Guest Blogger

Bigger Love? Same-Sex Marriage and the Poly Problem

Filed By Guest Blogger | September 18, 2014 10:00 AM | comments

Filed in: Marriage Equality, The Movement
Tags: gay marriage, incest, marriage equality, polyamory, polygamy, relationship recognition, same-sex marriage, slippery slope

Editor's Note: Guest blogger Joseph Fischel is Assistant Professor and Director of Undergraduate Studies for the Women's, Gender, & Sexuality Studies Program at Yale University. Fischel's research is in political philosophy, public law, and feminist and queer theory. He has published articles in law and gender studies journals, and his first book, Sex and Harm in the Age of Consent, will be published next year with the University of Minnesota Press.

Detractors of same-sex marriage invariably invoke the slippery slope of moral depravity. After the gender wall crumbles, they say, men will marry children, women will marry their cats, and siblings and cousins will get hitched. Leading marriage equality advocates like Evan Wolfson argue that such comparisons are ridiculous "scare tactics," completely unrelated to the fight for same-sex marriage.

But how unrelated? As law professor Geoffrey Stone helpfully explains, lower courts have constitutionalized same-sex marriage through three arguments: 1.) the Constitution guarantees a fundamental right to marry; 2.) discrimination against gays and lesbians serves no compelling state interest... 3.) let alone a legitimate one. Recently, the 4th and 10th Circuit Courts of Appeals annulled state same-sex marriage bans based on argument #1, and it is this argument -- the fundamental right to marry -- that makes the slope no longer slippery, but full-on lubricated.

constitution-we-the-people.jpgHere is how the doctrinal argument for marriage-as-a-fundamental-right plays out in these appellate decisions: Loving v. Virginia (1967) declares marriage a "fundamental freedom" and invalidates interracial marriage prohibitions. Zablocki v. Redhail (1978) finds marriage a fundamental right that the state cannot withdraw based on one's record of paying child support. Turner v. Safley (1987) strikes down a categorical ban against prison inmates from marrying. Finally, United States v. Windsor (2013) brings us one step closer to making sex as equally immaterial to marriage entry (and exit) as criminal status, "deadbeat dad" status, or race. In combination, these cases establish a constitutional right to marriage, premised on a respect for adult choices about love, family, and intimate relations.

If a constitutional right is fundamental, then a state needs a "compelling interest" to restrict that right. The compelling interest standard mops up some of, but not all of, the slipperiness of the slippery slope: men cannot marry children because of the compelling state interest in child welfare. Women cannot marry their cats because cats cannot uphold the duties and obligations of the marriage contract.

But as Judge Niemeyer asks in his dissent in Bostic v. Schaefer (2014), if adults hold a fundamental right to marry, what prevents polygamy? What prevents adult siblings from successfully seeking marriage rights? What makes numerosity different from race, sex, prisoner status, or "deadbeat dad" status?

Nothing. And it is the same-sex marriage cases themselves, along with other gay and women's rights cases, which have gutted any meaningful grounds for opposition.

What are some of the objections to state recognition of multiple-partner intimacy arrangements and adult incestuous relations? Below are four common ones.

But What About the Children?

A central argument against incestuous marriage is that the undifferentiated genetic material of spouses -- siblings, cousins -- will generate deformed or disabled children. A main objection against polygamy is that the progeny of such marriages may suffer neglect or abuse. Let's call these the one-eyed child problem and the FLDS ranch child problem, respectively.

The same-sex marriage decisions have obliterated arguments based on the one-eyed child and the ranch child. Marriage, we have learned from these cases, has no necessary connection to procreation. Nor does marriage have any necessary connection to sex.

If we are worried about brother Adam and sister Barbara having a one-eyed kid together, then we should forbid them from having sex, or alternatively, compel them to use contraception if they do. But prohibiting them from marriage is decidedly beside the point. And as one judge after another has pointed out in the post-Windsor decisions, bans on same-sex marriage harm the children raised by gay and lesbian couples. Surely the same principle holds for the children of polygamous, polyamorous, and other multiple-partner intimate relations: wouldn't these children be more dignified, better respected, and better protected if their mommies and daddies' partnerships were sanctioned by the state, and if their family arrangements were seen as equally legitimate?

But What About Women?

polygamy.jpgCritics argue that the history of polygamy is the history of violence against and subordination of women. To that end, same-sex marriage heralds a more egalitarian division of labor, whereas multiple-partnered marriage reverts us to patriarchy. But as John Stuart Mill told us over 150 years ago, the history of dyadic marriage isn't so peachy either on the sex equality front.

If we are truly concerned about violence against and subordination of women, we should probably place less energy on criminalizing and distancing ourselves from polygamy, and place more energy on violent gender norms attendant to everyday heterosexuality and "normal" marital relations (see Ray Rice). And polygamy, which typically refers to the union of one man and multiple women, is but one form of many varieties of intimate plurality. It will be incredulous for the Court to tell three women seeking a marriage license that their relation harms women.

Moreover, as we know from prostitution, drugs, and other illicit markets, criminalization exacerbates vulnerability; regulation, on the other hand, can offer rights and recourse.

It's Complicated.

Another argument against multiple-partner marriage is that it will be an administrative and regulatory nightmare. Who gets the dog in the divorce? Who gets the estate after someone dies? Indeed, this complexity may be the way multiple-partner marriage is most distinguishable from same-sex marriage.

But if marriage is a fundamental right, then as I've mentioned above, we need a compelling state interest to interfere. In the landmark sex equality case Reed v. Reed (1971), "it's complicated" did not rise to the level of a legitimate state interest (argument #3), let alone a compelling one (argument #2).

It's Icky.

Marriage between siblings or cousins, or marriage among one man and many women is just, you know, not right. There is something deeply unsettling about these arrangements to many Americans. But as Planned Parenthood v. Casey (1992), Romer v. Evans (1996), Lawrence v. Texas (2003), and many of the same-sex marriage cases have firmly established, your moral disgust is not a legitimate basis for the regulation of sexual conduct, or for discriminating against sexual minorities. If you don't like abortion, don't have one; if you don't want to marry your cousin or your two or three or four friends, then don't. But your moral code is just that: yours.

So where does this leave the marriage equality movement? If we are going to be honest with ourselves, and up-front about the logical consequences of litigation, we have two paths before us.

If we embrace marriage as a fundamental right -- a right side-constrained only by the consenting adult -- then we need to tolerate, and perhaps even endorse, adult consanguineous and multiple-partner marriage, ickiness notwithstanding.

And if we think lesbians and gays are better, more deserving of state recognition than our poly friends, then we ought to abandon the notion of marriage as a fundamental right, both in our litigation and public relations strategies. There are several other arguments for state recognition that do not necessarily commit us to multiple-partner marriage: sex equality, sexuality equality, the history of anti-gay discrimination and violence, immutability, and so forth. None of these arguments are cost-free either.

So which costs are we willing to suffer, and which costs might actually turn out to be benefits? Might it be time for the marriage equality movement to love bigger?

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