Stephen Macedo, Thursday, March 3, 2016

Stephen Macedo, Thursday, March 3, 2016


– A very good evening, and welcome to the Marian Miner Cook Athenaeum. My name is Shwen Yo, and I’m one of the two Ath Fellows this year. In June last year, the Supreme Court ruled by a five to four vote that the Constitution guarantees a right to same-sex marriage. In the debate both leading up to and following that landmark ruling, one fear that has been brought up is that the legalization of same-sex marriage will create a slippery slope in which we see more radical marriage reforms down the road. On the other side of this debate, there are voices arguing for embracing the items on the slippery slope. Our speaker tonight will weigh in on this debate. Stephen Macedo is the Lawrence S. Rockefeller Professor of Politics and the former director of the University Center for Human Values at Princeton University, where he teaches and writes about political theory, ethics, American constitutionalism, and public policy. His many books include Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism, Diversity and Distrust: Civic Education in a Diverse Democracy, and Just Married: Same Sex Couples, Monogamy, and the Future of Marriage. He’s a member of the American Academy of Arts and Sciences and vice president of the American Society for Legal and Political Philosophy. Professor Macedo’s Athenaeum talk is cosponsored by the Salvatore Institute at CMC. As always, I must remind you that audio and visual recording is strictly prohibited. Please join me in welcoming to the Athenaeum Professor Steven Macedo. (applause) – Thank you very much. I have this mic on, is this working? It is working, okay, good. Thank you, it’s lovely to be here, and just put that away, lovely to be here, and I’ve had wonderful conversations with students both at the table and in classes this afternoon. So indeed, the speed with which same-sex marriage came to the United States seems astonishing. 30 years ago, a majority of the justices voted to uphold state laws that criminalized gay sex between consenting adults in the privacy of the home. It was only in 2003 that that earlier decision of Bowers versus Hardwick was overturned. And in that same year, 2003, the Supreme Judicial Court made Massachusetts the first state in the union to recognize the right of same-sex couples to marry. A dozen years later and here we are. The marriage revolution is over. Or is it? Conservatives such as Justice Antonin Scalia have warned for decades that the most basic rights for gay and lesbian Americans would put us on a slippery slope to legalize polygamy, along with adult incest, prostitution, masturbation, this is a quote from one of his dissents, prostitution, masturbation, adultery, bestiality, and obscenity. And Chief Justice John Roberts, in his dissenting opinion in Obergefell, the same-sex marriage case, reiterated that, and I quote, “a leap “from opposite sex marriage to same-sex marriage “is much greater than one from a two-person union “to plural unions, which have deep roots “in cultures around the world.” My colleague Robert George and many conservative scholars and activists continue to warn that in the wake of Obergefell, polyamory and even adult incest are now moral certainties. The logic of liberalism, as represented by Justice Kennedy’s opinion in Obergefell, compels the further extension of basic rights to consensual adult groupings of three or more, otherwise known as throuples or moresomes, and also to adult siblings or even parents and their adult children who wish to wed, according to these conservatives. Now, some will write off this sort of talk as right-wing fear mongering. But in fact, as was just said, many scholars and activists on the left have embraced most or all of the slope. And some, indeed, have embraced all of it. These progressives agree that same-sex marriage is an unstable and unprincipled stopping point on the road to more radical reform. Sonu Bedi, a professor of law and political theory at Dartmouth, argues that, and I quote, “liberal neutrality invalidates both prohibitions “on same-sex marriage and marriage itself.” He says that preserving marriage and extending it to gays takes sides in very personal decisions about what constitutes a good life. He says, and I quote, “it’s no more than natural law “but with a gay spin.” The liberal state should get out of the marriage business by leveling down to a universal status of civil union that’s neutral as to the gender and affected purposes of the domestic partnership, according to Andrew March, a professor at Yale. Elizabeth Brake, a scholar at the University of Arizona, who’s written extensively on these topics, agrees that monogamous civil marriage unfairly favors amorous diads and denies recognition to many other caring relationships, including non-sexual friendships and polyamorous unions, polyamory being the egalitarian form of polygamy or group marriage. Some go so far as to argue that categorical prohibitions, as I said, on adult incest must be lifted, at least where there’s no possibility of genetically damaged offspring. Sonu Bedi provocatively offers the hypothetical example of two gay brothers who wish to wed. Fredrik deBoer put it very simply in a widely-cited posting on POLITICO this past summer. And I quote, “consent is the measure of all things “in matters of sexual and romantic practice,” he argued. So every one of these progressive arguments is broadcast on the political right to warn of impending doom unless Obergefell is reversed. So these remarks that I’m gonna offer here build on and extend the arguments of the book that was mentioned, Just Married. And some of what I have to say responds to some things that have been written and said since Obergefell. My argument is that same-sex marriage, civil marriage as a status relation in law, and monogamy all make sense here and now, given what we know about plural relationships. In fact, I go further and argue that the law of marriage facilitates the availability of a central aspect of the human good and that monogamy plays an important part, an important role in supporting not only equal liberty but also the fair opportunity to pursue the great good of married life, making monogamous marriage itself an important aspect of our constitutional order. So a lot of what I’m gonna say is gonna have a consequentialist flavor to it. We were already talking about this at the table. But the underlying principle, commitment, which I take to be a fundamental commitment of our constitutional order and a fundamental moral commitment of a liberal democratic political regime, is to secure the underpinnings of equal liberty for all and fair opportunity to pursue important goods in life. And monogamous marriage helps to do that. So I think it’s reflective of fundamental constitutional commitments. Now, I don’t think the critics are all wrong. In particular, it does seem to me to be a condition of just marriage that we provide more adequate support to all children and all parents, regardless of marital status. I want to affirm that clearly, while also spending most of my time discussing marriage and the slippery slope, cause those are my main subjects. So I want to say just a word to begin about conservative arguments against same-sex marriage, in part because the conservative arguments that have been mustered against it over the last couple of decades have so little to do, it seems to me, with marriage as it exists today. And I’d like to encourage conservatives to reengage this discussion post-Obergefell and build on the broader understanding of marriage that’s so quickly gaining ever higher levels of support in this country. Over 60% of people now support the Obergefell ruling, with 37% opposed. The only serious philosophical argument in this realm is the new natural law argument advanced by, mainly, conservative Catholic scholars such as my colleague Robert George. Also John Finnis at Oxford, and others. The arguments holds that the natural teleology of the body supports a conception of marriage as consummated by intercourse or coitus. I’m drawing here on the book written by Professor George with two graduate students, actually, former graduate students, Ryan Anderson and Sherif Girgis called What is Marriage. It’s a book that was cited by Justice Alito in his dissenting opinion in the Windsor case. They argued that marriage is necessarily formed by only a man and a woman because marriage, and I quote, “is a union whose norms “and obligations are decisively shaped “by its essential dynamism towards children. “And crucially, that dynamism comes not “from the actual or expected presence of children, “which some same-sex partners “and even cohabiting brothers could have “and some opposite-sex couples lack, “but rather from the way that marriage “is sealed or consummated in coitus, “which is organic bodily union.” In other words, according to these philosophers, it’s the baby-making sex, not the babies, that makes sense of marital norms of twoness or monogamy, permanence and exclusivity. Girgis, Anderson, and George advance the startling claim that, and I quote, “marriage is possible between only two “because no act can organically unite three or more “or thus seal a comprehensive union “of three or more lives.” In other words, marriage is possible only between two because only two people can have intercourse at the same time. No defender of polygamy would be moved by this observation, which is irrelevant. We need to deal with the issue of plural marriage on its own merits. Polygamy long predates same-sex marriage, as Justice Roberts indicated, has a long history, and is still widely practiced. So we can and should assess it on its own