A Defense of Marriage for Couples
by Ari Armstrong, January 18, 2007
Does gay marriage open the door to polygamist marriage? Until recently, I thought that perhaps it did. In an August 21, 2006, article, my father and I noted that, while marriage is a contractual matter and thus applicable only to people, we had not heard a "coherent case as to why gay marriage should be allowed but polygamist marriage should be outlawed." I again raised this point in an October 17 discussion with House Speaker Andrew Romanoff at Middle College High School in Denver. Last month, however, a brief conversation with Diana Hsieh convinced me that gay marriage (or "domestic partnership") rightly puts homosexual couples on equal footing with heterosexual couples, but it does not imply that polygamist marriage is appropriate. (While Hsieh inspired some of the ideas explained here, I don't know whether she'll agree with my analysis or conclusions.)
I'll begin with some comments about marriage as an institution. My thoughts on the topic have evolved over the last few years. In 2003, I lamented the fact that I'd obtained a marriage license. The goal should be to "get government out of marriage," I wrote. I quoted David Boaz, who wants to "put gay relationships on the same footing as straight ones, without implying official government sanction."
If the claim is that government should not favor any particular type of marriage, then, at first glance, that seems to imply that all sorts of (necessarily human) romantic relationships should be treated equally under the law. If there is heterosexual marriage, then there should also be homosexual marriage and polygamist marriage. If the state recognizes only contracts and leaves it to private groups to sanction "marriage," then again all sorts of romances should be treated the same.
Now I think that both of my previous views were basically wrong. First, the state does have a legitimate role to play in recognizing a marriage (or partnership) contract for romantic couples, whether heterosexual or homosexual. Second, the state should not recognize marriage contracts for polygamist groups. The discussion below provides important context and qualification. There may be some related issues that I haven't completely thought through, but I think this is a good start.
There are two basic competing defenses of marriage. The one I'll defend I'll call the "contractual basis of marriage." The one that I totally reject I'll call the "state interest in marriage."
In my 2003 article, I quoted then-State Representative (and current State Senator) Dave Schultheis: "The state needs strong marriages;" there is a "public interest to further marriage." He said homosexuality is an "unhealthy relationship for society," while heterosexual marriage promotes a "more healthy society."
Schultheis's view is essentially a collectivist one. The standard is "society" or the "public interest." In this view, the role of government is to promote the interests of society (however that's defined). Interestingly, Schultheis even offered a collectivistic defense of gun ownership.
Last year, Jennifer Roback Morse argued "that legalizing same sex marriage would open the door to legalizing polygamy." She quoted a Canadian document that urged "researchers [to] explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society." To Morse, polygamy obviously harms all those things.
Thus, Morse also offers an essentially collectivist defense of heterosexual, monogamous marriage. Furthermore, Morse suggests that both gay marriage and polygamy are rooted in personal subjectivism; she derides the characterization of polygamy as "just another life-style choice."
This generates an unfortunate false alternative between the subjective whims of the individual and the allegedly objective interests of the collective, or "society." The subjectivists and the collectivists agree that non-heterosexual romantic relationships are merely a matter of personal preference. The subjectivists argue that the state ought not discriminate against personal preferences, and thus it should allow both gay and polygamist marriage. The collectivists argue that the state should discriminate against personal preference for the betterment of society.
Janet LaRue joins Schultheis and Morse in invoking a collectivist defense of marriage. LaRue writes, "Maybe a whole lot of us need to care more about morality and the greater good of society and children in particular than we do about our self-centered obsessions about how 'fair' and 'loving' we're perceived to be."
LaRue also thinks that polygamy is the inevitable result of gay marriage: "Polygamists are pushing the paradigm by arguing that if Heather can have two mommies, why not two mommies and a daddy?" She continues, "When society and its courts think 'fairness' and 'tolerance' trump morality, the laws of God and what's best for children, what will stop polygamists from marrying?" Furthermore, LaRue thinks that the political movement for gay marriage is a ploy to advance a broader agenda: "Who doesn't know that you have to hide the playbook if your goal is to negate marriage by taking a duped and desensitized society down the slope slide by slide?"
