In the last two chapters, I spelled out why the kinds of arguments that opponents of plural marriage typically put forward are much weaker than they initially appear to be. As a result, the state's interests in not permitting plural marriage may not be important or compelling, which a heightened standard of review would require. These interests may not even be legitimate if they are rooted in moral disapproval or animus.Footnote 1 Just as the state must have an adequate constitutional rationale not to grant marriage licenses to same-sex couples, it also must have such a rationale for limiting marriages to couples. As I have tried to show, none of the reasons offered against plural marriage so far have crossed the threshold of a heightened standard of review. In this chapter, I go on the offensive and develop a “pro choice” position by articulating the significance of being able to select multiple marital partners.
When it comes to marriage, there ought to be no restrictions on numbers unless a multiperson marriage-like relationship is so complex that it becomes administratively unmanageable. In the last chapter, I explained why this objection is far from decisive. Every competent adult should be able to marry whomever he or she wants for whatever personal reasons he or she happens to have. When it comes to your own life, you are the expert. I show that marital choice is just as important as other kinds of personal choices the Supreme Court already protects from legislative encroachment, such as whether to use birth control, to have a child, to have consensual sex with another adult, or to end one's life.Footnote 2 All these matters tend to have a significant impact on the quality of human lives. True, not everyone would care about all of them all the time. Some rare individuals may not care about any of them. But the point is that most people would not be indifferent to being able to make such personal decisions and normally would prefer to have as much control over them as possible. As irrational or misguided as any personal decision may be, including the decision to marry, under existing constitutional doctrine, a strong presumption in favor of letting competent adults decide for themselves how they want to live exists. As Martha Nussbaum states: “Articulating and protecting … spheres of personal liberty has been a crucial task of our tradition of constitutional law.”Footnote 3 The more personal the decision is, the higher the likelihood the state cannot interfere with it. As I shall argue, that right of personal choice or autonomy includes the right to marry multiple persons simultaneously.
This chapter will be divided into four sections. First, in providing background, I shall discuss the fundamental rights of privacy and marriage. Second, I shall elaborate on the value of personal choice more generally and not limit myself to the ideas found in the American constitutional tradition. Third, I will articulate the idea of Millian experiments in living and defend the view that plural marriages can be seen as such experiments. Fourth, I will explicate the possible virtues of plural relationships. As much as possible, I try to avoid appealing to equal protection, which is a related but separate line of analysis, so I can explain how a constitutional argument for a right to plural marriage can stand on its own.
Because the concept of privacy is philosophically complex, I will restrict my discussion to what constitutional law scholars typically mean by “privacy.” Privacy includes information secrecy, modesty, seclusion, and decisional autonomy.Footnote 4 In what follows, I mean decisional autonomy or the ability to form, revise, and pursue one's conception of the good human life (and then act accordingly, which some philosophers would see as agency). In the 1980s, Robert Bork was probably the most vocal of the conservative critics of the constitutional right of privacy – laid down in Griswold – and used it as a prime example of what was supposed to be the most repugnant kind of liberal judicial lawmaking.Footnote 5 The U.S. Senate's rejection of his Supreme Court nomination more than twenty-five years ago indicates that many and perhaps most Americans then and now do not share his aversion to the judicially created right to privacy.Footnote 6 It is probably not uncommon for people to reject a constitutional right in the abstract but then be in favor of it in particular situations when they see its implications. During the hearings, Bork himself retreated from some of his more extreme constitutional positions in what was later dubbed a “confirmation conversion” to enhance his chances of being confirmed.Footnote 7 Bork's unsuccessful effort at distancing himself from views that most Americans still refuse to embrace is an aspect of the more general problem that haunts originalists who have the courage of their convictions: Many well-established constitutional rights we take for granted are not enumerated cannot be easily found in the original public meaning of the constitutional text.