terms. It neither stands nor falls with same-sex marriage. And in fact, the twoness of coitus or intercourse tells us very little about why most people aspire to permanence in marriage or why monogamy and fidelity are features of the institution as we know it or indeed why these features of marriage are good. Similarly, on average, babies benefit from marital stability, for sure, and indeed from two-parent marriages. But the new natural law argument is, as I said, it’s not the babies, but it’s the baby-making sex that calls for permanence, fidelity, and monogamy. Why do they say this? Because they want to say that infertile, heterosexual couples can marry but same-sex couples cannot. Now, I’m gonna say no more about this argument or about coitus, unless you insist. We can talk about that later. I know you’re disappointed. The most often-heard argument in federal courts leading up to Obergefell was not this argument. It was the channeling argument with respect to heterosexual marriage. And that argument is that the law has a special interest in channeling heterosexual couples into marriage on account of the worry that heterosexual sex can lead to accidental procreation, which cannot result from gay sex. In fact, the legal arm of the House of Representatives, in this case representing the House republicans, put it this way in its brief in the Windsor decision. And I quote, “it’s no exaggeration to say “that the institution of marriage “was a direct response to the unique tendency “of opposite-sex relationships “to produce unplanned and unintended offspring.” And that provides the states with a reason to offer marriage to heterosexuals but not homosexuals. This argument was subjected to withering criticism by Judge Richard Posner, and he put it this way. And I quote, “heterosexuals get drunk and have sex, “leading to unwanted pregnancies. “And their reward is to be allowed to marry. “Homosexuals cannot do that, so they cannot marry.” (laughing) “Go figure,” he said. This is all a quote. Posner pointed to another anomaly. While states generally prohibit marriage among close relatives, including first cousins, some states, including Indiana, made an exception for heterosexual cousins, first cousins, who were 65 or older because they cannot procreate. So some states rely on the channeling argument, carved out a special permission for some heterosexual couples to marry because they can’t procreate while excluding same-sex couples in general for marriage because they can’t procreate. The inconsistency is glaring. As Posner put it, I quote, “elderly first cousins “are permitted to marry because they “can’t produce children. “Homosexuals are forbidden to marry “because they can’t produce children. “This defies the claim that the state law “is animated by a general concern with channeling “procreation for the sake of children.” What makes it even worse, of course, is that many of those same-sex couples were actually raising children. Now, a third argument advanced by conservative same-sex marriage opponents, this is the last one I’m gonna mention, was that being raised by one’s natural mother and father is the best marital arrangement for children. Actually a philosopher at NYU, David Velleman, also developed this argument in an article called Family Histories, which is a very good article. Now, there are several problems when this claim about ideal family forms is offered as an argument against same-sex marriage. One is that heterosexual marriage has never been restricted to its ideal variants. And that’s because it’s such an important opportunity for people. The right to marry one other person has been held to be fundamental in cases involving not just interracial marriage but convicted felons in prison and fathers who haven’t paid child support, among others. Among heterosexuals, unlimited, no-fault divorce and remarriage is easily available, in part because being married to another person is so important. And indeed, on that score Mickey Rooney, who was married nine times, famously said, “always marry early in the morning. “That way if it doesn’t work out, “you won’t have wasted a whole day.” (laughing) So heterosexual marriage has never been restricted to its ideal variants. And denying gays marriage rights doesn’t stop them, of course, from adopting children and conceiving children. And the good of those hundreds of thousands of children being raised by gay couples is set back by denying their parents the right to marry. Moreover, same-sex couples have one inherent advantage compared with heterosexual couples. They can only have children after careful and deliberate planning. And that means children born to same-sex couples can be sure that their parents really want them. The adverse of the channeling argument, as it were. All right, so conservative arguments have been aired in academic journals, court rooms, seminar rooms, talk radio shows, and elsewhere for decades. And let me add one last point here. I have genuine sympathy with many conservative concerns about the family, as will become obvious. I’m defending civil marriage and monogamy. But the palpable weakness of these arguments against same-sex marriage encourages people to discount the whole conservative point of view in these matters, and that’s a shame. All right, so the final and distinct argument relied on by conservatives has been the slippery slope argument. And it continues to be relied upon, as I said at the beginning. It’s embraced, as I said, however, by many on the left, including many ethicists and political theorists, law professors, many people in the blogosphere and elsewhere, who argue, as I’ve said, that fairness or respect for individual autonomy, individual choice, the equal dignity that was at the heart of the Obergefell decision, that these all require far more radical reforms. Many of these critics of marriage as it exists now, extended to same-sex couples, focus on the issue of numbers and seek to open marriage to more than two spouses. Some of these advocates of more radical reform are willing to accept that polygamy may tend to take the form that it almost always has, polygyny, or one husband with multiple wives. But others argue that we have no reason to expect that in the future, but rather many, including Elizabeth Brake, Sonu Bedi, others, 120-plus law professors, intellectuals, assigned a statement called Beyond Marriage a dozen or so years ago. They expect plural marriage of the future to take a more egalitarian form, as I said, polyamory, or group marriage, the name given to loving networks of adults who eschew both monogamy and traditional patriarchal polygyny. Conservative pundits profess to be certain of the spread of polyamory in the years ahead, as I’ve said. So do some of these progressive scholars and activists. Now, other critics of marriage as it now exists follow a long line of feminists, some feminist thinkers, and say that marriage itself is a poor public vehicle for recognizing and supporting the basic need that all human beings have for care in its many forms, that care and caregiving relationships are the basic good that the state ought to be supporting for adults and that marriage is an under-inclusive vehicle for recognizing and supporting this good of care. And that yields various proposals. Elizabeth Brake, who I’ve mentioned, would retain the word marriage but extend it to cover all adult caring relationships of any number and combination of genders, without any regard to reciprocity or romantic love. She would just use it to cover adult caring relationships and to extend public support to them. And she would allow adults to exchange this elements of the marriage, the bundle of rights that we associate with marriage, with different adults in different networks of relationships. That’s a very creative proposal. Tamara Metz, who’s another political theorist up at Reed College, argues that we should create a new name for the public institution that supports caring relationships very broadly. She’d call them intimate caregiving unions, or ICGUs. As a substitute, it sounds like a medical procedure, but she would create these ICGUs, intimate caregiving unions, as substitutes for marriage, again, to support caring relationships in all their forms. If adult siblings who weren’t married wanted to settle down together, share a household, that maybe we should give them tax advantages, facilitate their sharing of powers of attorney and other kinds of things, and support those relationships that are people who, if you had a grandmother and a grandson wanted to pool some rights in a household, we should facilitate that kind of thing. Yet other critics of marriage as it exists now focus on what they see as the problematic special status of marriage, that marriage has a special resonance in our culture, that it’s kind of honorific, as they see it. And that’s unfair. It gives a special honorific advantage to those who are married and denies that to people in other kinds of relationships. Some worry that it confuses the religious sacraments or religious ceremony with the civil ceremony. Richard Thaler and Cass Sunstein in their book Nudge argue for privatizing marriage on various grounds, including that encouraging people to think of marriage more as a contract would encourage couples to design the terms of that contract to suit their own interests, would encourage them to personalize the relationship if we moved to a more contractual model and left the word marriage to churches and other groups in civil society. So there’re a whole bunch of proposals that are out there for reforming marriage. One thing that many of them share is the judgment that the normative resonance and cultural power of civil marriage illegitimately