Same Sex Marriage and Polygamy: Revisited
January 5, 2006 · By Tom Cerber
In response to a comment on my previous post on same sex marriage and polygamy, I write this (which is too lengthy to include in the comments page there):
Lyndon: Thanks for reading my previous postings on this subject. However, you may have missed my previous point that the legalization of same-sex marriage is based on the principle that society will not discriminate against unions on the basis of their ability or nonability to procreate. In other words, society has commited itself to the general rule that marriage is an institution where two people commit themselves to one another. If they want to call their commitment romantic or however else, then the state won’t ask any questions and, for civil purposes, will recognize their union as marriage.
You see, laws in a constitutional regime are written as general rules. They’re not supposed to name specific names or groups, except insofar as they prohibit discrimination against identifiable groups.
As a result, one must consider the general rule and general princple that the state lists when prohibiting types of discrimination. The state doesn’t say, “don’t prohibit same sex marriage on the basis that we like gays.” No, the state says in effect, “don’t prohibit same sex marriage because it is unjust to use inability of the union to procreate as the basis for discrimination.”
Once you see the general rule, you can then ask, why limit your case to homosexual unions of 2? This is why the bisexuality (or polygamy, call the union of bisexuals what you will) considered in the Kurtz article is so interesting. It challenges supporters of same-sex marriage to consider where the general principle of their position leads.
As for Mormons and polygamy, you may be right that it is acceptable under the current marriage regime. The BC Attorney-General agrees with you, which is why you don’t see the RCMP busting the polygamists near Creston, BC. However, if I had to bet, I’d wager that the Supreme Court wouldn’t buy a freedom of religion defense for their practice because they’d see a conflict with s. 15 equality provisions (i.e., they’d consider the girls in these marriages as having been coerced or pressured into those arrangements). In short, Mormon polygamy doesn’t harmonize with the liberal myth of the autonomous individual.
I have to disagree with the premise that the Civil Marriage Act deals with the idea of procreation. In fact, as you know, it does not.
If, in the past, it did prohibit those who could not procreate from marrying (and I am sure you have heard this argument, but it bears repeating) then legitimate heterosexual couples who could not have children for medical reasons, including just being too old to have children, would not have been eligible for marriage.
Also, in another posting, I argue that bisexual people are not discriminated against under the new legislation, because they are free to marry whomever they choose, as long as it is one person.
On the question of plural marriage, yes, I agree, that young women should not be forced to marry against their will, which is the common argument against the Mormon-style of polygamy. However, the law is still quite explicit about the union of two persons (person as defined under the law).
I am neither for or against marriage of any type between two consenting adults, except in the case of incest and the marriage of underaged persons. My rationale is simple. These marriages do not hurt anyone. What does hurt, and the courts agree, is telling two concenting citizens of Canada that they cannot legally marry.
The Supreme Court of Canada went through an extensive consultation process and heard from Canadians of all religious and social points of view, and they did not hear a good argument against same-sex marriage. No one has put forth a logical or legitimate reason why these legal unions would destroy the fabric of our country and society.
What is has afforded same-sex couples are the legal rights heterosexual couples enjoy. Namely, and in my eyes the most important few, equal tax, medical and death benefits. The ammended act ensures that extended family memebers do not have rights over the estates of deceased spouses (which, until recently, was quite a big problem in GLTB history); it also ensures that extended family members cannot deny hospital access to dieing partners, where only “family members” have visiting rights.
I have had the misfortune of seeing both situations; and I am glad that the Government of Canada has finally put an end to this type of discrimination once and for all.
Lyndon: You commented:
What does hurt, and the courts agree, is telling two concenting citizens of Canada that they cannot legally marry.
But why restrict to two? Your argument that bisexual people can marry is vacuuous unless you allow them to marry more than one person (i.e., polygamy, polyamory, or whatever it’s called).
Also, you missed my point about the general rule. Let me put it another way: what’s the NEW principle of discrimination? If it’s “no harm,” as you state, then that’s even more wide open than I think it is. Hell, I’m not harming anyone if I marry my dog. I know you’ll complain I’m using a homophobic trope by saying that. But unless you provide me with a newly articulated rule of exclusion that the new marriage law creates, then that’s what you have under your “no harm” principle.
A dog, as you know, is not a person under the law.
