The Wheatley Institution

What Follows for the Family - Logically & Psychologically - From Re-defining Marriage

Robert P. George
March 23, 2016

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I want to explore the logical and psychological consequences of redefining marriage. Let me begin this way. The Youngs are women in a committed relationship who love and care for and look after each other.[1] They share domestic duties and financial responsibilities. They share a bed and a sexual partnership. They have a child, courtesy of sperm donation and in vitro fertilization. They intend to have two more. They were united in a ceremony in which they wore beautiful white wedding gowns—I have seen the pictures—and were walked down the aisle by their fathers. They are just like any ordinary Massachusetts opposite-sex or same-sex married couple, only they are not a couple. Doll, Kitten, and Brynn Young are a throuple, a three person unit. Massachusetts, like other states, does not recognize as marriages polyamorous unions, that is, unions among three or more persons, romantic partnerships with multiple partners. At least, Massachusetts and other states do not recognize those unions yet. Doll and Kitten and Brynn think that that is unfair and should change. They want marriage equality for themselves and other polyamorous families. They are proud that their home state of Massachusetts was in the vanguard of legally recognizing same-sex partnerships as marriages (thanks to the intervention of the liberal-dominated Massachusetts Supreme Judicial Court), but they insist that the same principles that generated what they and most liberals, and it seems more than a few conservatives these days, believe to be marriage equality for gays, should produce the same result for other sexual minorities, especially polyamorous people like themselves. “After all, if gender doesn’t matter for marriage,” they ask, “why should number matter?” If “love makes a family,” as the very successful slogan has it, then why should their family be treated by society and under the law as second class, indeed second-rate, as not a “real” marriage? Why should their marriage be denied legal recognition, and the dignity and social standing that come with it? Doll, Kitten, and Brynn love each other and are as committed to each other and their child and their future children as, say, Donald Trump and his third wife or Elton John and his husband. You know how that argument goes. They find fulfillment in their long-term sexual partnership, just as opposite-sex and same-sex couples find fulfilment in theirs. The dignity of their relationship, not to mention their own personal dignity, is assaulted, they believe, when their marriage is treated as inferior and unworthy of legal recognition. “And to what end,” Brynn and Kitten and Doll ask, “is our child and future children stigmatized?” How does it harm the marriage of, say, John and Harold, the couple next door, if the commonwealth of Massachusetts recognizes the Youngs’ marriage? Indeed, what justification can be given? What legitimate state interest can be cited for dishonoring Doll, Kitten, and Brynn and their marriage? “Surely,” they say, “the only explanation apart from religious scruples of some sort, the sort that may not constitutionally be imposed by the state, is animus, a bare desire to harm people, people who are different.”

Some of you will recognize the concept of animus and the bare desire to harm people from the opinions of Justice Anthony Kennedy of the Supreme Court of the United States in this area. You will notice that the arguments, to the extent of their success, are as successful when invoked by Brynn, Kitten, and Doll, as when invoked by John and Harold, or Sally and Jill. Over the past couple of years, a number of mainstream websites, newspapers, and magazines—Salon, Slate, USA today, Newsweek, the Atlantic, People magazine—have all run sympathetic stories about polyamory. Newsweek reports that although polyamory remains unconventional, it is far from unheard of. There are,” Newsweek says, “approximately 500,000 polyamorous households in the United States today.”[2] Polygamists and polyamorous relationships, often with children in the picture, are depicted as just one more historically misunderstood, and often victimized, way of being a family. The polyamorous partners profiled in these stories sometimes weave discussion of the ordinary challenges and simple joys of domestic life—dealing with disagreements, getting the kids to do their homework or to practice the piano, celebrating birthdays and other special occasions—together with peek-a-boo accounts of what it is like for throuples or larger polyamorous units (quadrads, quintets) to share a bed and have sex. I should point out that there is a difference between polyamory and polygamy. Polygamy, of course, is well-known historically and practiced by the prophets, practiced by Mormons in the nineteenth century. Yes, polygamy is fairly well-known historically. Polyamory is not. In polygamy, the most familiar form is polygyny, where a man is in several different marriages. Joe is married to Jill in a marriage and Joe is married to Sally in a marriage, and Joe may be married to Nancy in a marriage. Polyamory is different. In polyamory, Joe and Jill and Sally and Bill and Nancy are all married as one sexual unit. One marriage, one happy family, one big party—they have got to invent something bigger than a king size bed.

