Print Article | Email Article | Write To Us

Daily News

Following the Supreme Court’s Logic in Obergefell, Is Polyamorous 'Marriage' Next? (306)

COMMENTARY: Our culture no longer seems to have the spiritual or intellectual resources to reverse steps or prevent the next ones.

08/03/2015 Comment
Shutterstock

– Shutterstock

The direction American law has been taking about matters of sex, marriage and family is getting harder and harder to distinguish from descent into insanity. How?

Writing for the majority in Planned Parenthood v. Casey (1992), in which the Supreme Court upheld the “right” to abortion established by Roe v. Wade, Justice Anthony Kennedy asserted:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

In his dissent from the majority opinion in Lawrence v. Texas (2003), another landmark decision striking down all sodomy laws, Justice Antonin Scalia referred derisively to the Casey paragraph containing that sentence as “the sweet-mystery-of-life passage,” which “ate the rule of law.” Scalia’s allusion to the 1930s song might have seemed innocuous enough at the time. But a dozen years later, writing this time for a 5-4 majority, Kennedy has cited both cases (among others) as precedent for the court’s still-more-radical decision in Obergefell v. Hodges establishing same-sex “marriage” as a constitutional right. Scalia’s newest dissent, which I recommend to all, is as biting as ever.

Now, psychiatrists prescribe lithium for a range of mental illnesses, including schizophrenia. I’ve begun to think that a psychiatrist friend of mine was not far off when, tongue-in-cheek, he called the sweet-mystery sentence “the lithium-deficiency clause.”  

Does an individual have the right to call themselves Jesus Christ or Napoleon? Does their self-definition make it a reality? Or wouldn’t such person be called a lunatic and prescribe treatment from a clinician?  Granted that the answer, at least for the most part, is “No,” the point is that there’s nothing in Kennedy’s opinions to tell us why.

Many Americans can’t even tell you why Caitlyn Jenner (his legal name now), a chromosomally male person with male genitalia, isn’t a woman, as he sincerely believes himself to be.

One might want to reply, of course, that lawyers and judges aren’t that stupid. For people generally, even lawyers, have a robust-enough sense of reality to distinguish kinds of self-definition that are unhinged from those that are not, and those which are voluntary from those that are not. But given the inner logic of the lithium-deficiency clause, which many Americans accept at least implicitly, that robust sense of reality is almost visibly eroding with regard to sex, marriage and family.

Consider: If, as a good many now believe, same-sex marriage (SSM) is fine because marriage is about love and people of the same sex can love each other, why limit marriage to monogamous pairs? As far as I can tell, in current culture there is no morally principled reason why. (Religion, of course, says otherwise.) There is only the lingering sense in the secular world that the practical difficulties of polyamorous marriage — the ease with which jealousies can arise, financial complications, etc. — would make it undesirable for most people. And that sense may well be sound. But such difficulties hardly suffice to make polyamorous marriage immoral, never mind illegal, to the “modern” mind. Indeed, what argument could there be — other than the increased risk of birth defects — against marriages between two consenting adult siblings of opposite sexes? As far as I can tell, society says the answer is none. And I expect that we in the “developed” world will see such things legally recognized as marriage, for the few who want it, in the not-too-distant future. The logic of the lithium-deficiency clause does nothing to stop that outcome and everything to encourage it.
When expressed, however, such misgivings are often dismissed like this: “Oh, that’s just the slippery-slope fallacy. Ain’t gonna happen. People know better than that.” But that sort of dismissal can itself be fallacious. In this case, it is.
Late last year, Richard Mouw, professor of faith and public life at Fuller Theological Seminary, noted that despite posing the above questions, often, “I have never been given an adequate answer.”

Robert George, McCormick Professor of Jurisprudence at Princeton University, has often noted the same. For instance, toward the end of an extended exchange last summer with his Princeton colleague Jameson Doig, emeritus professor of politics and public affairs, George restated the challenge to Doig and other defenders of SSM:

“I asked you to identify a principle, consistent with your view of marriage as sexual-romantic companionship or domestic partnership (and your rejection of the historical, conjugal understanding of marriage as the one-flesh union of husband and wife) to support the marital norms you wish to maintain — exclusivity, fidelity, permanence, a limit of two persons — while jettisoning the norm of sexual complementarity. Instead of identifying principles, you restated the norms. But, again, restating a norm simply does not qualify as providing a principle in its support. So I must continue to point out that your view provides no principled ground for excluding from marriage law any form of human companionship, of any size or degree of commitment or affective shape or distribution of mutual duties.”

The key argument of the SSM movement all along has been that there is no principled reason (as opposed to prejudice and “animus” against homosexuals) to limit marriage to opposite sexes, because there is no principled reason to limit marriage to unions involving the sort of sexual act which can lead to procreation, and thus to the “one-flesh” unions that would be naturally fulfilled by procreation. But supposing (just for argument’s sake) that that’s true, there is no principled reason to exclude polyamorous or incestuous marriages either.

If marriage is just “sexual-romantic companionship or domestic partnership,” then denying legal recognition to polyamorous or incestuous unions, which can fulfill that definition, is simply prejudice or animus — what’s sometimes called “the ick factor.” And we know what’s happened to the ick factor as the legal barriers to SSM have been swept aside.
This is only partly a matter of logic. It is at least as much a matter of psychology. Thus, if you deny there’s any principled reason to limit marriage to opposite sexes, it does not follow that you should deny there’s any principled reason to exclude polyamorous or incestuous unions. Logically, you could still have such a reason. Yet the secular candidates for such a reason, rarely cited to begin with, don’t seem nearly cogent and persuasive enough to stand athwart the march of freedom and equality yelling, “Stop!”

That is why the charge — “slippery-slope fallacy” — is itself fallacious in this context. True, it is not necessary, as a matter of deductive logic, that SSM proponents approve polyamorous or incestuous unions. But the basic premises of the movement and of the jurisprudence that has granted its greatest victory render current psychological and social resistance to such unions as rationally groundless as current defenses of traditional marriage now seem to SSM proponents. So it’s a good bet, from the standpoint of inductive logic, that the social and psychological barriers to legal recognition of polyamorous and incestuous unions as marriage will crumble — among, that is, those who see nothing wrong with same-sex marriage.
That does not mean that such unions will be as frequent or popular as traditional marriage. I doubt they will be, if only given the easily foreseen complications for those involved. But they will be more steps — possibly, among the final steps — toward the complete evacuation of marriage and its meaning. Such steps began decades ago with cheap, widespread contraception and no-fault divorce.

Our culture no longer has the spiritual or intellectual resources to reverse steps or prevent the next ones. And while that may not meet clinical definitions of insanity, its effects will be as though madness had taken over our entire society.

Freelance writer Michael Liccione earned his Ph.D. in philosophy from the University of Pennsylvania.

He has taught philosophy at a dozen Catholic and secular institutions and has served on the editorial staff of First Things.

Filed under antonin scalia, michael liccione, obergefell v. hodges