Also, all you have to do is weigh the actual (not made up - such as a worry that you will one day be able to marry your dog) pros against the actual cons, and I think that any intelligent and compassionate person can see what the correct answer to the question of civil marriage actually is.
In fact, I could draw you a very extensive list of people and groups who were actually hurt under the old marriage regime. That list is MUCH longer than the list of people who might “hypothetically” be affected under the new one (i.e. dogs, mormom-type polygamists, and churches who won’t rent their halls to lesbians for weddings).
Lyndon: You’re dodging the issue. Let’s get back to bisexuals. Why do you dislike them so much so not to allow them to marry multiple partners (simultaneously)? To use your self-righteous rhetoric, why don’t you do what “any intelligent and compassionate person can see what the correct answer to the question of civil marriage actually is” ?
“In other words, society has commited itself to the general rule that marriage is an institution where two people commit themselves to one another.”
Bzzzt. Society is not a thinking or acting entity. It has absolutely no unity of vision, purpose or action. This argument is invalid. The “actions” of society are the aggregate actions of individuals, and as we can clearly see here, those individuals are of widely differing opinions.
Frankly, if Western civilization can have survived the 45 years after WWII without blowing itself to atoms in a nuclear war, I don’t think it’s downfall will be same-sex marriages, polygamous marriages, incestuous marriages, bestial marriages, marriages between men and dairy products, etc.
Marriage is, essentially, a contract. Gary Becker’s work illustrates this well. So, by restricting any kind of marriage, what the State is basically doing is forbidding an agreement between consenting people who sincerely believe that the agreement will make them all happier. So as it does economically, so will it do socially.
Hugo: Fair enough. “Society decides” is a short-hand way of expressing what principle of jurisprudence the marriage regime expresses. As you know, this principle has not even been accepted by any kind of aggregate of individual opinions either.
Becker may be right to argue that marriage is a contract. But I would ask, a contract to do what? As you know, liberalism regards “society” as a contract. In the writings of one of its founders, John Locke, social contract’s purpose is for the pursuit of peace, liberty, and material well-being of those who participate. The marriage contract is for procreation and cohabitation. Since people in our society have decided procreation is not the purpose of the marriage contract, one might ask whether the purpose of marriage carries any meaningful difference from the purpose of a social contract. Is there any meaningful difference between the political sphere and the sphere of private liberty?
If not, then what grounds does a liberal (or libertarian) have for opposing state intervention in the private lives of individuals if it can be shown, as the Liberals often argue (though rarely demonstrate), that the state can do things better than individuals can (e.g., their arguments for national daycare)?
The libertarian is thrown back to argue that individuals can act more effectively in their sphere than the state, but that is not a principled argument. Without principle, you’re on a a rather thin reed, indeed.
Liberalism, including its libertarian variation, carries the seeds of collapsing the public and private divide in on itself.
On the contrary, Tom, it is a highly principled argument. It is the argument for State interference and “public” policy that is unprincipled, for the line at which individual and collective action are separated is arbitrary and undefinable, and certainly cleaves to absolutely no matter of principle.
The notion of the “public” sphere is illusory. There is no such thing, just the aggregate of many individual actions, and where the word “public” is used it invariably means either outlawing or forcing these individual actions using violence or the threat thereof, needless to say, against the will of the inidividuals themselves.
The “social contract” is the modern version of “divine right”. See the works of Lysander Spooner or David D. Friedman for a thorough debunking of this notion.
[...] Further to our rousing debate on whether same-sex marriage in principle opens up the door to polygamy, the Wall Street Journal carries an article detailing how polygamy’s being pushed by various progressives. A snippet: The idea, floated with ever greater frequency, is that polygamy is nothing objectionable; it is simply another option on our diverse menu of family types. A new HBO series called “Big Love,” debuting in March, will center on a man married to three women. “It’s everything that every family faces, just times three,” co-creator Mark Olsen told Newsweek. “The yuck factor disappears and you just see human faces.” [...]
Hugo: State interference is only considered such when it’s deemed malevolent. If deemed benevolent - or should we say, “effective,” - then what argument have you to defend individual rights?
Benevolence is subjective. You are assuming your conclusion as a premise in your argument.
Hugo: True, but irrelevant.
It’s only irrelevant if your reply in Post 11 is irrelevant.
