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Gay Marriage and Polygamy
originally posted: July 8, 2004
Summary: It has been argued that if gay marriage was legalized, then polygamous marriage would necessarily be next. We present counter-arguments to this claim.In a previous article, I described the genesis of my inquiry into the popular arguments against gay marriage. One often repeated argument against legalizing gay marriage goes like this:
If we allowed gay marriage, then we would not be able to justify not extending marriage rights to polygamous marriages as well.This is a slippery slope argument. It says that if we take the step to legalize gay marriage, then we will have left level ground behind, and will inevitably slide down into polygamy. In evaluating a slippery slope argument, you always need to look at least two questions:
How Bad is the Bottom?Most of the people making this argument don't bother to explain why legalizing polygamy would be a bad thing. It's pretty much assumed that we know from our guts that it is bad. Obviously not everyone agrees. There are many web sites extolling the virtues of polygamy. I saw one where a woman talked about how wonderful polygamy is for women, because if she is working, there is always another wife to be caring for her children. I have to admit I'm less than impressed. She's basically just solved the servant problem.
The rap sheet against polygamy in the U.S. is pretty extensive. There is substantial evidence of serious problems in many existing polygamous groups. Women have been "married" into polygamous groups with little freedom to choose, sometimes at a very young age, and have frequently been bound there in slavelike conditions. Incest and statutory rape have been common. Women and children have often been denied education and basic health care. They have been subjected to abuse and mental torture without anyone to turn to for help. Many of these groups have isolated themselves so much that they cannot earn enough money and so exist on welfare. In fact, welfare fraud and tax evasion are frequent.
The stink of this is all nasty enough to make us want to back away from the idea of legalizing polygamy as fast as we possibly can. But if we are willing to hold our noses while we take a few minutes to think, we find that, in fact, there is no sound argument against polygamy in all that. What we have is plenty of evidence that some polygamous groups engage in criminal and harmful activities. But does that justify banning all polygamous groups? No. We are no more justified in condemning people because they have the same type of marriage as some unsavory characters than we would be justified in condemning people because they smoke the same brand of cigarettes as some unsavory characters.
Legalization of polygamy would not imply society approval of all this other stuff. Rape, abuse, tax evasion, and welfare fraud would still be illegal. Polygamous groups that do such things would still be subject to punishment by the law, just as anyone else in any other kind of marriage would be. What we would be legalizing would only be for groups of more than two consenting adults to live together, share property together, raise children together, and have sex together. A valid argument against legalizing polygamy, would have to either show that even "nice polygamists," ones who break no other laws, are harmful to society, or that no such nice polygamists can exist.
Do nice polygamies exist? Ones that show full respect for the rights of all their members, allowing them to function as full members of the community, with an unconstrained ability to separate from the group? I have no idea. I'm not personally acquainted with any polygamists, nice or nasty. They aren't common and they are far less likely to be out of the closet than gays. However, it seems likely. There are, after all, whole countries where polygamy is legal and common. To assert that the people doing this are all pond scum seems pretty far fetched.
In fact, the very illegality of polygamy in the U. S. might be part of the problem. If the basic relationship among the people in the group is illegal, then group members have already taken the step of deciding the law is inapplicable to them. This makes it a smaller step for them to break other laws and makes it harder for members to call on the protection of the law. A member of the marriage cannot complain to the police of the way another marriage member treats her, without having the whole household thrown in jail.
The illegality of polygamous marriage might also contribute to its poor reputation. Nice polygamies, if they exist, would stay mostly out of public sight. The nastier examples would be the ones more likely to melt down and draw media attention.
I'm far from ready to advocate legalization of polygamous marriage. But I consider the case against it far from proven. It is not obvious to me at all that legalizing it would be a disaster for society.
The Slippery Slope ParadoxOne of the fundamental problems with slippery slope arguments on public policy issues is that they tend to be partially self-defeating. The worse the bottom of the slope looks, the harder society will be trying not to slip down it. In reality society only slips down the slope if a substantial portion of society doesn't mind going. Nobody would put the argument forward unless they thought the bottom of the slope looked bad enough to most people to be abhorent, but if that's the case, then the chances of society sliding down the slope are actually pretty low.
Polygamous marriage is, at this point, acceptable to many fewer Americans than gay marriage is. If that wasn't the case, nobody would be trying to scare us off of gay marriage with the spector of polygamous marriage. So right off the bat it is obvious that the slope isn't going to be as slippery as it's made out to be.
