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MCN’s Contribution: I’m not making one. At least not one on the merits.

Throughout these long, drawn out and ultimately fruitless debates on homosexual marriage and polygamy, the homosexual caucus has consistently accused my team of making arguments in bad faith, esp the polygamy argument. Pan, for example has asserted so on this very thread.

The cry of “you’re bigots” has also been a constant theme.
From the start, it’s difficult to argue with people like this, except to reply in kind.

More importantly, our moderator himself (who to his long-delayed credit recently and grudgingly stated he will no longer raise the bloody flag of “you’re bigots”, although I cannot help but think he kept his fingers crossed) has not exercised good faith in asking for “essays” on this subject, vide his snide and sneering introduction above and his similar language on the Thomas More Society thread below.
He’s already concluded that any arguments contra are, well, what he said they were. That is not an invitation to civil debate.

The fact is that the homosexual caucus has no interest in treating in good faith any arguments submitted by my team on this subject. As is clear, the caucus considers those arguments as void ab initio, a position further amplified with the cries that “it’s a denial of civil rights” and “you’re bigots”(homosexual marriage) and “it’s a red herring made in bad faith” (homosexual marriage as a slippery slope to polygamy).

While I personally find that caucus’s arguments on both these subjects to be, putting it generously, incoherent and ad hominem, I see no reason to make any arguments on this particular thread (except to thrown in the occasion hand grenade when someone says something egregiously stupid, which I expect to be often) because a) I have already made them extensively on other threads, b) the moderator himself has not made an invitation in good faith to discuss them, and c) they will merely invite imprecations of “bad faith” and “you’re bigots”.

We’ve heard plenty on this board of both, especially that last, and it’s way past the point at which it sounds like “two legs good, four legs better”. Or, perhaps more to the point, “Ignorance is Strength”.

Don’t give me any grief about chickening out. You people know my views, I’ve stated them enough times. When you want to deal with them rationally, we can. This isn’t the occasion, as our moderator has made clear.

Posted by: MCN | Wednesday, January 09, 2013 at 02:03 PM

The main argument against polygamy is that it is associated with the subjugation of women -- pretty much always and everywhere it is practiced. It is associated with cultish or morally primitive behavior among insular sects or like environments that reduces the status of women to that of servants or slaves, which is offensive to our modern cultural ethos of sex equality (which is not merely a Western cultural preference but a strong unviersal moral concern about the rights of individuals we feel justified in insisting upon) and damaging to the dignity of the women involved. Within certain communities, women may feel pressure to submit to such relationships, and legalization would only encourage that pressure rather than discourage it, which is what we should do by culturally and legally marginalizing it. (Secondary arguments have to do with legal practicalities, as mentioned by many above, but such concerns could probably be dealt with if we really wanted to legally recognize polygamous marriages. I'm not convinced that they alone justify the policy. Ambiguities concerning settling rights and duties upon divorce, for example, already exist, and there's no reason to think that they couldn't be addressed in the case of multiple spouses. The law routinely deals with multi-party legal arrangements.)

The counterarguments are several: First, it is not *necessarily* associated with the subjugation of women. Second, absent another crime such as domestic violence, illegal already, the state is not generally empowered to prevent the subjugation of women, any more than it is empowered to outlaw misogynistic speech or otherwise intervene in the psychological, emotional, and social dynamics of intimate human relationships. Third, whatever problems are associated with polygamy are present anyway among those who practice an informal version of it, which is not illegal and can't be made illegal. Fourth, it is connected for some with the practice of their religion such that outlawing it comes close to religious discrimination, or, at the very least, a heavy-handed imposition of a cultural/moral norm to prevent legal recognition of conduct that is *in itself* harmless.

To which the responses are: No, it is not *necessarily* associated with the subjugation of women, but it is correlated, and the state is not generally obligated to address concerns with perfect precision -- unless, that is, important individual rights are at stake. Are such important individual rights at stake here? There are three possible contenders for a rights argument for polygamy I can see -- that it violates the "harm principle," that it discriminates on the basis of religion, or that it impairs a fundamental right to marriage.

