If Gay Marriage Wins...

[ Posted Monday, August 9th, 2010 – 16:36 UTC ]

Last week, a federal judge handed down his decision in the case Perry v. Schwarzenegger, which said (in no uncertain terms) that gay marriage was a civil right, and should be guaranteed to all -- no matter what voters thought about it -- in much the same way that interracial marriage is a constitutional right guaranteed to all (which happened via a similarly-contentious federal court ruling in the 1960s). While this ruling was rightfully hailed by gay rights supporters, everyone knows that there is still a long road ahead until it reaches the Supreme Court, where the matter may be fundamentally decided.

While the outcome in the highest court in the land is obviously uncertain, what strikes me is that even people who support gay marriage winning in the courts may not have fully appreciated what such a victory would bring. Because it would be monumental, and change forever the status of gay rights in this country in a very fundamental way -- one which would likely be impossible to touch, from that point onwards. I don't think I'm overstating the case when I say that if the Supreme Court upholds the decision in Perry v. Schwarzenegger, it will become the "final battle" for gay rights. Not that America would change overnight into some sort of Utopia for gays, but that the battles for legal equality would be decided once and for all, and (other than a few minor skirmishes) gay rights activists would move on to making sure that their rights were adequately implemented and defended from that point onwards, rather than having to fight to gain legal recognition of these rights in the first place.

Now, I realize that the Supreme Court could wind up reversing the initial ruling in the case. Or it could rule on some micro- legalism, and refuse to rule on the broader question involved. It could even endlessly delay the case, sending it back to the lower courts again and again (which could take decades). But, today, I am only going to consider the "total victory" option -- the Supreme Court (on a 5-4 decision, naturally) upholds the judge's findings of fact, and upholds his decision. I should point out that I'm not certain of this outcome in any way, but I think it is worth examining in some detail, because such a scenario is now closer to reality than it has ever been before. It is now an actual option, whereas before it was no more than a dream. So let's examine that option, to understand exactly what it would mean.

Because it would not be limited to just gay marriage. That's the first and most visible place the impact would be felt, of course. If the Supreme Court rules that gay marriage is a constitutional right, then that instantly means that all the anti-gay-marriage "one man and one woman" laws would cease to be valid law. Every state law on the books (whether enacted by referenda or by legislative process or by state court decision) that prevented gays from being married would immediately be null and void. Gays would have the right to be married in all 50 states, period.

This would, obviously, be good news for gay people wanting to be married. But the good news would not end there. Far from it. Because if the Supreme Court upholds the Perry v. Schwarzenegger decision, it would mean that being gay -- or being any sexual orientation whatsoever -- would now be a constitutionally "protected class," which is a very big deal indeed.

A "protected class" is (unsurprisingly) a class of people who are protected from discrimination by law. America already has defined several such protected classes -- the most well-known of which came into being with the Civil Rights Act of 1964, which banned discrimination based upon race, religion, skin color, sex, and national origin. Much to Rand Paul's dismay, this means that private businesses otherwise open to the public cannot refuse to serve, say, black people. Or Jews. Or women. Or Canadians, or what have you. This list has since been expanded by the addition of federal protections for other groups, such as the disabled.

This is important legally, because while most Americans probably feel that "this law corrected abuses of the past, but isn't that important today because we're all so enlightened now," but they would be wrong about that (see: "Ground Zero mosque"). Discrimination may change flavors, but it is a human trait that keeps popping up over and over again, no matter how "enlightened" the society may feel it is.

If the Perry v. Schwarzenegger decision stands, it means that "sexual orientation" will be added to the federal list of protected classes of people. Which is the momentous aspect of the case. Because not only would the battle for gay marriage be over, but all the legal battles gays now face would be over, as well. The hated federal Defense Of Marriage Act simply couldn't be constitutionally allowed if Perry v. Schwarzenegger stands, for instance. Meaning that gay married people could immediately do things like filing their federal taxes as "married." And would be eligible for survivor benefits from Social Security if their spouse died. Federal laws would have to treat gay married couples exactly the same as heterosexual married folks. The military's "Don't Ask, Don't Tell" policy would also be done away with, automatically (if Congress hasn't already dismantled it when the court rules). All such distinctions which exist today would disappear overnight, just as the laws against gay marriage would melt away like the morning's dew.

Gay people would -- with the force of the Constitution backing them up -- be no different than anyone else, legally, in every single aspect of their lives. As I said previously, this wouldn't be just winning a major battle for gay rights, this would be winning the entire war, in one fell swoop.

This leads me to a prediction which will likely seem a little far-fetched to some. If gay marriage is upheld by the Supreme Court, I predict that within five to twenty years polygamy will also be declared legal.

