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Responses to Two Objections to My Challenge

Rather than leave them buried in the comments, I thought I would respond to two very good objections to my prior post on same-sex marriage as a new post, especially because I think they are worth preserving as part of the libertarian conversation on the same-sex marriage issue.   Both objections are raised in one form or another by Joshua Herring.

1.  Doesn’t the “equality before the law” argument run into trouble if we think of a different analogy?  Take the fact that, historically, the US has only subjected men to the military draft.  Does my earlier argument imply that libertarians must support extending the draft to women in the name of equality before the law.

When I first posted my original argument on Facebook awhile back, I had already thought of this objection and Joshua’s version of it allowed me to develop my response more fully.  I will simply cut and paste from the comments on the earlier post:

The draft involves the state actively coercing people.  To argue that the state should (also) coerce (to be more realistic) women into a military draft is to argue for equality before the law in a way that ALSO tramples on the other libertarian principle – the right of the individual to not be coerced.  Legalizing SSM extends a state-provided benefit to a group equally situated (consistent with equality before the law) but does so without any additional coercion (everyone already pays the tax) and thereby violating the other key principle.   (Kevin V’s point about anti-discrimination laws noted.)

In other words, legalizing SSM meets the requirements of one of the two principles without compromising the other.  Drafting women meets the equality principle but only by more strongly violating the rights principle.  Thus legalizing SSM seems much more obviously libertarian than does extending the draft to women.

As Joshua agrees that this point distinguishes the cases, I’ll say no more.

2.  His second objection is more subtle.  He wants to argue that the move to recognize SSM at the federal level is, for some people, only part of the battle, which is really to open up marriage to, for example, polyandrous polygamous  [See note below] groups.  Joshua nicely tinkers with my analogy to make this point:

What if the proposal was to extend Social Security benefits to blacks only, but not to Asians.  This is meant to analogize extending marriage benefits to gays, but not to everyone else who could reasonably use them.  This is the reason I am not enthusiastic about federal recognition of same-sex marriage.  “Not enthusiastic” means that I don’t mind if they get extended to gays, but I’m not explicitly in favor of the cause until it’s really about equal rights for everyone.  Just as, I imagine, an Asian in your counterfactual world could only be so happy about seeing Social Security benefits expanded to include blacks.  You know, it might be a sign that they were eventually coming to Asians too, but it still seems unfair, etc.  And of course it’s especially galling if blacks in general are not inclined to fight for Asian SS benefits, and even more so if some black leaders have made it expressly clear that they do NOT favor extending SS benefits to Asians (as several gay rights leaders have said about extending marriage benefits beyond same-sex and heterosexual couples).

My first response is that if Joshua’s analogy more accurately represents the move to legalize SSM, it does create some new problems for my argument.  In fact, it forces me to either “bite hard on the reductio” or be open to the charge of being “bigoted” against the polygamists.   I like arguments that hoist the original argument by its own petard!

So how to respond? I will bite hard on the reductio.  I don’t think there is in principle a libertarian case against legalizing polygamous marriages in a regime where the state defines marriage.  However:

a.  I don’t imagine that under any institutional arrangement for marriage, whether state-granted or not, we would see anything more than a tiny fraction of marriages being polygamous.  We know from history that marriages of n>2 do not seem to have the staying power of n=2.  I do not think this has anything to do with the law, but rather the nature of human relationships.  Simply put, n=2 is a lot easier to coordinate than n>2.  Think in terms of the economics of the theory of the firm:  sure n>2 allows a marriage to divide up labor and perhaps take advantage of economies of scale, just as a large firm can, but the coordination costs escalate rapidly.  With n=2, there’s one relationship to make work.  With n=3 there’s 3 and with n=4 there’s 6.  With n=5 there’s 24.  In general, the formula is (n-1)! .[Correct formula is the summation of i from i=1 to i=n-1 as Jeffrey Johnson notes in the comments]. So I don’t have too many worries about legalizing such relationships as I simply don’t see them as functional in any but the most exceptional cases, and especially not in a well-developed, highly complex society.

b.  I’m actually comfortable in distinguishing SSM from polygamy at the current moment in time because I think that to argue for the notion of “equally situated” that underlies equality before the law requires that the culture see the relevant actors as, in fact, “equally situated.”  Put differently, there’s a reason that SSM is the issue on the table and not polygamy:  it’s because, culturally, we have come to recognize the “equal situation” of two men or two women who love each other and want to make a public commitment to their relationship to the situation of a man and a woman who do.  Our common cultural understanding of marriage and of marriage as a dyad based on love is what enables us to make a claim of injustice that we should remedy.  When the polygamy can persuade enough people that they too are “similarly situated” that the issue raises to the level of attention that SSM has, then legalizing it will have sufficient legitimacy to actually work.

As a practical matter, what the relevant “equality” is will be determined by common understandings of what the relevant criteria are.  Right now, it seems to me, that exists for SSM but not polygamy.  There is, in my view, a significant enough difference in our cultural understanding of SSM and polygamy to see the former as “similarly situated” and not the latter.  Will this eventually change?  Perhaps.  When it does, then the case for equality before the law will be in full force and we can have this same discussion over again about polygamy!

