Logical Fallacies Used By Courts to Justify Same-Sex Marriage Validate a Slippery Slope

Abstract:

Scholars have dismissed the argument that same-sex marriage will lead to marriage of three or more, saying it is merely the logical fallacy of the “slippery slope.”  They have also offered various arguments against polygamy to show that same-sex marriage is not a slippery slope.  However, none of the arguments against polygamy are very compelling, especially after Lawrence v. Texas, and the polyamory movement renders most of them moot.  Further, state courts that have established same-sex marriage rights have refuted arguments that the central purpose of marriage is related to procreation and child-rearing, as proponents of traditional marriage have argued.  In doing so, these courts have committed logical fallacies that not only justify same-sex marriage, but that also justify marriage of three or more.  Thus, the marriage-of-three argument is a non-fallacious slippery slope because it predicts a likely outcome of an initial action.

Introduction

Most legally-cognizable arguments defending traditional marriage suggest a link between marriage and both procreation and childrearing.  According to the defendants in Perry v. Schwarzenegger, the federal case challenging the constitutionality of Proposition 8,  “[t]he central purpose of marriage… had always been to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”[1] Advocates of same-sex marriage often deny this alleged central purpose of marriage and point to other benefits and purposes of marriage to justify their argument that the law may not exclude two men or two women from marrying. 

This paper is about logical fallacies employed in the same-sex marriage debate, and I am writing it for a Law and Logic seminar.  In this paper, I will point out the logical fallacies committed by advocates of same-sex marriage as they question the aforementioned central purpose of marriage.  By itself, this is not an undertaking worthy of much value because logical fallacies are ubiquitous on both sides of any debate.  I intend to add value by (1) analyzing only logical fallacies committed by state courts that have established same-sex marriage rights and (2) pointing out how these fallacies establish presumably unintended precedent for additional future changes to marriage law.

Specifically, I will argue that these logical fallacies constitute legal precedent that validates the concern that some opponents have expressed that “same-sex marriage will lead to polygamy.”  The response to this concern has been that it is merely a logical fallacy, specifically the fallacy of the slippery slope, and that “polygamy” won’t follow same-sex marriage.  However, I will argue that a slightly modified version of this concern, or that “same-sex marriage will lead to marriage of three or more,” is not a fallacious argument.  I will also explain why I think modifying the concern in this way is appropriate.

I will proceed by first conducting an in-depth analysis of the slippery slope fallacy and demonstrate factors that may render a slippery slope argument non-fallacious.  Essentially, slippery slope arguments are valid if they accurately predict a likely consequence of an initial action.  Thus, all slippery slope arguments fall along a continuum between “probable slippery slopes,” which are not fallacious, and “improbable slippery slopes,” which are.

Next, I will apply this framework to various slippery slope arguments against same-sex marriage.  I first conclude that most are fallacious improbable slippery slopes before addressing my thesis that legalized marriage of three or more is a probable consequence of same-sex marriage, and that this argument against same-sex marriage is therefore not a logical fallacy.

In the next section, I will briefly examine the common arguments against marriage of three or more that scholars have offered, many times in order to allay slippery slope fears and defend same-sex marriage.  I will briefly show how these arguments against marriage of three or more are not very compelling, especially after the Lawrence v. Texas case.  This leaves judges free to seriously consider the merits of legalized marriage of three or more if the opportunity presents itself.

Having shown that the barriers to marriage of three or more are few, I will list key logical fallacies committed by courts establishing same-sex marriage.  Since the decision of the Massachusetts Supreme Court was the trendsetter, I will draw primarily from the text of that decision.  I will attempt to point out the significance of each fallacy I identify by showing how they render the marriage-of-three argument a probable slippery slope, as opposed to an improbable slippery slope, and thus a legitimate argument.

Finally, I will conclude by reviewing the arguments I have made in defense of my thesis, which can be stated as follows:   The argument that same-sex marriage will lead to marriage of three or more is a non-fallacious, probable slippery slope because state courts, in establishing rights to same-sex marriage, have committed logical fallacy and refuted the idea that the central purpose of marriage is procreation and child-rearing, thereby justifying and establishing precedent for marriage of three or more.

The Fallacy of the Slippery Slope

The slippery slope argument is a logical fallacy, defined as “an argument that some action should not be taken due to the unavoidable consequences that will follow.”[2] The fallacy occurs if “the conclusion of an argument rests upon an alleged chain reaction and there is not a sufficient reason to think that the chain reaction will take place.”[3] Proponents of the initial action often dismiss such arguments as cliché, arguing that the initial action will not necessarily lead to the predicted consequences.[4]

As for same-sex marriage, there are a number of supposed “unavoidable consequences” at the bottom of the slippery slope.  These can broadly be grouped into two categories:  A slippery slope towards “restrictions on private anti-homosexual decisions”[5] and a slippery slope towards further redefinitions of marriage.  The former includes fears that same-sex marriage will lead to religious organizations that believe homosexuality is a sin being forced to hire gays and lesbians, tenants being banned from advertising for roommates based on a preferred sexual orientation, landlords who oppose homosexuality being forced to rent to gays and lesbians, and anti-homosexuality free speech being suppressed in certain venues, for example.[6] This category of slippery slopes is beyond the scope of this paper.

I will focus on the second slippery slope category, or the fear that same-sex marriage will be a slippery slope towards further redefinitions of marriage.  First, however, I will explain why not all slippery slope arguments are fallacious.

Four Reasons Why Slippery Slopes Are Validated

An argument that an initial action will lead to unavoidable consequences is not a fallacious slippery slope if the unavoidable consequences actually are unavoidable, or at least likely to occur.  I refer to these arguments as “probable slippery slopes.”  There are four primary reasons why an initial action might make the feared consequence more likely.

First, the initial action could lower the cost of the second one.[7] For example, a decision to register all handguns would certainly make a subsequent decision to confiscate all handguns cheaper and easier because their locations would already be known.[8] In the law, I think this “cost-reducing” validation is limited primarily to legislative actions that would reduce high bureaucratic costs of a feared subsequent action.  Simply altering a marriage statute so that it recognizes a new kind of marital unit doesn’t involve high bureaucratic costs because there is nothing for the state to administer.  Because I don’t think this validation applies to the marriage debate, I will not refer to this validation for the remainder of this paper.

The second validation or reason why an initial action might make a subsequent consequence more likely occurs when the initial action affects the attitudes brought to a second decision.[9] For example, legalizing aggressive interrogation techniques on suspected terrorists might desensitize the public, who then might be more open to outright torture or to aggressive interrogation of less potentially harmful suspects.[10] I think this validation is applicable to the marriage debate, and I will refer to it throughout the rest of this paper as the “attitude-altering” validation.

Third, theories about equal treatment might require a second decision to be made like the initial one.[11] For example, if terminally ill people are allowed to refuse medical treatment and end their lives, it is difficult to argue that terminally ill people with no treatment to refuse should be disallowed from opting for assisted suicide because such a law treats people in nearly-equal positions unequally.[12] Throughout the rest of this paper I will refer to this point as the “equal treatment” validation.

Fourth, the initial action affects the power of those interested in the second decision.[13] For example, merely legalizing marijuana wouldn’t necessarily lead to outright marijuana advertising because that could easily be prohibited by law.  However, legalizing marijuana would create an industry to supply it, which industry would gain power and money that it could use to change such laws.[14] Throughout the rest of this paper I will refer to this point as the “power-altering” validation.

Two Reasons Why Slippery Slopes Are Invalidated

Often, a slippery slope argument that an initial action will lead to unavoidable consequences is fallacious because the unavoidable consequences are not likely to occur.  I refer to these arguments as “improbable slippery slopes.”  A predicted slippery slope might not happen for two primary reasons.

