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Is there a Right to Polygamy? Marriage, Equality and Subsidizing Families

Is there a Right to Polygamy? Marriage, Equality and

Subsidizing Families in Liberal Public Justification

Andrew F. M arch

Introduction: The Slippery Slope and the Slide from Same-Sex Marriage to Polygamy

If a state with liberal political and justifi catory commitments extends recognition and benefi ts of various kinds to persons forming families, what qualifi cations may such a state place on the right to access to those benefi ts?

Proponents of same-sex marriage or civil unions often go to great lengths to argue that same-sex marriage is not susceptible to the slippery slope argument,[1] which holds that overturning discriminatory laws against homosexuals implies allowing “bigamy, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”[2] I believe that they are right to take on the slippery slope argument in public and in the context of the American legal system, particularly the assumptions that allowing same-sex marriage can only be a function of moral relativism or turpitude – the unwillingness to make any moral judgments or the failure to make the right ones. However, must we resist any further movement down the slippery slope? Why should we stop at samesex marriage? Why can’t we allow polygamy? Or, indeed, marriage between close blood relatives?[3] Just why should the liberal state be in the business of deciding which forms of domestic partnerships are permissible and eligible for recognition? More importantly: what resources do persons with liberal political and justifi catory commitments have to answer these questions in public , and what constraints do those commitments place on them?

I will make two assumptions for the purposes of this paper. h e fi rst is the political and justifi catory terrain of some form of political or otherwise nonperfectionist liberalism. h e assumption is that we are considering the resources and limitations of a community of persons who accept moral pluralism (if not a specifi c doctrine like the “burdens of judgment”), some priority for individual freedom, and the obligation to justify public coercion and exclusion in terms accessible and fair to all members of morally and culturally diverse society. h e second is that it is justifi ed for a liberal state to recognize some forms of domestic partnerships or families in the fi rst place. It is, of course, possible to imagine the argument that the liberal state gets out of the marriage business by getting out of it entirely – by extending no recognition or positive rights to families whatsoever beyond negative non-interference rights. However, I am interested in the dilemma of a society broadly like existing liberal ones which is committed both to recognizing (and/or subsidizing) families and also to justifi catory neutrality (expressed in American constitutional legal terms as the requirement of providing a “rational basis” for unequal treatment).

I t seems to me, at least as far as polygamy is concerned, that the conservatives are right, but this is in fact only to say that for many (not all) of the good reasons why same-sex marriage should be legal, so should polygamy.[4] However, as the comparison to same-sex marriage reveals, there are in fact two separate questions at stake. First: should de facto polygamous relationships or family arrangements (continue to) be criminalized even when the adult persons involved do not seek any recognition or subsidy from the state? Second: must a liberal political community which tolerates such de facto relationships also extend to them formal legal recognition as “marriages” and any of the social benefi ts which are attached to that recognition?

A nswering “no” to both questions is certainly coherent. It is not diffi cult to argue that where there is no evidence of coercion or abuse the state should not actively interfere with families merely because multiple adults have pronounced themselves “married,” but also that there is no prima facie obligation to publicly recognize these unions as “marriages” and to extend to them social benefi ts. Excluding polygamous relationships from the public status of marriage could be justifi ed on a variety of public policy grounds, for example that recognition would result in numerous foreseeable and unforeseeable legaladministrative complications and that exclusionary laws are needed as a legal device to combat instances where child abuse or coercion is suspected but hard to prove. Liberal theorists could also advance a “reasonable democratic authority” argument that the social institution of marriage is not a primary good but rather something which is legitimately left to a democratic society to defi ne so long as other basic rights and freedoms are respected.

Furthermore, in the case of polygamy we fi nd absent many of the considerations which make the above democratic authority argument so unappealing for many liberals in the case of same-sex marriage. In that case, the state’s mere tolerance of homosexual acts and lifestyles while denying public recognition through extending the right of forming legal unions is a form of stigmatization which marks homosexuals as less than equal and often does so on the basis of deeply controversial comprehensive reasoning about morality and the good. An argument compatible with public reasoning could be made, however, that polygamous lifestyles do not make the same demands on our conscience for recognition and thus that decriminalizing polygamy in private while failing to recognize plural marriages limitlessly does not represent a form of stigmatization, disrespect or second-class status. Such an argument might take the following form.

A Case for the Disanalogy between Same-Sex Marriage and Polygamy

M ight a liberal society be entitled to treat polygamous partnerships as a form of “expensive taste,” the way that it treats religious commitments? If the logic behind recognizing (and possibly subsidizing) marriage is that forming a family is an inherent good both for the parties involved and for the wider society, as well as something a reasonable psychology (or even a reasonable anthropology) expects most people to desire, then this is not tantamount to saying that every choice free individuals make in relation to their conception of family life is entitled to positive recognition. By analogy, recognizing a right to education at public expense is not a right to limitless education nor is a right to a housing subsidy or tax credit a right to the same for multiple properties. Because persons inclined to polygamous relationships can form them and enjoy legal protection, failing to formally recognize them as marriages is not the same act of disrespect or non-recognition in the way that creating diff erent legal categories for heterosexuals and homosexuals is. Failing to recognize them limitlessly is not an act of disrespect because the reason for not doing so has nothing at all to do with the value or morality of forming polygamous relationships, any more than the failure to subsidize expensive tastes involves a condemnation of all expensive tastes as inherently worthless or immoral.

Furthermore, part of what troubles us about the lack of recognition of homosexuals in the case of denial of marriage rights is that we do not today understand homosexuality as a taste at all, if part of what is meant by “taste” is that it is semi-voluntary, cultivated or transitive (i.e., that it could be satisfi ed by other, less costly, habits such as heterosexuality). We know homosexuality to be innate and repression of it to be extremely costly in psychological and emotional terms, not comparable at all to the frustration of not being able to act on all of one’s expensive tastes. h us, denial of equal rights and status in this case is troubling for reasons more profound than a mere presumption of freedom. Our present understanding inclines towards a view of homosexuality as an irreducible part of some persons’ very selfhood; failure to recognize it is thus much closer to fundamental disrespect of another tout court than it is a failure to accommodate someone’s expensive taste.

C ould the same be said about polygamy? It is possible that some of the same elements of innateness are present, as they are at some level in all drives, inclinations and tastes, but perhaps the same elements of particularity are not. It is perfectly plausible to assume that an inclination toward polygamy can be rooted in natural, non-chosen, non-cultivated traits. Evolutionary psychology would certainly support something like this. In fact, it seems plain that monogamy is not so much an innate inclination, the natural state of things, as a social institution to which humans have to accommodate themselves with some diffi culty and at some cost. So polygamy, perhaps, is not an arbitrary, self-indulgent expensive taste but rather something with a natural basis.

But this claim may prove too much for the purposes of sorting out our inclinations about rights and recognition. For whereas the point about homosexuality is that it is not only natural but particular to certain humans (thus giving rise to the need for recognition on the part of the majority), the case for polygamy as natural reveals it to be more along the lines of an appetite or universal inclination, like the need for sex, comfort or intimacy itself. h is understanding, if something roughly like it is accurate, gives strong reasons for tolerating and fi nding a place for it in society, but simultaneously dilutes the case for recognition of it as a part of someone’s personhood or identity since the claim is essentially that it is latent or potential in all humans. What is universal may ground claims for allowance, provision or tolerance, but not for recognition by others. h us, we understand the inclination toward polygamy as the inclination towards certain human interests and appetites found in other activities as well. It is no more in need of specifi c recognition than the pursuit of wealth, power, comfort or companionship.

