It’s the great coming out. Ken Mehlman, former RNC chairman, is gay. Ann Coulter is speaking at gay conservative events even if it means getting dropped by what many consider to be the “birther” fringe. And young Republicans are booing down moral majority types at CPAC. All this has me thinking.
Maybe it would seem that for the anti-gay right, the jig - as they say - is up. Their last serious argument against gay marriage appears to be a version of the slippery slope: Why wouldn’t such an institution justify all sorts of queer arrangements, they say, like polygamy? The U.S. will just be slouching one step closer to Gomorrah.
But journalist Ken Herman, writing in the Austin-American Statesman, seriously wonders: Why not polygamy?
Specifically, Herman puts the question to one Ann Radnofsky--a liberal candidate for Texas attorney general. While Radnofsky supports gay marriage, on the question of polygamous marriage she warns: "Polygamy is outlawed everywhere in the United States." So no. But her answer begs the question. When Herman reminds Radnofsky that interracial marriage was once universally outlawed, she hems, haws then settles on some weak premise about polygamy negatively affecting women. In short, Radnofsky - a Democrat - doesn’t argue from consistency, principle or sovereign choice.
She argues from Russell Kirk conservatism.
But the polygamy question is a good one. If we’re going to have a serious debate about gay marriage, we need to have a serious debate about all sorts of “alternative” social arrangements that involve various combinations of human beings with different sex organs. (In other words: Slope, meet banana peel.)
Contracts, Civil Unions and Semantics
Before we talk about polygamy, let me say that I think the whole gay marriage debate is dumb. As with many issues, each “side” presents a false dichotomy -- i.e. two rival sets of moralists fighting over the same territory in order to form a government monopoly.
As I’ve written elsewhere:
[T]he state should get out of the marriage business. Period. End the debate. Marriage is a matter for churches, mosques and temples. Civil unions ensure that people who unite contractually are treated equally before the law, as the Constitution requires. If a church is willing to marry two gay people, fine. It’s none of the government’s business. Government will, however, offer equal tax treatment. Civil unions cover this just fine and states may craft their own civil union variations. Ultimately, though, marriage is ritual and, therefore, a private matter.
In other words, cut this Gordian Knot with common sense. I am not alone in this thinking, apparently. Harvard economist Jeffrey Miron made a similar case, recently. Of course, if I’m forced to accept that marriage is to be a state institution (i.e. civil unions with a hot-button label), then I’m firmly on the side of gay marriage. It’s a matter of equality before the law--a critical principle that people on both the right and left are often willing to abandon to defend pet issues.
Bad. But what if three women wanted to contract with each other in some meaningful way? What if two men and a woman, or two women and a man wanted to divide domestic responsibilities and connect with one another via the sinews of law? What about a religious Mormon sect? Most of the arguments brought against gay marriage fail for the same reasons they don’t apply to polygamy.
Consider a handful of these in italics, where X means either “gay marriage” or “polygamy”:
Marriage has always been defined as being between a man and a woman.
But should it be? This is the question at issue.
Okay, then It should be defined so because studies have shown X has an adverse effect on children.
Even if such a dubious “study” held water, we can always find cases in which the X arrangement is far-and-away healthier than some “traditional” marriage instance in which, say, dad is abusive and mom is drunk. Government’s job should be to prove and then punish harms. It’s job should not be to preempt harm based on stats, prejudices or some combination of both. (In fact, this form of argument could be used to justify bans on beer-drinking or single parenting--all of which could statistically have adverse effects on kids taken as a group.)
Rome declined because of a lack of morals (defined a certain way). Government must legislate this morality to prevent the U.S. from a similar decline.
Rome declined for all sorts of reasons, including--dependence on slave labor, corruption, high taxes, economic decline, imperial overreach and rule by fiat. Keeping alternative living arrangements in the shadows is not likely to preserve moral order. In fact, the whole point of civil unions or contracts is to bind people to each other in terms of the costs, benefits and the responsibilities of their domestic lives. Such, arguably, improves social order. Besides, if such arrangements turn out to be less-than-successful, fewer people will enter into them.
The U.S. Republic was founded on Judeo-Christian principles, which proscribe X.
The United States is not a theocracy. Read the Constitution.
X will drive up the costs of social services and give people all sorts of access to government benefits, services and tax deductions that will contribute further to our fiscal insolvency.
Such may or may not be true in fact. But it confuses a symptom for a disease, namely that the welfare state is far too extensive--arising from a government that is way too intrusive. And no one should be forced to subsidize any lifestyle through the tax code.
Gay people - biologically - cannot have children. Marriage is designed to protect and foster the development of families who have children.
Gay people are able not only to adopt, but they can provide loving, caring environments for children. In fact, countless gay people have spent generations caring for their children in silence. It’s only recently that they could speak openly about their orientations. On the other hand, heterosexual couples often want no children. Should the latter be barred from marriage if marriage is to be grounded in reproductive biology? Remember, you cannot derive an “ought” from an “is”. That means you cannot derive justification for a gay-marriage ban from facts of reproductive biology. And even now, as gay people desire children, they can find creative ways to have children--despite limits on gay adoptions. (Those who would keep bans in place aren’t really stopping anybody, only making life much more difficult for would be parents.)
Freedom of Association is Basic
Let me repeat that I am defending neither gay nor polygamous marriage as an institution sanctioned by the state. I am, rather, saying that arguments against either fail in similar ways.
I’m one o’ them gawdawful “materialistic libertarians.”
My prescription is simple. Let people be free to associate and contract in any way they choose. If their arrangements fail, perhaps we can all learn from those failures. But let’s get the government out of the association business altogether. And let’s let churches and communities protect the institutions people value within those communities.
Finally, some who support gay marriage -- but not polygamy -- might argue that, somehow, legal union among three, say, is sufficiently different from marriage between two that it should remain proscribed. Beyond the is-ought problem, I’d say it’s in that “somehow” that much more work needs to be done. The totems and taboos of tradition may have been erected for good reasons --reasons that persist. But it’s not clear we need the force of law to maintain them. Indeed, folks should be able to opt into all sorts of social arrangements that you, Leon Kass, or I may find repugnant... After all, we don’t have to participate, do we?
(Author’s Note: This post is dedicated to my loving mother and her partner who will celebrate their love and commitment on September 18, 2010 in North Carolina in a private ceremony. The state will not recognize that commitment. But I sure will.)