First, the operation of slippery slopes usually depends on predicting details of human behavior, which can be difficult to do successfully.[15] For example, legalized interracial marriage has not resulted in any push to legalize incestuous or polygamous marriages, as some predicted, largely because too few people desired such rights or saw any connection between such rights and interracial marriage.[16] Throughout the rest of this paper I will refer to this point as the “wrong prediction” invalidation.

Second, lawmaking entities can simply decide to draw a line that halts the slippery slope.[17] For example, when states began bucking the trend of having twelve jurors in civil and criminal trials in favor of juries of six, a slippery slope appeared, for why not five, four, or fewer?  The Supreme Court defeated this slippery by simply drawing the line at the arbitrary number of six.[18] Although this particular line was fairly arbitrary, lawmaking entities have an easier time drawing the line and halting a slippery slope if the feared consequences are clearly distinguishable or problematic when compared with the initial action.  Throughout the rest of this paper I will refer to this point as the “drawing the line” invalidation.

Same-Sex Marriage and Improbable Slippery Slopes

With this framework in place, I will now return to the second category of same-sex marriage slippery slopes, or the fear that further redefinitions of marriage are unavoidable consequences of same-sex marriage.  This argument has been described broadly as follows:  “The usual bad destination claimed to await us after gay marriage is polygamy, but one occasionally hears that gay marriage will also bring incestuous marriages, bestial marriages (humans marrying dogs, horses, or other animals), adult-child marriages, and marriages between humans and inanimate objects.”[19] Before discussing polygamy, which I label a “probable slippery slope,” I will discuss improbable slippery slopes.  When considered in light of the four slippery slopes validations and the two invalidations, incestuous, bestial, adult-child, and human-inanimate object marriages look like highly improbable slippery slopes.

Incestuous Marriage

The argument that same-sex marriage will lead to incestuous marriage is an improbable slippery slope, and thus a logical fallacy, for the following reasons.  On the one hand, same-sex marriage is somewhat akin to incestuous marriage insofar as both are formal governmental recognition of a private, sexual relationship between consenting adults that is viewed as immoral by a governing majority.[20] If people don’t see a meaningful distinction between two things, they are more inclined to develop similar attitudes towards them and desire to treat them equally.  Therefore, it is conceivable that same-sex marriage could qualify as either an attitude-altering or equal-treatment validation of incestuous marriage.

However, these validations are not enough to justify labeling incestuous marriage a probable slippery slope.  First, the idea that the electorate will demand incestuous marriage after same-sex marriage is likely a wrong prediction of human behavior because “incest is perhaps the one taboo that unites both political groups, insofar as everyone is equally repulsed by it.”[21] The power-altering validation will not apply for this same reason because no political group that desires incestuous marriage stands to gain any power if same-sex marriage is accepted.   The fact that interfamilial sexual relationships are usually inherently abusive and together with the fact that consanguineous reproduction increases the chance for genetic abnormalities are probably sufficient justifications for the state to criminalize incestuous relationships,[22] to say nothing of formally recognizing them under marriage law.  Thus, the state could allow same-sex marriage but draw the line before incestuous marriage because the latter is simply too problematic.  Finally, these aforementioned problems probably negate the equal treatment validation because lawmakers can easily treat problem-causing incestuous relationships differently from same-sex relationships that don’t pose the same problems.

Adult-Child Marriage

The argument that same-sex marriage will lead to adult-child marriage is even more fallacious.  First, the attitude-altering validation that I thought may be theoretically applicable to consensual incestuous marriage is likely inapplicable to adult-child marriage because sexual contact between an adult and a child is presumably nonconsensual.  In contrast, same-sex marriage is about government recognition of consensual adult relationships.  The other reasons why the adult-child marriage argument is fallacious are similar to the reasons discussed above.  The possibility that people will start to demand adult-child marriage after same-sex marriage is likely a wrong prediction of human behavior because sex between adults and children also appears to be an issue which both political groups are united against.[23] The power-altering validation will not apply because no political group stands to gain any power to promote adult-child marriage if same-sex marriage is accepted.  The fact that sex with children leaves them with “real and lasting scars”[24] is sufficient reason for the government to draw the line between same-sex marriage and adult-child marriage.  Finally, this emotional scarring leaves little room to argue that adult-child relationships deserve equal treatment to same-sex relationships.

Bestial and Inanimate Object Marriage

The argument that same-sex marriage will lead to bestial marriage or marriage between humans and inanimate objects is also fallacious for similar reasons to those stated above.  Such relationships are simply too far removed from the vision that same-sex marriage promotes, which is that certain intimate relationships between consenting adult humans deserve governmental recognition.  Thus, the attitude-altering validation will almost certainly not apply.  The dearth of any serious advocacy for formal recognition of bestial or inanimate object marriage suggests that it is simply a wrong prediction of human behavior to think that such marriages would follow same-sex marriage.[25] No power-altering validation will occur because no political group in favor of these two marriage redefinitions stands to gain any power if same-sex marriage is successful.  Laws that criminalize sexual relations between humans and animals have two legitimate state interests that will allow lawmakers to draw the line:  Promoting public health and prevention of cruelty to animals.[26] Finally, there are few conceivable reasons why any relationship between a human and non-human deserves equal treatment to relationships between humans.  The argument that same-sex marriage will lead to bestial or inanimate object marriage, as well as incestuous or adult-child marriage, is a fallacious slippery slope because the feared consequences are so highly improbable.

Same-Sex Marriage and the Probable Slippery Slope

Having distinguished the fallacious, improbable slippery slope arguments, I turn now to the “usual bad destination claimed to await us after gay marriage.”[27] Although this bad destination is usually referred to as “polygamy,” I prefer the phrase “marriage of three or more” for reasons that will become apparent.  The primary purpose of this section is to show how the two invalidations of slippery slopes, the wrong-prediction and the draw-the-line invalidations, will not defeat the slippery slope to legalized marriage of three or more.

Polygamy

The term “polygamy” technically refers the “state or practice of having more than one spouse simultaneously,”[28] which could include a woman marrying multiple men.  However, as used in most legal literature and as I use the term here, “polygamy” refers to the practice of a man having multiple wives as practiced by separatist religious sects often (although inaccurately) associated with the modern-day LDS or Mormon Church.  Polygamy has been outlawed by statute, and those statutes upheld by the Supreme Court, since the late 19th Century.  These laws undoubtedly pose a serious impediment to the possibility of state-recognized marriage of three or more.

Yet times have changed[29] and anti-polygamy laws are currently on shaky constitutional ground especially after Lawrence v. Texas.[30] First, the Supreme Court case from 1878 upholding a ban on polygamy, Reynolds v. United States, relied essentially on morality-based reasoning that Lawrence rejected.[31] Second, some are questioning “the fairness of liberalizing the legal treatment of non-marital sex, extra-marital sex, divorce and same-sex relationships while maintaining harsh criminal penalties for [polygamy].”[32] Third, “conservative and liberal federal judges, including U.S. Supreme Court Justice Ruth Bader Ginsburg, have argued that laws prohibiting polygamy discriminate against women and should be struck down as unconstitutional.”[33]

Despite these constitutional arguments, laws against polygamy have been justified for the reasons that follow, all of which I briefly contest.[34] If these justifications are insufficient, lawmakers will have a more difficult time drawing the line between same-sex marriage and polygamy.