Now, gay rights activists may take exception to this, because gays have long fought against any suggestion that other sexual arrangements (like polygamy) have nothing to do with them, or with the fight they're fighting. This is understandable, because when gay rights were first being championed a few decades back, their first opposition painted with a very broad brush -- lumping all "sexual deviants" (as they put it) together: homosexuals, pedophiles, polygamists, bestiality, incest, and anything else they could think up to smear those calling for gay rights. So let me be as clear as I can here: I'm not trying to "equate" being gay with polygamy in any way. I'm looking at this from a legal and societal standpoint. The two groups don't have much (if anything) in common, really. Except from a legal standpoint -- if (and only if) Perry v. Schwarzenegger stands.

Let me be crystal clear about defining polygamy, as well. What I'm talking about is consenting adults freely entering into arrangements for living their lives. I'm not talking about coercion or child rape.

I've written about the subject of polygamy rights in more detail, around three years ago. At the time, Mitt Romney was running for the Republican nomination for president. Back then, I wrote:

Because the conversation is ripe for discussion. The battle for gay marriage, if successful, will naturally give rise to other minority groups fighting for their own redefinition of marriage. Enlightened people who support gay marriage should begin searching their conscience for an honest answer to the question: if it is acceptable for two gay people to marry, why shouldn't it be acceptable for three (or more) people -- of any sex -- to be married?

I was astonished when doing my research to find a very liberal article written last year supporting the concept of polygamy from none other than the very (one might even say "ultra") conservative columnist Charles Krauthammer. He sums up the argument nicely:

"In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice."

. . .

"Call me agnostic. But don't tell me that we can make one radical change in the one-man, one-woman rule and not be open to the claim of others that their reformation be given equal respect."

As I said, when I found this article I was astonished to find myself agreeing with someone of Krauthammer's ilk, but then Libertarianism is often where the fringes of the right bump into the fringes of the left. And make no mistake about it -- it is a Libertarian argument: government should not be in the business of making such decisions about private citizens' lives. All should be equal and welcome by the law.

Although gay marriage is growing in acceptance and support, polygamy is only acceptable to a tiny fragment of Americans. What's strange about this is that while gay marriage is opposed on religious grounds by many, the same argument simply cannot be made about polygamy. Polygamy, unlike gay marriage, has a long pedigree in Judaism, Christianity, and Islam. While Judaism and Christianity have since renounced polygamy, in the Islamic world it is still practiced widely. But even in Judaism and Christianity, instead of being condemned as an "abomination," polygamy is referenced numerous times in the Old Testament, with God apparently approving of the concept. Mormonism, obviously, has its own history of polygamy that is much more recent. There are schismatic Mormon churches (called "Fundamentalist Mormons") who still endorse the practice today, although the Church of Jesus Christ of Latter Day Saints (i.e., mainstream Mormons) have renounced the practice and excommunicate any members who practice it. My point is, there is a case to be made today that there are people of faith in more than one religion who believe the practice is sanctioned by holy writ.

Polygamy actually has less of a headwind than the concept of gay marriage faced: you can make a religious case for it (going back thousands of years, and still practiced today), the Bible's not explicitly against it, and the history of Utah and the United States shows that it's not exactly a new issue in America. Gay rights really didn't have any of that going for it, and look how far gay rights have progressed.

Most of this history isn't exactly taught to schoolchildren. Take the case of Reed Smoot, which I also wrote about during the Romney campaign, right after he gave his "Mormon speech."

Reed Smoot got himself elected United States Senator from Utah in 1903. He was elected as a Republican, with a vote of 46-16 in the state's legislature (this was before direct election of senators). Utah had just recently become a state, in 1896, and (more importantly) the U.S. House of Representatives had previously refused to seat two members from Utah. The first was a non-voting member while Utah was still a territory and not a state; and the second, Brigham Roberts, was refused entry to the House in 1900. Both were refused entry for being polygamists (which, admittedly, they were). Roberts' case lasted fifteen months (he was elected in 1898), during which time he tried to argue for his right as a polygamist to enter Congress. The House turned him down.

Enter Reed Smoot, three years later, as a U.S. Senator. When he got to Washington, the same charges were thrown at him. Unlike Roberts, though, Smoot was sworn in as a Senator while the Senate investigated whether he should be allowed to serve. And unlike Roberts, Smoot was not actually a polygamist. Which made the charge of polygamy pretty hard to justify.

But while Smoot wasn't a serial marriage type of guy, he was pretty high up in the church hierarchy of the Latter-Day Saints (LDS). So the entire LDS church was put under the public microscope of a Senate investigation. Two full years were spent examining the Mormons, and the head of the church was called before the committee to be grilled on every aspect of the Mormonism, down to secret church rituals and dogma. The media of the day went along for the ride, with scandalous charges printed along with demonizing political cartoons. The hearings were packed, with lines outside for spectators to view.

