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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Wednesday, May 21, 2008

Same-sex marriages today, polygamous marriages tomorrow?

Over at the Bad Idea Blog, "Bad" notes that advocates of same-sex marriage often simply dismiss slippery slope arguments such as the claim that judicial rulings in favour of same-sex marriage would lead to the legal recognition of polygamy.

This is a horrible-result type slippery slope argument against gay marriage ... or it could be framed as a reductio ad absurdum argument against reasoning that is said to support same-sex marriage. But one problem for such slippery slope arguments is that they are sound only if the outcome at the bottom of the slope really is horrible. Similarly, reductio ad absurdum type arguments succeed only if what is entailed by the impugned premises and reasoning really is absurd. However, I see nothing obviously horrible about a society that is prepared to register polygamous marriages (assuming all parties involved are legally competent). Polygamous arrangements are already perfectly legal; they are just not officially "marriages" in most societies. If they were given such legal recognition, I don't see why that is so obviously a horrible outcome.

Similarly, if a legal argument in favour of same-sex marriage also entails that the state should recognise polygamous arrangements as "marriages", I see no evident absurdity.

Hence, the argument simply fails as a rational argument against same-sex marriage; strictly speaking, nothing more need be said.

However, I'll say some more anyway. Nothing above should be taken to suggest that I hold up polygamous marriages as an ideal. It certainly doesn't mean that they should become the norm for everybody to aspire to, as in some religious or cultural traditions. But liberal societies do not require that we all live in a way that is judged to be ideal or that any arrangement that is recognised officially is thereby promoted by the state as a norm for everybody.

At the Volokh Conspiracy, there's a brief attempt by Dale Carpenter to distinguish gay marriage from polygamous marriage. Although "Bad" is impressed by the attempt, I must say that I find it rather flimsy (I must, in fairness, also point out that Carpenter has written at greater length elsewhere, and I encourage interested readers to follow his links).

I don't have time to give my full reasons here, but all the arguments against recognising polygamous marriages strike me as contrived. Perhaps the strongest point against polygamy is that there might be social difficulties if polygamous marriages (in the form of polygyny) became very widespread. But, again, polygyny is already legal, just not officially recognised as "marriage". Nothing in the law prevents me from going off tomorrow to live in orgiastic, but perhaps distracting and exhausting, bliss with my four favourite women (who probably know who they are). What prevents it is that they'd laugh at me if I offered such a suggestion. More generally, what prevents polygyny in Western societies is just that women (far more often than not) don't and won't want it.

We do not usually take official action to discourage something merely because it would cause social problems if "everybody" (or, more accurately, a large fraction of the population) did it. Rather, we assume the reality of social pluralism - that different people are likely to live in accordance with many different systems of values.

If Western states began to recognise polygamous marriages it is doubtful that this would have any great impact at all on (for example) the percentage of polygynous arrangements or the percentage of sexually frustrated men, let alone the percentage who might thereupon become alienated and possibly violent. The fact is that most women would remain just as wary as they are now about entering into long-term polygynous arrangements. While some women probably benefit from polygyny in some circumstances, most Western women would, quite understandably, not be willing to enter into such asymmetrical sexual arrangements at all - and certainly not long-term or without the option of easily leaving and finding alternative partners.

(That said, some women from some cultural traditions, such as the Maasai, may actually prefer to enter into a long-term arrangement where they have female companionship within the arrangement. Such preferences are not out of the question. But if, by chance, a tiny number of such women are to be found in Western societies, why not cater for their preferences? Some value systems may seem strange to most Westerners, but, in the absence of significant harms, that doesn't entail that the state should consider them unwelcome.)

For a different reason, it is weak to claim that it's inexpedient to recognise polygamous marriages because it would require modifying such things as probate law. The modification might not be enormously difficult in principle, and the fact is that such problems could already arise in circumstances where, for example, a participant in some kind of legal (but unofficial) polyamorous arrangement dies intestate. If the opportuntity were taken to tidy this up, it might actually yield intuitively fairer results.

Polygamous marriages are not the ideal, but there may not be a single ideal. Societies where polygyny is held out as the norm are thereby likely to inherit some problems, but I am not going to condemn polygamists' view of the good for that reason. Even if I were inclined to do so, based on personal moral beliefs or social concerns, I don’t think that the state should be doing so in a liberal society. So, if we are going to give state recognition to marriage at all, why not to polygamous marriages as well (provided all involved are competent adults to the same extent as is required for "ordinary" marriage)?

In all, I consider this particular argument against same-sex marriage weak, because what is (supposedly) lying at the bottom of the slope does not seem all that horrible. If we end up officially accepting polygamous marriages, so be it. I believe that people who run this argument against same-sex marriage are essentially appealing to irrational fear and prejudice.