First, this is pure morals legislation, and we disfavor pure morals legislation. This position rests on J.S. Mill's "harm principle" -- the idea that people have the right to do what they want absent concrete harm to others, and it is that harm to others alone that justifies state intervention. A few problems with this: First, the Constitution, though inspired by Mill's philosophy, does not actually adopt a harm principle as a hard restriction on state action. Morals legislation is not automatically prohibited. Indeed, the default rule is that democratically elected legislatures can do what they want absent a strong reason grounded in the Constitution's guarantees of individual rights. Second, the state isn't, strictly speaking, prohibiting polygamy. That is, it's not saying that you can't cohabit as a polygamous family and hold informal marriage ceremonies. You can still do what you want; the state is merely withholding official legal recognition of the arrangement. Third, there *is* a harm involved, as discussed above, concerning the women who enter into these relationships, such that the law is, in a sense, meant to protect and not restrict liberty rights. Yes, the law is paternalistic in that regard, but paternalism is not automatically out of bounds. Yes, as noted, the law is not narrowly tailored to address that harm. Such narrow tailoring, though, is generally only demanded when the law violates an *equality* norm -- that is, where it engages in some sort of impermissible discrimination against a protected class of individuals -- or impairs a fundamental right. Otherwise, the legislature is permitted to address problems with a blunderbuss -- hitting its target only sometimes, and missing it entirely in other cases. So, does the polygamy law discriminate or impair a fundamental right?

All laws discriminate in some fashion, but, to be imperssible discrimination, the law has to discriminate on the basis of a suspect classification, such as race, ethnicity, sex, age, or sexual orientation. The polygamy law doesn't discriminate on the basis of any of those characteristics. Some argue, though, that it discriminates on the basis of religion, which is a suspect classification. The problems with this argument are: (1) It restricts only an arguably religious practice, and does not restrict that practice on the basis of religion. It's not directed at religion, but rather at certain conduct deemed potentially harmful. In the vast majority of cases, a religious practice that violates an otherwise valid law of general applicability will have to cede to the law in order to achieve the government's legitimate objectives. (2) It would only be religious discrimination for, at most, a handful of people who would have to demonstrate a bona fide religious requirement. LDS no longer sanctions polygamy, and I'm aware of no religion that truly *requires* it. Some engage in polygamy as a matter of tradition or culture, but these are not suspect classifications and such commitments must give way to otherwise valid laws.

Does the polygamy deny a fundamental right? There is a fundamental right to marriage, yes, but, obviously, the law permits would-be bigamists to get married -- just to one person at a time. They are not excluded from marriage, either as a matter of technical law or as a matter of practical reality. Unenumerated fundamental rights gain their recognition from historical practice, and there is no historical practice in favor of polygamy -- indeed, the historical practice has been to outlaw it. Historical practice alone, perhaps, does not decide the issue, because historical practice can be blind to its discriminatory or prejudiced character. But even where we look beyond the historical practice to the *reasons* for conferring upon marriage the status of a fundamental right, we do not see those reasons supporting plural marriage. Marriage is seen as a basic civil right because it is "fundamental to our very existence and surivival." (So said the Surpeme Court in Loving v. Virginia, the case that struck down miscegenation laws.) One can argue with that rationale, of course -- the stronger argument against miscegenation laws is that they discriminate on the basis of race -- but it certainly doesn't extend to polygamy.

Posted by: JakeH | Wednesday, January 09, 2013 at 03:43 PM

Not so fast, bucko. I agree that polygamy does not complicate child custody decisions, but strongly believe that it's reasonable for the state to refuse to recognize polygamous marriage on complexity grounds.

Let me make the complexity argument another way. Civil marriage is, among other things, a set of default choices. Getting married is like entering into a bunch of legally enforceable arrangements governing, for example, who will inherit your property if you die without a will, who will make medical decisions for you in the event you are incapable of doing so. Now, not everyone wants all of those things, so it's perfectly legal for a husband to, say, write a document naming his brother as the individual who will make medical decisions for him. But in general, most people who get married want to enter into most of the legally-binding arrangements that come along with marriage.

I doubt there is any similar consensus among would-be polygamists about what the default arrangements should be in relationships among three or more people. I mean, is it really the case that all (or nearly all) women married to two or more men would want their first husbands to make medical decisions for them?

Or say a man is married to three wives who don't work, whom he married years apart, and that he and his middle wife decide to divorce. What is the best default rule governing the percentage of the family's assets that she should get? And, more to the point, is there any reason to think that all, or nearly all, families consisting of one husband and three wives would want the same default rule?

Without consensus, or near-consensus, on the part of polygamists and would-be polygamists, the state has no reason to set up a bunch of default rules that would govern polygamous marriages, and indeed, no way of reasonably choosing among the sets of default rules that might be set up.

Posted by: Taxpayer | Wednesday, January 09, 2013 at 06:25 PM

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