the time. An appeal to tradition isn’t justification. You have to show us a harm that is caused and prove, with evidence, that harm is real. Try again. Give us anything, any reason.”

          So they go through the arguments like this over and over. It starts at the district court level, then goes to the appellate court level, then, sometimes, to the en banc hearing, then, finally, the Supreme Court. In practically all of these cases, across (now) more than 100 judges, both Republican and Democrat, all of the states have failed to provide a single justifiable reason for the gender ban. Some of these trials are exhaustive. They are not the media, partisan soundbites that the public is used to hearing. The testimony, in some cases, would take boxes to fill. Every imaginable objection under the sun has been raised and no one, in any of those cases, could come up with an actual harm caused by denying a marriage license to two people o the same gender.

          If the process starts tomorrow with polygamy, the states could win the argument with practically zero effort. They can draw a direct, non-disputed, factually documented, agreed-upon-by-conservatives-and-liberals-academics-economists-and-sociologists line between the incredibly negative effects of multiple-spouse legal household recognition and how the restrictions further the cause of preventing such damage. The proponents of polygamy have little chance of overcoming the enormity of the evidence against them. When the judiciary says, “Give us a reason …” they can begin with “Over time, polygamy has tended to cause a mathematical mismatch of potential spouses with the wealthy accruing a disproportionate number of ideal partners in what amounts to a reproductive monopoly that causes material harm to a large segment of poor males.” They can call the nation’s leading economists, who can explain the numerical models. They can call the sociologists and criminologists who can prove the relationship to rape and murder as more men become desperate. They can do this over and over, with argument after argument.

          It is this process that underscores the entire system. It is this process that causes questions such as, “If judges say 2 guys can be married, why not 3 guys?” make no sense. The two issues might seem comparable to the general public but they have practically no legal relevance to one another. To think they do is a form of Reductio ad absurdum.

          To draw a rough parallel, imagine you were the head of the state licensing board for dentistry. Your state prohibits all women from being dentists. They sue you and the court makes you come in and prove that women are inferior dentists to men. You can’t do it. There is no evidence, of any kind, you can use that can withstand scrutiny. You would lose.

          Now, imagine someone said, “Well, if we allow women to become dentists, why can’t we let people with IQs in the low 80’s become dentists? It’s discrimination not to permit it.” It doesn’t work, not in our system of government. They sue you and the court makes you come in and prove that you have a reason. In this case, you can clearly demonstrate a direct line between a person being cognitively impaired and the need to protect the public from giving them a license to operate surgical equipment and hand out pharmaceutical grade drugs. The lessening of the gender restrictions had no bearing on the restriction tied to intelligence in the same way the lessening of the gender restrictions for marriage have no bearing on the restriction tied to number of people who may enter into the contract.

        • Shouganai

          If we believe that monogamy is a necessary ingredient for a stable society, how far should we go to maintain it?
          The real issue – the reality – is that across much of the world, marriage is already collapsing into insignificance. The focus on equal marriage rights has less to do with gaining access to this decrepit institution and more to do with attacking the Christian morality that maintained it.
          Feminists aren’t really interested in joining gentleman’s clubs – they simply object to the idea of them existing.
          In the same way, in Britain, gay marriage advocates are less concerned with equal legal rights (which they already had with civil partnerships) and more interested in rubbing the defeat of traditional morals into Christian noses.

          If the courts are primarily concerned with the social effect of a law, shouldn’t they favor laws that support the traditional Christian morality that is apparently necessary for the maintenance of marriage?

        • The real issue – the reality – is that across much of the world, marriage is already collapsing into insignificance.

          As has been discussed to the point of exhaustion on the blog on posts such as this one, the decline in marriage rates among the poor and under-educated is primarily a symptom of various economic forces that have to do with the devaluation of low-skill labor thanks to the rise of automated productivity thanks to the microchip and globalization.

          Marriage has not lost significance among the educated and the wealthy, where it remains just as popular as ever. Marriage still offers many of the same benefits it always has. Marriage still leads to vastly superior outcomes including longer life expectancy, better health, higher net worth due to economies of scale, etc.

          The focus on equal marriage rights has less to do with gaining access to this decrepit institution …

          As we’ve already established marriage is not a decrepit institution, it is still one of the the, if not the, primary economic, human capital, and personal happiness engines in civilization. The only people who believe otherwise are, again, poor and undereducated, which we can say with certainty because the data is abundantly clear on this.

          The wealthy, the successful, and the educated all still get married, stay married, and enjoy the dividends from marriage as if it were the 1950’s. Thus, your implicit assertion that it is not something to which others should aspire is inherently inaccurate. The fact that other market factors have resulted in a decline of marriage rates based on a myriad of non-related factors in no way depreciates the value of the institution itself. If anything, it demonstrates how necessary it is and why it is so important for everyone, gay couples included, to avail themselves of it.

          …and more to do with attacking the Christian morality that maintained it.

          Please be honest with me because I’m legitimately curious: Do you actually believe this?

          You cannot really honestly think this is the case, can you?

          If, by some bizarre, crazy chance you do, the level of delusional narcissism necessary to convince yourself that the people who just want the same medical, pension, adoption, inheritance, tax, and property rights everybody else has, and who spent years, and tons of their own, hard-earned money, fighting for them, did it not because of their own self-interest, but solely to spite you – you, whom they have never met and about whom they have never given more than a passing glance when you pull up next to each other at a stop light – takes the concept of a persecution complex to incomprehensible heights.

          I can promise you, with absolute certainty, that you, and your beliefs, were neither on their mind nor part of their consideration. You’re simply not that important as difficult as that may be to hear.

          If the courts are primarily concerned with the social effect of a law, shouldn’t they favor laws that support the traditional Christian morality that is apparently necessary for the maintenance of marriage?

          It is meaningless to talk about broad concepts like “traditional Christian morality” when, under the United States constitutional system, you are required to demonstrate specific harms when supporting or attacking restrictions on rights.

          For example, the courts uphold legal punishment for murder – one of the ten commandments, no less, and certainly a cornerstone of traditional Christian morality – because the state can demonstrate the justification for its actions and provide reasonable assurance that the loss of freedom of the guilty is more than overcome by the gain for society, which now doesn’t have to worry about one more killer out on the streets.

          If those supporting the marriage bans against gays could have expressed one – even a single – fact-based demonstration that their policy of exclusion furthered any “legitimate governmental cause”, they would have won. But they couldn’t because they can’t.

          I do find your passing indictment of 3rd-wave radical feminists interesting because I think your post is an excellent real-world demonstration of horseshoe theory. You are no different than they are. Your entire argument runs on “feelz”. You have no logical underpinning; no intellectual consistency. You believe what you want to believe because you want to believe it and nobody is going to convince you otherwise. Going through life with such blinders on is such a tragic way to live.

        • Shouganai

          I think that you either have to have a moral argument for marriage (in general) or unthinking Christianity (or conservatism). If you don’t have either of these things marriage will continue to decline in importance. (BTW it isn’t the case that marriage has remained as popular among the educated – it’s just that it hasn’t declined as much.)

          And this is the thing – I believe that marriage is a fantastic ideal, the best thing for society – that lifelong loving partnerships are the best thing for both gay and straight people.

          But I also think that gay marriage is more or less irrelevant compared to the fact that marriage rates are declining and that most children are born outside of marriage. I mean what percentage of people are actually going to be involved in gay marriage? There isn’t really any way that this tiny number of people could have much of a direct effect, positive or negative on society.

          But what does have an effect is dismantling traditional views of morality, undermining (unthinking) Christianity, without working to replace it with another compelling moral system.

