Advocates of gay marriage are often far too glib about their institutional goals. Myself included. We dismiss all sorts of slippery-slope and social fears as simply being based on bigotry (and perhaps we luck out there, because we often turn out to be right, even if it was just a knee-jerk accusation). But many of those fears do make logical sense, particularly when social changes are made by judicial rulings based on distressingly broad and unmoderated principles.
One of the most legitimate of these fears has always been that judicial rulings about gay marriage that are based on bare notions of equality and fairness would carve a path towards the legal recognition of, well, polygamy. And with a polygamist cult controversy still driving news cycles, and HBO’s Big Love back for another season, polygamy can no longer be casually dismissed as an esoteric issue.
That doesn’t mean, that it can’t be dismissed though. It just means that it’s going to take a lot of serious work and argument to do it.
And so, over at Volokh Conspiracy, Dale Carpenter has penned a must-read “Cliff’s Notes” version of some of the best arguments against the “gay marriage/polygamy” connection. Personally, I find them convincing. I’d appreciate any arguments concerning why I should not.
As to the recent California gay-marriage decision itself, I’m of two minds. It should come as no surprise that I like the result. But I also have very strong sympathies with the view that the judges in this case (most of whom were Republicans, by the way) are using methods that overstep important boundaries in our system of government.
On the other hand (again!), I have slightly less sympathy given the fact that people often write constitutional and legal language that claims to be based on lofty moral principles and language… but then whine when someone actually goes and takes those principles seriously, rather than merely conventionally. If you don’t want constitutions to be treated any differently than literal regulations and craven contracts of social convention, then don’t write them as if they were shining beacons of truth and justice.
For all the gay couples who will finally be able to codify their partnerships in the law of our society, there’s little to offer aside from congratulations.
Update: Over at Dean’s World, Dean links to law prof John Witte Jr. and his take on the issue. Among other things, though, Witte notes that one of the traditional reasons that polygamy has been verbotten in the West is that is “routinizes patriarchy.” I’m no women’s studies stooge, but that particular reason strikes me as a little implausible except as a very, very recent development.
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