constrains freedom and diversity, that marriage entwines laws, politics, centuries of cultural understanding, religious meanings, and social norms so as to impart a kind of deep and distinctive shape to people’s self-understandings, their plans, their aspirations for their lives as a whole. But that’s constraining. And freedom and diversity argue for opening up those constraints and encouraging a wider variety of intimate forms of union. I want to push back against all of these arguments. It seems to me that the case for monogamous marriage turns partly on precisely its capacity to shape our deepest aspirations, our ethical judgements, and even our religious convictions in order, as I said at the beginning, to secure a political regime of equal liberty for all and fair opportunity for all. It’s legitimate for the liberal state to facilitate people’s pursuit of good lives, so long as it does so fairly. And it behooves the liberal state to do so in such a way that helps to secure a regime of equal liberty, as I said. And it’s on that basis, I think, that liberals, broadly speaking, should support the preservation of monogamous marriage. All right, so I’m just gonna say a couple of words about marriage as an institution, and then I’ll talk about plural marriage and monogamy. So a few words, and I’m gonna talk about two aspects of marriage. First, the symbolic dimension, the word marriage and its resonance in our culture. That’s been part of what’s been at stake in the constitutional litigation around same-sex marriage because in many places, like Massachusetts, Vermont, California, same-sex couples had available to them civil unions or domestic partnerships that had, in state law, the same terms as civil marriage but without the label, without the word marriage. So that label itself is part of what’s at stake. And then I’ll say a few words about the legal incidents of marriage and the package of things that are bundled into marriage as a matter of particular legal relationships. Those things, these incidents of marriage, the various legal entitlements that go along with marriage, those things I think are all open to negotiation. And indeed, I do think that some of those things should be shared with non-marital caring relationships, as I’ll indicate. But there are these two broad aspects of marriage. As I said, the symbolic dimension and then the various legal specifics, the specific obligations and rights that come with marriage. And I’ll say just a couple of words about both of these aspects. Starting with the symbolic or the expressive dimension, so I defend a common sense understanding of marriage as I see it, as it’s come to exist in America over the last 40 years. I take its core to be the public declaration of two people who commit in public to loving and caring for one another over a lifetime and to build a life together in common. This is the core of the marriage vows, to have and to hold, from this day forward, for better or worse, for richer, for poorer, in sickness and health, til death do us part. Notwithstanding a divorce rate that’s a bit over 40%, marriage is still a presumptively permanent commitment of two people to build a common life, to stick together through all of life’s trials, and to work at making the commitment work. Now, one obvious response will be to say, what about love? Why make commitment so central? Surely marriage, at its core, is an emotional bond based on love. I don’t want to discount that, obviously. But couples nowadays generally fall in love, have sexual relations, and cohabit before marrying. So the emotional bond is there without the marriage. It’s the publicly-declared commitment to building a life in common together that’s crucial, I think. And no other status has the same social meaning. Domestic partnerships, civil unions, other options are comparatively unclear in their meanings and implications. And that’s, as I said, been recognized by the litigant in the same-sex marriage litigation. Kristin Perry, the lead litigant here in California, around the California Proposition Eight litigation, she said that marriage provided access to a language to describe her relationship with her partner. And I’m quoting, “I’m a 45-year-old woman. “I’ve been in love with a woman for 10 years. “And I don’t have a word to tell anyone about that. “Marriage would be a way to tell our friends, “our family, our society, our community, our parents, “and each other that this is a lifetime commitment. “We’re not girlfriends, we’re not partners, “we’re married.” So marriage itself is a very public as well as personal commitment. Once people know you’re married, all sorts of presumptions follow. A train of generally understood legal entitlements follows as well, having hospital visitation rights, powers of attorney, the right to information from doctors, decision-making authority in the event of incapacitation, the right to jointly control a property, social invitations will include both spouses, and so on. Now, if marriage has a reasonably well-understood public meaning, what’s added by the law of marriage? And I draw here on a valuable article by Ralph Wedgwood, who teaches at UCLA. The existence of a legal form of marriage facilitates the fulfillment of people’s serious desire to get married and to be married as a matter of common knowledge in their society. The law of marriage helps make the relationship of civil marriage socially legible, not just to members of my church or my subgroup, my country club or whatever, but across the whole society. And this social legibility has been recognized by people on both sides of the same-sex marriage debate. So John Finnis has emphasized, and I quote, “the fundamental simplicity and intelligibility “of marriage as a legal framework.” And Andrew Sullivan, decades ago, defended the benefits of a, quote, “clear, common symbol of commitment.” I think they’re right. Publicly committing to marriage furnishes a way for couples to signal their commitment to one another and to make it known to others. The commitments of marriage, once entered into, become social expectations and basis for normative judgment. The opportunity to undertake a commitment to assume certain constraints and bear certain obligations while also enjoying a variety of benefits, including greater mutual assurance, that comes with the assumption of marital bonds, it’s a valuable option and therefore freedom-enabling so long as the decision to marry is freely undertaken. Now, some say the idea of marital commitment is becoming increasingly passe, given both the high divorce rate and the declining percentage of adults who are married. And it’s true that more Americans are choosing cohabitation over marriage and a smaller proportion of American adults are currently married than in the past. Part of that’s because people are waiting longer to marry. And I’ll talk at the very end about the huge class divide that’s opened with respect to marriage. Yet among Americans who are 25 years of age or older, 80% either are married or have been. And most of the never-married would like to be. The divorce rate has declined since its peak in the early 1980s, especially among the college-educated, among whom marriage has become more robust. College-educated marriage is working very well. And marital norms remain powerful. 82% of Americans say that adultery is always wrong. This is a 2004 poll. And that was up from 70% in 1973. So the social norms that surround marriage are still real. And the marital option is not only valued but valuable. The same benefits of marriage to heterosexual couples are also available, excuse me, to same-sex couples. Numerous studies show that people, especially men, in reasonably happy marriages have better physical and emotional health, lower mortality rate, increased longevity, compared to single people. And again, that’s especially true for men. These benefits flow not only to them in the form of lower rates of violence, drug abuse, alcohol abuse, and crime, but also to society. And same-sex couples and their children, as I say, benefit in many of the same ways from lower rates of stress, having their relationships recognized, and so on. And indeed, since Windsor and Obergefell, same-sex couples have been marrying in impressive numbers. In 2013, 21% of same-sex couples in America were married. That’s now up to 45%. In the five months after Obergefell, there were 100,000 same-sex marriages. All right, so that’s all I wanna say about the status aspect of marriage, that it has this public meaning, public resonance, allows two people to declare a special form of commitment to build a life in common, serves people’s good as well as being something that they want to enter into and want to have socially recognized. And the law facilitates the availability of that relationship. Fairness certainly requires doing more to assist the unmarried, I think, and also to provide economic opportunities that many unmarried couples regard as a prerequisite to marriage. And obviously, I should emphasize that marriage is in no way a necessity or necessary condition to leading an excellent life. For some, it’s a hindrance. And for others, it’s unnecessary. But that’s fine. The institution seems to me, on the whole, legitimate and largely good, especially if appropriately reformed so as to provide some additional support to those in other kinds of caring relationships, as I’ll talk about in a minute. Now, I’m gonna be even briefer on the other aspect of marriage that I mentioned, the various legal incidents. I mean, there are 1100 federal laws that touch on the various particular responsibilities and obligations of spouses. I’ll just say that they support three broad functions that help