Beyond Gay Marriage

 

Stanley Kurtz

After gay marriage, what will become of marriage itself? Will same-sex matrimony extend marriage's stabilizing effects to homosexuals? Will gay marriage undermine family life? A lot is riding on the answers to these questions. But the media's reflexive labeling of doubts about gay marriage as homophobia has made it almost impossible to debate the social effects of this reform. Now with the Supreme Court's ringing affirmation of sexual liberty in Lawrence v. Texas, that debate is unavoidable.

 

Among the likeliest effects of gay marriage is to take us down a slippery slope to legalized polygamy and "polyamory" (group marriage). Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female. A scare scenario? Hardly. The bottom of this slope is visible from where we stand. Advocacy of legalized polygamy is growing. A network of grass-roots organizations seeking legal recognition for group marriage already exists. The cause of legalized group marriage is championed by a powerful faction of family law specialists. Influential legal bodies in both the United States and Canada have presented radical programs of marital reform. Some of these quasi-governmental proposals go so far as to suggest the abolition of marriage. The ideas behind this movement have already achieved surprising influence with a prominent American politician.

 

None of this is well known. Both the media and public spokesmen for the gay marriage movement treat the issue as an unproblematic advance for civil rights. True, a small number of relatively conservative gay spokesmen do consider the social effects of gay matrimony, insisting that they will be beneficent, that homosexual unions will become more stable. Yet another faction of gay rights advocates actually favors gay marriage as a step toward the abolition

of marriage itself. This group agrees that there is a slippery slope, and wants to hasten the slide down.

 

To consider what comes after gay marriage is not to say that gay marriage itself poses no danger to the institution of marriage. Quite apart from the likelihood that it will usher in legalized polygamy and polyamory, gay marriage will almost certainly weaken the belief that monogamy lies at the heart of marriage. But to see why this is so, we will first need to reconnoiter the slippery slope.

 

Promoting polygamy

 

DURING THE 1996 congressional debate on the Defense of Marriage Act, which affirmed the ability of the states and the federal government to withhold recognition from same-sex marriages, gay marriage advocates were put on the defensive by the polygamy question. If gays had a right to marry, why not polygamists? Andrew Sullivan, one of gay marriage's most intelligent defenders, labeled the question fear-mongering--akin to the discredited belief that interracial marriage would lead to birth defects. "To the best of my knowledge," said Sullivan, "there is no polygamists' rights organization poised to exploit same-sex marriage and return the republic to polygamous abandon." Actually, there are now many such organizations. And their strategy--even their existence--owes much to the movement for gay marriage.

 

Scoffing at the polygamy prospect as ludicrous has been the strategy of choice for gay marriage advocates. In 2000, following Vermont's enactment of civil unions, Matt Coles, director of the American Civil Liberties Union's Lesbian and Gay Rights Project, said, "I think the idea that there is some kind of slippery slope [to polygamy or group marriage] is silly." As proof, Coles said that America had legalized interracial marriage, while also forcing Utah to ban polygamy before admission to the union. That dichotomy, said Coles, shows that Americans are capable of distinguishing between better and worse proposals for reforming marriage.

 

Are we? When Tom Green was put on trial in Utah for polygamy in 2001, it played like a dress rehearsal for the coming movement to legalize polygamy. True, Green was convicted for violating what he called Utah's "don't ask, don't tell" policy on polygamy. Pointedly refusing to "hide in the closet," he touted polygamy on the Sally Jessy Raphael, Queen Latifah, Geraldo Rivera, and Jerry Springer shows, and on "Dateline NBC" and "48 Hours." But the Green trial was not just a cable spectacle. It brought out a surprising number of mainstream defenses of polygamy. And most of the defenders went to bat for polygamy by drawing direct comparisons to gay marriage.

 

Writing in the Village Voice, gay leftist Richard Goldstein equated the drive for state-sanctioned polygamy with the movement for gay marriage. The political reluctance of gays to embrace polygamists was understandable, said Goldstein, "but our fates are entwined in fundamental ways." Libertarian Jacob Sullum defended polygamy, along with all other consensual domestic arrangements, in the Washington Times. Syndicated liberal columnist Ellen Goodman took up the cause of polygamy with a direct comparison to gay marriage. Steve Chapman, a member of the Chicago Tribune editorial board, defended polygamy in the Tribune and in Slate. The New York Times published a Week in Review article juxtaposing photos of Tom Green's family with sociobiological arguments about the naturalness of polygamy and promiscuity.

