There’s been so much written recently about the whole same-sex marriage issue, that I’ve been dubious about whether or not I have much to add, beyond stating the obvious: government should not discriminate against people based on the beliefs of any religion.
But maybe, doting Nonna that I am, I’ll start by telling you one of my very favorite G/Son stories ever. Last summer, when G/Son was six, he was spending the day with me and his mom asked if I’d take him to a store that was having a sale on the khaki pants that comprise part of his school’s uniform. So we drove over to Seven Corners and there, just up the street from the store, was a Chick-Fil-A. This happened right in the middle of the whole kerfluffle over Chick-Fil-A’s anti-gay stance, and there was a crowd of folks milling around outside the store and holding signs saying hateful things about gay people. Without thinking too much, Nonna made a negative comment about Chick-Fil-A. Little Mr. Big Ears in his car seat asked why Nonna said that and Nonna suddenly realized she’d probably done it now, not being sure what, if anything, G/Son knew about the whole QUILTBAG issue. So Nonna said, “Well, I don’t like them because Chick-Fil-A is hateful to people like Mr. J. and Mr. S., Ms. M. and Ms. R., and Family Member 1 and Family Member 2.” There was silence in the back seat for a bit, as G/Son attempted figure out what common trait linked those people, all of whom he knew and liked. Then, in the most incredulous six-year old voice you’ve ever heard, he said, “Nonna! Chick-Fil-A hates gardeners?!?!?!” And Nonna said, “Yes. Yes, they do.” Because, you know, it makes as much sense to hate people because they garden as it does to hate them because of whom they love. I just don’t thing G/Son’s generation is going to grow up worried about same-sex marriage. Or gardeners.
My position has always been that the government really has no business granting or denying anyone a “marriage.” What the government should be in the business of doing is granting civil unions — a status that includes a bundle of rights that the government will enforce or will allow the parties to enforce. You want that, and you’re able to give knowing consent, you head on down to the town hall and take vows before a justice of the peace or a judge or whatever local official’s empowered to recognize a civil union, but not religious officials because we need to keep government and religion separate. And, of course, it’s unconstitutional for the government to discriminate, refusing to recognize the civil unions of anyone other than a man and a woman.
Beyond that, if you want a religious blessing on your union — if you want a marriage or a handfasting or whatever you want to call it — you head to your religion. And because freedom of religion is one of the bases of our Constitution, religions can do whatever they want. They can marry two men, two women, a man and a woman, a woman and three men, whatever. They can refuse to marry people of the same sex, people who can’t or don’t want to produce children, people who don’t tithe, people who’ve been divorced, whatever. But they can’t grant or deny the bundle of rights that comes with a civil union because we need to keep government and religion separate.
But we’re a ways off from those days and, as long as, for example, a Catholic priest or a Jewish rabbi can confer both the religious blessing and the civil status, then Pagan clergy must also be able to do the same.
This weekend, one of my Circle sisters asked what I thought about the legal future of polygamy, now that same-sex marriage seems on the road to legal acceptance.* I really don’t think that legal bans on polygamy will last, although I think it will take some years before there are changes to the law. If all that the government is doing is enforcing a bundle of (mostly) contract rights, there’s really no civil, as opposed to religious, reason for insisting that only two people can enter into that kind of contract. It’s difficult for me to think of any other kind of contract that the government says it will only enforce as long as there are only two individual parties to the contract. Multiple parties, some of then not even actual humans, can jointly own property, establish rules for their condo or homeowners association, agree to insure multi-million dollar endeavors, allocate transmission through auctions that establish prices according to complicated bidding rules, etc.
The arguments against polygamy fall, it seems to me, into several clumps.
The first set of arguments basically parallel the now completely-discredited arguments based upon (purported) Christian beliefs: “Marriage should be between one man and one woman” (except that wasn’t true for biblical patriarchs). Not only are these arguments historically inaccurate, but the government has no business enforcing the beliefs of (some) Abrahamic religions on the rest of us. Christians didn’t, as one great sign outside of SCOTUS this week noted, invent marriage or family and they don’t get to define either.
The second set of arguments essentially insist that “it’s too complicated,” and while I’ll admit that any arrangement between, say, three or four people is likely to be more complicated than an arrangement between two people, that’s no reason for the government to deny people what are contractual rights.
As a lawyer, I’ve got to say that complicated contracts are what America DOES. We’re good at it. I regularly work with contracts that run to hundreds of sections and subsections, often between multiple parties and set up to allow new parties to join at any time. Our legal system is great at dealing with complicated contracts — at drafting them and at figuring out everyone’s rights when things go wrong. You don’t have to be a transactional lawyer involved in the sale of one multi-national company to four other companies to have seen such a contract. Pull out the many-paged contract between you, your spouse, and the bank that loaned you money for your mortgage. Pull out your insurance policy or the warranty on your new washing machine. Take a look at the last contract you signed when you clicked the “I accept” button before downloading software.