Now not long ago, the New York Times published an essay by the University of Chicago law professor, William Baude, urging readers to keep their minds open toward multiple-partner sexual relationships.[3] He noted that they could have some advantages over monogamous partnerships—for example, more parents are available to look after the kids and share domestic duties. He easily identified the weaknesses of the arguments made by writers like Richard Posner who oppose multiparty marriages but support redefining marriage to include same-sex partnerships, the kind of people who think they can draw the line at same-sex unions. “We should remember,” Baude observed, “that today’s showstopping objections sometimes come to seem trivial decades later. Very few people supported a constitutional right to same-sex marriage when writers like Andrew Sullivan and Jonathan Rauch were advocating it only two decades ago. (Judge Posner, for example, did not.) As we witness more experiments with non-nuclear families, our views about multiple partner marriages might change as well.”[4] Many polyamorous people say that their desire or felt need for multiple partners is central to their identity and that they have known from an early age that they could never find personal and sexual fulfilment in a purely monogamous relationship or a purely monogamous way of life. The message is that polyamorists are the next sexual minority whose human rights, including of course the right to marriage equality, must be honored. They are following to a T the playbook that same-sex marriage advocates created, and they are doing it in the cause of mainstreaming polyamory and putting in place the cultural predicates for its legal recognition—things like planting sympathetic articles in USA Today,[5] People magazine, the Atlantic,[6] Newsweek,[7] and so on. The most recent polling has it that a quarter of our fellow citizens are now prepared to recognize polyamorous marriages.[8] Think about that. Twenty-five percent of the public. Twenty-five percent of the general public are prepared to recognize polyamorous marriages, and—get this one—among religiously unaffiliated citizens, whose numbers are climbing in the United States, the figure is 58%.[9] If a candidate wins a presidential election with 58% of the vote, that is considered an overwhelming landslide. Fifty-eight percent of our religiously unaffiliated citizens say, “Yes, we should legally recognize as marriages three-party or four-party or five-party unions.” These percentages, I want you to note, represent far higher levels of support than same-sex marriage had within the memory of many people living today, and not just the oldest like me.

For years of course, many advocates of sexual freedom and same-sex marriage counseled against openly advocating polyamory, for obvious reasons.[10] You do not want to frighten the horses. But not everyone listened. Arizona State professor, Elizabeth Brake, for example, who is a prominent advocate in the world of academic philosophy for broadening the historic understanding of marriage, has for many years promoted what she calls minimum marriage in which, and I quote her, “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.”[11] Judith Stacey, if anything an even more prominent academic, a New York University professor who is in no way regarded as a fringe figure, also let the cat out of the bag in the course of testifying before Congress against the Defense of Marriage Act. Now remember, she was the witness, or among the witnesses, that the pro same-sex marriage side put up in Congress. That is how respectable she is. She was somebody they thought would be able to sell ordinary representatives and senators. Well, here is what she did. She expressed the hope that redefining marriage would give it, and I quote, “varied creative and adaptive contours, leading some to question the dyadic limitations of western limitations of western marriage,” (dyadic means two) “and seek small group marriages.” [12] I guess you are sort of conservative if you want them to be small group marriages; not sure why she wants to keep it small. Indeed, as far back as a decade ago in a statement then titled, “Beyond Same-sex Marriage,” more than 300 self-identified LGBT and allied scholars and advocates called for legally recognizing as marriages or the equivalent sexual relationships involving more than two partners. [13] Among the signatories were such influential figures on the Left as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino. These and other open advocates of polyamory and its legal recognition now look like they were ahead of their time. With USA Today, Newsweek, People, the Atlantic, and other respected publications sympathetically presenting polyamory, more and more polyamorists and allies of their cause will feel safer in coming out. The politicians are not there yet, of course, but in this late season of our experience, we all know that they are almost always among the last to arrive at the party. Soon enough, a small number will break the ice, though, just as they did on same-sex marriage. They will initially be members of the Massachusetts and Vermont delegations, I predict. They will, to use President Obama’s famous description of his own flip-flop on same-sex marriage, evolve.

