Monday, October 04, 2004

Government, gays and polygamists

Posted by Craig Westover | 2:56 PM |  

Whenever government starts trying to legislate morality, sooner or later it finds itself wrapped around a philosophical axel and just keeps going around in circles. Take the case of acknowledge polygamist Tom Green.

Writing in USA Today, Jonathan Turley pens a lesson in hypocrisy making the case that in the eyes of the law, polygamists should be judged on principle, not popularity.

The First Amendment was designed to protect the least popular and least powerful among us. . . . The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

If Turley had left the matter there, he’d have a pretty sound argument. But Captain Ed over at Captain’s Quarters, was quick to pick up --

Turley launches into a defense of libertarianism regarding polygamy that at once decries the religious objections to it and then offers religious solutions to such sticky issues as property rights on dissolution. It's a rambling, sometimes self-contradictory amicus brief encouraging the Supreme Court to nullify 200 years of legal thought in America on marriage, much the same as challenges for gay marriage have done.

A good assessment, but on this one, Captain Ed gets caught up in in the conservative notion of “states rights” and a 10th Amendment interpretation that states can somehow override individual rights by declaring a natural “right” criminal.

In this case, the good Captain is not asking the right question. He’s coming at this issue from the perspective of “should polygamy be legal?” when the more important question is “should government have the power to make polygamy illegal?” The latter general question must be answered first.

The real problem is government shouldn’t be in the “marriage business” at all. People don’t need government to sanctify their relationships. I made this argument in my Pioneer Press Column “Government should get out of the marriage business. Subsequent to that column I received the usual polygamy poodles and people letters, questioning that if gay marriage were legal, then just how far was I prepared to go.

The morality of polygamy is a knotty question, but from a legal standpoint, it goes away if the government gets out of the marriage business and into civil unions independent of any sexual content.

Basis for a civil union is that government has recognized a value to all society for stable relationships and determined (as a matter of policy not morality) that two party unions work best. A civil union can legislatively define any privileges, benefits and responsibilities the state wishes to assign to it, provided any individual can meet the requirements.

The state currently provides benefits and makes a legal construct out of "marriage" defined as a union between a man and a woman. There is no compelling reason why these same benefits should not be available to a gay couple, or for that matter to any two people, who want to enter into a "civil union" and assume all the responsibilities of that union -- this could include brothers and sisters, first cousins or just two friends. A civil union need not have a sexual context.

The key is how the legislature ultimately defines a civil union. The definition can be highly restrictive -- provided meeting the requirements are elective -- such as a shared address or requirement that the "couple" file a joint Minnesota tax return. Any couple meeting the requirements would be recognized as a Minnesota civil union. (Thus the legislature could
say no people and poodle relationships.)

Polygamy is a separate issue. While the state should not prohibit such relationships, it is perfectly legitimate for the state to refuse benefits for an elective lifestyle. A person in a polygamous relationship could designate one of his/her spouses for a civil union, but would have to make other legal arrangements to protect other spouses.

In a free society one must often defend the ability of others to do things one finds morally reprehensible.

UPDATE: Reader Response -- More on Civil Unions