Thursday, March 16, 2006

Tired arguments, lousy logic

I didn't really mean to have so many gay marriage posts in the last few days, but the issue just keeps cropping up.

It must have been a slow day for conservative columnist Katherine Kersten, because she devoted her entire allotment of newsprint to regurgitating one of the tiredest attacks on gay marriage -- that it will necessarily lead to polygamy.

Her argument:
But wait. What if a person loves two people, or three or more? If "one man-one woman" is a discriminatory limitation on the choice of a life partner, on what grounds can the state logically restrict marriage to two people? The fact is, once you adopt same-sex marriage -- legally changing the standard for marriage from one-man, one-woman to a "committed relationship" -- there is no principled way to prevent its extension to polygamy or other forms of "plural marriage" or partnership.

First, let's just note that in practical terms this is a straw man. The number of people who actively support polygamy are vanishingly few. It just isn't going to be legalized any time soon because there's no meaningful political pressure to do so.

But I'll play along.

Legally speaking, the major problem with preventing gays from marrying is that the government allows these two people to marry, but not those two people. The only reason for the different treatment is the gender of the people involved. That is presumptively discriminatory, and must be justified on practical grounds -- showing that the discrimination serves a legitimate government interest.

That is qualitatively different from saying any two people can marry, but any three (or more) can't. The situations are not the same, so treating them differently is less of a problem. You might still need to justify it, but the hurdle is far lower.

Logically speaking, polygamists can already make the "two vs. three" discrimination argument. That doesn't change just because we recognize two people of any gender and not just man/woman pairings.

Further, polygamy is a choice, not a condition. That makes it more susceptible to regulation than more ingrained characteristics such as sexual orientation.

Let's now get into the philosophy of gay marriage.

Philosophically, one can view gay marriage as "imposing" acceptance of homosexuality on an unwilling majority. But that implies that legality equals acceptance, which isn't a traditionally conservative viewpoint. A true conservative argues that citizens should generally be free to do as they please, and government intrusion should be kept to a minimum, stepping in only as much as necessary to preserve order.

Approval simply doesn't enter into it. What such a viewpoint defends is the concept of individual liberty -- not whatever each individual chooses to do with that liberty.

And that's all that allowing gay marriage would do. It's not forcing anyone to do anything; it's simply allowing homosexual couples to have the same rights and responsiblities that heterosexual couples do. There's no imposition in any meaningful sense of the word.

Having established those cases, let me now take up the separate question of whether polygamy should be outlawed.

Respect for individual liberty means that the only reason to ban a behavior is if it can be shown to be harmful. So before we get all upset about the prospect of polygamy being legalized, we should establish why it should remain illegal. If we can't show harm, there's no logical reason to ban it.

What harm does polygamy do? And is that harm sufficient to warrant government intervention?

I'm willing to believe that there are provable downsides to polygamy, but I can't think of one offhand. There are plenty of plausible arguments -- it subjugates women, for instance. But proof seems to be in short supply.

There are also practical arguments, such as an increased risk of welfare fraud or the need to rewrite a sizable chunk of our legal code to deal with multiperson marriages. Those are not philosophical objections, and would not be weakened by the existence of gay marriage.

That's the ultimate way to draw a line between two behaviors: show actual harm. Gay marriage opponents have repeatedly failed to show that gay marriage will be harmful to society. So they raise the specter of legalized polygamy as part of their rearguard action. Well, the solution to that is entirely in their hands: if they don't want gay marriage to lead to polygamy, all they have to do is show that polygamy is harmful. Do that, and I'll lead the charge to keep it illegal.

You know where to reach me.

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Anonymous Anonymous said...

Ah, fear-mongering raises its ugly head again. Unfortunately the tactic still seems to work. Now where have we seen it before...?
- Caracarn

3/17/2006 9:24 AM  
Blogger Sean Aqui said...

When haven't we seen it? It seems to be part of the human condition.

Many people who oppose gay marriage genuinely believe that homosexuality is wrong. I respect that. But to be written into law, their view must stand on more than personal belief.

3/17/2006 10:14 AM  
Anonymous Anonymous said...

True, fear-mongering is not something employed only by one group of people.
And you're right, modern law must be based on more than personal belief...especially in this information age. All in all, government should stay out of social issues and let the ebb and flow of culture decide for itself.
- Caracarn

3/17/2006 11:44 AM  
Blogger Sean Aqui said...

Well, yes and no. If government stays out of social issues completely, then the majority's personal belief rules by default. This may be fine in most cases, but when it's not the government *has* to step in with a logical, practical approach.

Gay marriage only fits the bill because the government involved itself in marriage. So to that extent, I agree with you: if government got out of the marriage business, there'd be no gay-marriage debate.

3/17/2006 12:50 PM  
Blogger Matt Parker said...

"the government *has* to step in with a logical, practical approach."

Umm - Have you ever seen the government do this? I mean really....

"if government got out of the marriage business, there'd be no gay-marriage debate."

This is actually the heart of the matter. Government is in the marriage business because there is a compelling civic reason to do so - namely to codify a contract that otherwise would have no legal standing and would result in civil courts making arbitrary and inconsistant decisions.

Gay marriage is now common enough that there is an entire cottage industry in the law world to provide the stack of legal documents design to give a couple the legal standing and rights that a single marriage certificate does. Honestly - it won't be long before the number of gay couples out there makes a compelling civic reason to codify that contract as well.


3/17/2006 5:45 PM  
Blogger Sean Aqui said...

Umm - Have you ever seen the government do this? I mean really....

I guess what I mean is that there are plenty of provisions in our republican form of government protecting individuals from the tyranny of the majority. The question is what issues should invoke that protection.

Government is in the marriage business because there is a compelling civic reason to do so - namely to codify a contract that otherwise would have no legal standing and would result in civil courts making arbitrary and inconsistant decisions.

I somewhat disagree. For most of its history marriage was simply a legal contract, without government or religious imprimatur.

It's only in relatively modern times that such things as marriage licenses appear.

The problem is that the government found marriage to be a convenient proxy for a lot of unrelated things, and gradually conferred more and more benefits and rights on married couples. That has led to the present situation, where the inequity in legal rights creates much of the pressure for gay marriage.

Yes, any two people can draw up legal documents that approximate many of the benefits of marriage. But they must go through hefty effort and cost to do so, and there are still many areas where they are helpless -- notably in the areas of taxation and immigration.

3/17/2006 6:32 PM  

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