Final note:  I’m not sure argument b is a principled libertarian argument.  It is, however, an argument for why we don’t need to worry about slippery slope arguments from those opposed to SSM (“we can distinguish them”) and an argument in response to those in favor of legalizing SSM and much more for why it’s not unjust to make the case only for SSM  (“polygamy doesn’t have the cultural legitimacy of being similarly situated to demand equal treatment [yet]”).

I look forward to reaction to all of this.

[UPDATE:  all references to polyandry are now polygamy and likewise for the other forms of the word.]

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  • Anonymous

    This is also a great argument for why it is imperative that the state get the benefit angle out of marriage altogether.  If there weren’t benefits associated with marriage we wouldn’t be discussing this nationally with such vigor, and there would be less opposition to recognizing SSM, or even polygamous marriage.  It would become a private contract and not as much a state issue.

  • It seems that “similarly situated” means whatever you want it to mean for a give argument, but perhaps you can demonstrate otherwise.

    What tax scheme would satisfy the principle of equality under he law of similarly situated individuals?

    Flat tax? Sales tax? Poll tax? Weight tax?

  • ” Put differently, there’s a reason that SSM is the issue on the table
    and not polyandry:  it’s because, culturally, we have come to recognize
    the “equal situation” of two men or two women who love each other and
    want to make a public commitment to their relationship to the situation
    of a man and a woman who do. ”

    Many say our culture recognizes marriage as a relationship between a man and woman, and thus would say that gay partners are not similarly situated. How shall we determine culture, by vote? By state force?

    • If the feds are going to limit the definition of marriage to “a relationship between a man and a woman,” I think no purpose would be served.

      “Marriage” should be defined as something like “a relationship between a man and a woman that is quite likely to fail, dump responsibility for an unknown number of children (many of which are handicapped) on society, at great expense to government.”

      • “If the feds are going to limit the definition of marriage to “a
        relationship between a man and a woman,” I think no purpose would be
        served.”

        No good purpose is served by having the state define marriage at all.

        “”Marriage” should be defined as something like “a relationship between a
        man and a woman that is quite likely to fail, dump responsibility for
        an unknown number of children (many of which are handicapped) on
        society, at great expense to government.” ”

        The state is the greatest enabler of that behavior, it has exploded under the welfare state.

        • Damien S.

          Damn those welfare queens, getting married and divorced!
          (Wait, I thought they didn’t get married in the first place.)
          Society was so much freer when women were trapped in unhappy marriages!
          (I’m reminded of Bryan Caplan’s column that women were freer before they had the vote, because lower taxes.)
           

          • Excellent point by Caplan, I’d much rather have lower taxes than a vote. And women have a right to be free of taxes but not a right to vote on the affairs of others.

  • Jeffrey Johnson

    Just a minor detail first: your (n-1)! formula is incorrect. In the case where n=3, (n-1)! is 2, not 3. In the case where n=5, you should have 10 unique relationships, not 24. I think the formula is the summation of i from i=1 to i=n-1.

    But more importantly, I think that increasing liberty incrementally is practical given that changes to group consciousness are needed for acceptance. There is an important difference between what may be theoretically just, and what is practically achievable from a political stand point. Slavery ended a long time before inter-racial marriage was accepted. Insisting on ending slavery and legalizing inter-racial marriage at the same time (on theoretical grounds of justice) might have delayed the end of slavery.

    Likewise, I can see reasons why polyandry could benefit willing adults and should be permitted as long as it does not involve parents coercing their young daughters into it on religious grounds, but is rather the free choice of all adult participants.

    But since same sex marriage at least conforms to the traditions of monogamous love, it is easier for some to accept than polyandry, so it is easier to achieve politically on its own.

    This is an important distinction to make: what one could accept and support from a philosophical standpoint, and what one should try to achieve from a practical political standpoint.

  • Andrew Cohen

    Bravo again!  

  • “..we have come to recognize the “equal situation” of two men or two women
    who love each other and want to make a public commitment to their
    relationship to the situation of a man and a woman who do.”

    Should legal  marriage thus be denied  those not in love since they are not “similarly situated”?

  • Mark Brady

    Puzzled.  Joshua wrote about polygamy (more than one spouse).  Steve, you reply with reference to polyandry (more than one husband) but with no mention to polygyny (more than one wife).   Was there any reason you did so?

  • Joseph Anthony

    I hold that society has an interest as a whole to promote stable families, first so that those who beget offspring will also raise them (this saves a lot of social cost), and second because stable families are more likely to produce a functional future for any given society.  I think the main reason why marriage laws are fitting is because sex is a reproductive type act.  As sexual union is the sort of act that works right when an offspring is created, so marriage is that type of union which has the bearing and raising of children as a natural end.  To me, the natural interest of any given society (church, village, tribe, or what have you) in protecting marriage is enough in the right circumstances to justify marriage laws, such as laws concerning divorce, laws that promote stable marriages such as tax exemptions and inheritance laws, et al.  I by no means think that the enshrinement of law is the only way to promote marriage.   I’m also of two minds about the usefulness of marriage as a legal institution within the United States.  Our freedom permits us to enter into contracts, and marriage could maintain a contractual form without being the specific subject of laws.