So something like the preceding would be a liberal case for legalizing the practice of polygamy but not necessarily extending the legally recognized status of “marriage” to polygamous relationships. Is there a case, however, for extending the legally recognized status of “marriage” to polygamous relationships and how strong is it?

h e Place of Religious Free Practice and Cultural Sovereignty Arguments

L et me begin by disposing of a few arguments, or variations on one big argument, which I am not using to defend the permissibility of polygamy and/or extension of marriage rights. h ese arguments might go under the name of “religious freedom” or per-

haps under the banner of “multiculturalism” or cultural relativism.5 h e fi rst would say that citizens have the right to practice their religion and the state intervening to restrict this is an intolerable intrusion on this right. Here what is invoked as valuable is religion itself; either religion is something so valuable in its own right that the state should interfere with it as little as possible, or the practice of religion is so valuable, precious, and intimate to the persons involved that the state oppresses them when it stops them from doing what their faith commands.6 h e second would say that we have a moral commitment to

5 Most treatments of the problem of polygamy focus on it within the context of religious pluralism or multiculturalism. From the vast literature on multiculturalism, for discussions of polygamy see, for example, Amy Gutmann, “h e Challenge of Multiculturalism in Political Ethics,” Philosophy and Public Aff airs 22: 3 (1993): 171-206, Susan Moller Okin, Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999), and Sarah Song, Justice, Gender, and the Politics of Multiculturalism (Cambridge: Cambridge University Press, 2007). Bhikhu Parekh considers the case for polygyny and polygamy separately in the context of his broadly sympathetic defense of multiculturalism. He argues that polygyny “violates the principle of the equality of the sexes and has unfortunate consequences, [while] so far as polygamy is concerned, the case is not so conclusive.” But since as practiced today, polygamy is associated with unacceptable inegalitarian consequences, “we are right to continue to disallow it.” (Parekh, Rethinking Multiculturalism: Cultural Diversity and Political h eory (Cambridge, MA: Harvard University Press, 2000, p. 292.) h om Brooks advances a similar argument in “h e Problem with Polygamy,” Philosophical Topics , Vol. 37, No. 2, pp. 109-122 (2009).

6 Of course in the United States the question is not so much one of philosophical justifi cation but of a particular legal tradition of recognizing the free practice of religion as a specifi c right. On the treatment of polygamy as a problem for American constitutional guarantees of religious freedom, see Clark B. Lombardi, “Nineteenth-century Free Exercise Jurisprudence and the Challenge of Polygamy,” Oregon Law Review 85 (2007): 100-175; Joseph Bozzuti, “h e Constitutionality of Polygamy Prohibitions after Lawrence v. Texas : Is

Scalia a Punchline or a Prophet?” h e Catholic Lawyer 43 (2004): 409-442; Alyssa Rower, “h e Legality of Polygamy: Using the Due Process Clause of the Fourteenth Amendment,” Family Law Quarterly 38 (2005): 711-731; Michael G. Myers, “Polygamist Eye for the Monogamist Guy: Homosexual Sodomy … Gay Marriage … Is Polygamy Next?” Houston Law Review 42 (2005-6): 1451-1486; David L. Chambers, “Polygamy and Same-Sex Marriage,” Hofstra Law

Review 26 (1997): 53-83; Elizabeth Larcano, “A ‘Pink’ Herring: h e Prospect of Polygamy

Following the Legalization of Same Sex Marriage,” Connecticut Law Review 38 (2006): 10651111. Martha Nussbaum has recently contributed to the polygamy debate, again through the lens of religious freedom and Mormonism and has raised doubts about a convincing

celebrate the variety of cultures in the world, that diversity is good per se, that “we” have no right to pass moral judgment on “them” or that failing to make generous cultural accommodations runs the risk of perpetuating domination and oppression of cultural minorities. Who are we to say that some other group’s way of living is wrong?7 But they are really the same argument. If a community wants to uphold its own standards of morality and virtue, then others supposedly have no independent or freestanding intellectual or moral resources to invoke against tolerating those standards.

B oth arguments, though, are woefully incomplete for persons with the political or non-perfectionist liberal commitments I am assuming. h e rights to free practice (religious or cultural) in a liberal democracy are obviously not absolute. h ey are limited primarily for two reasons: free practice cannot involve placing unreasonable burdens on other citizens (the Amish can’t endanger the lives of other road users by refusing to put refl ective triangles on their buggies) and it cannot involve depriving members of religious or cultural groups of their civil or human rights (what William Galston likes to refer to as the “no free exercise for Aztecs” principle8 – live human sacrifi ce is not protected by a liberal state no matter how strong the religious beliefs in question). Furthermore it is not clear that the reason why a liberal democracy protects religious or cultural freedom to the extent that it does has anything to do with the special and inherent authority of religion or culture. Liberals may certainly recognize that religion and culture are valuable (they may even have one or both of them). But if they are protected it is because individual choice and autonomy to pursue a conception of the good life are protected, not some collective entity or particular good like “religion” or “culture.” h e point is that there is very little force in the following argument: “You are right that the free practice of my religion or culture requires unequal rights and duties for

rational basis or “compelling state interest” against the practice, should the law guarantee sex equality. (Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality

(New York: Basic Books, 2008), pp. 197-8.)

7 Although this attitude amongst liberals is older than the multicultural turn. In On Liberty , J.S. Mill addressed Mormon polygamy not as a form of autonomous experimentation, but as an oppressive practice for women. Yet, he insisted that no community was entitled to carry out a “ civilizade … to force another to be civilized.” (J.S. Mill, On Liberty , in On Liberty and Other Essays, John Gray, ed. (Oxford: Oxford University Press, 1991), p. 102.) On Mill’s views on polygamy and their insuffi ciency for a contemporary liberal, pluralist, and feminist approach to illiberal religious communities, see Bruce Baum, “Feminism, Liberalism and Cultural Pluralism: JS Mill on Mormon Polygyny,” Journal of Political Philosophy 5:3 (1997): 230-253.

8 William Galston, Liberal Pluralism (Cambridge: Cambridge University Press, 2002), p. 23.

various members of my community and that members of our community do not have the freedoms that you secular liberals prize. But in preventing us from practicing our religion or culture, even to ‘protect our vulnerable members’ as you love to say, you are oppressing us no matter what the reason.” Liberalism does not deny that religion and culture are valuable, but it has no need for their inherent value one way or another: either something is permissible because it involves no unreasonable burdens on others or it is a violation of someone’s civil rights no matter how strong the religious or cultural justifi cation .

P erhaps these comments do not prove the case against religious freedom and cultural sovereignty arguments for polygamy or other similarly controversial practices.[5] Perhaps a religious rationale for polygamy helps explain why there might be an argument from recognition for polygamous marriage, contrary to my earlier argument distinguishing polygamy from homosexuality. A religious or cultural rationale for polygamy might help ground the particularity which I suggested gives rise to demands for recognition. But as I am not arguing against the permissibility of polygamy and other similar practices I do not have to prove that case. Rather, I am merely declining to argue for the permissibility of polygamy and other similar practices on the basis of religious freedom and cultural sovereignty arguments because I feel they are not necessary for it, although it is also the case that I believe that they are not suffi cient for it either. In fact, what I will argue for the case of polygamy is that the presence of religious or cultural arguments for the practices may actually count both for and against them.