          “Please be honest with me because I’m legitimately curious: Do you actually believe this?”

          I don’t believe that the individuals who wish to get married are motivated by a desire to personally offend me, or anyone else. I do believe that the reason that this has become a cause celebre, way beyond its real significance to society, is that there are a lot of people who hate social conservatism, view traditional values and religion as petty and stupid and wish to undermine Christianity.
          http://www.bbc.co.uk/news/uk-northern-ireland-29926372

          So, I guess what I’m saying is this. If marriage equality is coming in as some new moral system which is going to replace traditional Christianity with some other similar system then I am all in favor of it. If on the other hand, as I suspect, the movement (though not necessarily the individuals) are motivated by mindless liberalism – I think we can probably do without it.
          Basically I’d rather have mindless Christianity than mindless social liberalism – I think anyone concerned about society should feel the same way.

        • SixthCircuitBuffoonery

          Thanks, Michael. Since you mention that you are a conservative Christian pastor, I’d like to try to engage you from within the perspective of the Christian tradition. I don’t know if you are Catholic, Protestant, or which specific theological views you espouse, so I’ll keep it general.

          The first question I have pertains to what you mean when you say that the Bible is clear with regard to the role of marriage, and what that means in terms of the political action that Christian leaders should take. Do you not agree that there is a plurality of biblical verses that suggest that divorce is unacceptable? Given that marriage is a sacrament, how can it be dissolved through a civil act? If so, why not criminalize divorce? Two men who marry each other never partake in that sacrament anyway, so a civil act that marries two men may simply be irrelevant to Christians, but a man and a woman who are torn asunder after taking vows of holy matrimony have surely despoiled the sacrament. Do you know of any concerted Christian effort to protect the sacrament of marriage by criminalizing divorce in the civil sphere? Why does same-sex marriage stir up so much Christian fervor when divorce does not? This seems especially curious when the theological stakes are much higher. “For I say to you, that whosoever divorces his wife, except for sexual immorality, causes her to commit adultery, and whosoever marries a woman who has been divorced commits adultery also.”

          The second question is if you think that Christian doctrine and practice espouse contradictory sets of assumptions about human sexuality. The Pauline epistles make clear that celibacy and chastity are difficult to maintain. As a matter of fact, the Catholic Church did not fully embrace the notion of priestly celibacy until the Fourth Lateran Council, and it was even then never an ideal that was foisted upon laypersons outside the cloistered communities of medieval Christendom. If humans are fundamentally sexual creatures, if chastity so ideal and yet so difficult, do you think it humane, wise or consistent to say to gay people that their feelings are natural (akin to temptations) so long as they do not act on it and remain chaste? Does not the Bible say that “no temptation will overtake you that you are unable to endure, for the Lord is faithful and will not let you be tempted beyond that which you are able, but will also provide you with the means of escape”? Should gay people pray away their gayness then? Live a life of self-abnegation, with no partner, no intimacy, no love, because the Bible says so, not because Christian leaders have a better reason to offer them? I don’t have much of a dog in this fight, but I’ve sometimes wondered if pastors struggled to minister to gay people; I would feel guilty and ashamed for advising someone to give up all these things.

          Somewhere in the range of 4% – 10% of priests have had sexual relations with minors, and in Spain, an internal study revealed that up to 50% of priests had sexual relations, some of them with men. Surveys show that between 70% – 95% of Christian pastors admit to watching pornography (and presumably, masturbating) in a recent time period. Even for the more liberal denominations who don’t believe masturbation is sinful, there is a good case to be made that the mental content (let’s not kid ourselves – there ain’t gonna be a money shot without some pretty graphic imaginings at work) makes this act a form of fornication. For the greater part of Christian history, the Church has indeed suggested that self-pleasuring is unacceptable. Catholic confessional manuals often enjoin priests to ask if participants took pleasure (delectatio) in sexual thoughts. At any one point in time, more straight men and women participate in sodomy than gay men. I could go on forever. Yet, the relaxation of the rule of chastity that is extended to straight persons is not equally relaxed when it comes to gay people because their desires are “intrinsically disordered.” Do you find all of this – any of this actually – hypocritical or problematic? Do Christian pastors have something better to offer to their gay sheep than to say that “this is what the Bible says”? I’d like to hear a better explanation from a pastoral perspective for why the Church is so singularly obsessed with gay sex and gay marriage when it has not attempted to criminalize or prohibit in the civil sphere the same kinds of sexual sins their straight brethren engage in.

          Actually, the burden is easier if you’re Catholic, and more difficult if you’re not, which is why I’ve always found it strange that Catholics are generally so much more welcoming than Protestants when it comes to this issue. If marriage is designed to be between a man and a woman because only they can procreate (this happens to be orthodox Catholic doctrine), then most acts that frustrate conception are by definition unacceptable. Many Protestant/Reformed denominations do not believe this, use birth control (which frustrates conception), accept that sexual acts may be performed for pleasure, and allow seed to be spilled through manual manipulation. Why not extend the biblical injunction into the civil sphere and attempt to prohibit contraception?

          Could it be that Christians don’t tend to prosecute crimes that they themselves suffer from in great abundance, but are comfortable prosecuting those that they, by definition, can’t be tempted by? If you are straight, it’s easy to tell gay people to change their behavior. You can cast the first stone because you have never fallen into that particular sin. But the other sexual sins – well – that’s not so good. Can you forgive people for being skeptical?

          I’ve often thought that it’s not so much that the liberal media has shielded gay rights proponents from scrutiny, but that secular commentators who have studied Christianity have kept silent for so long. Whatever you believe about same-sex marriage, and those beliefs are certainly legitimate for a religion to espouse, the self-selectivity with which particular doctrines get translated into actual political action is, I’m sorry to say, more than a tad hypocritical. Why not try cleaning out our own houses before cleaning our neighbors’?

        • Michael

          I will try to answer each question you asked and I am a Protestant (specifically Baptist):

          1. Marriage, as defined in Scripture initially in Genesis 1-2, is a lifelong covenant between a man and woman (This is what the church has taught for the last 2000 years) and Jesus reaffirmed this in Matthew 19. It also gives permission for divorce for a couple of reasons, namely adultery and spousal abandonment by an unbeliever. II have long said that the Christian church lost the marriage debate when we remained silent on the issue of no-fault divorce. Divorce should be a great concern for the church and I believe it has not.

          2. Your second question is a great one that the Christian community has struggled to answer. Paul said remaining single and celibate was preferable because it would allow for one to focus their entire energy on following the Lord without distractions (spouse and kids). He also recognized how difficult this would be and that marriage was designed by God and was good. These are not contradictory ideas, only two paths that are acceptable in the Christian life. However, sex outside of the bounds of marriage, which the Bible defines as between a man and woman for life, is sin (regardless of the type). Therefore, premarital sex, homosexual sex, adultery and any other sexual sin you can imagine outside of the biblical parameters is off limits. My counsel to someone struggling with homosexuality would be the same as someone struggling to remain pure before marriage. The Bible sets the standard – one man and one woman for life. Practically speaking, I would encourage anyone struggling with sexual sin to submit themselves to God’s standard. This is not easy regardless of whether a person is struggling with same sex attraction or thoughts of adultery. The hope for all sin is the saving power of Jesus Christ. I know someone personally who was previously in a homosexual relationship for many years but walked away after he was saved because he believed he needed to submit to God’s standard. He is now married with children. He would readily admit that there remains a struggle but God has strengthened him to walk this journey. This is the hope I would offer to everyone in sin, regardless of the type.