First is the concern that women suffer harm from polygamy from being subjugated as wives.[35] Yet “[t]here is no evidence that nineteenth century Mormon women faced domestic abuse related to the polygamous nature of their marriages,”[36] and studies of polygamy today have concluded that “there was no greater likelihood of abuse in [polygamous] families as compared with monogamous ones.”[37] Furthermore, according to both law-and-economics and feminist scholars, polygamy might actually benefit both monogamous and polygamous women “because the practice increases the demand for women, our society currently has more women than men, and it allows the polygamous couples to benefit from economies of scale.”[38] The common belief that polygamy in America harms the adult wives who consent to the practice is not supported by research.[39]

Second is the serious concern that children, teenage girls in particular, suffer statutory rape and child abuse from polygamy.  Young girls in polygamous communities have been coerced or forced to become brides to polygamous men, sometimes when the girls were as young as 14.[40] Yet banning polygamy to prevent these terrible crimes is problematic for two reasons.  First, criminalizing polygamy drives it underground, making sex crimes against minors harder to detect.[41] Second, it is unfair to ban an otherwise legitimate practice simply because some of its participants commit crimes.[42] A better approach is to legalize polygamy and aggressively prosecute the perpetrators.[43]

Third is the idea that the government should ban polygamy to ensure the economic welfare of its citizens because polygamy is strongly correlated with poverty.[44] The concern is that polygamous families tend to have more children than they can financially provide for.[45] However, laws criminalizing polygamy cannot rest on a goal of preventing poverty because the right to have and raise a family is constitutionally protected.  The Supreme Court in Zablocki v. Redhail specifically rejected a law imposing financial prerequisites that an individual had to meet before he could remarry.[46] Anti-polygamy laws almost certainly cannot be constitutionally justified because polygamists are more likely to be poor.

Although criminal sanctions against practitioners of polygamy are constitutionally and logically suspect, the “lousy political position”[47] of isolated polygamist communities is probably the biggest obstacle to both invalidating bans on polygamy and establishing government-recognized marriage of three or more.  Although this fact suggests that a polygamy movement may be a wrong prediction of politically relevant human behavior, the recent phenomenon of “polyamory” cures these political problems.  Not only does the polyamory movement suggest that a marriage-of-three movement may be an accurate prediction of human behavior, it also leaves even less of a basis for lawmakers to draw the line at two-person marriage.  Polyamory is also the reason I prefer the term “marriage of three or more” to the overly-narrow term “polygamy.”

Polyamory

A July 2009 Newsweek article about the rising prominence of polyamorous arrangements featured a family including one woman, two men, and their 6-year-old son.[48] Terisa, Scott, and Larry have been together for a decade now, although they allow each other to date casually on the side.[49] More recently, a married couple, Matt and Vera was brought into their group, with Matt dating Terisa and Vera dating Larry.[50] Although all the individuals in this article are heterosexual, members of the LGBT community have ties to polyamory as well.  This is evidenced by first, the fact that some gay rights activists have called for recognition of group marriages.[51] Second, polyamory includes “expanded possibilities created by same-sex or bisexual relationships.”[52] Maura Strassberg, who has written extensively on both polygamy and polyamory, described the wide range of forms polyamorous arrangements can take as follows:

There is an enormous range of relationship forms covered by this word. One form of polyamory has as its basic unit an individual who has multiple, concurrent but discrete dyadic relationships with others.  Another form has as its basic unit a couple, in which one or both engage in additional discrete dyadic relationships with others, known familiarly as an “open marriage.”  Another form has as its basic unit a triad, consisting of two or three dyadic relationships, depending on whether each of the three is sexually involved with the other two or whether only one of the three is sexually involved with the other two.  Another version of the triad may exist where three is either the basic sexual and relationship unit or exists alongside the dyads.

With basic relationship units larger than three, the combination possibilities increase, but the same basic triad forms are played out. The internal relationships may be dyadic, triadic, greater than triadic, or a combination of both. All the dyadic or greater relationship combinations may be actualized or, alternatively, some in the group may not in be in direct relationships with some others. There may also exist combinations of the individual and group forms, in which one or more persons are part of a triad or larger group, with all its internal relationships, yet may also be involved in discrete relationships external to the group. This is actually a variation on the open marriage, with a larger basic unit….[53]

With this broader scope of familial arrangements in mind, some legal scholars have already been questioning whether our legal system should recognize such arrangements,[54] with some even suggesting that they should be accommodated by further change to marriage law.[55]

Not only are the reasons for maintaining criminal sanctions against polygamist sects unsatisfactory, they certainly do not justify criminalizing polyamory.[56] More importantly, polyamorists are not in the lousy political position that members of polygamist sects are.  Strassberg described the potential political power of polyamorous individuals as follows:

As it happens, [polyamory] has moved from being a utopian dream or an interesting thought experiment, to being a real, albeit fringe, American social practice.  The internet has allowed previously isolated individuals and groups interested in or practicing various forms of polyamory to meet others like them, to communicate about a variety of lifestyle issues, and to organize local and national groups of like-minded people.  A nationally circulating magazine devoted to polyamory is called “Loving More.”  Both on and off the web, a polyamorous “community” is developing. At the same time, stories about postmodern practitioners of polygamy have started to attract regular press, often sympathetic, on both a national and state level.  The development of community solidarity, together with a nascent public presence, suggests that polyamorists may be on the verge of “coming out of the closet” as an interest group with a political agenda.[57]

To be sure, altering marriage law so that it allows more than two people to marry could pose problems.  Perhaps the biggest problem with formal recognition of polyamorous relationships is the potential for an unlimited number of spouses.[58] Yet Strassberg observed that “[i]f the polyamorous were to accept limits, and focus their experimental energies on triads or quads, the reality of these forms might prove many of the concerns about being incompatible with modern liberal democracy generated by the dynamics of larger groups inapplicable.”[59] Furthermore, the long history of religious-based polygamy in this country and around the world can serve as a model for addressing this potential problem.

I have shown that there is little basis on which lawmakers can draw the line and halt the slippery slope between same-sex marriage and marriage of three or more.  I have also suggested that predicting such a movement in the future is not a wrong prediction of human behavior.  This stage has been set for my main argument, which is that state courts that have established same-sex marriage have used logical fallacies and established legal precedent that justify marriage of three or more.

Logical Fallacies Used By Courts to Justify Same-Sex Marriage

Marriage is a Fundamental Right Applicable to Same-Sex Couples

A common constitutional and semantic argument in favor of same-sex marriage is that since the Supreme Court has recognized marriage to be a fundamental right, same-sex couples may not be precluded from marital unions.  The Massachusetts court reasoned as follows:

As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance-the institution of marriage-because of a single trait: skin color in Perez and Loving, sexual orientation here.[60]

Restated, this argument is this:  Marriage is a fundamental right; therefore, two men or two women should be able to get married.

This argument can be classified as begging the question, which is “a purported argument in which a premise presupposes or depends upon the conclusion.”[61] It can also be classified as equivocation, which is “ambiguity arising when several meanings of a word or phrase are confused or interchanged.”[62]

Indisputably, when the Supreme Court in Loving v. Virginia established marriage as a fundamental right, it was only contemplating marriage between a man and a woman.[63] However, the Massachusetts court subtly changed the meaning of the word “marriage” in the premise of its argument by assuming otherwise.  It is therefore guilty of presupposing the conclusion in its premise or using ambiguity in the definition of a word to support its conclusion.

