Same-Sex Marriage and Polygamy

(By Andrew MacKie-Mason)

An old argument has resurfaced lately on two blogs that I read, namely that accepting the arguments for constitutional protection of same-sex marriage also forces the conclusion that polygamous marriage is constitutional guaranteed. The first is Robert George, in a characteristic screed that seems devoid of any interest in actual discourse:

Now, the reason of principle that intimate partnerships of three or more persons cannot truly be marriages, and should not be legally recognized as marriages or the equivalent, is . . . Well, remind me again, what is it?
• • •
But what is the reason of principle that can be given by those who, while rejecting the idea that sexual-reproductive complementarity is an essential element of marriage, do not---or do not yet---wish to jettison the idea of marriage as the sexually exclusive union of two, and not more than two, persons? Is there a reason of principle? Or is the belief in "two-ness" mere bigotry?

The second is Josh Blackman, in a more tempered and inquisitive post:

I don’t see much of a difference between the arguments, from a constitutional perspective, in favor of SSM and arguments in favor of polygamy. I think they are equally valid. If we are not going to base marriage on traditional notions, why stop at a couple of the same sex. Why not a trio of the same sex? I think the key distinction is that the former cause has a very strong social movement with a lot of popular support. The latter does not.

As I've argued before, the arguments in support of same-sex marriage and polygamy are easily distinguishable. The marriage equality movement, contra those like George, does not rest just on a "conception of marriage as sexual-romantic domestic partnership." It also looks at the legal meaning of marriage, as defined by the benefits which the government gives to married couples.

Many of those benefits would not make sense in a polygamous system, meaning that legal recognition of polygamous marriages would involve fundamentally changing the institution of marriage (the legal institution, not the hypothetical, quasi-religious "institution" that religious conservatives try to will into existence), as opposed to extending an already-extant institution to new individuals who are currently denied access.

Before going into exactly how marriage would have to change to accommodate polygamous relationships, let's distinguish two different kinds of polygamy. The first is what I'll call Polygamy 1, which involves multiple overlapping two-person marital relationships. In other words, A is married to B, and B is also married to C. A and C, however, are not married. The other (Polygamy 2) involves genuine multiple-person marriage, where A, B, and C are married. Some of the issues will apply equally to Polygamy 1 and 2, but sometimes the distinction will be important.

Inheritance

One important legal aspect of marriage is its impact on inheritance. Generally speaking, if someone dies without a will and without children, their surviving spouse inherits all of their property. Even if they have children, the surviving spouse generally receives the largest share. There are somewhat obvious ways to change these rules to fit a polygamous system, but they do require changes. More difficult to deal with is the fact that the surviving spouse is generally put in charge of the estate. If there are multiple surviving spouses, there is no obvious way to choose between them.

Marriage also generally provides exemptions from estate taxes. Either form of polygamy would drastically increase the risk of marriage being used for estate tax fraud.

Taxes

Our tax system is premised on the idea that it makes sense for two individuals who are married to file taxes jointly. Polygamy 1 poses a bigger issue here: if A and B are married, and B and C are married, with whom does B file their tax return? All of the options (a three-way tax return, two joint tax returns, three individual tax returns) have issues, and all of them would require a substantive overhaul of the tax system to implement. Polygamy 2 also has issues, though. Even if the three-way tax return is clearly the right choice, it still requires an overhaul of how we handle taxation. This is all not to mention, of course, the increased risk of tax fraud.

Medical Decision Making

Generally speaking, the spouse has priority in making health decisions when the patient is unable to and hasn't made an explicit designation of a health care surrogate. Both forms of polygamy would undermine this important clarity.

Employment Benefits

The government and other employers usually give spousal benefits. Either form of polygamy would increase the risk of fraud as well as raising costs and giving unfair extra benefits (or unfair lower benefits) to those in polygamous marriages.

Divorce

Polygamy 2 presents lots of issues for divorce. Assuming our A-B-C marriage, say A wants to divorce C. That forces B to choose between A and C, causing new issues which our current divorce system does not need to face. Now say that there are children of the A-B-C marriage. Biologically they are the children of B and C, but all three are treated as parents. If B remains with C after the divorce, do they have sole right to custody? Do they have a right to "2/3" custody? Should custody be split evenly between A and between the B-C marriage? If B and C later divorce, can that divorce change the custody rights of A?

What about asset splitting? If B chooses to remain with C after a divorce caused by friction between A and C, is B also responsible for alimony and child support to A, or does that liability rest only with C? Or, if the assets run the other way, do we calculate the alimony that A must pay with respect to only C, or with respect to both B and C? All of these issues become more and more complex the more partners you add to the marriage.

Polygamy 1 also presents some issues. If we have A-B and B-C marriages, and A and B divorce, how do we divide assets? Assume we're going for an "even split" in the two-person marriage sense. Do we require that each marriage have its own separate assets the entire time, and then split the A-B assets upon divorce? That would leave B in a precarious spot, while both marriages were ongoing, of trying to balance two very separate asset pools. Or do we exclude the assets brought by C and split the assets brought by A and B? That would effectively be stealing from C: if C later divorced B, C would only get half as much of B's money as A did. Once again, there doesn't seem to be an easy answer, and adding more and more partners just makes it more difficult.

Children

While we might be able to pretty easily work out parenting and child-raising in Polygamy 2, there are issues with Polygamy 1. Suppose we have our A-B and B-C marriages, and that B is a woman and A and C are men. If B has a child, who becomes its other parent by default? In the current system, we assume that a child born in a marriage is the child of both parties to the marriage until legal proceedings determine otherwise. But in the case of Polygamy 1, there's no logical default answer. We're stuck having paternity tests and legal proceedings with every birth.