Hugo: Try reading the post. When someone writes, that something is “deemed” benevolent, don’t you think the one writes “deemed” understands that benevolence is subjective? What do you think “deemed” means, after all?
And subjective for whom? Well, governmental agents as well as the recipients of alleged benevolence, who have consented that whatever government does to/for them is benevolent.
Hi. I’m a tv Producer from Canada and we’re currently shooting a gay wedding series called, I NOW PRONOUNCE YOU
It’s not OUT TV in Canada http://www.outtv.ca
I recently heard the Netherlands held a three person, plural wedding, and the two ladies were bisexual.
I am looking to shoot another plural wedding for our show. I was wondering if you knew of any that are happening in the next little while?
All the best,
Myles Shane
Producer
http://www.hiltz2.com
Circular argument, Tom.
Hugo: My comment was in response to your, um, circular argument here:
“It is the argument for State interference and “publicâ€? policy that is unprincipled, for the line at which individual and collective action are separated is arbitrary and undefinable, and certainly cleaves to absolutely no matter of principle.”
If the line between individual and collective action is “arbitrary and undefinable,” then why worry? Individuals can just be told not to worry about something called “collective action” because their worries are equally “arbitrary and undefinable” as is the state interference that they’re concerned about.
Unless you come up with a better *principled* argument, yours simply washes away in relativism. You might as well join the feminists chanting “the public is private” and all that.
Well, Tom, the difference is that everything is de facto private since human beings are individuals, not ants, and anything that they do is an individual action or the aggregate of individual actions.
The point at which these individual actions become appropriated, outlawed or compelled for the “public” sphere is wholly arbitrary. There is no naturally occurring collective action.
Hugo: Then how do you understand governmental action? The rule of the strong over the weak?
Myles Shane: I’m sure Jerry Springer has a Rolodex full of people you can contact for your show.
For ideas on how to frame your show, see here, here, here, here, and here.
Basically, Tom, yes. The action of government always eventually boils down to the use of force or the threat thereof. One has to be strong, or at least perceived to be strong, for this to work.
Hugo: I guess then I’m even more confused about your position that I thought because I’m still unsure how you understand the essential difference between governmental action, understood as collective action, and actions conducted by factions or smaller groups. For instance, if governmental action is based essentially on the use of force, then do the thugs who run government base themselves essentially on the use of force - essentially and all the time? Moreover, do other groups - acting collectively - do the same thing? If not, how do you account for government collective action based on coercion versus nongovernment collective action (e.g., factions, tribes, clubs, families) that are not based essentially on coercion?
I guess I’m still wondering how you distinguish government from nongovernment, or public from private as I expressed it above.
Well, the answer is in the question. “If not, how do you account for government collective action based on coercion versus nongovernment collective action… that are NOT based essentially on coercion?”
Hugo: I didn’t write my correction clearly. I should’ve written, how do we know those other forms of collective action to be essentially noncoercive?
Using a dictionary? What does “coercive” mean to you?
Hugo: Then you’ll have learned from your Oxford Latin Dictionary that “coercion” has roots in “correction,” that is, it’s done when teaching as when the argument “compels” us to draw a particular conclusion.
I fail to see how this works in your argument.
But we are speaking English, not Latin. “Coerce: persuade or restrain by force.” I hope that your argument does not rest on semantics rather than logic, as it appears to.
By coercive, I mean that which employs or threatens physical violence against person or property. In the case of nongovernmental organizations, you can find some that are coercive (e.g. the Mafia), and some that are not (e.g. Microsoft). But all governments use or threaten violence, without exception. Indeed, it is not possible to have a government that does not coerce, after all, if one could get people to follow government policy willingly there would be no need for that government in the first place.
Hugo: You wrote: “But all governments use or threaten violence, without exception. Indeed, it is not possible to have a government that does not coerce, after all, if one could get people to follow government policy willingly there would be no need for that government in the first place.”
Arguably all families use or threaten violence. Does that mean the family is an essentially coercive institution, just like the state? The difference only one of size?
http://www.thepolitic.com/arch.....ge-regime/ http://www.thepolitic.com/arch.....revisited/
[...] Follow any comments here with the RSS feed for this post. Post a comment or leave a trackback: Trackback URL. « Same-Sex Marriage: Revolution inParenthood [...]