Rusty Reno on gay marriage

03.29.2013, 11:12 AM

I enjoyed my recent conversation with Rusty Reno, the editor of First Things.  We have some disagreements, but he’s a smart, engaging guy.  A good deal of our conversation focused on gay marriage, which Rusty opposes.   At the same time, yesterday on the First Things blog Rusty writes:

It’s possible, I think, to affirm same-sex marriage in terms of what marriage is: domestic partnership, the context for disciplining our sexual desires to serve the higher end of a permanent bond, monogamy as an intrinsic good. That’s a truncated version of the traditional view, but it’s a view.

I don’t want to make too much of this statement, since the post from which I’ve taken this excerpt  is a forthright criticism of Ted Olson’s argument in favor of gay marriage before the U.S. Supreme Court this week.  And I don’t want to use my own words to describe or repeat the thesis that Rusty is here presenting.  I only want, as one who favors gay marriage, to agree with him.  I, too, think it’s possible to affirm same-sex marriage in the way that he describes.


50 Responses to “Rusty Reno on gay marriage”

  1. annajcook says:

    David,

    When you have a moment, it would be nice to have a link to the post or article from which Reno’s quote is drawn. I’d be interested in reading it in full.

    I am particularly interested to know if he expands on the notion that viewing marriage as a “domestic partnership…permanent bond, monogamy” is a “truncated version of the traditional view.” What is the non-truncated version of whichever traditional view he would articulate (there are multiple, after all)? And does every every heterosexual marriage somehow fulfill the non-truncated version in full, while same-sex marriages do not?

  2. Hector_St_Clare says:

    Re: What is the non-truncated version of whichever traditional view he would articulate (there are multiple, after all)?

    First Things is a culturally conservative Christian publication, so I’d assume he means (by ‘the traditional view’) all the things you would imagien: procreation, gender roles, indissolubility except by death, etc.

  3. annajcook says:

    My point was, Hector, that if we’re going to talk about same-sex marriage requiring a “truncation” of a certain view of marriage in order for same-sex couples to be included, I think it’s important to lay the assumptions concerning what supposedly needs to be lopped off out on the table and then ask ourselves whether they actually need to be excised in order for same-sex couples to be welcomed into the marriage tent.

    To take your examples:

    1. procreation. As discussed in the SCOTUS oral arguments, procreation can often be contained within marriage, but is never required of heterosexual couples in order for marriage to be honored. Therefore, procreation as one facet of marriage doesn’t need to be removed in order for same-sex couples (most of whom cannot procreate with one another) to marry.

    2. gender roles. Queer people generally have a gender, and queer people also have roles within their relationships. We fulfill all of the functions of marriage partnership as generally understood for two non-parenting people. We contribute financially to the household, we share chores, we support one another emotionally and practically. We engage with extended family and friendship networks. In order to meaningfully unpack “gender roles” as a key part of traditional marriage, we’d need to talk about what those roles entailed and then think about how same-sex couples inhabit the roles of husband and wife.

    3. indissolubility except by death. I don’t believe all “traditionalists” reject divorce wholesale, but setting that aside there is nothing preventing same-sex couples from remaining married unto death.

  4. Kevin says:

    “A good deal of our conversation focused on gay marriage, which Rusty opposes”

    Does Rusty oppose gay marriage as some kind of principle or does he oppose legalizing same-sex marriage? I don’t think I’m splitting hairs: it’s quite possible to oppose something as a religious or moral principle, but support its legalization, based on other principles, such as separation of church and state, or equal protection, that one holds dear.

    I think the distinction matters, because we seem to be having, to some extent, a national conversation that is using the government to validate one’s personal beliefs, which is really not the purpose of government. I understand that many people who oppose same-sex marriage want the government to validate their feelings by agreeing with them and outlawing it. There are a lot of other people who oppose same-sex marriage for religious reasons, but don’t object to others who don’t hold the same religious beliefs to exercise the freedom to marry.

    As a way forward, I think we should encourage the idea of a dual-track position: personal/religious opposition to same-sex marriage, but civil support for legalizing it. I’m not sure many people realize they have this option.

  5. Diane M says:

    re: gender roles as an important part of marriage – this is something that heterosexual married couples have already changed.

  6. Hector says:

    Diane M,

    Yes. I don’t think Rusty Reno is talking about marriage as it stands today, but rather about marriage as an ideal, as it ought to be.

  7. intheagora says:

    Instead of a truncated version or non-truncated version, why not an expanded version including polygamy? For a billion or so people in the world, polygamy is part of a long-standing tradition.

  8. Anna Marie says:

    Hector_St_Clare
    You seem to have a fixation on sex or gender “roles”. Please don’t mislead others to assume that about R.R. Reno.

    Mr. Blankenhorn,
    Reno’s concern that SSM is a luxury good for the rich, paid for by the poor, really resonates with me. I think, like you, that Mayor Bloomberg’s new ad campaign is a (hopeful) step in the right direction.

  9. Anna Cook says:

    intheagora,

    I suspect you were putting your question about polygamy out there insincerely, but I agree with you that more-than-two relationships have often met the definition of marriage in many parts of the world across history (including in the present day), and the United States’ historical moral panic over polygamy has some pretty ugly ties to our federal persecution of Mormon people.

    While a serious discussion about poly relationships is not one the American public seems interested in having currently, I hope (and would not be surprised if) it is a conversation we can have with less hysteria and obvious dismissal in two, five, ten years.

    David,

    Thanks for the link to Reno’s original piece. I think the central difference I would have with Reno concerning the vague (in Reno’s mind, over-broad) definition of marriage is that I don’t believe we are replacing some sort of uniform consensus with plurality. I believe that marriage has always been a moving target. Yes, in some periods of history it has enjoyed a more solid definition than in others, but there has always been a margin-center dynamic to marriage as a social institution.

    We have generally agreed as a society that SOME core locus of relationships constitute marriage, and then some other cases (interracial relationships, cohabiting relationships, marriage after divorce, in widowhood, to cousins, at what age?) have all remained in more liminal areas. They move in and out of “marriage” as a definition, usually when certain conditions are met, or when the needs of society change.

    So I don’t think it’s that Ted Olson doesn’t “get” something core about marriage — it’s that he (and I) and Reno disagree over the nature of marriage as an institution and how our agreed-upon notion of what is and is not marriage came to be.

