Rauch makes one correct legal point that deBoer does not acknowledge (unless I missed him doing so somewhere): namely, it seems certain that legal bans on polygamy in the US can, hence will, have more success passing rational basis tests than anti-SSM measures enjoyed the last few years. Basically, you can tell a coherent, plausible story about how polygamy is probably on-balance bad for society, hence unwise to permit as a point of public policy. One of the things that dragged down the anti-SSM folks in the courts – to a lesser extent, in the court of public opinion – was their inability to articulate any non-silly (non-theological) theory of how SSM marriage could harm society/children/third-parties. Absent that, rational relations to legitimate government purposes failed and DOMAs fell like dominos. (Thus it came to pass that Judge Posner included this pithy sentence in an opinion: “Go figure.” Indeed, the state patently had not.) Rauch is doing way better with the social science survey data he cites.
But I’m not sure how far this gets him. ‘Rational basis’ is sort of misnomer, after all. The quote that gets rolled out on these occasions is from John Paul Stevens (paraphrasing or requoting Thurgood Marshall): “The Constitution does not prohibit legislatures from enacting stupid laws.” Even so, some sorts of stupid are disallowed. Rational basis reviews thus tend to have a Far Side-ish quality. Point being: Rauch is right that bans on polygamy are, at worst, the right kind of stupid, for barely passing legal muster. But morally we aspire to better than that.
It seems to me deBoer is on stronger ground when we cut to the moral chase. If marriage is a human right but some types of unions between consenting adults are disallowed just on utilitarian grounds (per Rauch’s argument) … well, then it looks like it wasn’t such a right, after all.
Adding some US law back in: if marriage is a right on ‘I’ve just got to be me!’ equal rights and dignity/due process/privacy grounds (in strict legalese: ‘it’s Anthony Kennedy’s world, we’re just living in it’) … well, then it looks like some folks are more equal, hence more equally dignified, than others.
In sum, there is moral/legal tension between arguing for SSM on rights grounds and against polygamy on utilitarian grounds.
This problem is not solved, though somewhat salved, by pointing out that there are excellent utilitarian arguments for SSM. People still believe the rights arguments, after all. (If you believe P, and P -> (Q & R); and if you believe U, and U -> Q; it is no good pretending that P does not commit you to R, merely because U does not commit you to R. Get it?)
There are also problems with Rauch’s utilitarian argument, considered on its own terms. It’s not unreasonable, but more speculative than he admits.
Let me just point out one feature of the future of the polygamy debate that deBoer sees but Rauch’s backwards-looking (historicist) perspective misses. The thought probably starts simple: hey, if you are going to let two women marry, it seems arbitrary not to let three women marry (or three guys). Now we are on a slippery slope to letting one guy marry two women. Polygamy only for same-sex n-tuples would be an arbitrary restriction of the institution of polygamy. It would discriminate against straight folks!
But there is, potentially, a significant bump on the way down this slide. It isn’t implied by the shift from the same- to opposite-sex cases, but we tend to assume it when making the shift. When you hear about three women wanting to get hitched you figure: three lesbian lovers. But when you hear about a man taking two wives you don’t assume the wives will be (bisexual) lovers of each other as well as of their husband. They are not all equals. You guess that the women will be subordinate spokes around a central, patriarchal hub.
Thus, there is a sense in which, historically, heterosexual polygamy can seem further from modern (egalitarian) norms of heterosexual monogamy than homosexual polygamy might be from homosexual monogamy. Hence an increased sense of the normality of homosexual marriages may tend to lessen our sense of the moral distance between monogamy and polygamy. And rightly.
That was way too abstract. Let me try again.