The right to privacy is one of them. For example, a law that bans the sale, distribution, or use of contraceptives would be more than “uncommonly silly”; it would force sexually active couples who do not want children to risk a pregnancy or practice abstinence. As Nussbaum observes, one can acknowledge flaws in Justice Douglas's opinion yet still embrace the conclusion.Footnote 8 A constitution that permits the state to force a couple into this dilemma might not be a constitution that deserves our allegiance. After all, most of the time, couples have sex for reasons that are independent of procreation and many of them want to plan a pregnancy so they can raise their children when they are best prepared to do so financially, professionally, and emotionally. Americans always have and always will disagree about the scope of such a right in real cases, but that disagreement does not mean they completely reject the right and its rationale.
One has to wonder how controversial this right to privacy would be – whatever it is called – if it had not been the basis of Roe v. Wade. Even today, forty years after this decision, when most Americans think of the right to privacy, they immediately visualize abortion and all the controversy that comes with it. However, that does not have to be so, given that the Supreme Court articulated something like a right to privacy decades earlier when the unconstitutionality of laws banning abortion was not imminent. As early as 1928, Justice Louis Brandeis alludes to “the right to be let alone.”Footnote 9 In his famous dissent in Poe v. Ullman, Justice John Harlan writes “there is a realm of personal liberty which the government may not enter.”Footnote 10 In Casey, Justice Kennedy states: “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 life.”Footnote 11
Despite Justice Scalia's ridiculing these words as the “sweet mystery of life” passage, Kennedy's point cannot be ignored: The right to privacy encompasses far more than the right not to have the government violate the sanctity of one's home or to eavesdrop on one's private conversations. While the term privacy may be more trouble than it is worth these days, we are stuck with it; privacy captures the widely shared intuition that an essential part of human flourishing necessitates the freedom to try to achieve one's most important ends without unjustified interference by the state. A society like ours that is committed to protecting such freedom cannot be unconcerned with the reasoning for restricting such choice or simply defer to legislative judgments in such situations, as if it were self-evident that lawmakers can do whatever they like irrespective of its adverse effects on personal liberty. American constitutionalism will always be predicated on the belief that legislative majorities have a tendency to exceed their authority. While a commitment to constitutionalism does not have to take the form of American-style judicial review, Americans have become accustomed over time to delegating the power to determine constitutional limits in real cases to judges. Judicial restraint or deference should not be praised when the alternative – namely, judicial abdication – is worse. There is no point to giving the power of judicial review to judges if they rarely use it to check lawmakers who are hostile or indifferent to individual rights and refuse to protect discrete and insular minorities.
In the past, many legal academics equated the right to privacy with the right to personal choice or autonomy. As early as 1975, philosopher Judith Thomson contended that the constitutional right to privacy is more accurately described as a right to personal liberty.Footnote 12 In this section, then, in associating privacy with the broader concept of personal liberty, I am not breaking new ground.Footnote 13 Even though what I plan to say about its place in American constitutional law with respect to marital choice is bound to engender disagreement, nothing remotely interesting can be said about constitutional law or theory that is not subject to some controversy. At present, the vast majority of constitutional law scholars deny that the state must provide the option of a plural marriage on any constitutional ground. In the first chapter, I explained why my pro-choice position – despite its radical appearance – could someday become a new constitutional construction as public opinion evolves and lawmakers and judges become more receptive to new constitutional meanings. All constitutional positions, even the most familiar ones, were conceived at a particular time and place and gestated before they assumed their present-day form.
