Thursday, March 22, 2007
In Defense of Polygamy, with explanatory notes
No one said during a recent Hartford Courant’s seminar on blogging that the activity was pretty much like a masked ball on the Pequod; masked because most of the commentators on ship operate under pseudonyms, and the Pequod because that fair ship was, among other things, Melville’s metaphor for a jostling, multicultural world. Most of the usual arguments against gay marriage having been answered sufficiently by proponents of gay marriage, I was wondering whether the same defenses used by gays may also be used to check what appears to be a troglodyte resistance to polygamy. So I proposed the question during a blog session at Connecticut Local Politics, one of the most active sites in Connecticut’s burgeoning blog community. A blogger, ctkeith, helpfully suggested that I move the dialogue to my own blog, “where it will never be read”. If it is never read, I see no harm in this. What follows below is the resulting thread on the question proposed. I’ve edited out other comments that do not bear on the point without, I hope, doing violence to the dialogue, which may be read in its entirety here. I’ve corrected some spelling and grammatical errors. A few additions to the threads are included in parentheses. My conclusion – always provisional in the blogging communit -- may be found in italics at the end of the thread.
Ghengis Conn (the proprietor of Connecticut Local Politics): “It’s also said that gay marriage will eventually lead to polygamy and worse. This argument is without even the barest shred of merit.”
The point most people are making is a little more subtle than that. There may no causative connection between gay marriage and polygamy such that allowing one will permit or encourage the other. Here’s the problem: Polygamy is a legitimate – and even religiously honored – social arrangement. Some Mormons used to practice polygamy before Christians got all in a twit about it and managed to convince legislators to criminalize the practice. But that was in the long ago, before all of us became multiculturalists, a multiculturalist being defined as one who is convinced that all useful and practical social arrangements are equally acceptable. Polygamy is practiced, and accepted, in Islam. Now, the arguments in favor of polygamy are very convincing: 1) In a society in which two working spouses have problems in making ends meet, the addition to the traditional arrangement of extra partners makes a lot of economic sense; 2) If we are willing to accept unorthodox familial arrangements – two dads and children, two moms and children – upon what grounds should we forbid a like arrangement for polygamist groupings; aren’t more dads and moms better for the children than fewer dads and moms?; 3) isn’t every argument in favor of gay marriage also an argument in favor of polygamy? If for petty prejudicial reasons we wish not to allow polygamy – say, we just don’t like polygamists – what other practical reasons can we offer to assure that the practice remains illegal? Most of the practical reasons, it may seem to some, have already been debunked.
6 | Don Pesci March 20th, 2007 at 1:12 pm
And Don–there are a few ways to look at that issue, and I agree that at least in terms of the law, it’s not as meritless as Genghis says it is. The easiest way to look at it, at least for CT, is to say that under our state constitution and the laws that have been enacted by our legislature, sexual orientation is a protected class. Which is a perfectly legitimate argument at this point in our state’s history; we have legislation against discrimination on that basis, against hate crimes, etc. If sexual orientation is a protected class (like race), any legislation imposing restrictions based on sexual orientation are therefore subject to strict scrutiny by courts, under which most legislation fails as violative of constitutional rights. That’s not an argument that would work in all states, b/c each state has a different history with regards to the rights of gays and lesbians. But it would work in our state, and that argument is not a slippery slope into allowing polygamy.
8 | Gems March 20th, 2007 at 1:19 pm
“…each state has a different history with regards to the rights of gays and lesbians. But it would work in our state, and that argument is not a slippery slope into allowing polygamy.”
Forgive me, but the notion of a “slippery slope” is a polite fiction. Polygamy, religiously sanctioned, already exists in a multicultural world. The question is not: Do gay rights lead to polygamy? I do not believe there is a necessary connection. But in a permissive and multi-cultural society, it will not be long before polygamists – very nice people, but different – will want to claim their rights, religious or secular. They will be advancing arguments very much like those I see here in favor of gay rights. If we decide not to allow polygamy, how shall we prevent them from extending the social franchise to polygamists? It seems to me that an answer to this question will do much to relieve the anxiety of people who oppose gay rights. So, what’s the answer to my question? Silence and shifting the question to other subjects will not be allowed.
14 | Don Pesci March 20th, 2007 at 1:53 pm
Don, if gay marriage is the product of judicial fiat then there is no way to stop polygamy from being made legal. If it is by legislative fiat then there is no problem: the legislature draws lines all the time.
15 | Tony Starks March 20th, 2007 at 1:59 pm
The bill in no way mandates what religions must do–only what the state does. Better that way, by far.
