Mirror of Justice

Rick G and David Nikol posted nice, thought-provoking sets of comments to my recent post on marriage.  I've offered tentative replies in the comments section to the post.  It occurs to me that MoJ readers might also be interested in a somewhat more fully elaborated rendition of those attempts at replying here 'above the line,' so to speak.

Rick asks, among other things, whether a priciple per which states cannot rationally deny thinly defined civil marriage rights to same-sex partners might not also prohibit states from denying such rights to larger family units.  David, for his part, points out among other things that marriage in past times used to be more a matter of state than a matter of religious concern.  He also suggests that polygamy is at least one form of non-nuclear familial arrangement that is socially harmful.  In consequence, Rick and David severally take issue with my suggestions that (1) we perhaps ought to distinguish sharply in law between civil union and ecclesial marriage, with the former contoured by Equal Protection law and the latter enjoying far-reaching autonomy under Free Exercise Law, and (2) that one upshot of proposition 1 would be that the state might best be viewed as obligated not to restrict civil unions even to couples, let alone to heterosexual couples.  I've a few tentative thoughts in response:

First, I don't know much about what role marriage or its analogues played in earlier religious traditions or in the earlier phases of presently continuing religious traditions.  Nor do I know much about the political, as sometimes problematically distinguished from the religious, history of marriage many centuries or several millennia back. I am under the impression, however, that ecclesial courts handled marriage and family law matters in the not so distant past, with the 'king's' courts handling matters of more unambiguously state-style concern.  (Didn't Chancery, for example, handle these matters in England?)  I also believe, in any event, that a liberal polity such as our own aspires to be, in which all citizens are to be taken for autonomous moral equals irrespective of their faith commitments, bears a special burden of justification when it pursues policies that tend, and especially policies that intendedly tend, to support or encourage some living arrangements over others.  Even a very retro-minded type (as I myself tend to be in some contexts), for example, might well be troubled by state favoring of 'nuclear' families over 'extended' families.  And certainly a liberally minded type (as I tend even more strongly to be), by way of another example, will be troubled by state judgements to the effect that 'blood is thicker than water,' or any cognate judgement that systematically favors conjugal unions over more 'intentional' family arrangements, including such as are larger than 'nuclear.'

Second, I'm no expert on polygamy, and certainly I don't like the idea of 'two [or n] girls for every boy,' as I guess Jan and Dean had it in the beach movie days.  After all, the corrollary would seem to be 'half [or 1/n] a boy for every girl,' which seems in potential at least to be a bit inequitable, to say the least.  It is interesting, however, that this form of familial arrangement seems to have prevailed in the earlier days during which the Bible was composed, rendering it something of a puzzle that self-described 'Christian conservatives' have racked up so nasty and bigoted a track-record in the 19th century persecution of Mormons in the US.  In any event, my own (very much provisional) tendency is simply to think of polygamy and polyandry as matters of vigilently enforced contract law, in which the informed consent of the truly autonomous contracting parties would constitute the principal legal - not to mention ethical - question raised by any arrangment.  Presumably many who have been engaged in latterday polygamous or polyanderous familial arrangements would be found to have been illegitimately exploited under such a regime, since so many seem to have been pushed into those arrangements prior to having formed autonomous selves.  But so long as the law took the autonomy and equal bargaining power requirements truly seriously, I'd see little obvious reason categorically to prohibit non-nuclear familial arrangments tout court.  (Didn't Fannie Flagg's novel, 'Fried Green Tomatoes,' involve a less problematic such arrangement?  I've not read the novel, but seem to recall being told that it did.)

Another, third thought in effect generalizes the view that I think might be implicit in the first two: One feature that I think constitutive of the peculiar genius of the commonlaw of (business) partnership is the fact that a p'ship can simply evolve into being, out of the temporally extended behavior of the parties to a p'ship-like relation.  There need be no formal agreement in writing or even in speech.  People can 'fall into' partnership, as I often think of it.  It occurred to me last night, in thinking more on this subject, that the old institution of 'commonlaw marriage' might then have constituted a straightforward counterpart in the realm of domestic arrangement.  I'll have to ask Eduardo's, Steve's and my splendid colleague (and active Episcopalian), Cynthia Bowman, for further clarification on this, as she's truly expert on the subject.  But in any event, if the speculation is correct, then just as a commonlaw business p'ship can include more than two p'ners, perhaps a commonlaw domestic p'ship should be able to do so as well, so long as the 'capacity to consent' is as verifiably present in the one case as in the other.  And if so, then there would seem no reason not to permit statutory domestic p'ship to do likewise, again as in the case of (now statutory) business p'ship.  The potential legal and moral issues involved seem to be much the same, after all -- all of them straightforward contractual issues so far as 'internal,' governance relations are concerned, and straightforward tort and b'ruptcy issues so far as 'external,' third party relations are concerned.  It's all about the special vulnerabilities to which people internal and external to p'ships become prone in virtue of the p'ship relation itself.  It's not clear to me that such vulnerabilities can only be dealt with by categorically requiring all p'ships to have no more than two members, let alone to heterosexual members.  The only possible argument to the contrary that comes to mind would sound in the infeasibility, as an adminstrative matter, of effectively policing the bona fide informed consent of the putatively autonomous parties.  (Note that a similar argument seems to be proferred by opponents of doctor-assisted suicide.  The claim is that it's just not feasible for the state to ensure bona fide consent.  Is this true?  It seems to me this might constitute the proverbial $64k question here.)

That segues into a fouth and final thought for now.  As just noted, business p'ship law is largely about the obligations the p'ners incur to one another and to third parties by dint of the relations inter se that they fall into, given that those relations give rise to new vulnerabilities.  Presumably commonlaw marriage and domestic p'ship law have been and would be largely the same, at least in part, irrespective of the number of parties to the 'relational contract' involved.  Insofar as presentday domestic p'ship law is instead about benefits from fellow p'ners and from third parties to which p'ners become entitled by dint of their relations to their p'ners (inheritance, insurance, hospital visitation rights, etc.), well, that's long been statutorily determined on an ad hoc basis, so far as I can tell.  I see no reason why that would not continue, with various commonsense adjustments made in response to unanticipated problems that arise in the face of the sundry alternative domestic arrangements that might develop, were we to recognize domestic p'ships that included more than the now most familiar dyadic and 'nuclear familial' forms.

Thoughts?

Cross-Posted on ReligiousLeftLaw