an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One could be interested in what the U.S. Supreme Court will say about civil marriage in Obergefell v. Hodges for a number of reasons, some of which may not be apparent. In my new book, In Defense of Plural Marriage, I explore the implications of a constitutional right to same-sex marriage (or its equivalent on equal protection grounds). Although many legal scholars have written about same-sex marriage, none of them have produced a sustained treatment of marriages among three or more individuals. The state’s continuing and extensive involvement in the institution of marriage, coupled with the growing belief that the state may not discriminate against gays and lesbians, puts into some doubt whether the state may limit marriage to couples. As progressive, important, and successful as the Marriage Equality Movement has been, it is parochial by focusing on same-sex marriage at the expense of other kinds of intimate relationships that may deserve legal recognition as well. My new book begins to fill the lacuna in the scholarly literature by explaining why the constitutional arguments that support of the option of plural marriage are much better than the constitutional arguments against it.
It is not too much to ask from those who oppose plural marriage to formulate their respective positions without relying upon prejudice, disgust, negative stereotypes, dubious empirical claims, speculation about adverse consequences, fear of difference, or controversial religious views. Even the most deferential standard of review, rational basis, demands that the state have a legitimate interest in limiting marriage to couples. Unfortunately, public opinion about plural marriage has not changed much since the nineteenth century. Many Americans still cling to a sentimental notion of monogamous marriage, overlook its flaws, and refuse to consider the possibility that a plural marriage might work better for some persons under some circumstances or that those involved in a multi-person relationship might love one another and be happy together. In a constitutional democracy like our own, competent adults should be able to marry more than one person at the same time unless the state can prove that it has adequate reasons for denying such choice. As it turns out, none of the state’s interests in not permitting plural marriages are either compelling or important. In fact, they may not be legitimate.
The ongoing debate about same-sex marriage is not only about gay and lesbian couples and their constitutional right not to be legally discriminated against; it also is about the even more complicated question of the most appropriate definition of marriage under the conditions of moral pluralism that characterize America. At stake is nothing less than how the law should treat those who have unconventional ideas about intimate relationships, want the freedom to live accordingly, and desire equal legal treatment. At first, plural marriage may seem to be unequivocally morally disturbing due to its historical association with patriarchal practices, it recent connection to Warren Jeffs, and its continuing role in the practice of Fundamentalist Latter-Day Saints (FLDS) polygyny. A closer examination of its various forms, though, reveals that it deserves a second look. For too long, antipolygamists have framed the issue to make it seem as if to be open to the idea of plural marriage is to endorse Hugh Hefner’s lifestyle or to condone Warren Jeffs’s crimes. If monogamous marriage is to remain the only kind of marriage that bears the imprimatur of the state, those who care about treating others fairly should examine the case against plural marriage more closely before rendering a judgment. In my view, as long as states continue to license monogamous marriages, different-sex or same-sex, they must provide the option of different kinds of plural marriages to fulfill the constitutional mandate of nondiscriminatory treatment. In doing so, they would give the same legal recognition that already is accorded to different-sex monogamous marriage in all states and same-sex marriage in some states, putting all marriage-like relationships on the same footing.
In the context of the debate over how to define marriage as fairly as possible, one cannot simply argue that monogamous marriage is intrinsically better than all of the alternatives. First, it may not be so, given the well-known pathologies of monogamous marriage and intimate relationships. Second, even if it were better, generally speaking, that fact still would not necessarily justify not having the option of marital multiplicity. People are allowed to form and stay in all kinds of bad or unhealthy personal relationships, including violent ones. That some or perhaps many marital choices are less than wise does not entail that either person should be denied the right to marry or stay in the marriage. One does not have to be a libertarian to appreciate why some and probably most of the most personal of personal choices are best left to the people who are most directly affected by them. Usually, they are in a better position to make such choices due to the likelihood that they know themselves and their personal needs better than anyone else does.
For the most part, Americans do not discuss plural marriage openly or fairly, as if the topic were undeserving of serious thought. My hope is that this situation will change sooner rather than later. That may be wishful thinking but one of the goals of my book is to induce readers to imagine that marriage in the future could be a much more inclusive institution that better meets individual needs and acknowledges the reality of the diversification of the family. People are similar in some respects but very different in others when it comes to what they want from their intimate relationships in particular and from their lives in general. For this reason, one size never has and never will fit all. Americans are becoming more accustomed to the possibility that it may not be wrong for people to have an unconventional intimate relationship, provided that everything is consensual and between or among those who are legally capable of giving consent.
Under conditions of moral pluralism, it stands to reason that at least some Americans may want to marry differently and not have the state refuse to provide them with a menu of marital options to select from. Difference is not always bad or to be feared; it deserves a presumption in its favor under most circumstances. Unfortunately, many Americans do not make the effort to familiarize themselves with the lives of different kinds of minorities. For too long, gays and lesbians had to put up with vicious stereotypes that served as the legal basis of their unequal treatment and social marginalization. In an era of no-fault divorce, almost all Americans tolerate “serial polygamy” in which many people have more than one marital partner during their lifetimes. The actor Mickey Rooney and the actress Elizabeth Taylor were married eight times but no one thinks of either of them as polygamists. A growing number of Americans have blended families --which one might describe as de facto polygamy-- than ever before. Increasingly, the very idea of plural marriage is no longer taboo. Television programs, like HBO’s Big Love, TLC’s Sister Wives, and NGC’s Polygamy USA have illuminated the unique challenges of multi-partner intimate relationships; they also have revealed that in some respects, such families may not be so different. Showtime’s Polyamory: Married and Dating is even more welcome because it is not about a cliché, that is, about a religiously-motivated polygynous family with never-ending drama, thereby helping more Americans to appreciate that a plural marriage need not be polygynous. In 2013, a U.S. District Court partially invalidated Utah’s anti-bigamy law. The more charitable media portrayal of polygamy, in the midst of the ongoing battle over same-sex marriage, finally has created space for academics to discuss the quality of the rationale for not extending the right of marriage beyond couples. After all, it could be true that limiting the size of a marriage is just as constitutionally objectionable as restricting marriage to same-race or opposite-sex couples. Several law professors have begun to address how multi-person intimate relationships or plural marriages might be regulated to serve the ends of family law. Because the expansion of marriage to include same-sex couples is bound to cover a broader range of marital relationships, lawmakers, judges, and the rest of us eventually will have to decide which kinds of intimate relationships will be legally recognized as marriages and which kinds will be left out.
