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May 19, 2008

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esb

Would you argue that consensual adult incest should be accepted?

LAK

Incest is a different situation due to the externalities such a relationship has in terms of reproductive abnormailities. The chances of deformities and other rare hereditary diseases increases dramatically in offspring of parents and children, sibilings or even first cousins. The rest of us often bear the costs of sevrely malformed children. There is a reason such realtionships were taboo back in the day even when polygamy was not.

As interesting a subject as this is, I've never actually met someone in a polyamorous relationship who didn't have some serious emotional problems (granted though I've met very few who were in polyamorous reltaionships). It makes sense to me that those who engage in polygamy and polyamory do so as a function of material scarcity, reproductive difficulty and partiarchal religion, and when society advances and educates people and allows for an easier time at reproducing the species, people naturally shift to monogamous relationships (far less emotionally messy) or even no relationships at all. I mean even in communal living arrangements I've seen, monogamy is still the norm. Erotic love is such that it has an element of exclusivity in it that is tough to deny. I think very few people would be willing to share their loved one with another without compelling reproductive or survival motives.

That being said, Professor Nussbaum is spot on. If we take personal freedom seriously as a nation and as a matter of law, in a situation with consenting adults, barring exploitation/abuse, polygamy should be legal, as it happens at no cost to the rest of us.

Maybe the answer is to do away with the legal concept of marriage all together. It would hurt women at first but then as norms changed and contracts took the place of the legal rights in marriage, my guess would be it would lead to a more equitable society. marrriage is an institution born of patriarchy and the second class status of women to begin with.

Joey Fishkin

Professor Nussbaum,

Your committment to Millian experiments in living is admirable. To a certain initial extent, the state can promote "experiments" with respect to polyamory simply by staying out of the way -- by not proscribing individuals from living together in polyamorous relationships, even if it does not recognize those relationships with a status like marriage. (Just as by not proscribing homosexual sodomy, the state can at least avoid criminalizing gay relationships, which is a minimal initial freedom-enhancing step.)

But one lesson we can learn from the gay marriage fight is that as long as the state is involved in creating official institutions like marriage, its decisions about regulating who has access to those institutions are inherently perfectionistic, never completely libertarian. The state is implementing a public policy about what arrangements it wants to promote as beneficial to the overall well-being of the population -- especially children, but also adults.

Arguments for gay marriage are often framed in liberty/freedom terms, but the reality is, the gay rights movement is succeeding in this area because it has demonstrated very powerfully over several decades that gay and lesbian couples can be good parents and can have healthy, stable, loving relationships, relationships not marked by any systematic coercion or oppression, relationships that enhance rather than limit autonomy. In my view, the state is right to take account of that.

Perhaps a movement (or movements) of polyamorous people arranging themselves into family units will one day prove the same thing. At that point, they will prove to a moderately perfectionistic state that they deserve not only noncriminalization, but also the kind of state imprimatur and encouragement that gay couples have shown they deserve. So far, that polyamorous movement just hasn't appeared. Instead, as you note, we have oppressive, one-sided polygamy regimes in pockets of this country that are significantly more patriarchal and coercive than most current American marital arrangements are -- and that is true even if one excludes those cases in which girls are married younger than some (somewhat arbitrary) age of marital consent. (Some social arrangements are oppressive and autonomy-limiting even when you're a wise old 19-year-old, pressed into your role by tradition and family, not "fraud and force"!) At the moment, polyamory does not appear to produce the kind of results that I think a moderately perfectionistic state ought to demand; instead it appears for now that the results would be bad.

