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Big Love

Just in time for the Supreme Court’s eagerly awaited or in any event impending decision in Obergefell, Professor Ronald C. Den Otter (of a California state university in San Luis Obispo) has mounted an impressive Defense of Plural Marriage.  As the good professor notes in a balkinization guest post,

Those who care about gays and lesbians being discriminated against cannot ignore whether those who would marry multiple partners, if they were allowed to do so, are also being treated unfairly. …  What too many advocates of marriage equality fail to see is that the compelling reasons that support same-sex marriage, such as the value of personal choice in selecting a marital partner and the importance of equal legal treatment, also support a right to plural marriage.

That case looks more compelling by the day. As evidenced by various television freak shows, Professor Den Otter shrewdly observes,

 Americans are becoming more accustomed to the possibility that it may not be wrong for people to have an unconventional intimate relationship, provided that everything is consensual and between or among those who are legally capable of giving consent. Under conditions of moral pluralism, it stands to reason that at least some Americans may want to marry differently and not have the state refuse to provide them with a menu of marital options to select from.

That’s like so true. Or at least it stands to reason, possibly. But what’s going to be on the menu (and do we have a special tonight)? Perhaps, Judge Richard Posner once mused, gay marriage advocates should be tasked with “explaining what the state’s compelling interest is in forbidding a man to marry his beloved dachshund.” (Provided, I presume, that he or she is, or they are, found to be legally competent.) The judge’s question, posed in 2003, now reads like it was written millennia ago on a different planet. Under conditions of moral pluralism, we’re no longer allowed to pose such inquiries.

Reader Discussion

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on June 09, 2015 at 11:25:59 am

I do not really follow this topic, believing there is no real law to apply in the 14th amendment. The Supreme Court messed it up years ago, when it decided it had exclusive authority to interpret the meaningless language in the 14th amendment despite the clear grant of sweeping authority in section 5 to Congress. To me, the opposite conclusion, that Congress has primary authority to interpret the 14th amendment, and the Scotus only has authority to second-guess whether that Congressional exercise of interpretation is proper, seems like the reasonable way to read the 14th amendment in light of the separation of powers.

That said, I am somewhat interested in the remedial issues and federalism in these cases. Depending on how some of these state laws are written, it seems to me that the proper remedy is to mow down the entire marriage law. Nobody gets licenses. Otherwise, isn't the judiciary violating Printz v. United States?

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JimmyC
on June 09, 2015 at 13:26:43 pm

Is Greve compelled to post something on a regular schedule, whether or not he has something to say? The merits of granting state recognition to various forms of domestic relationships have been argument well and seriously throughout the web. This post contributes nothing to that work – not even to point to where real discussions may be found.

So let me toss out what I regard to be a controversial, but compelling, argument distinguishing between couple marriage and plural marriage: The social need to domesticate low-status men.

Social rules are generally created by the ruling class for the ruling class. For example, why does the ruling class recognize the property rights of lower classes? I surmise that, to a large extent, they have learned that they benefit from living in a society that honors property rights generally. To some extent, they have found that it is more expensive than it’s worth to appropriate other people’s property. And to some extent, they still do appropriate other people’s property. (E.g., The problems of Ferguson, MO, reflect a social choice to finance city government by preying upon powerless black motorists rather than taxing powerful domestic businesses, such as Emerson Electric, which has its headquarters within the city limits. In short, they take from the poor to serve the interests of the rich.)

Plural marriage provides a means by which high-status males secure exclusive access to more females, at the expense of low-status males (and, arguably, at the expense of the high-status females who now must share the attentions of high-status males). Thus it’s not surprising that we’d find it existing throughout the world. Yet as societies grow, the practice has tended to fall away. I surmise that this dynamic reflects the fact that plural marriage no longer served the interests of high-status males in densely populated societies. But why not?

Low-status males are associated with most violent crime. One tool for pacifying low-status males has been domestication: marry them off; give them a stake in a stable society. But it’s hard to find enough women to meet this demand if the high-status males claim them all.

Thus arises the norm of monogamy – that is, a kind of market segmentation whereby women are deprived of the opportunity to transact marital contracts with married men, and thus must settle for seeking partners among the unmarried men. While people don’t acknowledge it, monogamy is a social policy that induces women to enter into marital (and yes, sexual) relationships with less-desirable men than they would otherwise choose.

NONE of this argument applies to same-sex marriage. Yes, by letting lesbians marry each other, we reduce the pool of single women available to marry single men. But because they’re lesbians, they were probably among the least likely to marry these men in any event. On the other hand, each time a man marries a man, we reduce the supply of unmarried men at twice the rate as in a male-female marriage.

In short, society embraces monogamy as a way of manipulating women into conducting their most intimate affairs in a manner that is socially useful. I can’t really imagine a judge citing such a politically incorrect argument in rejecting petitions by plural marriage advocates – but I think this is a real dynamic that governs the issue.