As the debate over the meaning of marriage unfolds, those who oppose plural marriage can be expected to draw upon the same kinds of arguments that conservatives have deployed against same-sex marriage. In the end, there may be adequate reasons for not changing the status quo, but conservative opponents of plural marriage will have to articulate their normativity. They will have to do more than consult a dictionary, refer to religious understandings, conduct survey research, embrace “tradition,” or determine how most people happen to use the “m” word. Equally importantly, it is incumbent upon liberals, who seek to treat the two kinds of marriage differently, to defend the constitutionality of unequal legal treatment, which is easier said than done, as I shall show. There must be a legally relevant difference between them or else the state must cease to privilege one at the expense of the other. In the past, liberals that favored same-sex marriage hesitated to join forces with those who advocated decriminalizing polygamy or legally recognizing plural marriages. In fact, some of them went out of their way to distinguish sharply between discrimination against gays and lesbians and discrimination against polygamists. At present, my impression is that the rhetorical imperative of drawing such a distinction and thereby avoiding guilt by association is not nearly as powerful as it used to be. A plural marriage need not be different-sex or even sexual. In explaining why marriage ought to be defined in one particular way, both sides will have to address the normative question of whether marriage ought to be limited to couples and defend their respective positions. In doing so, if they care about trying to convince those who disagree with them, they should avoid relying upon unduly controversial reasons.
Those who care about gays and lesbians being discriminated against cannot ignore whether those who would marry multiple partners, if they were allowed to do so, are also being treated unfairly. The former kind of discrimination may be more widespread and worse than the latter but that does not mean that the latter is morally or legally acceptable. What too many advocates of marriage equality fail to see is that the compelling reasons that support same-sex marriage, such as the value of personal choice in selecting a marital partner and the importance of equal legal treatment, also support a right to plural marriage. The slope from same-sex to plural marriage may be slipperier than many liberals notice or are willing to admit. Anyone that rejects their constitutional equivalence not only will have to prove that the two kinds of marriage differ in relevant respects but additionally that the state may treat them differently without acting unconstitutionally. Despite their professed tolerance of difference, most liberals have made little effort to do so. Although many of them act as if they wished that the possibility of plural marriage did not exist, they should not let themselves be manipulated into choosing between only caring about one kind of discrimination, particularly when a plural marriage could be same-sex, bisexual, or asexual.
Those days are not over. Many Americans continue to associate plural marriages with the subordination of women, and this association is not baseless, given the particular pedigree of polygyny in this country and elsewhere and the dynamics of some and perhaps a fair number of polygynous relationships. However, none of the arguments that are designed to undermine a constitutional right to plural marriage is strong enough to justify a numerical restriction, especially when regulation remains a viable option. Such arguments do not override the strong presumption in favor of the state’s having to respect the autonomy of competent adults by allowing them to make their own marital choices. First, the state cannot merely assert harm or base its policy on a small sample of illegal polygynous relationships. The alleged harm in question must not only be serious but must also be proven before the state’s interest in preventing it is strong enough to justify a criminal prohibition or unequal treatment of all plural relationships. The harms associated with certain kinds of polygyny often reflect the conditions under which such arrangements exist, including the state’s failure to regulate them effectively, and the beliefs that the participants have internalized and act upon. Second, women and children can be protected from possible harm in more direct ways that are independent of marital status. Constitutionally, the issue ought to be whether competent adults should be free to choose such a marital relationship and not whether it would be wise for most people to do so, whether the legal recognition of different types of plural marriages would irreparably damage the traditional institution of marriage, or whether the licensing of only two-person marriages would produce better overall consequences. Their personal reasons are their own and should be presumed to be valid.
Upon reflection, it is not evident why this unequal legal treatment is allowed. This double standard --where the personal reasons for a monogamous marriage are almost always good enough and the personal reasons for a plural marriage are always bad as far as the state is concerned-- too often is presupposed to be morally and legally correct. Either this judgment needs a rigorous defense or those who oppose plural marriage will have to concede that the state may scrutinize the personal reasons of couples when they apply for marriage licenses to determine which prospective marriages are likely to be at least minimally meritorious. I say that half in jest. In a liberal society that values personal choice, the meaning of marriage is best left to competent adults who can decide for themselves what they want their marital relationship to be. That proposal aligns with our commitment to the constitutional principle that we let people form, revise, and pursue their different conceptions of the good with as little interference as possible by the state. They could choose a traditional, two-person opposite-sex marriage, a non-traditional, more egalitarian two-person opposite-sex marriage, a two-person same-sex marriage, a two-person non-sexual marriage, regardless of its gender composition, or any sort of plural union. By comparison, we let people have different religious beliefs and practices. We let them select different educational institutions and professions. We let entrepreneurs form different business associations. But we do not let them marry differently, so to speak, and that state of affairs must change sooner rather than later.
Ronald C. Den Otter is Associate Professor, Political Science, California Polytechnic State University San Luis Obispo. You can reach him by e-mail at rdenotte at calpoly.edu