But there's another possibility. Perhaps what I've written so far is wrong, and some compelling public-policy reason can be identified for not recognising polygamous marriages in particular. This would, in other words, be some great problem if polygamous marriages were recognised by the state. In that case, the result is horrible after all - but the slope is not slippery. It's not slippery because, on those facts, a principled distinction can be made between recognising same-sex relationships as marriages and recognising polygamous arrangements as marriages.

All in all, this policy issue about same-sex marriage is not a case where you can, with success, simultaneously argue that the slope downhill is slippery and that the outcome at the bottom of the slope is (on appeal to reason, rather than mere prejudice) horrible.

That, of course, is the common problem with horrible-result arguments. It is very rare that such an argument can succeed by showing simultaneously that the slope is slippery and that the result is horrible. Generally, the more horrible the result the less slippery the slope.

All that said, I have repeatedly argued elsewhere that the optimal solution is not the official recognition of many different kinds of relationships as marriages.

Rather, we should simply continue to allow individuals to enter into whatever sexual, familial, and domestic relationships they want, with whatever support they can muster from their cultural and religious communities, their families, and their friends; at the same time, the state should cease recognising relationships that meet some prescribed template as being, officially, "marriages" (and so registrable as such by some public agency).

On that scenario, anyone - gay or straight, monogamous or polygamous, or whatever - can have a marriage ceremony, call themself "married", and have the "marriage" conducted and recorded by the religious or other organisation of their choice. Government forms would no longer ask people whether they are married, and the state would be neutral about people's personal relationships. People would remain free to enter into contracts, trust deeds, etc., to determine the distribution of property on breakdown of a relationship. Courts and legislatures could continue to develop principles to deal with unconscionable agreements or to divide assets in the absence of agreement (in the absence of appropriate legislation, courts began to develop such principles some decades ago for de facto couples, essentially expanding the operation of the law of trusts to fill what was then a serious gap).

I'll say once more, for the record, that I do favour political policies to introduce provision for same-sex marriage, but only as a realistic compromise in current circumstances, not as the optimal long-term solution in a liberal society.


Brian said...

Won't somebody think of the children? Russell, you'll get a reputation as being an immoral type. Polyandry doesn't get much of a mention in these debates. I wonder why?

Russell Blackford said...

Maybe it's because polyandrous traditions don't seem to do well except in isolation, as in some tribal societies, so they tend not to be common these days. Where they did exist, the arrangements weren't simply a mirror image of official polygamy (which has undoubted drawbacks for women and often involves quite savage attempts to stop them having access to alternatives).

But there are certainly individual polyandrous relationships around in the West. I've not seen any statistics, but I've encountered people in such relationships.

stuart said...

Well said, of course I wonder if polygamy and polyandry marriage is a slippery slope polyamdy? Which is a marriage where there are many wives and many husbands.

Of course, since Russell argues against the recognition of marriage everywhere, I suppose my point is kind of stupid - and making up a word because I didn't know the correct term doesn't help things.

I guess when reading posts like this I ponder exactly how liberal (is that the right word?) our society will come in the next 20, 50 and 100 years, and whether the one-to-one relationships really will remain the norm. Since they have been for so long I can't help but wonder whether this really is some sort of proof that they are 'normal', 'natural', 'correct', or however you would put it.

But I don't buy into that - straight marriage, gay marriage, polygamy, polyandry, will all be anachronistic in my version of the future, and the norm shall be individual people living their own lives, being strong enough not to need validation or ‘emotional support’ from others, but enjoying the all the physical satisfaction that they please.

To quote 'a history of violence':
"I've met a lot of pretty girls in my life, but I've never met one that made me forget about the rest".

PS. Yes I am 25 (and probably emotionally 14) – so sue me.

Blake Stacey said...

More generally, what prevents polygyny in Western societies is just that women (far more often than not) don't and won't want it.

Also the threat of multiple mothers-in-law.

OK, it's an old joke, but I firmly believe that what is funny should be repeated until it isn't, and what isn't funny should be repeated until it is. Come to think of it, this might also explain, at least in part, why I also am not conjoined in marital bliss with N persons of the appropriate genders.

Therac-25 said...

I'm curious -- is the decline in how important a marriage (or marriage-like) arrangement is related to the amount of capital the people in question have (i.e. the "class" level, for lack of a better idiom).

It seems when looking at middle class society, who typically have some kind of capital, but not much, and live off of their creative or intellectual skills, that marriage is more about having a good life, and is in many cases optional.