The late and extraordinarily influential legal philosopher and constitutional theorist Ronald Dworkin, a champion of aggressive judicial action to advance liberal causes, taught that law is fundamentally about a society making commitments to certain moral principles and working out their implications over time.[14] I was one of the students sitting in Professor Dworkin’s classrooms, and he could make a very powerful case for this idea of law. Fundamental to that enterprise is treating like cases alike. The heart of the case for same-sex marriage was that gender differences, or what used to be called sex differences, are irrelevant to what marriage actually is, namely a form of committed sexual-romantic companionship or domestic partnership. The challenge for same-sex marriage supporters is either to accept polyamory on the basis of the very same vision of marriage—sexual-romantic companionship or domestic partnership—or to offer a new and more specific vision, one that can explain why number is relevant, but gender is not, why marriage has to be two and cannot be more than two, although it can be same-sex or opposite sex. Pushed by the logic of the position, very soon people who are holding the line, wanting to affirm same-sex marriage but not polyamory, will yield. It seems to me that there is a powerful psychological pressure to follow the logic of one’s beliefs when other people are pointing out inconsistencies. Even as an increasing number of so-called marriage equality supporters agree that the time for recognition of polyamorous marriages has come, some still try to avoid the question. Only a few have been willing to hold the line as a matter of principle, at least in the academic world. Marriage is, as a matter of principle, a two-person partnership, so unions of three persons ought to be denied the dignity of legal recognition. Lots of people want to dodge the question, and very few people actually want now to come out and say what is in fact inconsistent to say, that they believe marriage should be same-sex as well as opposite sex, but it should be limited to two and not expanded to three or more. The trouble for these folks is that they cannot come up with anything approaching a plausible argument, having adopted a conception of marriage as essentially sexual-romantic companionship or domestic partnership, so that you can say two persons of the same sex can marry. If that is in fact what marriage is, and that is all marriage is—sexual-romantic companionship or domestic partnership—then yes, two persons of the same sex can marry. They can feel affection for each other, make a commitment to live together and care for each other, and take joint responsibility for domestic household, believe that sexual play together will enhance the quality of their relationship. Sure, on the sexual-romantic partnership conception of marriage, two persons of the same sex can do that as well as two persons of opposite sexes, but so can Brynn and Kitten and Doll or any three or four or five persons. If that is what marriage is, number cannot matter any more than gender matters.

Now, those who do want to draw that line sometimes try to make something out of the alleged fact that homosexuality is a sexual orientation, as they call it, but polyamory is not. Who said that was a fact? Brynn and Kitten and Doll deny it. What is a sexual orientation? Who discovered it? The concept or construct of sexual orientation, as our psychologist friends can tell us, is not ancient. Same-sex relations were well known in the ancient world, and in some places commonly practiced. In some places, they were commonly practiced without moral qualm or were even encouraged. But the concept or construct of sexual orientation is a modern one from roughly the nineteenth century on, out of which now a great deal has been made. If there really is something corresponding to that concept that the ancients did not know about, someone must have discovered it. Who? By what methods? Scientific? That is the claim, that science tells us that there is the thing sexual orientation. Well, I would like to see the experiment. I would like to see the application of scientific methods that yielded that result. Why does it yield the result for same-sex orientation, but not for polyamorous orientation? Try to explain it not just to me, but to Brynn and Kitten and Doll. Or there are sometimes folks who want to have it both ways, who point to practical difficulties in administering principles of family law for partnerships involving more than two: “Oh, it all gets very complicated, doesn’t it, if we allow three or more, so we should keep marriage at two.” Occasionally you will hear an advocate of same-sex marriage who opposes polyamory say, “A person cannot fully give himself or herself to two people, as he or she can to one person.” Even more rarely, someone will suggest that polyamorous unions are not psychologically or morally appropriate for bringing up children. Once you have conceded the basic idea that marriage is a sexual-romantic companionship or domestic partnership, none of those arguments is going to work. They all look like bootstrapping. They all look like just trying to keep the door shut, so that something that, for now, some people still think is “icky” cannot get in.

From the perspective of polyamorous people and their allies, all of these arguments are weak to the point of being contemptable, thin rationalizations for excluding them—the Brynns and Kittens and Dolls of the world—from a recognition in status that others in relevantly similar relationships are given. For poly people, being poly is as central to their identity and being in polyamorous relationships is as vital to their fulfillment as being gay and being in a same-sex partnership is for persons who are sexually or romantically attracted to persons of the same sex. Polyamorists object to being the sexual minority that gets thrown under the bus, forced to settle for a relationship that fails to fulfill them or respond to who they really are, or be denied the social support and legal recognition that other people’s relationships receive. As for those practical problems, polyamorists note that modern law in a wide variety of areas deals with complexities far greater than those that legal recognition of Doll and Kitten and Brynn Young’s marriage would pose. Administrative burdens are, they observe, no basis at all for denying them their basic civil right to marry. They find it insulting when non-poly people claim that being polyamorous is not central to their identity and fulfilment, or assume that people like Doll and Kitten and Brynn cannot give themselves as fully to each other as gay or straight monogamous people do. Based on their personal experience and what they know from the experience of other poly people, they also reject the view that being in a multiple-partner union increases the likelihood of marital problems arising from jealousy. To them, this is stereotyping, sheer prejudice dressed up in scientific or social-scientific garb. Finally, they are not buying the idea that polyamory would unavoidably, or in the modern world, even frequently, lead to women’s subordination. In any event, why should their rights to be who they are and to have their relationship honored and their children protected, be held hostage to the fear that other people will conduct their marriages in morally bad or psychologically unhealthy ways? If forms of patriarchy that were common in most societies in the past provide reasons to limit marriage, say, to two persons, they equally provide reasons to abolish marriage altogether. So, they argue, if you are going to have marriage and recognize marriage for some, it has got to be for all, and poly people cannot be left out or thrown under the bus.

