an unanticipated consequence of
Jack M. Balkin
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Same-Sex Marriage, Plural Marriage, and Constitutional Equality
Stephen Macedo The Constitution’s deepest commitment – to securing equal freedom for all – argues for extending marriage to same sex couples and for preserving monogamy’s favored place in law.It is vital to see why as our public debate over same-sex marriage comes to a head.
Among the most oft-heard questions concerning same-sex marriage are: how will it change marriage? And, if a constitutional right to marry is extended to same-sex couples, on what grounds can we exclude loving polygamous or “polyamorous” groupings of three or more?
That latter question reflects the continued popularity on the political right of the purported “slippery slope” from same-sex marriage to polygamy and incest (among other things). In his opinion for 6th Circuit Court of Appeals, last November, upholding the constitutionality of state non-recognition of same-sex marriage and provoking the Supreme Court to take up the issue, Judge Jeffrey Sutton asserted that, “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to this point.” Justice Samuel Alito pressed the polygamy issue during the Supreme Court’s oral arguments on same-sex marriage. Justice Antonin Scalia has insisted on the point repeatedly.
Some write off the polygamy issue as fear mongering, but that would be a mistake. Nearly two decades ago David L. Chambers challenged any easy assumption that “polygamy deserves to be looked on less favorably than same-sex marriage.” Many academics, intellectuals, and activists on the political left now defend equal rights for plural marriages. To many it seems obvious that political liberal commitments to equality, fairness, and state ethical neutrality demand reforms to marriage far more radical than its extension to same-sex couples. These could include disestablishing or privatizing marriage in favor of a contractual model, or broadening it (or some new legal status) to include caring relationships of whatever number and mix of genders. Ronald C. Den Otter’s recent book and blog post, defending plural marriage, are the latest entries.
The essential thing about contemporary marriage that makes it appealing to and suited for same-sex couples is spousal equality under law. Marriage is now the legally recognized commitment of two co-equal spouses to care for one another through all of life’s trials. The various legal “incidents” of marriage supply a useful “off the shelf” package of rights and responsibilities that are, in general, as well suited to same-sex as opposite sex couples. Gay and lesbian couples seek the equal right to enter into marital commitments on the same terms as opposite sex couples. Same-sex couples can benefit as much as others from the legal rights and obligations that the law assigns to marriage, and also from the political community’s recognition of their commitment.
Justice Ginsburg rightly emphasized the close connection between spousal equality and same-sex marriage during the Supreme Court’s oral arguments. One way that same-sex marriage changes marriage is by further entrenching the norm of spousal equality.
But what Ginsburg did not emphasize, and what the advocates of full public acceptance of plural marriages fail to grasp, is that the Constitution’s commitment to equality – the very thing that makes contemporary marriage so well suited to same-sex couples -- also argues for privileging monogamy in law. In order to see this we need to focus on plural marriage as a lived social reality. The striking fact is that gender equality and same-sex marriage, on the one hand, and polygamy, on the other, are on completely different historical trajectories. Nowhere in the world where women are equal is there any broad social movement in favor of plural marriage. Where women are becoming equal but plural marriage continues to exist, as in Africa, women’s groups are typically seeking to end it, or limit and regulate it.For example, thirty-six African nations (including South Africa) have ratified the African Union’s protocol on women’s rights, which calls for an end to all forms of discrimination against women, insists that “women and men enjoy equal rights and are regarded as equal partners in marriage,” and holds that “monogamy is encouraged as the preferred form of marriage.”
The most thorough account of the evidence concerning polygamy can be found in the opinion by Chief Justice Robert Bauman of the Supreme Court of British Columbia in the Reference decision upholding the constitutionality of Canada’s criminal prohibition on polygamy on polygamy.
In contrast, none of this evidence was presented by the state or acknowledged by the federal court in Utah that granted the petition of the TV polygamists, Kody Brown and his four wives, and partially invalidated Utah’s criminal prohibition on polygamy. Judge Clark Waddoups correctly noted that the effect of Utah law was to single out as prosecutable those people who solemnized their plural relationships with “the trappings of a religious marriage ceremony.” Prosecutors conceded that the law was not applied to “mere adultery or adulterous cohabitation.” Polygamists have been arguing for decades that they cannot be prosecuted for violating anti-bigamy statutes if they secure only one civil marriage license, or if none of their “marriages” are state sanctioned. Waddoups was right to point to the constitutional infirmity of Utah law.