Should the Liberal State Get Out of the “Marriage” Business? Leveling Down to a Universal Civil Union Status[6]

I would like to begin by suggesting that asking whether each non-traditional form of domestic partnership has a right to be recognized as “marriage” is an arbitrary way of approaching the relationship between the liberal state and domestic partnerships. Given the commitments of political and nonperfectionist forms of liberalism, I believe that the most justifi able policy on liberal grounds is not the institution of “marriage” increasingly open to new constituent relationships but rather a universal “civil union” status which fulfi lls the social and moral aims behind recognizing and subsidizing the family[7]but is entirely neutral not only to the gender or even to the numbers of the partners, but also to the aff ective and emotional content of domestic life and the purposes behind contracting domestic partnerships. I believe that this move to a more neutral language has an intuitive appeal for political liberals. However, I will introduce here a specifi c positive argument for this move grounded in political liberalism’s aim of attenuating social confl ict by removing unnecessary philosophical, religious, and linguistic obstacles.

h e strongest argument for recognizing same-sex marriage beyond mere civil unions when the state off ers “marriage” to heterosexual couples is the argument from equality and recognition. h e state treats homosexuals unfairly when it denies them access to the same social goods and benefi ts open to heterosexual couples and fails to treat them fully as equals when it off ers them a diff erent public status, even one with the identical package of objective goods and benefi ts. In fact, conferring a “civil union” status short of marriage (when the latter is available to heterosexuals) publicly marks the unwillingness to extend to homosexuals recognition of them as equal to heterosexuals and is thus a form of stigmatization. h erefore, the only just policy is to level up all the way to full marriage rights.

W ell, another way of handling the problem of recognition and status is to level down .[8] Why not treat “marriage” the way we treat religion: something protected and possibly subsidized in moderate ways by the state but which the state is not in the business of defi ning, regulating, honoring or distributing other than for reasons of individual rights and legitimate public interests? Religion is left to persons and communities to defi ne and defend. Questions of fairness or recognition between conceptions of religiosity arise in this arrangement only rarely and at the margins. Of course, questions of secular versus religious authority arise all the time and the state’s authority aff ects diff erent religions diff erently depending on their traditional doctrines and practices, but rarely is the question merely the state’s obligation to recognize a minority religion as a religion[9] but rather the state’s right to trump religion for legitimate public reasons. Similarly, then, if all the state off ered to anyone was legal status as a civil union without making any statement on the true or best defi nition of “marriage,” then there could be no complaint of unfairness or disrespect by those off ered a status less than “marriage.”

Furthermore, removing the symbolic good of the word “marriage” from the authority of the state may also appeal to conservatives or the religious. At least part of what troubles them about same-sex marriage (and certainly polygamy and incestuous marriage as well) is precisely the collective, public bestowal of recognition on homosexual relationships as the same thing as heterosexual ones. Leveling down, which is essentially the privatization of the commodity of “marriage” as an emotionally and symbolically invested concept, solves this problem. h is symbolic commodity can now be the monopoly of every group which wants it. h e state doesn’t baptize, so why should it “marry”? More accurately, the state doesn’t say who can be baptized, why should it say who can be “married”? Conservatives and the religious presently opposed to samesex marriage can keep the institution of “marriage” and merely have to suff er the knowledge that homosexuals can confer social and economic benefi ts on one another by availing themselves of the public civil union status.[10][11] And if neither are satisfi ed by this (i.e., same-sex marriage advocates still want the offi cial bestowal by the state of “marriage” as an act of public recognition and same-sex marriage opponents still want to monopolize decision-making of those to whom the state extends certain social goods and legally recognized domestic status), then liberals can with a good conscience claim that they are both demanding something to which they are not necessarily entitled.[12] h us, the question for this paper becomes whether polygamous relation-

ships ought to be eligible for such a proposed universal civil union status or whether there are victorious public reasons for making a principled distinction between two-member heterosexual and homosexual unions on the one hand and multi-member unions on the other.

h e Presumption of Permissibility: Starting from the Bottom of the Slope

My argument for allowing multi-member partnerships to access this civil union status will largely proceed on negative terms, that is, by considering acceptable arguments for stopping the slide down the slippery slope beyond same-sex civil unions and excluding polygamous unions.[13] In a politically liberal society there must be a presumption of permissibility and the burden of justifi cation is on those who would proscribe or who would establish exclusionary grounds for access to a particular good. Once we accept the commitments of justifi catory liberalism the emphasis shifts to the reasons which would count as legitimate ones for excluding some persons from access to a good otherwise extended to all citizens.[14] h us, all of the same commitments which condemn prohibitions on same-sex marriage are presumed applicable to all other cases until shown otherwise. In addition to concerns about arguments from existing cultural practices or religious morality, justifi cation cannot be a rationalization of brute disgust. h e less refi ned feeling that something “is just wrong” but which is based on no deeper refl ection than the brute disgust at something alien ought to raise fl ags for political or justifi catory liberals.[15] Sometimes moral “beliefs” really go no deeper than the disgust or revulsion at the alien. h e fact that many moral judgments at heart rest on nothing more than a feeling that something – miscegenation or homosexuality, say – disgust us should put us on guard; perhaps even liberals oppose practices (polygamy, incest, Islamic veiling, clitoridectomy) for which they believe they have reasons or rational distinctions whereas in fact they are expressing the same disgust at the unfamiliar which rests at the heart of much opposition to same-sex marriage.[16] h us, in the liberal state the question must be “Does this practice intrinsi-

cally involve the violation of the rights of someone else or unfair burdens on the wider society?” In other words, the argument for the permissibility of polygamous unions can only proceed by way of an evaluation of the strength of arguments against them. So let us say that there is a presumption in favor of the permissibility of polygamy, like the presumption in favor of same-sex marriage.[17] What anti-polygamists have to show is that polygamy is a practice – like clitoridectomy, domestic violence, depriving children of health care, and forced marriage – which is either an intrinsic violation of the equal civil or human rights of those involved or an unreasonable burden on others. I believe that there are four main plausible arguments against legalizing polygamy which are compatible with, or at the boundaries of compatibility with, the form of public reason I am assuming in this paper. h ey are the arguments from (1) female autonomy, (2) damage to children, (3) fairness in the marital market, and (4) the unfair burdening of society.

1. Female Autonomy

Of course, polygamy in a liberal state would have to be very diff erent from what some Muslims or Mormons presently have in mind. It would have to be regulated through civil law, as opposed to a fully autonomous religious law. Where there are concerns about domination, coercion or child abuse, there would have to be strict measures to ensure that these relationships are voluntary in a fairly robust sense. (Although I think this is not inherently more challenging than the existing debate over religious freedom and rights of exit in illiberal communities. In fact, in most cases it would probably be the same debate since there is no reason to believe that patriarchal communities which would gladly avail themselves of polygamy rights are any less patriarchal now in the absence of those rights.) And polygamy would have to be defi ned in neutral terms, which means foremost that it is open to women marrying many men as well or to various combinations of multiple Millian polyamorous experimenters searching for new ways of living. h at is, what is under consideration here is polygamy/polyamory and not polygyny, the latter being that which exists amongst some Muslims and Mormons. h us, from a purely formalistic legal perspective there is no particular defense on the female autonomy front that needs to be made. Multi-member civil unions on this scheme would be a form of multi-lateral contract with equal legal status for all members, including the right to refuse entry to new members.

Of course, proponents of the female autonomy objection do not point to the form of the laws in question, but to the reality of where polygamous relationships are likely to be created. In reality, the argument goes, polygamy is a practice which will only be popular as polygyny amongst deeply patriarchal communities, and allowing it will only give legal cover and political legitimacy to communities seeking to preserve patriarchy, indeed at times radically oppressive forms of patriarchy.[18]

I am sure that this picture of the practice of polygyny – even now on the ground – can be questioned both factually and philosophically.[19] A basic response along the lines of the former would be that the vast majority of polygynous families are not as tyrannical or oppressive as some of the extreme cases known to the wider public. Both good and bad lives are lived within them, just as in monogamous families.23 A basic response along the lines of the latter is that this objection, put too strenuously, would rest on either philosophically controversial conceptions of free will, or morally controversial conceptions of the level of autonomy and independence needed to live a good life which we do not apply generally to the same extent used to oppose polygamy.