The case for polyamory and its legal recognition presupposes that marriage is, in fact, what the advocates of what they call marriage equality have depicted it as being: again, committed sexual-romantic companionship or domestic partnership. This is precisely what has been denied by defenders of what used to be known as marriage and is now called traditional marriage—that is, the union of husband and wife. Those defenders are most assuredly right when they say that the new idea of marriage—marriage as a sexual-romantic companionship or domestic partnership—is not an expansion of marriage, but is rather a redefinition. It is a genuine innovation. It is not just bringing more people aboard. It is one that treats what has historically been regarded as a relevant difference, a centrally relevant difference, namely sex or gender, as if it were irrelevant, not central to the very idea and social purposes of marriage. Now, in law and culture, at least the law and culture of the West (although I think it is very much the same in other nations and cultures of the world, including in the East), marriage has historically been understood as a conjugal union, a union in which a man and woman consent to unite in a bond that is (1) founded upon their sexual reproductive complementarity as male and female; (2) specially apt for and would naturally be fulfilled by the couple, the spouses, having and rearing children together; and (3) consummated and renewed by acts that unite the spouses as a reproductive unit (in biblical terms, “one flesh”) by fulfilling the behavioral conditions of procreation, whether or not the non-behavioral conditions happen to obtain. That is why historically in our law and culture, religious as well as secular, marriage could only be consummated by an act of coitus. But marriage was consummated by that act, whether or not a child was conceived or could have been conceived, even in the case where, say, due to a wife being past childbearing, a child could not have been conceived. Still, the marriage is consummated, precisely by the sort of act that is apt for procreation, the sort of act that fulfills the behavioral conditions of procreation, whether or not the non-behavioral conditions obtain. Behavioral conditions are conditions over which human beings have agency. Non-behavioral conditions are those over which they do not.

Those were the three crucial elements of marriage as historically understood in our law and culture, which distinguish it from the contemporary rival idea of marriage as sexual-romantic companionship or domestic partnership. The historic understanding of marriage is child-centered and yet it does not instrumentalize marriage to the great good of having children. Marriage is rather the kind of union that would naturally be fulfilled by having and rearing children together, a union that can be entered into precisely under that description, even by a man and woman who cannot, let us say because of the infertility of one or both spouses, have children. Participating in marriage as a conjugal union is regarded as, in our law and culture, inherently humanly fulfilling. That is why marriage is not, as we have historically understood it, a merely instrumental good, whether it is instrumental to personal fulfillment or instrumental to having children. It is regarded rather as an intrinsic or constitutive aspect of human well-being and fulfilment, an intrinsic and not merely instrumental good, valuable not merely as a means to something else, even the great good of having and rearing children, but in itself. Although of course, children are a blessing that come when properly conceived in the bond of marriage, and children are participating perfections of their parents’ marriages. So marriage is not separated from children—it is still centrally concerned with children and child-rearing—but it is not merely instrumentally valued, even to the great good of having children. It remains intrinsically valuable

The idea of marriage as a conjugal union explains the structuring features of marriage in our moral and legal traditions, including the rules of consummation, including annullability for non-consummation but not for infertility. Notice that feature of our law of marital consummation. A marriage can be annulled—we are not talking about a divorce here, we are talking about a legal declaration that the marriage was never completed—for non-consummation, but it cannot be annulled for infertility. Say a man desperately wants to have children. He marries a woman. It turns out the woman would love to have children, but biologically there is some impediment and she cannot have children. They consummate their marriage, he goes to court, whether it is a religious court or a secular court, and seeks a declaration of nullity. The answer the court will give is, “Nope. The marriage was completed—it is a true marriage when it is consummated, not when a child is conceived or born.” The result is the opposite in the case where a marriage has not been consummated. Then—even though the ceremony has been entered into, the license has been signed, sealed and delivered, and so forth—non-consummation can be a ground for declaration of nullity. It tells you something very important about what marriage is. It is not mere sexual-romantic companionship or domestic partnership, nor is it merely instrumental to having children. It is rather a one-flesh union, a union made possible by the biological sexual complementarity of man and woman, a complementarity whose natural end, of course, is having children.