    One thing I am very certain about:  the civil government does not have the same interest in promoting the union of members of the same sex (even if this union is of a sexual type) as it has promoting the stable union between man and woman.  Although not all men and women are fertile, the union of men and women is the primary source of offspring, even separating out in vitro from the mix.  Society will depend on the union of man and woman a lot more than on the naturally infertile union of man and man. 

    I don’t think the laws are necessarily discriminatory either.  Many homosexuals get married to members of the opposite sex.  Oftentimes these marriages aren’t happy, though sometimes they might work out, when, for instance, the marriage is made for a practical reason rather than a romantic inclination.  An unmarried man is generally free to agree to marry an unmarried woman is she will have him.  Whether he wants to or not is a separate issue.

    Because of the predominance of no fault divorce and the situation where sex and marriage are de facto not connected one to another and offspring are more and more being raised outside of marriage, it is possible that the social interest in protecting and promoting marriage has been greatly reduced.  My opinion is that “getting the government out of the marriage business” might be the right thing to do under the circumstances, but that it is another sign that society is unhealthy.

    • “I don’t think the laws are necessarily discriminatory either.”

      I don’t see how a law which essential says that “Members of  set  A can enter into relationship B only with members of set C to qualify the for the bundle of benefits an privileges D, for which members of A and C not in relationship B are ineligible” can be construed as anything but discriminatory. It discriminates in every aspect of it’s application.

      Of course adding clause like “Now members of C and A can get bundle D by by doing B with members of their own set” doesn’t change that fact. The law is still intended to discriminate between those who do B and those who do not.

      • Joseph Anthony

        Ahh.  But the bundle of benefits is connected to the social benefits that marriage brings to society.  No.  Not everyone can get those benefits by entering into a contractual relationship.  I cannot get those benefits with my sister, with my mother, with my grandmother, with my brother, with my father, etc.  Even if I enter into a contract of mutual support, I cannot get these benefits with these people.  But that doesn’t mean I can’t get married.  If I’m willing to enter into the sort of contact judged by society to be especially beneficial and therefore privileged, I can receive the benefits attached to it. 

        I, furthermore, am permitted to enter into this sort of contract whether I am male or female, gay or lesbian, etc. so long as I am not already civilly married.  The question of whether I want to enter into this contract is different than whether I have the civil authority.

        In the case of marriage, all parties are equal under the law.

        • “But the bundle of benefits is connected to the social benefits that marriage brings to society. ”

          Regardless of imagined benefits or intent, single individuals are obviously not equal to married individuals under he law and that is obviously discrimination.

          If a single individuals decide that  the marriage of others benefits them they’re perfectly capable of producing incentives to marry, no state coercion required.

          • Joseph Anthony

            Speaking from an historical perspective that might no longer be applicable in a world of contraception, abortion, and non-stigmatized pre-martial sex, but the social advantages of marriage are not the same as the individual advantages.  I might not gain as much from marrying and sacrificing my life to raise children in a stable home as society will gain from having my children raised well in a stable home.  The idea of marriage is primarily about benefiting children, and through them future generations of society.  It is only secondarily about the potential benefit that accrues to the spouses.  If this were not the case, marriage vows would not include the “for better or worse, for richer or poorer, in sickness or in health” clause.  If one partner is paralized a year into the marriage, it’s might be hard to argue that getting married was in the best interest of the spouse.

    • Anonymous


      One thing I am very certain about:  the civil government does not
      have the same interest in promoting the union of members of the same sex
      (even if this union is of a sexual type) as it has promoting the stable
      union between man and woman.  Although not all men and women are
      fertile, the union of men and women is the primary source of offspring,
      even separating out in vitro from the mix.  Society will depend on the
      union of man and woman a lot more than on the naturally infertile union
      of man and man. ”

      This completely overlooks the large number of homosexual couples who adopt and raise children, and who under the current arrangement are unable to marry. Your argument offers no distinction between infertile heterosexual couples who adopt and homosexual couples who also adopt. Both arrangements create situations in which keeping the non-biological parents together and legally privileged confers the benefits to society that you were discussing in your first paragraph. In fact, couples who adopt arguably contribute a greater social good than those who conceive.

  • Joseph Anthony

    The problem with polyandry from the point of view of social interest is that one man can impregnate a woman at a time.  Although now, with paternity testing, we can determine who the father is, for much of history if there were two men in a relationship, each but be suspicious that the child was not his own.  One of the primary ends of marriage is to ensure that the man who conceives a child is more likely to take responsibility to raise that child, but polyandry weakens this goal.  I think this is the reason why societies that have had a strong conception of marriage have sometimes permitted polygamy but rather polyandry. 

    I think that if you equate SSM with marriage between men and women, you’ve already granted that the social interest in marriage is not primarily the future generations of offspring.  To my way of thinking, polyamorous unions are equally or more deserving of the status of marriage as same sex union.  At least polyamorous unions have the possibility of being intrinsically fertile.

  • Joshua Herring

    Thanks for this post, which feels much more inclusive than the other (honestly, the other rubbed me the wrong way – because it felt like you were implying that anyone who disagreed with you was a bigot).

    A couple of lingering objections.  

    First, polygamy isn’t the only excluded case.  If I focus on it then only because we have a convenient word for it.  The real issue for me is that the state is extending property privileges to a subset of the population without justifying that restriction.  So, the example from the other post given by eselpee about the two sisters in Vermont is relevant here.  I realize your post isn’t excluding these, I just wanted to put in my vote for not turning this into a discussion about the relative merits of SSM vs. polygamy.