          I wholeheartedly agree with you that Christians have been inconsistent in calling sin sin. Homosexuality has been singled out unfairly. The Bible teaches that it is sin just like gluttony (Baptists definitely don’t talk about this), pornography, lust, lying, etc. I agree with you that we need to do a better job emphasizing this and hopefully we will do better moving forward.

          Once again I don’t hate homosexuals. I have friends and family who are gay and we simply agree to disagree on this issue. This is the very definition of tolerance. Unfortunately, I do think Christians are often demonized in our society when we stand up for what we believe the Bible teaches on the issue of marriage.

        • SixthCircuitBuffoonery

          Thank you, Michael. Your comments gave me a lot to think about.

          First, I don’t think it is true to say that Christians are, as you say, “often demonized in our society when we stand up for what we believe the Bible teaches on the issue of marriage,” Pope Francis has stuck fairly closely to traditional Catholic doctrine on gay marriage, and yet he is very respected even by those who disagree with his position on this matter. Why do you think that is the case? This is something implied in your response but never fully expressed. Here’s what I think. The reason many Christians kept silent on divorce even though they have consistently singled out same-sex marriage for attack is that they are homophobic. To be homophobic doesn’t mean you “hate” someone (although it might mean that). It means a particularly intense fear or disgust that prevents you from treating gay people in the same manner that you would treat similar mental classes / categories of problems. Do you have any other theories, apart from homophobia, for why this would become such an obsession for so many Christians, who have otherwise kept silent on what you consider equivalent egregious sins and practices? (For the record, I think Pope Francis is now going down the right path.)

          Second, although I appreciate the sincerity of your views in this matter, I hope you see that your attempt to conflate different categories of sexual sins has hidden implications. Someone who is struggling with adultery is not enjoined from enjoying a fully intimate relationship with someone else; nothing under Christian practice prevents a straight person from living a meaningful, happy life within the context of a monogamous relationship. Gay people, according to you, do not have this option, so unlike their straight counterparts, the “successful” resolution of their struggle with sin is complete self-abnegation of the very human instincts and desires that give them – and most people really – a rich, happy and dignified life. Either you think gay sexuality is a choice (your example seems to suggest that), which is not supported by science (at least some, and possibly many, gay people do not choose to be gay), or you think it can be inborn (which then makes your position particularly cruel, since you are saying that gay people are not just born gay, but born to be monks.) If you are married, or have had a similar experience, I’d like you to think about what your life would be like without your partner. When you say that well-intentioned persons on both sides can agree to disagree on this matter, let’s get this straight though. You are not denying gay people a sex act. You’re denying them the right to participate and live fully human, intimate lives.

          Finally, let me raise a last substantive point on what the Bible teaches about marriage, because what is happening right now within the Catholic Church bears out my point precisely – that Church doctrine has throughout history evolved in accordance with new understandings of what a given constellation of biblical verses on a subject mean. As a Baptist yourself, surely you know that the most important of sacraments (Holy Communion) has been supported at different times and places by transubstantiation, consubstantiation, or variations of the symbolic presence. Perhaps you are aware of how biblical verses were used in historical times to justify the enslavement of non-Christians, the waging of holy war in the form of the medieval crusades, and the persecution of the Jewish diaspora by Christian leaders. None of these things are considered acceptable by Church leadership now, and it took centuries for them to see that. All these were once considered uncontestably “Christian.” If you look at the evolution of Catholic doctrine (your history is much shorter, so there’s less of a record), you will see that within the Church, people have not always thought one thing about any matter. Indeed, the Church is now debating if and when divorced persons may receive communion, and if the Christian spiritual message (which emphasizes dignity and equality of persons) is compatible with an injunction against gay marriage that strips gay persons of natural rights.

          I’m sure that you don’t think of yourself as hating homosexuals, but it may well be the case that your position is hateful. I think there’s a difference. It’s something along the lines of: “Hey John, I really love you as a friend, brother and neighbor. I do not, however, think that you should be able to live with the person you love, or express the intensity of that love through physical intimacy. Although I understand you think these things give you meaning and joy, you are misguided, perhaps by the temptations of the Devil, and if you pray and are supported by the community, you will eventually find someone else, who must be a woman, to live your life with.” You don’t think it’s hateful, and perhaps it isn’t. But let me tell you this. It’s certainly harmful. The damage you will do to these young men and women in your position as a pastor will likely never be redeemable. If you believe, as I do, that sin does not inhere in the niceties of confessional manuals but as a contravention against the moral and natural law that binds all creatures, it is you who have surely sinned.

        • Michael

          First, let me say that my relationship with gay people who are personal friends and others who are family members make it evident that I am not homophobic. It is interesting that disagreeing on this issue, because of a religious belief, quickly moves to assumption of motives. Do I believe that many Christians are homophobic and fearful of gays? Sure. Do I believe this is right? Absolutely not. I believe you have the right to espouse what you believe and I will defend your right just as I would hope you would defend mine to state what I believe. Once again, this is the definition of tolerance. Where the concern comes in is when either one of us are told that we must accept what the other says as valid and incorporate it into our personal beliefs.

          I think the issue many Christians are struggling with is not homophobia but concern for religious liberty (Houston’s mayor subpoening sermons is a good example) . Increasingly, Christians are told that their beliefs can have no bearing on their public life, whether it involves prayer, homosexuality, abortion or saying “Merry Christmas.” The argument is made that we must remain silent in case what we say offends someone who does not believe as we believe. However, what is missed in this is that Christians are the very ones who are required to remain silent while our beliefs are trampled (a great book you could read on this issue is D. A. Carson’s “The Intolerance of Tolerance”). My question to you is would you be ok if I, as a conservative Christian pastor, was required to conduct a gay wedding even though it is clearly against my beliefs? Or would you be ok if I was jailed because I taught that homosexuality is sin? I should hope not but there are many who disagree and I believe you will see both of these issues come up in the near future.

          Regarding your second point, I must respectfully disagree. Increasingly, it is believed that humans were not meant to be monogamous because of our biological makeup (http://www.livescience.com/32146-are-humans-meant-to-be-monogamous.html, http://www.dailymail.co.uk/femail/article-2286682/Monogamy-natural-men-AND-women-equally-promiscuous-TED-lecturer-reveals.html). Your argument concerning sexual orientation (I was born this way, which I am not denying is based on scientific evidence) could be extended to monogamy as well. I and all of humanity were born, with a certain biological makeup, namely to have sex with whomever whenever instead of within a monogamous relationship (according to certain research). I do not deny the research or its findings. However, as a Christian I must be willing to submit to the authority of Scripture. The Bible is clear on two things regarding marriage: (1) it is a lifelong covenant between two people (monogamy) and (2) it is a covenant between a man and woman (Genesis 1-2 bears witness to this as well as Jesus in Matthew 18 and Paul in Ephesians 5). It is clear that we are born as sinners in need of a Savior. Yet, even after we are saved we will continue to struggle with sin even though gradually we will become more like Christ (progressive sanctification) which will be completed when we die and are with Christ (glorification). But, just because we struggle and are even wired to go against God’s Word, we choose to follow it instead of sinning.