We can see that if we just do a little thought experiment. Do you have a digestive system? Everybody has a digestive system. Do you have a neural system? Everybody has a neural system. Now you know something is coming, right? Do you have a reproductive system? You have half a reproductive system. For the purposes of most human activity, the act is performed by a human being as an individual: locomotion, speech, digestion. Notice that reproduction is different. It is a single act, but it is not performed by the individual, but rather by the man and woman precisely as a mated pair. Each has half the system needed for reproduction. When they unite, they unite as one flesh for purposes of reproduction. Not for all purposes. Husbands and wives do not cooperate in the processes of digestion and locomotion, but they do cooperate for reproductive purposes. They do cooperate when they perform acts that fulfill the behavioral conditions of reproduction, whether or not those acts are procreative in the end. We can see that, too, with a little thought experiment. The farmer or the scientist, the anatomist, can tell when the bull and the cow have mated before waiting to see whether a calf is produced, right? The farmer knows when they have done the mating. He does not have to wait to see whether there was a calf, whether the mating was successful in the sense of the calf being conceived and born. He knows when the mating takes place. We also know the following. Sometimes, whether it is the act initially consummating the marriage or a later marital act, we can know what kind of act the act is, and whether the act has taken place, despite the fact that whether the act will in the end produce a child may be dependent on something that has not even happened yet. Sometimes an act will or will not be procreative, depending on something that happens later than when the act was performed. The act cannot be one kind of act rather than another depending on something that will happen in the future. It is an act that unites the spouses as one flesh now. That is fundamentally what marriage is.

Marriage is not only the biological aspect of things. Marriage is rather a comprehensive sharing of life. Where the argument for same-sex marriage and polyamory goes wrong is in supposing that marriage is a sharing at the affective level and at the affective level only. Marriage is a union of hearts and minds and if that is true, you do not need a man or a woman, you can have two men united in heart and mind, two women, or three women like Brynn and Kitten and Doll, or a guy and two women, or two women and a guy or four or five. They can have tender feelings for one another, want to do things together, maybe one of the things they like to do together is sex, maybe it is not, maybe they like to go bowling instead, it does not matter. That is the level at which you can make sense of “marriage” as a same-sex or multi-partner relationship. But if marriage is what the supporters of conjugal marriage believe it is, if it is what historically our law and culture have always embodied, then marriage is a comprehensive sharing of life—yes at the affective level, but also at the bodily or biological level. The biological unity made possible by sexual complementarity is the foundation and matrix of the comprehensive sharing of life—that is, the sharing of life at every level of human being: the biological, the emotional, the rational, the dispositional, and, as religious people believe, the spiritual. Notice the profound difference between those two conceptions of marriage, and you will come out one way rather than another depending on which of those conceptions you believe is true. You will come out in favor of same-sex marriage or multi-partner marriages if you believe marriage is fundamentally a union of hearts and minds, a union at the emotional or affective level, and in a different way if you believe marriage is a comprehensive sharing of life grounded on the biological aspect of our being as human beings.

On the conjugal understanding of marriage, persons are conceived as unities of body and mind, and marriage as uniting spouses at all levels of being, the biological as well as the affective and rational and dispositional and spiritual. Acts of bodily union fulfilling the behavioral conditions of procreation are the distinctive completion and seal of this uniquely comprehensive unity, which is why the law always made such a big deal out of consummation. From the point of view of the alternative sexual-romantic companionship view of marriage, the idea that the law ever made a big deal out of consummation must be utterly perplexing. People must think that the people in the past were just really weird. Why would they think consummation mattered? But from the conjugal point of view, the point of view of conjugal marriage, you can see why it centrally mattered. These acts do not just produce feelings of intimacy, feelings at the affective level. They literally, literally embody. They embody the spouses’ marital unity by making them one flesh, by making them a biological, and not merely emotional, unit with everything else—the emotional, rational, dispositional—founded on the biological unity. Sex is thus integral to marriage, which is part of what distinguishes marriage from other forms of companionship.

One problem with the sexual-romantic companionship view of marriage (the view of marriage that will give you same-sex marriage or multi-partner marriage or what have you) is that it is hard to explain on that understanding of marriage what is distinctive about marriage, why it is not just like other forms of friendship, maybe just with more emotional intensity. Those are different in degree, but not in kind. On the conjugal understanding, you can see exactly the difference. It is a difference not merely of intensity of emotions, but a difference of kind. You can distinguish marriage from all sorts of other friendships, no matter how wonderful, intense, close they are. On the conjugal understanding of marriage, marriage cannot be understood simply as your relationship with your number one person. On the alternative view, that is just what marriage is. As John Corvino, a well-known philosopher who was a defender of same-sex marriage, says when pressed to define what marriage is, “Marriage is simply your relationship with ‘Your Number One Person.’”[15] As a conjugal relationship, rather, marriage is the type of bond that is ordered to procreation and would naturally be fulfilled by spouses having and rearing children together, the point I made earlier. On the conjugal understanding, marriage is the relationship that unites a man and a woman as husband and wife, to be father and mother to any children who may come of their union.