  10. Hector_St_Clare says:

    Re: Instead of a truncated version or non-truncated version, why not an expanded version including polygamy? For a billion or so people in the world, polygamy is part of a long-standing tradition

    In the Agora,

    I assume this is an insincere attempt to annoy SSM supporters. I don’t especially blame you for that….I understand that for a lot of people, while they might disapprove of polygamy, they also think it’s less clearly wrong than same-sex marriage is, and so they dislike the fact that same-sex marriage is legal and polygamy isn’t. You can certainly make a coherent case that polygamy is more traditional, and more in keeping with what marriage has traditionally been about, than gay marriage is (though that’s not a case that I would agree with).

    That having been said, there are actually good reasons not to allow polygamy, even if we allow same sex marriage. They’re actually two totally separate issues. The problem with polygamy is that it allows rich, high-status men to monopolize access to fertile, desirable women, and leaves the low-status men without partners. This tends to destabilize men, as the low-status, unattached men are going to be more likely to get involved in crime, warfare, and other antisocial behaviours in an effort to compete for mates. If Bill Gates has ten wives, that means there are nine other men who don’t, and that’s going to contribute to a dysfunctional and unstable society. Legally required monogamy is one way to at least introduce some measure of equality to the sexual marketplace, and to make sure there is at least some measure of formal equality among men. That’s the argument for banning polygamy in a nutshell.

  11. David Lapp says:

    I’m not sure if this is what Rusty meant, but I disagree that redefining marriage in law might simply be about affirming a positive, albeit “truncated” view of what marriage is.

    While a person who favors redefining marriage may affirm some features of marriage — permanence, for instance — it also means denying some things that I believe are fundamental goods.

    It’s a denial that mothers and fathers matter for at least some children. It’s an affirmation that there are all kinds of families, and we should treat at least some of them equally; we should not privilege them mother-father family. Who is the state to say that the mother-father headed family is superior?

    Some people who call themselves “pro-marriage” may support redefining marriage in the name of strengthening marriage, and disagree with my above statements. But that doesn’t change the fact that redefining marriage means that a male-female/mother-father relationship is fundamentally irrelevant to what we mean when we say “marriage.” Henceforth it shall be about adult fulfillment. Oh, and for some people, “Don’t have kids until you’re married.”

    But now we have a contradiction inherent in our marriage regime. If you call yourself heterosexual, mothers and fathers are really, really, important. If you call yourself homosexual, they are optional.

    But if mothers and fathers are optional for some people –and that’s okay (we say) — then why is it important for other people? That is the question people will rightly ask.

    When there are contradictions, confusion reigns. And more confusion is the last thing we need when it comes to sex, love, marriage, and children.

    Now, some people will retort, “But what does gay marriage have to do with mothers and fathers? That’s a debate about reproductive technologies — that’s another conversation!

    The point of the retort, I think, proves my point: redefining marriage affirms that marriage is essentially about adult fulfillment; the conversation about marriage and children have become two completely separate and unrelated topics.

    So if I care about strengthening the link between children and their mothers and fathers, why would I support an effort to completely eradicate in law the notion that marriage and children are completely separate topics?

  12. David Lapp says:

    Sorry, my last sentence should read “So if I care about strengthening the link between children and their mothers and fathers, why would I support an effort that will completely eradicate in law the idea that marriage and children are the same topic?”

  13. Kevin says:

    “why not an expanded version including polygamy?”

    First, we’re discussing same-sex marriage, not “marriage in all its possible forms.” Try to stay on topic. Aren’t we having enough trouble discussing one variation? Why make things even more complicated?!

    Fast forward ten years. Same-sex marriage is legal across the US, and with surprisingly little rancor from the anti-gays, who are actually now, like everyone else, the indifferent-to-sexual-orientations. Now we may discuss polygamy.

    Polygamy doesn’t make a lot of sense as a marriage concept in the US.

    First, we already have a severe divorce problem, and getting three or more people to remain devoted to a marriage is going to be even harder than getting two people to do it. It is certainly sound public policy to forbid a practice that increases the divorce rate. Because, in ten years, when we’re all in the same boat as understanding marriage to be about commitment, the concept of marriage is undermined by polygamous marriages, if only because of math: it’s harder to maintain a commitment to two or more entities than to one.

    Second, assuming society would want to outlaw polygamy even without a rational public purpose in doing so, there is no constitutional infirmity involved. Banning polygamy, like banning incest, applies equally to all. The problem with banning same-sex marriage is that it disproportionately impacts gay people, creating an equal protection problem.

    Third, the “traditional marriage” argument will reinvent itself, more usefully this time, and point out that traditionally, polygamy existed in a time when wives were property, not committed and equal partners, and had little choice but to succumb. And, joy of joys, the marriage redefinition crowd, also eager to remain relevant, will chime in that polygamy wasn’t really marriage anyway, but a form of ownership: some kind of “skim milk” slavery. Ergo, the word marriage should never have been used with multi-person arrangements.

    At least, this is what my crystal ball is telling me.

  14. Kevin says:

    David Lapp, I think you’re confused. You are free to support the notion that marriage should be between only one man and one woman, and promote that reality in whatever (legal and ethical) fashion you want. But to impose your belief of what marriage should be legally creates constitutional problems, as well as social problems and injustices. That’s why you should support legal same-sex marriage: you can eat your cake and have it, too.

    As you’ve noted yourself, marriage need not, and does not, exist in terms of procreation. If they were ever linked, that link was severed long before same-sex marriage came along. If fact, same-sex marriage came along probably because, the link between procreation and marriage was severed or discovered to not even exist.

    And same-sex marriage doesn’t undermine your vision of marriage anyway. If two straight people enter a relationship, marriage can be promoted as the optimal legal arrangement for them, even as gay couples are off doing whatever it is they are doing with marriage. Just as when fertile young couples choose marriage “because we want to have children” and infertile elderly couples choose it simply because they want to proclaim their commitment publicly and have reliable companionship.

    It seems that marriage as a multi-purpose arrangement is winning the day, and marriage as a single-purpose arrangement, and the exclusive province of fertile straight people, is losing. The former is winning because it makes sense. The latter is losing because it doesn’t exist. Which is a pretty amazing thing, considering how many people signed up for it, and how much time and resources have been consumed defending it.

  15. Diane M says:

    @David Lapp “So if I care about strengthening the link between children and their mothers and fathers, why would I support an effort that will completely eradicate in law the idea that marriage and children are the same topic?”