to support the marital relationship. They recognize couples’ shared emotional bonds, and so somebody’s specific entitlements to things like immigration privileges for your spouse and surrogate decision-making, recognizing that the marital relationship is someone’s closest relationship in general. A second purpose of these particular relationship, these particular obligations and rights that come with marriage, the legal bundle, is to recognize and support the economic interdependence of couples, sharing a household, their joint relationship of sharing a household. And at this point, it’s worth emphasizing that these aren’t just benefits that come with marriage. They’re also special obligations. You can’t eject your spouse from the shared homestead without good cause, violence or something in the home. And you can’t disinherit your spouse entirely. You’ll be subject to restrictions on division of marital property in the event of divorce. So there are special burdens, obligations, as well as special rights that come with being married, that come in a package with being married. A third has to do with supporting parenting. And as a general matter, that package is reasonably well-designed for the kind of relationship that marriage is. It’s constantly being renegotiated, the particulars, but it’s reasonably well-designed. And in fact, it’s also, as it’s come to exist, well-suited to same-sex couples, marriage as it exists now. David Chambers, a law professor, made this point in 1997. And the development that made marriage well-designed to same-sex couples is gender equality, the fact that in law, husbands and wives have the same legal rights as of the 1970s and the women’s rights movement and feminist revolution of the 1970s. Prior to that, marital rights were highly unequal, and same-sex couples, frankly, wouldn’t have wanted to participate in that institution. But marriage as it exists now is a legal institution of equals. It’s something that’s extremely well-suited to same-sex couples. So the only thing it needs to change is the husband and wife part, becoming spouse and spouse. And in fact, one could say that one of the changes that same-sex marriage makes in marriage is to reinforce spousal equality because either gay or lesbian relationships tend to be quite equal in terms of sharing both work, paid work, and housework. So that’s all I wanna say about the various legal relationships. As I say, these things are being renegotiated. They should be renegotiated. And I think, indeed, some of these special entitlements like hospital visitation rights, powers of attorney, and so on. Of course we should make them available to people who are non-married, non-marital, caring relationships. But what I would say to those critics like Brake and Tamara Metz and so on who would design a completely new relationship, intimate caregiving units or some other thing, it’d be far better off to build on the success of marriage and to create separate statuses for these other kinds of relationships, because marriage has a well-defined meaning. And it would actually detract or deter people from entering into, say, a shared property arrangement in a grandmother and a grandson if we were to call it a marriage, as Brake wants to do. Nobody wants to be married to their grandmother. But you should facilitate that. You could call it a domestic partnership or a civil union or something of that sort, and to allow people in non-marital relationships to share some of these rights. Indeed, I’m prepared to allow, with some of these progressive critics, that a precondition of just marriage is extending greater support to non-marital, caring relationships among adults that serve their good. And I agree with pro-marriage liberal feminists like Linda McClain who say that we should adopt a strategy of marriage plus. Support marriage, maintain marriage, but then do other things for people in non-marital, caring relationships. And finally, what about the marriage privatization argument, the idea that marriage should be moved in a more contractual direction? I’ll be very brief because of limited time. We can talk about it more in the questions section. The fact is that there’s a huge practical benefit in allowing people, giving people, offering people a package of rights and responsibilities that comes as a default package. Fact is, people now can enter into prenuptial agreements to limit marital responsibilities in a marriage. But very few people do in a first marriage, less than 5%. More people do in a second marriage. In fact, especially if one of the spouses is richer than the other. But that makes a certain amount of sense because marriage is an open-ended commitment to love and care for another person over the long term, through all of life’s trials. And seeking to limit those commitments in a way is sort of at odds with the open-ended nature of the marital commitment. And the other problem, of course, is that if you make marriage a matter of contractual bargaining, contractual bargaining tends to advantage the stronger party, whereas marriage rules, laws, have been designed so as to be reasonably equitable between the two spouses. And judges can oversee divorce proceedings to try to enforce equity in the marital relationship, very imperfectly, but arguably better than in a contractual relationship. So it seems to me the advantages of contractualization are more apparent than real, and you might also lose this legibility of being able to enter into a well-understood public commitment, which I think is an essential part of what people want out of the relationship of marriage. All right, so I’ve now said something about the two large dimensions of marriage, the symbolic or the expressive dimension and the various legal incidents that come along with marriage. The expressive dimension of marriage allows couples to publicly declare their mutual commitment and thereby enlists support of social norms and understandings. The aim is practical, not essentially honorific. It’s not about giving people an award. It’s about recognizing a distinctive form of commitment. And likewise, the various legal incidents, legal aspects of marriage, the particular rights and responsibilities do seem to, roughly speaking, support the distinctive marital relationship and represent a reasonable balance between rights and responsibilities. So again, I have no doubt that some of these things could be adjusted. They’re subject to ongoing adjustment. But it seems to me there’s a powerful reason here to be a kind of small-C conservative. Very many people have built their lives around marital commitments. And insofar as they’re working reasonably well for people, change should occur cautiously and incrementally, absent clear and serious injustices such as the exclusion of same-sex couples. And as I say, marriage is not only valued but valuable. Children generally do better with two married parents, as long as there’s not a great deal of open conflict and so on. And as I said, the marriages of couples who complete college, which is a kind of stand-in for being reasonably well-situated with respect to the economy, are as stable now as they were back in the mid-60s. The divorce rate for couples, both of whom have a college degree, is quite low. So marriage does have an architectonic role in shaping our lives, making it in obvious respects a special institution. But the specialness doesn’t, in obvious way I think, run afoul of basic requirements of political fairness. All right, let me turn now, finally, to the last aspect of monogamy and the crucial question of how it could be understood and defended from the standpoint of liberal justice that privileges individual freedom. And without, I should say, resort to sexual moralism. So why monogamy? It’s one of the most interesting and least-examined questions concerning marriage. The answer is actually quite simple and based on, I think, the overwhelming weight of human experience and scientific evidence. The argument that I wanna make against polygamy concerns its effects on the wellbeing of individuals and families in the larger society when institutionalized as a social form. The argument is not that plural marriage is necessarily or inherently immoral. It’s rather that in its known form, it’s structurally unequal and prone to domination, conflict, and unfairness, very strongly. So my argument is moral but not moralistic. When I say monogamy, I mean marrying one other person. Two people who pledge to build a life in common together. But the terms of that common life are up to them. And I just say this to avoid confusion. If they wanna have, for instance, a sexually open relationship, it’s up to them, if it’s entered into in a consensual way. I don’t think it’s the law’s business. It may be a very bad idea, a mistake, but it’s their mistake to make if this is a mutual agreement. It’s sometimes called consensual non-monogamy, but that seems to me misleading. I’d call it consensual sexual non-exclusivity. If married couples wanna swing, as apparently some do in California, at least that’s what we read about on the east coast, (laughing) again, that’s up to them. So it’s plural marriage that I’m against, not sexual freedom. So but what’s the principle basis? Again, I would say it’s the fundamental positive duty of the government to secure equal liberty and the fair opportunity to flourish for all. Now, let me clarify one other point. I’m not in favor of criminalization of plural marriages or religious plural marriages. I think there’s a good case for decriminalization, which is basically the status quo in the United States today. There haven’t been prosecutions for polygamy, criminal prosecutions, since the 1950s, absent child