(Erin Stevenson O’Connor March 22,2011)
According to the modern idea, marriage is merely a consenting relationship between adults, for whatever purposes those adults define. This idea has given us same-sex marriage. As many have pointed out, plural marriage is the next logical step. Why should a marriage so understood be limited to two people? Many same-sex marriage advocates characterized this “slippery slope” argument as fear-mongering while the debate over same-sex marriage was waged in the courts. Now that the debate is over, “stategery” no longer demands such reticence. The endorsement of plural marriage is baked into the cake of the endorsement of same-sex marriage—and that endorsement points quite a bit beyond plural marriage as well.
Contemporary liberals seem to begin with the idea that the state must remain officially neutral, as contemporary liberals understand that term, among the diverse ways of life lived in a democratic society. Public neutrality supports the individual’s right to choose. When the public takes sides on a controversial topic and favors one vision in law, it effectively limits the right to choose one’s life plan and humiliates those whose life choices the public does not embrace. Only when the state has a “compelling state interest” and narrowly tailors legislation to secure that interest can it be just to take sides and limit rights.
During the same-sex marriage debate, this mode of analysis prevailed. The public is divided on what marriage is, went the argument, so the state must remain neutral. This neutrality allows homosexuals the same ability to exercise their “right to marry” as heterosexuals. Traditionalists have sought to argue that marriage serves an important public purpose related to procreation and education of children that would justify limiting the recognition of marriage to those capable of reproducing and best suited to raising children. But, according to contemporary liberals, these traditionalist arguments are either speculative, incomplete, excessively controversial, or insufficiently rigorous.
In arguing for plural marriage, liberals trot out a familiar set of arguments. To counter them, conservatives must expose the biases and moral assumptions implicit in these supposedly neutral positions, demonstrating how and why they fall short.
Scholarly Arguments for Polygamy
With previous decisions preparing the courts and the public mind for same-sex marriage, books extending the contemporary liberal argument are in the pipeline. These books practically write themselves: just take previous books on same-sex marriage, find “same-sex marriage” in the text, and replace it with “plural marriage.” Two prominent examples include Mark Goldfeder’s Legalizing Plural Marriage: The Next Frontier in Family Law, which is due out in March, and Ronald C. Den Otter’s In Defense of Plural Marriage, which was written after Windsor and released just before Obergefell. Plural marriage, these scholars argue, is a product of choice, and marital equality demands recognition of dignified human beings as they pursue their life plans.
Den Otter’s book is a model of contemporary liberal analysis. His initial chapters involve “judging the case against plural marriage,” where he puts all of the empirical and quantitative arguments of defenders of traditional marriage through a deconstructive analysis. Social scientists have argued, based on sound science, that polygamous families are bad for women’s equality, the well-being of children, and liberal citizenship. These arguments have a more than respectable pedigree, tracing back at least to David Hume’s “Of Polygamy and Divorces” (1752) and to Montesquieu’s Persian Letters (1721).
Den Otter argues that laws against polygamy or plural marriage do not accomplish a “compelling state interest” in a “narrowly tailored” way—a familiar line of reasoning to all who have been paying attention to the same-sex marriage debate. There are four basic arguments—what I call the liberal wringer—that Den Otter uses to dispense with arguments against plural marriage.
The Four-Part Liberal Wringer
First, Den Otter attempts to discredit studies that demonstrate that polygamy in Islamic countries is often patriarchal, illiberal, and abusive. Den Otter argues that this is a “statistical generalization” that is not applicable to the United States or the Western world. “Whatever it might be like in Africa or the Middle East,” Den Otter writes, “legalized polygyny in this country would differ from what it would be like in a place with a different culture, different levels of wealth, and different political and legal systems.” Transport polygamy to America, and we will get a healthier “postmodern” polygamy based on consent and equality. Our plural marriages will be virtually indistinguishable from monogamous marriages. More generally, this first aspect of the wringer is the argument that the bad things associated with the proscribed practice are not really endemic to the proscribed practice. Some external conditions have rendered the proscribed practice either less bad or innocuous or positively beneficial.
Second, Den Otter responds to studies showing that polygamists today in southern Utah or Northern Arizona tend to be insular, abusive, and inclined toward underage, arranged marriages. Den Otter insists that those characteristics are not intrinsic to plural marriage itself. “The criminalization of polygamy . . . is more likely than not to be counterproductive.” Plural marriage under conditions of taboo and sanction is bound to manifest illegal practices, hierarchies characteristic of criminal enterprises, unnatural distortions, distorting jealousies, and excessively narrow education. The solution to this problem is to baptize the practice with public acceptance. “Very much like drug use, prostitution, gambling and other human vices, legal prohibitions will not only not solve the problem but will probably also worsen it.” Bring plural marriage out of the shadows and our liberal culture may transform it into something consensual, egalitarian, open, and liberating. More generally, this second aspect of the standard liberal argument is that the negative social impacts associated with the proscribed practice are caused by the stigma attached to it; removing the stigma will tame the practice.
