What is love, anyway? *
by Lorenzo Piccoli
Yet again I am going to write some profoundly controversial stuff and this time I am afraid some of my friends won’t be pleased.
Here are the facts. On Friday last week the Supreme Court ruled by a 5-to-4 vote that the US Constitution guarantees a right to same-sex marriage. Since then I have been inundated by messages from friends celebrating this historical victory for the gay rights movement. I have read the sentence of the Court here. and I have a few perplexities about it.
My opinion is that gay marriage should be legalized. However, I also think it should be a matter decided by parliaments, or referendums, not by courts. Incidentally, this is the same court that in 1983 argued that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”. It is also the same court that defended the constitutional right to possess a firearm unconnected with service in a militia, to execute prisoners via death penalty, to ban abortion. Just to mention a few. So: be careful, be very careful in celebrating this court and its progressive stance as the millions who tweeted and posted hashtags such as #LoveWins, and #LoveIsLove. This is a simple point I am trying to make: controversial issues like gay marriage should be won over politically, not in a court.
There is a second problem I want to raise and this is going to be highly problematic stuff. Do not take it as a provocation: as I said gay marriage is a controversial issue and as every controversial issue it deserves to be debated honestly and logically. The argument I am about to make follows logically from the highly poetic concluding paragraph of judge’s Kennedy opinion:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
So now that we’ve defined that love and devotion and family isn’t driven by gender alone the question is what are the limits/boundaries of love? Put it another way: why should love be limited to just two individuals? Logically, the most natural advance next for marriage lies in legalized polygamy. It is a point raised by conservatives and you might be uncomfortable with it. But if you treat it with some consideration and not silly partisanship you might agree with me that this is now an intriguingly complex question.
* I know: people my age, upon reading this title: yes, the right answer is: “Baby, don’t hurt me“.
Lorenzo & his humble friends 
Interesting. The problem is that most of the normative arguments (oh and there are so many that have been expressed by now) why both phenomena should be treated differently (also legally) and why we should be against polygamy but not against gay marriage are not really convincing (despite the fact that I agree with that point of view, needless to say). One of the arguments for example, that is frequently expressed is that high-status men would ‘steal away’ women from lower-status men, if the former get married to more than one woman. I don’t need to say that this argument is in itself sexist. It is not only based on the assumption that all women would marry the high-status man (what does ‘high-status’ mean anyway?) if they can, but it also stays in the more and more outdated (let’s hope!) logic that it is the great and powerful man looking for a beautiful woman to marry.
Another argument often put forward is that polygamy constitutes gender discrimination. But does polygamous marriage necessarily take away women’s agency?
I think the real problem is, that this debate is actually taking place at all. Because this is exactly what the conservatives (in the U.S mostly the Christian Right) wanted.
I think in the end these two questions (1) Is or should gay marriage be legal? 2) Is or should polygamy be legal?) are two very different ones, that both deserve an independent discourse. And even more than that, should have. To frame both questions into one discourse allows putting forward these effective floodgate arguments and leads to questions like ‘so, what’s next? Can I get married to my dog now?’.
I do find it frustrating that I cannot think of an argument that stands on firm ‘normative-theoretical’ grounds, supporting that both has be treated differently. But I more and more think that the fact that it is so hard to come up with one is the reason why we started talking about it so intensively.