From historian Kathleen Flake:

The four-year Senate proceeding created a 3,500-page record of testimony by 100 witnesses on every peculiarity of Mormonism, especially its polygamous family structure, ritual worship practices, "secret oaths," open canon, economic communalism, and theocratic politics. The public participated actively in the proceedings. In the Capitol, spectators lined the halls, waiting for limited seats in the committee room, and filled the galleries to hear floor debates. For those who could not see for themselves, journalists and cartoonists depicted each day's admission and outrage. At the height of the hearing, some senators were receiving a thousand letters a day from angry constituents. What remains of these public petitions fills 11 feet of shelf space, the largest such collection in the National Archives.

Polygamists' rights, admittedly, aren't really on anyone's radar screen in America at this point in time. But my guess is that practicing polygamists are going to be watching the Supreme Court's decision on Perry v. Schwarzenegger very closely. Because if gay marriage becomes accepted legally across the country, then polygamists are going to become emboldened to make their own civil rights case to society.

Of course, this won't be an easy road to travel. The beginning of this road, as it was with gay rights, will be to separate (in the public's eye) their perceived connection to pedophilia and coerced marriage of young girls in remote towns. This is crucial to make their case. Not all polygamists are pedophiles, just as not all homosexuals are pedophiles, and just as not all heterosexuals are pedophiles. To remove themselves from this association, the activists may even rename their group as "polyamorists" (which is more inclusive and non-gender-specific anyway, and which would likely be a smart move).

But if responsible adults who happen to want to live in marriages with more than two members in it do manage to rebrand their cause under the civil rights banner, it really isn't going to be that hard for them to also gain legal approval (assuming, as we are here, that Perry v. Schwarzenegger is upheld by the Supreme Court).

My sense, though, is that it will take longer to make the case for polyamory to the American public, and that this will be a crucial step. As with the Perry case, a decision will have to be made whether the political and legal climate is right to further challenge the federal definition of marriage in court. Even moving at light speed, I don't see this happening sooner than five years after the Supreme Court rules on gay marriage (which is still likely at least two years away). But I don't think it'll take longer than about twenty years afterwards for the law to add "type of marriage" to the list of groups the Constitution explicitly protects.

I could be wrong about this, of course. It's just a gut feeling, I have to admit. But Krauthammer is right. If you support gay marriage, then how can you justify being against some other, slightly different form of marriage? Isn't it just as discriminatory to limit marriage to two people as it is to define the gender of the people involved? What about three women who wanted to all be married to each other? Would you approve of that?

Personally, I support every adult's right to a loving relationship. I personally don't care what happens behind my neighbors' closed doors, either. If they can make it work, more power to them. And if we're going to get rid of discrimination in our legal definition of marriage, I am all in favor of removing all discrimination, and treat marriage as no more or less than an economic contract to be entered into. By all who wish it, with no restrictions whatsoever.


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


-- Chris Weigant


19 Comments on “If Gay Marriage Wins...”

  1. [1] 
    Elizabeth Miller wrote:

    Very interesting, Chris.

    While all Supreme Court decisions can be said to be momentous, a positive decision by the high court upholding this latest decision on gay marriage would give momentous whole new meaning.

    And, it is hard to imagine how the Supreme Court could do anything but uphold this decision. I hope we are talking about a short period of time before the case gets heard. After all, it would make many things far easier to deal with for those politicians who find it difficult to take the courageous and right stand on these equality issues, some snarkiness intended.

  2. [2] 
    josh jasper wrote:

    If polygamy is such a reasonable thing to consider after same sex marriage is allowed, why haven't we seen it in countries where same sex marriage has had a while to sink in? Not that I have a problem with legal recognition of multi-partner families, but I don't see it as happening anywhere. Countries with legal polygamy tend to be vehemently anti-gay, and oppressive towards women.

  3. [3] 
    J R Kaplan wrote:

    Good article. It's interesting that progressive commentators are now essentially admitting that Rick Santorum's argument in regard to the Lawrence case was correct.

    A lot of people, libertarian conservatives included, seem to throw up their hands and exclaim that government has no business getting involved in marriages in the first place. There is, however, an obvious advantage to an official status for marriage; marriage, as sanctioned by the state, establishes legal rights and relationships. Gay people wish to be married for emotional reasons, and for reasons of justice in regard to equal treatment and protection under the law, but they also want to marry so that they can avail themselves of the legal rights and protections of marriage, and so that no one can arbitrarily deny those rights. We hear about hospital visits, insurance, inheritance, and so on; all of these are important, but it also tends to ignore one important thing.

