Wednesday, January 27, 2010

The Slippery Slope from Same-Sex Marriage to Bigamy

While I spent last summer and fall reveling in my own marriage (see part one and part two of my on-going series, "A Midwestern Marriage"), I pretty much had my head in the sand with regard to most political developments on the marriage equality front (truth be told, I’ve pretty much had my head in the sand about politics in general).  I have, of course, heard that Ted Olson, the conservative lawyer of Bush v. Gore fame, is challenging California’s Prop 8 in federal court, arguing it is unconstitutional under the Fourteenth Amendment’s guarantee of equal protection under the law.  I will admit that my somewhat cynical (but not, I think, totally unwarranted) first impression was that this is some sort of conservative plot, wolf-in-sheep’s-clothing and all that, because this Supreme Court?  And I still think, yeah, good luck with that.

But I just read The Conservative Case for Gay Marriage by Ted Olsen in Newsweek , and I’m willing to concede that he at least seems sincere (though such deep cynicism is not beneath this Republican party, so if a we'll-show-those-queers, smoking gun GOP memo emerges some day, after the Court firmly establishes that gay and lesbian folks do not, in fact, enjoy equal protection under the law, I just want to go on record now as saying I won’t be surprised).

(edited to add:  read the rest of this essay after the jump by clicking "read more" below)

Olsen’s conclusion to his conservative case for gay marriage especially caught my eye, because I have been thinking along the same lines: 

California's Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of "domestic partnerships" with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court's ruling that upheld gay-marriage rights and the decision of California's citizens to withdraw those rights by enacting Proposition 8.
So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

Julie and I like to note with mock glee or distress, as the case may be, the way our marital status changes when we cross state lines:  “Hey, we’re in Vermont! We’re married again!” Or, alternately, “Back in Pennsylvania … well, dear, it was fun while it lasted.”  We like to joke that we have the best of both worlds:  sometimes married, sometimes living in sin.  It’s almost like having an affair!  All the fun without the hassle! 

But all silliness aside, it is an absurd situation.  Vermont, New Hampshire, Massachusetts, Connecticut, Iowa, the Cocquille Indian Tribe in Oregon, Washington D.C. and New York all recognize our marriage (New York will not perform same-sex marriages, but will recognize same-sex marriages performed in other jurisdictions.  Apparently New York’s economy is so strong, the legislature magnanimously decided to send all that wedding revenue to her sister New England states.)  The rest of the states, including Pennsylvania, where we live, do not recognize our marriage. 

Recently I’ve been wondering what exactly that means.  If Pennsylvania does not recognize my Iowa marriage, does that mean that I am still free to marry a man in Pennsylvania?  If I were to take out a marriage license in Pennsylvania, and if I were to tell the nice clerk at the Marriage License Window that I have a wife, but only in Iowa, Vermont, New Hampshire, Massachusetts, Connecticut, the Cocquille Indian Tribe in Oregon, Washington D.C. and New York, and so I would now like to add a husband (to my harem, if you will), what would she say?  Other than, “Let me get my boss.”  But once the boss of the boss of the boss had been consulted, am I right that they would have to let me marry a man here in Pennsylvania?  

Greater legal minds than mine read my blog – what do you think?

And if I were to marry a man here in Pennsylvania (hey, don’t laugh; I’ve had not one but two marriage proposals from perfectly legitimate and eligible men in the last couple weeks alone), what would happen if I traveled back to Iowa, Vermont, New Hampshire, Massachusetts, Connecticut, the Cocquille Indian Tribe in Oregon, Washington D.C. or New York (or, for that matter, Holland, Belgium, Sweden, Norway, Spain, Canada, South Africa or Mexico City)?  Would I be a bigamist?  Assuming bigamy is illegal in those jurisdictions, could I be arrested and charged with a crime?  And if I were charged with bigamy, but then fled back to the safety of Pennsylvania, would Pennsylvania extradite me?

It’s all a bit absurdly yet deliciously ironic, isn’t it?  Because the only persuasive argument I have ever heard against same-sex marriage is that it creates a slippery-slope to legalized polygamy.  Now, please note that I am not personally concerned about the persuasiveness of this slippery-slope argument.  Truth be told, I’m a little libertarian-leaning on this one: I’m not sure why the state should bestow privilege on any adult relationships, and I’m especially unpersuaded that modern civil marriage is a useful proxy for interests the state actually has a legitimate interest in promoting, like the welfare of children and the stability of communities. Personally, I don’t see why polygamy among consenting adults is any less legitimate than the sort of serial-monogamy-plus-infidelity that seems to characterize so much of modern marriage.  Having said that, I do understand that mine is not a majority opinion, and so accepting for the sake of argument that legalized polygamy is not something we want to embrace, I do sympathize with the argument that same-sex marriage opens the door pretty wide to legalized polygamy.  Indeed, the argument-from-tradition, and even the argument-from-Scripture, is weaker against polygamy than same-sex marriage.  Of course there are real distinctions, and of course we are capable of making them, which is why in general I don't like slippery-slope arguments.  

Still, it’s kind of ironic, isn’t it, that the very failure to recognize same-sex marriage nationally could also lead to an increase of bigamy


Patrick said...

I love this, and wonder if someone will soon put it to the test. I think it's in a similar vein to the campaign that is on now in California to protect straight marriage by outlawing divorce, forcing people who have children to marry, etc etc. I've never liked slippery slope arguments either; we make distinctions all the time, and just because one person is too ignorant to see the difference between same-sex marriage and incest doesn't mean we have to have laws for the stupidest or most pig-headed.

Sorry, just a wee bit cranky this morning at the Republicans. So what else is new, right?

Anonymous said...

I'd like to think the explanation for T Olson's position is a lot simpler: he's another closeted gay Republican. I knew a lot of them at university. In fact, we were famous for it, i.e., conservative closeted gay, etc etc

Marta said...

look, it's patrick and mel in my comments on bigamy. how fun is that?

mk: oh i'm sure they are legion. also: i'm not the only one who thought you were gay