But let us grant the concern. Let us concede that polygamy, if legal, would be most popular not amongst well-educated, autonomous, Millian, polyamorous experimenters but within those traditional, conservative patriarchal communities where concerns about the equality of women are real and salient, such as some FLDS and Muslim communities. Let us also concede that it would, at the very least, facilitate some of the abuses to female autonomy that we are concerned about. I do not even want to counter that legalizing polygamy would, like with prostitution or drugs, possibly alleviate some of the concerns about female autonomy because of the emergent possibilities for regulation and control.24 (Although this is an important point, it can only enter once we have established the basic point that a practice is itself not unjust but merely commonly associated with abuses. One would never propose legalizing slavery in order to better regulate it (with apologies to Marxists).)

analysis of women’s experiences with plural marriage within Canada’s only openly polygynous community, Bountiful, British Columbia. Campbell’s research amongst members of the Fundamentalist Mormon community in this town presents a counter-narrative to this common portrayal of the FLDS wife as submissive, silenced, and isolated.

23 In her defense of legalizing polygamy, Cheshire Calhoun gives numerous examples of how polygamy has been associated with many diff erent kinds of social, economic, and emotional arrangements. (Cheshire Calhoun, “Who’s Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy,” San Diego Law Review 42: 1023-42.

24 Although I am assuming that a multi-member civil union permissible under political liberalism would take care to avoid the dilemmas Brooks discusses of the right of divorce resting in one dominant partner. I do not want to address in this paper what the precise legal- administrative regulations would have to be, but I have in mind something like an association to which all members are equal contractors with rights to refuse new members. It is worth considering whether this feature which liberals would have to insist on would in fact make “liberal polygamy/polyamory” unattractive to conservative religious groups who presently desire the right to polygyny, thus accomplishing much of what liberals, egalitarians, and feminists care about.

Rather, I would like to consider just how strong the female autonomy objection to polygamy would have to be before it registered strongly on the justifi catory scale or became a “victorious” justifi cation (in Gaus’s terms). It is not enough to show that many actual plural families are unhealthy or distasteful in female autonomy terms, or even that the practice as it exists now inclines towards such evils as the domination of vulnerable women. h is may be true. (It is defi nitely true for the situations described in the recent Warren Jeff s and Eldorado, Texas polygyny cases.) But the problem is that this is true in actuality for so many diff erent types of marriage. Are we going to prohibit alcoholics from marrying? People with bad tempers? What about people, including women, who actually believe that the proper role for women is one of subordination to their husbands? Is there evidence that life lived under a tyrannical, patriarchal, egomaniacal man is worse as one wife out of four (or 24) than as a sole wife? Wouldn’t the opposite almost have to be true? So, yes, legalized polygamy would lead to lots of legitimate concerns about the safety, welfare, and autonomy of the women who are involved in it; but we have these concerns now and in regard to many practices we would not dream of proscribing, such as arranged marriages or even the very fact of marriage within a conservative, patriarchal community. So multiple-member civil unions would have to be as regulated as normal marriage, with special concern for the autonomy, property rights, and freedom of exit for vulnerable women. But these serious concerns are not insurmountable, and they certainly don’t make for a victorious moral case against legalizing and recognizing polygamy while we tolerate so many other inegalitarian practices.

Furthermore, because we are not advancing a (positive) free practice or cultural sovereignty justifi cation for polygamy, we are not ceding our right to intervene in cases of child abuse, coercion or severe domination. We are not ceding our right to insist on education for all persons, and on knowledge of the outside world and its laws. h at is, the female autonomy objection would have to be this strong to do heavy justifi catory work: it would have to be the case that poly gyny (a subset of polygamy) in any form is such an intrinsic violation of female dignity and autonomy that it demands preventing all forms of polygamy (the wider set) just so as to prevent the smaller subset. I do not believe that claim to polygyny’s inherent and intrinsic degradation of female dignity and autonomy to be prima facie strong enough to survive doubts grounded in our commitment to moral pluralism, non-coercion, and autonomy. Should that argument succeed, it might be worth considering what else it would claim with it by way of religious or cultural practices and whether this commits us to a form of perfectionist liberalism which seeks to erase as many sources as possible of even freely chosen inegalitarian or heteronomous relationships, consciousnesses and forms of life.[20]

2. Damage to Children, or the “Bin Ladin Objection” to Polygamy

It is also not enough to talk about the impact on children of living within plural marriages. h is is not to deny that it may be worse to be raised as one child out of 54 than as one child out of two. It may be worse for the children in question, but if plural marriages lead to lots of asocial children running about, this also may create a legitimate public interest in limiting it.[21] But I think here the evidence would not only have to be strong, but overwhelming and unambiguous, more like the eff ects of child abuse or withholding medical care than maladjustment. Whom else would we prohibit from marrying on the grounds that they are more likely to have asocial, maladjusted or neglected children? Busy people? Poor people? (Poverty is without a doubt a leading stressor on children.) Politicians? People who let their kids play video games too much?

B esides, look at the things that are like-polygamy-only-worse which we don’t proscribe, such as adultery, and serial divorce and remarriage. (Incidentally, one of the common positive arguments for polygyny in the Islamic tradition is that it reduces the incentive for the husband to divorce and thus may be benefi cial for wives and children in this regard.) Note that all of the above concedes that polygamy probably leads to bad lives. But what about the things which are like-polygamy-which-we-don’t-even-think-about : close extended families or multiple families living together in communes or small communities? Perhaps living in a commune with a bunch of friends/half-siblings is not such an inherently bad way to live. Although this paper is interested in exploring whether any arguments for prohibition of polygamy meet the requirements of a justifi catory or rights-based liberalism, it would not be diffi cult to explore how polygamy could fi t into all sorts of conceptions of the good, including feminist ones.27

3. Fairness in the Market for Partners

An argument from equality and distributive fairness could be put against legalizing polygamy. h e objection would be that legalizing polygamy would privilege the wealthy and unfairly disadvantage the less well-off . Rich men could aff ord to collect many wives and this would lead to a shortage for the rest,[22] leaving large numbers of unmarried men (“bare branches”) who are then more susceptible to criminality and other forms of anti-social behavior.[23]Such an objection is essentially a form of the Lockean proviso: one must leave “enough and as good in common…to others.” It is clearly trying to remain within the bounds of public reason.[24] What can be said in response? h is argument (in the form I presented it) has some of the same features as the “female autonomy” objection. h e fi rst is mistaking polygamy for p olygyny. But, to repeat, we not are talking about legalizing specifi cally polygyny . h ere is no need to assume that it is rich men who will be getting the privilege

27 See, for example, Elizabeth F. Emens, “Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence,” New York University Review of Law & Social Change 29 (2004): 277-376. See also Calhoun, “Who’s Afraid of Polygamous Marriage,” pp. 1037-1042.