    I don’t think same sex marriage gets rid of the idea that marriage and children are the same topic.

    Gay people have children and raise them together. That is one of the reasons they want marriage. It is also a reason for society to support their families with marriage – so the parents will stay together.

    It’s true that a gay couple can never be a family where both parents are the biological parents of a child, but adoptive families and step-families are also good families. They also need support from society.

    However, I would argue that marriage and children are not the same topic. I would like our society to have children in marriage as often as possible, but marriage without children is fine.

  16. Diane M says:

    from Rusty Reno – “It’s possible, I think, to affirm same-sex marriage in terms of what marriage is: domestic partnership, the context for disciplining our sexual desires to serve the higher end of a permanent bond, monogamy as an intrinsic good. That’s a truncated version of the traditional view, but it’s a view.”

    Although I support same-sex marriage, I would actually like to see the definition of marriage as including something about raising children. Not that all marriages have to have children, but that it is an important function of marriage.

    And I think I would like to see more about the domestic partnership part, not just the permanent bond and monogamy. Sex is a necessary but not sufficient part of marriage. What makes it a partnership is other things like working together, being companions, sharing, caring for each other, and being part of each other’s extended families.

  17. Phil says:

    It’s a denial that mothers and fathers matter for at least some children.

    David Lapp, when you make an argument like this, you need to be more clear about what you mean by “mothers” and “fathers.” Do you mean that the biological parents matter for at least some children? Or do you mean that “male caregivers” and “female caregivers” matter for at least some children?

    Same-sex couples fit into the much larger category of couples who cannot conceive a child together. If your argument is that biological parents matter to children, then there is no logical reason for you to separate same-sex couples, as a sub-class, from the larger class of couples who cannot conceive.

    If your point is simply that maleness and femaleness in their caretakers matter to children, then you should be more specific about it.

    As it is, you are being–in my interpretation–intentionally deceitful. You are making an argument about gender essentialism and pretending that you are making an argument about “mothers” and “fathers.”

    If you are rhetorically separating same-sex couples from the rest of the couples who can’t conceive together, then you are not really talking about biological mothers and fathers–you’re talking about penises and vaginas, and, possibly knowing that your argument sounds stupid, you are cloaking it in respect for genetic parentage.

    But if mothers and fathers are optional for some people –and that’s okay (we say) — then why is it important for other people? That is the question people will rightly ask.

    Again, this argument does nothing to single out same-sex couples, David. You’re making an argument against adoption, not an argument against same-sex marriage.

    The point of the retort, I think, proves my point: redefining marriage affirms that marriage is essentially about adult fulfillment.

    This is fallacious reasoning, David. Permitting couples who cannot conceive children together to marry does not redefine marriage, because that is the status quo. The problem is: you know damn well that is the status quo. You continue to talk about “mothers” and “fathers” when what you’re really talking about is maleness and femaleness. You are the one who is devaluing genetic parentage in this conversation, because you continue to conflate all women with mothers, and all men with fathers, as though it doesn’t matter which mother or father a child has.

    Is that your intent? Let me ask you specifically: do you agree that same-sex couples are just a subset of the larger class of couples who cannot conceive a child together?

  18. Phil says:

    I meant to add: permitting couples who cannot conceive does not “affirm that marriage is essentially about adult fulfillment.” That is fallacious. Marriage can be “essentially” about more than one thing. You are stacking the deck. Marriage can be (for example) about commitment, fidelity, mutual support, and children–all at the same time.

    Here’s my question for the “mother and father” arguers–including you, David Lapp: if a young woman with no uterus comes to you, crying, saying that she doesn’t believe she can ever marry because she cannot conceive a child, would you agree with her, and advise her to remain single for the rest of her life? Or would you suggest that she might, in fact, still be able to have a successful marriage?

  19. Kevin says:

    I don’t mean to pick on you David Lapp, but let’s try a hypothetical.

    Let’s pretend that marriage licenses are a scarce good and the state only has three left, but five couples were asking to be married. On what basis should the state decide how to award its remaining licenses? And to which of the following couples should the licenses go?

    1. Elena Kagan’s “over 55″ straight couple, where both the male and the female are over 55 and presumed incapable of creating any offspring.

    2. Zach Wahl’s lesbian mothers, raising at least one child. Pretend Zach is still a small child, and not college age.

    3. Rush Limbaugh and potential wife #5, after his fourth divorce is finalized, and who has created not one child, despite four attempts at marriage.

    4. The Louisiana inter-racial straight couple denied a civil marriage ceremony because the judge thought it cruel to sanctify a marriage that would lead to biracial children in a racist society.

    5. The gay couple in Arizona, who have adopted and are raising, about a dozen hard-to-place kids abandoned by, or taken away from, their straight parents.

    I realize I’m stacking the deck but these are all “real world” couples and therefore reflect real people affected by real laws.

  20. mythago says:

    If fact, same-sex marriage came along probably because, the link between procreation and marriage was severed or discovered to not even exist.

    I think this can’t be emphasized enough: that the legal framework that permits same-sex marriage was created and developed by opposite-sex marriage and changes in the laws around it. Principally, the absolutely radical and unheard-of departure from millennia of tradition making the wife the property of, and subordinate to, her husband.

    Re polygamy, let’s not pretend we are talking about “poly”; we are talking about polygyny, in which one man may have multiple wives but one woman may only have one husband. In countries like the US where gender classifications are legally dubious, fundamentalist religious groups are not going to push for laws which ultimately will allow women to have multiple husbands.

    Outside of those groups, you have a couple of other hurdles that have nothing to do with morality: the constitutional threshold (‘number of people I want to marry’ is not a suspect class) and the practical one. If A marries B and C, but then C marries D, are A and D married? What if B files for divorce – is C entitled to B’s community property? Could B then remarry D? And so on. I know others have argued that countries without multiple marriage (like the UK) are able to accommodate polygynous marriages from other countries, but a) those are a handful of marriages and b) they’re polygynous, which makes the legal issues more straightforward, particularly if it simply adopts the legal schema from the spouses’ home country

  21. intheagora says:

    We are discussing whether marriage should be truncated or not. Hence my question isn’t off topic. Also Rusty Reno is coming at marriage from a religious perspective. And polygamy is generally coming from a religious tradition, just not Rusty’s. Islam has well over a billion adherents now and in a few decades may reach two billion and roughly a quarter of the world’s population.