    Second, I don’t see what role love plays in the political question.  You write “it’s because, culturally, we have come to recognize the “equal situation” of two men or two women who love each other and want to make a public commitment to their relationship to the situation of a man and a woman who do.”  But this is a red herring.  Same-sex couples can and do already fall in love and publicly declare their lifelong commitments. Saying that we need the government to bless such unions sounds an awful lot like saying you accept that deciding which relationships are legitimate is a government prereogative – which is a social conservative position and not even remotely a libertarian one.  Surely the libertarian position on personal relationships is that people are free to form whatever arrangements suit them and their cultures, and that the government must absolutely refrain from telling people which are appropriate and which not, as this is a private matter.  The government must only intervene to protect against violations of personal rights (as it should in the case of those not of legal majority* being married off by their parents, etc.).   My position on this sticks to the political issue: the government is giving property benefits to a subset of the population without appropriate justification – and unless I am seriously mistaken about what libertarianism is, I would expect that of any self-styled libertarian.

    *yes, I’m aware that legal majority is an arbitrary cutoff point, but rather than split hairs about that all day I assume most of us here agree that at SOME point a person is not old enough to responsibly make such decisions and needs state intervention to prevent others making them for them

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  • shorwitz

    Mark Brady:  Yes, my mistake.  I should have used polyamorous as opposed to polyandrous.  I will make that change.

    • Mark Brady

      Steve, I appreciate your making the change but strictly speaking isn’t the word polygamy (polygamous), not polyamory (polyamorous), even though people loosely contrast polyamory with monogamy?

      • shorwitz

        Perhaps, but I’m just trying to be as broad as possible here.

        • Mark Brady

          Steve, I think we have to use the word polygamy because the discussion is about legal arrangements, not just a set of human relationships.

  • Regarding Steve’s last point, I think we do need to take into consideration the distinction between supporting what is right, and understanding that changes must be timely in order to stick. Only marginal revolutions stick — it is the nature of change in the spontaneous orders of civil society, including the moral order. It is the liberal’s role to act as immanent critic, to try to move things in what we believe to be in the right direction — but we must also recognize that the change has to take place within the traditions present in the culture.

    BTW,

    “Polygamy” is from the Greek, polygamos “often married,” from polys “many” + gamos “marriage.
    “Polygyny” is one man married to several women.
    “Polyandry” is one woman married to several men.
    “Polyamoury” is the love of many people.

    So if we are talking about marrying multiple partners, regardless of gender, it’s “polygamy.”

    One can legislate who you marry, but it’s impossible to legislate who you love.

    • Joseph Anthony

      Thanks.  I studied Greek, and somehow I still missed this.

    • “It is the liberal’s role to act as immanent critic, to try to move
      things in what we believe to be in the right direction — but we must
      also recognize that the change has to take place within the traditions
      present in the culture.”

      Also, don’t allow an obsession with BEING right, interfere with DOING right.

  • Anonymous

    I just posted something like this on the other post, but I’ll repeat shortly here: All you really have to do is realize that prohibiting SSM is saying, for an example, ‘Because you are female, we will not allow you to marry Jennifer, despite the fact we’d allow you to it if you were male’.

    This is very obviously sexual discrimination. (And, no, the fact that each gender has separate groups to marry does not work, anymore than separate schools for different races or genders worked.) Once you look at it from the direction of ‘sexual discrimination’, most of the nonsense falls away.

    As a bonus, looking at this way allows other government rules, such as barring incestuous marriages, unlike whatever heck the ‘right of marriage’ would allow. The government can restrict marriages like anything else…but it can’t restrict _anything_ based on gender like that in the first place!

    And laws against polygamy are, instead, saying ‘Because you are already married, we will not allow you to marry this (Or in fact any other) person.’

    So it’s discrimination based on state of marriage. Which is, interestingly, illegal for employment purposes (Due to employers discriminating against married women), but no one is attempting to argue that the government can’t treat married and unmarried people differently, as that is mostly the entire point of government sanctioned marriage!

    Marriage is a state you deliberately enter into, it’s not aspect of yourself like race or gender. It’s not currently impermissible for the government to discriminate against under the Equal Protection Clause, and in fact the government does so all the time. (Although an interesting question might be made about common-law marriages. If the government tried to assert you were in one and hence could not be married to someone else…)

    That does not mean such a discrimination is a _good idea_, of course, but it’s not exactly the same thing.

    • Joseph Anthony

      The law is predicated on the power of sexual generation.  If you want to complain about the union of man and woman being more socially advantageous than the naturally infertile union of man and man, you should complain about the inherent sexual discrimination of the human body which makes a woman capable of bearing an offspring but not a man.  The law just reflects a biological fact: a contractual union between a man and woman may promote the raising of offspring by those who begot them, a contractual union between a man and a man will not.  At every moment, the future of society and the world passes through the union of man and woman in a way it does not pass through the union of man and man, or even the union of woman and woman, who also cannot conceive through the sexual act.

      If you extend the benefits associated with marriage to couples whose union is naturally and always infertile, in my mind that asks for the question what social interest is strong enough to justify governmental regulation of these relationships?  If you argue that the possibility of your sexual union producing offspring does not give enough of a social interest in the relationship between man and woman to warrant marriage, the solution is to abolish marriage, not to extend those benefits to people whose sexual union is naturally infertile.