          To the couple (man and woman) who are engaging in pre-marital sex, I urge them to abstain until they are married because this is biblical. To the husband who desires to have sex with someone other than his wife (which is the way he is wired according to research) I urge him to abstain because this is what Scripture teaches. To the homosexual who desires a relationship with someone of the same sex, I urge him or her to abstain because this is biblical. Your charge is that this is uncaring and even harmful. Yet, how can I believe what Scripture teaches and allow someone to walk in sin? This, in fact, would be the greatest harm I could do to a person…allow them to walk in sin without pointing them to the truth. Sin is sin regardless of our biological makeup. Ultimately, my calling is not to be acceptable in the eyes of the culture but faithful in the eyes of God and his opinion is the only one that matters. What he calls sin I must call sin. The psychological effects of telling someone they are in sin pale in comparison to the eternal effects of one remaining in sin. Jesus, himself, refrained from condemning the woman at the well but he did tell her to go and sin no more (John 8). My responsibility, as a pastor, it to do the same…seek not to condemn but lovingly urge people to go and sin no more through the power of Jesus Christ. Do I always get it right? No, but I am trying.

          The fact that the Bible has been used to promote atrocities is sad. But I would encourage you to get your eyes off of the Bible and onto the people who misused and abused it in their quest for power. The problem was not the Bible but their misguided interpretation of it. Ultimately, the question comes down to whether or not the Bible is true in what it teaches (specifically concerning marriage) and whether or not people will submit to its authority. Some have tried to redefine what the Bible teaches about marriage but this is impossible to do without doing hermeneutical gymnastics. Marriage is not primarily a civil institution. It is a biblical institution given by God and civil government can do nothing to redefine what marriage is in its essence. God has already declared what marriage is: a covenant between one man and one woman for life. This blog post may give you some more insight into what I believe about marriage and why it is essential for me to stand up for what I believe: http://www.heritage.org/research/reports/2013/03/marriage-what-it-is-why-it-matters-and-the-consequences-of-redefining-it.

          Thanks for the discussion – it has encouraged me to think more deeply about the issue at hand and how the church should relate with the LGBT community. I was greatly encouraged to see my denomination’s policy arm hold a conference on this very issue and the positive press it received even from more liberal news outlets: http://www.religionnews.com/2014/10/30/southern-baptists-change-tone-substance-homosexuality-commentary/.

  • Mr.owenr

    I can’t figure out any common sense arguments for allowing polygamy. But if it does become a thing then I’d market myself as a “Polygamous Marriage Consultant” or something similar. Maybe write a book seeing how I have no credentials.

  • Shouganai

    If it is said often enough maybe it’ll become true.
    The idea that the actions of individuals are driven primarily by instincts deriving from some pre-social past is clearly wrong and normally rears its ugly head when people wish to work themselves up into doing something that is completely morally unacceptable.
    We cannot comment, with any specificity, on what people are likely to do without reference to the social, technological, and (dare I say it?) intellectual environment they live in. Evolutionarily speaking, this is presumably because it is completely impossible for humans to live without society. Normally speaking, it is because we are rational.
    By the way, I absolutely meant that first sentence – if we tell people they are animals often enough they may well come to believe it and behave accordingly – but words will still be the true basis of their actions.

    • Gilvus

      Hi Shouganai, my response to Scott was getting overly long, so I glossed over many points. I can see why you think I was suggesting that we’re driven solely by animal instincts – that’s not true. Let me clarify my position for you:

      With very few exceptions, every single human is born with a set of instincts no different from that of an orangutan:
      – When nutrient levels in our blood drops to a certain point, we become hungry and feel the urge to eat.
      – When the osmotic balance of our cells shift too far from equilibrium, we become thirsty and feel the urge to drink.
      – When a straight man sees a woman with facial symmetry, smooth/clear skin and flowing hair, and a waist-to-hip ratio of 0.65~0.80 OR a straight woman sees a man with facial symmetry, smooth/clear skin and flowing hair, and a shoulder-to-waist ratio of 1.25~1.5, they become attracted. Pupils dilate. Heart rate increases. Changes in posture, vocal tones, and the tendency to mimic the other person’s movements appear as if by magic. Simply put, attraction is the urge to procreate and pair-bond.

      Unlike the orangutan, humans have an overdeveloped frontal lobe in their brains which allow them to reason, analyze, and plan for long-term gain. Individual humans can use this immense brainpower to override their instincts.
      – Jill is hungry, but she wants to fit into a swimsuit this summer. She resists to urge to eat a triple-bypass burger and opts for a salad instead.
      – Andrew is a wrestler, and he must fall within a certain weight category in order to compete against lighter opponents. He drinks very little water before being weighed, even though he’s thirsty.
      – Bob is an attractive, successful professional, and married with kids. Alice is also attractive and successful, with her own husband and kids. One day, Bob and Alice meet and are clearly attracted to one another. But because they want to remain loyal to their families, they resist the urge to begin an affair.

      The individual human has the ability to make decisions. However, if you look at a large group, a significant number of humans will follow the paths of least resistance – meaning they tend to follow their instincts.
      – Obesity rates are worsening in affluent countries, where food is plentiful and people simply follow their instinct to eat.
      – Water is (generally) plentiful in affluent countries, so few people die of thirst except in times of calamity – they simply follow their instinct to drink.

      – Extramarital affairs abound in every culture, past and present. The statistics for modern American culture very wildly, and you’ll see numbers as low as 15% or as high as 50% of people having admitted to infidelity. The actual number might be even higher due to under-reporting (shame, stigma, denial). That means millions of people commit adultery every year, despite the social, legal, and moral ramifications. These people are following their instinct to reproduce, whether or not children result from the unions.

      All that can be condensed to: individual humans can use their judgment to follow or override their basic urges, but many people simply don’t. As a result, when you look at a large group of people (i.e. society), you can’t ignore the effect of human instincts on behavior. That was my main argument to Scott – that because marriage, intercourse, and sexual selection are all so heavily based on emotional rather than rational decision-making, society as a whole will trend toward primitive instincts despite each individual human’s capability to fight those instincts.

      • innerscorecard

        This was my favorite post of yours so far. You expressed far more clearly than I ever could the fact that we cannot ignore biology or history in examining human behavior, even though many humans in aggregate have acted against their instincts and aren’t simply slaves to their genitalia or stomachs or whatever.

        By the way, do you have a blog…? Or maybe you wouldn’t need one if we ever get that Joshua Kennon Forum. 😉

        • Shouganai

          I dunno, I think it was a bit of the old “9 indisputable facts followed by an unrelated assertion” myself…

        • Gilvus

          Back when I first started reading this blog, I alternated between making deep, insightful comments and being the site’s resident troll. Since I read Outliers a few months ago, I’ve been far more picky with my time. Trying to get my 10,000 hours in, so I mostly lurk now.

      • Shouganai

        “That was my main argument to Scott – that because marriage, intercourse, and sexual selection are all so heavily based on emotional rather than rational decision-making, society as a whole will trend toward primitive instincts despite each individual human’s capability to fight those instincts.”

        OK, I can see that – but I still disagree with where you chose to place your emphasis. You seem (with the examples that you have given) to use the term ‘primitive instincts’ to refer to individual needs such as hunger, thirst and sex. You also seem to be suggesting that the path of least resistance is for people to address these individual needs, that to some extent we can predict what will happen in society if we know what these desires are.

        You stated:
        “the legalization of polygamy would heavily trend toward polygyny over polyandry, even if women become the breadwinners by a significant margin…The instincts are hardwired deep into our brains.”

        My point is this – it makes no sense to try to explain human behavior without reference to society and you cannot predict behavior (except in the most trivial way) without reference to social context, technology or rationality. The base level of humanity, at least in our time, is social – and our social instincts normally trump our individual ones.
        And that isn’t even getting into rationality – the state of non-thinking action that occupies most of our time is not governed by our individual feelings of hunger, thirst or sexual desire – they are governed by social inertia. The actions of most people most of the time would be completely inexplicable without some knowledge of the society in which they lived.