Now what about the social role of marriage? Why should the law be involved? Why should we care about marriage as a legal institution? The social role of marriage, if you accept the conjugal understanding, is to maximize the odds that children will grow up in the context of the committed love, the matrimonial bond of the man and woman whose actualization and renewal of that bond in sexual intercourse brought them life; the children will be linked to their parents and to their parents’ families. It ensures that as many children as possible will be reared with the advantages of both maternal and paternal role models, influences, and care. A large part of the project of trying to defend same-sex marriage is to try and show that male and female parents, mothers and fathers, are interchangeable, that there is no difference between mothers and fathers, no difference between males and females that cashes out at the level of when people are mothers and fathers. When it comes to the social importance of marriage under the conjugal view, it is predicated on the idea that it is a good thing for children to have both maternal and paternal role models, influences, and care. I have noticed in my own debates with people on the other side of this question, very frequently the importance of having role models is silently or implicitly acknowledged. I was discussing this issue with a woman who is in a same-sex relationship with another woman. They have a child that is the biological child of one of them, and she told me that she thought that it was very important for her child and very useful and valuable, that her father, the grandfather of the child (I am not sure that it was the biological grandfather, but it was a male figure), was in the life of the child. Well, I agree. But I agree because I think it is important that there be male as well as female role models and examples giving the kind of care that is characteristic of men and women. I love grandfathers and having grandfathers around, and I think both grandfathers and grandmothers play very important roles, and our society has weakened because grandparents do not play the roles they used to in children’s lives. Still, it is better if it is the father and not the grandfather. I do not see how anybody could really deny that.

The revisionist challenge, especially as a result of the sexual revolution and the mainstreaming of non-marital sex and cohabitation out of wedlock, childbearing, and divorce, especially with the introduction of no-fault divorce, has eroded the public understanding and support of marriage as a conjugal union, though this vision has not been completely lost. The erosion helps to explain why an idea that was quite literally inconceivable as recently as a generation ago is accepted by some now. When my mom and dad were growing up, it is not that they rejected the idea of same-sex marriage; it was like thinking of square triangles. Nobody could conceive it. I think this erosion in other spheres that has nothing to do with homosexuality—opposite-sex promiscuity, the divorce culture, the breaking down of traditional norms, the glamorization of out-of-wedlock childbearing—has all created the situation in which what was once inconceivable is now defended as morally necessary, even a matter of civil rights.

Of course, if marriage is distinguished only or mainly by its emotional intensity, then there really is no reason that two men or two women cannot marry. Any two people, after all, can feel romantic attraction for each other, commit to support and care for each other, share a domestic life, and believe that their relationship is enhanced by mutually agreeable sex acts with each other of any kind. So can three men or three women, say Doll and Kitten and Brynn, or a man and two women, whether they are united as a polyamorous ensemble or the man is in a separate relationship or marriage with each woman, or a woman and two men or four people of whatever sexes or what have you. In the Supreme Court case of Obergefell v. Hodges, five justices of the Supreme Court, led by Justice Anthony Kennedy, whose language I quoted earlier, claimed to find in the due process clause of the Fourteenth Amendment the revisionist understanding of marriage. There it was, hiding for all these years since 1868. No one had noticed, but there it was: a requirement that states not only permit, but legally recognize, same-sex partnerships as marriages. Let me give you the actual words of the clause, so you can decide for yourselves whether those words include a right to same-sex marriage. Here are the words:

No state . . . [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[16]

That is it. That is where they found it, lurking since 1868 right there. You know what? Those words do not mean anything of the kind. Let me tell you what they mean. They are all about justice in criminal cases and analogous civil or administrative actions. States may not execute someone, depriving him of life; imprison someone, depriving him of liberty; or subject someone to a monetary fine or forfeiture, depriving him of property, without affording him such basic, procedural protections, due process of law, as the presumption of innocence, (which is not anywhere else in the Constitution; it is part of the due process clause) an impartial judge, an impartial jury, and so forth. But the Supreme Court instead followed what has become now a long and notoriously intellectually dubious tradition of reading this procedural guarantee, due process of law, “substantively” to include “unenumerated rights” that enough justices (it takes five) believe people should enjoy.

