I am pleased to announce that I have been invited to join In The Agora as a contributor and have accepted that invitation. For those who are not familiar with it, In the Agora is an excellent group blog founded by Josh Claybourn and Paul Musgrave. I have admired their work from afar and linked to them once in a while; ironically, this invitation came as a result of having been critical of something Josh had written about a recent Supreme Court decision. I have long considered them to be two of the best young conservative writers, and I am pleased that they've asked this mildly left-wing libertarian type to join them around the table for good conversation.
I will probably only be posting a few times a week to In The Agora; this will remain my primary focus. Some posts will be added to both blogs and some will be written specifically for one or the other. I'm sure there will be a lively exchange on many of the issues of religion, law and culture in which we all share a deep interest.
I think that homosexual marriage and relations are immoral in the Christian tradition. Also, I think it is difficult to impossible to have ethical standards without religion. In the West both Christian Ethics and Marriage are on the decline. In this context polygamous marriage, homosexual marriage, marriage between parent & adult children or among siblings is fine. All these individuals have the Liberty to engage in the relationships that they wish to. This is the logic of Lawrence v. Texas and the entire Enlightenment tradition that puts individuals in charge of their lives. This also means that marriage is increasingly meaningless.
Most human cultures are polygamous. They are no great social or legal complexity is establishing polygamous relationships. For example, 33% of all births are without benefit of marriage. A male can and does impregnate multiple woman already. We are already 60% of the way to a formal recognition. A polygamous marriage can be no worse then female headed households.
You have to look at the history of marriage. The Catholics banned polygamy (a very strange decision, historically the West was the first civilization to ban polygamy) and considered marriage a sacrament. The reformation stated that marriage was a covenant. Civil courts replaced church courts and civil law replaced cannon law. A covenant was more then a contract. It was life-long commitment among the Couple, their parents, children, God, and the community. However, when the covenant was broken (by desertion or adultery) the innocent party could dissolve the covenant. In the late 1800s the US Supreme Court banned Mormon Polygamy on the grounds that it violated Christian morality. The Husband was the head of this marriage relationship. In the US and the West, the Enlightenment shifted the basis of marriage from covenant to contract. Coverture ended and marriage increasingly became a contract between equals. This shift was gradual, but was finalized by 1970 with No-Fault Divorce. Basically, a husband or the wife can terminate a marriage at will for any or no reason. The lawyers added the notion of marital property with this change to No-Fault divorce. Previously, property was owned by who every had the Title. Now all property acquired during a Marriage is considered marital. Contract law is stronger then family law, a person has more contractual protections when he or she buys Toaster from a Store.
Husbands are the not the heads of families. Parental consent is not required. Wives do not have to provide sex within marriage, and most states now recognized marital rape, wives do not have to move with their husbands. The Husband has a duty to support the wife, but the wife has a duty to support her Husband. In most states fornication is not a crime. Birth control cannot be limited. Abortion is legal, although males are now responsible for children they conceive and the woman decides to carry to term. In around 1/3 of states Adultery is not a crime and not to be considered in a divorce settlement.
These legal changes followed massive social changes in the West. I think the major social reasons for the change in marriage has been:
1.Control of Fertility (birth control and abortion), and the lower birth rates
2.Lower Child Mortality
3.Production moves outside the Home, first men and then women become specialized
4.Greater Female Labor Participation, closing the income gap with males, and the ability to own property
The results are clear 33% of births occur without marriage and the divorce rate of first marriages is around 44%. Around 70% of these divorces are initiated by women. The effects on children are uniformly bad. Around 12% of kids from intact families get in serious trouble, over 25% of kids from divorced families get into serious trouble.