Slippery Slope Analysis

The problem with this method of reasoning is best explained in footnote 2 of Justice Cordy’s dissenting opinion in Goodridge:

The same semantic sleight of hand could transform every other restriction on marriage into an infringement of a right of fundamental importance. For example, if one assumes that a group of mature, consenting, committed adults can form a “marriage,” the prohibition on polygamy infringes on their “right” to “marry.” In legal analysis as in mathematics, it is fundamentally erroneous to assume the truth of the very thing that is to be proved.[64]

The Loving case carries exactly the same relevance to the same-sex marriage debate as it does to a debate over legalized marriage of three or more.  The Supreme Court in Loving was contemplating unions between only two people to the same degree as it was contemplating unions between a man and woman.  Various policy concerns are implicated when marriage of three or more are contemplated, but from a semantic and logical point of view, there is no distinction between citing Loving in support of same-sex marriage and citing it in support of marriage of three or more.  When courts accept the fallacious argument that the fundamental right to marriage includes same-sex couples, they logically force themselves to apply equal treatment and accept the argument that the fundamental right to marriage also includes the right of three or more people to marry.

Marriage is Not Really about Procreation

A common argument in favor of maintaining the traditional definition of marriage is that “[t]raditional male-female marriage is the institution that has functioned most consistently to facilitate, support and protect responsible human procreation.”[65] The Massachusetts court put this way, quoting the lower court decision it overruled: “The state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.[66] However it is phrased, the argument in favor of maintaining the traditional definition of marriage alleges a link between marriage and procreation that positively benefits society.

The Massachusetts court dismissed this argument as follows:

Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. [The law] contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married….  If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means.[67]

Restated, this argument is essentially as follows:  There are no laws preventing infertile couples from marrying or preventing non-married couples from procreating.  Therefore, marriage is not importantly linked to procreation and excluding same-sex couples from marriage is not justified.

This argument is a non sequitur, which is defined as “an argument whose conclusion does not follow from its premises.”[68] Here, the conclusion does not follow because the premise is constitutionally impossible.  As the Maryland court put it, “[A]ny inquiry into the ability or willingness of a couple actually to bear a child during marriage would violate the fundamental right to marital privacy…”[69] It is fallacious to claim that marriage laws should “draw a tighter circle” around reproduction, when any such laws are unconstitutional under the right-to-privacy line of cases.

Slippery Slope Analysis

Deconstructing the link between marriage and procreation lends credence to the slippery slope argument for two reasons I can identify.  First, polyamorous families that include a man and a woman who sexually relate can simply argue that because their family unit is able to procreate, the marriage-is-not-really-about-procreation argument doesn’t even need to be raised.  In other words, they could argue that their family unit is more akin to the traditional marriage family unit because their unit can procreate, and since same-sex units that cannot naturally procreate are granted marriage rights, there is no basis for denying equal treatment to their group.[70]

The second possible argument directly relies on the decoupling of marriage and procreation.  To the extent that “marriage” law no longer contemplates that a marital unit be at least theoretically capable of procreation, there would be no basis for disallowing other kinds of marital units that cannot procreate.  This argument would probably be used by a polyamorous group where all the members are the same gender, or where none of the opposite-sex members sexually relate.  One commentator expressed the view that decoupling procreation from marriage will have collateral consequences in these words:

[A]llowing same-sex unions… will eliminate the presumption of reproduction that underlies traditional marriage.

Big deal, respond gay marriage proponents, who will point out that nobody looks at the reproductive capabilities of male-female couples before allowing them to marry, even after child-bearing age.

However, this argument ignores the fact that reproduction is only a presumption of marriage, but a very useful one, just like the presumption that minors (no matter how precocious) are incapable of consenting to sexual intercourse. If the presumption of reproduction is no longer needed, then there is no real reason to prevent [nonsexual] incestuous marriages.

This too may sound like a typical alarmist “slippery-slope, where will it end?” argument against gay marriage, but that is not the intent. Marriage may be about a lifelong loving relationship, but in today’s world, it is also about benefits.

I have an unabashedly heterosexual friend who works for a major corporation. Because she lives in Massachusetts, where gay marriage was recently legalized by judicial fiat, she has started talking about marrying one of her best girlfriends for the sole purpose of giving her friend access to her company’s health care benefits….

And if my friend can marry her friend to get spousal benefits, why can’t I do the same thing for my widowed mother? Or my sick, unemployed brother?[71]

If marriage is not at least presumptively about reproduction anymore, a powerful attitude-altering validation of the slippery slope will occur in the way people think about marriage.  As this passage demonstrates, same-sex marriage has already encouraged some people to think about marriage largely in terms of spousal benefits.  Since it is difficult to argue that polyamorous families are less deserving of spousal benefits than married couples, the equal treatment validation also presents itself.  Same-sex couples and polyamorous families look equally deserving of marriage rights when the marital presumption of procreation is removed; this will leave lawmakers little basis on which to draw the line between marriage rights for two people and marriage rights for three or more.

Deemphasizing or Mischaracterizing the Optimal Child-Rearing Environment

Another justification for maintaining the traditional definition of marriage stems from the social science research that suggests that the optimal environment for a child to be raised in is with a married mother and a father.  Since courts ruling in favor of same-sex marriage, and indeed any advocate of same-sex marriage, tend to minimize or mischaracterize this research, I will first establish some common ground.

There is a lot of social science research touching these issues, not all of which is reliable.  Whether someone finds a study reliable or unreliable often hinges on that person’s personal beliefs and ideologies.  Thus, to be as fair as possible, I am will herein accept as my premise the commentary of a pro-same-sex marriage law review article, written by Richard E. Redding, reviewing the relevant child research data.  The bulk of the conclusion of his article is as follows:

We now have a sufficient body of research to permit the conclusion that growing up in a lesbigay household does not cause psychological harm to children. But that is different from concluding that growing up in a homosexual household is as positive an experience for children as is growing up in a heterosexual household. Probably the most controversial issue is whether children benefit from having a mother and a father as opposed to same-sex parents. A plausible reading of the research is that fathers and mothers each make a unique–though not essential–contribution to children’s social, emotional and intellectual development. In particular, boys raised in father-absent homes are more likely to exhibit behavioral problems and involvement in delinquency, than boys raised in homes with fathers.

Given the methodological limitations of the existing research on lesbigay parenting, as well as research suggesting that dual-gender parenting may be modestly advantageous for children, laws prohibiting same-sex marriage or adoption on the theory that lesbigay parenting disadvantages children can (and probably should) pass constitutional muster under the highly deferential rational basis test for judicial review of legislative action:

[T]he studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households… More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such childrearing… In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home….

[D]ual-gender parenting may be modestly advantageous for children’s development, and one can well imagine why it is plausible to assume that most children would prefer to have a mother and a father. Thus, a two-parent mother and father family may be the best family structure for childrearing, everything else being equal…[72]

Although Mr. Redding ultimately concludes that “the law has never required that parents conform to a perfect model of family life, and there may be some unique advantages to lesbigay parenting,”[73] I will rely on his concession that the benefits on children of being raised in a dual-gender household are sufficient justification for prohibiting same-sex marriage, at least under rational basis review, for the purposes of my observations.  Now I will examine how two state supreme courts have handled this issue.

Massachusetts Supreme Court

The Massachusetts court frames this argument in favor of maintaining the traditional definition of marriage in as follows:  “[E]nsuring the optimal setting for child rearing, which the [Department of Public Health] defines as ‘a two-parent family with one parent of each sex.’”[74]

The court bases its dismissal of the optimal-child-rearing-environment argument as follows:

The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the “optimal” child rearing unit.[75]

Restated, this argument is essentially as follows:  Although traditional marriage between a man and woman provides the best known arrangement for raising children, there is no proof forbidding same-sex marriage will increase the number of instances of this optimal arrangement.  Thus, same-sex marriage is justified.

This argument is an appeal to ignorance, the fallacy of “concluding that something is true from the premise that it has not been shown to be false.”[76] The problem with this kind of argument is that any theory, no matter how outlandish it may seem, can be justified by observing that a necessary premise to the theory has yet to be disproven.