    I personally knew in college a person who did believe in polygamy for religious reasons. She was not a Muslim, and her group was small in number. I suspect she went on to practice polygamy, even though that put her at risk of criminal prosecution.

    At that time there were relatively few Muslims in America. Now there any many, and their numbers are growing rapidly. The U.S. will see the number of Muslims grow from under 3 million now to over to 6 million in 2030 according to a the Pew Forum on Religion & Public Life.
    There is no reason to suppose that trend will be reversed in the foreseeable future.

    It has come to my attention that in a number of Muslim families there is already another wife back in their home country, but it is all very, very discrete. The marriage quandary for these families will not go away. Does anyone involved in the new conversation about marriage care about these vey real people?

    To deal with the objections to Islamic marriage customs:

    According to the Qur’an a man may have up to four wives, but no more at one time. This limits the ability of one man (Mr. Gates in the hypothetical) to monopolize all the nubile women.

    The divorce rate among Muslims is actually less than the divorce rate among Americans in general.

    Islam has a long and relatively successful track record and is moving swiftly into the modern era.

    I do not personally advocate polygamy, but given current social mores, I am having a hard time figuring out why it is not only not recognized, but also actually criminalized. I don’t believe we have reached the end of history or will reach it as far as marriage goes in ten or even twenty years.

  22. Kevin says:

    “We are discussing whether marriage should be truncated or not.”

    Well, since polygamy is illegal, we can’t truncate marriage to exclude it. And examples of what marriage is in other countries are nice, but not particularly relevant to the discussion of what marriage is, or isn’t, in the United States. But if you must, polygamy in other cultures underscores our own understanding of marriage: that it’s a show of commitment between adults. Apart from the numbers involved, polygamy represents female subordination to the male. As I stated earlier, it is probably misnamed as marriage, and I would think the word definition police, so vocal about same-sex marriage, would be proclaiming that polygamy isn’t really marriage, as we understand it. It is closer to slavery.

  23. intheagora says:

    I don’t see how since Lawrence v. Texas that polygamy can be illegal if it among consenting adults.

    To call it slavery is clearly a misnomer, more like a slander based on outdated stereotypes. It is precisely a consensual and voluntary “show of commitment between adults.” And if there are two husbands and one wife (similarly situated to open marriage) no female subordination is involved. If there are more female partners, there is less subordination that the case of a man with a wife and a mistress, which is perfectly legal, as the in case of a recent governor of California and a recent presidential candidate.

    A quick check of on-line definitions such as “marriage in which a spouse of either sex may have more than one mate at the same time” and “Also called plural marriage.” If dictionaries tell us how words are actually used, both gay marriage and plural marriage have made the cut.

  24. Rhonda says:

    I don’t see how since Lawrence v. Texas that polygamy can be illegal if it among consenting adults.

    Lawerence v. Texas didn’t have anything to do with marriage. It just said what consenting adults do in private is their business. That holds true for multiple groupings, but has nothing to do with marriage. Polygmy is multiple concurrent marriages, which are not legal.

  25. Kevin says:

    “I don’t see how since Lawrence v. Texas that polygamy can be illegal if it among consenting adults.”

    Group sex is already perfectly legal. Lawrence v. Texas wasn’t about marriage, it was about private consensual sex.

    There are no constitutional rights afforded to groups. A group of three, who want to get married, can’t make a constitutional argument that if the government allows a group of two to do it, it has to let a group of three or more do it, that I know of.

    And “wanting to be in a multi-person marriage” isn’t a personal characteristic, like sexual orientation is. Unconstitutional classifications are generally based on personal traits, that is, things are a part of someone’s physical or emotional makeup.

  26. Hector_St_Clare says:

    Re: And “wanting to be in a multi-person marriage” isn’t a personal characteristic, like sexual orientation is.

    There probably certainly is some innate, genetic component to ‘inability to be satisfied with one partner’, as there is with most personality traits. (If promiscuity wasn’t somewhat heritable, it couldn’t be selected on). It’s highly likely that some people are genetically more predisposed to seek multiple partners than others. The issue is that it’s much *less* heritable / innate than homosexuality, which is entirely innate or nearly so.

  27. intheagora says:

    “no constitutional rights afforded to groups”

    Do you mean no groups of two have constitutional rights? Interesting concept, particularly since corporations can be treated like persons.

    Of course a would-be polygamist could argue he or she as an individual is merely seeking to expand, by mutual consent, an existing marriage so that it won’t be truncated. It is all about an individual’s desire for love and commitment, is it not?

    Polygamy is usually advocated in the context of a religious tradition, just not Rusty’s or evidently Kevin’s tradition. The free exercise of religion is an enumerated right, i.e. a right that should be at least as strong as, and arguably stronger than, unenumerated rights.

    Many people of many faiths would argue that their religion is part of their emotional makeup and is a personal characteristic.

    How can the state constitutionally claim a marriage is illegal if nothing being done inside the marriage is illegal? I am still searching for a bedrock constitutional principle or a bedrock moral principle that trumps love and commitment once consent and adulthood standards are met. If a family with multiple spouses and multiple children is in a mutually consenting relationship (sexually intimate or not), why should those spouses and children be treated as second-class citizens, let alone as criminals? What is the harm to your marriage?

    Given the demographics of large groups that believe that having multiple wives is not inherently immoral, and given the increasingly libertarian trend of the law, this is not an intellectual game. Already no one would think to arrest a visiting sheik on charges of bigamy merely because he publicly holds that a man can have more than one wife.

  28. Hector says:

    In the Agora,

    Because polygamy promotes a destabilizing dynamic for society, it intensifies competition and inequality among men in terms of access to women. Monogamy is a means of rationing access to sexual partners, so that we have some measure of fairness in an unfair world.

  29. Hector says:

    I mean, I think the claim ‘polygamous marriage isn’t really marriage’ is pretty silly. That doesn’t mean it’s a form of marriage we should encourage.

    And I’d disagree that Islam is a healthy, flourishing religion

  30. Diane M says:

    Well, on many of the comments about polygamy I find myself agreeing with Kevin and Hector St Claire at the same time. :-)

    Mythago has great points, too, from the legal point of view.

    So I’ll just add one more – same sex marriage does not threaten my marriage, but legal polygamy really does.

    Same sex marriage just pulls a few guys out of the dating pool who would make me miserable if I married them.

