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Australian philosopher, literary critic, and professional writer. Author of FREEDOM OF RELIGION AND THE SECULAR STATE and HUMANITY ENHANCED.

Saturday, January 30, 2010

Embroiled!

I seem to have spent the day embroiled in debates about political theory and related matters on three different sites at once. That's not a productive way to use my time, so I must stop doing it. For the record:

1. I don't think the "New Atheists" want to ban religion, as opposed to criticising it. If they did, I'd be on the front line defending the rights of the religious.

2. I'm not disturbed at the idea of a bogan wearing a combination of pajama bottom, T-shirt, and slippers in a supermarket. I find it mildly amusing as a style of dress, but I don't think it's a breach of the social contract that should be punishable by law. Nor do I approve of supermarket owners banning this sort of attire on their own private property, though I acknowledge their legal right to do so (and don't wish to remove it).

3. I don't think that polygamous (including polyandrous, communal, etc.) relationships should be banned by the state, but I don't necessarily think that they should be able to be registered as formal marriages. Admittedly, I don't necessarily think that any sexual relationships should be able to be registered as formal marriages. I'd prefer the state to get out of the marriage game entirely. But if the marriages of heterosexual couples are to be eligible to be registered in this way, with a standard package of associated legal rights, there's a compelling argument of fairness for doing likewise for homosexual couples. Groups larger than two are too varied for a one-size-fits-all set of legal rights, so there's probably good reason to leave their entitlements to the flexibility of the general law. OTOH, I would be fiercely opposed to any attempts to prohibit such relationships outright.

All these positions seem reasonable to me, but it's marvellous how I can get tied up in defending them against people who see things differently.

23 comments:

Brian said...

For 1), the burden of proof is borne by the other side. It should be easy to defend.

NewEnglandBob said...

I agree with you Russell and I like the way you summed these up.

(FYI - I am the one who made the 'half baked' comment on FB)

Tony Smith said...

Also for 1) pull several more rugs out:
b. presumptions of moral authority
c. exemptions from criticism
d. taxation advantages
e. privileged access to young people c.f. other hazardous but legal "adult" habits: gambling, alcohol, tobacco, sex (which should also be the same for other drugs)

Chris Lawson said...

Better embroiled than charbroiled.

Chris Lawson said...

More seriously, I'm pretty much in 100% agreement with you Russell. My only quibble would be that I'm not sure the state *can* get out of the business of marriage. Settling assets and child access after divorce is just one example of a marriage-related problem that doesn't work very well when left to people's own devices. But having said that, I do agree that marriage should be as non-discriminatory as possible. In a sense, though, most Western states have taken a huge step in this direction by simply accepting that "de facto" relationships can be considered marriages in law.

Russell Blackford said...

Yeah, Chris, the US is the big exception to your last point. I think that in Australia, and probably most other Western countries, the long-term drift of things is that there will be no legal difference in the rights of formally married couples and de facto couples (including homosexual ones). The US seems to do things differently.

J. J. Ramsey said...

"but it's marvellous how I can get tied up in defending them against people who see things differently"

Ah, yes, SIWOTI syndrome. I know it intimately well: http://xkcd.com/386/

Blake Stacey said...

The biggest problem I see with leaving polygamous marriages "to the flexibility of the general law" would be issues like hospital visitation rights. Yes, the courts could probably handle property division and child custody matters if a poly marriage dissolved (or if one partner left, etc.), but what happens when one partner is dying of lupus and another wants to be by their bedside? I suppose this is where we get into living wills, designated healthcare proxies and all that.

Complex problems have a nasty tendency to require complex solutions . . .

Ophelia Benson said...

"Nor do I approve of supermarket owners banning this sort of attire on their own private property"

To squander my own time for a moment (and not for the first time, nor the last) - I wonder how generalizable that principle is. Do supermarket owners stand for all owners of private property that invite customers, or only some of them? What about restaurants and cafes - say anything a step up from McDonald's? If people started showing up at your favourite local natural wood and hanging plants moderately priced eatery in frowsty pajamas and bed hair, would you disapprove if the owners established a minimal dress code?

A related question. In US terms - are pajamas more acceptable at 7-11 or Safeway than they are at Whole Foods? Are implicit or explicit rules more or less acceptable at either place? (Whole Foods is widely known as Whole Paycheck. 7-11 is not.)

NewEnglandBob said...

McDonald's? 7-11? Do people actually go into those kind of places?

Chris Lawson said...

Blake, I understand your point but I'm not sure that the issues that arise from polyamorous arrangements are necessarily any worse than the crap that goes down in "normal" families when someone dies (or becomes demented or moves to a nursing home). I've seen lots of horrific fallout from family infighting and all I can say is I'm glad as hell I wasn't a *lawyer* in any of those asset-seizure / responsibility-avoidance campaigns.

Chris Lawson said...