Certainly interesting! I think your democracy argument can be a valid one, if it is one consistently applied to judicial review more generally. Judicial review raises terribly complicated questions that we tend to ignore if we like the outcome of a judicial decision (the proponents of same-sex marriage) but bring up if we disagree with it (the opponents of same-sex marriage). This we see in the US Supreme Court decision as well. The four dissenting judges all complained about the US Supreme Court imposed constraints on democracy. The problem is that those dissenting judges have no problem whatsoever overruling democratically taken decisions in many other situations. The flawed reasoning of the dissenting judges was exposed clearly by Michael Klarman in this blog post: http://www.bostonglobe.com/opinion/2015/06/26/scotus-justices-have-malleable-view-democracy/aBlN8kn6tbuA92kZdPfDSN/story.html?event=event25%3Fevent%3Devent25
While I probably share your concerns about judicial review (read Waldron’s Law and Disagreement for an in my view persuasive critique of judicial review), I would be careful not to bring it up now in this debate. The “same-sex marriage decision undermines democracy” argument tends to be an opportunistic one made by conservatives. As long as we accept judicial review, particularly the US Supreme Court style, we should accept limitations to democratic decision-making, also with respect to the very sensitive issue of same-sex marriages.
With respect to the second part of your post – the polygamy part – I cannot see how that argument can possibly be a valid one. This is not because I have thought a lot about the matter and because I can explain you the normative difference between same-sex marriages and polygamous ones, but because it reverses the argument. If we accept that there is no reason to make a distinction between opposite-sex and same-sex couples (hence, both should be allowed to marry) and if it then turns out that there is no reason to make a distinction between monogamous and polygamous relationships and thus to prohibit polygamy (I’m not saying that this is the case, I simply don’t know) polygamous relationships should be legalized (for this argument see: http://www.politico.com/magazine/story/2015/06/gay-marriage-decision-polygamy-119469.html#.VZQP0_mqpBc).
The conservative argument appears to go as follows: Because we can’t see the difference between same-sex marriages and polygamous relationships and because we don’t want polygamous relationships to be legalized we also shouldn’t allow for same-sex marriages (which, conveniently, they don’t really like either). I cannot see (please tell me why I’m wrong) how this argument is nothing but utter nonsense, which doesn’t advance the conservatives’ cause at all. If they are right that the arguments for same-sex marriage apply equally to polygamy, they should accept that polygamy should be allowed. Of course, this would be different if they could bring forward a convincing case against same-sex marriage (which I doubt they can), but the arguments against same-sex marriage cannot be based on concerns for polygamy. Unfortunately logic seems to have abandoned part of the US population a long time ago, which is why conservatives get away with those arguments.
(1) Pauline, I would not use the ‘stealing away’ argument to oppose polygamous marriage – this problems refers to other, deeper imbalances, within society. These should be addressed by other public policies and not artificially intervening on the institution of the marriage.
(2) I think it is worth having this debate because, as these comments show, the profound transformations of the last forty years have dramatically affected the idea of marriage and now we do not what this institution is about. In that sense, I think your two questions – should gay marriage be legal? should polygamy be legal? – come together: we cannot answer them until we clarify what the purpose and the limits of marriage are in our society.
(3) Martijn, I agree it is wrong to say: “we can’t see the difference between same-sex marriages and polygamous relationships and because we don’t want polygamous relationships to be legalized we also shouldn’t allow for same-sex marriages”. What I had in mind, however, was the reverse argument: “we can’t see the difference between same-sex marriages and polygamous relationships and because we want same-sex marriages to be legalized we also should allow for polygamous relationships”. This would not work if evidence showed that there is a substantial difference between polygamous relationships and any other kind of affective relationship. At the moment I fail to see this difference, but maybe it is because of sheer lack of information: we can discuss about it.
[…] My colleague Ronan wrote an article for The Irish Times explaining the differences in the approach to sensitive cases between the US and the Irish supreme courts. Legally, the two courts have very similar powers; in practice, however, they act very differently. Unlike her Irish counterpart, the US Court allows for dissenting opinions that sometimes openly doubt the legitimacy of rulings; also, and relatedly, US judges tend to write eloquent and catchy opinions; and as a third feature and a consequence of the former, they also become public figures, achieving celebrity for their vehement opinions. Ronan reflects on how these features might represent a distortion of the crucial function that a court serves in a liberal democracy by showing how these differences played into the different procedures to decide over the issue of gay marriage in the two countries. This is something very closely related to a post I published a few months ago. […]