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nobody.really
on June 09, 2015 at 16:21:52 pm

I seem to recall you previously having posted cogently on the economics of polygamy, so I respect your opinion here. It seems however that you have, in making a nuanced observation, passed over some simple points.

I would suggest that social treatment of polygamy evolved, not so much as a subtle means of maintaining power, as much as a more practical need to not have horn-dogs siring more offspring than they could provide for. They didn't want some chimney sweep or stable hand having thirty children, such that responsibility for providing for those who exceed the father's capacity would either fall on others, or simply increase the risk that children would grow up in even more abject poverty. A similar concern would have also led to the laws governing fornication, adultery and bastardy. It made things simpler all round if a man who was fathering children did so within a natural structure so that, no only could his means be more efficiently allocated to the welfare of his children. but also that he would have a better chance of knowing how many children he had, and who they were. Promiscuity, it would seem is more efficient at producing children, the institution of the family more efficient at providing for them. Of course this is all quaint history.

The institution of marriage did not arise as a "celebration of two persons' love for one another." It did so as a quid pro quo in which society afforded certain benefits to married couples in return for those couples committing to maintain a family, assuming the obligations of rearing and providing for children, to develop familial bonds of affection, honor and responsibility, and to keep the little ones from becoming feral. Advocates of "marriage equality," whatever that is, seem to be fine with the quid but feel that "fairness" demands that the quo be optional, They want the ceremony and trappings with only the most feeble commitment to the unknown that marriage had traditionally required; the challenges frustrations and plain old burdens of begetting and rearing children and caring for one's spouse in old age. This is also quaint history.

The tradition of marriage as a bracing social institution was undone long ago, not by gay marriage advocates or people who want to marry six different women, two dudes and a horse, or any other arrangement by which indulgence can be substituted for commitment. Marriage has been afflicted by the pill, by no fault divorce, by the phrase "my baby's mama," by acquiescence in four different children by four different fathers and seven children by six different women (or shortly, eight different women). We have, in effect been experimenting with getting rid of marriage for a century or more, by claiming it is oppressive, backward and unnecessary. Now we also contend with the new notion, that it is frivolous. Perhaps society and economics has evolved to the point that other institutions will seamlessly replace the benefits of heterosexual marriage. Maybe EBT cards will make it all okay. Maybe not.

With specific regard to polygamy, I suspect that the difficulties will be practical rather than cultural. Which spouse will be primus inter pares? Who will get to decide when to pull the plug on the old satyr's ventilator, or make the election to sue for wrongful death? What happens to equality then? What becomes of a family where both sexes have multiple spouses? Heather has two mommies, no wait, nine mommies, five daddies, thirty four sisters, eighteen of whom are first cousins and other of whom is pregnant with her own uncle.

Oh, well. You know how the Oxford English Dictionary adds new words, like "selfie," "vape," and "helicopter parent?" Well, we also have to get used to new phrases, like "My wife has an enlarged prostate," and "Two of my wives just married each other."

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z9z99
on June 09, 2015 at 18:00:26 pm

I would suggest that social treatment of polygamy evolved, not so much as a subtle means of maintaining power, as much as a more practical need to not have horn-dogs siring more offspring than they could provide for. They didn’t want some chimney sweep or stable hand having thirty children, such that responsibility for providing for those who exceed the father’s capacity would either fall on others, or simply increase the risk that children would grow up in even more abject poverty.

Perhaps. But I think this argument conflates sex and marriage.

In the era in which polygamy was abandoned in most western nations, was there a general concern about kids being raised in poverty? If we look at societies that still practice polygamy, do we find multiple women flocking to marry poor men and have kids in poverty? I suspect not – in part because societies which practiced and practice polygamy may also be societies with a rather limited social safety net.

Polygamy was/is practiced by high-status (i.e., wealth) men attracting multiple wives. Whoever exercised/exercises agency on the part of the potential brides (the woman, the father, or her clan) would have little interest in promoting a marriage that would provide a less financially sound future than other available options.

True, I suppose sometimes polygamist men would lose their financial base, resulting in widespread poverty for the extended clan. But this also happened among monogamous couples that had 11 kids. So I’m skeptical about the thesis that polygamy died out as a means to reduce the tendency to have more kids than parents could afford.

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nobody.really
on June 09, 2015 at 18:28:51 pm

I think this argument conflates sex and marriage.

No it doesn't.

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z9z99
on June 10, 2015 at 05:45:06 am

[…] Big Love […]

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What Is Dignity for the Goose Is Dignity for the Gander - Freedom's Floodgates
on June 10, 2015 at 11:23:55 am

[…] In a post on libertylawsite.org entitled “Big Love,” Michael Greve reports that: […]

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It Was Bound To Happen | The Locker Room

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.