      • I have two brothers and two sisters. My wife has a brother and sister. They’re all in long-term, stable, hetero marriages. From those six marriages I have a total of 13 nieces and nephews. Almost half – six – of them are adoptees. That’s because half of those six marriages proved to be “naturally infertile”. Should their marriages be annulled because they serve no societal purpose by your definition?

        That would seem strange to me since they have provided stable, loving, family homes to six children who may not have enjoyed that in other circumstances. Homosexual couples can and do — when permitted — provide the same kind of loving homes to children.

        There’s more to being a family than breeding. Even a pig can do that.

        • Joseph Anthony

          I would not say that they are “naturally infertile” in the same sense.  Some women might be infertile, as some men might be, but all men are infertile in relation to  men.  No matter how many men have sex with men, it will never produce a baby.  The exception, in this case, proves the rule.  If men and women were always infertile in relation to each other, I doubt heterosexual marriage would ever have developed.

          • You know… same sex couples actually CAN get married in all 50 states. It’s just that one of them has to have gender re-assignment surgery first. It doesn’t make them fertile, however.

            And why does the state issue marriage licenses to older couples, past child-rearing age? Are they expecting some Biblical miracle?

            This focus on children as the rationale for marriage isn’t historically accurate. Prior to maybe 300-400 years ago, most couples never formally married. They just starting living together as husband and wife. Marriages were for nobility and the focus was on property and politics. Now every woman expects to be a Disney princess for a day but that’s a relatively recent development by historical standards.

            You wouldn’t happen to be Catholic, would you? (Cuz you sound like it…) Anyway, you might find the following interesting, albeit probably disturbing.

            http://www.christianity-revealed.com/cr/files/whensamesexmarriagewasachristianrite.html

          • “If men and women were always infertile in relation to each other, I doubt heterosexual marriage would ever have developed.”

            I think this is true. The idea of the state enforcing a pair bond would probably be unnecessary because child-rearing partnership and contract terms would be negotiated voluntarily, and under these circumstances, in the unusual cases where the pair bond still failed, churches and private charities would likely be capable of helping to raise the child(ren) to the age of majority, without state enforcement, subsidization and taxation.

      • Anonymous

        The law is predicated on the power of sexual generation.  If you want to
        complain about the union of man and woman being more socially
        advantageous than the naturally infertile union of man and man, you
        should complain about the inherent sexual discrimination of the human
        body which makes a woman capable of bearing an offspring but not a man.

        So what you’re saying is that only men and women can have, by biology, children.

        *checks wikipedia*

        Why, you appear entirely right!

        And so, even assuming there was some compelling government interest in making sure two men didn’t reproduce, that there is absolutely no point in attempting to regulate marriage to make this happen! It happens by itself!

        The law just reflects a biological fact: a contractual union between a
        man and woman may promote the raising of offspring by those who begot
        them, a contractual union between a man and a man will not.  At every
        moment, the future of society and the world passes through the union of
        man and woman in a way it does not pass through the union of man and
        man, or even the union of woman and woman, who also cannot conceive
        through the sexual act.

        You’re backwards. The question isn’t whether or not ‘a thing’ supports a compelling government interest. The government can do quite a lot of things that do not support any compelling government interest, like declare a day ‘Arbor Day’.

        The question is whether a specific restriction based on sex in a law supports a compelling government interest.

        Let us say, for some reason, that the US government had a compelling government interest in collecting the DNA of men. (Perhaps there is some sort of species-threatening plague and the government is operating some sort of Manhattan project thingy to save us.) So the government pay each man who gives their DNA for research $200.

        Except they can’t do that. They have to offer it to women, too, even if they don’t need their DNA. Why? Because there isn’t a compelling government interest in refusing to pay women. It may be pointless, but there’s no actual interest in not paying them. Hence, if men are paid, so must women. (Of course, there are plenty of ways around this, but that’s not the point here.)

        There must be an actual compelling government interest for the actual discrimination, not just some compelling government interest floating around attached to something else. There has to be a specific compelling reason the government does X with one gender, but not X with the other, not just ‘because it doesn’t want to’.

        And, as you pointed out, even if there was some compelling government interest for not allowing same sex couples to have children, a law still wouldn’t be allowed or even needed, because, duh, they can’t anyway. (Not that marriage law actually has anything to do with who has kids anyway.)

        If you argue that the possibility of your sexual union producing
        offspring does not give enough of a social interest in the relationship
        between man and woman to warrant marriage, the solution is to abolish
        marriage, not to extend those benefits to people whose sexual union is
        naturally infertile.

        Uh, why do I suspect you didn’t read the original post that this is a response to.

        Saying ‘abolish marriage’ is not an answer. You don’t get to stand there and say ‘I refuse to do the fair thing because it’s not the Platonic result’.

    • Anonymous

      All sex classifications are, in your view, sex discrimination.  The question needs to be rephrased:  is it invidious discrimination?  

      When I was looking for a spouse, I looked only at women.  Was I bigoted?  Was I discriminating invidiously against men?

      The fact is, people understand correctly what the issue is, and it is whether gays have a right to state recognition of their same-sex marriages.  That’s it.  