    Polygamy means that my husband could wake up one day and suggest that he wants a nice, younger, second wife. It would put many straight women and men on the spot, having to justify saying no to their partner. It would cause conflict and heartache for many couples.

  31. Diane M says:

    So polygamy is always an interesting topic that gets lots of comments, but I wonder what people think about the whole definition of marriage thing.

    What would be a good way to define the essence of marriage if we’re leaving out one person has to be a man and one person has to be a woman?

  32. Kevin says:

    “There probably certainly is some innate, genetic component to ‘inability to be satisfied with one partner’, as there is with most personality traits.”

    “Probably certainly”?

    I highly doubt that someone can only form a committed romantic relationship to two or more persons, but not to only one person. Doesn’t make a lot of sense. What happens when a member of the polygamous group dies? Do the remaining members go their separate ways, for lack of commitment that they can’t achieve without that magical minimum number?

    Buy hey, if enough of these people show up, maybe the law will buy it. So far, there’s no legal recognition or awareness of people who can only have a fulfilling committed romantic life with two or more people. That’s not the case with gay people, who are recognized in federal hate crimes legislation, in state and local anti-discrimination laws, by businesses for the purpose of giving benefits, etc. I think you have to prove you exist before you can make a constitutional claim of equal protection and due process.

    “I am still searching for a bedrock constitutional principle or a bedrock moral principle that trumps love and commitment once consent and adulthood standards are met.”

    Well, take heart that polygamists have not successfully argued for legal polygamy since it was outlawed. Same-sex marriage doesn’t change that. But as noted previously, there is no constitutional protection for people who want to be in “groups of three or more” so if states want to ban polygamy, there isn’t much legal recourse for people who aspire to plural marriage.

    The religious argument for polygamy hasn’t worked yet, and again, I don’t see why legalized same-sex marriage would change that. Polygamous marriage is a lot more similar to different-sex marriage, since it can be procreative; arguments in favor of it aren’t strengthened with legal same-sex marriage. Some religions may permit plural marriage, but none requires it as a sacrament. You don’t have to get married to be a Christian, for example. Christianity may attempt to regulate marriage but it does so parenthetically to its essential requirements. So it would be hard to argue the case for religious infringement.

  33. intheagora says:

    First, let’s take the gender aspect and gender stereotypes out of the equation, as SSM suggests we should do. Is there any argument against a marriage consisting of three lesbians or three gay men?

    Second, let’s take the stealing your husband and unfair competition out of the equation, as no fault divorce suggests we should do. One could simply require the consent of all the partners for a plural marriage to be valid. Remember consent plus adulthood is the new standard. Today, of course, your husband could simply divorce you (no fault, of course), and take up with another younger woman with or without marrying her, if that is what he wants, even without divorcing you. Serial monogamy doesn’t really offer much guarantee of lack of heartache. The divorce rate is very high and there are many single mothers without husbands (either because the father of their children never married them or divorced them), and their numbers are growing. The number of men wishing for multiple wives is not so high as to distort the marriage market, particularly given the large numbers of young people simply not marrying and the large number of single women with children.

    Again, I remind you that the rate of divorce is lower among Muslims than among generic Americans, and that the mosques are overflowing and growing in numbers. That sounds flourishing to me.

    The new essence of marriage could be consenting adults holding out to the world that they are in a loving (sexually intimate or not), committed relationship. Or the essence of civil marriage could be a set of government benefits including the right to sue for alimony that consenting adults can apply for. I’ll admit the latter sounds less romantic than the former. It makes marriage seem less attractive, especially to men, but that is where we are headed.

  34. Anna Cook says:

    Diane writes:

    What would be a good way to define the essence of marriage if we’re leaving out one person has to be a man and one person has to be a woman?

    Setting aside religious definitions, which might have more specific conceptions within each tradition, and thinking about a “big tent” civil marriage recognition that could cover each relationship’s particular promises, here are some of the element I think could help us define the parameters:

    1) adulthood. the persons involved would have to be legal adults

    2) informed consent. the persons involved would have to attest to their voluntary (non-coerced) intention to enter into marriage, and that they (and any other relevant persons) have been open to the best of their ability about any elements of the relationship which might change the voluntary nature of the other person(s)’ willingness to enter into this relationship.

    3) commitment. that the persons entering into this relationship are making a commitment to mutual support (emotional, material) with one another, and recognizing that entering into this relationship and codifying it in a legal sense, the other person(s) in the relationship have legal redress in the event that on individual within the relationship willfully fails to follow through on those commitments.

    4) kinship creation and care for dependents. that persons entering into a marriage are formalizing the creation of new kin through chosen association, and formalizing care-giving responsibilities for any dependents within this new kinship framework — particularly dependent children. like #3, this formalization signals that any adult member of the marriage who fails to fulfill those responsibilities to the best of their ability can be held accountable by law and society.

    5) fidelity. marrying signifies a commitment to fidelity, to abiding by the specific parameters of the intimate relationship as agreed upon by all members of the marriage — and an agreement to re-negotiating those relationship parameters with your partner(s) rather than uni-laterally breaking them if you feel they are no longer tenable. thus, if you have an agreement to sexual exclusivity within the relationship, you cannot enter into a sexual relationship with anyone outside the relationship without re-negotiating that boundary with your partner(s).

    6) arbitration for relationship dissolution. entering into a marriage relationship provides an orderly framework for relationship dissolution in the event that the relationship must come to an end. in effect, it voluntarily brings the state into the process of dissolving a relationship, to help ensure fairness and protect the more vulnerable members of the marriage and family (including children, or abused partner(s)) from material insolvency and other abuses.

    7) formation of an economic unit. entering into a marriage signals that the adults within the relationship will be sharing material resources in common and endeavoring to support for any dependents within the household.

    I also think that culturally, we assume sexual intimacy is part of a marriage relationship, although I don’t think we should codify that element into marriage law because there are some people who seek marriage relationships without sexual intimacy (for example, asexual people), and that should not be a required element to marriage — anyway, we don’t demand people prove sexual intimacy in order to marry now!

    Those are the elements that come to mind immediately for me. There might be others that I would refine a definition to include.