of dominating the spousal market since the right will be open to women as well. h e second is the assumption that legalizing polygamy will in fact mean lots of polygyny and little of other forms of polygamy. It is not obvious that we should assume this, however, except for the earlier assumption about polygyny being attractive mostly to patriarchal religious communities. Perhaps this is true; but it then becomes the case that the risk of unfairness to poorer men is one which affl icts not an entire society but merely particular communities.[25] h us, at most, poorer Mormon or Muslim men (for example) might be disadvantaged. Even if true, would this amount to a victorious argument against allowing polygamy? h e only sense in which we have a “right to marry” is that the state cannot

deprive any citizen of her negative freedom to marry. But marriage is not normally treated as a positive right by liberal theorists in the sense of its successful achievement being guaranteed by the state. Nor is it usually treated as a social good along the lines of education, that is, something which sub-state groups may not conspire to deny some vulnerable members on pain of state intervention. Religious communities do not have the right to deprive their members of primary goods guaranteed by the state, and they do not have the right to deprive their children of such secondary goods as education and information about the wider society which are necessary components of a meaningful right of exit. So the danger in this case is only that a community’s practices might make it marginally harder for some adult men to fi nd eligible spouses, not to obtain primary goods or other resources for autonomous choices. But, how much harder would it have to be before the state is justifi ed in intervening in a community to the extent of proscribing practices which are not intrinsically oppressive? It would seem to have to give rise to a rather extreme level of deprivation before banning a competitive practice within a sub-state community emerged as the justifi ed response on the part of the state. But it is hard to imagine such a scenario.

Let us imagine that there is a religious community in which 5% of the men were able to monopolize 80% of the female population and in which only heterosexual relations are tolerated. Our concern at the moment is for the remaining 95% of the men who have to compete for the remaining 20% of the women.[26] If this community is so authoritarian and tyrannical that there is no realistic right of exit, then what we are talking about in eff ect is a cult and polygyny is the least of our concerns which might give rise to intervention. But if this community has robust institutions of protest and representation (“voice”) as well as rights of exit, then it could be said that men in fact disadvantage themselves by not seceding (forming splinter communities) or exiting (apostatizing). If the imbalance in the spousal market were this extreme but the deprived men (and other dissenting members, both men and women) had the freedom to form their own splinter community or join another religious group, then we can surmise that they actually deem the choice of leaving that community less favorably than not being able to marry. In this case our intervention would be an intolerable intrusion into persons’ moral independence, somewhat akin to forcing the Catholic Church to ordain female priests or Orthodox Jews to religiously abolish the institution of the get .33

O ther than religion, are there grounds for fearing that in practice men will be the ones marrying multiple women, and in such great numbers as to create a genuine public interest problem? To do so would seem to require strong psychological assumptions. Are women now clamoring to be a part of polygynous (one man-many women) partnerships when economic conditions are broadly favorable? In secular, post-traditional societies, do wealthy men feel a strong impulse to legally marry (as oppose to form sexual or emotional relationships with) multiple women? I cannot myself think of any reasons to assume that legalizing polygamy would result in fact in rich men accumulating multiple wives in great disproportion to rich women accumulating many husbands and other possible models of multi-member partnerships. Even if we assume that there will be at least some of the latter, then this dilutes the concern about imbalance.34 Furthermore, any psychological, anthropological or sociological evidence available to us today about likely mating patterns would invariably be tainted by socialization into expectations and desires fostered and facilitated by existing options.35 But if those options were changed, along

in this paper. However, for the purposes of considering “fairness in the marital market” as a separate objection to polygamy, we must assume that conditions of autonomy, choice, and rights of exit on the part of women are met in this hypothetical community.

33 h ere is an important distinction between insisting that civil law may not recognize radically inegalitarian religious practices and insisting that the religious groups themselves declare those practices to be superseded or abolished whether or not they agree to comply with civil law.

34 Even Jonathan Rauch, an eloquent and vociferous opponent of legalizing polygamy on the grounds discussed in this sections, acknowledges that in a complex, modernized society “some polygynous marriages would probably be off set by group marriages or chain marriages involving multiple husbands.”

35 Furthermore, such evidence would not only be largely speculative but also potentially self-contradictory. For example, when some people assume that polygynous (one man-many women) relationships would be much more likely for biological or psychological reasons than

with the social costs imposed on them, we cannot be sure – to the extent required for our present justifi catory purposes – what kinds of mating patterns might develop.36

Furthermore, do we need to assume that legalized polygamy would privilege only the wealthy ? One might also assume that physically attractive or otherwise more desirable and persuasive people would be able to accumulate multiple partners at the expense of erotic competitors. Should justice be concerned with neutralizing such natural advantages that some people have in inducing other free individuals to form voluntary intimate bonds with them? After all, in distributive justice we regard natural advantages as unearned and morally arbitrary, and thus we do not think that all social advantages derived from them are deserved. Why should this be any diff erent with the formation of intimate bonds? h us, it seems that the question is Are intimate bonds like wealth or other social goods in that we want to limit the eff ect of unearned advantages on the competition for their acquisition ?

h is seems intuitively misguided. First, I would repeat what I suggested

above, that marriage and intimacy are not primary goods, goods which a political community inevitably distributes as part of its basic structure and which it must thus take care to distribute fairly. From a social justice perspective it is not clear that anyone has a positive right to intimate relationships (i.e., that

one-woman/multiple-men relationships, it is common to point not only to existing practice or survey-data but also to evolutionary biology. But if an interlocutor pointed to evolutionary psychology to ground an argument against legalizing polygamy along the lines of the “market fairness” argument we are considering here, presumably one could retort with all sorts of other “truths” grounded in evolutionary psychology: “But women are naturally jealous and would rarely tolerate sharing partners so this will balance out the male proclivity to accumulate partners if women have full civic equality, including the right to refuse polygyny.” I think there is good reason to insist on a very high burden of proof and generalization before such assumptions about evolutionary psychology play a central role in justifi cation.

36 Dworkin argues on similar lines about the relative weight persons might place on wealth for their own self-esteem and life-satisfaction should they be socialized into his society committed to equality of resources. “It would be a mistake to suppose that the bizarre and mutually dependent attitudes about wealth that mark our own society – the ideas that the accumulation of wealth is a mark of a successful life and that someone who has arranged his life to acquire it is a proper object for envy rather than sympathy or concern – would fi nd any footing in an economic system that is free of genuine poverty and that encourages people, as the initial auction encourages them, to see bank account wealth as simply one ingredient among others of what might make a life worth living. For in our world, these attitudes are sustained and nourished by the assumption that a life dedicated to the accumulation of wealth or to the consumption of luxuries – a major part of whose appeal lies just in the fact that they are reserved for the very rich – is a valuable life for people given only one chance to live. h at proposition comes as close as any theory of the good life can to naked absurdity.” (Ronald Dworkin, “What is Equality? 2: Equality of Resources,” Philosophy & Public Aff airs 10:4 (1981): 283-345, p. 332.

some collectivity must provide them), much less a right which must be protected against unfair competition. h ere are other reasons for doubting that a just society would treat intimate bonds like wealth or other social resources. h ey are harder to accumulate, even when such accumulation is legal, than money or power. It is harder for accumulation on the part of one person to immediately impact others adversely in a large society. (I do not personally feel the devaluation of my assets and the infl ation of female market power because Hugh Hefner has six girlfriends.) And, unlike money, the accumulation of intimate bonds does not so obviously lead to class formation and the bleeding of inequality into political and social domination. But, most obviously, intimate relations require mutual assent. While the exchange of money for labor or goods between two persons requires mutual consent, this is not the consent of the good itself (which is what we are assuming for the moment that spouses are). h e money itself doesn’t have to consent to be possessed by Wilt Chamberlain as his entitlement. h us, part of what troubles us about interfering in the formulation of intimate bonds is what troubles libertarians about interfering in any free exchange: that it violates people’s rights to selfownership. But whereas libertarians move from self-ownership to a right to all possible goods (and the power they confer) that one can accumulate through free exchange, what is at stake in forming intimate bonds is self-ownership simpliciter – the literal allocation of one’s personal companionship and attentions. h us, we don’t seem to have to pin our argument to a fundamental moral distinction between advantages in the pursuit of intimate bonds arising from wealth and those arising from natural endowments because it is rather the intimate bonds themselves which we don’t want to interfere with. Who is to say what one’s “fair share” of intimacy is and who is going to impose this fair share at the expense of unwilling persons?