Operating on the premise that a marriage between one man and one woman provide the best known arrangement for child raising, I think that Justice Cordy said it best:

It is undeniably true that dramatic historical shifts in our cultural, political, and economic landscape have altered some of our traditional notions about marriage, including the interpersonal dynamics within it, the range of responsibilities required of it as an institution, and the legal environment in which it exists.  Nevertheless, the institution of marriage remains the principal weave of our social fabric….  It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose.[77]

Slippery Slope Analysis

This fallacy validates the slippery slope argument.  If defeating a proposed redefinition of marriage requires proof that the defeat will increase the number of instances of a married man and woman raising children, any redefinition is possible.  There is no research suggesting that disallowing three or more people to legally marry will increase the number of instances of a married man and woman raising children.  Under the court’s logic, this is a justification for redefining marriage to include three or more people.

Iowa Supreme Court

For another example of logical fallacy relating to the optimal-child-rearing-environment argument, I turn now to the opinion of the Iowa Supreme Court in Varnum v. Brien.  The court states the argument in favor of traditional marriage as follows:  “[T]he promotion of ‘child rearing by a father and a mother in a marital relationship which social scientists say with confidence is the optimal milieu for child rearing.’”[78]

Unlike the Massachusetts court, which deferred to social science, the Iowa court attacked the conclusion of social scientists outright:

Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies. FN26

FN26. The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else….[79]

The first problem with this passage is not a logical fallacy.  The court asserts that there exists an “abundance of evidence and research [concluding that] the interests of children are served equally by same-sex parents and opposite-sex parents.”  This is impossible, for science cannot prove that children are “served equally” by different sets of parents because “[i]t is a fundamental principle of statistical inference that unless one samples the entire population of interest (e.g., all children of lesbigay parents versus all children of heterosexual parents), a study cannot affirm the null hypothesis. Scientific studies are designed to detect differences.”[80] The first sentence in the quoted passage is an incorrect portrayal of scientific research because concluding that children are served equally by two different sets of parents is something that cannot be attempted under the scientific method.

With this principle in mind, the argument that remains is this:  Because same-sex parenting has been shown to be a wholesome environment for children, it is equally as beneficial to children as dual-gender parenting.  Same-sex marriage is therefore justified.

This is the fallacy of missing the point or ignoratio elenchi, an argument that draws a conclusion other than the conclusion supported by the premises.  As Redding said in his article, concluding that “growing up in a lesbigay household does not cause psychological harm to children… is different from concluding that growing up in a homosexual household is as positive an experience for children as is growing up in a heterosexual household.”[81] A number of legitimate conclusions may be drawn from the premise that same-sex couples provide a wholesome environment for children, including the conclusion that legal protection for such families is warranted.  But the conclusion that there is no difference between children raised by same-sex and opposite-sex parents is not one of them.

Slippery Slope Analysis

This fallacy also validates the slippery slope argument.  Already, experts have opined that a child being raised by a mother and two men who all lived together and considered themselves married was not being harmed by the arrangement.[82] Under the logic of the Iowa court, this is enough to conclude not only conclude that marriage of three or more are justified, but also that they constitute as good an arrangement for children as dual-gender parenting is.  Between the Massachusetts and Iowa courts treatment of the social science research indicating that traditional marriage is best for children, the precedent is set for any group of three or more adults with children that seeks to redefine marriage laws again.  If social science data that is relevant to preserving two person opposite-sex marriage is mischaracterized or ignored, lawmakers will have a difficult time drawing the line before marriage of three or more.

Same-Sex Couples Have Children

Figuring prominently in any state court decision establishing marriage rights to same-sex couples is the policy of protecting the children of same-sex couples.  The courts point out that these children lack various legal, social, and economic protections because their parents cannot marry.  The Massachusetts court described these benefits in this way:

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth’s strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents’ legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one’s parentage.[83]

After pointing out that “the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws,”[84] the court concludes that

In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.[85]

At the core, this argument is essentially as follows:  Same-sex couples are raising children, who are denied the legal benefits that marriage confers.  Marriage should be redefined in order to remedy this situation.

This argument can be classified as bifurcation, or considering a set of alternatives as exclusive and exhaustive when other alternatives exist.[86] The problem is that the premise that children benefit from and deserve legal protections associated with marriage does not lead to the inevitable conclusion that marriage itself must be redefined to include the child’s parents.  “Although a parentage presumption during marriage provides the most comprehensive protection, the state does not need to legalize same-sex marriage to give the presumption effect.  At a minimum, children should receive the benefit of the presumption as an integral part of the state’s custody law or domestic partnerships/civil unions law.”[87]

The idea that marriage should be redefined to protect children being raised outside its current definition is even more absurd given the plethora of family arrangements that abound.  For example, even though there are “at least one million children of same-sex couples in the United States,”[88] there are 2.5 million children that are part of a single-mother family that includes the child’s mother as well as one or more grandparents.[89] Advocating the idea that a single mother should be allowed to “marry” one of her parents in order to give her child legal protections demonstrates the absurdity of the court’s logic.  Certainly the children of such arrangements could benefit from additional legal protections, but this doesn’t justify redefining marriage.

The counterargument to my argument is that same-sex couples themselves more closely resemble candidates for “marriage” than a single mother and her child’s grandparent because of the romantic love involved.  My counter to the counter ties in to my slippery slope analysis of marriage of three or more.

Slippery Slope Analysis

Once children become the basis for redefining marriage so that the definition includes the romantically-involved adults raising them, the possibilities for marriage redefinitions expand.  As various “lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers” observed,

To have our government define as “legitimate families” only those households with couples in conjugal relationships does a tremendous disservice to the many other ways in which people actually construct their families, kinship networks, households, and relationships. For example, who among us seriously will argue that the following kinds of households are less socially, economically, and spiritually worthy….?

  • Committed, loving households in which there is more than one conjugal partner….
  • Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households….[90]

Redefining marriage to include the children of same-sex couples will legitimize their relationship and provide protections for their children.  Yet the policy of equal treatment requires that these justifications, legitimization of a family unit and child protection, apply to polyamorous families with children as well.  The power-altering validation might also apply[91] because at least some members of the LBGT community appear interested in both same-sex marriage and government-recognition of families that include more than one conjugal partner.  Finally, if protecting children justifies redefining marriage, there is no basis for lawmakers to draw the line and exclude polyamorous families with children.

Conclusion

Times have changed since the Supreme Court upheld a ban on polygamy in Reynolds v. United States, holding that polygamy was contrary social duties and subversive of good order.[92] Reynolds simply sustained the view of the governing majority, which viewed polygamy as immoral,[93] and Lawrence v. Texas rejected this justification:  “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”[94] Nowadays, evidence exists that some polygamist men commit child abuse or fail to adequately provide financially for their families; but as I have suggested, the evidence does not justify the continued criminalization of polygamy, especially if it actually benefits adult women.  Moreover, the polyamory movement has the potential to be a political force demanding formal governmental recognition of family units that include three or more adults.

Marriage law may have been on a probable slippery slope towards marriage of three or more before same-sex marriage rights were established.  In fact, it had been said that “if any non-traditional form of marriage could be permissible, Mormon polygamy would have the stronger claim, due to its former grounding in Mormon religious doctrine.”[95] The same-sex marriage movement has greatly steepened this slope.

Lawrence has already been interpreted as mandating a fundamental change to traditional marriage law.[96] But most importantly, state courts that have established same-sex marriage rights have used logical fallacies to reject the notion that the central purpose of marriage is procreation and childrearing.  These arguments were intended to justify same-sex marriage, but they have also justified marriage of three or more.  The argument that same-sex marriage will lead to marriage of three or more is not a fallacy.  It simply recognizes the direction the law was already heading and is now heading at a faster pace.  Same-sex marriage and marriage of three or more could possibly be avoided together, but accepting one necessarily entails accepting the other.