  35. Kevin says:

    intheagora, I’m not saying there isn’t a good case to be made for plural marriage, I’m addressing the claim that if same-sex marriage is legalized, then plural marriage must also be legalized. I don’t believe that is the case, for reasons I’ve stated. If there are good reasons, or even legal imperatives, for legalizing polygamy, they don’t hinge on the legal status of same-sex marriage. And yet no one has successfully argued for a constitutional right to polygamous marriage.

    Certainly a case can be made that polygamy might become more socially acceptable after same-sex marriage becomes legal, as some people will ascribe the reason for legalizing same-sex marriage to “letting someone marry anyone they choose.” That reason is not really what’s driving the legalization of same-sex marriage, in my opinion. The drivers of same-sex marriage are constitutional concerns of equal treatment, concerns about the welfare of children being raised outside of wedlock, reducing the demonization and marginalization of gay people, by including them in a respected institution that they can benefit from.

    I don’t see how any of these drivers (and there may be others) relates in any way to polygamy. And I can’t connect the dots from legalizing same-sex marriage to being legally forced to legalize polygamy. Why? Because a gay person is recognized in law as a person; a “multiple person romantic orientationist” isn’t. I think it’s going to be a tough sell for three (or more) people to claim they cannot be fulfilled in a two-person marriage because they have a romantic orientation that precludes romance and commitment to only one person at a time. And that would, I think, be the standard for a constitutional claim, just like a key component of the equal protection claim regarding same-sex marriage is that gay people cannot reasonably be fulfilled in a different-sex marriage. Except for one outlier judge in Utah, the courts aren’t pretending anymore that gay people have the same right to marry as straight people. Even the blogosphere has pretty much dropped that ridiculous notion that different-sex marriage is in any way a reasonably alternative for gay people.

    There would have to be a class of recognized poly-romantic people like this, not just anecdotal occurrences of people who happen to be in polygamous relationships (which arguably could be just for convenience, novelty, finances or some other reason).

    That’s how I see it, but I’m not a lawyer, and probably not even particularly knowledgeable of the law, other than a few law-related classes and lawyer-friends.

  36. Anna Cook says:

    Kevin writes:

    There would have to be a class of recognized poly-romantic people like this, not just anecdotal occurrences of people who happen to be in polygamous relationships…

    Actually, another way of framing the question of “more-than-two” marriages would be to consider it a freedom of religion issue. In a pluralist, democratic society where we are said to have (in theory, at least) the right to “life, liberty, and the pursuit of happiness,” multiple values systems must find a way to co-exist within our legal framework and certain very broad principles of the “do no harm” variety.

    As far as I know, Mormon polygamists aren’t claiming they’re somehow “oriented” toward plural marriage in the same way we talk about the sexual orientation of straight, gay, bisexual, or asexual people.* What they believe is that they are called by God to practice plural marriage as a pathway to right living and eternal kinship after death. This is a religious conviction, not a claim about bodily sexual desires being strong and consistent over time toward a certain class of persons or a certain type of relationship. It is about practice of religious faith.

    I actually think the religious liberty argument is a very strong one not only for polygamy but for honoring same-sex relationships. We don’t need to rest our case on sexual orientation as an innate characteristic — we can argue, legally, that we have chosen to act our our values within consensual relationships with persons of the same sex and should not be discriminated against for doing so — just like the person who is Christian, Jewish, Muslim, etc., should not suffer persecution or discrimination for their religious beliefs or practices (a characteristic which is not innate in the biological sense, yet still a strong component of identity).

    *this way of organizing human sexual diversity is itself limited, but that’s a topic for another post!

  37. Kevin says:

    Apologies to all in advance for my usual overcommenting….but….

    I see what you’re saying Anna but I also thought Mormons disavowed themselves of polygamy some years ago.

    In any case, the law isn’t very accommodating to sincerely held religious beliefs that deviate too much from common cultural or social practice, truth be told. Polygamy precedes same-sex marriage by many years, and people who want polygamy legalized haven’t had success is making a constitutional claim for it.

    I have no strong feelings against polygamy, I’m just trying to show that legal same-sex marriage is not a “gateway drug” to legalized polygamy. They share little in terms of social needs and legal imperatives. Whether concern over polygamy is sincere or feigned, it is unnecessary. I believe from a legal standpoint, which is what matters if one is concerned about society not being able to stop polygamy from becoming legal, obviously, the first step is for poly-romantic (polyamourous?) people to establish that they exist, which, if they do, they haven’t. There’s no history yet, unlike for gay people, who have been around for, well, ever, probably. Polygamous arrangements don’t equate to being a poly-romantic person, so the history of polygamy doesn’t count.

    I don’t know what’s involved to establish the poly-romantic identity but it’s probably not something that happens overnight. Look how long gay people have been around, and how so many people still consider it a chosen behavior, something straight people do to rebel or cause trouble!

  38. Diane M says:

    @Anna Cook –

    I think the description of what marriage is has to include sex. An asexual couple could certainly get married and nobody would ever know the difference. It’s really not the business of the state.

    On the other hand, we all expect sex in marriage. Withholding sex can be grounds for divorce – that doesn’t mean anything practically since you can get no fault divorce anyway, but it is sometimes still on the books. And I’m not sure how reliable gossip blogs and magazines are, but supposedly celebrity prenups sometime include something about having sex (although that is basically gross).

    I think there’s a value to having a common understanding of what marriage. Two individuals can still do things differently if they want to and we might not want government to get involved in certain areas of life. However, when people get married, it helps to have some ideas of what is reasonable to expect.

    I would also like to see something about religion and vows in marriage. That’s more difficult since many people don’t have religious marriages, but I think the idea that marriage is often religious has to be in any definition of it. For some people it’s a central part of their marriage.

  39. Hector says:

    Kevin,

    It’s pretty clear that there is a genetic component to promiscuity and infidelity. Some people have more of a predisposition to want multiple sexual partners than others. I can pretty clearly see, say, a Togolese immigrant going to court to argue that he can’t be satisfied, due to his genetics, with only one wife, and he demands the right to have four.

  40. Hector says:

    As Diane M points out, polygamy disrupts society by taking women out of the dating pool and allowing a few high status men to monopolize access to women. a polygamist’s marriage is actively a threat to my prospects of finding a partner, in a way that a same sex marriage isnt.

  41. Kevin says:

    Hector, I’m way over my comment limit, but since you addressed me, I’ll answer (and let the moderator do what s/he needs to do).