But he went too far in suggesting that public concerns about polygamy are rooted in mere prejudice. Waddoups quoted the most offensive passages from Reynolds vs. US (1878).“[W]hat exactly,” he asks, “was the ‘social harm’ identified by the Reynolds Court?” It was that “American Mormons were engaging in a practice thought to be characteristic of Asiatic and African peoples who were believed, at the time, to be civilizationally and racially inferior.” The Supreme Court’s reasoning in Reynolds, he insists, reflected an “orientalist mindset” and is “morally repugnant.” This is, once again, correct, but only part of the story. In Reynolds the Supreme Court also observed that, “‘polygamy leads to the patriarchal principle,’ which, ‘when applied to large communities, fetters the people in stationary despotism.’” These remarks are cryptic and undeveloped but on the right track.They are not, as Waddoups asserts, just “another racist or orientalist observation about this Mormon practice based in the ‘scientific’ perspective of the day.”
So what does the evidence suggest? 85% of the societies studied by anthropologists have practiced normative polygamy as the preferred marital form for the privileged. It overwhelmingly takes the form of polygyny: one husband with multiple wives.Polyandry, or a marriage involving multiple husbands, is both rare and fragile and seems to exist mainly under highly unfavorable circumstances. Even when practiced by only a small minority of privileged men, polygyny increases intrasexual competition among men and the pool of unmarried males, and this contributes to greater violence and risk taking in society. Complex families are prone to jealousy and conflict, so polygamous families are characterized by much higher levels of violence in the home. Monogamy, in contrast, gives better off men an incentive to invest their surplus resources in their children rather than in acquiring additional wives.The transition to institutionalized monogamy contributes to more egalitarian social relations, greater social progress, and a fairer distribution of the opportunity to enter into family relations.
Brown University Political Scientist Rose McDermott, one of the expert intervenors in the BC Reference Case, characterized the evidence that women, children, and lower-status males fare poorly under polygamy thus: “polygyny’s negative effects are wide-ranging, statistically demonstrated, and independently verified” using a variety of analytic tools.
If the preference for monogamy were explained by Western chauvinism, as Judge Waddoups suggested, it would be ironic indeed that large, proud, and independent Asian nations such as Japan, Turkey, China, and India embraced monogamy in the twentieth century as part of their efforts to modernize.
Monogamy helps secure everyone’s fair opportunity to pursue the great good of family life and thereby bolsters our basic constitutional commitments to the freedom and equality of all. As an experienced rather than an imagined form of life, plural marriage is generally inconsistent with securing equal liberty and fair opportunity for all. We have, thus, powerful reasons for concern about polygamy.
What about “polyamory?” This is the name often given to an egalitarian form of plural relationship, sometimes also called “postmodern polygamy.” It has been explored by Elizabeth F. Emens, Elizabeth Brake, and others.The fact is that we know little about such relationships. They seem to exist mainly as scattered and often fleeting experiments in living. There are no systematic studies. Advocacy of open marriage has been around for decades and it has not taken off.What we know is a matter of anecdote, speculation, and free love fantasy. There is nothing here like the decades old mass mobilization on behalf of the rights of gay and lesbian people.
The Constitution’s basic commitment to an ordered system of equal liberty should guide our analysis. We need to define a system of basic rights and liberties as fundamental parts of a wider scheme of institutions that help secure everyone’s equal standing and fair opportunity to pursue a good and successful life. Same-sex marriage extends the basic value of equal liberty to a group long subject to prejudice and discrimination. It builds upon and further strengthens the norm of spousal equality within marriage. It offers same-sex couples the equal opportunity to enter into a socially recognized form of mutual commitment of great importance.