    One reason the state has an interest in marriage is that family units are not only the building blocks of society, they are the building blocks of capitalism. Family units are, historically, the best engine for concentrations of capital that support families. There are many things that governments do NOT do well, and are better left to private citizens and concerns; perhaps the best example of this is raising children. Families, most emphatically including gay families, do a much better job of raising children and effectively allocating capital resources to essentials like health and education, especially higher education, for children, than any government could ever do. So, the state has an interest in continuing to be involved in the institution of marriage, because it has an interest in the promotion of families.

    But the state has another important role, and that is in the mediation and the protection of rights, especially the rights of children, in the case of dissolution of marriage. If the state has no role in marriage, it will have none in divorce, to the detriment of children. One reason that I, a conservative, support gay marriage, is that virtually every study shows that gay parents are as successful as straight parents, and that where gay marriage has been sanctioned, gay divorces give rise to similar or better results for the children of those sundered relationships when compared to straight divorces. In short, the state has no empirical basis for asserting an interest in preventing gay marriages on the basis that they would not be good for children.

    I wish the same were true of polyamorous relationships. I have read summaries of numerous studies and surveys which show that children of polyamorous relationships which fail - and the overwhelming majority of such relationships DO fail - suffer far worse outcomes. In addition, suppose a polyamorous relationship has one or more male parents who choose, by common assent of the parties, to assume a major role as homemaker and parent, and other male parties and female parties have the jobs that earn the family's income. If this primary parental caretaker gets custody of the children in the case of the dissolution of the relationship, will he be able to assert rights to child support on behalf of the children in his custody? From which of the other parents? What about alimony? Can ANYONE suggest a set of legal governing principles in the case of dissolution of such a "marriage" that would not do grievous damage to established notions of equal protection? Can anyone assure me that children of such relationships can be protected by the states against the competing interests of their divorcing "parents"? I don't believe it can be done.

    Yes, from a logical or a moral standpoint, it may be difficult to say that gay marriage is OK, but polyamorous marriages or incestuous marriages must be stopped, but I don't care if I am inconsistent or hypocritical. I am firmly convinced that gay marriage is a perfectly good idea, and I am in favor, and that extending the principles, whether you deem them to have been enunciated in Lawrence or in Perry when the Supreme Court weighs in, to other forms of marriage is a really bad idea.

  4. [4] 
    Chris Weigant wrote:

    Elizabeth -

    Most of those in-the-know say it'll take about 2 years to hit SCOTUS. Which may put it in the middle of the 2012 election, honesty demands I point out.

    josh jasper -

    That's a good point, but most other countries that have legalized gay marriage have no Christian (or even Christian schismatic) history of a polygamy movement, the way America does (with the Mormons). But your point about the polygamous countries being very anti-gay is an excellent one, I have to admit. Oh, and welcome to the site, too!

    J R Kaplan -

    This is possibly the most interesting comment I have received on this subject since the first article I wrote (the first of my links, in the article above). On Huffington Post (this site didn't exist at that point) back then, I heard from many people who had experienced polygamy first-hand, either being in a relationship or being the child of such a relationship. Unfortunately, the original HuffPost comment thread got eaten a few years ago by their servers, and has never been restored, so I can't point you to it to see what I mean. Some agreed with you, some didn't. I was actually stunned to hear first-hand accounts, which I never expected to get, but learned a lot through conversations with the commenters.

    But you certainly have staked out a very interesting position indeed, being a self-confessed conservative who supports the concept of gay marriage. You seem to be doing so (forgive me if I'm assuming things here, feel free to correct me if I'm wrong) from the position that Perry argued in the court case -- there simply is no empiric evidence that gay marriage either (1) harms any other marriage, or (2) harms children in any way growing up within a gay marriage.

    I hew more to the true Libertarian argument, which is that government has no reason being in the business of deciding what a "marriage" is and what it is not. The churches should decide, for themselves (individually), what this means to each of them. The governmental marriage contract should be about two things, really -- the financial agreement between the parties, and the provisions for the children of such arrangements. Both are arbited in divorce court, as you point out.

    But I'm not so pessimistic that these things can't be worked out in a polygamous marriage, as the divorce courts today encounter all sorts of situations, and this would be just one more to deal with.

    Let's take a simple case. One man, two women, two children -- one from each woman. I think it entirely reasonable to assume that in a polygamous divorce, the most common situation would be one person wishing to be free of the marriage, rather than the whole thing going "kerblooey" and everyone wanting to go their separate ways. This might be a false assumption on my part, but I'm trying to keep things simple for the sake of this example. So one woman wants a divorce from the other two.

    The custody of the children would hinge on what the divorce judge thought would be best. Let's say she thought it best that the child of the two who wanted to stay together stayed with the two of them. Perhaps the second (non-biological) mother would be awarded some visitation rights, so she could continue her emotional bond with this child. But the woman wanting out gets awarded custody of the child of her body, with the other two getting similar visitation rights as she does with her non-biological child.