Thus Justice Kennedy, joined by Justices Ginsburg, Breyer, and Kagan, announced the discovery of a right to same-sex marriage that certainly would have shocked the Americans of the late 1860s who ratified the Fourteenth Amendment, and even shocked the Americans of the 1960s, for all their sexual revolutionary pretentions. For Justice Kennedy, the conjugal understanding of marriage had to be jettisoned in favor of the revisionist sexual-romantic companionship conception, because the dignity of persons who construct their identities around same-sex attraction and find their fulfillment in same-sex partnerships requires it. This dignity is conferred, Kennedy tells us, by the state, and is in effect withheld when the state treats marriage as a conjugal union rather than as sexual-romantic companionship.[17] So lacking any warrant in the text or logic or structure or original understanding of the Constitution, or even any clear and disciplined engagement with other court cases, right or wrong, Kennedy’s opinion merits the condemnation that John Hart Ely, the late Dean of the Stanford Law School and himself a pro-choice liberal, heaped on Justice Harry Blackman’s opinion in Roe v. Wade, which legalized abortion throughout the United States. Here is what Ely said of Roe: “It is not constitutional law and gives no sense of an obligation to try to be.”[18] He is somebody that was for abortion. While that same condemnation applies to the Obergefell decision, the four dissenting justices, Chief Justice Roberts and Justices Scalia, Thomas, and Alito, had no difficulty skewering, even ridiculing, Justice Kennedy and the majority for failing to identify an even remotely plausible constitutional ground for their decision.[19] Whatever one’s beliefs about the imperative merits of the conjugal and revisionist conception of marriage, it is difficult to see how the Constitution can be said to have dictated a choice one way or another, for the simple reason that there simply is not a view of marriage in the Constitution. The founders took for granted what everybody took for granted about what marriage was. They did not think they had to constitutionalize an understanding of marriage. By not constitutionalizing an understanding of marriage, they left the matter where anything that is not constitutionalized under our constitutional system is left—that is, to the people and their elected representatives. So what Obergefell represents is a usurpation of your authority and mine as a democratically constituted people—the authority we enjoy under the Constitution, acting either on our own through initiative or referenda where those are permitted, or via our elected representatives—to impose on us something that we did not choose. Some of us may have favored it, others favored the other point of view, but what the court did was take away that constitutional authority and resolve the question by their own likes.

Lay all that aside for now. I introduce the case because it forces us to focus on the logical implications of abolishing the conjugal understanding of marriage in our law and replacing it with a revisionist understanding of marriage as sexual-romantic companionship, and all by judicial fiat. Here is where Professor Dworkin’s point about the centrality of principle to law has its significance for the cause of polyamory, at least for his fellow liberals who approve of the role assumed by the judiciary in cases such as Roe and Obergefell. He who says A must say B where the same principle requires B. He who says that the judiciary who has the power to dictate A must say that the judiciary has the power to dictate B even if B does not yet share A’s popularity and even if the people’s representatives in the legislatures say no to B. The constitutional case for the judicial imposition of same-sex marriage requires the belief that the Constitution somewhere, somehow, perhaps lurking in penumbras formed by emanations, incorporates the idea of marriage as sexual-romantic companionship. You have got to believe that in order to affirm this case. If it does, then there can be no reason of principle, absolutely none, for withholding legal recognition from the marriages of Yemeni immigrants or breakaway Mormons who are in polygamist relationships, or to polyamorous people like the Youngs. To observe that 75% of the public still opposes legal recognition of multi-partner marriages is only to highlight the need for the courts to intervene, to vindicate the marriage equality rights of those in multiple-partner relationships, people who cannot count on their fellow citizens to treat like cases alike when it comes to sexual partnerships, the kind that they happen to disapprove of on moral or religious grounds. By constitutionalizing the issue, by purporting to find a certain vision of marriage in the Constitution, the Court eliminated the possibility of accommodations and compromises in the political process. By its own lights, the question is no longer properly left to the moral or policy judgments of the people or the vagaries of constitutional democratic bargaining. As a matter of constitutional principle, rather, it is an all-or-nothing game, a game that only the judges are permitted to play. The American people have been told by the Obergefell majority to watch from the bleachers.