[1] Def.s’ Mot. for Summ. J., Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal. 2009), available at http://www.alliancealert.org/2009/20090914.pdf.

[2] Brett G. Scharffs, Law and the Limits of Logic 131 (Fall 2009) (unpublished manuscript, on file with author).

[3] Id.

[4] See Ward Farnsworth, The Legal Analyst: A Toolkit For Thinking About the Law 172 (Univ. of Chi. Press 2007) (quoting Eugene Volokh, who wrote the entire chapter).

[5] Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155, 1178 (2005).

[6] See Volokh, supra note 5, at 1178-81.

[7] See Farnsworth, supra note 4, at 172.

[8] Id.

[9] Id. at 174.

[10] Id. at 176.

[11] Id.

[12] Id. at 176-77.

[13] Id. at 178.

[14] Id.

[15] Id. at 179.

[16] Id.

[17] Id. at 180.

[18] Id. at 181.

[19] Dale Carpenter, Bad Arguments Against Gay Marriage, 7 Fla. Coastal L. Rev. 181, 208 (2005).

[20] See Lawrence v. Texas, 539 U.S. 558, 577-78, (2003).

[21] Courtney Megan Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 Nw. U. L. Rev. 1543, 1611 (2005).

[22] Id. at 1569.

[23] See Margaret Eberstadt, How Pedophilia Lost Its Cool, First Things, Dec. 2009, http://www.firstthings.com/article/2009/11/how-pedophilia-lost-its-cool (observing how the recent attempted extradition of director Roman Polanski for a 1977 child rape succeeded in uniting practically all Americans against him, liberal as well as conservative).

[24] Id.

[25] I was unable to locate a single law review article that seriously considers the merits of bestial or inanimate object marriage.

[26] Justin P. Nichols, The Hidden Dichotomy in the Law of Morality, 31 Campbell L. Rev. 591, 604 (2009).

[27] Carpenter, supra note 19, at 208.

[28] Black’s Law Dictionary 1197 (8th ed. 2004).

[29] See e.g., Press release, ACLU of Utah to Join Polygamists in Bigamy Fight, July 16, 1999, available at http://www.aclu.org/religion-belief/aclu-utah-join-polygamists-bigamy-fight (the position of the ACLU that polygamy should be decriminalized).

[30] Nevertheless, polygamy laws in Utah have withstood two recent court challenges, Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) in federal court and Holm v. Utah, 137 P.3d 726 (Utah 2006) in state court.  But see Jeffrey Michael Hayes, Polygamy Comes Out of the Closet: The New Strategy of Polygamy Activists, 3 Stan. J. Civ. Rts. & Civ. Liberties 99, 125-128 (2007) (generally criticizing the lack of a formal legal strategy by the loose coalition of polygamy advocates and specifically criticizing their strategy in bringing these two cases.  Hayes described Bronson as “quixotic” and “ambitious” because it challenged outright the state’s denial of a marriage license to three polygamous individuals.  Predictably, the lower court dismissed the case but acknowledged that bigamy statutes may have been called into question by Lawrence.  On appeal, the 10th Circuit determined that the plaintiffs did not have standing to challenge the law.  See Bronson, 500 F.3d at 1113.  Hayes described the Holm case as having very bad facts because the defendant had been convicted of both polygamy and child sex offense charges.  Holm also lost, but the case made it up to the Utah Supreme Court and Chief Justice Durham dissented from the majority, arguing that Lawrence was not inapplicable and that if the case had not involved a minor, Lawrence would have required a reversal.  See Holm, 137 P.3d at 779.).

[31] See Michael G. Myers, Polygamist Eye for the Monogamous Guy: Homosexual Sodomy… Gay Marriage… Is Polygamy Next?, 42 Hous. L. Rev. 1451, 1467-68 (2006)

In deciding the case, the Court concluded that the government had no legislative “power over mere opinion,” but that the government could restrict actions that were contrary to “social duties or subversive of good order,” and ruled that plural marriage was a crime against social norms.  The Court stated that “[p]olygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”  The Court then noted that polygamy was at one time punishable by death in England and Wales, and discussed the importance of marriage, stating that “society may be said to be built” upon marriage and that it was a “sacred obligation.”

The only outside evidence the Reynolds Court cited in support of their condemnation of polygamy came from a professor named Francis Lieber.  The Court recounted Professor Lieber’s statement that “polygamy leads to the patriarchal principle… which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”  The Court neither cited to Professor Lieber’s works, nor did it explain or attempt to show how Mormon polygamy in the United States actually led to a patriarchal system or “despotism,” or how polygamy would be unconstitutional even if it did.  The Court apparently accepted Lieber’s statements as fact, simply repeating his conclusions.  Thus, the Court derived its only social science or psychological evidence for the dangers of polygamy from interpretations of Professor Lieber’s writings.  The U.S. Supreme Court upheld the Territorial Supreme Court’s affirmation of George Reynolds’s bigamy conviction…  [T]he Supreme Court has not overturned Reynolds, and thus, the decision remains good law…) (citations omitted).

[32] Maura I. Strassberg, The Crime of Polygamy, 12 Temp. Pol. & Civ. Rts. L. Rev. 353, 354 (2003).

[33] Myers, supra note 31, at 1455.

[34] The purpose of this paper is not to conduct a detailed analysis of the constitutionality and reasonableness of anti-polygamy laws.  However, I have tried to briefly address the common concerns that the thought of repealing anti-polygamy laws evoke in order to better defend my thesis.

[35] See Shayna M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 Cornell J.L. & Pub. Pol’y 101, 168 (2006).

[36] Id. at 173.

[37] Id.

[38] Myers, supra note 31, at 1467-68; See also Strassberg, The Crime of Polygamy, supra note 32, at 354-55 (“[O]thers touted polygyny as a boon to women who wanted to juggle careers and motherhood or to single women who could not find single men willing to commit to marriage.”).

[39] See Sigman, supra note 35, at 174.

[40] See Strassberg, The Crime of Polygamy, supra note 32 at 366-69.

[41] See Myers, supra note 31, at 1481-82.

[42] See Id.

[43] See Id. at 1482.

[44] See Hema Chatlani, In Defense of Marriage: Why Same-Sex Marriage Will Not Lead Us Down A Slippery Slope Towards the Legalization Polygamy, 6 Appalachian J. L. 101, 132 (2006).

[45] Id.

[46] See Myers, supra note 31, at 1485 (“The U.S. Supreme Court has already stated, however, that prohibiting a person to marry because they will have children and collect welfare is an unconstitutional impediment to their fundamental right to marry. The government allows, and must allow, millions of women collecting welfare to marry, have children, and continue collecting welfare. Thus, polygamists may argue that a potential financial burden is not a compelling enough reason to ban polygamy; if it were, the government would be forced to set financial prerequisites on all persons wishing to marry.”) (citations omitted).

[47] Volokh, supra note 5, at 1176-77 (“Disapproval of polygamy seems deeply rooted in American culture; it is not easy to overcome this sort of opposition. The gay rights movement did overcome such opposition, but it had natural allies that polygamists likely will not. Gays have many straight friends and family members who are part of the American mainstream. Polygamy in America today seems to be chiefly practiced by separatist Mormon communities, whose political connections are limited by their living apart. There may be some push for polygamy from some Muslim groups, but those groups are unlikely to have a great deal of influence.  (This was so even before 9/11, and is likely to remain so even if world relations take a turn for the better and Muslim ideology is viewed with less suspicion.)”).