If we can deal with those contracts, we can deal with contracts that spell out who gets to make hospital visits. The government could offer a basic civil union (you all get to make hospital visits to each other) or could allow people to negotiate their own contracts (Martha decides who gets to visit whom in the hospital, except that Judy doesn’t ever have to accept hospital visits from Marv and Martha can’t exclude Terri’s mother from visiting Terri). I think it’d be a great idea for people to have to sit down — themselves, with a lawyer, with a trusted advisor, with an internet guide, with a copy of Civil Unions for Dummies — and think through these issues BEFORE entering into a civil union. (In fact, wealthy people regularly do engage in this activity, as least as it concerns property and child support. We call these pre-nuptial agreements. Again, America deals with complicated contractual arrangements all the time.)
Another version of the “it’s too complicated” argument against polygamy runs to one version or another of “What about the children?” And these tend to be focused on how complicated it would be to deal with custody and support issues if the polygamous family breaks up.
Of course, custody issues are one of the most contentious issues that our legal system faces. Yet, it deals with them everyday. And many, many children these days live in blended families in which biological parents, step-parents, parental partners, and grandparents all play a role and have legal rights. It’s not as if banning polygamy somehow ensures that each child will be raised by their biological parents and no one else, thereby making life simple for family court judges. Indeed, banning polygamy doesn’t even prevent children from being born into and raised in polyamorous families, and our legal system is called upon right now to figure out what to do when those families break up.
Again, the government can award basic civil unions (in the event the family breaks up, a family court judge will decide what’s best, but there’s a presumption that everyone pays support and that everyone shares custody, which is more or less where we are nowadays for nuclear families) or people can contract ahead of time about who will get custody, who will have to pay child support, who has a right to see Emma’s report card, and which holidays a child will spend with whom. And courts can, just as they do today, intervene in those agreements when doing so would be in the best interests of the child.
Some “what about the children” arguments imply that polygamy might be bad for the children. But I’m unaware of any research that shows that, aside from the social stereotype that may attach to polyamorous families and the pain that such stereotypes may cause, being raised in such families harms children. For many generations, children were, in fact, raised in extended families and communities, and one can certainly think of ways in which having multiple adults involved in a child’s upbringing could actually be beneficial to the child.
Finally, there’s another sort of “it’s too complicated” argument that goes something like this: “Well, if a group of people can all get married, then the employed member of the family can list them all as dependents on her insurance and our company’s health care costs will skyrocket. How will we know people aren’t just getting into these unions to get health care?” To which, of course, the simple answer is that people shouldn’t get their health care through their employer. Everyone should get health care from the government and then it wouldn’t matter what relationships they chose. But beyond that, we heard the same arguments when companies began to allow people to include their “domestic partners” on their health insurance and we haven’t seen big problems from that. If the number of people that any one employee can arrange to have covered is a real issue, we can simply limit the number: every employee can include up to three dependents/family members. But that means that if a two-person, heterosexual, married couple has their third child, that child doesn’t get covered and family is on the hook for that child’s health care. Limiting people’s rights to civil unions is an odd, unfair, and inefficient way to limit health care expenses. (Ditto for “too many people will live in a single-family home,” etc.)
In the end, the “it’s too complicated” arguments won’t, IMHO, stand up to legal scrutiny any more than will the religiously-based arguments.
In a heartfelt post, T. Thorn Coyle asks, “What right does government have to tell us what sorts of relationships are important to us, or what sorts of families we can build and grow together?” And, of course, the government can’t say what relationships are important.
What the government can do is to say what kinds of contractual rights it will and won’t enforce. So, for example, the government may decide that it won’t enforce contracts entered into with a minor, or contracts of adhesion where parties had unequal bargaining power, gambling contracts, or contracts for the sale of illegal drugs. But the government has to have a defensible basis for refusing to enforce contracts and neither (current) Judeo-Christian dislike for polygamy nor “it’s too complicated” is a good enough reason.
I’ve always admired Justice Thurgood Mashall who, in his days before appointment to SCOTUS, engaged in a brilliant battle of one-legal-step-after-another to get to his ultimate goal of an end to legal racial segregation. And, I’ve no doubt that there will be some who’ll want Coyle to “shutupshutupshutup” and wait until same-sex marriage is achieved before bringing up polygamy. After all, in the argument this week about California’s ban on same-sex marriage, even Justice Sotomayor asked, “Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?” One of the arguments that those opposed to same-sex marriage regularly bring up is the “slippery slope” argument that once government begins to change the definition of marriage, who knows what “perversions” will be allowed? (This is known at Eschton as the “box turtle” argument for reasons too hilarious and too arcane to explain). And so, the argument will go, Coyle and other proponents of polygamy should be be careful not to give ammunition to those who make such arguments.
I disagree. First, Coyle’s right, legally and morally. Second, that argument reminds me too much of the argument that feminists heard for years: “Got to get rid of slavery, first. Got to win WWI, first. Got to get over the Depression, first. Got to cede jobs to the boys coming back home from WWII, first. Got to win civil rights, first. Got to get us out of Viet Nam, first. You ladies wait your turn, which will come, oh someday.” Third, it’s important to have voices out there working to shift the Overton window, helping the arc of the moral universe to bend towards justice. And, fourth, the days when one group of religions got to decide what legal rights the rest of America could have — those days need to end.
* I’m not providing legal advice in this post or on this blog. The views that I express here are solely my own and do not represent the views of any other entity.