It should by now be abundantly clear that the laziest cases against the inevitability of polygamy are starting to push up the daisies. Before Justice Kennedy decided to appoint himself the nation’s most cherished arbiter of dark magic and inscrutable liberty, it was sufficient for the champions of matrimonial transformation to wave their hands and to cast their inquisitors as madmen. “Nobody is talking about multiple marriage,” they would scoff. “And even if they were, the people wouldn’t stand for it.” Today, in the first week of the Age of Substantive Due Process, neither of these rejoinders will fly. It is not just that we are now moving with such speed that what “nobody is talking about” yesterday becomes our deafening conversation by the next — although, increasingly, we are — it is that what the majority wants has been set aside. Had the Supreme Court elected to find a narrow right to gay marriage within the Constitution’s text, the “polygamy couldn’t happen brigade” might have a leg to stand on. It didn’t. They don’t.
It is for this reason, I suspect, that supporters of the ruling have this week intuited the need for a more robust set of rebuttals. One such, featured yesterday in Politico Magazine, struck an uncommonly exasperated note. Although “the polygamy argument doesn’t stand up to scrutiny,” Jonathan Rauch griped, “that doesn’t stop it from popping up everywhere.” Rauch concedes openly that he has been irritated by the likes of Justice Roberts, Fredrik deBoer, and Carmen Fowler LaBerge — all of whom have reacted to the ruling by indulging in a “non sequitur.” “No,” he writes impatiently, “polygamy isn’t the next gay marriage.” Shut up, already!
Rauch’s central contention is an unashamedly practical one. “Unlike gay marriage,” he advances, “polygamy is not a new idea.” Rather:
it’s a standard form of marriage, dating back, of course, to Biblical times and before, and anthropologists say that 85 percent of human societies have permitted it. This means we know a thing or two about it.
It is not just that polygamy is an old idea, Rauch continues, but that it is a bad one. To underscore this judgment, he cites the “extensive literature,” which apparently demonstrates that “polygynous” cultures exhibit “significantly higher levels of rape, kidnapping, murder, assault robbery and fraud” than monogamous cultures, and shows that “monogamy’s main cultural evolutionary advantage over polygyny is the more egalitarian distribution of women, which reduces male competition and social problems” — among them, increases in “long-term planning, economic productivity, savings and child investment.” In fact, Rauch concludes, “by abolishing polygamy as a legal form of marriage, western societies took a step without which modern liberal democracy and egalitarian social structures might have been impossible.”
Over at Time, Reason’s Cathy Young rests her own polygamy-is-not-next case upon similar ground. “The entire existing structure of modern marriage is designed for a dyad,” Young proposes, and Americans are simply not ready for
the massive overhaul multi-partner marriage would require: including revising the rules on post-divorce property division or survivor benefits for three, five, or 10 people instead of two; adjusting child custody arrangement for multiple legal parents; and determining who has the legal authority to make decisions for an incapacitated spouse.
It is possible that Rauch’s empirical judgments are correct; feasible, too, that Young has offered up a fair adumbration of exactly what it would take to adjust the legal order to accommodate polygamous relationships. And yet, in the long term, these roadblocks will almost certainly prove irrelevant. As anybody who followed the debate must surely recognize, same-sex marriage did not win the day in the court of public opinion because Americans came to believe that the “literature” supported it, or because the empirical evidence apropos of divorce rates and domestic violence bolstered the case, or because it became possible to convince judges that there was no “rational basis” on which the status quo could be maintained. It won because it was presented as a moral imperative (#LoveWins), because its opponents were cast as “haters” and thereby frozen out of the debate, and because its champions came to make heavy use of two ideas that Americans rightly cherish: namely, “rights” and “equality.” The precise moment that the specter of Jim Crow was raised, the traditional-marriage movement was dead in the water. Upon that instant, all the talk of children, of divorce rates, of history, of civil society, of unintended consequences — all of these became a mere sideshow. The central question: Were you on the Good Side or the Bad?
If the nascent polyamory movement prevails, it will be for exactly the same reason. In his Politico essay, Jonathan Rauch knocks Purdue’s Fredrik deBoer for arguing immediately after the Obergefell ruling that polygamy was the obvious next step. DeBoer, Rauch alleges, elected to “ignore the literature altogether,” thereby revealing a dangerous “intellectual laziness” and a lack of interest in the parameters of the present debate. To my eyes, this is an unfair charge. In the course of his argument, deBoer cites John Roberts’s asseveration that the Supreme Court’s inchoate majority opinion could well be applied elsewhere; he notes that “polyamory is a fact,” and that the material question is thus whether we will “grant to [its practitioners] the same basic recognition we grant to other adults”; he addresses head-on the critique that “polygamous marriages are typically sites of abuse, inequality in power and coercion”; he draws a line between bestiality and strictly human arrangements (“consent”); and he preemptively knocks Cathy Young’s practical objections by supposing that “logistics . . . are insufficient reason to deny human beings human rights” and that “if current legal structures and precedents aren’t conducive to group marriage, then they will be built in time.” What deBoer does not do — and he is smart to so decline — is indulge the conceit that questions such as these are resolved by fealty to the rule of law or by close reasoning. They’re not.
#related#Which is to say that Fredrik deBoer appears to know instinctively what Jonathan Rauch and Cathy Young do not: That this is a culture in which spending time repudiating your naysayers’ objections is wasteful and counter-productive. As deBoer writes on his blog, he starts not from the position that polygamy makes sense in a vacuum, but that there exists a “natural moral right to group marriage,” and he proceeds with gusto from there. “If my liberal friends recognize the legitimacy of free people who choose to form romantic partnerships with multiple partners,” he asks puckishly at Politico, “how can they deny them the right to the legal protections marriage affords?” Give him this: The man knows his audience. To the reader who wants to be “on the right side of history,” words such as “deny,” “legitimacy,” “free people,” and “right” are potent indeed. “Literature,” “empirical,” “constitutional,” “statistical,” “historical”? Not so much. The great tragedy for Jonathan Rauch and his many brothers in arms is that what they regard as being a solid case for the status quo will in reality be treated as such for only as long as our political instincts demand. In five, ten, fifteen, maybe twenty-five years, Rauch may well find himself presenting precisely the same arguments as he is today, but being booed rather than applauded for his troubles. This is not the battlefield on which the war will be won.