But LaRue doesn't consider the slippery slope on which she finds herself. She describes as "a cluster bomb" the Supreme Court ruling that "declared unconstitutional a Texas law that prohibited homosexual sodomy in the privacy of the home." LaRue doesn't come right out and say that she favors such laws, but she certainly dislikes the way in which they were overturned. If the legal standard is "the laws of God" and the interests of "society," then perhaps more stringent laws against homosexuality and other sorts of "deviant" sexual practices are in order. LaRue's entire approach undermines individual rights and opens the door to the totalitarian state.
"Libertarian" John Stossel understandably rejects the collectivism of the religious right. However, in rejecting the collectivist case against polygamous marriage, he overlooks a stronger case against it, one based on individual rights. One interviewer asked Stossel about polygamy: "In your book you have some good words to say about polygamy." Stossel replied, "Right. I don't think it's good to enslave children in it. But when it's consenting adults, I say let them."
Unfortunately, Stossel is confusing two issues. On one hand, the government should allow consenting adults to have sex with whomever they please. The government simply has no legitimate role to play in regulating the sexual activities of consenting adults. Individuals have the right to decide what to do with their bodies, and that includes sexual activity. The idea of "consenting adults" generates a number of restrictions, and the government does have a legitimate role in upholding those restrictions. Adults involved must actually consent. Minors are excluded, on the basis that they do not yet have the intellectual capacity to enter into such agreements. (This is not to say that there is a clear line at age 18; obviously, in certain contexts, older teens may legitimately consent to having sex. The law here is necessarily complicated.) And consenting adults may not have sex in a way that violates the property rights of some other party. Generally speaking, though, the government ought not persecute consenting adults for having sex of any sort.
But there's a big difference between not prosecuting consenting adults for having sex, and recognizing marriage contracts among polygamists.
In his review of Stossel's book (Myths, Lies, and Downright Stupidity) Gary Jason distinguishes between "just allowing men to have relations with numerous women simultaneously and sire offspring by the dozens" and "sanctioning this officially" (Liberty, February, 2007, page 41). But then Jason also invokes the standard of collectivism regarding marriage; he calls for studies of the "psychological cost" to children of polygamous unions and "studies exploring the effect of polygamy on society as a whole."
However, if the only justification for marriage is collectivism, then this would allow a much greater role for the state in heterosexual marriage, too. If the point of marriage is to improve "society as a whole," then shouldn't the government require extensive screening and training for those seeking marriage? Shouldn't the state strictly regulate divorce and allow it only in the interests of society? Shouldn't the state also strictly regulate who may have children? How many children? How they must be raised and educated? Furthermore, if the legal standard is the betterment of "society as a whole," then Jason has no grounds to distinguish between "private" activity and "officially sanctioned" activity. If private activity undermines "society as a whole," surely the state should strictly regulate it, according to Jason's standards. It seems that Jason must logically end up in LaRue's camp.
So what is the alternative? The legal standard should be neither subjective whim nor collective whim, but individual rights. As Ayn Rand explains, individual rights form an objective moral basis for the political system and the law. While it is true that individuals have the right to behave immorally, so long as they do not violate the rights of others, the vastly more important consideration is that individual rights establish the framework for each individual to take objectively moral action consistent with his life in a social setting. (This is but a summary; see Rand's works for the full argument.)
The sole legitimate function of government is to protect individual rights. This is an eminently moral function. However, the government turns against its proper moral function when its agents seek to restrict non-rights-violating behavior, whether for the cause of "God's law" or "society as a whole."
In terms of romantic relationships, the proper role of government is clear. It is to protect the rights of adults to consent. The initiation of force, whether by a common criminal or a government agent, is outlawed. The government also properly acts against fraud. For example, if somebody knows he has AIDS but fails to inform a sexual partner, that undercuts the requirement of "consenting adults." Finally, the government properly recognizes and upholds contracts. This is the proper basis of marriage.