[48] See Jessica Bennett, Only You. And You. And You: Polyamory – Relationships With Multiple, Mutually-Consenting Partners – Has A Coming-Out Party, Newsweek, July 29, 2009, http://www.newsweek.com/id/209164

[49] Id.

[50] Id.

[51] See Volokh, supra note 5, at 1201 n.55 (“See Nat’l Coalition of Gay Orgs., 1972 Gay Rights Platform in the United States, in Federal Bureau of Investigation, File No. 100-469170, Gay Activists Alliance, Part 1 of 2 (retrieved via a FOIA request) (adopted Feb. 13, 1972) (calling, among other things, for “[r]epeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit”) (on file with author). The National Coalition of Gay Organizations meeting was apparently a pretty significant event at the time. See Laud Humphreys, Out of the Closets: The Sociology of Homosexual Liberation 162-68 (1972) (describing the meeting, and quoting the platform, including the call for recognizing group marriages).”); See also George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 644 n.241 (1999) (“Leaders of the 1993 gay march on Washington drafted a platform that included a demand for “legalization of multiple partner unions.”) (citingTexas Platform Agreement for Next Year’s March, Wash. Blade, May 22, 1992.”).

[52] See Maura I. Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 Cap. U. L. Rev. 439, 563 n.10, (2003) (“See http://www.polyamory.org/~joe/ (last visited Sept. 7, 2002) (a web page of acronyms used by the polyamorous community describing, among other things, 10 possible triads or threesomes: FFF — three women all sexually relating to each other or two women sexually relating to the third woman, but not each other; FFM — two women and one man, whether all are sexually relating to each other, or one man and one woman are each sexually relating to the other woman, but not to each other; FMM-consisting of one woman and two men, where all are sexually relating to each other, or the men are sexually relating to each other and one man is sexually relating to the woman; FMF-two women and one man, where both woman are sexually relating to the man, but not to each other; MFM-two men and one woman, where the men are sexually relating to the woman, but not to each other; MMM-three men all sexually relating to each other, or two men are each sexually relating to the third man, but not to each other).”);

Another factor that may eventually weigh in the marriages-of-three debate is the fact that at least some bisexual members of the LGBT community seem inclined towards polyamorous relationships with both sexes.  See e.g. Naomi Mezey, Dismantling the Wall: Bisexuality and the Possibilities of Sexual Identity Classification Based on Acts, 10 Berkeley Women’s L.J. 98, 110 (1995) (“More sophisticated theories of bisexuality which acknowledge the range of possibilities within bisexuality have begun to emerge and have interesting implications for heterosexuality and homosexuality as well. Gary Zinik, for instance, identifies three types of bisexuality. “Simultaneous bisexuality” describes sex with a man and a woman at the same time, “concurrent bisexuality” entails sex with men and women separately but during the same time period in one’s life, and “serial bisexuality” denotes alternating monogamous relationships with men and women over the course of a lifetime.”).

[53] Strassberg, Considering Polyamory, supra note 52, at 444-45.

[54] See Id. at 562-63 (“[I]t is difficult to definitively conclude either that polyamorous marriage necessarily would or certainly would not be incompatible with the modern liberal state. However, this article has raised serious concerns about how polyamory could affect individual autonomy, the maintenance of distinctive public and private spheres, and individual reconciliation with social life and identification with the state… However, many of these concerns arise from polyamory’s insistence on ‘love without limits.” If the polyamorous were to accept limits, and focus their experimental energies on triads or quads, the reality of these forms might prove many of the concerns generated by the dynamics of larger groups inapplicable.”).

[55] David Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447, 491 (1996) (“A next appropriate step is the step discussed in this article – the recognition of same-sex couples who wish to marry. And although it is conceivable, as some have feared, that permitting gay people to marry will simply reinforce the enshrined position of married two-person units in general in our society, it seems at least as likely that the effect of permitting same-sex marriage will be to make society more receptive to the further evolution of the law. By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more (all of which, of course, include at least two persons of the same sex) and to units composed of two people of the same sex but who are bound by friendship alone. All desirable changes in family law need not be made at once.”).

[56] Strassberg, The Crime of Polygamy, supra note 32, at 429 (2003) (“[T]here is, as of now, little hard evidence proving these practices socially dangerous to children, teenagers, or adults. Nor does polyamory create unregulated communities that conceal criminal behavior and unfairly exploit social resources…. [T]o the extent polyamorous relationships avoid coming under currently existing criminal laws targeting bigamy or polygamy, there is certainly no justification for drafting new laws to specifically criminalize this conduct.”).

[57] Strassberg, Considering Polyamory, supra note 52, at 442-43 (2003).

[58] Nichols, supra note 26, at 604 (“Indeed, if a state was to allow polygamous unions, it would be difficult to rationally limit the practice. A state could not say that only the man or only the woman was permitted to take additional spouses. Neither could a state rationally limit the number of spouses each could take. Multiple, after all, does not carry any sort of inherent limit. This could lead to serious consent issues. Imagine a scenario where Alan marries Betty and Catherine. Betty then marries Dan and Eugene, and Catherine marries Frank and George. Now imagine that each of the men takes additional wives, who take additional husbands, ad infinitum. Alan is now bound by potential legal obligations to Dan, Frank, Eugene, George, and their potential future spouses, all–quite possibly– without Alan even knowing they exist.”).

[59] Strassberg, Considering Polyamory, supra note 52, at 562.

[60] Goodridge v. Department of Public Health, 798 N.E.2d 941, 958 (Mass., 2003) (citations omitted).

[61] Scharffs, supra note 2, at 73.

[62] Id. at 20.

[63] Conaway v. Deane 932 A.2d 571, 620 (Md. 2007) (The basis for the Supreme Court’s decision as to the interracial couples’ due process challenge was that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” As our peers on other courts have stated, “[w]hether the Court [in Skinner] viewed marriage and procreation as a single indivisible right, the least that can be said is that it was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental. This is hardly surprising inasmuch as none of the United States sanctioned any other marriage configuration at the time.”) (citations omitted).

[64] Goodridge, 798 N.E.2d at 984 (Cordy, J., dissenting).

[65] Lynn D. Wardle, “Multiply and Replenish”:  Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771, 784 (2001).

[66] Goodridge, 798 N.E.2d at 961.

[67] Id. at 962.

[68] Scharffs, supra note 2, at 126.

[69] Conaway, 798 N.E.2d at 633.

[70] But see Ruth K. Khalsa, Polygamy as a Red Herring in the Same-Sex Marriage Debate, 54 Duke L.J. 1665, 1692 (2005) (Arguing that the reliance polygamists place on procreation weighs against formal legal recognition because courts are ceasing to view procreation as a valid justification for marriage).

[71] Colin P.A. Jones, Marriage Proposal: Why Not Privatize? Partnerships Could Be Tailored to Fit, S. F. Chron., Jan. 22, 2006, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/22/ING6FGOLVA1.DTL.

[72] Richard E. Redding, It’s Really About Sex:  Same-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust, 15 Duke J. Gender L. & Pol’y 127, 192-193 (2008).

[73] Id.

[74] Goodridge, 798 N.E.2d at 961.

[75] Id. at 963.

[76] Scharffs, supra note 2, at 202.

[77] Goodridge, 798 N.E.2d at 997 (Cordy, J., dissenting) (citations omitted).

[78] Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009).

[79] Id.

[80] Redding, supra note 72, at 142.

[81] Id. at 193.