 

The ACLU's Matt Coles may have derided the idea of a slippery slope from gay marriage to polygamy, but the ACLU itself stepped in to help Tom Green during his trial and declared its support for the repeal of all "laws prohibiting or penalizing the practice of plural marriage." There is of course a difference between repealing such laws and formal state recognition of polygamous marriages. Neither the ACLU nor, say, Ellen Goodman has directly advocated formal state recognition. Yet they give us no reason to suppose that, when the time is ripe, they will not do so. Stephen Clark, the legal director of the Utah ACLU, has said, "Talking to Utah's polygamists is like talking to gays and lesbians who really want the right to live their lives."

 

All this was in 2001, well before the prospect that legal gay marriage might create the cultural conditions for state-sanctioned polygamy. Can anyone doubt that greater public support will be forthcoming once gay marriage has become a reality? Surely the ACLU will lead the charge.

 

Why is state-sanctioned polygamy a problem? The deep reason is that it erodes the ethos of monogamous marriage. Despite the divorce revolution, Americans still take it for granted that marriage means monogamy. The ideal of fidelity may be breached in practice, yet adultery is clearly understood as a transgression against marriage. Legal polygamy would jeopardize that understanding, and that is why polygamy has historically been treated in the West as an offense against society itself.

 

In most non-Western cultures, marriage is not a union of freely choosing individuals, but an alliance of family groups. The emotional relationship between husband and wife is attenuated and subordinated to the economic and political interests of extended kin. But in our world of freely choosing individuals, extended families fall away, and love and companionship are the only surviving principles on which families can be built. From Thomas Aquinas through Richard Posner, almost every serious observer has granted the incompatibility between polygamy and Western companionate marriage.

 

Where polygamy works, it does so because the husband and his wives are emotionally distant. Even then, jealousy is a constant danger, averted only by strict rules of seniority or parity in the husband's economic support of his wives. Polygamy is more about those resources than about sex.

 

Yet in many polygamous societies, even though only 10 or 15 percent of men may actually have multiple wives, there is a widely held belief that men need multiple women. The result is that polygamists are often promiscuous--just not with their own wives. Anthropologist Philip Kilbride reports a Nigerian survey in which, among urban male polygamists, 44 percent said their most recent sexual partners were women other than their wives. For monogamous, married Nigerian men in urban areas, that figure rose to 67 percent. Even though polygamous marriage is less about sex than security, societies that permit polygamy tend to reject the idea of marital fidelity--for everyone, polygamists included.

 

Mormon polygamy has always been a complicated and evolving combination of Western mores and classic polygamous patterns. Like Western companionate marriage, Mormon polygamy condemns extramarital sex. Yet historically, like its non-Western counterparts, it de-emphasized romantic love. Even so, jealousy was always a problem. One study puts the rate of 19th-century polygamous divorce at triple the rate for monogamous families. Unlike their forebears, contemporary Mormon polygamists try to combine polygamy with companionate marriage--and have a very tough time of it. We have no definitive figures, but divorce is frequent. Irwin Altman and Joseph Ginat, who've written the most detailed account of today's breakaway Mormon polygamist sects, highlight the special stresses put on families trying to combine modern notions of romantic love with polygamy. Strict religious rules of parity among wives make the effort to create a hybrid traditionalist/modern version of Mormon polygamy at least plausible, if very stressful. But polygamy let loose in modern secular America would destroy our understanding of marital fidelity, while putting nothing viable in its place. And postmodern polygamy is a lot closer than you think.

 

Polyamory

 

AMERICA'S NEW, souped-up version of polygamy is called "polyamory." Polyamorists trace their descent from the anti-monogamy movements of the sixties and seventies--everything from hippie communes, to the support groups that grew up around Robert Rimmer's 1966 novel "The Harrad Experiment," to the cult of Bhagwan Shree Rajneesh. Polyamorists proselytize for "responsible non-monogamy"--open, loving, and stable sexual relationships among more than two people. The modern polyamory movement took off in the mid-nineties--partly because of the growth of the Internet (with its confidentiality), but also in parallel to, and inspired by, the rising gay marriage movement.