I'm sure there are other ways in which polygamy would require a drastic reshaping of the legal rights and responsibilities of marriage, but I think the above illustrates the point. Where same-sex marriage simply requires opening the doors to people previously excluded, polygamous marriage, in either form, would fundamentally change what law considers marriage to be. Same-sex marriage, then, does not lead inevitably to polygamy.

(I owe thanks to Michael Yuri, a commenter on the Josh Blackman blog post linked above, for raising some of the issues I discuss above. The exact positions and any errors or failings are, of course, mine.)

Protecting the Guilty

(By Andrew MacKie-Mason)

All too often, we explain what criminal defense attorneys do by saying they keep the system fair for the innocent. The system would fall apart if only some people got representation, we say, so defending the guilty is a necessary evil.

But Raja Raghunath has an important post at PrawfsBlawg reminding us that the ethical world of crime and punishment is not divided into clear categories of "guilty" and "innocent," where the former deserve what the system throws at them and only the innocent are wronged. The system of punishments that our society has developed over its short lifetime are cruel to everyone. Legislators and judges fiddle callously with the numbers (should we give him 85-104 months in prison, or 73-95?), ignoring the fact that each of those is a month that a human being will be pent up in what is likely to be a hellhole.

In Raghunath's words:

We may shudder and/or make inappropriate jokes, but the moral desert that accompanies criminal transgression - and the need to have some way of punishing such acts - allows us to believe that, however horrible prison is assumed to be, on some level maybe that's just how it has to be. Hence our fixation on the wrongfully-convicted, although they certainly deserve whatever efforts are made on their behalf. 

My problem is that I remain entirely unconvinced that the way we deal with our rightfully-convicted is anything other than an awful, centuries-long experiment that has from its very inception failed on its own stated terms, and whose time must come. Yet victories like Troy's remain more the exception than the rule. All the more reason to celebrate the ones who make them happen, or labor each day for countless smaller wins.

We don't defend the guilty just to indirectly help the innocent. We defend the guilty because, in almost every case, a vengeful society wants to punish offenders far more than is just.

Romney Lies About Unemployment

(By Andrew MacKie-Mason)

I got an email from Mitt Romney today, through the Daily Caller. It included the following claim:

We believe in America, even though President Obama’s failed policies have left us with record high unemployment, lower take-home pay, and the weakest economy since the Great Depression.

There are plenty of ways to read "record high unemployment." The most direct way to understand it would be as claiming that unemployment is higher now than it ever has been before in America's history. But let's be charitable to Mitt and allow the bit about "since the Great Depression" to modify "record high unemployment."

The claim is still extremely false. First of all, unemployment has fallen, under President Obama, to around 8.3% from its high at 10% in October 2009. Unemployment has also passed 8% at several other points since the Great Depression, including all of 1975 and November 1981 - January 1984. It even crested 10% from September 1982 until June 1983.

Let's have an honest debate this election year.

Romney Courts Birthers

(By Andrew MacKie-Mason)

President Obama's reelection campaign hasn't been very impressive. But what does it say about Mitt Romney that he's resorted to courting the birthers, the epitome of radical conservative insanity?

"Legitimate" Rape Claims Are Republican Mainstream

(By Andrew MacKie-Mason)

I'm slow to the party on this one, but I think this needs to be repeated, over and over. By now, Todd Akin's words should be familiar to almost everyone:

“First of all, from what I understand from doctors [pregnancy from rape] is really rare,” Akin told KTVI-TV in an interview posted Sunday. “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

A lot of the outrage and mockery of Akin has focused on his laughably false assertions that "the female body has ways to shut that whole thing down."

But there's something deeper and far more troubling going on here, and it's something that puts Akin right in the mainstream of Republican politics (even if he's far more open about it than other people are). Akin's comment is indicative of a belief that some forms of rape are "legitimate[ly]" rape, and others are only "sort of" rape. Many Republicans supported a bill in the House called "No Taxpayer Funding For Abortion" (there were 277 cosponsors, 11 of whom were Democrats). Those cosponsors included Paul Ryan, Mitt Romney's chosen Vice-President, as well as Todd Akin.

The "No Taxpayer Funding For Abortion" act would have changed the standard rape-exception language to allow taxpayer-funded abortions:

if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest.

In other words, abortion would not have been allowed in the following circumstances (because, it seems, the rape involved is somehow not 'legitimate.')

• A thirteen-year old girl who is coerced into sex by her eighth-grade teacher who uses his position of authority to intimidate her.
• Any rape victim who says "no" but does not physically resist her attackers (and thus does not require them to act "forcibly" in order to complete the act).
• Any woman who becomes unconscious or unable to consent due to the voluntary intake of drugs, and is raped while in that state.

Even though the Republican Party tried to punish Akin, his most disgusting views are very much in the Republican political mainstream. He just had the audacity to express them on television. Remember that before casting a vote this November for the Romney-Ryan ticket, or for any of the other cosponsors of the "No Taxpayer Funding For Abortion" act.

Michigan 2012 Elections: Emergency Manager Ballot Measure

(By Andrew MacKie-Mason)

So far, there is one ballot measure approved for the 2012 election in Michigan: whether Public Act 4 of 2011, the highly controversial emergency manager act pushed through the legislature by Rick Snyder, should be instated or rejected.

I'm not going to rehash all of the reasons why the emergency manager act is terrible. I've collected lots of information on this page, including old posts (at the bottom of the page) on this blog. Suffice it to say, in summary, that the bill unconstitutionally eliminates local government, putting control of entire cities or school districts in the hands of a crony of the governor. It also imposes the costs of doing so on the local community, when that community has no authority to prevent the emergency manager from making unnecessary expenditures.

Everyone who values local democracy should vote to repeal this unconstitutional law. There are better ways to ensure the financial stability of local governments than this.