Plural marriage, in contrast, is strongly associated in practice with patriarchy, and class and status hierarchies. It is, in its most prevalent forms, productive of systematically worse outcomes for women, children, and lower status males. The spread of monogamy is part of and parcel of the unfinished advance of gender equality around the globe. Adult freedom should be respected, and people should not be subject to criminal prosecution in the absence of direct harm to others. But a sober assessment of polygamy as lived social form provides strong grounds for not extending equal recognition to plural marriages. History’s slope seems to run toward gender equality, gay rights, and monogamy.
At the same time, we should respond sympathetically to people’s valuable but non-standard relationships. Only a fool would claim that we now know the whole truth about these complex matters. Monogamous marriage is a distinctive form of mutual and reciprocal commitment, but it is not the only form of caring relationship that law and policy should recognize and support. Complex households are already recognized by the state for various reasons: determining eligibility for welfare benefits for example. We need to do more to protect the interests of those in polygamous households. In addition, we allow people to delegate powers of attorney in medical decision making to trusted friends or relatives. Courts are considering whether parental rights may be extended beyond the “rule of two” in the case of a sperm or egg donor who, by mutual consent, helps parent as well as conceive the child. The law can and should continue to evolve in response to the choices made by free people.
Stephen Macedo is Laurance S. Rockefeller Professor of Politics and the University Center for Human Values, Princeton University. You can reach him by e-mail at macedo at Princeton.EDU
 David L. Chambers, “Polygamy and Same Sex Marriage,” Hofstra Law Review 26 (1997): 53–83, 69, 76-7.
 Notable contributions to this literature include Sonu Bedi, Beyond Race, Sex, and Sexual Orientation: Legal Equality without Identity (Cambridge: Cambridge University Press, 2013); Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law,” Ethics 120 (January 2010): 302–37, and Minimizing Marriage: Marriage, Morality, and the Law (Oxford: Oxford University Press, 2012); Cheshire Calhoun, “Who’s Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy,” San Diego Law Review 42 (2005): 1023–42; Elizabeth F. Emens, “Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence,” New York University Review of Law & Social Change 29, 2 (2004): 277–376; Andrew F. March, “Is There a Right to Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification,” Journal of Moral Philosophy 8 (2011): 246–72; Adrien Katherine Wing, “Polygamy from Southern Africa to Black Britannia to Black America: Global Critical Race Feminism as Legal Reform for the Twenty-first Century,” Journal of Contemporary Legal Issues 11 (2001): 811–80.Among those arguing for a new legal status for care-giving relationships in place of marriage is Tamara Metz, Untying the Knot: Marriage, the State, and the Case for Their Divorce (Princeton: Princeton University Press, 2010).
Some of those who argue for marriage “disestablishment” or privatization are agnostic on the polygamy question, see for example, Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New York: Penguin, rev. ed. 2009), others are sympathetic to plural unions, see Clare Chambers, “The Marriage-Free State,” Proceedings of the Aristotelian Society 103, part 2 (2013): 123–43.
 As David L. Chambers observed nearly twenty years ago, “What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples.” Michigan Law Review 95, 2 (1996): 447–91.
 Id., at 1187, quoting Reynolds, 98 U.S. at 166, and citing Francis Lieber.As Waddoups continues: “The practices were therefore objectionable because they were characteristic of ‘oriental’ races including ‘Asiatic’ and ‘African’ peoples, both considered to be morally inferior based on such practices, and civilizationally inferior based on ‘the patriarchal principle’ attributed to their societies, not to mention racially inferior.”
 This evidence is summarized in Bauman’s opinion in the Reference case, and in Macedo, Just Married, chapters 8 and 9.
Rose McDermott, “Expert Report Prepared for the Attorney General of Canada.” In British Columbia Reference Case, submitted July 15, 2010, https://stoppolygamyincanada.files.wordpress.com/2011/04/mcdermott-report.pdf. Paragraphs 25–28, 96, 98, 101, 106, 116, 121, 137–58. See also Joseph Henrich, Robert Boyd, and Peter J. Richerson, “The Puzzle of Monogamous Marriage,” Philosophical Transactions of the Royal Society B 376, 1589 (March 2012): 657–69, http://rstb.royalsocietypublishing.org/content/367/1589/657.abstract. And see Macedo, Just Married, chapters 7-9.
 See the citations to Brake and Emens in note 2.