      BTW, if you look into the sanctions against polygamy, you will see that they typically do not involve state-recognized marriages.  

      • Anonymous

        All sex classifications are, in in the view of the courts, sex discrimination. (At least sex classifications that the law uses to do anything. The census can ask for statistical purposes and whatnot.)

        When I was looking for a spouse, I looked only at women.  Was I bigoted?  Was I discriminating invidiously against men?

        Uh, yes, you were discriminating if what you said was literally true, and no, that wasn’t bigoted. Pretty much by definition.

        Sometimes I have the feeling that people do not understand what the word ‘discriminate’ means. It simple means ‘to make a difference in treatment or favor on a basis other than individual merit’.
        You said you decided that, regardless of the merits of a man, you have decided to marry only women. That is discrimination.

        Of course, it’s actually more likely that you did decide on merits, and your ‘merits’ include ‘being sexual attracted to them’, which is obviously something people want in a spouse. So you didn’t decide to only look at ‘women’ as possible spouses, you decided to only look at ‘people you were attracted to’. Thus, you were not discriminating, even if all such people happened to be women.
        Of course, it’s not against the law to discriminate on whatever grounds you want when get married. (In fact, feel free to discriminate on the basis of race or national origin or age or anything else.)

        All discriminatory treatment by the
        law must be justified by a ‘compelling government
        interest’. Discriminatory treatment in interpersonal relationships doesn’t have anything to do with that, and isn’t covered by any law I can think of.

        Bigotry is not the same thing at all. Bigotry is someone who is not tolerant or even hates people that they perceive outside their ‘group’. People who are bigoted often discriminate, but don’t have to. And most discrimination is not ‘bigotry’ per se, it’s subconscious feelings of superiority, without any actual hate or even dislike. The two words are not the same thing.
        The
        fact is, people understand correctly what the issue is, and it is
        whether gays have a right to state recognition of their same-sex
        marriages.  That’s it.

        There’s not such thing as ‘gays’ in any meaningful sense under marriage law. We do not check if someone is gay and then bar them from marriage. I have no idea how that would even work.

        And there’s not such thing as ‘same sex marriage’. It doesn’t magically become some other thing because someone of a
        different gender or race decides to participate in it and people decide
        to call it by some other name like ‘interracial marriage’ or ‘same sex
        marriage’. Or ‘male nurse’, or ‘female senator’, or ‘black doctor’, or ‘Korean wife’.

        There are people who wish to marry white people. Some of these people are white people , and we allow it. Some of these people are black people, and we used to illegally
        bar them based on their race. However, we have decided that the Equal Protection Clause of the 14th amendment disallows discrimination based on race, so we stopped doing that.

        There are currently people who wish to marry women. Some of these people are men, and we allow it. Some of these people are women, and we illegally bar them based on their gender. However, we have decided that the Equal Protection Clause of the 14th
        amendment disallows discrimination based on sex, but somehow we have not stopped doing
        that yet.

        Governments at all levels cannot distinguish in marriage law, or in any law at all, based on sex without some compelling government interest being served by it, not just because ‘It’s icky and I don’t like gay people’.  All laws trying to restrict ‘same sex marriage’ are for the purpose of blocking entire genders from doing specific things, and are completely and utterly unconstitutional under the 14th amendment.

        It really is that simple.

  • berserkrl

    Elizabeth Brake makes the case for granting legal status to polygamous marriage in Minimizing Marriage: Marriage, Morality, and the Law.  

    • Joseph Anthony

      With polygamy there is an added issue of legalizing it.  Same sex unions are already legal in all fifty states.  The legality of something and its social promotion are two different things.  I don’t necessarily see why polygamy should be criminalized.  I also don’t see any strong social interest in promoting it.  In societies where the population was very small, there was a social impetus for it, namely that we needed more kids.  In today’s society, most people are trying to avoid having more kids, so the situation isn’t exactly linked.

      • Damien S.

        “Same sex unions are already legal in all fifty states”

        You are very incorrect. http://en.wikipedia.org/wiki/Same-sex_unions_in_the_United_States
        Same-sex civil unions are banned by the constitutions of 18 or 19 states, thanks to religious conservative efforts in reaction to the horrible prospect of gays getting to marry the people they love..  Only 13 states have gay marriage or civil unions, a few more have partial domestic partnerships.

        As for social promotion of marriage:
        1) Your story is implausible.  People get something like married in pretty much every society, because we’re a pair-bonding species.  Society isn’t “promoting raising children”, it’s regulating something people do anyway, mostly to deal with property or child-rights issues, plus local religious quirks.

        2) If marriage *were* about social promotion of raising kids, well, gay couples can produce kids from one partner, can adopt, and aren’t far off from being able to prodduce children with the genes of both partners.  Lots of kidis are otu there needing adoption, I’d think you’d want to encourage every couple that wants to love and take care of children.

        • Joseph Anthony

          I spoke unclearly and imprecisely.  Forgive me. 

          I wrote “same sex unions” but what I actually meant was homosexual relationships.  In other words, I meant to note that there are no sodomy laws anywhere in the United States to my knowledge.  The last ones were in Texas and have been abolished.  I could be wrong about the history.  That’s just my memory of it.

          Sorry about the confusion.

