Contributor Post Created with Sketch. Polygamy, Paternalism, and the Real Slippery Slope

 

The Atlantic Wire has a solid roundup of post-Perry polygamy posts. What troubles me is less an inevitable creep toward a whole new legal regime officializing exotic new marriages-so-called — although, yes, that’s troubling — than the other legal regime which that creep will inevitably produce.

We’ve already seen it with the dramatic explosion of family law-so-called. Family law today is virtually the opposite of what it sounds like. It’s a complex body of rules, regulations, and litigation concerning not the legal creation but the legal breakup of marriages and families. Family law is how the state manages familial disintegration. The real post-Perry slippery slope, from this standpoint, leads toward the codification of a vast new set of intimate relationships, all right — not between (or among!) individuals but between government and individuals.

The debate over marriage too often obscures the problem lurking beneath the general weakening of the marital institution: the growing vacuum in cultural authority fills with the legal power of the state. Already we probably lack the cultural confidence to articulate at a national level a convincing account of why at least some kinds of polygamous relationships should be deprived of the honor bestowed by the title of marriage. But that kind of confidence has crumbled apace with an insistence that somebody be around to pick up the pieces when relationships we feel disentitled not to honor also crumble. And only one somebody can claim to be there to play that ironically fatherly role for everyone — the government, whose laws can penetrate everywhere, if only we let them.

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  1. Mel Foil Inactive

    I dare say, a lot more Americans live in de facto polygamy than live in de facto gay marriage.

    • #1
    • August 8, 2010, at 11:26 AM PDT
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  2. Profile Photo Member

    But that’s exactly what happens when we say that we as a society should have no say in what societal structures we prefer. This is why the government should be in the business of preferring the family structure that we decide is best for the enduring health and continuing stability of our society. Government rules express our will as members of a cohesive civilization. When we give up our responsibility to keep the pillars of our civilization strong through governmental incentives and encouragement, we give up one of the most important duties we have as citizens. When we stop caring about what our families look like and how they function then we can’t very well complain when things start falling apart.

    • #2
    • August 8, 2010, at 11:29 AM PDT
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  3. Kennedy Smith Inactive

    The whole gay marriage issue could be put to rest if we chipped in and bought gay couples copies of Contracts for Dummies, and possibly subscriptions to Legalzoom.com.

    Etoile: ha!

    • #3
    • August 8, 2010, at 11:48 AM PDT
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  4. Nick Stuart Inactive

    A line has to be drawn somewhere, or else it is drawn nowhere. If marriage is not as has been traditionally understood since the dawn of history as male/female, and more recently one man and one woman, then it is anything. Male/male, female/female, why not? And if there’s no reason why not, then why not any combination or permutation or number? And if no reasony why not, then why not brother/sister? Parent/child? Child marriage? Interspecies? All of the above?

    That said, the problem with handling everything with contracts is that marriage per se has special standing in law that cannot be effected by contracts (e.g. a spouse not being compelled to testify against the other spouse). And if a third party takes exception to the contract, (family members don’t want the “partner” in the sickroom or inheriting the estate, the partner has to litigate it, they don’t have state-defined standing). This needs to be fixed.

    • #4
    • August 9, 2010, at 5:20 AM PDT
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  5. Robert E. Lee Member
    Robert E. LeeJoined in the first year of Ricochet Ricochet Charter Member

    Marriage is a movable feast, it can mean whatever someone wants it to mean. Disagree? For every definition of marriage you cite someone, somewhere, will disagree with you and cite historic precedence to back their opinion. “Because God Made It So,” or you believe our Founding Fathers would want or the great majority of the American people wish for, I’d say the “institution” of marriage as envisioned by the conservative is demonstrably unworkable.

    I’d say the greatest vow a man can make is to stand before God and Man as swear to a union with one woman until death do they part. Yet for all the solemnity of that vow more than half of American marriages end in divorce. Then the courts get involved.

    I’d suggest the way out of a bad situation is to take religion out of marriage (who’s religion are we talking about, anyway? Does the State get to chose?) and make a bonding a civil contract instead. One where the state gains the benefit if the contract dissolves. If a couple or a group want a religious ceremony, let it be separate and God will recognize his own.

    • #5
    • August 9, 2010, at 5:43 AM PDT
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  6. Morituri Te Inactive

    A while back, trying to figure out how I ought to feel about gay marriage, I asked myself: What is the State interest in marriage? Why did governments get involved in marriage in the first place, and not leave it to religious institutions and purely private contract? I don’t know the history, and would be very pleased to hear from someone who does, but two theories come to mind. The first is that government stepped in because religious sanction was not sufficient to protect the weaker parties to a marriage, typically women and children, and that the state has a general if imperfect interest in preventing exploitation. The second, not exclusive of the first, is that marriage is considered more important than the State, and that it is necessary to provide legal protections against the state to married people. The aforementioned protection against testifying against a spouse in court is in the latter category.

    I think this exercise is important, because it is difficult to argue this issue rationally without a sense for what breaks when you introduce innovations such as gay marriage and polygamy — and perhaps more important what is already broken, perhaps irrevocably. Thoughts, anyone?

    • #6
    • August 9, 2010, at 7:21 AM PDT
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  7. Profile Photo Member

    What is very clear to anyone that actually knows and interacts with a gay family — kids as well as parents — is that this is a good and stabilizing force for society. It represents responsible settling down. It often provides a loving home for adopted kids that would otherwise be in an orphanage or a foster care system. At a very practical level, it clearly seems like something that makes society better, not worse. It’s hard for me to find a basis to criticize this institution that doesn’t amount to a criticism of homosexuality itself. On the podcast Lileks wanted to make the point that giving a children a father and a mother is to be preferred. Perhaps — but that’s a rather esoteric point given the general state of affairs. Anything that encourages a more stable society and a more stable home ought to be encouraged. Given that, it seems baseless to deny it the same protections that are afforded heterosexual marriage. I don’t buy the slippery slope argument that points to a breakdown of society. Homosexuality has existed as long as recorded history. Gay marriage is new — but it seems an improvement to the status quo.

    • #7
    • August 9, 2010, at 9:39 AM PDT
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  8. Profile Photo Member
    Daniel Frank: I think this exercise is important, because it is difficult to argue this issue rationally without a sense for what breaks when you introduce innovations such as gay marriage and polygamy… · Aug 9 at 7:21am

    Point of order… viewed in the scope of recorded history I’m not sure polygamy can really be considered an “innovation.”

    • #8
    • August 9, 2010, at 9:41 AM PDT
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  9. Morituri Te Inactive
    Trace Urdan Point of order… viewed in the scope of recorded history I’m not sure polygamy can really be considered an “innovation.”

    Two possible responses:

    • Touche, Mr. Urdan!
    • Polygamy has been absent from Western civilization for so long that its reintroduction could properly be described as an innovation.

    While we are at it, I would like to comment generally on your argument from 9:39. I think it is important to distinguish between state interest and societal value. Many things are valuable to society, and many of those things exist (or used to exist) absent the intervention of the State. It is the great shame of our time — and possibly the death of our Republic — that anything that is good for society is now considered the legitimate business of the State. As state intervention crowds out private actors, both liberty and — ironically — the good of society become casualties.

    That was my point when I raised the question of State interest in marriage, and I think anyone considering this issue should take a step back and try to tease apart these two concepts before proceeding. Just because something’s important, doesn’t mean there oughta be a law.

    • #9
    • August 10, 2010, at 12:37 PM PDT
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