The trouble with constitutional law is that too often, people do not know what counts as a good constitutional argument.Footnote 14 For some experts, a particular constitutional position is untenable, whereas for others, that same position is more than tenable because it has adequate support. It is remarkable how often legal commentators assume the Constitution either did or did not dictate the result, as if it could not have been otherwise, especially when they do not see eye to eye on which sources advocates and judges may properly rely on and which interpretive methodology should be employed. These difficulties would continue to exist even if Americans did not care about outcomes in important cases. Moreover, no constitutional right is absolute and the question of its proper scope can cause not only sincere but also reasonable disagreement with respect to its application in particular cases. As a result, knowledgeable people can be expected to disagree about how certain constitutional principles ought to be understood under what John Rawls called “the burdens of judgment,” which are the sources of the intractable disagreement that exist in matters of political morality.Footnote 15
These burdens also affect constitutional cases, particularly hard ones, and the implication is that judges must exercise their own judgment when they must reach a decision by applying an abstract constitutional principle, such as freedom or equality, to a unique fact pattern. In this respect, judging in hard constitutional cases resembles applied ethics. The harder the case, the more likely such reasonable disagreement is to occur along a number of axes. Not all the cases as possible precedents in any area of constitutional law will be consistent with one another, which is one of the drawbacks of a common-law system. For example, it is hard to reconcile such decisions as Roe, Casey, and Lawrence, which underscore the role of personal choice in human flourishing, with a case like Glucksberg, where the Supreme Court denied that even a terminally ill person in excruciating pain has the constitutional right to physician-assisted suicide.Footnote 16
My impression is that almost everyone appreciates the importance of such choice to some degree and is hesitant to let legislative majorities make such decisions for him or her when the state's interest in denying choice is comparatively weak. Even some religious and cultural minorities that do not value autonomy still want the state to leave them alone so they can practice and preserve their nonautonomous way of life. While they do not describe themselves as liberals or admit to caring about the rights of others to be left alone, they have their own reasons for wanting freedom. When necessary, they will appeal to group autonomy and ask for exemptions, which is akin to saying they would prefer to follow a different set of rules than those the state has enacted for everyone else. They are demanding the right to live differently. In opposing personal choice in other situations, they will be disputing its limits because they believe that autonomy does not trump other countervailing values.
How one uses the term autonomy must be specified. As Thomas Hill writes: “Autonomy … is not the name of one single thing; it means quite different things to different people.”Footnote 17 A commitment to autonomy – or something like it – is not just found in the philosophical writings of Immanuel Kant, John Stuart Mill, John Rawls, and Joseph Raz. In my view, it is also a significant part of American constitutional doctrine and puts the onus on the state to establish that such choice, which should be the default, will not be allowed. Competent adults are supposed to be able to make up their own minds with respect to their most crucial personal decisions, including whom to marry and what their marriage is going to be like. More or less, that is already the status quo with respect to two-person marriages. This right to select a marital partner is imperative when it comes to intimate relationships because people do not converge on what they want the particulars of such relationships to be. They will have different expectations, different ideas about how they are supposed to interact, different understandings of how they will divide their respective workloads, and different views of how they will spend (or invest) their money and leisure time. I take it that apart from the obvious – discriminating against gays and lesbians and demeaning their relationships and lives – the trouble with the family values movement is that it is premised on the idea that a certain kind of family is most appropriate for everyone.
The principle of autonomy found in our constitutional tradition is also connected to the idea of liberal neutrality in which the state is not supposed to act on perfectionist reasons in advancing particular conceptions of the good. A neutral state can provide only a framework of social justice in which political and legal equals are left to choose their morally permissible ends. As Jonathan Quong writes, “… the government should remain neutral [his emphasis] on the issue of the good life, and restrict itself to establishing the fair terms within which citizens can pursue their own beliefs about what gives value to their lives.”Footnote 18 This approach is recognizably Rawlsian and reflects the belief that the American constitutional tradition – properly understood – is antiperfectionist in some important respects. As a result, the state must let competent adults decide for themselves how they want to live when their decisions are sufficiently self-regarding.
The point is not only that our constitutional practice incorporates a commitment to autonomy but also that such an understanding makes the best normative sense of that practice, even though some scholars would dispute that claim. People should be the authors of their own lives and pursue the ends they most value – whatever they happen to be – and be able to experiment to see what works best for them. At present, Americans have little marital choice. If they had more choice, they might think and act more unconventionally and have different priorities. They might begin to be more realistic about what they can expect from other people, to learn that love never is unconditional, and to appreciate other kinds of intimacy and activities. Historically, marital norms have been oppressive. Today, they are less likely to foster patriarchy and heterosexism, but they are still easily internalized and therefore shape people's thinking, sometimes for the worse, about what they want their lives to be like. In a society characterized by “compulsory monogamy,” one might wonder how voluntary the choice to marry only one person at a time really is.Footnote 19
In the name of marital freedom, then, the state should not be enacting laws that reinforce already well-established marital norms that push people in a particular normative direction when they should be able to choose the kind of marriage they want to have because even if we did not care about respecting their autonomy, the individual outcomes – namely, personal happiness or satisfaction – may be superior. Their personal reasons are their own and should not be subject to further examination. A constitutional right, can be seen in the following manner: Whatever your personal reasons are for wanting to have an abortion, end your life, worship god(s), speak your mind on political topics, raise your children in a particular manner, or be sexually intimate with another consenting adult, they are legally irrelevant. The state cannot second-guess whatever decision you make – no matter how poorly informed or poorly reasoned it was; its (de)merits are beside the point. The state can only step in to limit that right when its exercise harms others or unreasonably puts them at risk.
