May 19, 2012

Polyamory v. Same-Sex Marriage

Filed under: Politics,Theology — Bob Gifford @ 10:19 am

An argument against same-sex marriage is that it is a slippery slope from there to the legalization of polygamy (or more technically, polyamory) and incest. While I am in favor of same-sex marriage, I am not in favor of legalizing polyamory. (We’ll save a discussion of incest for another time.) So am I just imposing my own personal morality on others, and does that make me a theocrat just like the worst of the Christian Reconstructionists?

Any law or legal regime instantiates a moral viewpoint. There is no such thing as a morally neutral legal system. So the question isn’t whether a law imposes morality, but whose morality. Majority rule is supposed to make sure that laws implement an ethic that is widely held, but we put limits on majority rule so that the majority can’t violate the rights of the minority. Minority rights are spelled out in the Bill of Rights, which is where the Establishment Clause comes in. The Establishment Clause requires that the ethics implemented in laws be justified based on universally applicable secular arguments, not sectarian ones.

My argument against the legal recognition of polyamory as marriage while recognizing same-sex marriage is based on secular moral arguments. As a veteran of the same-sex marriage debates, I would define marriage as mutual, chaste and committed (at least in intent if not fully realized), all of which apply to same-sex marriage but not polyamory. It’s not mutual, because there’s usually at least one person in the marriage who would prefer monogamy. It’s not chaste, because the participants have not committed to “forswear all others” since additional spouses can always be added. (Do members of a polyamorous marriage date? I guess they must, otherwise how would new spouses be “courted”.) It’s not committed…how many polyamorous marriages are celebrating their 20th anniversary?

Of course there is also a purely secular argument against the government recognizing any form of marriage, and leaving it as solely a private legal contract. This would allow people to define marriage for themselves depending on the contract that formalizes it. So evangelicals could have “covenant marriage” contracts, but the godless heathens (joking!) could have no-fault divorce written into their contract. I actually would be fine with this. My only issue with this approach is that I don’t think there’s anyway to get from here to there politically, so it’s somewhat moot. So for purely practical reasons I’d go with legalizing same-sex marriage while excluding polyamory.

But the bigger point is that my definition of marriage isn’t arbitrary…it’s based on a secular ethical rationale that would be universally applicable. This is not true when defining marriage as only one man-one woman. It’s impossible to justify this definition without resorting to a very particular theology. The utilitarian arguments fall apart on closer inspection, leaving same-sex opponents to rely on their interpretation of the Bible. Even if this theology is held by a majority of Americans (or North Carolinians — see Amendment One), it is violating the Establishment Clause because it enacts a religious ethic, not a secular one. That’s why the role of the courts is so important with same sex marriage.

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