Furthermore, we would need a strong argument explaining why forming legal bonds with multiple persons is a serious concern on grounds of fairness, whereas doing so short of marriage (what people such as Hugh Hefner are perfectly free to do now) would not be. Here, the comparison with distributive justice collapses entirely. In distributive justice we are not only concerned about the consequences of legalizing potentially inequitable exchanges. If anything, the concern is to show why relations which are legal now are not necessarily just. Similarly with discriminatory practices: we are not overly perplexed about the consequences of legalizing hiring practices (or policies of membership in groups or associations) which are in fact racist or otherwise discriminatory. Philosophical debate focuses directly on whether such discriminatory practices on the part of private associations (such as churches or clubs) are ever justifi ed and on the dilemmas of identifying them in practice. h us, to take seriously the concern about distributive fairness (for the excluded) and the potential for domination (over the “collected” spouses) in the marital market should polygamy be legalized would likely require taking seriously existing inequities, such as certain women monopolizing the aff ections of multiple men at a time. Who thinks this is part of justice above and beyond the concern that all members of a society have suffi cient resources to avoid relationships of domination?

Finally, I would like to register a concern about the type of argument of which the “fairness in the market for partners” objection to polygamy is an instance, which I will call the “if-everyone-did-it” objection. Unlike arguments about equality or fairness in distributive justice, this is not an argument about a general principle to which the distribution of a good must conform. h at is, it is not saying that persons who choose wealthy or particularly attractive partners are acting unfairly towards all others with whom they do not enter into intimate bonds. Nor is it even saying that in allowing multiple legal partners the political community is inherently recognizing the greater value of some talents and rewarding them accordingly. What it is saying is that if many people acted on this privilege, itself possibly innocuous, bad or irrational social consequences could result .[27]

Note fi rst that this is not as strong as the “tragedy of the commons” dilemma which shows how catastrophic results will almost certainly emerge from individuals acting exactly as we have every reason to expect they will , i.e., in their own rational self-interest. Rather, it is saying that if many people acted at the same time on this right which we don’t think most will actually fi nd desirable then this could be frustrating for an unspecifi ed number of left-out people. It is using the threat of a merely potential future risk of uncertain probability to justify proscribing outright a practice which is not inherently unjust. h is argument is more convincing in other contexts, and it is weak enough there. Perhaps the most common usage of it is in discussions (popular in the early 1990s) on the right to self-determination and secession. One argument against such a right (strongly and crudely put) is that if it were generally acknowledged it would be claimed by every eligible ethnic group and this would lead to widespread international chaos. But there are many rights which if acted upon generally and simultaneously would have catastrophic consequences. To give two examples: the right to birth control and the right to withdraw your money from the bank. If everyone always used birth control, the species would die out; if everyone withdrew their money from the bank simultaneously we would have a bank run with deleterious consequences. But in neither case does this deter us from thinking that doing either at any given time is a right we enjoy. In order for the if-everyone-did-it objection to be forceful we either need to doubt that the freedom to do it is a very strong right at all (such as the “right” to constantly create new “fi nancial products” ever more removed from actual economic productivity) or we need some reasonable expectation grounded in psychology or sociology that the natural course of events will lead to the average person acting on the right as much as she can. h at is the explanatory appeal of the “tragedy of the commons” dilemma: it is rational for people to consume as much of a common resource as they can and many such common resources are scarce. h e if-everyone-did-it objection to polygamy seems weak: there seems less reason to think that the natural inclination is for people to join harems and that most people would leap at the opportunity the fi rst chance they get than there is to think that they will consume natural resources beyond their fair share or will borrow overly cheap money to fi nance property speculation in a reckless and unsustainable manner. h us, while I have argued against the “fairness in the market for partners” objection on its own terms, it also must be said that some fairly controversial psychological assumptions would have to be asserted for the if-everyone-did-it objection to rise to its strongest justifi catory level in the case of polygamy, before we factor in economic considerations.

4. Burdening Society, or the Abuse of Privileges Objection

In societies where the point of civil unions or registered domestic partnerships is to materially subsidize families in various ways, an objection to polygamy could be leveled that the temptation for fraud to access these benefi ts would be great, or even that the costs of extending them to sincere families would be an unfair burden on others. h is is a more plausible form of the if-everyone(or a-lot-of-people)-did-it objection.

h is argument against polygamy would have to show that plural marriages are in fact more costly to a society and, thus, that they amount to an expensive taste. For that to be true we would have to assume (1) that there is only one productive spouse per marriage and (2) that social benefi ts or subsidies are distributed via legal marriage to an employed person in proportion to his or her number of spousal dependents. h e fi rst assumption, even if true in some cases, is of unclear moral and even practical signifi cance, and the second seems to suggest a morally objectionable way of distributing social benefi ts on two accounts. First, it limits access to important goods (such as health insurance) to those who enter into a voluntary relationship which not all persons value in the same way. Second, when (as in the United States) such goods are distributed by employers to the familial dependents of employees, it seems to unfairly and ineffi ciently burden employers. In fact, the source of the suspicion that polygamy could be an expensive taste liable to abuse of privileges is undoubtedly the association of social benefi ts with private employment. h us, if the second assumption did not hold then it would be hard to see

how polygamy (even if the fi rst assumption held) would be any more expensive than non-polygamy (including people remaining single). If, as it seems likely, a politically liberal society would be more likely to adopt the model of European social democracies where citizens as such get directly many of the social benefi ts that are privileges of employment in the United States, it is hard to see what need or justifi cation there could be for any further subsidy for entering into a civil union per se. h at is almost certainly the most just social arrangement, the leveling up equivalent in terms of material resources of my proposal (in the introduction) to leveling down the public distribution of the symbolic term “marriage.” One might argue that there are no justifi able grounds for a politically liberal state to permit economic and health benefi ts to be provided to some people and not others on the basis of whether they belong to a form of private relationship which has religious origins. h us, even if a family followed the polygynous model of one employed man and many unemployed women it is hard to see how this is more expensive for society and thus hard to see why one should be concerned about fraud or abuse.[28]

C ould one be concerned about general economic effi ciency if living in large families allowed people to live more successfully off of their individual s ubsidies and thus reduced their incentive to join the workforce? I don’t think this c oncern gets us very far. First of all, it is the right of persons to choose to live at a lower level of material welfare if they value other goods. Second, if it does in fact become the case that a society’s economically productive members are unable to support effi ciently (or generously) its economically non-productive members, then the subsidy will of necessity decrease to the amount it can aff ord (possibly nothing), which would presumably change the incentive struc ture of those who chose not to work. h e welfare state is not a suicide pact.