    I really don't think it'd be all that much more complicated than divorce court already is. I could be outrageously wrong about that, I will fully admit. But I think it's not the best reason not to support polygamy rights. Read the first article I linked to in full, and see how much of it you agree with. I am truly interested, because you seem to be very honest and also a strange breed of cat (conservative who supports gay marriage). Which intrigues me no end.

    Also (sorry, should really have opened with this), welcome to the site!


  5. [5] 
    Michale wrote:


    This is important legally, because while most Americans probably feel that "this law corrected abuses of the past, but isn't that important today because we're all so enlightened now," but they would be wrong about that (see: "Ground Zero mosque"). Discrimination may change flavors, but it is a human trait that keeps popping up over and over again, no matter how "enlightened" the society may feel it is.

    I hope I never live to see the day when terrorists become a "protected class". That is the issue behind the Ground Zero mosque, for it is the funding of the GZM by terrorists that is the concern..

    So, if terrorists ever become a "protected class" then I is outta here....

    I think the bigger issue here is not so much the rights of gays to marry (which I fully support) but rather the rights of voters to have their will implemented or thwarted..

    I think it is THAT issue that the SCOTUS will decide on, rather than the issue of gays marrying...

    I also have a problem with gays being a "protected class" as it opens up a can of worms that we might not wanted opened...

    For, if gays can be protected from discrimination, then why not bi-sexual people?? Why not WOBs or hunters or bicycle riders?

    I can see the logic in protecting gays from discrimination. But then you open up a whole plethora of problems when you start equating lifestyles with discrimination.

    My wife and I are part of the Swing Lifestyle and have been for over 20 years..

    Should we expect "protected class" status?? Because we have been discriminated against by City, County and State agencies left and right..

    Shouldn't we have the same discrimination protections that gay people want???


  6. [6] 
    Michale wrote:

    I hope I never live to see the day when terrorists become a "protected class". That is the issue behind the Ground Zero mosque, for it is the funding of the GZM by terrorists that is the concern..

    So, if terrorists ever become a "protected class" then I is outta here....

    For the record, if anyone wants to discuss THIS statement, there is a great CW commentary that deals with this very thing..

    I'll check there for any responses on THIS subject..


  7. [7] 
    Elizabeth Miller wrote:

    josh jasper and J R Kaplan,

    Just wanted to say welcome to the site and thank you for the great comments.

    I hope you stick around and be part of the great fun and conversation here.

  8. [8] 
    Elizabeth Miller wrote:


    I hope I never live to see the day when terrorists become a "protected class". That is the issue behind the Ground Zero mosque, for it is the funding of the GZM by terrorists that is the concern.

    For the record, if anyone wants to discuss THIS statement...

    I have seen the odd ridiculous and tortuous statement around here, Michale, but that one takes the cake!

    For the record, I don't find it to be worthy of discussion.

  9. [9] 
    Michale wrote:

    I am truly interested, because you seem to be very honest and also a strange breed of cat (conservative who supports gay marriage).

    Ahem...... :D


  10. [10] 
    Elizabeth Miller wrote:


    I think the bigger issue here is not so much the rights of gays to marry (which I fully support) but rather the rights of voters to have their will implemented or thwarted.

    Shall we have a discussion about the tyranny of the majority and the protection of minority rights?

    I'm sure you would agree that the will of the voters is not always enlightened or constitutional. I hope we can also agree that any reference, whatsoever, to terrorists being a minority group or a protected class of citizens has no place in this discussion.

  11. [11] 
    Michale wrote:

    Shall we have a discussion about the tyranny of the majority and the protection of minority rights?

    I'm sure you would agree that the will of the voters is not always enlightened or constitutional.

    Unless, of course, it coincides with the will of the Left or the Right, right??

    My point is, is that the will of the voters should not be overturned lightly, on a whim or to pursue a specific ideological agenda.

    Wouldn't you agree??

    I hope we can also agree that any reference, whatsoever, to terrorists being a minority group or a protected class of citizens has no place in this discussion.

    I completely agree... 1000%... That has no place in THIS discussion... Which is why I recommended that discussion of THAT be moved over to the other CW commentary.. :D


  12. [12] 
    rev.jph wrote:

    And after polygamy is legalized then siblings can marry too because who is to say that two pople with lustful feelings for each other should be denied their right to express that in marraige... Or what about Adults who want to marry children? Why should they be singled out by society? And what about my dog lassie, she is so faithful and never cheats on me... I want to make her my wife... (PS: I don't really have a dog - just making a point)

  13. [13] 
    Elizabeth Miller wrote:


    My point is, is that the will of the voters should not be overturned lightly, on a whim or to pursue a specific ideological agenda.

    Wouldn't you agree?