    I don’t know if promiscuity and infidelity have organic components to them, but I don’t think that wanting multiple and simultaneous partners (that is, a plural romance/relationship) is related to promiscuity and infidelity. I presume the poly-romantic person is capable of self-control and fidelity within his plural relationship. It’s hard to say, since we don’t even know if the poly-romantic person even exists.

    If it’s organic, why can’t it be a native-born American? Why a Togolese immigrant? It sounds like you’re refering to a custom from a foreign land, then, not a natural and inalterable desire.

    Again, the poly-romantic has to first establish that he exists, and then has to establish that he has a compelling need that current institutions can’t provide for, in order to set up a constitutional claim (I think….someone help me out here!). At least this is the framework I perceive that moved us to legal same-sex marriage: gay people exist as persons (not just behaviors) and they want/need/deserve stable relationships, too, which they can’t get from different-sex marriage. Together these two premises create the possibility of an equal protection claim. And if we didn’t have a history of legal dislike of “separate but equal” institutions, the problem could have easily be solved with civil unions or domestic partnerships.

    I think that’s why Scalia blew a fuse with Lawrence v Texas: it unequivocally established homosexuality as person-defining, not behavior, which makes it much harder to regulate and condemn. And, as he noted, makes it all but impossible to ban same-sex marriage. I can only imagine how he wishes he hadn’t written those words!

  42. intheagora says:

    Rusty Reno wanted to at least salvage monogamy in truncated marriage.

    Are we past saving monogamy? See http://www.nytimes.com/2010/01/29/us/29sfmetro.html?_r=0 That train may have already left the station. Has anyone offered a reason why three lesbians or three gay men can’t be married? Once the SS revolution is completed, is there any reason for some of them not to demand it?

    Moreover, if SS couples want to procreate, as they may well demand to be truly similarly situated to heterosexual couples, they are forced to involve at least a third person who must be of the opposite sex. That person is just non-existent as far as rights are concerned. In the case of two gays, the woman who gives or sells her eggs and/or gives or rents her womb, has no rights to the baby or claim to additional support from the men. At least polygamy gives the poor woman some rights. At what point will the person so involved but without rights to the child begin to assert some rights?

    Finally, let us consider Kevin’s drivers:

    Equal treatment: Gays, lesbians, and Christians get the marriage culture they want. Polygamists don’t. Doesn’t sound equal.

    Concerns about the welfare of children being raised outside of wedlock:
    Polygamist families exist and have children. They are now so second-class they have to hide from the law. How is that good for the children?

    Reducing the demonization and marginalization: Reducing the demonization and marginalization of polygamists, by including them in a respected institution that they can benefit from, speaks for itself.

    I think the real issue is, indeed, demonization. Polygamists are a truly despised and powerless class, just the sort of class the courts (and sympathetic liberals) are supposed to give special consideration to. Of course, when Muslim demographics begin to assert themselves, they may not be so powerless.

  43. Diane M says:

    A political thought – people who don’t want polygamy to be legal might want to argue that it would be different from same sex marriage in important ways rather than trying to prove that it is the same. The argument is not likely to stop same sex marriage, but it might make it easier for people to legalize polygamy.

    @Hector – there is very little likelihood that an American court would accept the idea that someone from a different culture was genetically different and needs to be able to have multiple wives. It is also not a very strong argument since if you come from a different culture t is likely that culture plays a role in your behavior.

    There are other problems with genetic arguments about polygamy and fidelity. First, we don’t really know what makes people cheat; it looks like different people do it for different reasons – sex, feeling unloved, wanting to prove you are young, wanting change, attitudes about sex, etc. Opportunity also seems to play a role as well as the relationship the person is in.

    There is one study showing that men with a certain gene were more likely to cheat. They were also generally colder in their relationships and hugged less. It seems more like a gene for not caring about other people.

    It’s not clear what it would mean to be born needing to be polygamous or polygamous. Kevin, anecdotally, a fair number of people who end up in a polyamorous relationship talk about having cheated and not being able to stay faithful. Anyhow, is it a need for more sex partners? for variety? for lots of sex? is it about a lack in the primary relationship and a desire not to divorce? less jealousy than most people – but they seem to feel jealousy. And how does that fit in with men in cults who believe they have the right?

    To me it really looks like a choice about whether to work on getting rid of jealous feelings or on staying faithful. Sometimes it seems more like a depressingly practical response to a partner who won’t stay faithful and a couple who doesn’t want to divorce (example: Jenny Block).

    Which gets me to this from Kevin:

    “I don’t know what’s involved to establish the poly-romantic identity”

    Probably proof that most people have no desire to cheat or have multiple partners.

    I have no faith that you can get that proof.

    Just to take one example, thou shalt not commit adultery and thou shalt not covet thy neighbors’ wife are both in the 10 commandments. Clearly someone think the temptation is strong and common enough that you need to mention it twice.

  44. Rhonda says:

    With regards to polygamy, I think we need to look at the legal implications. If Aaron marries Belle, promises to love honor cherish… sickness and health…, and he marries Claire (same promises) and Belle gets sick, is Claire obliged to care for Belle, and if Belle dies, does Claire share in the estate? It creates an unequal relationship. What if Belle and Claire can’t tolerate each other? If Aaron dies, who gets the estate? Three people can’t really have an equal marriage. If Aaron and Claire die, and Claire’s parents want custody of their children, do they have to fight Belle for them? Now if Aaron and Belle want to bring Claire into their relationship, they can.
    Also, bigamy is illegal, so you can not be married to two people at once. If only Aaron is married to Belle and Claire, he is a bigamist, and if Belle and Claire are also married to each other, they are all bigamist.

  45. Diane M says:

    Back to Anna Cooks description of what a definition of marriage might look like. I agree with most of it. Marriage should be about commitment, kinship creation, and economic partnership. I would like to see more on children.

    I think marriage does provide an orderly way to dissolve the relationship, but I hate to think of that as part of its definition. Also, I am not sure you have much legal recourse in marriage to enforce the contract, although in the past you might have had more.

    I think the discussion gets at some interesting issues:

    1. I think one of the strengths of marriage is that it is more than just a legal institution. It brings together culture and religion as well as law. Marriage makes you kin and then your family treats you differently. It may mean your religious community supports your relationship. If you are religious, the sacred nature of the bond and the ceremony can make you feel more committed to each other. (Maybe this is part of what people who talk about it being integrative are getting at.)

    Right now we’re talking about what should be legal, but in the long run, we need to talk about more than that.