If Obergefell stands, and I hope that it will not stand, the question of legal recognition of polyamorous partnerships simply will not be able to be avoided. The arguments of those who want to retain the idea of marriage as sexual-romantic companionship or domestic partnership while denying legal recognition of polyamorous marriages will sound weaker and weaker, more and more like mere rationalizations for stigmatizing what many people (for now, at least) still find icky. Under the psychological pressure of the natural human desire for logical consistency, the liberal movement will gradually come to embrace the polyamorists’ cause. Liberal jurists—though they may swat away on procedural grounds the first few constitutional challenges to marriage laws, excluding polyamorous romantic bonds from recognition—will eventually have to say B because Obergefell is the A. He who says A has to say B. Where marriage is sexual-romantic companionship and therefore two persons of the same sex can marry is A, then B is marriage is a sexual-romantic companionship, therefore three or more persons can marry. Will there be a C? That will likely be the abolition of laws against consensual adult incest, parent-child or sibling, and correspondingly the elimination of consanguinity laws forbidding marriage between a parent and his or her adult child or between adult siblings. Do you think I am engaging in scare tactics? Do you think that is just this white-winger who is making this stuff up in order to frighten people because, gosh, people think incest is really icky? Do not listen to me. Western Europe was ahead a bit of the United States on same-sex marriage. It was established in certain Western European countries before it came here, and Western Europe is now pointing the way for liberal opinion on incest. Germany. You know Germany, right? It is a classic Western democracy. We gave it its constitution. Germany is very much like us. Germany is not some weird place. It has the biggest economy in Europe, it has the largest population, it has been democratic since World War II, and so forth. Germany’s national ethics council, their equivalence of the President’s council on bioethics, in 2015 issued a report (do not take my word for it, we now have the Internet—look it up) urging parliament to revoke legal prohibitions of incest involving consenting adults, arguing that these prohibitions violate “fundamental freedoms” and “force people into secrecy or to deny their love.” The ethics council described opposition to consensual adult incest as a mere social taboo and declared that “neither the fear of negative consequences for the family nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition. The fundamental right of adult siblings to sexual self-determination has more weight in such cases than the abstract protection of the family.”[20] The vote was overwhelming, with only a couple of dissenters. If one grants the premises of sexual liberalism, that consenting adults have a right to enter into whatever types of sexual partnerships they like without state interference, and if one embraces the revisionist conception of marriage as committed sexual-romantic companionship, then what the German ethics council says has to be correct. If you have those two premises, this conclusion is unassailable. The council’s logic is impeccable. If there is a flaw, it must be in those premises. Yet it was precisely those premises that were adopted by the liberal movement in our own country, and so C will indeed come in due course unless A is abandoned.



References:

[1] Robert George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism (New York: ISI Books, 2013): 154-155.

[2] Jessica Bennet, “Polyamory: the Next Sexual Revolution?,” Newsweek, July 28, 2009, http://www.newsweek.com/polyamory-next-sexual-revolution-82053. This information appeared in the original article but is not in the most recent revision available online.

[3] William Baude, “Is Polygamy Next?,” New York Times, July 21, 2015, accessed August 4, 2016, http://www.nytimes.com/2015/07/21/opinion/is-polygamy-next.html.

[4] Ibid.

[5] Janica Kaneshiro, “Polyamorous Relationships Become More Visible,” USA Today, August 10, 2015, accessed August 4, 2016, http://www.usatoday.com/story/news/nation/2015/08/10/polyamorous-relationships-become-more-visible/31439123/.

[6] Olga Khazan, “Multiple Lovers, without Jealousy,” Atlantic, July 21, 2014, accessed August 4, 2016, http://www.theatlantic.com/health/archive/2014/07/multiple-lovers-no-jealousy/374697/. Bennet, “Polyamory: the Next Sexual Revolution?”

[7] Bennet, “Polyamory: the Next Sexual Revolution?”

[8] Peter Moore, “Polyamory: Taboo for Religious Americans but Not for the Rest,” YouGov.com, August 12, 2015, accessed August 4, 2016, https://today.yougov.com/news/2015/08/12/polyamory-taboo-religious-americans/.

[9] Ibid.

[10] Baude, “Is Polygamy Next?”

[11] Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law (New York: Oxford University Press, 2012).

[12] Ryan T. Anderson, Truth Overruled: the Future of Marriage and Religious Freedom (Washington, DC: Regnery Publishing, 2015).

[13] “Beyond Same-Sex Marriage: a New Strategic Vision for All Our Families and Relationships,” Studies in Gender and Sexuality 9, no. 2 (1 July 2006): 161–171.

[14] George, Robert. Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism. Wilmington, DE: ISI Books (2013): 158-159.

[15] John Corvino and Maggie Gallagher, Debating Same-Sex Marriage (New York: Oxford University Press, 2012).

[16] U.S. Const. amend. XIV, § 1.

[17] George, Robert. Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism. Wilmington, DE: ISI Books (2013): 164.

[18] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Review 82 (1 January 1973): 947.

[19] Obergefell v. Hodges, 576 U.S. (2015).

[20] Lizzie Dearden, “German Ethics Council Calls for Incest between Siblings to Be Legalized by Government,” Independent, September 24, 2014, accessed August 5, 2016, http://www.independent.co.uk/news/world/europe/german-ethics-council-calls-for-incest-between-siblings-to-be-legalised-by-government-9753506.html.

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