Why I Think Arguing About Gay Marriage as a Slippery Slope to Polygamy Is a Bad Idea

I recently received a challenge of sorts on my Facebook wall from a longtime friend, who wanted me to talk about the “Sister Wives” court ruling in Utah, concerning polygamy.

Turns out, though, that the ruling is favorable less to the prospects of polygamy than to the right to privacy of what amounts to “religious cohabitation.”

Those who oppose same-gender marriage often put forward polygamy as a possible result should we begin down the slippery slope that leads away from “traditional marriage.” Since I have long been an advocate of same-gender marriage, I guess my friend believed that this Utah case about polygamy would reveal the lack of consistency in my argument, showing me to be another one of those crazy libertines whose morality is probably made up on the fly and is tied to nothing more substantial than personal preference.

I get people trying to catch me out on this kind of stuff all the time. So, in contravention of my long held practice of not arguing these kinds of things on social media, I broke down and responded … mostly about why I think this kind of argument isn’t usually very productive.

Here’s what I said:

I will make this one exception to my rule about not engaging in these kinds of Facebook discussions out of respect for our friendship, __________.

One reason I avoid them is because it has been my experience that people want less to discuss an issue with me than to try to goad me into some kind of argument. I will operate in this case on the supposition that your intentions are better than that.

Another reason I avoid this kind of discussion is because of the problem of incommensurability–that is, we start with assumptions that cannot be reconciled. You appear to operate out of the popular Enlightenment assumption that there is such a thing as an absolute truth that is accessible to human beings in some unmediated form, which exists prior to any philosophical or theological commitments–and which is somehow tied to “bedrock principle borne out through centuries of history and embraced by civilization for time immemorial.” (If I read you wrongly here, please correct me.)

I, on the other hand, don’t believe that there is any absolute truth to which human beings have unmediated access–and by unmediated, I mean that all the truths we claim are conditioned by language, culture, tradition, etc., and are therefore subject to human interpretation. (Notice, I didn’t necessarily commit myself to the position that there are no universal truths–only that, to the extent that there are, we are never going to agree on just what they are and on what implications they may have for us. So, as a practical matter, arguing about them quickly deteriorates into assertions of personal preference–though, of course, those engaged in such a discussion would be loathe to admit it. I don’t think that cuts us loose from all moorings, leaving us floating in a vast sea of relativism, but my explanation for that is an essay, not a Facebook post.)

Now, someone might object here by saying, “Yes, but the Bible, isn’t it absolute truth, binding on everyone?” I would respond to that by saying, first, the Bible never makes the claim of absolute truth for itself. Again, let me be careful: the Bible claims to contain the words of God, which–even were I to stipulate that they rise as close to the level of absolute truth as anything else–doesn’t relieve its interpreters of the responsibility of trying to make sense of them. Therefore, second, and needless to say, there is no uncontroversial interpretation of even the words of God–either through the prophets or the words of Jesus himself–let alone the rest of the Bible. As one rabbi said to me, “Y’all do things with our books that even we don’t do.”

My reference to the “God of Abraham, Isaac, and Jacob” not finding polygamy overly objectionable sounds like a flippant throw away line, meant to divert attention away from the fact that I didn’t set down a lengthier argument. However, that little line is my point in a nutshell. You claim a “bedrock principle” that persists from “time immemorial.” The problem with that statement, however, is that there exists a time we can remember when God was apparently much less concerned about polygamy than you appear to be–indicating that there is no enduring “bedrock principle” that withstands the test of time, as you claim. In point of fact, marriage–at least as traced back through the Abrahamic tradition–is a much more fluid set of arrangements than you seem to allow.

So, here’s another reason I generally steer clear of these kinds of encounters: though I tell you why I think easy references to marriage as some sort of historical institutional monolith don’t work, it will not sway you–since you operate from a set of foundational principles I don’t share. I don’t say that as slight, but merely as an observation of how this sort of thing works. You don’t find my arguments compelling, and I don’t find yours compelling because we start with different assumptions about how we arrive at truth. So after this exchange, we will both have spoken our minds at some length, and no one who happens upon this thread will be persuaded from the beliefs that that person brought to this conversation in the first place. (And by this time, I’ve publicly rehearsed my position on this topic enough that I’m not particularly enthusiastic about doing it again.)

The other reason I try not to get baited into having this discussion is because I think for those people who follow Jesus there are more important discussions to have. To rephrase a line from Tony Campolo, I think polygamy is an issue used by comparatively wealthy American Christians to distract themselves from the fact that they drive Mercedes Benzes–an issue about which the prophets and Jesus had a great deal to say. I’m not accusing you of this because, as you say, I don’t want to put myself in the position of “judging [your] motives.” However, it is my experience that slippery slope arguments about things like polygamy and incest and pederasty (aside from being offensive to people who love one another, but who happen to share the same gender) are sufficiently marginal arguments, the practical effect of which is to sidetrack us from issues of poverty and injustice with which we have some reasonable expectation of coming in contact and over which we actually have some agency.

So, I’m happy to talk about our kids, or how your practice is going, or how my goofy life is going–but I’ve discussed this one about as much as I’m going to discuss it.