 

Unlike classic polygamy, which features one man and several women, polyamory comprises a bewildering variety of sexual combinations. There are triads of one woman and two men; heterosexual group marriages; groups in which some or all members are bisexual; lesbian groups, and so forth. (For details, see Deborah Anapol's "Polyamory: The New Love Without Limits," one of the movement's authoritative guides, or Google the word polyamory.)

 

Supposedly, polyamory is not a synonym for promiscuity. In practice, though, there is a continuum between polyamory and "swinging." Swinging couples dally with multiple sexual partners while intentionally avoiding emotional entanglements. Polyamorists, in contrast, try to establish stable emotional ties among a sexually connected group. Although the subcultures of swinging and polyamory are recognizably different, many individuals move freely between them. And since polyamorous group marriages can be sexually closed or open, it's often tough to draw a line between polyamory and swinging. Here, then, is the modern American version of Nigeria's extramarital polygamous promiscuity. Once the principles of monogamous companionate marriage are breached, even for supposedly stable and committed sexual groups, the slide toward full-fledged promiscuity is difficult to halt.

 

Polyamorists are enthusiastic proponents of same-sex marriage. Obviously, any attempt to restrict marriage to a single man and woman would prevent the legalization of polyamory. After passage of the Defense of Marriage Act in 1996, an article appeared in Loving More, the flagship magazine of the polyamory movement, calling for the creation of a polyamorist rights movement modeled on the movement for gay rights. The piece was published under the pen name Joy Singer, identified as the graduate of a "top ten law school" and a political organizer and public official in California for the previous two decades.

 

Taking a leaf from the gay marriage movement, Singer suggested starting small. A campaign for hospital visitation rights for polyamorous spouses would be the way to begin. Full marriage and adoption rights would come later. Again using the gay marriage movement as a model, Singer called for careful selection of acceptable public spokesmen (i.e., people from longstanding poly families with children). Singer even published a speech by Iowa state legislator Ed Fallon on behalf of gay marriage, arguing that the goal would be to get a congressman to give exactly the same speech as Fallon, but substituting the word "poly" for "gay" throughout. Try telling polyamorists that the link between gay marriage and group marriage is a mirage.

 

The flexible, egalitarian, and altogether postmodern polyamorists are more likely to influence the larger society than Mormon polygamists. The polyamorists go after monogamy in a way that resonates with America's secular, post-sixties culture. Yet the fundamental drawback is the same for Mormons and polyamorists alike. Polyamory websites are filled with chatter about jealousy, the problem that will not go away. Inevitably, group marriages based on modern principles of companionate love, without religious rules and restraints, are unstable. Like the short-lived hippie communes, group marriages will be broken on the contradiction between companionate love and group solidarity. And children will pay the price. The harms of state-sanctioned polyamorous marriage would extend well beyond the polyamorists themselves. Once monogamy is defined out of marriage, it will be next to impossible to educate a new generation in what it takes to keep companionate marriage intact. State-sanctioned polyamory would spell the effective end of marriage. And that is precisely what polyamory's new--and surprisingly influential--defenders are aiming for.

 

The family law radicals

 

STATE-SANCTIONED polyamory is now the cutting-edge issue among scholars of family law. The preeminent school of thought in academic family law has its origins in the arguments of radical gay activists who once opposed same-sex marriage. In the early nineties, radicals like longtime National Gay and Lesbian Task Force policy director Paula Ettelbrick spoke out against making legal marriage a priority for the gay rights movement. Marriage, Ettelbrick reminded her fellow activists, "has long been the focus of radical feminist revulsion." Encouraging gays to marry, said Ettelbrick, would only force gay "assimilation" to American norms, when the real object of the gay rights movement ought to be getting Americans to accept gay difference. "Being queer," said Ettelbrick, "means pushing the parameters of sex and family, and in the process transforming the very fabric of society."

 

Promoting polyamory is the ideal way to "radically reorder society's view of the family," and Ettelbrick, who has since formally signed on as a supporter of gay marriage (and is frequently quoted by the press), is now part of a movement that hopes to use gay marriage as an opening to press for state-sanctioned polyamory. Ettelbrick teaches law at the University of Michigan, New York University, Barnard, and Columbia. She has a lot of company.