That freedom enables competent adults to formulate and then pursue their respective life plans, with personal risks and rewards. There is something characteristically American about not wanting to be told what to do and being able to choose, even when exercising such judgment leads to worse outcomes. While antigovernment Libertarians work with an impoverished conception of personal liberty – they tend to be too preoccupied with the government's power to take away choices and do not fully appreciate how other sources of power, such as market mechanisms, can have the same effect – classical and egalitarian liberals share a commitment to helping people have as much control as possible over their own lives. Without that kind of control, they are less likely to flourish or even have a decent life.
True, it may be hard to fathom why anyone would choose a plural marriage. Samuel Rickless worries about how much emotional intimacy could exist among multiple persons.Footnote 20 I would be interested in knowing (and trying to measure) how much of such intimacy actually exists in real monogamous marriages given the inherent difficulties of trying to share your life with someone else and making yourself emotionally vulnerable. Almost every episode of Big Love and Sister Wives contains scenes that display the trials and tribulations of a four-person polygynous “marriage.” Many married couples do not have the time or the energy to work through their own problems to achieve the intimacy that makes a higher-quality marriage possible. But that point about why anyone would do this or that is equally applicable to many of the most important personal choices all of us make every day. Some people may believe a plural marriage to be a religious duty. Others may find such a marriage to be more emotionally fulfilling or sexually exciting. Others may see such marriage as a vehicle of self-development. Others may believe such marriage to enable taking better care of children, the elderly, or other dependents. Whether such personal reasons are compelling depends on the ends the individuals in question happen to share and find worthwhile. Respecting personal choice in this context is imperative; marriage is not just a means to an end but may be an end in itself or at least a key component of a particular life plan. The more modular marriage is, the more people will be able to customize their marital relationship so it meets their unique needs and satisfies their particular desires – no matter how idiosyncratic they may be. They will also have more flexibility to adapt to new circumstances. At bottom, the meaning of marriage ought to be left to those most directly affected by it.
For intimate relationships, then, one size does not fit all and it is unlikely that such relationships can ever be closely regulated without the state's unreasonably interfering with the personal freedom of those who think and act differently and may want to experiment. That is one of the points I tried to drive home in the second chapter by deconstructing the argument from gender inequality. We can generalize about human beings and why they need certain basic primary goods, such as education, health care, and adequate income, to have decent lives. For such a political philosopher as John Rawls, the purpose of the state's providing such goods is to ensure that all persons – regardless of their luck – have the resources they need to increase the chances they will flourish – whatever their conception of the good happens to be. Beyond having at least the minimum resources, they often have very different needs, desires, and expectations in what they are looking for in intimate partners and what they want their intimate relationships to be like. Their feelings about them change over time and each marriage will have different dynamics because people have different personalities and behavioral dispositions. Some couples will complement each other perfectly, whereas other couples will bring out the worst in each other and make their lives miserable. The point is not only that some marriages will be much happier and much healthier than others but also that each marriage tends to have highs and lows and it is nearly impossible to predict its quality in the midst of so many variables. Even when people are compatible, no one can know with anything resembling certainty that circumstances will not change how they interact with and feel about each other.