abuse or some other kind of direct harm. But what I’m against is equal recognition of polygamous relationships. There may even be a reason, and I think there are reasons, to recognize some of the effects of plural marriages in order to protect spouses who would otherwise be made vulnerable or the children of spouses who would otherwise be made vulnerable. In other words, we might even recognize that a man has undertaken some obligations to support wives and children. What I oppose is equal recognition, however, and I think we have reasons to discourage polygamy. So let me just back up and explain a little bit. Normative polygamy has been extremely common across human history. In 85% of the societies studied by anthropologists, polygamy is the preferred form of marriage for the most wealthy and powerful males. In China, all emperors and emperor-like men, as was said in Imperial China, where it’s estimated that as many as 10% of the males may have practiced polygamy, or more precisely polygyny, one husband with multiple wives. It’s still extensively practiced, obviously, in Africa and the Muslim world. And now, as before, it’s strongly associated with gender, economic, and social hierarchies among higher and lower status men. Polygamy as polygyny can serve some valuable social functions in highly unfavorable circumstances. In desperately poor regions of Africa and elsewhere, women may find it more advantageous to be the second or third wife of a relatively well-off farmer rather than the sole spouse of a destitute husband. But once those circumstances are left behind, it seems we do well to leave polygamy behind. Now, polyandry, marriages of one wife and multiple husbands, is quite rare. It appears to be typically or always the result of dire poverty, such as a shortage of arable land. A small family farm may be unable to support more than one family, and so two brothers may share or own a single wife, as in some very poor Tibetan societies in southern China and Nepal, even now. In such relationships, those who study them say controlling male jealousy is extremely difficult. And (laughs) it’s telling that whereas polygyny is often an exalted status to which the most successful males aspire, polyandrous marital arrangements seem to be the consequence of desperate circumstances. Now, what do we make of the fact that polygyny has been so common and polyandry so rare? Is it just a matter of historical contingency and the prevalence of male domination and patriarchy? Partly, of course. But evolutionary anthropology and psychology frequently argue, and I would say the general consensus among evolutionary psychologists has been, and also our observed patterns of behavior and preference reflect men’s and women’s differing, the claim is that it reflects men’s and women’s differing evolved psychologies. Men tend to be far more attracted to multiple sexual partners. I mention this only for whatever it’s worth. In litigation in British Columbia a few years ago that upheld British Columbia’s criminal prohibition, and I’ll say more about that in a minute, Joseph Henrich, a leading evolutionary anthropologist, argued that as a practical matter, legalizing all forms of polygamy will principally result in an increase in polygynous marriages by wealthy, prestigious men. He put it this way, and I think many psychologists would agree with this, “nothing of what we know about our species’ “evolved psychology or from the anthropological record “indicates that either polyandry or forms of group marriage “would spread beyond trivial frequencies.” And so he concluded the question of polygamy is a question of polygyny, or one husband with multiple wives. Well, what does it amount to in practice? Considerable evidence suggests that polygamous families and societies are far more prone to various forms of conflict and inequality as compared with monogamous ones. And these were summarized by Justice Robert Bauman of the Supreme Court of British Columbia in upholding Canada’s criminal prohibition in December 2011. And he drew on extensive expert witness testimony. It was a reference case. In Canada, the courts can hear constitutional questions without litigants involved. So he spent a year or more assembling expert testimony on what polygamy amounts to in human practice. The chair of the Stanford classics department assessed the origins of monogamy in ancient Greece. Rose McDermott, a comparative political scientist from Brown, assembled a large, cross-national database which she had already been working on on patterns of life in polygamous and monogamous communities. Joseph Henrich, who I’ve already mentioned, the leading evolutionary psychologist, and John Witte, a historian at Emory who studies ethics and religious ethics drew on and assembled for the court in a sense the best compendium of knowledge on marital forms that’s ever been assembled. So what they found was this. Within families, polygyny tends to create intense jealousies and conflict among plural wives and children sharing a household. It lowers average relatedness within families, and that also is associated with much greater violence in the home. Indeed, the Quran warns, you cannot be equitable in a polygamous relationship, no matter how hard you try. Similar assertions can be found in the Old Testament or the Hebrew Bible, in which polygamy was also an historical reality. Polygamy tends to reduce the attention and the resources that each child receives. It allows male heads of households to invest surplus resources in securing additional wives, leaving fewer resources for nurturing and educating rising generations. In comparison, monogamy increases the surplus resources available to be invested in children, contributing to happier and healthier children and greater social progress. One surprising finding from the experience of 19th century Mormon polygamy in the US is that the children of lower-status males actually had lower morbidity rates or better health outcomes than the children of higher-status males, the reason being that the higher-status males were able to wed more frequently and father more children, thus reducing the care and attention devoted to each child taken individually. Polygyny also increases inter-sexual competition among men. It allows high-status males to acquire multiple wives and numerous offspring, but in so doing deprives lower-status males of anything like a fair chance to find a spouse. Unmarried, low-status males are more likely to do what unmarried males do, engage in risky behavior, drug taking, drinking, and so on. Societies with large numbers of unmarried males tend to have much higher rates of violence and crime. So women, children, and lower-status males fair poorly under polygyny. And so Rose McDermott, that political scientist from Brown, concluded, and I quote, “polygyny’s negative effects are wide-ranging, “statistically demonstrated, and independently verified “using a variety of analytic tools.” The exact origins of monogamy are unknown, but they lie in ancient Greece, before the historical period. It appears that normative monogamy, which limited all men, including the wealthiest and most powerful, to one legal wife at a time contributed to more cooperative social relations and greater social success among the great city-states and the Roman republic. Later, Western and other Christian societies copied these more successful models, these more successful, more just models and social patterns. Monogamy spread with the influence of Rome and, later, Christianity. So its origins are Western but not Christian. The Western origins of monogamy suggest to some that monogamy is a colonial and Christian imposition on non-Western cultures. But it was Mao Zedong who imposed monogamy in China. Kemal Ataturk, the father of modern Turkey, outlawed polygamy as part of his modernizing efforts in the 1920s. Japan did so on its own in the 1890s. Polygamy was banned in India’s post-independence Constitution for Hindus but was accommodated among the Muslim minority. So we now live in an increasingly interconnected world and should consider the impact of our decisions, it seems to me, on the global culture of human rights, especially women’s and children’s rights. Nowhere in the world that women are equal is there any widespread social movement in the direction of plural marriage. And where women are becoming empowered, polygamy is viewed as an important obstacle to women’s equality. The transitional to institutional monogamy is associated with more egalitarian social relations, generally, less inequality between men and women, reduced social conflict, higher investment in children, greater social progress. And these are not simply important public goods. They include basic human interests that are the currency of egalitarian justice. Children are owed a decent start in life. Women are owed a social order that helps support egalitarian marital arrangements and so on. Now, obviously there are liberty interests involved if several consenting adults decide they wanna settle down and pledge fidelity in marriage-like arrangements. But liberal and constitutional theory and common sense allow that particular liberty interests can be overwritten by the demands of equality. We need to define a scheme of equal basic liberties or rights that can be secured for all. In its common forms, polygyny is not an opportunity that can be secured for all. Indeed, as an experienced social form, it’s productive of a wide range of inequalities. So it seems to me the case for same-sex marriage is radically discontinuous with everything we know about polygamy as a lived phenomenon. Same-sex marriage extends the basic value of equal liberty to a group long subject to prejudice