16 | Genghis Conn March 20th, 2007 at 2:08 pm
“If we decide not to allow polygamy, how shall we prevent them from extending the social franchise to polygamists? . . . Silence and shifting the question to other subjects will not be allowed.”
Thanks for laying out the ground rules, Don. Nice. Anyway, I think you prevent it from being extended by having this be a legislative action, as Tony says. The legislature is there to represent the views of the people of this state. Say what you want about whether the legislature is one the right or wrong side of this issue–the legislative process is working here. Legislators are meeting with constituents on both sides of the issue, they’re sitting through public hearings, and they’re voting on the bills relevant to the rights of same-sex couples, up to and including marriage. I agree with Lawlor’s statement that gay marriage is inevitable, b/c it’s becoming more and more accepted by the younger generation, so when we’re in our 40s and 50s and make up the government of this state, the laws will reflect our views. Perhaps my children will think polygamy is acceptable, because 50 years from now, polygamy will have gained widespread support. That’s OK with me. The laws of a state are supposed to change with the people of the state, and people’s views on issues change with the times. Maybe polygamy won’t ever be acceptable to the people of this state–in that case, the issue would never gain traction in the legislature. That’s the legislative process, and again, I’m OK with that. And now I have to get back to work, so silence beyond this post will just have to be allowed, Don.
17 | Gems March 20th, 2007 at 2:28 pm
Polygamy and Gay marriage, as issues in regards to marriage, are completely different. For the Judiciary to grant Gay Marriage they would simply have to strike they would simply have to strike “between a man and woman” from the law. The ability to strike down parts of law has been a clear judicial power since Marbary v. Madison. There is no additional governing case law that has to be created. For polygamy to work, you would have to define such legal issues as how divorces are handled in plural marriages, what percentage is each spouse entitled to, how many marriages may one engage in, what responsibility one would have to each spouse. This could not be done by simply striking down language. The only way to define this would be through legislation, because it would require the rewriting of all marriage law. Since Gay marriage is still between two equal partners, nothing needs to changed except 5 words. That being said, it would be best if the legislature did this. It is always best when the Legislature chooses to follow the states constitution, instead of being forced by the courts.
As for the decline in marriages in European countries, I believe that was a trend well before Gay Marriage was instituted. Without facts to back me up, I would suspect it has more to do with the younger generation fearing marriage due to the increase in divorce than anything else. I know that fear has made more extremely cautious in approaching the issue.
22 | adamcs95 March 20th, 2007 at 7:44 pm
Something to ponder after work: Given the tendency here in the United States for the courts to meddle in legislative affairs, particularly when an aggrieved party claims a violation of constitutional rights, the possibility of the question at issue being decided legislatively is, shall we say, remote. A legislature may constitutionally remove certain jurisdictions from the courts, or it may propose a constitutional amendment that protects an issue from judicial meddling – but all that is very difficult and probably impractical. What this means is that if we wish to prohibit an activity, we shall have to do it by writing pretty ironclad legislative prohibitions. The question I am trying to raise is: If an activity is so abhorrent to a community that the community is resolved to prohibit it, what convincing arguments can it use that are unassailable? That is an important question. I am listening to the arguments on both sides of the gay marriage issue here, and I am coming away from it with the feeling that every argument used to advance the cause of gay marriage – and many of the arguments are plausible – may also be used to advance the cause of polygamy, a respectable social arrangement in some parts of the world, and incest, which is legal in France among children under a certain age and consenting adults. I just want someone to develop a legislative or judicial strategy that would allay fears that we are helpless in the face of “inevitable” social change of a kind that even (an) honorable progressive would object to.
24 | Don Pesci March 20th, 2007 at 8:01 pm
The rule in law is that if an activity is not specifically prohibited in statutory or constitutional law, it is allowed. What the lawmaker has given, the lawmaker may take away; the reverse is also true. To allow an activity previously prohibited, one need only amend the law to strike out the prohibited activity. That is what is being proposed in the bill allowing marriage for gays now wending its way through the legislature. Occasionally, the courts also change legislative law through judicial interpretation. It is will, rather than some fictitious doctrine of inevitability, that determines the destiny of states and nations.
25 | Don Pesci March 20th, 2007 at 8:16 pm
Let me put this some other way. You can form a sole proprietorship, which is a business entity of just you. There are certain rules and laws that govern this formation, and those rules are written in a certain way as to pertain to a single person. If you wish to add more people to the mix, that is a completely separate institution with different rules. Marriage is the same way. Such a complete over haul would be needed to facilitate polygamists that the institution could no longer be considered marriage, a separate institution with separate rules would have to be created, which is a role the Judiciary has never claimed. Furthermore, discrimination does not come into play on this issue, while in the Gay Marriage debate it does. Marriage, as far as the government is concerned, is a civil matter. Any demand for polygamy to be accepted on religious grounds would be thrown out of court, because no marriage is accepted on religious grounds.
26 | adamcs95 March 20th, 2007 at 8:20 pm
I agree that the construction of legislation allowing polygamy would be a delicate process, and, of course, traditionally courts have not engaged in the writing of such legislation. The role of the court usually ends in declaring a law unconstitutional; the patching up process is left to legislators who feel the point of the judicial gun at their temples. Upon what grounds would you object to a polygamist agitating for an extension of civil rights to allow him the same freedom enjoyed by non-polygamists? Courts usually frown upon the argument you advance once the court has decided that the petitioner is being denied a constitutional right. Difficulties may always be overcome – at some cost, to be sure, to our traditions. Sole proprietorships mutate into multi-proprietorships all the time.
28 | Don Pesci March 20th, 2007 at 8:47 pm
Why not take this conversation over to your blog where no one will see it?
Your Rovian tactic of printing the word Polygamy on a thread about Gay marriage a thousand times is kind of annoying and quite transparent by now.
29 | ctkeith March 20th, 2007 at 8:56 pm
Let me start last first. Yes they may start as sole proprietorships and turn into an LLC, that doesn’t stop the fact that it has become a separate institution. What civil rights do you believe are being violated by the state refusing to issue multiple marriage contracts to one person?
30 | adamcs95 March 20th, 2007 at 9:02 pm
Should I be mentioning incest then?
32 | Don Pesci March 20th, 2007 at 9:22 pm
“What civil rights do you believe are being violated by the state refusing to issue multiple marriage contracts to one person?”
The same rights that are being denied to gays.
33 | Don Pesci March 20th, 2007 at 9:25 pm
21st Amendment to the State Constitution: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.
I clearly see sex in that Amendment, I don’t see any mention of polygamists, or those who engage in incest.
34 | adamcs95 March 20th, 2007 at 9:32 pm
Furthermore, Polygamy appears to be expressly prohibited by Section 3 of the Constitution
35 | adamcs95 March 20th, 2007 at 9:42 pm
The thread I am developing is not entirely theoretical. Shortly after the Vietnam War, a cousin from New York – Fordham graduate – went to Saudi Arabia and, like T.E Lawrence, became infatuated with the culture and went native. He now has three wives. If he resettled in the United States, his marital arrangements would be frowned upon by the same sort of narrow-minded bigots that seek to deprive gays of their rights. Why shouldn’t the social franchise be extended to polygamists? adamcs95 says that accommodating my cousin, who holds duel citizenship, would be legislatively difficult. So what? Difficulties can be overcome. I am mentioning polygamy too often to suit ctkeith’s delicate taste. Hey, get over it, man. An authority on marriage and the Bible, writing recently in the Hartford Courant, reminds us that polygamy is part of the biblical culture. Practitioners of Islam here in the United States can hardly be expected to rest content with a religious rather than a civil right so long as the police are under the bed restricting what should be their civil rights. Polygamy will not affect non-polygamist marital arrangements. So what’s the problem?
36 | Don Pesci March 20th, 2007 at 9:58 pm
I think you answered your own question. Civil rights have nothing to do with any religion. If in the future we decide through our legislature or our courts that polygamous marriages are within our legal realm then they will be.
37 | ctkeith March 20th, 2007 at 10:42 pm
Not so sure that civil rights have NOTHING to do with religion since religion is one of the constitutional rights mentioned in the US constitution. But you can have the last word. Glad you’re down with polygamy.
38 | Don Pesci March 21st, 2007 at 4:37 am
I support the proposed bill that will include same-sex couples within Connecticut’s definition of marriage. The primary posting above ably states why this is a positive step.
What amazes me are the 39 posted comments that follow. We need to get Don Pesci a day job so he can focus on something other than polygamy.
Passage of the marriage equality bill would indicate that lesbians and gay men are social equals to nongays. Even more significant, same-sex marriage will imply that the SEXES are deeply and fundamentally equal. This brings to mind the 1998 Southern Baptist Convention passage of 2 closely linked rules: that a wife must “submit” to her husband and that homosexuality must be opposed by every possible means.
EJ Graff reminds us that these two ideas are “twin sides of the same coin. If a woman marries another woman, who’s in charge? Restricting marriage to husband/wife pairs is an essential symbol of MALE supremacy–just as restricting marriage to one race was an essential symbol of WHITE supremacy. . . .Same-sex marriage reveals that marriage need not be hierarchical at all, that biology is not destiny, that marriage can be about not obedience but love.”
As to the history of polygamy, it has been an instrument of male domination–one husband and multiple wives. The inclusion of same-sex couples within our marriage framework is a step forward for those who value egalitarianism in our state’s institutions. I would hope that Mr. Pesci can see the difference between “domination” and “egalitarianism.”
I note that Stanley Kurtz is cited in a comment above. Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. It was established in 1976 to “apply the Judeo-Christian moral tradition to critical issues of public policy.” My experience with the writings of Stanley Kurtz is that he comes from that wing of the Judeo-Christian tradition that allies itself with the Empire rather than the Hebrew prophets. He would do well to read John Dominic Crossan’s new book God & Empire.
Christian theologian Walter Wink edited an evenhanded book on gay issues within religion. It is titled Homosexuality and the Christian Faith.
More recently Professor David Myers co-authored the book What God Has Joined Together? A Christian Case for Gay Marriage. He writes from his mid-western campus in Michigan and from an evangelical perspective. He supports the move toward marriage equality.
So I suggest that social commenter Stanley Kurtz is one voice that claims Judeo-Christian roots. A focused analysis reveals, however, that his position is built on premises of hierarchy and power, rather than love and commitment.
41 | WSCoughin March 21st, 2007 at 8:56 am
“As to the history of polygamy, it has been an instrument of male domination–one husband and multiple wives. The inclusion of same-sex couples within our marriage framework is a step forward for those who value egalitarianism in our state’s institutions. I would hope that Mr. Pesci can see the difference between ‘domination’ and ‘egalitarianism.’”
According to most feminists, the history of marriage is a history of males dominating females. Surely we can agree that, at least in Western society, this is no longer the case. In most instances, there is a rough equality in marriages, as in all else. Going forward, why should the same not be true in polygamous marriages? In a perfectly equalitarian society, women in polygamous marriages would be able to have as many or few husbands as men would have wives. An equalitarian could have no objection to that. Besides, my own personal objections or approval are unimportant; so are yours. The question is: If you don’t like polygamy and wish to prevent your sons and daughters from engaging in it, what are the laws and social conventions you may appeal to in order to effect your aim? According to you, those laws and social convention must not offend the principle of equality. Beyond this, I’m not clear what they might be.
42 | Don Pesci March 21st, 2007 at 6:45 pm
Then too, in the kind of marriage of which you approve — male, male and female, female — the kind of non-equalitarianism of which you disapprove could not occur. In a polygamous same sex marriage, there could be no gender inequality. If you must object, you must do so on other grounds.
43 | Don Pesci March 21st, 2007 at 7:21 pm
One more time, Using religion to change marriage would go against everything we know to be true about a civil contract. It is a civil contract. Changing it based upon religious justification would make it a religious document. It being a religious document, expressly endorsing a religion that has plural marriages, would be unconstitutional under the first amendment. Discriminating based on gender is expressly prohibited, but so is endorsing religious practices, making this a non-issue. Homosexuals only have said rights because a prohibition on gender discrimination is enshrined in the state’s constitution, and under the equal protection clause, the US Constitution. Until polygamists are recognized as a seperate group, having characteristics that are inherent at birth, or at least beyond there control, then no civil rights are violated. No move could be made in the courts.
44 | adamcs95 March 21st, 2007 at 7:55 pm
You know what, I’m just treading over the same ground again and again, hoping I can break through somehow. When I do, you ignore it (see the lack of response to 34 and 35). If you feel so strongly about this argument, the public hearing on this bill is on Monday. Go and make a DeLuca out of yourself.
45 | adamcs95 March 21st, 2007 at 7:58 pm
I think there are more than a few people that feel the timing of the gay bill being proposed has a lot to do with the CJ position. This will never pass on its own and will at some point go to the courts. Lawlor and McDonald might have felt that they needed Sullivan and Zarella out of the way if there was any chance of it passing a court challenge (but who’s to say how they, Sullivan and Zarella, would have voted.
While everyone else in Hartford was quiet, these two and the Courant carried on as if it was the end of the world. They twisted a nothing into something. Somehow, Dewy, Cheatem and Howe JUST HAPPENED to be on their side and the rest is history. Adam, given your other comments and your obvious position on this issue, I am shocked you would ask the question you are asking— (are) you just screwing with me?
I think the supporters of this bill are really reaching on the constitutional question. The constitution protects sex as in man and woman but I don’t see anything or even suggesting the he’n and he’n and she’n and she’n protection being claimed. All this long winded constitutional talk is moot. It comes down to the will of the people and I can’t believe the people of CT will stand by and support this mess. I don’t know much but, in my humble opinion, he’n and he’n and she’n and she’n is far worse than anything that happened at the court. Just think— he’n and he’n—- holding a decision— as Lewis Black would say–” don’t think about that for more than a second or your head will explode”
46 | fire153k March 21st, 2007 at 9:40 pm
Okay, adamcs95. Well take it bit by bit.
“One more time, Using religion to change marriage would go against everything we know to be true about a civil contract.”
No one is proposing “using religion to change marriage.” In fact, no (such) changes are proposed. In a civil society that recognizes polygamy – as it does in law recognize more traditional arrangements – religion would not be used to change marriage. Presently, polygamy is recognized in much of the world as a traditional marriage arrangement, and the civil law protects and does not change it. The same holds true with traditional marriage. The law here in the United States recognizes traditional marriage ALSO as a civil right. Indeed, the present legislation before the Connecticut legislature contemplates extending the same civil protections – marriage is a civil right but a religious privilege – to the less traditional marital arrangements approved by gay couples. I am asking you to tell me why the same protections cannot be extended to those who practice polygamy. The extension of the protections of civil law to polygamous arrangements very likely will produce here in the United States a bumper crop of non-religious polygamists. What about them? Suppose a gay couple wishes to engage in a polygamous marriage in which there would be no sex differences; would you allow that? By the way, believe me – Delucca would not favor polygamous marriage. He might be able to develop a reasonable argument against my proposal, but it would be one, I fear, that would not find favor in your eyes.
47 | Don Pesci March 22nd, 2007 at 5:32 am
A comprehensive answer to 34 and 35 would take me very far from the thread I am developing. Briefly, let me say that correct constitutional interpretation is no longer a bar to the pretensions of the Supreme Court. Any court that deduces rights not specifically mentioned in the constitution – a right to privacy, for instance – from the “aura of rights surrounding the constitution” has effectively freed itself from contextual interpretation. And that means that a previous commentator may be right in supposing that an extension of rights to groups not covered in the plain text of statutory or constitutional law is purely a matter of will: “All this long winded constitutional talk is moot. It comes down to the will of the people.” I have little doubt that a court liberated from textual analysis is capable of deducing a “right” to polygamy from the aura surrounding a grapefruit.
48 | Don Pesci March 22nd, 2007 at 6:54 am
Or, to put it another way: The Supreme Court having extruded a “privacy right” from the “aura of rights surrounding the constitution” that it then used to void statutory state laws governing sexual behavior, what is to prevent the same court from applying the same privacy rights to legalize, so to speak, the sexual behaviors of polygamists?
49 | Don Pesci March 22nd, 2007 at 7:1
Your claim seem to suggest that this right is being claimed is somehow extra constitutional, that it takes an activist judiciary to create it. In fact, It has been reaffirmed several times that the government may not discriminate on the basis of gender. Despite what you may think the whole basis for this argument is solidly grounded in the constitution and judicial precedent. So yes, my constitutional arguments come into play, because I believe it is the clear that any judge that can look at the constitution and judicial precedent and not find favorable for Gay Marriage is being activist Even a quick reading of the decisions in New York and Washington against gay marriage will show a judiciary that is being truly activist. They ignore the wording of the State’s Constitution, deny themselves a role that the Judiciary has claimed almost since the founding of the republic, and ignore at least 50 years of Judicial precedent to come to their decision denying marriage equality. That is activism.
As for the right of privacy, marriage is inherently public, since what we are talking about is recognition in the public sphere. If there is any right to privacy related to polygamy, it is only when a marriage license is not applied for. That is why the government doesn’t go into the FLDS compound and arrest everyone for polygamy.
Marriage is most of all a contractual commitment to another person. I know this example is crude, but when you sign a contract selling your house, it would be illegal for you to sign another contract selling to another person. Though I am not comparing marriage to selling yourself, it was the best example I could think of.
As for the “make a DeLuca out of yourself” comment, I was referring to how the Senator made an ass of himself at the Plan B public hearing by being ill informed on the issue, and failing even to read to bill. Therefore what I was suggesting you that you should testify at the public hearing, which I’m sure would be a great embarrassment, even if you don’t realize it.
50 | adamcs95 March 22nd, 2007 at 4:59 pm
Provisionally, it would seem that many of the arguments presently used by gays to assert their justicable rights under law to march to the tune of their own drummer may also be used by polygamist towards the same end.