To clarify, the message I mean to convey is: the law should be flexible and robust enough to deal with 99% of human experience. In the case of marriage and access I don't see how the basic rules cannot be applied to non-traditional family arrangements. We already have to deal with all manner of such families: adopted children, fostered children, those cared for by other family members without any formal adoption, power of attorney decisions in divided families, etc., etc., and it seems to me that any attempt to exclude one particular class of marriage ought to be backed up by some very powerful justifications.

Complexity is not, by itself, a good argument since we have to deal with it regardless.

Colin said...

Blake, speaking for UK law at least, there is no special standing for spouses or 'next of kin' when it comes to medical decisions for the incompetent, breaking confidentiality, or bedside visits (though particular doctors probably act as if there were in all three cases).

I'm not married, but have been with my partner for >20 years. If I'm ever rendered incompetent, I sincerely hope and expect that her opinion would be sought as to how I should be treated. That, to me, is just common sense. I can also nominate a healthcare proxy (under Scots law), but that needn't be my spouse.

As for child-related issues, the marital status of parents has become less and less important over the years, such that it is now pretty well irrelevant to issues of residence, access or support, and wholly irrelevant re succession.

The only issues where it still really seems to matter are in relation to alimentary supprt and succession between adult parties, but even there, couples living together as if married are increasingly finding themselves treated in the same manner.

Really, I'm with Russell on this: state involvement with 'marriage' is past its sell-by date.

Russell Blackford said...

Ophelia, if the owners of a private business are selling a certain kind of experience, as the owners of classy or even not-so-classy restaurants are usually doing, I think they should be able to demand that their customers cooperate. I'm not against those sorts of private property rights or against being able to sell an experience as a product. I.e., the owners can say: "Don't come in if you are not dressed to a certain standard."

The owners of a supermarket could also do this, but that wasn't Tesco's rationale. Unless it's made very explicit, it's not something that goes without saying, since supermarkets are usually very informal places frequented by folks in all sorts of attire. They are not buying an experience, but physical consumer items.

If that had been what this was all about, I wouldn't have objected to the views of the people I was debating with over at Butterflies and Wheels. But some of them were arguing that there's something intrinsically disgusting or disturbing about a pair of pyjama pants, as opposed to, say, a pair of jeans, or that wearing a pair of pyjama pants in public is some kind of fundamental violation of civil terms of engagement in human society. Of course, it's nothing of the sort (much as it's atrocious taste or fashion sense or whatever).

But I realise you understand and agree with this. I'm more explaining for the benefit of folks who didn't see the discussion at Butterflies and Wheels.

Dave Cake said...

In principle, I think your position on 3) is fairly solid, in practice, i think the exclusion of polygamous relationships and the absence of a legal framework to deal with them is almost certainly going to be significantly discriminatory. Some rights will be very difficult to grant at all outside of a marriage system (such as the hospital visitation rights Blake mentions), in other cases it will require expensive (in time and legal expertise) solutions to problems that monogamous couples can solve with minimal time and effort. Yes, poly relationships complicate the legal situation so that it is no longer a 'one size fits all' situation, but that strikes me as an argument for a more flexible legal framework for acknowledging relationships, not to exclude some because they fall into a too-hard basket.

Blake Stacey said...

"We already have to deal with all manner of such families: adopted children, fostered children, those cared for by other family members without any formal adoption, power of attorney decisions in divided families, etc., etc., and it seems to me that any attempt to exclude one particular class of marriage ought to be backed up by some very powerful justifications."

Agreed.

"Yes, poly relationships complicate the legal situation so that it is no longer a 'one size fits all' situation, but that strikes me as an argument for a more flexible legal framework for acknowledging relationships, not to exclude some because they fall into a too-hard basket."

Also agreed.

Russell Blackford said...

Frankly, I don't think there is going to be a perfect solution to this whole question about state recognition of marriages or other enduring sexual/domestic relationships. Although I support same-sex marriage rights, it's for reasons that are only a sub-set of the usual ones. Outside of the US, there seems to be no pressing need of it in the West from the narrow viewpoint of legal rights.

I.e., outside of the US most Western countries are solving it de facto (so to speak) by moving to give the same legal rights to de facto couples as to married couples and the same legal rights to gay de facto couples as to straight de facto couples. I think that's the best way to go. Ultimately, state-registerd marriage will become unnecessary, and rights will depend merely on the facts of the relationships.

However, it doesn't solve the problem that the state gives its blessing to straight couples who are prepared to be married in a way that it doesn't to gay couples. That at least creates an appearance of exclusion or second-class citizenship. It's like the government slapping gays in the face.

So, with some reservations, I support state recognition of gay marriages; and I certainly see no good rational basis to continue to support state recognition of monogamous straight marriages at all ... while simultaneously denying the same opportunity to gays. That seems to be a crazy viewpoint that could only be based in religious teachings.