        For example, obesity rates vary widely among developed countries. Now, you could say that the lower rates of obesity in Japan are due to their ninja spirit allowing them to suppress their natural desire to eat; I could say that Americans drink Coke because society tells them to. It’s actually a moot point – it’s obvious that one way or another eating habits are determined by social context in a way that breathing isn’t. Would it really mean anything to say that the American way is more ‘natural’ than the Japanese? Would it tell us anything?

        As for sex, the fact that polyandrous societies do exist, the fact that polygamous and monogamous societies exist, suggests to me that this is another area that is largely determined by social context. You could say that within the context of American society it seems unlikely to occur, but I don’t think there is any particular evidence or argument for saying that it is unlikely to occur because of individual instinct.

        I mean, that would be a bit like someone in 1600 remarking that democracy could never occur in France because it is contrary to human instinct, would it not?

        • Gilvus

          it makes no sense to try to explain human behavior without reference to
          society and you cannot predict behavior (except in the most trivial way)
          without reference to social context, technology or rationality.

          Sometimes it does, sometimes it doesn’t. That’s why history is the best teacher. Let’s take “beauty” as an example. In some ways, the idea of “beauty” and “attraction” changes from one culture to the next, or within a single culture as time progresses. For example, being tanned is generally considered attractive in western culture today, but being pale is considered attractive in east Asia, especially for women. So you’ll see American women using tanning booths (or “cancer coffins,” if you will), but you’ll see Chinese women carrying parasols when outside in direct sunlight. Clearly, skin tone is NOT an instinctive measure for attraction – it is a social construct. Another example is fashion – there was a time when corsets, huge dresses, and foot binding were in vogue. This indicates that being “well-dressed,” which factors into attraction, is also a social rather than instinctive criteria for beauty.

          However, some aspects of beauty DON’T change, no matter where in the world you look. Doesn’t matter what time period you observe – the sculptures of the ancient Greeks, the illustrations of the Kama Sutra, and the supermodels today, have the following things in common:
          – Bodily and facial symmetry. Even babies, who could not have been socialized to any significant degree, prefer looking at more symmetrical faces compared to less symmetrical ones.
          – Clear skin. Unblemished, even-toned skin is a general indicator of health and nourishment. In virtually every art form of every culture in history, heroes, heroines, and the makers of history are depicted with glowing, porcelain-smooth skin.
          – For men, a broad shoulders tapering smoothly to a narrower waist is generally regarded as attractive, except in rare exceptions (e.g. during the industrial revolution, when corpulence was viewed as sign of social status).
          – For women, a narrow waist on top of a set of wide hips is almost universally regarded as attractive, with rare exceptions (like the Mauritanian practice of leblouh, which is falling out of favor with the current generation).

          My response to the quoted text above: you’re fully correct in saying that some things can’t be fully considered without factoring in social context. Other things remain constant across societies, throughout time. They manifest in newborns less than a year old. They are pure instinct.

          And that isn’t even getting into rationality. The state of non-thinking
          action that occupies most of our time is not governed by our individual
          feelings of hunger, thirst or sexual desire – they are governed by
          social inertia.

          I agree with the part that social inertia plays a huge role in our non-thinking behavior. Joshua has articles on social proof and signaling theory, which he regards (and I agree) as the most influential and second most-influential mental models, respectively, at work in our minds today. These powerful mental models exist so that human beings can reap the benefits of living in a herd, while also trying to increase their individual standings (which is zero sum game – exactly why so many behaviors are destructive). What you described as “social inertia” manifests itself in familiar forms such as peer pressure, “keeping up with the Jonses,” and jumping on the bandwagon.

          Ask yourself this: “if these non-thinking actions, which occupy most of our time, are governed by social inertia, is the tendency to bow our heads to social inertia not an instinct too?” If, by default, we automatically look to others when we are unsure of our own actions, doesn’t that mean that the urge to conform to peer pressure is an instinct itself? I think we agree on more than you think, but we’ve been speaking two different languages.

          As for sex, the fact that polyandrous societies do exist, the fact that
          polygamous and monogamous societies exist, suggests to me that this is
          another area that is largely determined by social context. You could say that within the context of American society it seems
          unlikely to occur, but I don’t think there is any particular evidence or
          argument for saying that it is unlikely to occur because of individual
          instinct.

          Thought experiment time: let’s say there was a big red button that erased all traditions, socializations, individual habits, religious and political mandates – it effectively reset all social inertia regarding mate selection and marriage to zero – and we pushed it. Which would become more prevalent: polygyny or polyandry?

          Even if you refuse to believe that instincts play a huge role in human behavior, you have to ask yourself: what was it like BEFORE societies emerged? Once social inertia was established, why did 1,041 societies favor polygyny, and only 4 favor polyandry?

        • Shouganai

          “doesn’t that mean that the urge to conform to peer pressure is an instinct itself?”

          Well, yeah… that’s why in the passage immediately above the one you quoted I wrote:
          “The base level of humanity, at least in our time, is social – and our social instincts normally trump our individual ones.”

          When we are talking about marriage, which is an involved and sophisticated social institution, it seems fairly obvious that social instincts will take precedence over any individual ones. And if that is the case – how could it possibly make sense to say that we are “hard wired” to engage in a particular form of matrimony? Surely we have to take the social/economic situation into account?

          If we are only talking about sex, rather than matrimony, it seems to me that it is incredibly common for women to engage with multiple partners in something similar to polyandry – in prostitution. One woman gaining the resources of multiple male partners. There certainly isn’t any “hard-wiring” preventing that from happening.

          “let’s say there was a big red button that erased all traditions, socializations, individual habits, religious and political mandates – it effectively reset all social inertia regarding mate selection and marriage to zero – and we pushed it. Which would become more prevalent: polygyny or polyandry?”

          From google:

          “Biological and anthropological evidence suggests that our ancestral mothers were mildly polyandrous, i.e., women had more than one male sexual partner per birth. Female gorillas are monogamous. Gorilla testes are one-quarter of the size of human testes (adjusted for body size). In contrast, female chimpanzees average 13 male sex partners per birth. Chimpanzee testes are three times the size of human testes (adjusted for body size). The size of human testes suggests that our ancestral mothers had several male sexual partners per birth
          As noted, the Aché hunter-gatherers are moderately polyandrous, with each child having, on average, 2.1 possible fathers…Biological and anthropological evidence also suggests that our ancestors were mildly polygynous, i.e., that men fathered children with more than one woman. In polygynous species, e.g., gorillas, males are bigger than females (sexual dimorphism). Males that win fights with other males mate with several females. Male gorillas are twice the size of females. In contrast, among monogamous species, e.g., gibbons, small males breed as often as large males. Gibbon males and females are the same size…Men are
          somewhat larger than women, suggesting mild polygyny. This biological and anthropological evidence for polyandry and polygyny suggest that our ancestors were moderately polygamous (men with more than one woman and women with more than one man).”

          “Once social inertia was established, why did 1,041 societies favor polygyny, and only 4 favor polyandry?”

          I don’t know, but unless you want to argue that the polyandrous societies were born of some kind of mutation surely you’d have to find the explanation for their existence in the social and economic environment?

        • Shouganai

          BTW… I think this is important because people normally say that something is “natural” to shut down any arguments against what it is that they want to be doing.
          It’s the first refuge of the scoundrel.
          Not that you’re a scoundrel, but the particular danger with the kind of argument you are making is that it basically serves no purpose except to enable a kind of short-sighted selfishness. And there are actually people out there arguing for all kinds of horrible things on the basis that “its natural” – when presumably if it were, no argument would have to be made.