Is there, then, an objective basis for restricting marriage to couples? I think so.
Let us begin with the obvious fact that heterosexual marriage is among the most enduring and popular institutions of civilization. There are good reasons why this is so. I'll highlight a few of them.
* Gender is a fact of physiology (though gender is ambiguous for a tiny fraction of the population). The act of sex is most readily accomplished between one man and one woman.
* Pregnancy is the result of the union of one man and one woman (though these days the union can be indirect). Generally, though this admits of many exceptions, the two people responsible for physically generating a child are the ones most interested in raising the child.
* Two people are particularly well-suited for cohabitation. Two people who form a couple can share their goals and dreams, share expenses, share the work, share the responsibilities of children, and compensate for the weaknesses and possible illnesses of an individual. However, bringing in more than two people tends to generate all sorts of problems. It's hard enough for two people to agree about things; every additional person brings a new set of ideas and goals. Problems of agreement expand dramatically with the third person.
What is accomplished with a heterosexual "marriage?" A marriage is a sort of contract. It specifies what is expected of each party, and it creates certain legal obligations and rights. For example, by default (absent some additional legal documentation) upon death all of one's possessions go to the spouse. One may not be forced to testify against a spouse. Both parents have certain legal rights regarding children. If one spouse leaves, he or she may continue to have certain, legally-enforced obligations toward the other (such as child support).
Of course, people are properly free to live together, have children, and so on, without formally entering into a "marriage." (They do so all the time.) Yet marriage need not be as formal as I'd once thought: in Colorado and I think many other states, two people may simply declare themselves "married" (with certain restrictions) to make it so.
That there is a moral and legal basis for heterosexual marriage is not very controversial, though there is an important debate about whether marriage is justified by collectivism or individual rights. Homosexual marriage (or "domestic partnership") is much more controversial.
What about gender? Homosexual couples obviously have sex. While sex between one man and one woman might be considered the physiological default, many same-sex couples have fulfilling sex. So gender alone does not seem to raise a barrier to same-sex marriages.
What about children? The first thing to note is that having children is not the primary basis for heterosexual marriages. Many heterosexual couples have very fulfilling marriages without having any children. Offhand I don't know the statistics, but a large number of heterosexual couples choose not to have children. I suspect that an even larger fraction of homosexual couples refrain from having children. The raising of children is central to couples who choose to have them, but it is not a necessary part of marriage.
What of claims that children raised by homosexual couples are disadvantaged in some way? I tend to think that such claims are overblown if not entirely mythical. However, it is an obvious fact that some homosexual couples raise children much better than do so some heterosexual couples. It is simply inappropriate for the government to define legal rights based on statistical averages. To take another example, if the children of some racial minority were (on average) found to be disadvantaged, that would not justify state discrimination against individual members of that minority group.
Let us accept as a reasonable hypothesis that children tend to do better when raised by a man and a woman. Yet the state does not (and ought not) discriminate among heterosexual couples based on which couple is more likely to remain together. Is a single mom or dad better than a responsible, committed homosexual couple?
Here is the more important point: it is not the business of the state to raise people's children. Children have rights (though not fully developed ones), and the government does play a legitimate role in protecting those rights (most notably by preventing physical abuse). The government has no legitimate role in setting policies for raising children. By hypothesis, being raised by one man and one woman is a statistically significant factor in a child's well-being. This allows for numerous cases in which homosexual couples compensate for this; say, by making the sure the child spends lots of time with a role-model of the other gender. There are many other factors that impact child development, ranging from diet to education to television viewing to books in the home to education of the parents. Moreover, I suspect that many of these factors are much more important than the gender of the parents. If the government is going to get into the business of regulating marriage based on what practices are better (on average) for the child, then there is practically no limit to government involvement in child rearing.
Perhaps the religious right should notice that parental ideology also plays a massive role in the development of a child -- surely a much greater role than parental gender. I would contend that parents who raise their children to be deeply religious are far more dangerous to their children than are parents who happen to share the same gender. Do we really want to get the government into the business of regulating romantic relationships and child rearing based on what the agents of the government deem is best "for the children?" That is a frightening road.