T o this point, I have referred to policies of subsidizing marriage (or civil unions) per se, not the family at large, inclusive of children. Here the concerns are very diff erent; we are no longer dealing with justifying an unfair and irrational way of distributing access to primary goods for adults, but rather subsidizing the maintenance of children. Here it is compatible with public reason to subsidize the family, since the family bears disproportionate costs related to the raising of children. In addition to the direct humanitarian concern in ensuring that all children are minimally well-off , one could argue plausibly that just as a society invests in its future citizens through education it may do so through direct subsidies to the family. If material deprivation from an early age is both unjust in itself and a powerful source of adult asociality, a wellordered society has a strong interest in preventing this through material subsidy. h is would not permit, however, any additional subsidies being extended to childless couples merely because they are married. h is approach seems like a logical way of preserving justifi catory neutrality but also shows that polygamy per se cannot be viewed as an expensive taste. h erefore, it is hard to see what overwhelming public interest there is in proscribing it or in denying polygamous relationships access to civil union status.


h is essay argues that the four most plausible arguments compatible with public reason for an outright legal ban on all forms of polygamy or for excluding polygamous relationships from civil union status are unvictorious. My purpose was not to survey exhaustively the empirical literature on contemporary forms of polygamy, but to tease out the types of arguments political liberals would have to insist on, and precisely how strongly, in order for a general prohibition against polygamy to be justifi ed on grounds of principle.

h e most common objection to polygamy is on grounds of female auton-

omy and equality. But advancing this argument forcefully often involves neglecting the tendency of political liberalism (by whatever name it goes in contemporary, complex, multicultural societies) to tolerate a certain amount of inegalitarianism in private, within the bounds of robust and meaningful freedoms of choice and exit. Properly understood, polygamy involves no inherent statement about the essential inferiority of women, and certainly not more than many other existing practices and institutions (including many expressions of the main monotheistic religions) which political liberals regard as tolerable.

Does this case say anything about our resources and constraints when arguing from public reason? I think at least two points are noteworthy. h e fi rst is that arguments from the free practice of religion or cultural sovereignty not only do not give us special reasons for allowing practices, but may in fact give us reasons for (continuing to) ban them. One of the postulates which allowed me to consider a presumption of permissibility in the case of polygamy was that the nature of the practice in itself is not identical to some of its associated abuses and horrors. We cannot assume that polygamy, if widely legal, would be the same thing as the patriarchal abuse of women from an early age. But if we have reason to believe that these practices would not just be one of many choices for autonomous persons but rather part of a coherent and elaborate patriarchal conception of the good (especially a religious one) then we may indeed have much more reason to fear that certain communities would engage in the shaping of their members’ consciousnesses from an early age to expect and tolerate violations of their autonomy and dignity. It is only when we don’t think that an oppressive form of poly gyny is part of a widespread, longstanding and elaborate patriarchal conception of the good that poly gamy appears safe.

Second, out of a particular historical and political context public reason has a hard time dealing with arguments from conjecture or contingency of the kinds “this may be fi ne in theory but not in practice” or “if everyone did it…” or “we need such laws as useful devices to protect people from crimes which are hard to prove.” I assumed in this paper that public reason has an assumption of skepticism towards such arguments. h ey are easily abused, hard to prove and do not tell us anything about the inherent justness of a given act or practice. However, in real life it may be perfectly clear to reasonable people what function a practice or institution serves, what irrational or harmful consequences it has in practice and why a society acts justly or wisely when it proscribes or constrains it as a matter of public policy.[29] For example, I was skeptical of the claim that legalizing and recognizing polygamy is likely to lead to a radical distortion in the spousal market. In a large, morally diverse society during reasonably prosperous times it may indeed be fantastical to argue that legalizing polygamy would have recognizable deleterious eff ects on society. However, this argument is not meant to pre-empt considerations on the way institutions such as polygamy might function in real world societies where its practice may be entangled with oppressive institutions of property rights, economic distribution or female heteronomy. Nonetheless, it must be insisted upon that in these cases we are dealing with failures of distributive justice. It is when a society fails to ensure that all of its members enjoy material independence that they become vulnerable to all forms of domination. Could polygamy be one way in which the wealthy take advantage of the less wealthy? Perhaps, but in a capitalist society where the poor are confronted with countless dangers, vulnerabilities and indignities, the right to contract multiple legal domestic partnerships which guarantee rights to all members does not seem to register very strongly.

Of course, these latter qualifi cations are not so much a critique of public reason as a defense of it. It ought to be fl exible enough to accommodate realworld political agents seeking to balance respect for rights with public policy considerations in the full light of their own history and present, and at the same time it ought to be a resource for those actors for discovering what is rational and what is arbitrary in their own inherited institutions.