  • SixthCircuitBuffoonery

    Thanks, Michael. I did not want to reveal this, and perhaps Joshua can remove it at some later stage, but let me say that I am coming at this from the perspective of a Christian. I am myself Christian, and I do not respect most of the positions and reasons that you’ve raised (which is different from saying that I do not respect you.) Perhaps that will allow you to see better where I’m coming from, that I am criticizing the Church as an insider, and why I’m so deeply disappointed. I am seriously considering leaving the Church on this issue.

    Let me first deal with your argument that religious liberty is what is being trampled on right now. It’s telling that the examples you raised were all hypothetical. Can you give me examples of where churches have been forced to marry gay couples? If you research the issue, you’ll find that gay marriages in churches have overwhelmingly been adopted by the congregations themselves as a product of internal reform, and not external pressure. The denominations that accept gay marriage didn’t do so because anyone forced them to, but because they wanted to. I also think you’re missing my point, which is that “traditional” Christian beliefs about gay people are fundamentally homophobic, in the same way that fundamentalist Islamic beliefs that incorporate ideas about women being inferior to men are fundamentally sexist. This is not a matter of motives but a matter about philosophical choices. Unlike you, I happen to think there is a way out (theologically speaking), and that the Church will find it.

    I think it is extremely irresponsible to attempt to claim the position that Christians are being victimized when we are not the ones who have had to pay a blood price for who we are. Matthew Shephard died for being gay. Name me a Christian who has been killed because of his anti-gay beliefs. Name me Christians who have been summarily fired from jobs because they were Christians. Do Christian teens have higher suicide rates than the rest of the population? (I assure you that gay teens do, and this has nothing to do with genetics.) Do Christian pastors feel any sense of shame telling gay people they are living in sin? From what I can tell, they do not. I see Christian couples all the time engaging in adultery, commiting fornication, and behaving in a way ten thousand times less impressive than the adversity my gay friends have had to overcome. If you know kids who have put themselves through college because their Christian families disowned them for being gay, and hear their stories, you will, I assure you, be tempted to walk away from the Church. It’s not an excuse to say that this is not biblical, and simply the product of flawed people, when Christianity has not done very much (until now, with Pope Francis) to change the tenor of the conversation. I think Christians should bear a good amount of the blame for homophobia. Not shirk it, not deny it. I think you are fear mongering. I do not think that Christians will be jailed for saying that homosexuality is a sin. This is preposterous. Maybe some fundamentalist right-wing nuts believe it. I certainly don’t.

    What would you say if Muslims decided to impose polygamy upon civil society because it is permissible under the Koran and under sharia? Muslims believe that polygamous marriage is a quranically sanctioned institution, just as you believe that marriage is a biblical institution. Is there a way for you to reach them and to have a reasoned conversation when your predicates are based completely on revelatory truth? Why should we privilege the Christian conception of marriage over a Muslim one?

    I don’t need to re-read Ryan Anderson, but thanks for the link. In fact, I will point out that most of your arguments have little to do with Anderson, George and Girgis, who do not quote the Bible, and who are trying to set up a conservative defense of gay marriage that is not grounded in the Bible, so it’s a little weird for you to be citing them. I understand that you think that all kinds of sexual sins are equal, and you admit to the hypocrisy of singling out homosexuality. But my central point remains. A straight person who refrains from sexual sins can still have a meaningful life with a partner and with sexual intimacy. A gay person cannot. The real life consequences of your pastoral advice is one of two things. Either gay people will refrain from all the things that we know are essential to the experience of a rich and fulfilling life (love, sex, family, dignity, and respect), or they will be encouraged to opt into heterosexual families instead. If you read the plenty of sociological studies in this area, you will realize that this does not work. These are fathers and neighbors who will continue to have sex with men (MSM) even if they do not identify as gay. They will end up exposing their wives to diseases (MSMs are more likely to be carriers of STDs than gay people), they will live inauthentic lives that will likely prevent their families and children from being happy, and they will consider themselves cured and straight when they are not.

    Modern Christianity is intellectually impoverished. One reason the Catholic Church is so much more far advanced than their Protestant brethren in this debate is simple. They have not lost the biblical hermeneutics bequeathed to them by the patristic fathers, and especially by medieval scholastics like Thomas Aquinas and Bonaventure, who understood that the meaning of any given verse is often not obvious. This isn’t some 21st-century revisionism by rogue Christian scholars who have lost their moral compass. It isn’t textual gymnastics, as you put it. It is as close to sola scriptura as you might get and older than the hortatory nonsense that passes for spiritual food in most pulpits today. Take the story in Genesis about the attempted violation of the angels in Lot’s house and let me ask you. Do pastors really have the right to use this story to say anything about homosexuality if they don’t understand the etymology of the Hebrew terms, and are unaware of historical allegorical readings interpreting the story as a violation of hospitality? How many modern pastors are that well trained in the classical languages and in the sources? Sola scriptura requires a return to the original languages of the Bible does it not? How are modern pastors so sure about their texts and moral judgments about homosexuality and marriage when they lack the technical skills to evaluate its meaning in the first place? Most pastors I’ve personally met have been blessed with a surfeit of moral certainty and an equal lack of theological skill. Maybe that’s an essential job qualification.

    What you say is obvious is not at all obvious, the same way the School of Salamanca revised Catholic readings of natural law when it was clear that native Americans ought not to be treated as second-class citizens, which the Bible (not flawed Christians, mind you, but the Bible) at one point was thought to have permitted. Something as basic as the nature of the Trinity was still in question when the debate over the Comma Johanneum erupted four centuries ago. Do most Christians know this? Assuredly not.

    I think Christians should stop playing politics and attempting to assume the position of the “victim.” Let’s get real. The damage done to gay people in the area of civil rights, emotional harms and opportunity costs (as far as jobs are concerned) is much more concrete than any putative harm to Christians who, I remind you, continue to state their beliefs loudly with impunity. This attempt to put on the garb of a martyr should offend Christians themselves. It’s fun to play-pretend at being persecuted when the truly persecuted fight for their day in court. It’s behavior like this that makes me ashamed to be associated with Christianity. Of course you have the right to state your belief. The right to state that belief invites the countervailing right to be told that your positions amount to a load of crap. It seems like what you want is not so much free speech but protected speech. Disagreeing with others has always been part of the free marketplace of ideas. It doesn’t mean you’re going to be jailed or that people are being intolerant. It also doesn’t mean that people think you’re a bad person. It just means they think your ideas stink and that they will end up hurting other people.

    I leave with one thought. If Christianity is to survive, it must mount a positive defense of its spiritual heritage, return to the pastoral instincts embedded in Saint Francis’ ministry (and the Franciscan order more generally), and leave behind all this hardline bullshit that is Christian in letter but utterly unChristian in spirit. How do I know I’m right? By the fact that many millenial Christians are leaving the Church in droves over this very issue.

    • Michael

      Thanks for your response. We could go on and on on this comment section but I would love to discuss further off site so we don’t cloud up Joshua’s blog. I want to sharpen my thinking on this. Feel free to email me at michaelfkennedyjr@gmail.com if you are interested. Thanks!

  • guest

    I believe your article makes to many assumptions about polygamy. Polygamy of today in America would not be practiced in the same way it has been in the past. Wouldn’t women have the same opportunities to marry multiple men if plural marriages became legal in our modern society? You also imply that poly-marriages would be widely practiced enough to have an adverse affect on society as a whole. There is simply no evidence for this. To assume that polygamy would somehow result in a skewing of sex ratios is the same as assuming that allowing gay marriage would lead to less procreation. Both scenarios is only possible if extremely large segments of society choose to participate in these alternative relationship models.
    All of the arguments one can make for legalizing gay marriage you can make for legalizing poly marriages. In fact the most basic negative points made about polygamy can be found in pretty much any form of marriage, as in the oppression of women and sexual exploitation of children ( which is already illegal). There are also those who believe that many of the issues that arise in polygamy as we know them today, have more to do with practice being illegal ( sort of like an unregulated black market), rather than inherently problematic for society.