Third, Den Otter responds to studies showing that plural marriages cause problems such as underage marriage or spousal abuse. He argues that the public can regulate those secondary effects rather than banning plural marriage; punish the crime of statutory rape or the abuse of the spouse, but allow the institution to survive. After all, “polygamy will be practiced. The real issue is how the state can best respond to its inevitable existence.” Let us improve that plural marriage experience through proper regulation of its occasional nasty effects. More generally, the argument goes, even if bad things still occur, there are less restrictive means or more “narrowly tailored” policies for dealing with those bad things. It will be easier to curtail those bad things if the practice is made legal.
Fourth, Den Otter argues that if our liberal society were really interested in gender equality, the well-being of children, and the other problems manifest in polygamous marriages, it would have to ban many kinds of monogamous marriages as well. Many monogamous marriages are, after all, not as egalitarian as liberals would like. Some are downright abusive. Despite this, the public does not ban monogamy. This shows that the public is not really that serious about those problems and that our evaluations rely “too heavily on . . . structure” and not enough on function. More generally, the liberal argument goes, bad things may be associated with a particular proscribed practice, but the bad things sometimes happen in practices that we accept or embrace, so seriousness about those bad things would mean going after those accepted or embraced practices as well. Because we do not reject these mainstream practices, we have no ground to ban the proscribed practice either.
On issues ranging from legalization and abortion to pornography and same-sex marriage, we’ve heard this set of arguments before.
The Abolition of Marriage
Where does this deconstruction of marital dyads leave us? Den Otter points to the “abolition of marriage” itself as the ultimate destination. In the meantime, it is necessary to include more and more groups in a more and more minimal marriage. In this, Den Otter follows paths laid by other scholars. In Minimizing Marriage, Elizabeth Brake argues that “friendships, care networks, urban tribes, and other intimate associations” such as polygamy are equivalent to marriage. In Untying the Knot, Tamara Metz puts forward much the same endpoint but calls it the abolition of marriage as a legal category. She also argues that the state should recognize “groups of nonsexually intimate caregivers (siblings or postmarriage collectives, for example).”
This is the state of the debate within contemporary liberalism. Some would apply neutrality incompletely for now, as circumstances warrant, while others push the envelope more completely. Some think this more complete drawing out of implications amounts to the abolition of marriage as a legal category, while others call it the minimizing of marriage, with a promise to do more minimizing in the future. Some think that the state should never acknowledge adult relationships, while others think the state should offer a menu of choices of legal rights for whatever adults would like to share a life together; Metz calls these ICGUs, or “Intimate Care-Giving Units.” Still others—including Den Otter himself—worry that favoring adults who care for one another would be violating neutral principles and instead advocate SPICs: “Semi-Private Intimate Contracts.”
With apologies to Alexander Pope: whether this amounts to the abolition of marriage let fools contest; arguments for restricting marriage will fail the test. This is how the rolling revolution manifests itself in practice.
There is some more work to be done in disestablishing our current conception of marriage. This will probably begin with public recognition of plural marriage, then of consensual adult incest, and then of friendship, then, perhaps, of marriages with human-like robots (see, for example, David Levy’s Love and Sex with Robots). The post-marriage landscape seems to be the current center of debate among contemporary liberals: what, if anything, should replace marriage?
Exposing Built-In Biases
Defending any aspect of public morality is nearly impossible on these terms. Anyone interested in defending marriage and family life must first expose the built-in biases and hidden moral teaching within the contemporary liberal perspective. This is going to be the work of a generation. This task was begun in earnest during the same-sex marriage debate. It is now high time to show that contemporary liberals peddle morality as much as, and more dishonestly than, any bunch of poets.
When I say that this must be the work of a generation, I mean several things. The edifice of contemporary liberalism must continue to be exposed as violating the pretended principles of liberal neutrality. The idea of autonomy must be exposed as the inhuman, central lie of our constitutional life: autonomy does not exist, for all human beings are hemmed in by habits or mores from their nurturing and their nature. Any decent society would aim to have habits promoting self-government at the center of its idea of consent, not pretend that “consent” must be unaffected by any and all extraneous considerations.
We must continue to make the moral argument for marriage as a community of love, connected to having and raising children. Above all, we must make the argument that human nature is a complex mixture of freedom and necessity, virtues and vices, and chaotic passions that can be ordered toward a good life, and that marriage and family life are indispensable to that end.
Scott Yenor is currently a Visiting Fellow in American Political Thought in the Simon Center for Principles and Politics at the Heritage Foundation and is a Professor of Political Science at Boise State University. Republished from The Public Discourse with permission.