      • That doesn’t even make mathematical sense. Unless you want to stipulate that there were, for some unrelated reason, a surplus of available women vs. men. In the FLDS community the reality is that quite a few young men are deemed “surplus” and pushed out. So the “winners” that end up with multiple wives have more children, but why would that necessarily translate to more children overall vs. monogamy?

  • Gordon Sollars

    Your factorial intuition was on the right track.  The formula you wanted was Choose(n,k)=n!/k!*(n-k)!, which is rife with factorials!  For k=2 (because we are counting the number of dyadic relationships) this is n*(n-1)/2! = n*(n-1)/2.

    I would say the “pure” libertarian position is that marriage should be regarded by the state as no more or less than any contract among N persons.  But that is not the current situation regarding marriage, so a libertarian theory of the second best is useful.  Extending the legal position currently concomitant with marriage between heterosexual couples to same-sex couples (and to group marriages for that matter) strikes me as a *more* libertarian political alternative than the status quo, even if there are other alternatives that are still more libertarian or even one that is “most libertarian”.

    Now, if you define “libertarianism” to include the tenet that best is the enemy of the merely better, then you reject any second-best alternative as “non-libertarian”.  But why is *that* tenet a part of libertarianism?

    If the “pure” alternative were only somewhat less likely to be attained than a “second-best”, then I could see a libertarian holding out for it.  But that doesn’t seem to be the possible world we are living in.  

  • Gordon Sollars

    As to “social interest”, same-sex couples can provide a stable, economically advantageous structure for raising children.  What difference does it make to “social interest” if the children are biologically related to only one parent (or to neither one)?

    • Joseph Anthony

      I think it makes a specific difference.  One is regarding the coming-into-being of a human, the other is regarding the raising of a human.  I think it is within the social interest not just to promote the healthy raising of a child (which doesn’t have to be done by any means by a married couple), but also to promote a good atmosphere for the conception of a child, e.g. an atmosphere wherein the parents who beget a child usually raise that child in a healthy environment. 

      I think lifelong and sexually active commitments between members of the same sex are specifically different than life long and sexually active commitments between members of the opposite sex.  Both might raise children after they are conceived, both might be stable.  They might share a lot in common.  But I think the theoretical ability to procreate is a significant distinction.

      By analogy, I might agree to live with my sister for the rest of our life and raise our orphaned nephews and nieces.  That would also contribute to stability and would provide a healthy atmosphere for the raising of children.  But no one claims that such a contract would constitute marriage.

      • Gordon Sollars

        You do not explain why same-sex marriage (SSM) would harm “a good atmosphere for the conception of a child”.  The obvious explanation would be if SSM encouraged heterosexual couples to have children without any intention of raising them.  Is that your view?  I think such a causal relationship is wildly implausible, and that the option of SSM would provide another pathway to provide families for children that irresponsible heterosexual couples will have regardless of the marriage regime.  But even if the view I ask about is correct, its effect is undercut by your other view that a family headed by, e.g.,  you and your sister could do a reasonable job of raising orphaned nieces and nephews.  If that is so, then whether there is ” “a good atmosphere for the conception of a child” is irrelevant.  (Unless you have some argument that such an environment has intrinsic worth regardless of its lack of consequences.)

        Furthermore, I fail to see the relevance of your claim that no one would consider a contract between you and your sister to raise children as constituting marriage.  Arguments for SSM do not typically rest on the claim that the provision of a stable and healthy environment for the raising of children is a sufficient condition for the marriage relation to exist.  

  • Anonymous

    I’m not sure whether anyone has raised the point below in favor of a federalist approach to SSM. If it has been raised already, my apologies.
        So suppose Roe v. Wade had never been decided or had a different way and the majority of the Court had ruled that abortion was a matter for the states to decide. Then I strongly suspect there would have been much less ugly and divisive politicization of the abortion question. And that would be an excellent thing in general and a positive thing for libertarians/classical liberals, as shrinking the realm of politicization is in part what classical liberalism is about. Note also that at the time of Roe v Wade a number of states had already legalized abortion–e.g California and New York–and given what we know about mainstream opinion about abortion I suspect it is highly likely that most if not all states would have some form of legal abortion today even without the Roe v. Wade decision.
     
       My concerns about a one size fits all approach to SSM–all states must allow it or no state may–is similar to the above.  Might not nationalizing the issue lead to an an increase in politicization about SSM?  Whereas if it stays as a federalist matter we might see the continuation of the trend where more and more states legalize it without an increase in ugly politicization.

     Having said that, I think there are two important differences between the abortion and SSM issue. First, Roe v. Wade is a terribly reasoned decision. If an undergraduate presented a paper like that decision to me, I would give it a “C” at most. I’ve taught the decision for years and it it’s not hard to show it is incoherent. If anyone needs support for that claim, I’m happy to provide it. Whereas I have a much higher opinion of the jurisprudence Steve cited, in particular Lawrence v. Texas.  Second, it may be that the problem with the Roe v. Wade case re politicization was just that it was premature. Perhaps if a similar decision had been made two decades later, the politicization would not have occurred. And arguably we are perhaps at a similar juncture today we SSM. I take it this is similar to Troy Camplin’s point about marginal revolutions being the ones that tend to stick.