    I hope you don't think that the will of the voters in California was overturned lightly or on a whim or to pursue a specifc ideological agenda.

    Because, if you do, I would have to disagree ... vehemently. :)

    As for the terrorists, I meant to say that your suggestion that they may be the next group to be recognized as a minority group or protected class of citizens has NO place in ANY discussion around here because the suggestion is complete and utter nonsense.

  14. [14] 
    Marcus wrote:

    Hi Chris,

    I read your blog every day, but never get around to leaving a comment. I decided to reply today because this is actually something that's been on my mind for awhile, and somehow I do see the issue eventually coming up in the political discourse.

    I am very enthusiastic about including polyamorous relationships into the institution of marriage, but I don't think that such a legal change follows as from gay marriage as naturally as you suggest in your article.

    Yes, sex of the partners would become irrelevant. But I think that a lot of people would still object to polyamorous marriages on the assumption that three or more people cannot love each other the same way that two people can. Most people would understand "traditional marriage" (which would now include homosexual two-person relationships) as a celebration of the love that two people have for each other. Insofar as people cannot conceptualize three people loving each other the same way two people can love each other (which should sound familiar), a large segment of the population will resist polyamorous marriage.

    My other reason for being skeptical has to do with the fact that there seem to be a lot fewer polyamorous relationships than there are homosexual or interracial relationships (please correct me if I'm wrong). This is significant because such a movement would require strong political pressure from this minority group, something it may not be capable of. Furthermore, it would be difficult for the public to change its general perception of polyamorous relationships (in reference to my earlier point) if there aren't even that many people who choose them.

  15. [15] 
    Michale wrote:

    I hope you don't think that the will of the voters in California was overturned lightly or on a whim or to pursue a specifc ideological agenda.

    Given the facts of the case, I do think that that is EXACTLY what has occurred..

    When one man who is obviously biased (he's a human being.. How can he NOT be??) makes a decision by himself that negates the will of 7 million voters, I would call that "lightly", a whim and serving an ideological agenda.

    Now, if the SCOTUS confirms the judges ruling, then my argument vanishes..

    But as long as it's one gay person vs 7 million voters.....

    As for the terrorists, I meant to say that your suggestion that they may be the next group to be recognized as a minority group or protected class of citizens has NO place in ANY discussion around here because the suggestion is complete and utter nonsense.

    It was CW who brought up the subject with his mention of the "Ground Zero Mosque".. I was only addressing that... But, as I said... If you want to discuss it, let's go over to the specific commentary..


  16. [16] 
    Elizabeth Miller wrote:


    You know very well that Chris did not bring up that subject in the context you put it in. Your argument, if I can even call it that, was not at all related to what Chris was talking about.

  17. [17] 
    Michale wrote:

    You know very well that Chris did not bring up that subject in the context you put it in. Your argument, if I can even call it that, was not at all related to what Chris was talking about.

    IMNSHO, CW mentioned the Ground Zero Mosque as a current example in the context of denying rights to a group of people..

    *MY* point is that, if one takes into account that the funding of the mosque is in question, IE it's likely from terrorist sources, then it makes a BAD example in the context of using it as an example of a protected class of people..

    Do you see my point??

    I know that CW did not mean to imply that terrorists should be a protected class of people.

    I am also nearly certain that CW did not think that I was implying that he was implying that terrorists should be a protected class of people..

    "Oh no, I've gone cross-eyed."
    -Austin Powers


  18. [18] 
    commenter7 wrote:

    The legal theory of polyamorous marriage is already being developed. See generally and specifically

    Quoting from the latter link,

    Polyamorous Marriage
    Proposed models of polyamorous marriage include an all-with-all approach to marriage (whereby three or more persons are all joined together at the same time within a single marriage) and dyadic networks (whereby existing laws against bigamy are revised such that people are perfectly free to be concurrently married to multiple other persons, provided that each such new marriage is preceded by a legal notification regarding the pending new marriage to all those to whom one is already married; failure to provide that legal notification would then constitute the updated crime of bigamy).

    Anthropologists consider humans to be a pair-bonding species. The “all-with-all” approach attempts to replace human pair-bonding with triad-bonding, quad-bonding, etc. Dyadic network theory says that human pair-bonding is our fundamental method of relating, and that polyamorous relationships arise from overlapping pair-bonds.

    Dyadic networks would result in what might be thought of as a "molecular" family structure — one which might be best represented by the molecular diagrams commonly used in chemistry. In this way, marriage would remain a dyadic relationship (i.e., a relationship between two persons), thus minimizing any changes to the existing system of legal marriage, but the introduction of concurrency would provide access to legal marriage for polyamorous families.