Well, that covers most relationships. People who simply have open marriages and only one permanent or at least primary partner can use the system fairly effectively. I don't see why they should have a great practical problem with it, although there is much in the law and culture that denigrates them, and I think that's very unfortunate. Still, it doesn't strike me as an insurmountable problem.

But we're left with enduring relationships involving three of more people.

David, or anyone else, do you think there are a lot of relationships like that, as opposed to open marriages with maybe secondary partnerships involved? If so, do you think a lot of the people in them would want to have their arrangement recognised by the state as a marriage?

My own experience is that I've known a lot of people in poly relationships of one kind or another. In some circles, these relationships are more the norm than the exception. And I'm an advocate for their rights. In Western societies, they are even more denigrated (usually implicitly but sometimes explicitly) and excluded than homosexuals.

But I haven't known any who have really wanted to go and get a state-registered marriage of three or more people (obviously I'm not talking here about traditional religious forms of polygyny such as given some endorsement in Islam and historically endorsed or even mandated in Mormonism). Or at least I've known none who've expressed it to me. Do you think it's a real issue in the poly community?

I hope it's clear to everybody that I'm asking genuine questions and would be interested in data or personal testimony. I also hope it's clear that this interest is not idle curiosity on my part. I'm asking about real people with real interests.

Deepak Shetty said...

"3. I don't think that polygamous (including polyandrous, communal, etc.) relationships should be banned by the state"

This is always something that has troubled me because most polygamous marriages that I know off (almost all Islamic) have always seemed to be coerced or forced (emotionally if not physically) and I'm not sure I want to find myself on the side defending them (though it seems that this position logically follows). It's something that I might agree with on principle but not as practised.

Russell Blackford said...

Deepak, how many polyamorous people do you know who are not involved in traditional Muslim polygamous marriages? We had a discussion on another thread in which someone upset me with the condescending suggestion that I don't know about the evils associated with the latter, when these are well-known and we'd been discussing them at length.

I certainly don't want to condescend to you or to be insulting about your own life experience. We all have different experiences that teach us different lessons. But could it be that you're not familiar, from either personal experience or reading, with what polyamory has come to mean in the West? I ask because it's nothing like what you seem to be thinking of. Somebody needs to write a really good book on the subject so we can all be talking about the same thing. I don't know of one, unfortunately (any recommendations out there?). It's an important gap.

I'll say again, from the other thread, that the traditional religious/cultural law that governs both monogamous and polygamous marriages in Muslim countries or communities has got to go, because it is very unfair to women. However, this can only be achieved by people within those countries.

I hope it will not be done in a way that discriminates against genuine polyamorous relationships based on free choice and love. And yes, achieving that outcome won't be easy. It has been largely achieved in the West, at least in a legal sense (there is still a lot of social discrimination against/ exclusion of/ denigration of people who are openly not monogamous). Perhaps it's just not going to be practical to achieve this in Muslim countries or within Muslim communities, at least not in this generation. There, a lot more people are affected by unjust laws and customs based on shariah than by unjust attitudes to legitimate poly relationships. I can understand if the latter injustice gets ignored.

But we're talking here about what the ideal should be. Perhaps we do so from, in one sense, a privileged position, since we are not (or certainly I am not) personally threatened. But someone has to discuss ideals, and anyway I don't want to see one set of injustices ended only by making it more difficult to end another set that is considered less important or less urgent.

Back to you, mate. I'd be interested in your further thoughts.

Deepak Shetty said...

"how many polyamorous people do you know who are not involved in traditional Muslim polygamous marriages"
None personally, which is why my views are colored. I fully accept the principle behind your stance, I merely wished to point out why some like me would be hesitant(it is after all difficult to let go of prejudice).
The only polyamory case I know of was of Alan Moore(of comic book fame) where initially it looked like it was a genuine mutual lifestyle choice, but some of the opinions his ex-wife expressed later seemed to be that she more or less had to accept it or he would leave her.
Im not arguing against your ideal case scenario, I just don't think it will happen in my lifetime.

Chris Lawson said...

Hi, Deepak

"The only polyamory case I know of was of Alan Moore(of comic book fame) where initially it looked like it was a genuine mutual lifestyle choice, but some of the opinions his ex-wife expressed later seemed to be that she more or less had to accept it or he would leave her."

I see this as a mutual lifestyle choice. Moore might have been a dick about it, but I don't see that the law ought to be in the business of preventing him from making that ultimatum. Where the law should step in is if Moore could have strengthened his ultimatum with threats of enforced poverty, physical violence, or isolation from children. In some countries this is a very real possibility, but I don't see that outlawing polyamory is a better answer than protecting the rights of women.

Deepak Shetty said...

@Chris
Im not making the argument that Government should interfere. I just feel that there must be a vast change in the way women are perceived and treated in society (even western ones) before polyamory etc can be sanctioned.

I guess if the law did allow it , polyamory would have to have similar laws to any other multi people partnerships but that breaks down when it comes to children.

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