by John Corvino
Prohibit polygamy, and the would-be polygamist has to settle for one spouse. Prohibit homosexuality, and the homosexual gets no spouse at all. Big difference.
Earlier this month the Massachusetts Supreme Court heard oral argument in a case brought by seven couples seeking the right to same-sex marriage. During questioning, Justice Martha Sosman asked whether same-sex marriage would open the door to polygamy: “What would the difference be?”
The plaintiffs’ lawyer, Mary Bonauto, answered that neither the Legislature nor the state’s highest court has ever suggested that marriage should be made up of more than two people.
She’s right, of course. But she also seems to be dodging the question.
It’s a question that will be asked frequently regarding this case, as well as in the pending Lawrence v. Texas case in which the U.S. Supreme Court will once again rule on the constitutionality of sodomy laws. (In 1986, a bitterly divided Court narrowly upheld such laws; how the current Court will rule is an open question.)
Gay-rights opponents often treat the “Why not polygamy?” as a kind of rhetorical trump card, and with good reason: It’s an easy sound-bite challenge that doesn’t lend itself to an easy sound-bite response.
Several articulate defenders of gay rights have tried, with mixed success, to deflect the challenge. For example, Andrew Sullivan argues that homosexuality differs from polygamy because homosexuality “occupies a deeper level of human consciousness than a polygamous impulse. … And almost all of us tacitly assume this, even in the very use of the term ‘homosexuals.’ We accept also that multiple partners can be desired by gays and straights alike: polygamy is an activity, whereas both homosexuality and heterosexuality are states.”
In response, conservative pundit Charles Krauthammer asks, “If John and Jim love each other, why is this an expression of some existential state, while if John and Jim and Jack all love each other, this is a mere activity?”
Good question – and again, one that doesn’t lend itself to an easy sound-bite response. The problem is that Sullivan’s point is subtle, and Krauthammer misses it. Sullivan means to emphasize that homosexual persons, by their very nature, are (with rare exception) capable of romantic relationships only with members of their own sex. By contrast, there is no class of persons who are capable of relationships only with multiple simultaneous partners. As Jonathan Rauch helpfully explains,
“[N]o serious person claims there are people constitutively attracted only … to groups rather than individuals. People who insist on marrying … several lovers want an additional (and weird) marital option. Homosexuals currently have no marital option at all. A demand for polygamous … marriage is thus frivolous in a way that the demand for gay marriage is not.”
Rauch thus demonstrates how the prohibition of homosexuality is far more burdensome than the prohibition of polygamy: The former closes off all reasonable relationship options for an entire class of people (“constitutional” homosexuals), whereas the latter does not. Presumably, any man who can love two wives can love one. Prohibit polygamy, and the would-be polygamist has to settle for one spouse. Prohibit homosexuality, and the homosexual gets no spouse at all. Big difference.
Unfortunately, proponents of the “Why not polygamy?” argument can grant Rauch’s response without giving up their argument. “Yes, the prohibition of homosexuality is more burdensome than the prohibition of polygamy,” they might say. “But so what? That difference is irrelevant.”
Here’s where arguments from analogy are tricky. Any two analogous things are going to have some differences – otherwise, they would not be two things but one. So the question becomes, are the suggested differences relevant?
To illustrate: Suppose Jack claims that homosexuality and polygamy are similar in that both involve a relaxing of traditional marriage rules in this country. Jill replies, “But polygamy is more expensive.” (Think of the anniversary gifts!) In response, Jack can grant that polygamy is more expensive but nevertheless hold on to his analogy, which had nothing to do with the expense of the two phenomena, but rather with their alleged contribution to the relaxing of marital standards.
The trouble with the “Why not polygamy?” argument is that the principle of analogy – the alleged similarity between homosexuality and polygamy – never gets explained. Justice Sosman asks, “Why not polygamy?,” but she might as well ask, “Why not marry your toaster?” or for that matter, “Why not poison your accountant?”
The only way to respond to such questions is with another question, namely, “What does one thing have to do with the other?” Until we know what the alleged connection is, we can’t offer arguments to undermine the connection, and we end up shooting in the dark.
In that sense, Attorney Bonauto got it right when she answered Justice Sosman’s question by stating that no one has proposed allowing polygamy. Translation: “You’re changing the subject, Justice Sosman. Stop it.”