McFreedom

Clayton Cramer, famed opponent of gay marriage, quotes approvingly from Walter Williams two arguments against gay marriage, namely:

Suppose a woman and a horse appeared before San Francisco County Clerk Nancy Alfaro applying for a marriage license, or it might be a man and a sheep. What argument might the County Clerk have for not issuing them a marriage license?...Some people might feel that the definition of marriage should be expanded so as to include group marriage. What argument would the San Francisco County Clerk have against the issuance of a marriage license to three, four or 10 men or the like number of women who wanted to marry?

Mr. Cramer has been quite fond of the first argument; I think it is an obviously bogus one. We have no history of granting animals every right humans have. Humans are, for example, protected from murder, while animals are not. A clear difference between homosexual marriage and bestial marriage is that in the former both participants are human. I linked approvingly to Prof. Volokh's thoughts on why gay marriage is fundamentally different from interracial marriage - essentially, that there are rational arguments to be made against gay marriage other than "it's icky," which was not true of arguments against intertwine marriage. However, there are a lot of arguments out there which are not intelligent ones, and I think one of the real ways you can look for them is to imagine making the same argument about interracial marriages. If the argument fits just as well on that as on this, it's a pretty good hypothesis that it isn't a good argument. So, for example, it's easy to imagine Senator Phogbound saying, "Why, if a white man can marry his negro, what's to stop him from marrying his horse?" It is not so easy for us to imagine him saying, "I love all children, including the children from a mixed marriage, and I'm concerned that a marriage in which both participants are different races isn't going to be good for the children who are brought up in them, because we know from studies that children brought up in same-race households do better."

The second question, I think, is a more interesting one: If we can't prohibit gay marriage because it's none of the state's business, why can we prohibit polyandrous relationships? I think many libertarians' off-the-cuff answer is, "Well, there's no good reason I can think of." I'd like to submit that, even if one believed that there is not a fundamental ethical reason to ban such marriages (absent coercion), there are a number of fundamental policy differences between gay marriage and group marriage which allows a line to be drawn:

• Group marriage may destabilize court procedures so much they should be banned or significantly curtailed. "Married to the Mob" shouldn't be a way to avoid having to testify against one's co-conspirators.
• The breakup of property in a group marriage (to say nothing of the custody of children) could be so complex that we do not wish to have a default, easy way to enter into these relationships without formally declaring the breakup process.
• There seems to be a lot of coercion involved in these types of relationships, and maybe we don't want to allow them because we're concerned about the strong coupling between coercion and polygamy.
• If Bob marries Alice, and then also marries Sue, what is Sue's relationship to Alice, and vice versa? I don't think the law can make a default presumption in that case. Sue and Alice may hate each other, and not want the other to have spouse-like powers. Bob should not be able to make that decision for Alice simply by marrying Sue.

To me, the last one is most devastating. I believe I am actually officially against group marriage, just because I don't think it makes any sense at all to have a default legal framework for it (although, ethically, if you can convince 37 women to go to an attorney's office and draw up custom paperwork defining your relationship, knock yourself out).

Eugune Volokh has (as usual) a thoughtful and informative article on why he "tenatively supports" gay marriage but doesn't think the courts should make this decision, and why sex descrimination isn't always the same thing as race descrimination (for example, race-segregated bathrooms are a lot different than sex-segregated bathrooms).

Angry people on both sides of this issue would do to read his article, I think. Time is on the side of the gay-rights activists, if they don't concentrate on getting their way by judicial fiat. Democracy will do the right thing in the next couple of decades, but judicial decisions will only leave a festering wound that will not heal.