      Steve has presented a powerful case that libertarians should support a constitutional recognition of the right of any two (perhaps more?) consenting adults to marry. He has challenged my federalist predilictions on this matter. But the concerns I raise above still trouble me, and this seems like the appropriate forum to air them.

    Daniel Shapiro

    • You make a good point about avoiding the politicization. And there does seem to be a trajectory of acceptance (but I have to wonder how many centuries that will take to get to Kansas.) But as a lawyer, surely you’re aware of the negatives to a state-by-state approach as well?

      The certificate issued by the state of Missouri for our (hetero) marriage is recognized by all the other 49 states and the Federal government. As a practical matter, those jurisdictions will recognize as valid practically any marriage certificate from any other foreign country as well.

      There was a case in the news recently of a lesbian couple, residing in New Hampshire, who were married in Massachusetts, IIRC. Now they want a divorce. But NH doesn’t recognize gay marriages so the NH courts won’t grant a divorce on the grounds that they aren’t married. Massachusetts requires them to reside in the state for something like a year before it can be done there, which one of the partners doesn’t want to or more some reason can’t do. Effectively they’re stuck without a legal means to divorce.

      There are also other issues of gay couples where one is a foreign national and not being able to get a green card on the basis of a marriage that’s legal in the other country (like Holland) but not here.

      On balance, a Federal approach seems wiser to me.

    • Joseph Anthony

      I share your position on this.  I like the issue being left up to the states.  I think it hurts the nation to have this constantly a federal issue.  As is very clear from my numerous comments, I think that the there is a greater social interest in promoting the type of relationship which is able to conceive offspring as well as bear them.  But I really don’t care enough about this to continually argue this at the national level.  We don’t have national unity about this, so why make it a national issue? 

    • Anonymous

      Well, I have a SERIOUS problem with your comment. A “C” is MUCH too generous a grade. Roe is one of the most outrageously “result first, logic afterwards” Supreme Court opinions ever issued. A complete and total disgrace!

      • I’m genuinely curious: is it just he reasoning or is it the outcome that offends you?

        • Anonymous

          Well, both. First, the constitution means whatever we, a fleeting majority, think that is means based on our personal policy preferences at this moment. Second, what we, the majority, would like the constitution to mean makes absolutely no sense, since the state’s interest in protecting the fetus depends on its “viability,” which shifts every day with technology.  So that at some point the state would have a legitimate interest in regulating what happens to a 2-day old fetus, since it would be “viable,” which is hardly the result the majority wants. The nine old guys and girls on the Supreme Court are no better at playing God than anyone else.

          • “So, at some point the state would have a legitimate interest in
            regulating what happens to a 2-day old fetus, since it would be
            “viable,” which is hardly the result the majority wants. ”

            I think that development would be fantastic. What you’re talking about is an artificial womb, which would totally solve the whole abortion issue for once and for all. Terminating a pregnancy wouldn’t necessitate the termination of the fetus. It would be more like putting the kid up for adoption.

    • Anonymous

      Not sure why we should expect ‘most if not all’ states to have legalized abortion in the counterfactual scenario.  Status quos are quite resistant to change, and in many states (nearly half) people with negative views of abortion continue to outweigh those with positive ones.  I’m doubt they would default to ‘permit’ if the ex ante policy hadn’t been switched by the federal government.

      And really, the idea that it would be ok for a state to outlaw abortion seems to me to just pay absolutely no attention to the situation of women, in need of an abortion, living in states where procuring abortion is illegal or incredibly difficult.  Steve’s distinction between coercive policies (eg the draft) and empowering policies (eg marriage) seems particularly relevant here.

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  • Michael Zigismund

    1. If social security is expanded to more individuals, liberty would be reduced because greater taxes would have to be levied. This brings the social security anecdote in line with the military draft anecdote. However, it then
    drives a wedge between both of these and the question of SSM, because recognizing marriage between gays does not diminish anyone else’s liberty. Your initial point still stands, but it loses the rhetorical flair of the social security illustration.

    2. As you say, your answers to the second point are not grounded in strong principle, and so I recommend you stick with your initial concession: that opening marriage to anything other than one-man-one-woman does open the floodgates.

    Still, the second point can be resolved another way, this time against SSM. If we turn to the 14th Amendment, states are admonished to not “deny to any person within its jurisdiction the equal protection of the laws.” The key phrase is, “any person,” and not “any party.” Thus, Equal Protection in the Constitution only protects individuals, whereas SSM extends a benefit equally to couples.

    This is also something of a libertarian viewpoint, in that equality before the law is the equality of individuals, not equality of groups.

    I recognize this is an infuriating and nit-picky point, but if we’re going to bring the law into it, we have to deal with the law, and upon dealing with it, we find a resolution — albeit an unhappy one — to Herring’s second point. That resolution is that the law does not necessarily extend equal rights to parties of more than one individual.

    This also drives a further wedge between SSM and the social security argument, both legally and principally.

    3. Despite all of this, my argument for SSM is that in a world without state-sponsored marriage, SSM would be recognized. State-recognized SSM is thus a second-best alternative.

    • jeffysroom

      “If social security is expanded to more individuals, liberty would be reduced because greater taxes would have to be levied.”

      If taxation reduces liberty, then so do profits.

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  • We know from history that marriages of n>2 do not seem to have the staying power of n=2″
    Really?