You resist the idea that the state should be making judgments of this kind. Is your view that the state should -- and can -- somehow get out of the business of certifying some relationships and not others? That is what you seem to be suggesting with the phrase "a regime of private contractual arrangement." It is an attractive idea, but I am not sure it is possible. As long as individuals and families are intertwined with children and with property, I think we need laws to limit the amount of injustice that those "private contractual arrangements" can perpetuate. And as long as the law creates rights that cannot be created by contract -- the right not to testify against your spouse, the right to be present in their hospital room, the right to claim numerous financial benefits not assignable by contract, and so on -- there will be a need for marriage or its successors to be, in part, not matters of private contract, but statuses bestowed by the state on the kinds of relationships that the state pragmatically decides have the effect of enhancing, rather than limiting, the autonomy of its people.

YLlama

LAK, your argument against incest only makes sense in a reproduction-friendly setting. What about adult sisters, or post-menopausal mother and adult son? Is that okay?

I tend to think so. The issue really comes down to consent (and capacity to consent) for me. But I acknowledge there's an ick factor that has to be overcome for many people.

Jimbino

esb wonders whether "incest should be accepted":

"Incest is a different situation due to the externalities such a relationship has in terms of reproductive abnormailities [sic]. The chances of deformities and other rare hereditary diseases increases dramatically in offspring of parents and children, sibilings[sic] or even first cousins. The rest of us often bear the costs of sevrely[sic] malformed children. There is a reason such realtionships[sic] were taboo back in the day even when polygamy was not.
...
Erotic love is such that it has an element of exclusivity in it that is tough to deny. I think very few people would be willing to share their loved one with another without compelling reproductive or survival motives."

This shows a lot of unclear thinking.

First, it is not helpful to confuse marriage, love, sex and breeding. Inbreeding can produce superior offspring, otherwise we wouldn’t use it in breeding doves, dogs and corn. Marriage does not imply either love or sex. Sex doesn’t always lead to breeding and breeding doesn’t always lead to childbirth, now that we have the abortion option.

Furthermore, if the state had such an interest in preventing the externalities resulting from defective brood, it would logically take a more active role in providing abortion. The current Amerikan rules regarding marriage, sex, breeding and abortion are the result of our government’s attempting to force the Amerikan State Religion on all of us, no more, no less.

Secondly, “the rest of us” historically did not bear the externality costs of inbreeding. It wasn’t until the recent imposition of State Socialism that breeders of any kind were supported at the expense of others. A humane society would abolish all impediments to happiness in choice of mate, sex-positions and procreation, not to mention theft of wealth from some to support the breeding done by others. I agree with esb in this:

"Maybe the answer is to do away with the legal concept of marriage all together. It would hurt women at first but then as norms changed and contracts took the place of the legal rights in marriage, my guess would be it would lead to a more equitable society. marrriage [sic] is an institution born of patriarchy and the second class status of women to begin with."

LAK

It may not be helpful to confuse marriage, sex love and procreation, but that's the reality of the situation. They are all confused in terms of history of the institution and its current legal form. Marrige is an institution that was created precisely to regulate sex, love and procreation that was only more recently turned into a state sanctioned legal institution. I mean what is marriage qua law anyway? A state recognized relationship between people that confers certain rights on the parties entering into that relationship. As far as I can tell they have to do only with: 1. property rights of the parties upon dissolution of the marriage or death; 2. formal legal and financial responsibility for minors; 3. custody rights to children upon divorce; 4. income tax tratement; 5. Some other minor rights, privileges and immunities.

And I certainly stand by my argument that "the rest of us" did bear the costs of deformed children or stillborn children well before any scary socialist state of which you speak. When the institution of marriage came about, there was plenty of good reason why every culture I know of prohibited incest: a non viable child, whether it made it through birth or not, came at great cost to the rest of the community when bodies in the field or on the hunt were what really mattered to a community.