    I am not a genius when comes to law, no surprise there, but I too have read many diverse opinions on the topic, including other lawyers and believe that legalizing polygamy is very plausible, possibly even inevitable. I personally find it a bit naive or dishonest to believe that it isn’t. If polygamist were to become as dogmatic about marriage equality and their “rights” to marriage as the gay community, I don’t see any logical grounds to deny them this aspect of equality. As one of the earlier commenters said, judges to are products of their time and are filled with bias as are researchers. I just read a study two days ago that stated “polygamy” is as natural as monogamy. the time will come when these studies will reflect more objective views on polygamy’s potential affect on modern society. Since many try to compare the ruling if interracial marriage with gay marriage, I too will use that as an example.

    The first same-sex marriage cases were filed soon after the United
    States Supreme Court’s 1967 decision in Loving v. Virginia, which struck
    down bans on interracial marriage in Virginia and fifteen other states.The Court stated boldly, “Marriage is one of the ‘basic

    civil rights of man[.]’” Same-sex couples argued this broad language applied to them as well. The early same-sex marriage cases all rejected
    this analogy. The Minnesota Supreme Court, in the first same-sex marriage case in 1971, dismissed the comparison in a single sentence,
    which seemed so self-evident to the court that it did not need a
    citation:

    “[I]n commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”

    This was common sense, homosexuality being incompatible with a stable society was not only popular opinion but was the scientific fact at the time as well as historically founded (no society has attempted to normalize gay marriage in the ways we are currently trying to do) . Fast forward only 44 years later and here we are, on the verge of legalizing gay marriage. In my opinion, legalizing gay marriage has had more to do with cultural acceptance and emotional appeals than anything else you listed in your arguments.

    Again all of the points used to legalize gay marriage you can use to legalize poly-marriage, all that is needed is public acceptance and organization amongst the poly-community to begin a strategic movement. This movement would have to put polygamy in a modern and gender equal context.

    “It would take decades to play out”…this is one of the few points I agree with you on,… but I wouldn’t be the least bit surprised if in another 40 years we become witnesses to another “unlikely” marriage equality revolution that was previously deemed destructive.

    • All of this has been discussed in-depth in the other comments. The short version: Respectfully, there is no possible way you can understand the legal questions that were raised in the marriage equality cases that sought to remove gender-restrictions and say some of the things you did in your comment. They have no legal parallel other than as a marketing technique for opponents who want to appeal to a slippery slope argument (often to raise cash), which is why they have failed so frequently in court. They are not, as one conservative judge put it in exasperation, arguments reasonable people take seriously. They’re marketing slogans that change hearts but do nothing for the court cases in question.

      For the government to restrict the right to marry, it must provide a so-called “rational basis”, with some fairly straightforward guidelines as how that is defined, for its decision. The gender restrictions failed because it was clear other than “the Bible said so”, there was no justifiable reason for telling a gay person they had to remain single for life or marry someone of the opposite sex despite the damage it did.

      In the case of polygamy, it is one of the oldest, best studied anthropological phenomenon in human civilization, arising in almost the same pattern in virtually every single case across continents, races, government structures, religions, and time periods because of various economic and biological incentives that cannot be separated from neurology and reproduction, making the “this time is different” argument a hard pill to swallow. The ills it unleashes, both directly and indirectly in second and third order effects are simply too great to overcome under present conditions.

      The state can easily meet the rational basis test on the constitutional question because the evidence is overwhelming. Polygamy has a terrible track record of leading to the concentration of political and reproductive power, the disenfranchisement of poor working men, the subjugation of women, and, in almost all cases, the increasing sexualization of young girls. It offers no offsetting benefits to society. It leads to lower levels of investment in offsprings compared to two-parent families. Some of these reasons are among those that caused the well-educated early first-wave feminists to hate it so much; to fight to raise the age of consent laws.

      They are among the reasons the United Nations literally considers polygamy a fundamental violation of human rights. The idea that somehow we will escape the fate of 99% of other civilizations that have evolved away from it were we to voluntarily devolve, again, strikes me as, to borrow one of your words, naive.

      Like the legal questions at play in same-sex marriage, it has nothing to do with love, or feelings, or any of those things. It’s a very strict, constitutional issue and it just can’t win given the historical record. Not in any intellectually honest court.

      • guest

        “All of this has been discussed in-depth in the other comments.”

        I have read many (not all) of the previous comments and was still not convinced of your argument which is why I decided to address you and make a comment of my own.

        “The short version: Respectfully, there is no possible way you can understand the legal questions that were raised in the marriage equality cases that sought to remove gender-restrictions and say some of the things you did in your comment.”

        I respectfully disagree. I have already admitted that I’m not a legal genius but I do understand the questions that were raised in these cases aswell as the points used in your overall argument. Correct me if I am wrong, but isn’t the crux of your argument basically saying that the reason these restrictions were removed was because the opposition could not prove that same-sex marriages were somehow legitimately damaging to society, marriage, or to the individual, and therefore without this proof there is no legal reason to deny them equal access to marriage as a constitutional and human right? As a result these restrictions were found to be discriminatory and unconstitutional.
        In your opinion this is the opposite of polygamy because the burden of proof that poly-marriages are as beneficial or at least neutral to society as monogamy, and same sex marriage lies with their proponents. You personally feel, as well as many judges, that these proponents cannot prove this because of numerous historical and scientific studies that state otherwise. Am I missing something? If I am please let me know.

        “Theyhave no legal parallel other than as a marketing technique for opponents who want to appeal to a slippery slope argument (often to raise cash), which is why they have failed so frequently in court.”

        First lets discuss a “slippery-slope” argument, not because I don’t think you aren’t intelligent to know what one is, but because I often here this term thrown around to lightly, mostly to discredit anyone who has concerns ( some of them possibly legitimate) about the unintended consequences that may follow the adoption of a particular popular opinion or action.

        A slippery-slope argument is not inherently a fallacy, though it often can be. It is only a fallacy if one cannot prove a casual, valid, or at least plausible connection between event A and the possibility of event B occurring. Simple research on the nature of fallacies will prove this to be true. For example, when someone who is against gay marriage says that same-sex marriage will lead to legalizing polygamy, incest, pedophilia, and then bestiality, all of which will lead to the end of civilization without providing any suitable rationale behind these links…That is a definite slippery slope argument because there is absolutely no way one can present a valid pattern of events that may lead to these things occurring (or at least I haven’t heard one). One would have to give an example of how the arguments made for gay marriage apply to each one of these alternative relationships, in that order. I’ve heard arguments made
        for all of these but once you get into incest the chain tends to fall apart for a variety of reasons that I don’t care to get into. However, it’s quite another thing to say that accepting homosexuality and same-sex marriage may also cause people to be more accepting of other alternative and non-traditional relationships, one of which may likely include previous taboo relationships such as polygamy. This is not a slippery-slope theory because that notion in itself is plausible. After all, don’t same-sex marriage proponents credit the acceptance of interracial relationships and the legalization of those marriages as paving the way for their own acceptance? So the concept as it stands on its own has already been proven even by current same-sex supporters. In short these chains simply have to be reasonable, often showing links and common patterns of logic. Saying that the acceptance of gay marriage may eventually lead to the acceptance of polygamy is a plausible argument, at least culturally.