Most Americans have such a hard time grasping the very idea of an arranged marriage between adults, which is common in some cultures, because they cannot fathom not going through the process of selecting a partner themselves. In their eyes, the problem with such a marriage is not so much that two people in question could not possibly come to love each other when they live together and act as spouses. Rather, the process of getting to know each other and determining whether they are compatible seems rushed, impersonal, and too important to leave in the hands of third parties,. Even eHarmony lets its members make their own decisions; its matchmaking ends at introducing people who are supposed to be best suited for each other based on its own compatibility criteria. The Internet dating industry has grown dramatically and at least part of its appeal has to do with the extent to which members can specify what they are looking for in a prospective partner: wealth, physical appearance, personality, religion, age, sexual orientation, lifestyles, values, political beliefs, goals, hobbies, and interests. I suspect the concern about arranged marriages is less about the likely outcome – after all, an experienced matchmaker or computer software might be more proficient – and more about the couple's not being nearly as actively involved as they should be in the process. One never finds everything one is looking for in a significant other – trade-offs are unavoidable – but at least when one can select one's own partner, one has directly participated, which in itself should not be undervalued. Additionally, the likelihood increases that one has found someone who shares some of one's eccentricities and aspirations – that is, the things that make us the people we are. Understood in this manner, it is hard to imagine anything that could be more personal than the decision to become involved in an intimate relationship or to marry. It may be hard to fit Harold and Maude's fictional intimate relationship into one's view of how the world is supposed to be, but that does not excuse those in more socially accepted relationships from being close-minded and acting intolerantly on the (false) assumption that what they happen to value is universal.
In the past, states have imposed few restrictions on marriage. Under their police powers – with rare exceptions – states can do just about whatever they want to do with marriage, including (probably) abolishing it.Footnote 21 As noted, some of those restrictions, such as those based on race, are no longer morally or constitutionally acceptable. Typically, the state suspends judgment about the personal reasons competent adults (or, in some states, minors with parental permission) have to marry only one person. The decision is simply left up to the individuals to decide whether they want to enter into such a legal relationship with its accompanying benefits and burdens. As one commentator observes: “The law determines who is eligible for marriage … but it says almost nothing about what marriage itself consists in; it is a contract without content. The law prescribes no behaviors, not even sexual consummation, that must be exhibited in order to marry or stay married. It dictates no requirements for the living arrangements of married people.”Footnote 22
The double standard, in which the law treats monogamy so much more favorably, is increasingly hard to defend in the wake of the increased marital freedom that legal recognition of same-sex marriage in a growing number of states has produced. If the standard justification for denying the option of polygynous marriage is that a woman could not possibly have an intelligible reason for selecting it, then what about the long and disheartening list of poor reasons that some and perhaps many or even most couples have for marrying? Why are those reasons not also subject to such skepticism? That is not to say that the decision to marry or enter into an intimate relationship is to ever be taken lightly. Anyone who rushes into matrimony can expect criticism from his or her family and friends because the expectation is that (a) the couple has taken enough time to get to know each other well enough to determine whether they are sufficiently compatible and (b) each of them has given the matter much more than a moment's thought. Normally, the decision to wed is not simply another lifestyle choice for those who believe their lives would go better if they were married or want the state and society to acknowledge their intimate relationship.
In contemporary America, without question, marriage is not just another social institution and it is unlikely that this state of affairs is going to change anytime soon given the extent to which most Americans continue to put marriage on a pedestal. Despite all the talk about the breakdown of marriage in America, the push for same-sex marriage or marriage equality seems to reaffirm why most Americans value the institution and want the state to remain involved with it even in the midst of decreasing marriage rates. The existence of a menu of marital options would make marriage more voluntary, encourage people to be more thoughtful, and may ultimately strengthen the institution. It is hard to imagine that Americans will ever be antimarriage in the sense they would not marry under any circumstances. As Susan Moller Okin once observed: “Marriage has a long history, and we live in its shadow.”Footnote 23 If you do not think marital choice is important, imagine a society where at a certain age, men and women have to register for the marriage draft and the state arranges marriages based on eHarmony or Match.com compatibility criteria. There are at least a few serious reasons to oppose such a proposal, but one of them regards how almost all of us would prefer to make such marital choices for ourselves, even if we know we would not choose wisely based on poor personal choices in the past and even if such paternalism on the part of the state would produce better consequences, such as creating higher-quality marriages and decreasing the rate of divorce (assuming that is a good consequence).