[82] See e.g. Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. Rev. L. & Soc. Change 277, 310-11 (2004)

A 1999 Tennessee juvenile court case involved a custody dispute between a polyandrous threesome–a polyfidelitous vee–and the grandmother of their child. The facts of the case, as well as relevant documents, became widely available because Loving More Magazine sponsored a campaign to raise money for the attorney’s fees of the mother, April Divilbiss.

In 1995, when April became pregnant, her child’s biological father moved out of town with no forwarding address. In 1996, April, newly a mother, married Shane Divilbiss, and Chris Littrell was the best man at the wedding. By January 1997, April Divilbiss and Chris Littrell had fallen in love. On Valentine’s Day, April told Shane that she and Chris were in love. Shane and Chris went to a restaurant and discussed the situation. They realized that neither of them wanted to lose April, so in March 1997, all three moved in together. April slept with Chris and Shane separately, and Chris and Shane were not sexually involved with one another. According to one article, they tried a threesome once, but Chris ended the attempt.

In November of 1998, when April’s daughter was three, MTV aired a program about polyamory, and the triad went on television and talked about their relationship, saying that they considered themselves all married. The day after the program aired, the child’s paternal grandmother, with whom she sometimes spent weekends, filed for removal of the child and for custody, on the grounds of April’s immoral lifestyle. The judge saw a video of the program and subsequently removed the child from April’s care without regard to findings and procedures that April’s lawyer claimed were required by the state. In the months leading up the hearing, there seemed to be some optimism among those involved that the case could be a kind of Stonewall for the poly movement.

On April 16, 1999, the case was heard in the Juvenile Court of Memphis. Prior to the hearing, four court-appointed experts reached the conclusion that the child had not been negatively influenced by her mother’s lifestyle. But the presiding judge, the Honorable Herbert Lane, rejected their findings, as well as April’s constitutional claims….

[83] Goodridge, 798 N.E.2d at 956-57.

[84] Id. at 963.

[85] Id. at 964.

[86] Scharffs, supra note 2, at 69.

[87] Jennifer L. Rosato, Children of Same-Sex Parents Deserve the Security Blanket of the Parentage Presumption, 44 Fam. Ct. Rev. 74, 75 (2006).

[88] Id.

[89] Jan E. Mutchler and Lindsey A. Baker, The Implications of Grandparent Coresidence for Economic Hardship Among Children in Mother-Only Families, J. Fam. Issues, July 13, 2009, http://jfi.sagepub.com/cgi/reprint/30/11/1576.pdf.

[90] Mission Statement, Beyond Same-Sex Marriage:  A New Strategic Vision For All Our Families & Relationships, BeyondMariage.org, July 26, 2006, http://beyondmarriage.org/full_statement.html.

[91] See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1121-22 (2003) (Describing a slight variation on the power-altering validation.  He gave the example of how the pro-gun-control movement, following the passage of the Brady Bill over the objection of the National Rifle Association, anticipated more victories to come and explained why:  “Decision A (the Brady Bill) was thus seen as potentially leading to a decision B (further gun controls) that may not have been politically feasible before decision A had been made.  Why would people take this view? ….The answer has to do with imperfect information. Most legislators don’t know the true political costs or benefits of supporting proposal B; they may spend some time and effort estimating these costs and benefits, but their conclusions will still be guesses. And in this environment of limited knowledge, decision A itself provides useful data: the NRA’s losing the Brady Bill battle is some evidence that the gun-rights movement may not be that powerful, which may lead some legislators to revise downward their estimates of the movement’s political effectiveness. So behind the metaphor of “momentum” lies a heuristic that legislators use to guess a movement’s power: a movement that is winning tends to continue to win.”).

[92] See Reynolds v. United States, 98 U.S. 145, 164 (1878).

[93] See Myers, supra note 31, at 1467-68.

[94] Lawrence v. Texas, 539 U.S. 558, 577 (2003).

[95] Maura I. Strassberg, Distinctions of Form Over Substance: Monogamy, Polygamy, and Same-Sex Marriage, 75 N.C. L. Rev. 1501, 1506 (1997) (However, her ultimate conclusion is that polygamy, unlike same-sex marriage, poses a threat to various American ideals); But see Strassberg, Considering Polyamory, supra note 52, at 563 where, after applying the framework in she established for polygamy in Distinctions of Form Over Substance to polyamory, Strassberg concludes that if the polyamorous were to seek only polyamorous marriage of three people or four people, as oppose to “love without limits,” marriages of three or more would not be nearly as problematic for the state to recognize.

[96] See Myers, supra note 31, at 1478 (2006)

The majority and concurring opinions [of Goodridge] cited Lawrence numerous times in extending the protection of the Due Process Clause to same-sex couples. According to one legal scholar’s reading of Goodridge, states “may not make value judgments (moral or otherwise) regarding the social utility of various kinds of consensual relationships–all such relationships are ‘equal’ and the ‘value’ of such relationships is determined (not by the needs, expectations, or goals of society) but by the idiosyncratic values cherished by each partnership.” Massachusetts Chief Justice Marshall, writing for the majority, began by acknowledging “that our decision marks a change in the history of our marriage law.” He then cited Lawrence: “‘Our obligation is to define the liberty of all, not to mandate our own moral code.”’ The court thus adopted the holding in Lawrence that morals-based legislation is no longer valid. In the following paragraph, the majority referred again to Lawrence, declaring that “the Court affirmed that the core concept of common human dignity protected by the Fourteenth Amendment to the U.S. Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner.”).

3 Responses to “Sterling Olander 1st place in the law category”

  1. Tim Thetford says:

    I am surprised that an essay supporting polygamy could win first place in the Ruth Institute – Stand for Family writing contest.

    In a post by Trayce Hansen, Ph.D. called Same-Sex Marriage: Not in the Best Interest of Children, she states,

    “According to decades of research, the ideal family structure for children is a two-parent, mother-father family.(1,2,3) That research consistently shows that children raised in such families are more likely to thrive—psychologically, mentally, and physically—than children reared in any other kind of family configuration…

    It also must be expected that if society permits same-sex marriage, it also will have to allow other types of non-traditional marriage. The legal logic is simple: If prohibiting same-sex marriage is discriminatory, then disallowing polygamous marriage, polyamorous marriage, or any other marital grouping also will be deemed discriminatory. In fact, such legal maneuverings have already begun. The emotional and psychological ramifications of these assorted arrangements on the developing psyches and sexuality of children would be disastrous.”

    I understand that LDS are in a difficult position standing against same-sex marriage knowing that the legalization would inevitably lead to the legalization of polygamy. Polygamy is more than cultural and was not simply historically practical for the Mormon pioneers. Polygamy was commanded by God as a new and everlasting covenant necessary for salvation. It is only at a BYU symposium that this paper could be awarded first place in spite of the hand-picked data supporting polygamy as a positive family structure if same-sex marriage was to be validated.

  2. Sterling Olander says:

    My paper does not support polygamy, it only supports the proposition that you have stated, that “if society permits same-sex marriage, it also will have to allow other types of non-traditional marriage.”

    Further, the LDS church does not in any way support polygamy either. Any members practicing polygamy are excommunicated. Most people who currently practice polygamy have never been members of the LDS church.

    For more on the LDS church’s position on polygamy, you may refer to this website: http://www.lds.org/ldsnewsroom/eng/commentary/polygamy-questions-and-answers-with-the-los-angeles-times

  3. Tim Thetford says:

    You are correct, your paper does not directly support polygamy. I should have said that I am surprised that an essay defending polygamy at every opportunity could win first place in the Ruth Institute – Stand for Family writing contest.

    The LDS church does in at least one way support polygamy and always has. The LDS church has always supported LDS who practiced polygamy historically within Mormonism under God’s command that polygamy was necessary for exaltation.