My point about the nature of erotic love was simply to point out that while thinking about polygamy is an interestingthing, the reality is that very few people want to do it in the end if they don't have to. This is no like gay marriage, where nearly 10% of the population seems to want to cohabitate, love, have sex with and somtimes raise children witha member of the same sex.
The fascinating thing is how much people invest in the name "marriage" as someting having value above and beyond the actual rights and responsibilities it confers under the law. The California Supreme Court ruling seems kind of nuts to me because it finds discrimination in state's use of the term "marriage" for hetero couples and "domestic partenrship" for gay couples. The real battle that has already been won was getting same sex partners the same rights with respect to children and property as hetero couples. Wanting it to be called marrige makes little sense to me. It's on par with a gay person wanting to be a boyscout. Why? marriage is a flawed and dated historical institution refective of a time past in which religion dominated reproductive norms.

Ylama, I'd point out that plenty of mothers and sons, sisters and borthers already live together, make functional families and share in raising children. By virtue of the family relationship they already have succession rights with respect to each other and they already have custodial rights to a different degree with respect to children. They don't have the tax treatment though. So the stamp of "marriage" on these relationships probably doens't matter qua law except insofar as it confers a few extra minor rights and privileges.
The big issue it seems is that calling something a "marrige" has less to do with the legal realities at all, but rather the state recognition of a relationship that is supposedly exclusive involving love, sex and the possibility of procreation. I've studied enough eviolutionary biology by now to conclude that any mother and son or sisters who want to get "married" and have an open sexual or erotic love relationship probably need a shrink more than they need a lawyer to fight for their equal civil rights when they can alreay live together and raise children together should they choose.

In thinking about these issues, it seems obvious to me that "marriage" means less and less every day under the law, and that the rights and privileges that come with state sanctioned marriage should likely be divided up and "marriage" as a legal institution should be done away with in its entirety.


Tony Danza

Nussbaum,

Would you support institutional and policy arrangements prohibiting and discouraging polygamy and polyamory if good psychological research were to suggest that these relationships are detrimental to psychological health? If so, then your appeals to Mill seem misplaced. If not, then I don't understand why you wrote chapter 4 of Upheavals of Thought.

Nussbaum is plainly right that we shouldn't villify polygamy and that historical instances of the institution are not always the horrible and disgusting things that many would have us think. I'm just plain perplexed, though, about why she wants to take the easy liberal back door and disallow any sort of perfectionist considerations to come into play here. I'm willing to bet that there *are* significant negative psychological effects on both the women and the men in these relationships, and I'm fairly sure that they will have at least a strong tendency to work against a whole slew of goods that I think are important for human flourishing. I haven't thought through the issue nearly enough to be confident about it, but Nussbaum's whole approach just tells me that I can't even raise the question, that I should just let consenting adults do what they do, and if it's no good, they'll stop doing it. But that's obviously nonsense, and Nussbaum's own work on gender should prove it to her. The fact that people 'consent' to something doesn't mean that it's good. If Nussbaum wants to claim that it does, then she'll have to abandon any critique of social customs and political institutions that dominate people (most obviously, women) by making them believe that the condition of domination is normal and even desireable. .

Aristotle and Mill make bad bedfellows. We shouldn't let them get married.

Alex K

Tony D-
I am not a social scientist, but I would be surprised if we could accurately assess the psychological effects of polyamory without controlling for the fact that it is taboo and I don't know how that would work. There are relatively high suicide rates among gay teens, but that is not an argument against allowing same-sex marriage.

LAK-
Your comments about about incest sound like things that used to be (and still are) said about gay people. I'm not saying that there is no problem with incest, but I do think that your claims don't capture what that is. I agree with YLlama that it is really an issue of capacity to consent, but my view on that is narrower. I think the nature of a lot of family relationships make it reasonable to be skeptical of the "consent" given in a lot of incestuous relationship.
I also take issue with your claim that the battle in California was won with civil unions. The rights and benefits are important, but the name is too. It would not have been acceptable for the Court in Loving to have said that couples involving a white person and a non-white person must have the same rights, but it would be ok for Virginia to call these unions something other than marriage. It doesn't make any sense. And I find the reliance on, or reference to, tradition kind of silly since marriage today barely resembles marriage forty years ago.