        As for the legal realm, I think this argument is still plausible. You wrote: “They are not, as one conservative judge put it in exasperation, arguments reasonable people take seriously. They’re marketing slogans that change hearts but do nothing for the court cases in question.”

        I have a few bones to pick with this statement. One culture (the heart) definitely shapes law. If gay-marriage still held an 80% disapproval rating as it did in earlier decades, I find it hard pressed to believe these judges or the Supreme
        Court would be taking any pro-gay marriage arguments seriously. Culture, social science, and social law/politics all play off of each other. It’s no coincidence that when racial prejudice relaxed in the U.S. interracial marriage became legalized, it’s completely logical to think that Loving v. Virginia would have been given a completely different ruling had that case been brought up thirty years prior. So I have to say I disagree with this judge’s assertion. It is also why I originally wrote that quote from the judge who had to hear an argument from same sex supporters in 1971. The cultural basis to allow same-sex marriage in the legal facet simply had not been well developed yet. Essentially, for the same reasons many arguments against polygamy are seen as invalid now, i.e, immoral, harmful, unnatural, against religion, bad for a stable society, science, etc.. Lets not forget, it wasn’t until 1973 that homosexuality was officially no longer classified as a harmful disorder. Much of this had to do with the re-evaluation of decade’s worth of scientific and historical “evidence”, and of course growing social acceptance (this is also what happened with racial acceptance in the west). I honestly don’t see what basis you have for claiming that somehow polygamy is immune to this same outcome. So far I haven’t seen historical claims work in derailing any large scale strategic social movement in modern
        times. Especially if their proclaimed goal is equality. If polygamists were to become fervent about their rights, I don’t think an argument like yours would hold up, even with all the “evidence” you cite.

        “For the government to restrict the right to marry, it must provide a so-called “rational basis”, with some fairly straightforward guidelines as how that is defined, for its decision. The gender restrictions failed because it was clear other than “the Bible said so”, there was no justifiable reason for telling a gay person they had to remain single for life or marry someone of the opposite sex despite the damage it did.”

        I feel like I’ve already explained this, but I will add that “rational basis” changes with time. As other social movements can point out.

        “In the case of polygamy, it is one of the oldest, best studied anthropological phenomenon in human civilization, arising in almost the same pattern in virtually every single case across continents,races, government structures, religions, and time periods because of variouseconomic and biological incentives that cannot be separated from neurology and reproduction, making the “this time is different” argument a hard pill to swallow. The ills it unleashes, both directly and indirectly in second and third order effects are simply too great to overcome under present
        conditions.”

        Actually,I would argue sex and gender is one of the most studied anthropological topics in human civilization which encompasses various relationship models, only one of them being polygamy. Now I never earneda degree in law, but I certainly got my degree in anthropology. And as a black female, I’ve had my share of lectures in gender studies and inequality. With that being said, my experience is why I question the foundations of your argument. The problem with your views on polygamy is not necessarily because they are completely wrong, but rather that they are likely rooted in bias. Many of the current negative attitudes towards polygamy stems from a time when western ideology was self-serving, ethnocentric, inherently prejudice, and filled with religious dogma. It was the same ideology that worked against anyone who did not meet the western standard of “normal” or “right”. It fueled the oppression of racial and sexual minorities, and the “others” in general. Don’t misunderstand, I’m not one of those overly-optimistic anthropologists that believe no culture, society, or practiceshould go without criticism because all are equally valuable. I am simply saying that if LGBT people and behavior have been reanalyzed and vindicated due to increased tolerance, understanding, and newer “objective” research. Polygamy certainly deserves the same.

        It is true that most people in most societies do not currently practice polygamy. It is also true that most people in most societies never practiced polygamy. Polygamy for the most part has always been a minority form of marriage in most societies where it has been allowed for the simple fact that this particular form of marriage has historically absorbed more resources and time that many can afford to give. Many regions that no longer practice polygamy have also experienced the influx of missionaries and western cultures. So it’s not fair to simply imply that societies made a conscious decision to do away with it because it was incompatible with modernization.

        “The state can easily meet the rational basis test on the constitutional question because the evidence is overwhelming. Polygamy has a terrible track record of leading to the concentration of political and reproductive power, the disenfranchisement of poor working men, the subjugation of women, and, in almost all cases, the increasing sexualization of young girls. It offers no offsetting benefits to society. It leads to lower levels of investment in offsprings compared to two-parent families. Some of these reasons are among those that caused the well-educated early first-wave feminists to hate it so much; to fight to raise the age of consent laws. They are among the reasons the United Nations literally considers polygamy a fundamental violation of human rights. The idea that somehow we will escape the fate of 99% of other civilizations that have evolved away from it were we to voluntarily devolve, again, strikes me as, to borrow one of your words, naive.”

        Again, there are so many reasons why I disagree with this statement. I’m not sure how much research you’ve done on this topic (I assume you’ve done a fair amount to take this viewpoint), but have you read recent studies done on polygamy by researchers, anthropologists, and other social scientists? The opinions are becoming increasingly diverse. You can definitely tell the discrepancy between modern anthropologists and ones from even a few decades ago. This is not to say that some researchers aren’t still completely opposed to polygamy or that many of them don’t recognize the woes associated with polygamy, it just means they are less inclined to say that those same woes are uniquely inherent in polygamy or that the practice offers “no benefits to society” as you put it. Some of your arguments against the acceptance or legalization of polygamy simply don’t hold up or can be easily rebutted. For example, as for the sexualization of girls and oppression of woman, which is perceived to be one of polygamy’s gravest ills, one could argue that this alone is not enough to make polygamy illegal as the sexualization of children is already illegal. Whether this abuse occurs in a traditional monogamous marriage, a single parent home, a same-sex marriage, or in any other form it is equally as sinister as it occurring in a polygamous household. Also, more legal analysts and social researchers are raising the question whether these acts actually occur more in poly-relationships, and if so is there a possibility that these acts occur more due to the black market nature of polygamy in western society that has prevented it from fully breaking out of its supposed patriarchal shell. Also, if gay marriage and monogamy aren’t about offspring why would you then declare the state of offspring as a reason to deny polygamous the right to marry?

        Furthermore,the whole patriarchal arguments goes out the window if the poly relationship involves polyandry or spouses of the same sex. Not to mention some feminist are starting to approach polygamy in the same way they approach prostitution, as in using it as a form of empowerment, or advocating for it to be regulated, not illegal.

        Anthropologist Miriam Koktvedgard Zeitzen emphasized the changing perception of polygamy when she stated in 2008, “…polygamy is not an exotic non-Western custom, practiced by people who have not yet entered the modern world. Polygamy is worldwide, cross-cultural in scope, it is found on all continents and among adherents of all world religions. Its practitioners range from modern feminists to traditional patriarchs, illustrating the great versatility of polygamy as a kinship system”

        “Like the legal questions at play in same-sex marriage, it has nothing to do with love, or feelings, or any of those things. It’s a very strict, constitutional issue and it just can’t win given the historical record. Not in any intellectually
        honest court.”

        All I’m saying is that if your opposition to poly-marriage legalization is all about the “evidence”, than you have to wonder whether the specific evidence you cite will always serve as a “rational basis” to deny equality to polygamist as this taboo practice continues to be re-evaluated. This certainly wasn’t the case for gay marriage. Once the evidence evolves (this is already occurring), most likely so will public opinion and vice versa, if you go by the pattern. After this occurs any intellectually honest, or at least consistent, court can deny that the parallels between discriminating based on sex and discriminating based on number exist.