    Dyadic networks can correctly represent any situation associated with the "all-with-all" paradigm, as well as many situations that the "all-with-all" paradigm cannot deal with. A "complete" dyadic network would take the form of a complete graph, in which every person is (pairwise) married to every other person, thus correctly representing any situation associated with the "all-with-all" paradigm. A dyadic network may also represent situations in which some persons are (pairwise) married to some members of the dyadic network but not to all of them ("V" and "N" geometries, for example) — these are situations that the "all-with-all" marriage paradigm is unable to accurately represent.

    The "all-with-all" marriage paradigm assumes that everyone is equally involved with everyone else in the group — one global marriage agreement has to fit every participant at the same time. But dyadic network marriages separately define the terms of each specific 2-person relationship, and these dyadic marriages do not typically happen at the same time (A marries B, B marries C ("V" structure), C marries D ("N" structure), etc. — thus, the shape of the dyadic network dynamically changes over time). Participants in a dyadic network need not even be aware of the specific terms of marriage agreements existing elsewhere within the same dyadic network.

    Under the "all-with-all" marriage paradigm, when irreconcilable differences arise there can be no alternative to a complete separation — one person cannot divorce another without ending the entire marriage agreement for everyone involved. But dyadic networks can function in much the same way as watertight compartmentalization functions in naval vessels, i.e., to limit and contain damage. An intense disagreement between two persons takes place within the context of their marriage, and need not greatly involve (or threaten) the relationships between other participants. Within a well-connected dyadic network, a divorce between two persons need not result in a complete separation of the network — for example, a dyadic network with triangle geometry would simply turn into a dyadic network with "V" geometry.

    An "all-with-all" marriage can only exist or cease to exist. In contrast, the shape of a dyadic network can dynamically change over time. Divorces subtract connections, and marriages add connections. The dyadic network itself either changes shape, separates into two dyadic networks, or merges into another dyadic network, depending on the precise nature of the newly added or subtracted connection.

    The maximum size of an "all-with-all" marriage is limited by the fact that every participant must be aware of the existence of every other participant (otherwise the global marriage contract would be invalid, because it could not satisfy the legal condition known as a "meeting of the minds"). But since a dyadic network relies only upon every participant's local knowledge of his or her own direct partners, its size is theoretically unlimited. The dyadic network paradigm is so powerful that it is theoretically capable of managing a situation in which every adult on earth is legally joined together in a single enormous dyadic network. Thus, with the dyadic network model, the idea of "many loves" is directly translated into a practical reality, and the "infinity" symbol (representing love without limits) is directly matched by a marriage model capable of handling an infinitely large number of participants.

    Polyamorous Committment
    The Dyadic Networks model of polyamorous marriage raises important questions related to marital commitment. With a single dyad, the situation is simple; each spouse commits to support and protect the other, and the logic of conventional monogamous marriage applies. However, when multiple dyads intersect in a dyadic network, how exactly does the commitment process work?

    To understand this, let us consider the parent-child relationship. In the parent-child situation, the support commitment exists only in one direction - from parent to child. When there is a single parent, the child has a single source of commitment, and all protection must come from that source. However, when there are two parents, they are jointly responsible for meeting the child's needs. The precise arrangement is worked out somehow, and provided that the child's needs are being met the law has no need to intervene. If the child's needs are not being met, then debt collection methods such as garnishing wages, seizing assets, etc. can and do occur in order to ensure that child support takes place. These actions are typically proportional to income and/or wealth, so the wealthier parent will pay more. Where a parent has commitments to multiple children, the parent must faithfully carry out his or her responsibilities to each and every child. Although it may sometimes seem that the needs of children are unlimited, this is not actually the case, and once a child's needs are satisfied (a certain amount of food, shelter, medical care, etc.), all parents of that child may regard their commitments as being satisfied with respect to each need for which adequate provision has been made, regardless of which parent(s) actually did the work of satisfying that need.

    Turning now to commitment in the dyadic network model, this can be understood as a bidirectional version of the parent-child model. Each dyad represents a commitment of each spouse to the other. Thus, in a V configuration, the two partners at the ends of the V each rely upon commitments from the single partner at the center of the V (the "pivot") - each of them has one spouse. The "pivot" partner can rely upon two commitments, one from each of the two partners at the two ends of the V - the pivot partner has two spouses. If the pivot partner is incapacitated, he or she is in a position comparable to that of a child with two parents - two people are committed to assist him or her and must do so up to the point at which the pivot partner's needs are satisfied. If one of the partners at the end of the V is incapacitated, he or she has only one spouse to rely upon - the pivot partner, who is fully responsible for meeting the incapacitated partner's needs up to the point at which that partner's needs are satisfied. If both partners at the end of the V are incapacitated, then the pivot partner is in a position comparable to that of a single parent with two sick children - he or she must meet the needs of both.