There is the interesting policy consideration the most attractive men would have most woman and thus leave unmated males. This was an issue in the Mormon experience. The Germanic tribes tended to enforce monogamy so that each man could have a wife. However, with divorce and prostitution, this problem can be solved. The value of women should increase in the arrangement as men bid for their services. The same problem occurs with any scarce "good." If rich men buy all the BMWs, there will be many men without BMWs. This is just the way the world works. The lower income men can share a wife, pay for a wife, hire a prostitute, etc. Market arrangement should allow people to "buy" the mates they want. Each individual involved can terminate the arrangements when they no longer work for him or her and/or a better alternative becomes available. In point of fact this is already the world we live in. Gay marriage can only is an issue when Christian Marriage is almost dead. You can argue that certain relationships are bad, like collusion in pricing or monopolies. But I do not see a legal or ethical basis, except the inertia of Christian tradition.
In the US marriage law, marriage is mainly a Contract. The idea of marriage as a status was dealt a fatal blow with the end of Coverture. States do establish a default will between spouses that will override an individual's will. But, this can be changed via contract (pre or post-nuptial agreement) or by a divorce. Marriage obligations are unenforceable. No court has every said a husband has to give a wife X dollars or that wife must provide sex. People will live together until one of them decides not to. All the courts concern themselves with is on what terms to end a marriage. The courts have three decisions:
1. Identification and Division of Marital Property
2. Alimony Award (if any) and its Duration.
3. Child Custody and Child Support Award (handled via tables relative to parental income)
Contact Law could handle #1 and #2; parental agreement or court decisions would handle #3 (Custody). Once Custody is determined, Child support is a Table Look-up. From a legal perspective polygamy is not a problem. I do not see any legal problems with polygamy, except for the bigamy laws. But we have already established that individual's liberty interests trump the states ability to define what marriage is. I do not know if the Supreme Court will follow up on the logic of its reasoning, the court does pay some attention to elections, but the above is clearly the case. The supporting cultural changes will be harder to come by, but given the end of Christian morality, post-modern "tolerance," and the vast human experience with polygamy, the cultural changes should come. How can you prevent people from choosing what they jointly want??
Of course there is the general issue of Ethics and their role in a stable social order. What we have now will not work over the long-term (I think). It is hard to imagine what might come next.
Join them if you wish. I have problems with group blogs because it is often difficult to follow a theme on group blogs. The Volokh blog is a case in point--there are so many people there with so many axes to grind that the blog is virtually worthless. I go there only when there is an interesting SupCt decision, and only because the updates on Jack Balkin's blog are a bit delayed.
NB: I suspect that Alan's comment was directed to the post below.
Not only that, but it's hopelessly confused. Lawrence had nothing to do with marriage, for starters, and while most human cultures are polygamous, this does not mean it would be easy to accomplish polygamy given the legal system that we now have.
And did I notice somewhere that he would prefer to legalize marital rape? Sigh...
Wow, that one was one huge, confused welter of nonsense that Alan dropped on both posts. Should I even bother replying to it?
I enjoyed the fact that he seems to be upset that "fornication is not a crime" and that "Birth control cannot be limited." I always thought I should be locked up for having sex with my girlfriend these last 3 years outside of marriage. AND we use 2 forms of birth control!! There ought to be a law...
Lawrence had nothing to do with marriage, for starters...
Well, maybe. Don't be so sure, when you're dealing with wingnuts. Having dealt with more than a few of them over the years, I have become persuaded that one of the issues they have regarding so-called "gay marriage" is that "marriage" is someone's imprimatur--government? a church?--to have sex with the partner. It isn't quite clear, but maybe some believe that, if there is no "gay marriage," gay people won't have sex. Or maybe some believe that, if there is no "gay marriage," at least gov't or the church won't be putting its imprimature on the sex that gay people are having.
There is no rationality to any of this, of course. But it is useful to listen to what they are saying.
BTW, it if you don't believe me regarding gov't or church regulation of sexual activities, I would only suggest that you check the various laws regarding sex that have existed over the last few hundred years, not only in the US. Laws against fornication, laws against adultery, and, yes, laws against sodomy.