Going either up to people with lots of capital, or down to people who own very little, marriage becomes much, much more an economic institution -- either who has to provide for the children, or which child gets all of the parent's property when they die.

i.e. as property becomes more important (because there's either none of it or very much of it) the laws governing that property in the marriage become more important than personal happiness (or, rather, the personal happiness of the parties becomes contingent on how the property is to be handled).

That could explain why middle class people who see nothing wrong with gay or poly marriages (like me) get so confused when other segments of society scream and yell at the prospect of non-standard arrangements.

Bad said...

I don't think you have to recognize that the bottom of a slippery slope is bad to recognize that many many other people think its bad, and to point out to them that this particular slope is unlikely, at least in the way they fear (and it is a legitimate fear: judicial decisions that cite a vaguely defined value of equal treatment under the law are inherently open to justify just about anything), which I think is more the point of Carpenter's arguments than they are to simply prove that polygamy is bad, per se. Heck, one of the arguments is "polygamist advocates will have to make their case independently of gay marriage," which isn't an endorsement either way.

Russell Blackford said...

Yeah, Bad, I completely take your point that it might be politically expedient to argue that recognition of polygamy does not lie at the bottom of the slope. Note, though, that (1) that doesn't detract from my point that the horrible result argument fails (and I realise that you're not suggesting it does detract from this point), so my points are still worth making, at least in a quiet corner among philosophically-inclined people; and (2) the arguments that polygamy does not lie at the bottom of the slope simply don't strike me as very convincing. Maybe I'm wrong, but even Carpenter says that he doesn't claim they're conclusive.

Indulge me, please in a bit of thinking onto the screen without the length of it implying a ranting tone. I actually feel quite tentative about some of what I'm about to say and am very open to exploring it.

First, it's possible that an ideal of monogamy is so entrenched in the Western mind that we won't ever reach legal recognition of polygamy in practice. If that's so, the conservatives are jumping at shadows.

On the other hand, I think there's real doubt about it. My guess is that a couple of generations down the track it may look quite puzzling to generation Z or Z-plus why we don't give polygamous marriages recognition, and the sorts of reasons given by Dale Carpenter may look to them more like rationalisations. If the conservatives sense this, they may be correct IMHO.

Put another way, the main barrier against the slope may simply be the prejudices/ideals of the current generations that hold power: the busters, the boomers and GenXers. But generation Y seems to be very open to all kinds of sexual choices, at least judging from the views expressed by my students, and while there may be a retreat from that, it's possible (from the conservatives' point of view, all too possible) that their kids and grandkids will be even more so.

Obviously, though, there's a lot more to be said about these issues, and I'm starting to wonder whether I need to write an entire book or at least a long article. For example, it's worth exploring why so many (but by no means all) gay activists want gay marriage in the first place - and it's worth exploring the views of those gay activists who actually oppose it. It would be presumptuous of me to tell them what to think and feel, but from my perspective it's all slightly puzzling. If, as I do, you see marriage as essentially the social and, in complex societies, legal regulation of who can have sex and have children, it's puzzling why anyone is interested in it anymore as something to be recognised or not by the state.

After all, the state no longer persecutes gay couples with fire and sword. In the US, Lawrence v. Texas held that attempting to do so would be unconstitutional. It might even be said, without much exaggeration, that there's a sense in which everybody above a certain age is already married to everybody else above a certain age, in that it is perfectly legal for them to have sex or have children together (though it is still not technologically possible for gays to have children who are biologically related to both social parents).

I mean, I totally understand why people would want to be married for recognition by their cultural group, religious community, etc., and why they would want to celebrate a commitment with friends and family, but why they would want the apparatus of the state to be involved in their lives is a bit mysterious. There's a complex story to be told about why they automatically think it's important. It's also a bit mysterious why anyone feels so passionately that the apparatus of the state should not be involved when it's someone else's marriage, as when a gay couple want to be married or a group of Muslims want to have a polygamous marriage recognised.

After all, marriage no longer serves the purpose of controlling who can have sex or have children: i.e., we no longer ban so-called "fornication" or extra-marital sex. We do tie various benefits to marriage, but not so much outside of the US (does this explain why it seems to be such a big deal on both sides in the US in particular? or is the reason the usual culture wars stemming from American religiosity?). That can easily be changed, at least for couples, simply by giving the same legal benefits to de factos as to formally married people, and then treating gay de factos exactly like straight de factos. That is pretty much the policy direction in Australia (and probably in Europe, but I'm not sure).

At least outside the US, marriage mainly confers a certain kind of prestige on a relationship, and even that is being eroded. Here, in Australia, people are just as likely to talk about their "partner", and in many circles actually being married doesn't seem to have all that much cachet attached to it except perhaps as a way of pleasing parents (and now that the kids of the baby boomers and GenXers are at marriagable age, even that will be less of a factor than it was for the boomers and GenXers themselves).