Not everyone believes that autonomy is all it is cracked up to be. Different kinds of utilitarians are notorious for finding room for the values of autonomy or agency but only as a means to the end of producing good consequences, which can be defined differently. Recently, Sarah Conly offers a qualified defense of coercive paternalism on the part of the state with respect to people's means and not their ends.Footnote 24 Her position is consequentialist – she asks whether the benefits of state involvement outweigh the costs – and is premised on the probably accurate assumption (based on recent research in social psychology and behavioral economics) that almost all people make cognitive errors that impair their instrumental reasoning. This is not the time nor the place to go into any detail about objections to her provocative position, but even someone as sympathetic to paternalist justifications of the exercise of political power as Conly is still distinguishes between means and ends. When it comes to ultimate ends, she is as subjectivist as the most antiperfectionist liberals because people have different payoffs.
This belief in leaving well enough alone when possible is a standard liberal response to the kind of moral pluralism that characterizes contemporary liberal democracies. Under such conditions, reasonable people will have different conceptions of what is most valuable in human life, will want to act in accordance with these conceptions, and will understandably demand the right to do so. That presupposes, following Mill, that they are in a much better position than lawmakers are to know what is best for them. They may not have expertise, but they are better qualified to exercise the judgment that the situation calls for. Later, some of them may have regrets, but under conditions of uncertainty, that possibility is unavoidable. At least they cannot say they were forced to do something they did not really want to do; that may induce them to take more responsibility, as they are “experts” when it comes to their own lives. Although this presupposition about their expertise with respect to their own lives may be false, as Conly argues, it underlies some of the Supreme Court's most important fundamental rights decisions. As a result, unlike moral philosophers, constitutional law scholars are not free to overlook the extent to which people have a constitutional right to make personal decisions, even if they do so incompetently. Adults are assumed to have the right to not only choose their ends but to also decide the means to those ends without undue involvement by the state, leaving aside the potentially vexing issue of when the particular behavior in question counts as a means to an end and not an end in itself. It is hard to read the American constitutional tradition in any other way without distorting it beyond recognition.
Whatever one thinks about the legitimacy of Roe v. Wade or the privacy rationale that underlies Justice Harry Blackmun's majority opinion, it would be disingenuous to deny that the decision to have a child is not one of the most personal of personal decisions a woman could possibly make.Footnote 25 In his plurality opinion in Casey, Justice Kennedy emphasizes that abortion is not simply about terminating the life of a fetus.Footnote 26 Even if the constitutional right to terminate the life of a fetus prior to its viability had nothing to do with gender equality – envision a world in which child care did not actually disproportionately impact women – some people would continue to believe it would be imperative to protect such a choice. Unlike, say, feeding stray cats or deciding to plant tomatoes in the backyard, having a child invariably has serious consequences; it can never be a trivial decision for a human being.