Polygamy, historically, has been (so far as I am aware) man-to-women, one-to-many. I don’t think it has ever been the case that the many wives of a single husband have been deemed married to each other. If the husband of 10 wives dies, the result has never been a SSM consisting of 10 females. Polygamy has been not just patriarchal but heteronormative. So once you add same-sex relationships to the mix, as legal and socially normal options, you open up historically unprecedented, potentially more egalitarian possibilities. Polygamous unions have never been, but could be, polyamorous unions in which everyone involved is equally married to everyone else involved. This sort of many-to-many polyamorism is, in practice, weird to most people. But, in terms of its individualism and egalitarianism, more readily conformable to modern notions of what marriage is about than, say, patriarchal polygamy, which may seem to require features we regard as not just weird but unjustifiably asymmetrical: it treats equal parties to a contract as non-equals. (We can argue about it!)
Rauch himself points out this puzzle as to whether a future model would follow past patterns: “Think about it. Does a polygamous license marry all the wives in a polygynous combination to each other, or each separately to the man?” But then he just emphasizes the tangle. He doesn’t pull the thread through. Obviously they might all be married to each other. That would be … very new. So who’s to say it would be bad, just because the bad old past was?
The historical, polygamous norm plainly does not track at least some patterns of potential, polyamorous practice; hence, the history of polygamy is not necessarily a predictor of the shape of potentially polygamous things to come.
I think it is very hard to say what shapes and sizes polyamorous relationships might typically assume, in the future, if social stigma against all that were reduced. So it’s hard to say what polygamy would look like, in the future, as a next-step legal outgrowth of how socially acceptable polyamory shakes out, then settles down to raise a family.
You can imagine a Brave New World of fully legalized polygamy in which there there is a resurgence of very traditional (old school, Old Testament!) polygamous unions. One man, many wives. Hierarchy, patriarchy. Also, the lite-version, á la Sister Wives (which I have never watched, so what do I know?) Suburban normal, except for the how the guy just has lots of wives. And a simultaneous emergence of highly novel social forms, normally involving some degree of polyamorous bi- or homosexuality. (‘Novel’ because it would be new for this to be regarded as normal, and sanctioned as ‘marriage’, not because no one is trying it yet.) I’m not saying the fact that legal many-to-many unions would be new means they would be good; just that it’s shaky to assume they would have to be bad in the way the bad old model is assumed to be bad.
Polygamy might turn out to mean a lot of different – some very old, some very new – things. Rauch complains about how complicated it might get. But if people decide what people really want (wanted all along) is a variety of sometimes complicated arrangements … well, it wouldn’t be the first time the law got complicated because people got complicated.
This still leaves at least one of Rauch’s utilitarian concerns untouched: what if a few alpha males end up scooping up a disproportionate number of females, fostering discontent – hence social unrest – among males unable to find mates?
I guess I’ll rest my case by circling back to my first argument: if you are attracted to ‘marriage is a right’, as a premise, speculations about social harms at the margins don’t seem like such powerful trumps. Also, if polygamy might mean a lot of things, utilitarians shouldn’t be in any great hurry to condemn the lot. More responsible to sort through.
Most people probably have a gut sense, one way or the other, about whether a future of legal polygamy would be, on the whole, humanly happier or not. I confess I don’t have such a sense (not because I am cognitively above base, gut-brain workings. I just seem to lack one in this case.) I can imagine it going different ways. It might turn out that even if people become tolerant of polyamory/polygamy, this won’t catalyze formation of lots of new social forms. Or resurgence of ancient ones. Maybe modern folks won’t pick poly, except around the margins, as they are doing now. Or maybe we will be surprised at how many of our grandkids come up poly. If so, maybe more people will actually be more able to find stable relationships that suit them, personally. Maybe our grandkids will see the past as a place in which poly pegs were painfully mashed into mono holes. Or maybe Rauch’s predictions of inequality and instability will come true and any increases in poly preference satisfaction will be offset by negative social externalities. Or both!
Lacking confidence in my capacity to predict this future, what I have left – my sympathy for rights arguments – inclines me to the poly side
This post feels unclear. Well, blame my jetlag. That’s the only explanation.