The upshot is that children pose no real problem for homosexual marriages. The remaining point under consideration, the ability of two people to join their lives for mutual benefit and happiness, supports gay marriage. As with heterosexuals, homosexuals can join their lives into a happy, productive, long-term, committed partnership. They deserve to have their relationships recognized by the government as a matter of contract on par with heterosexual couples.
What about polygamous relationships, then? Morse argues that the practice "makes [women] more subservient... They must also compete on behalf of their children. They have to compete for their husbands' time, attention and resources." Morse adds, "Polygamous societies are extremely common over the course of world history. I seriously doubt that even the most ardent defender of polygamy could not show a single, actually existing society, in which women are even close to being equal to men." Monogamy, on the other hand, "has brought about equality between men and women," and also between men and men by overturning the system in which "the rich guys hog all the desirable women."
There's a lot to Morse's comment on history. However, this is no good argument against polygamous marriage. After all, historically as well as today, many monogamous relationships have served to keep women subservient. And multi-partner romantic relationships, whether involving more men or more women, can maintain equal standing of all parties.
Yet there is a better argument against multi-partner romantic marriages. The basic case is that there is no clear way to define legal rights among multiple romantic partners. Therefore, there cannot be a "marriage" relationship as with couples.
Let us take the example of inheritance. With a couple, this is easy to define. If one spouse dies, the other spouse gets everything (again barring some more elaborate legal documentation). But if one member of a threesome dies, what happens then? Is the inheritance split evenly? Does the "first spouse" get more? Add even more partners, and the complications expand exponentially.
Moreover, multi-party romantic relationships are bound to be less stable. If Jack and Jill are married, and Jack gets a great new job in Houston, Jill is likely to follow him. However, if Jill also has a great job near all her family and friends, she may persuade Jack to stay put. Such decisions are incredibly difficult for two people, even though the benefits of the partnership outweigh the problems. But when more parties are added to the mix, the problems become much more difficult, while the benefits tend to decline. If Jack has to persuade not only Jill but Betty to move to Houston, there's a much higher chance of a breakup. Meanwhile, both Jill and Betty are already less closely connected to Jack, simply because of Jack's limited time. Probably Jack is at least having more sex than the other two -- or they are having more sex together, which again weakens the relationship with Jack. The upshot is that multi-party "marriage" would not be as stable, yet the whole point of contractual relationships is to provide stability.
It is simply impossible for three or more people to mesh their lives as tightly as two people can. And the potential for conflict increases dramatically with each additional partner. So, as the bonds become less secure, the tensions on those bonds become greater. This is not a recipe for stable contractual relationships. Thus, there is good reason for the government to recognize romantic contracts for couples but not for multi-party groups.
Again, the government has no business persecuting consenting adults for living together or having sex together. If Jack, Jill, and Betty want to shack up and even adopt a child, that's inadvisable but, properly, legally permissible. That doesn't mean the government should recognize them as "married."
If a man tries to "marry" a woman without her consent, then the government should step in. The same goes for a minor who doesn't have the maturity to consent. If someone tries to fraudulently maintain a "marriage" with two spouses, again the government may step in. Finally, if a multi-party group wishes to draw up specialized legal documents defining issues such as inheritance, that is their right. But that shouldn't legally be considered marriage.
The foundation of marriage is not collectivism, the law of God, or the alleged interests of "society as a whole." The foundation of marriage is the right of people to join voluntarily into unions for their own benefit and happiness. Marriage is a sort of formalized contractual relationship between two people committed to a long-term, romantic relationship. There is good reason to treat heterosexual couples and homosexual couples the same in terms of marriage law. This is not a matter of subjective whim but of objective legal principle. Multi-party romantic relationships are inherently unsuited for recognition as marriages, though they should not be banned or penalized by the government. It is true that the government serves a moral function, yet it does so only by protecting individual rights. That is the only basis upon which a proper theory of marriage can be built.