These comments are not designed to settle the abortion controversy or even take sides but instead to call attention to why many people believe that ultimately, the decision is the individual woman's and not the state's. Justice Ginsburg criticizes the rationale of Roe, favoring equal protection grounds.Footnote 27 Regardless of its constitutional justification and whether the privacy rationale caused a backlash, which is debatable, what makes the abortion question so complicated concerns the moral status of the nonviable fetus. In one way or another, one's view of that status will reflect how one understands the moral criteria of personhood. If abortion really is infanticide or the killing of the innocent, then those who are pro-choice would have to reconsider their position.Footnote 28
Although I doubt most opponents of abortion really believe that nonviable fetuses are persons with a prima facie right not to be killed in the sense of unconditionally approving of the prosecution of women for homicide, the message I am trying to get across is that the importance of such personal freedom is not confined to the context of abortion. The vast majority of Americans do not think that consensual same sex between adults should be a crime.Footnote 29 This fact reflects their willingness to permit such sexual conduct even when many of them continue to believe that such behavior is sinful. This kind of tolerance is remarkable in a society that has discriminated against sexual minorities in so many ways for so long. Almost thirty years ago, in Bowers v. Hardwick, the Supreme Court not only allowed states to criminalize consensual same-sex sex between adults, but it also permitted them to impose harsh sentences.Footnote 30 This growing tolerance comes from greater familiarity with sexual minorities and a Libertarian spirit of “live and let live” in which more and more people do not believe that mere moral disapproval is a sufficient reason to make a particular activity illegal.Footnote 31
In the context of end-of-life decisions, in Cruzan, the Supreme Court recognized a right to refuse medical care.Footnote 32 In 1996, two U.S. Courts of Appeal extended this right to physician-assisted suicide.Footnote 33 By contrast, in Washington v. Glucksberg, the Supreme Court rejected the extension of this right beyond refusing artificial nutrition and hydration.Footnote 34 As Erwin Chemerinsky notes, this decision still “left open doors to future legal protection of a right to physician-assisted death.”Footnote 35 In the future, the Supreme Court may change its mind or state legislatures may jump into the fray, as that of Oregon did, and protect this right. To defend such a right is to take the view that one's personal reasons trump other considerations; that is, if one really wants to die, then as long as safeguards are in place to ensure the decision is informed and fully voluntary, it would seem to follow that he or she should be able to proceed accordingly. If someone were in chronic, unbearable pain and had a terminal illness, was paralyzed from the neck down, or was in a coma with no chance of recovery, his or her reasons for wanting to end his or her life would be intelligible. Unless one believes that life is sacred, which usually reflects a religious viewpoint, and that suicide is never morally acceptable, most of us can imagine a person's having good reasons in some circumstances to want to die. The only remaining issue would be what kinds of safeguards ought to be in place.
Constitutionally, then, it is a mistake to conceptualize the right of privacy too narrowly, seeing it only as a right to engage in sexual activities or other behaviors that occur in a particular space, such as that of one's home. In protecting alternative lifestyles, one does not have to be worried only about sexual freedom or reproductive autonomy inasmuch as most human beings also value other kinds of intimacy. To reduce a marriage to sex acts or procreation is to leave out everything else that remains so important to most Americans and makes us the individuals we are. Even NNL thinkers, as noted in the last chapter, do not crudely reduce marriage to something merely biological. Many people already have premarital sex and reproduce without being married. One of the main reasons for being concerned with sexuality or reproduction is that just about everyone cares about these aspects of their lives. The aim is not to protect difference per se – after all, not all difference is morally unobjectionable, especially when others are being harmed or unreasonably being put at risk of such harm – but to acknowledge how much all of us want the ability to make the most personal of personal choices, even when our exercising of our autonomous capacities does not result in a better state of affairs.
There is vast philosophical literature on the concept of autonomy and I shall not attempt to survey it here. Still, I would like to point out before proceeding that philosophers are not in agreement when it comes to specifying autonomy's meaning or its role in human flourishing. Unlike Joseph Raz, I do not believe that autonomy only has value when intrinsic goods are chosen.Footnote 36 Unlike Robert Paul Wolff, I do not believe that an autonomous choice always includes almost full information, deep contemplation, and careful review of the arguments for and against each possible course of action.Footnote 37 For constitutional purposes, what I mean by “autonomy” is the freedom to make personal choices – regardless of how informed or thoughtful the person making the decision is, which I believe is consistent with the definition that emerges from a defensible interpretation of the relevant constitutional doctrine. By this standard, almost all personal decisions are at least minimally autonomous and must be respected. Presumably, measured against an ideal standard, most real human choices fall far short. As Steven Lecce puts it: “Personal autonomy is not all of nothing … but rather a matter of degree.”Footnote 38