The psychology of it all is fascinating, and I think that the theory of background conditions probably has something to say about it. I.e., the idea of marriage is simply so entrenched in our consciousness as a basic "given" about how society is organised that we tend not to notice - or to want to deny - that society is no longer organised around marriage in the way that it used to be.

But to get back to my original point, my sense of it is that the conservatives are not by any means being silly if they think that the logic of moving from recognition of gay marriages to recognition of polygamous marriages over a period of generations will prove inexorable, despite the best efforts of people like Carpenter to make the distinction. Proponents of gay marriage are too quick to be dismissive of this, as you noted on your blog. On the other hand, even if the conservatives are right about that, their slippery slope/horrible-result argument is weak.

Back to you. Let's kick these ideas around some more.

Alex said...

I think your right about that the main barrier against polygamy (or polyarmoury at least) being the prejudices of the Baby Boomers and GenXers. My guess is that as these groups fade from power the resistance to gay marraige, and various forms of non-monogamy, will also fade.
Among my social group (aged around 20 through 30) there is already no issue with gay marriage and non-monogamous relationships. Admittedly this isn't a very useful sample, being heavily biased in education and political views. However I don't have access to a psych journal database as I'm not at uni this semester, and I can't be arsed searching around the net for useful numbers.

John Pieret said...

Dan Dennett, in his Freedom Evolves had what I thought was a good point that is directly relevant here:

[O]ur attitudes on these matters have been shifting gradually over the centuries. We now uncontroversially exculpate or mitigate in many cases that our ancestors would have dealt with much more harshly. Is this progress or are we all going soft on sin? To the fearful, this revision looks like erosion, and to the hopeful it looks like growing enlightenment, but there is also a neutral perspective from which to view the process. It looks to an evolutionist like a rolling equilibrium, never quiet for long, the relatively stable outcome of a series of innovations and counter-innovations, adjustments and meta-adjustments, an arms race that generates at least one sort of progress: growing self-knowledge, growing sophistication about who we are and what we are, and what we can and cannot do. And from this self-understanding, we fashion and re-fashion our conclusions about what we ought to do.

The slope's not slippery because we're all tugging one way or another and we're not about to get to any bottom ... because by the time we approach today's bottom, there will be a new one. All too recently there were many places in the US where interracial marriages were outlawed and dire predictions made if they were allowed. Today, while many people might still not like such pairings, as a society we would be horrified and would raise a great outcry if anyone suggested reinstitutiing antimiscegenation laws.

Athena Andreadis said...

The substantive difference between polygyny versus same-sex marriage is the relative power of the partners (something that applies to heterosexual monogamy as well, and is amplified in polygyny).

Polyandry and novel variations on group marriages occur more frequently in speculative fiction -- and are investigated almost exclusively by women, who tend to be more aware of power issues (Ursula Le Guin alone accounts for a substantial fraction of these gedanken experiments).

Socially, before the advent of romanticism marriage was about property and inheritance. Therefore, it's not suprising to see it mirroring the context of its time and place.

Athena Andreadis said...

Postscript: I discuss a closely related issue here, The Shifgrethor of Changelings.

Damien Sullivan said...


says marriage in Egypt was entirely a private matter of who you were living with, with private contracts to handle economic support.

I wonder if part of the US reaction to polygamy is the fact that medical benefits are often tied to marriage, and worry that polygamy would break the system. Of course, I don't discount general Christianity either, or the history with the Mormons.

Damien Sullivan said...

Oh, and while group marriages as a widespread thing are a thing of science fiction, they do exist; I know of two group situations over the Internet -- and from general SF/gaming, not ever hanging out in polyamorous circles per se -- and knew a long-term guy-girl-girl living arrangement. (I think girl2 was lesbian, so it was actually girl1 getting the two 'spouses'. Historicize that.)

Blake Stacey said...

It's widely asserted that ancient Sumerian civilization practiced polyandry or at least dyandry, since a legal edict from Urukagina of Lagash (c. 2370 BCE) banned the practice. "If a woman takes a second husband, her teeth shall be bashed with an oven-fired brick," or words to that effect.

Damien Sullivan said...

Though by itself that sounds as likely to be an anti-prostitution measure.

Fred said...
This comment has been removed by the author.
Fred said...

The question of whether or not polygamy should be used is mainly based on whether or not it is moral. Just because something benefits society or doesn't explicitly hurt anyone doesn't mean it is moral. For instance, you could kill all elderly people and you wouldn't have to pay for them, but that would be wrong. I have recently begun a blog, and the first post happens to relate to this discussion: kakyamer.blogspot.com