I also find it interesting that many people are convinced that jealousy would make polyamory/polygamy destructive or impossible. I think it has a lot to do with how people react the desires or impulses of other people that they do not understand. Some people assume that everyone feels pretty much how they do about most things and are incredulous when they are confronted with an opposing view. I tend to err the other way. If someone tells me they feel a certain way, I will believe them unless I am confronted with convincing evidence to the contrary. If a person tells me that he or she has no problem with sharing their sexual partners with other people, I will believe that unless I see evidence that it is not the case.

In my experience, I have noticed that people who cheat often have jealous tendencies. This however only indicates that there are a lot of selfish people that put their needs above the needs of their partners. I bet there are people out there who have polyamorous tendencies but choose not to exercise them because they are not selfish and they have been unable to find partners who are ok with them seeing other people. There is a big difference between the possessive feelings that some people have towards their sexual partners and the feeling of betrayal when one is cheated on and lied to. Polygamy only implicates the first of these.

LAK

Alex,

That may be true, but those weren't very good arguments. Homosexual behavior is quite common in advanced species, especially in primates, and serves positive functions from the perspective of evolutionary biology. Incest on the other hand is extremely uncommon, for good reason, and if I am not mistaken, scientists have shown that most advanced species have developed incest aversion mechanisms having to do with either innate or early childhood familiarity with the pheromones of their close relatives.

Alex K

LAK-
I'm with you there to a point. But you're back on the reproductive risks which do not fully account for the incest taboo. Or is there more to the evolutionary biology claim than the fact that offspring that are products of incest are less fit? I should maybe stay away from topics that I don't know much about.

Alex K

Also, if evolutionary biology has an explanation for why a lot of people are not attracted to people with genetic disabilities does that mean that people who do not have this prejudice need therapy? I don't think evolutionary biology should be used normatively like that.

LAK

Yea, but what else is there to appeal to? The ick factor is just so overwhelming and though I tend to want to maximize freedom that comes at no cost to others, I have difficulty rationally justifying why I think sister snd brothers and fathers and daughters should not be allowed as a matter of law to couple with each other. I know that if it happens it is a severe dysfunction, probably born of the intesnse human alienation that pervades our culture. But that is true for facelifts and love of Brittney Spears too, and I'm not willing to legally ban those. So what is it about incest that crosses the line or makes it different? I really don't know, but still it seems completely wrong to me to the point where i conclude it should be illegal even though facelifts, $10,000 handbags and Brittney Spears albums are not. These are difficult issues.

Roach

You say, "The history of Mormon polygamy shows us that the state and public opinion are very bad judges of what adult men and women may reasonably do. When people are insecure, they cling to the "normal" and vilify those who choose to live differently."

Actually, this is a good thing. The only thing that's worrisome is how a bunch of atheist hedonists can change the minds of so many people against their healthy prejudice against abnormal relationships like polygamy and homosexuality. Hopefully, this craze will pass soon.

Thom Brooks

I am delighted to have found this post as I have just completed a draft of a paper looking at the problem of whether the capabilities approach might justify polygamy. My suspicion is that it cannot for the following reasons (and keeping in mind the capability of affiliation):

(1) Even if polygamous marriages were entered into through free consent and if women had equal opportunities to form polyandrous marriages, one might still oppose polygamy on the grounds that, in fact, it would amount to a justification of polygyny (and not polyandry) in practice. As practiced, virtually all cases of polygamy are cases of polygyny. Polygyny is objectionable on the grounds that women lack equal standing with men. Given the high certainty that permitting all forms of polygamy will in practice further polygyny and damage the equal standing of women, we should oppose polygamy because it represents an asymmetry of power between men and women.

(2) A second reason to oppose polygamy is that all parties to a polygamous marriage lack equal standing. Thus, in polyandry, a wife may choose to divorce any (or all) other members of the marriage, while the husbands may only divorce the wife (and not other husbands). Polygamy here represents a further asymmetry between men and women in theory of practice irrespecive of whether we are discussing polygyny or polyandry.

