Same Sex Marriage - Where I agree with Santorum

So perhaps you've seen this on the blog of the Friendly Atheist, the video clip of Rick Santorum comparing gay marriage to plural marriage?

First, I'll point out that polyamorous marriage is not legally the same as a "binary" marriage. The law in most societies is set up already to easily handle marriage between a couple - no matter the sex. There are no legal complexities in a marriage of two people.  While the legal complexity of a union of three or more people can get complicated very quickly.

But I still find that I'm in agreement with Rick Santorum in that I see no ethical reason to restrict a legal union to an arbitrary number of two people.

Don't get me wrong, Santorum is being pretty smug in this video where he thinks he's cornered the questioner with a foolproof "gotcha".  But even a stopped (analog) clock can be right twice a day.  And Santorum is right here, when it comes to ethics.

If it is ethically okay for two people to get married, no matter their gender, then it is okay for three or more to get married.  This is an argument that works even without considering same-sex marriage.  Bringing gender into this argument is unnecessary, and may be a Red Herring fallacy.

In the Supreme Court decision of Lawrence v. Texas, Justice Stevens concluded that:

(1) the fact that a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,

(2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process.


This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.


The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. 

If two adults, "with full and mutual consent" can engage in "private conduct" without government intervention - then why can't three, or four?

A reading of Polyamory in Wikipedia showed me that the law is still pretty tangled up, even though Lawrence v. Texas has resulted in some state legislators reviewing their laws on marriage.  According to the Wikipedia article:

Bigamy is the act of marrying one person while already being married to another, and is legally prohibited in most countries where monogamy is the cultural norm. Some bigamy statutes are broad enough to potentially encompass polyamorous relationships involving cohabitation, even if none of the participants claim marriage to more than one partner. For instance, under Utah Code 76-7-101, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Having multiple non-marital partners, even if married to one, is legal in most U.S. jurisdictions; at most it constitutes grounds for divorce if the spouse is non-consenting, or feels that the interest in a further partner has destabilized the marriage. In jurisdictions where civil unions or registered partnerships are recognized, the same principle applies to divorce in those contexts. There are exceptions to this: in North Carolina, a spouse can sue a third party for causing "loss of affection" in or "criminal conversation" (adultery) with their spouse, and more than twenty states in the US have laws against adultery although they are infrequently enforced.

So, the law seems to be all over the place, and some conservatives believe that the ruling in Lawrence v. Texas opens the floodgates to polyamorous marriage.  And there are several forms that a poly marriage can take, which further complicates any possible future changes to marriage law.

But as someone who bases my decisions on reason and rationality, I cannot see any ethical reason to condemn a relationship between "n" number of people, as long as everyone in that relationship gives their informed consent.  I can see a legal reason to prohibit such a union - in that today's laws are not constructed to be fair to such a marriage.  But I can see a way to counter that objection by learning from and perhaps adapting laws of incorporation to marriage.  Why not?  A couple is often legally treated as a union, a single entity; and so is a corporation.

Santorm smugly thinks he has found a counter to same sex marriage, but I think he is one of many who (unknowingly) are working for the legality of plural marriage.


Peter Wall said...

I have a smidgeon of expertise on this subject.

Modern marriage law has a lot of parallels with partnership law. In California, there are even a couple places in the Family Code that explicitly make some of the Corporations Code provisions on the duties of partners applicable to spouses. And when you look at it that way, it does seem silly to insist that "marriage" can only mean two people. Why not allow marriages of three, five, or even nineteen people? Partnerships can get that big.

But somewhere around five or nineteen people, marriage would get kind of strange. I can imagine a future where "marriage" is no longer limited to a specific number of people, where marriage starts to look more like a corporation with shareholder spouses, each of whom owes domestic, productive, and sexual duties to the others. One might apply for marriage the way one applies for a job. (I imagine applicants asking questions like "What's the culture like inside this marriage?") Perhaps the spouses elect a board to make decisions. Will communications between spouses be privileged? Can some spouses own more shares of the marriage than others?

But that starts to look ridiculous and regardless of what anybody things about the individual freedom to marry, I doubt there are many people who would look at an institution like that and say, "Yes, that's a marriage." I would imagine that even within such an institution, people would coalesce into smaller groups of two or three, for privacy, sharing of confidence, and so on.

So, yes, why not allow three men to get married? I have no trouble with that. But four people? Five? Nineteen? Where do we draw the line? In a world with lawyers, if there are no limits, somebody will figure out a way to form a huge "marriage"—even if only for tax purposes. Divorce will become even more vexing than it is now. Dividing things in half is one thing, but in thirds? And, here in the community property jurisdictions, if two out of three spouses acquire an asset together, does that give rise to a new shade between separate property and community property? Or what happens when two of the spouses want to divorce the third? How do we manage child custody?

I do think most people are probably limited to having good and stable relationships with only one other person at a time. (Although plenty of people can't even handle that much.) That's not to say people can't have multiple relationships of differing character all at the same time, perhaps in a polyamory kind of situation. But with all the legal import we give to marriage, I just don't see it working well beyond two people at a time. Given my experience in practicing divorce law, I would be inclined to limit marriage to two people (regardless of their sexes), if only in hopes of reducing the potential for abuse. That is, I see no reason to condemn people for choosing to be in relationships with more than one other person. But I am also wary of sanctioning those relationships with the legal rights and responsibilities that apply to marriage.

Calladus said...

Peter, I agree with you in many ways - it's complicated legally, and the relationship is probably not stable - especially not for the long term.

However, I know people in plural relationships, some who have been in said relationships for 5-10 years. They make it work. Will it work for 25-40 years? I dunno.

Group marriages can work for some time - as evidenced by the Oneida Community and the Kerista Commune. But they seem to work because of one central charismatic leader in authority - so there may be a cultish aspect to them.

Still, author Robert Heinlein mused in his fiction that a group marriage could work if one (or two) people in the marriage were the "head" or "Mother and Father", and that those roles could be held through seniority or election.

I think it is an experiment that we will eventually try, legally. My guess is that the average lifespan of plural marriages will be relatively short.

Daniel Dennett in the book, "Breaking the Spell" details that the cohesiveness of any group depends on the cost to join (and/or quit). It is expensive, in terms of life changes, emotion and money, to quit a marriage - and I think that cost is all that holds together many traditional marriages. The lowering of the cost to quit a marriage in the last decades has been a contributing factor (I believe) in the divorce rate.

I think if a plural marriage is cheaper to join and quit than a traditional marriage, there will be many of them - with high rates of change in their membership.

Peter Wall said...

Either way, I don't think there's much basis in history, biology, or morality for limiting meaningful relationships to just two people for the duration of their lives. People regularly do far worse things that deserve much greater concern.