Kent Greenfield on Same-Sex Marriage and the Slippery Slope

A post on the American Prospect site by Boston College law professor Kent Greenfield is getting a lot of attention, especially from opponents of same-sex marriage, like Princeton’s Robert George, who believe the Left has been unfairly maligning them as scaremongers for years. Greenfield, who supports same-sex marriage, thinks it’s time to confess something: Conservatives who argued that recognizing same-sex marriage logically implied the recognition of incestuous and polygamous marriages were right all along:

You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.

Greenfield attempts to come up with distinctions–moral opprobrium, child welfare, coercion, the immutability of sexual orientation, lack of representation in the political process–but concludes that none of them really works. Here’s his final paragraph:

If these distinctions do not hold water, we have two options. We can continue to search for differences that make sense as a matter of constitutional principle. Or we can fess up. We can admit our arguments in favor of marriage equality inexorably lead us to a broader battle in favor of allowing people to define their marriages, and their families, by their own lights.

A signal of marriage wars yet to come.

2 responses

  1. Incest? Perhaps so. Polygamy? Perhaps not. The social importance of forbidding polygamy is not immediately obvious, but it exists.

    Question: Which countries which have official policies designed to compel women to marry men they would otherwise not be interested in? Answer: Every western nation! Surprised? Read on….

    The secular explanation of social norms is that they exist to promote the interests of the powerful. Monogamy is a social structure that restricts a man to one wife. Polygamy is a practice that permits, but does not require, a man to acquire multiple wives. Polygamy would seem to offer greater latitude to men – especially high-status men. If social norms exist to promote the interests of the powerful, we should expect to find polygamy as a predominant practice throughout the world’s civilizations.

    But we don’t. What gives?

    To understand the social consequences of monogamy, we must consider the consequences of polygamy.

    Polygamy creates winners and losers. Among the winners are high-status men, who have both the discretion and ability to acquire as many wives as they choose. But polygamy arguably hurts the interest of low-status men. Among the most de-stabling forces in society are gangs of rootless men. If high-status men acquire multiple wives, it follows that low-status men will not be able to find wives. These men remain rootless longer, and become disproportionately likely to engage in antisocial activity. As societies grow, the problems of ever larger groups of rootless men become untenable.

    What consequence does polygamy have for women? Contrary to expectations, polygamy promotes the interest of most women by giving them the option, but not the obligation, of marrying a high-status man that would otherwise be beyond their reach in a monogamous world. But polygamy hurts the interest of the highest-status women who would otherwise be able to gain a high-status husband without having to share his resources with other wives.

    So if polygamy creates winners and losers, it follows that monogamy creates losers and winners. By comparing polygamy to monogamy, it becomes clear that monogamy is a coercive policy that has the effect of denying most women the opportunity to marry high-status men they would otherwise have chosen. Deprived of this option, these women consent to marry, and civilize, lower-status men they would not otherwise have chosen. This, then, is the social importance of monogamy. And this is why courts will be able to find that people lack an equal protection right to have the state recognize their polygamous unions.

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  2. Um, no one said that removing bans on homosexual marriages might weaken bans on incestuous and polygamous marriage. The claim was that in abstract logic there could be no objection to the latter after permitting the former.

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