and discrimination. It helps secure everyone’s equal status and standing and the fair opportunity to pursue a good and successful life. Plural marriage, in contrast, is strongly associated in practice with patriarchy and class and status hierarchies. Polygamy is hyper-traditional, hence the ironic insight of Chief Justice Robert’s remark in Obergefell that from the standpoint of history and tradition, a leap from opposite-sex to same-sex marriage is much greater than one from two-person marriage to plural unions, which have deep roots, he said, in some cultures around the world. Yeah, that’s because those traditions are patriarchal. Now, I’m gonna say one last thing, that there’s several principled considerations that help sharpen the distinction between plural marriage and same-sex marriage. First, preferences for polygamy are not the equivalent of same-sex orientation. We know that a large class of people has deep-seated and stable same-sex orientations. No one has the orientation of only falling in love with two or three people at the same time. People’s felt desire for polygamous marriage appears to be highly variable and dependent on prevalent institutions and culture. Another set of considerations that count in favor of the twoness or the monogamous nature of marriage has to do with the practical aspects of stability and flourishing in human relationships. Marriage is nowadays unique in the depth and breadth of the mutual commitments that spouses make to one another. Two people come to depend upon each other very deeply and across wide segments of their lives, making each other uniquely and deeply vulnerable to loss and betrayal. Bringing in a third person, turning the diad into a triad, makes all of these negotiations far more complex and seems a recipe for conflict, as it does appear to be in practice. With monogamy, each spouse depends reciprocally on the other. Indeed, among the Mormon, they argued themselves that polygamy should be confined to the elect because it took special virtue to manage polygamous marriages. And they indeed argued that it shouldn’t be practiced outside the Mormon community. A third consideration in favor of one spouse per person is distributive fairness. Marriage is a great good sought by the vast majority of people. We should secure the conditions within which this opportunity is available to all on fair terms. Now, Andrew March at Yale, I made this argument before, and he’s jokingly likened it to the Lockean proviso when it comes to property accumulation and the state of nature, that we should leave enough and as good in common for others when it comes to spouses. Well, it’s a very funny remark. But the evidence supports the notion that plural marriage tends to take the form of polygyny, disadvantaging low-status males on the marriage market. Monogamy helps furnish the social basis for a fair distribution of the opportunities for family life. Finally, it’s been argued for decades that same-sex marriage would degrade marriage for heterosexuals. But it’s never been shown how. Plural marriage, on the other hand, would change the character of marriage for all. It would undermine the assurances that the law of monogamous marriage has underwritten. It would be a very unwelcome development for very many married couples. Finally, and just very briefly, what about polyamory or group marriages, egalitarian group marriages of the future, that would be of this egalitarian form that people have been talking about and writing about? Sometimes called polyfidelity, a horizontal, non-dominating network involving multiple partners of various genders in which all of the participating spouses have equal rights. My colleague Robert George loves to talk about polyamory. He’s sure that it’s coming. And at the other end of the spectrum, as I said, lots of highly progressive people seem to agree. What’s striking at the moment is we know almost nothing about this as a systematic matter. There is not a single systematic study of polyamory. All we have is anecdote and speculation. The Supreme Court in British Columbia estimated that there could be 120 polyamorous households in Canada. That was just a guess. All of the academic work that talks about this relies on anecdotes. Elizabeth Evans, a law professor at Columbia, has an oft-cited article called Monogamy’s Law, which speculates, admittedly it’s a thought piece about these plural, egalitarian relationships. But she just has four or five groupings of people that she draws upon. One set appeared on the Jerry Springer Show. Another were in court cases. I mean, it’s a big world out there. People get involved with lots of complicated relationships. Her article is, frankly, speculative and anecdotal. Conservatives repeatedly point to a statistic that there are 500,000 polyamorous in the United States. That was a guess that was advanced in a Newsweek article in 2009. That’s been taken out of the online version of the Newsweek article. It had no basis other than guesswork by an advocate for polyamory. It’s now referred to as an oft-cited statistic because it’s been repeated so often, which is shameful. There’s no basis for it. Elizabeth Brake, in her work on plural marriage reform, straining for evidence, suggests that a book by Ethan Waters called Urban Tribes: Are Friends the New Family? It’s a sort of yuppie ethnography. She cites this as evidence of a new family form, which she calls urban tribalism. Well, this is a book from the 1990s of a bunch of 20 and 30-somethings living together in a household in San Francisco. They’d all graduated from college, and so on. And she slept with him, and he slept with the other one, and they slept with, and so on and so forth. But she heralds this as a new form of family called urban tribalism. Well, Ethan Waters is now married and has children. It was a stage of life. People are delaying marriage. So it doesn’t furnish any basis for thinking anything. So what should we make of polyamory? I mean, I just think we have to reserve judgment until we see it develop as a social form, see whether it is consistent with marital commitment. As it is now, most of the people that engage in this, it doesn’t seem to be anything like marital commitment. It looks like adults in fluid relationships who have open sexual relationships. That’s not marriage. It’s not at all clear that most of the people engaged in these polyamorous relationships want to be married. It doesn’t seem to have much to do with marital commitment. Deborah Anapol, who was kind of a sexual sex therapist out in California, has been one of the leading proponents of polyamory. In her case, I don’t believe it really was about marriage. What I would say about it is this, is that we should wait to see how these things develop, if they will develop, and then create law for them, not create law in the expectation that there’s something there, in advance of having seen what it looks like. So just a final point, and I’ll conclude. I’m sorry, I’ve gone over. In a way, I think there’s some very valuable points in these debates about marriage, as I say. I think there’s no question that the law should do more to support all parents and all children, irrespective of marital status. I think it should do more to support adults in non-marital caring relationships, in addition to marriage. But I think as far as these radical reforms go, we should build around the success of marriage. And we should also think about ways of making it possible for more people who would like to be married to enter into this relationship. The striking thing now with respect to marriage is the class divide that’s emerged. Robert Putnam has written about this in his book called Our Kids. Among college educated, the typical pattern is that couples are waiting to marry until after they’ve graduated from college, after many of them have done postgraduate degrees, after they started their careers. They’re not postponing having sex, necessarily, but they’re postponing getting married, and they’re postponing having children. And they’re getting married first, then having children. And those marriages are more egalitarian than in the past, not completely egalitarian. Men still aren’t doing enough housework and child care, but they’re doing more than they used to. And those are very stable marriages. Among people with only a high school degree or high school dropouts, the overwhelming pattern is cohabitation, and people having children in cohabiting relationships, which prove to be much less stable than people hope. And the reason for that is, in significant part, because the decline of factory jobs has made people at the lower economic spectrum feel, it’s not that they don’t want to be married, it’s that they don’t feel they have the economic wherewithal to support a marital relationship. So they think they have to develop economic wellbeing before they get married. And they’re postponing it, in significant part, that’s not the only reason, but because of their economic insecurity. So that’s a real, I think, additional dimension of cost that’s associated with the great inequality that’s arisen in this country. And I think that’s the real crisis of marriage rather than, I think, these various items on the slippery slope. Anyway, I apologize for going on too long. And we can take a few questions, I guess. (applause) – [Woman] We now have time for questions, so if you have one, please raise your hand and Shwen or I will come to you. – [Audient Member] Hi, thank you very much for speaking. My question has to do with the role of vocabulary in government. Where do you feel the US government, specifically, has the right to push or pull people against the word marriage, which has historically been