The Complexity of PolygamyThere are other reasons why the slope from gay marriage is not very slick. On another page, I've written up a summary of the laws relating to marriage. It's a complex subject, because there are literally tens of thousands of laws relating to marriage on the state and federal level. As you look down that list, consider in each case what legal complexities might arise if we allowed marriage of gay couples, and what kinds of changes would have to be made. You'll find that in almost every case, there are no new problems and nothing has to change. How would the fact that both partners have the same sex alter a "married filing jointly" tax return? Not at all.
If you look down the same list of laws and consider how they would have to change if we allowed multiple marriages, you'll find a very different situation. Not only would you have to change nearly every single law, you'd have to write a whole mess of new ones.
This is no accident. It's because legalizing multiple marriages is a vastly bigger departure from traditional marriage than legalizing gay marriages. The differences between a man and a woman are much smaller than the differences between two people and a dozen people.
Let's look at a few of the issues. First, we have to decide who within the multiple marriage is married to whom. In your basic polygamous marriage, one man marries multiple women. The question is, are the women all married to each other, or not? If a new woman is to be married into the group, do the women already in the marriage have to agree, or not? Do all of them have to agree, or just a majority? Do they even have to be informed? If the man dies, is the marriage dissolved, leaving women all single, or are they still married to each other? If a woman already in one polygamous marriage marries a second man, are her husbands now married to each other? Is it now one marriage or two overlapping ones? If it's two overlapping marriages, how is her income divided between the marriages for tax purposes?
Existing law has no answers for any of these questions, because in marriages of just two individuals none of these situations can come up. To legalize multiple marriages you need to work all this stuff out.
Let's consider a few examples:
It's pretty clear that legalizing multiple marriages would raise a huge number of problems. Certainly all could be solved, but however you solve them, members of group marriages are going to end up bound by different rules than married couples. You can't distribute the rights and responsibilities of a couple to a larger group without substantially changing them.
It is possible to just extend the right of marriage to gay couples without drastically changing marriage law. Legalization of gay marriage is a simple matter of making one more part of the law gender blind. This has been done with many other parts of the law, including labor regulations and voting regulations. It's easy.
To recognize multiple marriages, however, requires so much new law that we'd effectively be creating an entirely new kind of marriage with substantially different rights and obligations than the traditional one. There is a big difference between a straight-forward generalization of an existing law, and the creation of a completely new legal institution.
In the law, marriage is to a large extent an economic institution, allowing two people to be treated as one for many purposes. Giving similar treatment to arbitrarily large groups of people would be effectively like creating a new kind of corporation, with a tighter bond between the people in it. Depending on how exactly one decides to write the laws regulating these things, one might end up creating a new kind of corporation-like entity that could profoundly change the way our economy works. The social impact of introducing such a creature to the economic landscape could be profound. How large the change would be, and whether it would be for good or ill, is impossible to say without knowing exactly what rights and responsibilities would be given to multiple marriages. It's not at all obvious that society would choose to allow the creation of such entites, no matter how much we feel that people ought to be able to marry whoever they love.
If you are really worried about starting down a slippery slope toward legalizing polygamy, then you should be much more concerned by the idea of allowing gays to form "civil unions" than by the idea of letting them marry. By inventing civil unions we will have set the precident of creating a new kind of pseudo-marriage in the law. Having created one new form of pseudo-marriage to accomodate gays, the resistance against creating another kind of pseudo-marriage to accomodate polygamists might be lower.
On the other hand, you could argue that legalizing gay marriage could actually make legalizing polygamous marriage more difficult rather than easier.
If you read the websites advocating legalization of polygamous marriage, you'll find that far from welcoming gay marriage as a first step in the right direction, they are generally fiercely opposed to gay marriage. Most of them seem to be religious fundamentalists of various brands, and an abhorance for homosexuality seems to come with the territory. When they advocate legalizing multiple marriages, they usually have only a very specific model of polygamy in mind - one man married to several women. They vigorously condemn all other possible multiple marriage combinations as sinful. The suggestion that two women married to the same man might be married to each other would horrify them. As long as the idea of gay marriage is rejected by society, that isn't a possibility, but once it is accepted then it becomes almost impossible to legalize only strictly polygamous group marriages and not every other conceivable combination. The limited legalization of polygamy alone and not other multiple marriage arrangements becomes an almost impossible goal. The legal complexity of the change becomes much greater, and the end goal no longer matches anything that the most visible advocates approve of. The total result is that legalizing gay marriage would actually make legalizing polygamy harder.
ConclusionThis slippery slope argument turns out to be fairly weak. Partly the case against polygamy isn't very strong, but mostly it seems quite clear that the journey from legalizing gay marriage to legalizing polygamy would be a long one, better described as an uphill battle than as a slippery slope.
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