 

Nancy Polikoff is a professor at American University's law school. In 1993, Polikoff published a powerful and radical critique of gay marriage. Polikoff stressed that during the height of the lesbian feminist movement of the seventies, even many heterosexual feminists refused to marry because they believed marriage to be an inherently patriarchal and oppressive institution. A movement for gay marriage, warned Polikoff, would surely promote marriage as a social good, trotting out monogamous couples as spokesmen in a way that would marginalize non-monogamous gays and would fail to challenge the legitimacy of marriage itself. Like Ettelbrick, Polikoff now supports the right of gays to marry. And like Ettelbrick, Polikoff is part of a movement whose larger goal is to use legal gay marriage to push for state-sanctioned polyamory--the ultimate subversion of marriage itself. Polikoff and Ettelbrick represent what is arguably now the dominant perspective within the discipline of family law.

 

Cornell University law professor Martha Fineman is another key figure in the field of family law. In her 1995 book "The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies," she argued for the abolition of marriage as a legal category. Fineman's book begins with her recollection of an experience from the late seventies in politically radical Madison, Wisconsin. To her frustration, she could not convince even the most progressive members of Madison's Equal Opportunities Commission to recognize "plural sexual groupings" as marriages. That failure helped energize Fineman's lifelong drive to abolish marriage.

 

But it's University of Utah law professor Martha Ertman who stands on the cutting edge of family law. Building on Fineman's proposals for the abolition of legal marriage, Ertman has offered a legal template for a sweeping relationship contract system modeled on corporate law. (See the Harvard Civil Rights and Civil Liberties Law Review, Winter 2001.) Ertman wants state-sanctioned polyamory, legally organized on the model of limited liability companies.

In arguing for the replacement of marriage with a contract system that accommodates polyamory, Ertman notes that legal and social hostility to polygamy and polyamory are decreasing. She goes on astutely to imply that the increased openness of homosexual partnerships is slowly collapsing the taboo against polygamy and polyamory. And Ertman is frank about the purpose of her proposed reform--to render the distinction between traditional marriage and polyamory "morally neutral."

 

A sociologist rather than a professor of law, Judith Stacey, the Barbra Streisand Professor in Contemporary Gender Studies at USC, is another key member of this group. Stacey has long championed alternative family forms. Her current research is on gay families consisting of more than two adults, whose several members consider themselves either married or contractually bound.

 

In 1996, in the Michigan Law Review, David Chambers, a professor of law at the University of Michigan and another prominent member of this group, explained why radical opponents of marriage ought to support gay marriage. Rather than reinforcing a two-person definition of marriage, argued Chambers, gay marriage would make society more accepting of further legal changes. "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."

 

Gradual transition from gay marriage to state-sanctioned polyamory, and the eventual abolition of marriage itself as a legal category, is now the most influential paradigm within academic family law. As Chambers put it, "All desirable changes in family law need not be made at once."

 

Finally, Martha Minow of Harvard Law School deserves mention. Minow has not advocated state-sanctioned polygamy or polyamory, but the principles she champions pave the way for both. Minow argues that families need to be radically redefined, putting blood ties and traditional legal arrangements aside and attending instead to the functional realities of new family configurations.

 

Ettelbrick, Polikoff, Fineman, Ertman, Stacey, Chambers, and Minow are among the most prominent family law theorists in the country. They have plenty of followers and hold much of the power and initiative within their field. There may be other approaches to academic family law, but none exceed the radicals in influence. In the last couple of years, there have been a number of conferences on family law dominated by the views of this school. The conferences have names like "Marriage Law: Obsolete or Cutting Edge?" and "Assimilation & Resistance: Emerging Issues in Law & Sexuality." The titles turn on the paradox of using marriage, seemingly a conservative path toward assimilation, as a tool of radical cultural "resistance."

 

One of the most important recent family law meetings was the March 2003 Hofstra conference on "Marriage, Democracy, and Families." The radicals were out in full force. On a panel entitled "Intimate Affiliation and Democracy: Beyond Marriage?" Fineman, Ertman, and Stacey held forth on polyamory, the legal abolition of marriage, and related issues. Although there were more moderate scholars present, there was barely a challenge to the radicals' suggestion that it was time to move "beyond marriage." The few traditionalists in family law are relatively isolated. Many, maybe most, of the prominent figures in family law count themselves as advocates for lesbian and gay rights. Yet family law today is as influenced by the hostility to marriage of seventies feminism as it is by advocacy for gay rights. It is this confluence of radical feminism and gay rights that now shapes the field.

 

Source: http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=2938&R=9DD8FEB1

 

 

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