    Let us now consider whether the commitment relationship is "transitive" - if A is committed to B, and B is committed to C, does this mean that A is committed to C? No, this is not the case. C can legally rely only upon the commitment of B and has no legal basis to expect or receive a commitment from A. Nor can A rely upon the commitment of C - that could happen only when and if A directly married (mutually committed to) C. However, suppose that C's needs are so large that B is thereby driven into bankruptcy and becomes destitute. Then B can rely upon A's commitment to provide B with a certain minimal level of support (food, shelter, medical care, etc.). Thus C's needs can have an effect on B that causes A to provide more support to B than would have been the case had C not needed to draw heavily upon B's commitment.

    Hence, under the dyadic networks model, positive effects arise as a result of multiple commitments. When there is only a single dyad, there is a substantial risk that the size of the commitment will exceed the capacity of the committed. However, when each person is linked to multiple other partners in a dyadic network, this has the effect of bringing in additional capacity to meet any needs that may arise. Three or four spouses may be easily able to carry a commitment load that would have quickly driven a single spouse into bankruptcy.

    The analogy to parent-child relationships carries over into other situations as well. Just as it would be improper to discriminate against a parent for having too many children (or too few children), so it would be improper to discriminate against a person for having too many or too few spouses. But with each additional child comes an additional commitment, and the same is true of an additional spouse. Adding another child to one's health insurance coverage will usually result in an increased monthly charge for the insurance, thus adding another spouse would probably have a comparable effect. But a child, or a spouse, only needs to be covered once, regardless of how many parents, or spouses, are available to provide that coverage. Also, a spouse may be economically self-supporting and thus able to pay for his or her own health insurance, so in this respect the total support cost for an additional spouse would then be zero.

    Having drawn lessons from the parent-child relationship and applied them to dyadic networks, let us now draw a lesson from dyadic networks and apply it to the parent-child relationship. Just as there is no inherent reason why a person should not have more than one spouse, so there is no inherent reason why a child should not have more than two parents. When the law of marriage is updated to legally support dyadic networks, the existing adoption mechanism can be used as a means by which additional commitments to children can be created. For example, a single dyad may have already produced two children when each member of the dyad marries a third partner, thus creating a triangle. The newest member of this dyadic network can then execute two adoptions to become the third parent of each of the dyad's two children. Hence, in this situation, each of the three adults now has two spouses and two children. To the extent that any legal barriers might hinder the use of adoption in this manner, such legal barriers would also need to be direct targets of polyamory's legal activism (in addition, of course, to updating the law of marriage to support dyadic networks).

    This N-parent situation has already been raised in the New York Times (When 3 Really Is A Crowd, July 16 2007, “On April 30, a state Superior Court panel ruled that a child can have three legal parents. […] Arthur S. Leonard, a professor at New York Law School, observed, 'I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation.' […] As one advocate of polygamy argued in Newsweek, 'If Heather can have two mommies, she should also be able to have two mommies and a daddy.' If more children are granted three legal parents, what is our rationale for denying these families the rights and protections of marriage?” Our firm answer: there cannot be any legitimate rationale for the unconstitutional denial of this legal protection to polyamorous families.

    The New York Times op-ed raises a question: “Conflicts will undoubtedly arise when three parents confront the sticky, conflict-ridden reality of child-raising, often leading to a nasty, three-way custody battle. Even if they part amicably, they may still want to live in three different homes. In that case, how many homes should children travel between to satisfy the parenting needs of many adults?” The legal answer has been provided by New York Law School Professor Arthur S. Leonard (Pennsylvania Court Finds Three Adults Can Have Parental Rights, May 01, 2007, “[...] the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children.” In the event of divorce, family law judges will calculate child support obligations and distribute visitation rights in accordance with the best interests of the child(ren).

  19. [19] 
    nypoet22 wrote:

    I see where you're going with this chris, but i think there's (at least legally) a major difference between allowing gay marriage and any of the other proposed additions to the institution. one of the main arguments in favor of allowing two LGBTQ people to marry is because of the 14th amendment protection affording equal rights to all citizens. since the foundation of our country is that we are all created equal, the argument follows that two gay people should have the same fundamental rights (voting, marriage, privacy, etc.) as two straight people.

    where the argument for polyamorous marriage rights seems to fail this constitutional test is in the application of the word "equal." if a group of three or more people had the same rights as a dyad (multiple inheritances, multiple tax exemptions, multiple conservatorship, multiple social security and disability benefits, etc. etc.), then it wouldn't really be equal, would it? they would in theory have "more" rights, since three are more than two. this is also where the "slippery slope" argument against gay marriage fails. gay marriage cannot and should not lead to legalization of marrying adults with minors, or people with pets, since those pairings are (PETA activists notwithstanding) legally understood not to be equal to a pair of adult humans.

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