Follow Derek Penwell on Twitter: www.twitter.com/reseudaimon

Politics – The Huffington Post

Why I Think Arguing About Gay Marriage as a Slippery Slope to Polygamy Is a Bad Idea

Let"s Legalize Polygamy

Let"s Legalize Polygamy
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(Newser) – The stars of Sister Wives essentially won decriminalization for polygamy in Utah last week—even as TLC released another reality show, Breaking the Faith, that focused on the dark side of the practice. “Whether or not a white-washed, clean-cut version of plural marriage could in theory legally exist, in practice it does not,” writes Mark Goldfeder at CNN. Studies show that it tends to create abusive relationships. That means states like Utah are saddled with “an unregulated, dangerous, and harmful situation, where the strong prey upon the weak.”

But Goldfeder isn’t advocating banning polygamy, an option the Supreme Court, “perhaps unwittingly” took off the table by striking down the Defense of Marriage Act. No, he thinks we should just legalize it. “Decriminalizing polygamy would only make abuses even harder to catch,” he argues, but “recognition would enable law enforcement to crack down on abuse.” Suddenly a town clerk could block a union that looked coercive or inappropriate. In the light of day, we could build the “clean-cut version of American polygamy” that supporters imagine. Click for the full column.

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Court Cites Past Racism to Argue Polygamy Ban Unconstitutional

A Utah district court ruled in favor of a polygamous family this past Friday. Oddly, the ruling relied heavily on arguing that a reason the United States outlawed bigamy was a distaste for practices of Eastern cultures–despite the Mormon Church being native to the United States.

The case, Brown v. Buhman (full legal opinion here), resolves a series of claims and counterclaims between the Brown family–stars of the reality show Sister Wives–and the state of Utah. As a District Court case that also resolves who rightfully belongs in the suit and why it should move forward logistically (and never mind the bizarre aside about Edward Said), following the legal procedure and getting to the real meat of this decision can be complicated for the layman. The trick is to follow what precedent the plaintiffs cite, and how seriously the court takes each.

The Browns argue that because of their prominence as reality TV celebrities, their living arrangement has been especially vulnerable to government intrusion. They claim they should be allowed to practice polygamy on a number of First Amendment grounds (free speech, free association, free exercise of religion), which allows them to also sue under the statute that creates a civil remedy for someone whose constitutional rights have been violated by the state (42 U.S.C. §1983). They also claim that they have not been given equal protection as a protected minority under the law and that the state has violated their due process.

The state did not address these concerns in responding to the suit and, according to the court, provided no admissible evidence of the “social harms” of polygamy. 

This in some ways left the court to figure out their argument for themselves, hence the bizarre emphasis on Said’s “Orientalism” used to make the fundamental claim that the United States waged a “war” against the Church of Jesus Christ of Latter-Day Saints, one in which banning polygamy played a prominent role. The court argues, essentially, that racism was behind the banning of polygamy: “the social harm was introducing a practice perceived to be characteristic of non-European people—or non-white races—into white American society.” 

In other words: banning polygamy was a way to get deviant white people to start “acting” white. The court goes on to cite a previous case upholding polygamy bans as a prevention of a “return to barbarism,” and condemns such “derisive societal views about race and ethnic origin.”

The accusations of racism form a major part of the beginning of the opinion, but the court ultimately incorporates them into a bigger legal argument. Because religious groups are protected under the Due Process Clause, the state has to have a rational basis on which to curb their freedom. The basis the court cites is that the state is racist, as noted above. Because the ban on multiple legal marriages regulates behavior that is actually sanctioned legally, polygamy, narrowly defined, remains illegal.

The key to the case is that the Browns are seeking only the legality of their living situation, not of all of their marriages. The facts of the case note that they do not have multiple marriage licenses–only one male/female couple is legally married–and that Utah has especially strict polygamy laws because of its history as a Mormon state (Washington required these laws to allow Utah into the Union). In exact terms, the “strictness” of the law comes from its ban on “cohabitation,” not just marriage. This is the provision the court has found unconstitutional.

The lawyers defending the Browns appear to see the case as something greater than a step forward for the freedom of fundamentalists to marry, however. The Browns’ attorney, Jonathan Turley, called the case a “victory not for polygamy but privacy in America.” It is an issue, the argument goes, that affects everyone’s right to live how they choose and with whoever they choose. It is another front in the fight against big government, as Turley’s affidavit argues.

This type of argument–which also rears its head slightly in the case with the citations to Lawrence v. Texas, the case that overturned all sodomy bans–will make the case lend itself to the “slippery slope” argument against same-sex marriage. Some will argue, the legalization of same-sex marriage indicates we are already seeing a move towards accepting polygamy. And, yes, Lawrence plays a prominent role in the argument in favor of unofficial polygamy: American adults have a right to do whatever they want to each other consensually in the privacy of their own bedrooms. 

But even then, the court finds that “religious cohabitation does not qualify for heightened scrutiny under the substantive due process” (in other words, religious cohabitation is not as worthy a behavior of protection as sodomy). That argument obscures the true absurdity of this decision, however: the fact that it essentially argues that opposing polygamy is racist, even if all parties involved are white.

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Court Cites Past Racism to Argue Polygamy Ban Unconstitutional