associated with religious traditions? So when thinking about marriage versus civil unions, should the US government be pushing people towards the idea of marriage and towards the idea of historical religious unions or towards civil partnerships or domestic partnerships because it’s away from religion and historically we’ve had the separation of church and state? – Yeah, well, we’ve had civil marriage in this country for a long time, so there is marriage as a religious institution. I grew up in the Catholic tradition, so we always knew there was civil marriage and there was religious marriage, because you weren’t allowed to divorce within the Catholic tradition. You had to get an annulment. So there’s things with Ted Kennedy and so on. I’m from Massachusetts and made it quite clear that civil marriage and religious marriage are two different things. So I don’t see any problem with there being a civil law of marriage. And the fact is, but I see this as a facilitating argument, basically. Insofar as couples want to get married, want to be married, want to enter into that well-understood commitment, it seems to me the law of marriage enables them to enter into a commitment they want to enter into. Now, in places where there’re alternatives to marriage that are available, most couples don’t take advantage of them. At the stronger end, there’s something called covenant marriage in three states in the union, including Arkansas and then two others, which was pushed by Mike Huckabee. And it was to be more traditional. It did not include no-fault divorce. The mandatory waiting period before divorce, mandatory counseling, and mandatory time before remarriage. And that was designed to strengthen marital norms and strengthen marital commitment. The hope was that people would undertake covenant marriages rather than regular marriages. Very few people did, about 2% or less. The statistics aren’t very good. So in general, I think people want to have, want to enter the marital commitment. I’m not against civil unions and so on if people prefer that. But I don’t see a huge amount of interest in that. So for same-sex couples, what people wanted access to was marriage. And again, I think that the well-understood nature of the marital commitment is what people wanna enter into for the most part. And I think that it’s a form of commitment that’s proven to be good for people, basically. And I see no problem with the law recognizing that and supporting that. But it’s a facilitating argument. It’s not a pushing argument. So I am a little leery of the channeling argument. But I think the law should certainly facilitate the availability of this. And I think also, people have gotten skeptical about the institution, to some degree, I think in part because of this debate around same-sex marriage, which has given the institution a bad name to some extent. But I think it’s worth re-appreciating. Though as I say, among couples with college degrees, it seems to be doing reasonably well. But is that sufficient? (laughs) Yes? – [Man] Thank you for your talk this evening. In Obergefell, Justice Kennedy’s opinion held that marriage was a fundamental right, which stands in contrast to the lower, discriminatory standard used to overturn DOMA in Windsor. I’m curious if you think that has implications for the constitutionality of plural marriage as opposed to perhaps the desirability of that institution. – Right, yeah, I mean Kennedy didn’t say anything in his opinion about plural marriage. But the dissenters did. And I think it’s sensible for Kennedy not to say anything about it, cause it wasn’t on the table. Rights need to be constructed. The contours of rights need to be constructed. And when we construct the contours of rights, we take into account a whole variety of social consequences and the possibility of realizing those rights in a way that’s equal for everyone. So when it comes to speech rights, religious liberty rights, and so on, we have to think about what constitutes a regime of equal liberty. And similarly here, it seems to me that polygamy’s just been an issue that’s been kind of off the table, that we haven’t discussed and talked about and thought about. But I think there’s every reason as to why the right to marry is fundamental, but it’s the right to marry one other person. But it’s a complex right. It answers to various kind of good social consequences, as well as interests that people have, and it helps to facilitate a good form of family life for people. So with respect to all of the things I mentioned, I don’t think we need to understand the most abstract sort of lines in the Kennedy opinion as having the sort of very radical implications that some people have suspected. Now, I think that he could have written his opinion in a more circumspect and careful way. But I don’t think it has implications beyond the current case. It shouldn’t be understood to have implications beyond the current case. And I think with respect to other kinds of rights in general, Pierce versus Society of Sisters and so on, there are also social imperatives involved that allow us to draw the contours to rights. And the touchstone always has to be equal liberty. Our rights, from the beginning, are constructed in a constitutional way and in a liberal way so as to facilitate both an ample sphere of liberty, but a sphere of equal liberty that can be made available to all. So I think monogamy responds to those core concerns, yeah. – [Audience Member] Thank you for your talk. And thank you also for bringing up British Columbia, because from there, and it’s good to hear that come up without my prompting. (laughing) The one thing I wanted to ask about that, given that conversation about polygamy in British Columbia especially, is that in one particular area in one town, it’s sort of known to be tied to a religious sect. – Bountiful. – [Audience Member] Bountiful, yeah. And it’s kind of an inside joke that if you wanna mistreat someone, send them to Bountiful because they’re sister wives, and all the kind of negative associations that come with that. – Worse than sister wives. – [Audience Member] Yeah, just not a great environment. But I think what was interesting about the case to me was that it struck to couch a certain kind of marriage and a certain kind of union that was polygyny, I guess. – Polygynous, yeah. – [Audience Member] In the sense that it was within a religious right to practice, and there’s been issues with Canadian law that you can’t really go after a group for a religious belief like that. Because it’s their own religious belief, and it trumps the ability to say whether that’s not okay to do under Canadian law. Again, there’s a system of abuse there that’s no okay or acceptable, but that’s its own thing. So in the United States case, to what extent, even if we’re not looking at creating sort of the civic infrastructure to understand polyamory or polygamy, if it is, again, non-abusive in the same way we expect marriage not to be abusive, sort of what are the considerations that we’d make, given that we don’t have a basis in polyamory going forward, even if we’re not trying to do any abstract, as we move along, what should we be considering as we weigh polyamory, if it is to become some sort of civic embodiment in the law? – Well, I would say this. Over the last four decades, we’ve learned about people with stable same-sex orientations, and indeed the whole idea of sexual orientation was not really understood 40 years ago. It was only in the 1990s that a majority of Americans came to accept that there are people with stable same-sex orientations. Before then, it was the idea of lifestyle choice was much more fundamental. When I came out to my father, he sort of referred to my lifestyle, as if it was just kind of a choice. And indeed, if you look at sort of the Google N-gram thing, sexual orientation versus sexual preference, the frequency of usages crossed at some point in the 1990s. So this is something we’ve only come to understood fairly recently, frankly. And who knows about polyamory? I mean, it’s conceivable. Given the kind of relationship that marriage is, companionate relationship, a matter of choice and commitment, not just a matter of property, not just a matter of kind of a property arrangement for people to keep body and soul together, it does seem to me that twoness makes sense. And all of the studies of polygamous marriage, including the defenses of them, do focus on jealousy as a special problem, which I think is endemic. But I wouldn’t create legal structures, let me put it this way, this is sort of, I was just thinking about this a couple weeks ago, speaking somewhere else. Polyamory, if it’s gonna come to exist as a form that suits individuals’ good, is gonna be something that we’ve never seen before. And we should have it arise and then create law for it, not to create law for it in advance. Because it’s not gonna be the same as anything we’ve seen before. So I think there’s every reason to sort of allow people to engage in experiments in living, of the sort that John Stuart Mill talked about, and then if some sort of stable social form arises and it doesn’t seem to be detrimental for children, for spouses, and so on, and society, in a serious way, then we could create law for it. But I wouldn’t try to create law for it in advance, cause we wouldn’t know what we’re doing, frankly. So I think it would be much more sensible for the law to follow rather than try to lead here. And I don’t see a fundamental liberty claim here because, again, it’s not something that can be secured for all. Let me say one other thing, which is where you started off with respect to polygamy in the United States and Canada. The Canadians have a very