[1] See, e.g., Maura I. Strassberg, “Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage,” North Carolina Law Review, 75 (1997): 1501-1624; James M. Donovan, “Rock-Salting the Slippery Slope: Why Same-Sex Marriage is Not a Commitment to Polygamous Marriage,” Northern Kentucky Law Review , 29: 3 (2002): 521-590 and Ruth K. Khalsa, “Polygamy as a Red Herring in the Same-Sex Marriage Debate,” Duke Law Journal 54 (2004-2005): 1665-1693. [2] LAWRENCE V. TEXAS (02-102) 539 U.S. 558 (2003), Antonin Scalia dissenting, June 26, 2003. Scalia here confusingly combines practices which are presently illegal with ones presently legal in his dissent to a decision which rendered unconstitutional state laws criminalizing sodomy. [3] I address the question of incestuous unions in Andrew F. March, “Marriage, Sex and Future Persons in Liberal Public Justifi cation: Is h ere a Right to Incest?” Journal of Applied Philosophy, Vol. 27, No. 1, 2010, pp. 39-58. [4] For the purposes of this paper I am defi ning “polygamy” as a formal intimate relationship involving more than two persons. h us, where I use “polygamy” it can be assumed that I am addressing all forms of polyamory or group marriage. “Polygamy” is neutral as to the gender of the participants and it is precisely the point of this paper to question whether a liberal state needs to involve itself in the specifi c aff ective, emotional and symbolic meaning of domestic life. Treating “polygamy” at this point as the larger set which includes all other forms of polyamory does not imply that the liberal state must in the end endorse this precise term at the expense of other terms which are adopted in order to avoid the hierarchical and inegalitarian associations with “polygamy.” In fact, I will argue that a liberal state should avoid, to the extent possible, monopolizing aff ective terminology, including “marriage” itself. However, the advantage to referring to “polygamy” is that it is certain forms of domestic life which fall under the term “polygamy” which pose the greatest normative challenge. We are no closer to knowing what to do about more challenging forms of polygamy such as polygyny when we seek to defend a strictly egalitarian, non-hierarchical form of polyamory. However, if we can justify a form of group marriage which implicitly allows for the possibility of traditional forms of polygyny then it is presumed that more egalitarian forms of polyamory are also justifi ed. [5] See Sarah Song, Justice, Gender, and the Politics of Multiculturalism, Ch. 6, especially pp. 160-164 for an argument for qualifi ed recognition of Mormon polygamy based on multicultural considerations. [6] Much of this section follows what I write in “What Lies Beyond Same-Sex Marriage?” [7] I am not primarily concerned in this paper with what precise goods and advantages ought to be attached to “civil union” status. It is conceivable that many of the legal rights which spouses confer on one another could be achieved through other legal-administrative devices, and that many of the protections aff orded the more materially dependent and otherwise vulnerable members of marriages could be guaranteed whether or not the parties are legally registered as a civil union. [8] h e dilemma of recognition is, of course, one of the areas (another being competitions) identifi ed by Parfi t, Scanlon and others as when it is appropriate to level down as part of our commitment to equality, as opposed to priority or welfare. For example, given the choice between giving one of two siblings a gift or privilege and giving it to neither of them, we are strongly inclined to choose the latter so as to avoid favoritism. (See Derek Parfi t, “Equality and Priority,” Ratio 10 (1997), pp. 202-221) and T.M. Scanlon, “h e Diversity of Objections to Inequality,” in h e Diffi culty of Tolerance (Cambridge: Cambridge University Press, 2003), pp. 202-218.) [9] Although this is not unheard of. Scientology’s claim to religious status has been questioned in various European countries, including in an ongoing fraud trial in France. (See Angelique Chrisafi s, “Church of Scientology faces fraud trial in France,” h e Guardian , September 9, 2008.) h ere was also a controversy in Amsterdam in 1988 when a “Church of Satan” was deemed to be an ordinary brothel and forced to pay taxes on its earnings. Genuine Satanists, on the other hand, were recognized by the Royal Navy for the fi rst time in 2004, thus earning the privileges of performing Satanic rituals aboard ship and to have a non-Christian Church of Satan funeral should they be killed in action. (h ttp:// ) [10] For a discussion of the same-sex marriage controversy in America which takes seriously the costs of altering the public meaning of the concept (such as “marriage”), see Andrew Stivers and Andrew Valls, “Same-sex Marriage and the Regulation of Language,” Politics Philosophy Economics [11] :2 (2007): 237-253. My proposal also takes seriously the dilemma discussed by Stivers and Valls, but diff ers from theirs by proposing to remove the linguistic controversy from the hands of the state entirely. [12] A similar proposal for disestablishing marriage can be found in Tamara Metz, “h e Liberal Case for Disestablishing Marriage,” Contemporary Political h eory 6 (2007): 196–217. Metz’s concern, however, is with the liberal concerns for fairness and equality in the private sphere and with our positive reasons for valuing marriage (she thus calls for replacing marriage with an “intimate caregiving union status.”) Metz agrees that polygamy would be legal under her scheme (although she does not consider at length any specifi c arguments related to it). [13] h at is, I accept the distinction advanced by Dworkin between goal-based and rights-based defenses of rights and freedoms, and am obviously concerned about the answer to my question from within the latter strategy. (Ronald Dworkin, “Is h ere a Right to Pornography?” Oxford Journal of Legal Studies 1:2 (1981): 177-212.) [14] Gerald Gaus refers to this as the core liberal principle (L): “Imposition on others requires justifi cation; unjustifi ed impositions are unjust. … h e basic idea is that freedom to live one’s own life as one chooses is the benchmark or presumption; departures from that condition – where you demand that another live her life according to your judgments – require additional justifi cation. And if these demands cannot be justifi ed, then we are committed to tolerating these other ways of living.” (Gerald F. Gaus, Justifi catory Liberalism: An Essay on Epistemology and Political h eory (Oxford: Oxford University Press, 1996), p. 165.) [15] For the lengthiest treatment of this problem, see Martha C. Nussbaum, Hiding from Humanity : Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004) and the symposium on this book in Journal of Applied Philosophy , Vol. 25, No. 4, with contributions by William Charlton, John Haldane, David Archard, h om Brooks and a reply by Nussbaum. [16] h ere is, of course, much psychological research on disgust and the rationalization of moral judgment. See, in particular, Jonathan Haidt, Paul Rozin, Clark McCauley and Sumio Imada, “Body, Psyche, and Culture: h e Relationship of Disgust to Morality,” Psychology and Developing Societies 9:1 (1997), pp. 107-131. [17] Indeed, liberal political theorists have in principle been open to the idea that polygamy could be compatible with justice and equality in certain conditions. See, for example, Gutmann, “h e Challenge of Multiculturalism in Political Ethics” : “[W]ere we seriously to consider the case against enforced monogamy, as presented by reasonable people who believe in polygamy (for both sexes) …. [p]erhaps we would conclude that the case for state-enforced monogamy is compelling, perhaps not, but our convictions on this score would be better justifi ed were we actually confronted with the case for legalization of polygamy by reasonable proponents of the practice.” (204) [18] For a thoughtful formulation of this position, see Brooks, “h e Problem with Polygamy.” [19] See Brooks, ibid., pp. 4-6, for empirical studies on the eff ects of polygamy on the welfare of both women and men. See also Angela Campbell, “Wives’ Tales: Refl ecting on Research in Bountiful,” Canadian Journal of Law and Society, Vol. 23, Nos. 1-2, pp. 121-141 (2008) and “Bountiful’s Plural Marriages,” International Journal of Law in Context (Forthcoming) for [20] h us, I believe that Brooks’ rejection of Calhoun’s and Nussbaum’s limited defense of polygamy is insuffi cient, because it does not address how polygamy as a “structurally inegalitarian” practice (granting for a moment that it is) diff ers from other such structurally inegalitarian practices in civil society and when precisely a voluntary structurally inegalitarian practice becomes impermissible under political liberalism. [21] It has been a periodic theme of popular and academic writers after the September 11, 2001 attacks to speculate on whether the anxiety and alienation of growing up as an excluded and under-recognized child of the Bin Ladin clan might have contributed to Usama Bin Ladin’s later radicalization. h us: the “Bin Ladin Objection” to polygamy. (See, for example, Adam Robinson, Bin Laden: Behind the Mask of the Terrorist (New York: Arcade Book, 2002.) [22] See Richard A. Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992), Chapter 9. Also, from the blog that Posner shares with Gary Becker: “My view is that polygamy would impose substantial social costs in a modern Western-type society that probably would not be off set by the benefi ts to the parties to polygamous marriages. Especially given the large disparities in wealth in the United States, legalizing polygamy would enable wealthy men to have multiple wives, even harems, which would reduce the supply of women to men of lower incomes and thus aggravate inequality. h e resulting shortage of women would lead to queuing, and thus to a high age of marriage for men, which in turn would increase the demand for prostitution. Moreover, intense competition for women would lower the age of marriage for women, which would be likely to result in less investment by them in education (because household production is a substitute for market production) and therefore reduce women’s market output.” ( http:// ) [23] See, for example, Valerie M. Hudson and Andrea M. den Boer, Bare Branches: Security Implications of Asia’s Surplus Male Population (Cambridge, MA: h e MIT Press, 2004) as well as Jonathan Rauch, “One Man, Many Wives, Big Problems,” h e Atlantic (Unbound), April 2006, h ttp:// -problems/4829/ . [24] I owe this objection also to a personal conversation with no less a defender of public reason and the need for a strict rational, secular basis for discriminating against private sexual and romantic behaviors than Stephen Macedo. h at the author of “Homosexuality and the Conservative Mind” ( Georgetown Law Journal 84:2 (1995): 261-300) does not fi nd it obvious that we are required to move further down the slippery slope suggests the need for public reason liberals to consider the case of polygamy. [25] Although such excluded men, and boys, may then in turn present various social challenges to the wider society. [26] Of course, overall we are most concerned about the autonomy and rights of exit for the women in the community under consideration, and thus this was the fi rst objection considered [27] Hudson and den Boer suggest that the social costs of polygyny reach a tipping point when sex ratios reach roughly 120 males to 100 females, or when one-sixth of all men are surplus goods on the marital market. Rauch: “h e United States as a whole would reach that ratio if, for example, 5 percent of men took two wives, 3 percent took three wives, and 2 percent took four wives—numbers that are quite imaginable, if polygamy were legal for a while. In particular communities—inner cities, for example—polygamy could take a toll much more quickly.” [28] I would like to thank Jonathan Quong for forcing me to correct my mistakes in an earlier draft on the idea of polygamy being an expensive taste. [29] Affi rmative action is a good example of this phenomenon as well. Race-blind, “merit”based admissions may be rationally defensible but that rational defense cannot act as a veto against historically justifi able public policies.

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