Gay Marriage v. Polygamy, Revisited
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One wonders whether Tim Sandefur fully understands the nature of the arrangement he is about to enter into with his lovely fiance:
That's all very romantic and philosophical. It's also 100% wrong.
Marriage is not (or not only) a "right based on contract." It is a legal status that, to a very large extent, complements and sometimes even contradicts the concept of contract (e.g., in most states, a spouse's elective share supersedes a will provision disinheriting that spouse).
Herein lies the (not at all difficult) distinction between same-sex marriage and polygamy. Marriage by its nature qua legal status must, in a modern society, be limited to two people. A hypothetical polygamous "marriage" qua bundle of hypothetical contracts might be feasible in some hypothetical libertarian utopia. But that is not marriage as it exists, legally, in America today. The only way to validate "polygamous marriage" is to rewrite the fundamental definition, the fundamental nature, of marriage itself -- to blank out its nature as a legal status and replace it with some fictitious "bundle of contracts" doppelgaenger. But to do so reduces the whole debate down to mere question-begging. Which is not helpful.
As I blogged previously:
As for the hyper-anarcho-libertarians who try to short-circuit the entire gay marriage debate by moaning that "government should get of the marriage business altogether," well, even if such a lament somehow helped the real-world quest for equal treatment of gays (I don't see how it does), it's also, quite frankly, an unacceptably naive and simplistic worldview.
The great thing about marriage, qua legal status, is that it eliminates the need for the (extremely complicated) "bundle of strictly private contracts" that radical libertarians and defenders of theoretical polygamy (such as Sandefur) seem to think is such a "neat-o!" idea. Ask any gay couple who has actually tried to do it -- I guarantee you they'll say it's not so "neat-o."
Stated differently, marriage, qua legal status, is extremely efficient economically. It saves time. It saves resources (e.g., lawyers drafting documents). It saves money. It saves grief over lost, destroyed or badly-drafted contracts. In an (admittedly Rawlsian) sense, the shortcut of marriage, qua legal status, does the greatest good for the greatest number. It's simply a smart idea in a modern society.
Tinker around the edges all you want. Should there be a "marriage penalty" within the federal income tax? I doubt it. Should there be a spousal benefit under Social Security? I seriously doubt it. But these are overlays that don't go to the core of marriage qua legal status. The real meaning of marriage in modern society -- automatic property rights, automatic inheritance rights, automatic child custody rights, automatic healthcare rights, automatic decision-making rights of all kinds, these all derive not from some abstract "bundle of contracts" concept of marriage, but from the legal status concept.
And they require that marriage be limited to two people.
If consensual polygamists want to try to build a bird's nest from the individual twigs and strings of contractual arrangements, then by all means they have a right to do so (assuming no externalities, especially to the children of such arrangements). But the assertion that to draw the line at two-person marriage is "arbitrary" is nonsense.
Other prongs in this debate from Jason Kuznicki, Jon Rowe and Dispatches. Separate and distinct from this thread, meanwhile, Galois has a very intelligent post that echoes my concerns on "the new polygamy." On the other hand, here's a chap who demonstrates that it's a fine line between being a smartass and being a dumbass.
Related Post:
On the Polygamy Non-Argument
The right to marry is a right based on contract -- which means, based on the right of more than one person to exercise and trade their liberty as they see fit. The reason for recognition of gay marriage is that if two men wish to be married, that violates nobody else's rights, and therefore I don't have the right to stop them. (Well, that's the rough version.) If that theory is correct, then the exact same thing goes for consensual adult polygamy: a person certainly should be free to marry any person he loves, who is also a willing participant.
That's all very romantic and philosophical. It's also 100% wrong.
Marriage is not (or not only) a "right based on contract." It is a legal status that, to a very large extent, complements and sometimes even contradicts the concept of contract (e.g., in most states, a spouse's elective share supersedes a will provision disinheriting that spouse).
Herein lies the (not at all difficult) distinction between same-sex marriage and polygamy. Marriage by its nature qua legal status must, in a modern society, be limited to two people. A hypothetical polygamous "marriage" qua bundle of hypothetical contracts might be feasible in some hypothetical libertarian utopia. But that is not marriage as it exists, legally, in America today. The only way to validate "polygamous marriage" is to rewrite the fundamental definition, the fundamental nature, of marriage itself -- to blank out its nature as a legal status and replace it with some fictitious "bundle of contracts" doppelgaenger. But to do so reduces the whole debate down to mere question-begging. Which is not helpful.
As I blogged previously:
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 [modern] 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.
As for the hyper-anarcho-libertarians who try to short-circuit the entire gay marriage debate by moaning that "government should get of the marriage business altogether," well, even if such a lament somehow helped the real-world quest for equal treatment of gays (I don't see how it does), it's also, quite frankly, an unacceptably naive and simplistic worldview.
The great thing about marriage, qua legal status, is that it eliminates the need for the (extremely complicated) "bundle of strictly private contracts" that radical libertarians and defenders of theoretical polygamy (such as Sandefur) seem to think is such a "neat-o!" idea. Ask any gay couple who has actually tried to do it -- I guarantee you they'll say it's not so "neat-o."
Stated differently, marriage, qua legal status, is extremely efficient economically. It saves time. It saves resources (e.g., lawyers drafting documents). It saves money. It saves grief over lost, destroyed or badly-drafted contracts. In an (admittedly Rawlsian) sense, the shortcut of marriage, qua legal status, does the greatest good for the greatest number. It's simply a smart idea in a modern society.
Tinker around the edges all you want. Should there be a "marriage penalty" within the federal income tax? I doubt it. Should there be a spousal benefit under Social Security? I seriously doubt it. But these are overlays that don't go to the core of marriage qua legal status. The real meaning of marriage in modern society -- automatic property rights, automatic inheritance rights, automatic child custody rights, automatic healthcare rights, automatic decision-making rights of all kinds, these all derive not from some abstract "bundle of contracts" concept of marriage, but from the legal status concept.
And they require that marriage be limited to two people.
If consensual polygamists want to try to build a bird's nest from the individual twigs and strings of contractual arrangements, then by all means they have a right to do so (assuming no externalities, especially to the children of such arrangements). But the assertion that to draw the line at two-person marriage is "arbitrary" is nonsense.
Other prongs in this debate from Jason Kuznicki, Jon Rowe and Dispatches. Separate and distinct from this thread, meanwhile, Galois has a very intelligent post that echoes my concerns on "the new polygamy." On the other hand, here's a chap who demonstrates that it's a fine line between being a smartass and being a dumbass.
Related Post:
On the Polygamy Non-Argument
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
6 March 2005
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