(3) A third objection to polygamy is as follows. The two models of polygamy are 'polygyny' (one husband with multiple wives) and 'polyandry' (one wife with multiple husbands). Both forms of polygamy exclude non-heterosexuals as neither form permits a marriage of only wives or only husbands. As such, it might violate the capability of affiliation.

I agree with Fishkin above (I think) in believing that your approach may permit polyamory, as only here does it strike me that all parties have equal standing and such relationships permit non-heterosexual partnerships.

If this picture is correct, then we can readily reject the Reynolds case and reject the many arguments against polygamy that do seem based on little more than prejudice and misunderstandings. At the same time, we can clearly identify a form of marriage with multiple partners --- such as polyamory -- while still rejecting polygamy, which might in turn give voice to some of the reservations you appear to express about the practice in Sex and Social Justice, Women and Human Development, Liberty of Conscience, and elsewhere.

anon

Could anyone explain to me how that Deuteronomy quotation entails an acceptance of polygamy? It seems to me that an equally plausible interpretation is that the Old Testament assumed that only men had the capacity to covet.

LAK

Alex,
you say: "I also take issue with your claim that the battle in California was won with civil unions. The rights and benefits are important, but the name is too. It would not have been acceptable for the Court in Loving to have said that couples involving a white person and a non-white person must have the same rights, but it would be ok for Virginia to call these unions something other than marriage. It doesn't make any sense. And I find the reliance on, or reference to, tradition kind of silly since marriage today barely resembles marriage forty years ago."

I disagree. Loving and the Califonia case are different because no matter how the definition and reality of marriage has changed over the years, it has always been defined by the fact that it is an institution involving man and woman, even when mariage was more of a formal transfer of chattel property from a father to a husband, and even when people of differing races could not marry. So denying marriage based on different race is very different than denying marriage based on same sex. I mean marriage is such a dumb and flawed institution I find it curious that same sex couples want to be lumped in with what is nothing more than a institution born of patriarchy that involved the transfer ownership of women. That a bunch of conservative nuts cling to their "definition" of marriage that it is between a man and a woman doesn't bother me and isn't necessarily any more problematic or discriminatory than the institution of marriage itself, and in my mind, a majority can decide to call them different things without it *necessarily* being motivated by discrimination, but rather just tradition. What they can't be allowed to do is deny gay people who have comitted to monogamous relationships the same substantive rights and privileges that hetero couples enjoy. Now that is discrimination.

Alex K

LAK-
I agree that Loving and the CA Marriage Cases are different. Maybe that wasn't the best example, it's just the easiest to mention because everyone knows about it. I just think that when a religious tradition is adopted by a secular state it is going to have to change. Maybe interfaith marriage is a better example. A lot of religions will not allow a person to marry an "outsider." Does this mean that the state should not allow interfaith marriages, or call them something else? Maybe you will say yes, but I don't think so. Individuals can have traditions that are discriminatory, but if they want them to be recognized by the state they have to be more inclusive. This is one of the reasons why religious people should, and do, like the Establishment Clause. It keeps the state out of religion.

gary

One of the basic challenges with Polygamy is the fact they get young kids into the fold. That's just against the law. There probably is still lots of coersion even when they reach the age of maturity. The other problem is they are so separated from the outside world. Not sure what the law can do about it once kids are of age, but Polygamy is against the law.

Thom Brooks

Gary -- Indeed, it is against the law. The question is whether or not it should remain against the law. I am not so sure that Nussbaum should be as positive as it is, given the reasons I note above as to why it is problematic. (I also have a paper on why I believe polygamy contravenes her capabilities approach, here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1137931)

Kimball Corson

The basic problem with polygamy is that those who oppose it have less sexual variety in their lives than those who practice it and that creates resentment. There is nothing like resentment to motivate the creation of laws.

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