Ideally, most people would desire to be well above the threshold. Such a right involves being given as much discretion as possible to make one's own decisions with respect to how one forms and revises a conception of the good – whatever it happens to be – and to live accordingly, provided that the resulting behavior does not unreasonably interfere with the equally important right of others to do likewise. After all, their lives count equally. The more important the choice is in terms of that life plan, the more the state should be inclined to defer to that individual's judgment. Philosophically, then, when it comes to defining autonomy, I prefer as minimalist a conception as possible in the midst of moral pluralism, where people in a free society will not only sincerely and reasonably disagree about the nature of a good human life but perhaps also about the fundamentals of social justice. However, what they can agree on – at least in the abstract – is that for the most part, people should be able to decide for themselves about the kinds of lives they want to have without unnecessary interference by the state. For Joel Feinberg, “the life that a person threatens by his own rashness is after all his [his emphasis] life; it belongs to him [his emphasis] and to no one else. For that reason alone, he must be the one to decide – for better or for worse – what is to be done with it. …”Footnote 39
Like Laurence Tribe, one can read Lawrence v. Texas as creating a broad constitutional right of autonomy.Footnote 40 What follows from this commitment to personal autonomy is a constitutional version of antiperfectionism or neutrality on the part of the state. I am not going to defend such neutrality here, which would take an entire book and already has been defended effectively (in my view) by Steven Lecce and Jonathan Quong.Footnote 41 I take up the constitutional implications of such neutrality with respect to marriage in the last chapter. Alternatively, my assumption is that something like a neutrality requirement exists in the American constitutional tradition when it comes to fundamental rights, equal protection, free speech, and religion.Footnote 42 The conception of autonomy that such a perfectionist liberal as Raz develops and defends in The Morality of Freedom does not accurately (nor is meant to) reflect what the Supreme Court has said about autonomy in many important constitutional cases. In other words, the constitutional right to autonomy – what one can believe, say, or do – has never been and never should be contingent on choosing wisely.
Furthermore, Raz's conception is not practical inasmuch as no real state could promote such a rich conception of autonomy in the midst of the kind of deep moral pluralism that characterizes contemporary America. Rawls has come under fire from those believe his political liberalism is unfair to those who are religious and it is hard to fathom what they would have to say about Raz's liberal perfectionism, which would not leave nearly as much room for difference when the state is supposed to encourage valid and discourage invalid conceptions of the good.Footnote 43 Indeed, Raz himself expresses a similar reservation about the realization of more ideal forms of freedom at the very end of his famous book.Footnote 44 Ideal Theory has its place, no doubt, but I have never understood how more ambitious liberal perfectionist theories, which want the state to promote autonomous lives, are supposed to be implemented in the nonideal conditions that characterize morally pluralistic liberal democracies. At the center of constitutional theory lies the intersection of normative political theory and constitutional practice.
In Rawlsian terminology, many unquestionably unreasonable people are members of our society and their lives cannot be dismissed. As such, they must be treated fairly, which means that as much as possible, their personal decisions should not be infringed on. I believe it is a grave error to overlook unreasonable people and what is owed to them, as if they only exist on the periphery. After all, most people are probably unreasonable in one way or another. Also, there are unreasonable people (those who seek to harm others or interfere in their lives without sufficient justification) and there are unreasonable people who have lives that are not particularly autonomous – no matter how expansively “autonomous” is defined. Their way of life will often be rooted in particular religious and cultural traditions that may not have freedom and equality at their cores. To try to force a richly autonomous life on them is to invite serious and unnecessary conflict. It is also mistaken to overestimate how autonomous many Americans really are just because they live in a liberal society. At the end of the day, the greatest advantage of antiperfectionist political liberalism as a political theory is that it can accommodate a much wider range of ways of life than any of the alternatives and thereby allow us to live together in peace and aspire to something like a well-ordered society even when we will never come close to converging on a shared conception of the good life.
Theoretically, much can be said in favor of thicker conceptions of autonomy and the liberal perfectionism that follows from it. The truth is that I am sympathetic to the project that such perfectionist liberals as Raz have engaged in but doubt its practically under conditions of moral pluralism, worry about how we could ever know what would constitute the human good with any degree of confidence, and call into question its constitutional relevance at least for the time being. It would seem to follow from the premise that an autonomous life really is the best form of human life that the state should not only be able to promote that form of life but also discourage other less worthwhile kinds of lives in the process. