On the Polygamy Non-Argument
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Galois, a mathematician who isn't a lawyer (but obviously would have made a fine one) has a very good post on the polygamy non-argument regarding gay marriage:
Very good. If I may extend the analysis one layer -- yes, approval voting (which I unconditionally oppose on the grounds that it's, um, totally stupid) could work. Polygamy, as a legal status, simply cannot.
It's very interesting that the polygamy doomsayers always seem to posit the "traditional," Mormon style of polygamy (i.e., one male married to several females). But of course there is no reason polygamy should only apply to that fact pattern: why not one woman married to several men, or five men married to seven women, or perhaps the partners of a small business might all get married for tax or other reasons (cf., "I told you -- we're an anarcho-syndicalist commune!").
Could marriage, qua legal status, accommodate polygamous relationships? No! How would divorce be handled in polygamy? Could two "spouses" oust a third? What about property ownership -- could three out of seven spouses own property jointly apart from the others? Can a spouse in one polygamous marriage enter into another polygamous marriage without the consent of all the spouses of the original and the new marriages? What about inheritance? Tax returns? Child support? Powers of attorney? Right-to-die decisions?
The legal implications of the status of marriage require, metaphysically, that it be between two and only two people. But those same legal implications do not require, metaphysically, that it be between a man and a woman.
Circling back to the legal analysis: Since, under Supreme Court holdings -- namely Loving v. Virginia, 388 U.S. 1 (1966), which struck down anti-miscegenation laws, and Zablocki v. Redhail, 434 U.S. 374 (1978), extending Loving -- there is a fundamental right to marry under the Due Process Clause of the Fourteenth Amendment, the state would have to show a "compelling interest" in restricting a particular form of marriage. Clearly the sheer impossibility (not difficulty, but impossibility) of implementing legal polygamy qualifies. But gay marriage is of course not impossible. That is the distinction. Polygamy = impossible; gay marriage = possible. Compelling interest to restrict one but not the other. QED.
As I have blogged previously, I still worry more about courts being intellectually dishonest and short-circuiting Loving wholesale by claiming that it was "only about race," despite the fact that subsequent Supreme Court cases have clearly said otherwise (i.e., that there is a ubiquitous fundamental right to marry).
We shall see...
UPDATE #1: Fixed the bad "totally stupid" link to the Arrow Impossibility Theorem. Apologies to anyone (understandably) befuddled by the wikipedia link to "arrow."
UPDATE #2: A dissenting view:
About as interesting as the associative laws of arithmetic. Just because I say that "two minus one is not the same as one minus two" doesn't mean I'm being a hypocrite; it just means I'm being a mathematician.
Related Post:
Thoughts on the New York Gay Marriage Decision
I believe we have a fundamental right to vote. This does not mean I believe that the state should not be able to regulate voting. On the contrary it must if the vote is to be recognized in any way. Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily the right to cast a ballot for the candidate of our choice.
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Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like? Such a system, as in approval voting, could work. In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system. The right to vote cannot include the right for us to each decide which voting system we would like to use. Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like.
Very good. If I may extend the analysis one layer -- yes, approval voting (which I unconditionally oppose on the grounds that it's, um, totally stupid) could work. Polygamy, as a legal status, simply cannot.
It's very interesting that the polygamy doomsayers always seem to posit the "traditional," Mormon style of polygamy (i.e., one male married to several females). But of course there is no reason polygamy should only apply to that fact pattern: why not one woman married to several men, or five men married to seven women, or perhaps the partners of a small business might all get married for tax or other reasons (cf., "I told you -- we're an anarcho-syndicalist commune!").
Could marriage, qua legal status, accommodate polygamous relationships? No! How would divorce be handled in polygamy? Could two "spouses" oust a third? What about property ownership -- could three out of seven spouses own property jointly apart from the others? Can a spouse in one polygamous marriage enter into another polygamous marriage without the consent of all the spouses of the original and the new marriages? What about inheritance? Tax returns? Child support? Powers of attorney? Right-to-die decisions?
The legal implications of the status of marriage require, metaphysically, that it be between two and only two people. But those same legal implications do not require, metaphysically, that it be between a man and a woman.
Circling back to the legal analysis: Since, under Supreme Court holdings -- namely Loving v. Virginia, 388 U.S. 1 (1966), which struck down anti-miscegenation laws, and Zablocki v. Redhail, 434 U.S. 374 (1978), extending Loving -- there is a fundamental right to marry under the Due Process Clause of the Fourteenth Amendment, the state would have to show a "compelling interest" in restricting a particular form of marriage. Clearly the sheer impossibility (not difficulty, but impossibility) of implementing legal polygamy qualifies. But gay marriage is of course not impossible. That is the distinction. Polygamy = impossible; gay marriage = possible. Compelling interest to restrict one but not the other. QED.
As I have blogged previously, I still worry more about courts being intellectually dishonest and short-circuiting Loving wholesale by claiming that it was "only about race," despite the fact that subsequent Supreme Court cases have clearly said otherwise (i.e., that there is a ubiquitous fundamental right to marry).
We shall see...
UPDATE #1: Fixed the bad "totally stupid" link to the Arrow Impossibility Theorem. Apologies to anyone (understandably) befuddled by the wikipedia link to "arrow."
UPDATE #2: A dissenting view:
So arguing metaphysics to deprive a polygamist of his natural rights, and rejecting metaphysics when it impacts your natural rights.. intresting [sic] tactic...
About as interesting as the associative laws of arithmetic. Just because I say that "two minus one is not the same as one minus two" doesn't mean I'm being a hypocrite; it just means I'm being a mathematician.
Related Post:
Thoughts on the New York Gay Marriage Decision
Related Posts (on one page):
- Thou Shalt Have No Other Paycheck Before Me
- Where "Get Out of the Marriage Business" is Correct
- Marriage as Contract, Revisited
- "Traditional Marriage" Meets "Traditional Pork"
- Marriage Is Not a Contract: The Spousal Privilege Example
- On Krauthammer on Polygamy
- Does One Incestuous Couple Equal Millions of Gays?
- Gay Marriage v. Polygamy, Revisited
- On the Polygamy Non-Argument
Posted by KipEsquire on
11 February 2005
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