deferential standard, so the court there upheld the criminal prohibition. In Utah, I focused, in one chapter in the book, on two cases, that British Columbia case, which was highly evidence-based, historical, normative, comparative, and so on, and the Cody Brown case in Utah a year later, where a federal judge struck down part of the anti-bigamy statute, but on somewhat reasonable grounds. I mean, the opinion was very strange. It sort of cited Edward Said and Orientalism and a line from the Reynolds case saying that polygamy was characteristic of Asiatic and African peoples. This was in the 1878 case. And therefore was kind of un-Christian, un-Western. It also said that it’s patriarchal and suggested, and that part was more correct. But the judge in this Utah case basically cited this Orientalist line from the Reynolds case and then religious liberty interests, and struck down the criminal prohibition. Now, I’m not in favor of criminal prohibition. But what the judge pointed out there was that if the anti-bigamy statute was understood to prohibit Cody Brown’s marriage, what it would be prohibiting would be a marriage in which he had four wives. He only has a legal, civil marriage with one of those wives. And the other three he married in a religious ceremony. Now, so what the judge called it was in effect religious cohabitation. It would be like a man who was cohabiting with four different women and bearing children with them and calling them marriages because they’ve had a non-public or in this case a religious ceremony. That’s not, that seems to me a reasonable decision in that case. So the bigamy statutes basically involve trying to get a second civil marriage license. And there were additional complexities having to do with common law marriage and so on, which doesn’t exist in Utah. But I’m not in favor of criminalization. I have some sympathy with it just as a kind of expressive purpose. But we haven’t applied criminal prohibitions, and I can see, they give too much discretion to prosecutors to threaten people with prosecution who oughtn’t be prosecuted. So I can see a kind of legal permission here, which is what exists, but not equal recognition. I would offer protective recognition to those spouses and children who might otherwise be disadvantaged if their second or third wives wouldn’t be recognized, if the husband wouldn’t have any obligations whatsoever. And there are other complexities that arise there. But that’s where I would leave it for now. And to be honest, I mean, people here may have views, and it does seem that college students find this idea of polyamory more exciting and more plausible than people of somewhat older generations, including my own. But it is astonishing, not a single systematic study. And as I said, nowhere that I can see, including very progressive countries like the Netherlands and Scandinavia and so on, there’s no broad social movement in favor of plural marriage. Wherever women are equal, monogamy seems to reign. And as I said, where women are becoming equal and plural marriage exists, they see it as an obstacle, including in South Africa, where it was protected as a form of traditional marriage, but only among black Africans, not for whites in the Constitution, but as a concession to African traditions. So it’s a curious thing, but yes, so it seems to me that there’s every reason to think that that’s the direction of history as far as this goes. – [Woman] This will be our last question for tonight. – [Man] Thanks for the talk, Professor Macedo. – It’s working, yeah. – [Man] So if I understood you, is it working? – Yes. – [Man] Okay, can everyone hear me? So if I understood you correctly, the main challenge to your view on same-sex marriage is the slippery slope argument advanced by conservatives. – And some liberals, yeah. – [Man] And some liberals, perhaps. What’s strange to me is that you only seem to discuss one point on the slippery slope argument, and that’s polygamy. – Well, I talked about the marriage privatization, admittedly briefly, and the creation of some sort of new forms, like the intimate caregiving units as a substitute for marriage or minimal marriage, which is Brake’s idea, that we would call marriage as all of these caring relationships that adults would enter into. I talk about those in the book more extensively. – [Man] Okay. My question is, there seem to me to be two cases. – But polygamy seems to be the thing that people are most interested in, sometimes. – [Man] Yeah, so there seem to me to be two cases that you didn’t touch on. One is bestiality. – Yeah. – [Man] I can see how you would have a principled response to that case. But I’m curious how you’re gonna leverage your- – But what would it be, do you suppose? I mean, it’s such a strange thing, I think it’s a good thing that we don’t, what’s that? – [Man] I was foreseeing something to do with your definition of marriage. – Oh, marriage, yes. It certainly wouldn’t count as marriage. – [Man] Yeah, right, so you can’t have that with an animal. But what I’m curious about is how you’re gonna apply this standard of fair opportunity to pursue the good life and to flourish to the case of incestuous relationships. And I’m curious how you would extend your standard. – Well, I mean, I think that’s a very easy one, again. Happily, there are not many people that advocate for this, but the family and the good of the family depends upon children being raised in circumstances in which they can trust their siblings and their parents to nurture them and care for them and so on, physically and otherwise, because sex is not on the agenda there, because it’s a constitutive prohibition of the good of family that immediate family members do not have sex with one another. And it’s in order to protect, prospectively, the children that would be made vulnerable by the prospective possibility of, I think, developing sexual relations with an immediate family member that is a sufficient basis for regarding that as a wrong and as something that I would retain the criminal statute for. Cause it would create terrible vulnerability within the family. You see what I’m saying? In a way it’s down, but in order to constitutively protect the family as a place where trusting, nurturing relations can take place because they’re not sexualized. I mean, it would be, the kinds of vulnerability that would be created for children would be terrible if as a general matter this sort of thing became an option. And you couldn’t allow it for adult, I’m just, this is my view. You couldn’t allow it for adult siblings and not have it become a prospective possibility that would change family relations. So I think it’s a constitutive prohibition that’s for the good of the family and perfectly consistent with people having a perfectly wide range available of options. I mean, there are other things to be said about it, other negative things. So happily, this very rarely happens. We have an inbuilt, both moral judgements, I think, and revulsion that seems to be, but I think there’s good moral reason for it. In Germany, there was a case, because there were two siblings that were separated at birth and raised by separate families, and without knowledge, they met later in life. They had a lot in common. (laughing) And it only became known through genetic testing, I think it was, that they were actually siblings separated at birth. And look, I think that’s the kind of case, you don’t make law for that kind of case. That’s not your typical case in any event. But there has been, and again, this is probably a slippery slope. My colleague Robby George talks about this. There’s an ethics panel in Germany that said, because consent and liberty are so important, that the prohibitions and the restrictions on adult, you know, if you’re not gonna have children so they’re not gonna be genetically damaged offspring, that’s off the table, then we should relax these prohibitions. I just think that’s a bad idea for the reasons I suggested. That this is a constitutive prohibition that’s very important for prospectively protecting the children in families. I don’t think it would happen very much, but I think, I mean, that’s basically what I wanna say about it. Yeah, I mean, that seems to me to be sufficient. What we need to secure, I mean, John Rawles puts it very carefully in Theory of Justice. John Rawles, the most important political philosopher since John Stuart Mills at least, says that what we have are the basic liberties, are the right to a fully adequate scheme of equal basic liberties. A fully adequate scheme of equal basic liberties. But that scheme of liberties needs to be thought about in a way that we can equally secure for all and also has to be consistent with the stable sort of replication of society over time and the replication of its fundamental institutions, including the family. And I think that there are certain limits on individual liberty, having to do with plural marriage and certainly having to do with incest, that are well justified in order to protect, in the case of incest, the good of the family, as a very important good that’s after all essential to children developing in a way that allows them to have a good life, which means leaving the home, not marrying your sister or your brother or your parent, and so it seems to me that with some of these areas, I mean, there’s a sort of small-C conservatism that just makes a heck of a lot of sense. There’s very little actual controversy about incest, though as I said, there’s some. And there’s some among some ethicists and, yeah. – [Woman] Please join me in thanking Professor Macedo for tonight. – Thank you for your questions. (applause)

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