    So there are some things that I don’t want the law to be involved in, that I think should still be part of our social definition of marriage.

    2. I think it is important and helpful to couples to have a sense of what marriage means. I think that definition should include sexual fidelity and monogamy.

    Civil society can be clear about what we expect of a married couple. It is at some point a way to let people know what arrangement we think works best.

    So I don’t want a definition of marriage that just says, each couple will work out an arrangement and then stick to it, unless the other partner agrees to change. That makes sex sound like deciding who will do the dishes – we will take turns every night, unless we agree to change the agreement.

  46. Kevin says:

    @intheagora

    You either don’t understand or refuse to acknowledge how a “polygamist” and a gay person are hugely different in the eyes of the law. A gay person exists as a legal entity, because homosexuality is an organic and defining personal characteristic. A gay person exists independent of his circumstances or society’s institutions.

    A polygamist, however, is merely a person in a polygamous arrangement, like a roommate is a person living with another unrelated person. The person is “defined” or labeled, by the situation, which can change. As I’ve said several times now, unless and until a person can establish that his desire to have multiple partners is similarly organic and defining, and that existing institutions cannot reasonably suffice to meet his relationship needs, then there’s no compelling case to legalize polygamy. A polygamist merely desires an arrangement, for whatever reasons. But that’s no more compelling than the occasional occurrence of siblings who want to marry, or a young married couple who wants to add her in-laws, who happen to live with them, or sorority sisters who want to all marry each other because it will bring them closer.

    I’d like to point out that polygamists have not been successful in changing the law to accept their relationships, even with the added potential firepower of having a potential religious argument in favor of it, something gay people don’t have. I think that’s because of the reasons I’ve outlined, at least in part.

  47. Anna Cook says:

    Diane,

    Regarding sex and marriage – I agree that as a culture we generally regard marriage as including sexual intimacy, but I don’t believe that should be a required/essential component of marriage because a) not everyone is a sexual person, but may still desire a committed romantic relationship, and b) no one has a right to sexual intimacy with another person. Rape is still rape within marriage, and active, enthusiastic consent is still necessary for sexual intimacy.

    And I would agree with you that many (most?) people experience the promises made within marriage as sacred — but I don’t think our civil definition of marriage needs to require that as a core feature of marriage. This would not curtail religious officiants of marriage (who still today have to act as agents of the state in completing licensing paperwork), nor would it curtail blessing and celebrating a particular religion’s view of marriage within that religion.

    Hector,

    Regarding plural marriage as a harm to you because it threatens a monogamous relationship (or the chance of forming one) … I honestly don’t think this is a compelling harm vis a vis legalizing (or not) more-than-two marriage relationships. If a person is going to leave their wife for another sexual partner against the wife’s wishes, or be interested in forming a plural marriage relationship rather than a dyadic relationship, that means they were the wrong person for you to be with in the first place — they weren’t interested in you. Refusing to recognize more-than-two unions won’t make any individual person’s monogamous marriage stronger, nor will it up the chances of someone successfully forming a relationship.

    Most people in a successful more-than-two relationship will tell you that they are exponentially HARDER than a two-person relationship. Because each person brings their own needs, desires, baggage into the relationship and bounces off the other people. Realistically speaking, the percentage of people who

    The state isn’t responsible for making sure we all have successful access to sexual partners — we must have freedom to seek out and form intimate relationships (hence the affirmation of a “right to marry” that some Supreme Court decisions have identified within the Constitution), but the state isn’t responsible for the even distribution of “sexual resources” (if you will) — they don’t step in and say, “hey, you’ve had too many sexual partners — quit hogging so that other people can have some fun too!” That sounds, in fact, rather … socialist? Certainly much too command economy for American politics.

    (I also disagree with the framing of sexual relationship formation as a marketplace/economy … but that’s a conversation for another time!)

    My point is that, in the American context, regulation of poly marriages would need to remain legal on grounds other than equal distribution of people in dyadic relationships. That is simply not something that the US government has even gotten into the business of doing (matchmaking of a kind?) and I doubt that Americans would accept such an intrusion if they did!

    Kevin,

    The mainline LDS church has rejected polygamy as part of their religious practice, but there are Mormon sects which continue to practice it. In part because they have been driven underground Mormon polygamy is often extremely patriarchal and abusive. But it IS still being practiced on religious grounds by some who identify as Mormon.

    And, just to be clear, I believe both more-than-two marriages and same-sex marriage should be legal … but I agree with you that legalizing same-sex marriage can happen on wholly different grounds from recognizing more-than-two unions. Indeed, this has happened in many countries around the world where either same-sex couples are allowed to marry OR some form of plural marriage is legal and the other form of marriage is not.

  48. Anna Cook says:

    Diane writes:

    So there are some things that I don’t want the law to be involved in, that I think should still be part of our social definition of marriage.

    Sorry, Diane, I published my last comment before refreshing the page and seeing your most recent comment.

    I’m curious about this notion of A social definition of marriage. To what extent do you think we can establish a single social understanding of marriage in such a diverse society, one which in fact tries to welcome and embrace diversity?

    It seems to me more realistic to think about margin-center definitional aspects — elements that will be in a majority of marriages, and elements that will be in a minority of marriages but are still, for those people, a key aspect of their marital lives.

    For example, the majority of marriages will likely always be heterosexual, simply because that is the way our demographics fall out. But a minority of marriages will be same-sex in nature. This doesn’t have to stop them from being included in “marriage” as a social concept. Likeise, a majority of marriage relationships will include sexual intimacy, and likely exclusive sexual intimacy. That doesn’t mean that marriages which do NOT include sexual intimacy and/or are open cease being marriages as long as the people within the marriage remain, well, married.

    So yes, we can talk about the components of marriage as a social phenomenon and what is usual without excluding those whose marriages encompass more unique aspects.

    What is wrong with having multiple definitions of marriage?

    [and I will open a continuation thread for this definition-of-marriage conversation when we reach 50 comments, since I think it's a fruitful and interesting one]

  49. YYZ says:

    “What is wrong with having multiple definitions of marriage?”

    Because the law doesn’t work that way and it’d be too costly to the state. Funding marriage should only be done on pragmatic reasoning. It’d be no different if we funded marriage for religious reasons which would result in a public outcry–and rightfully so. The government has limited resources. Unfortunately, from what I’ve witnessed by your comments (and others), you do not take that into account.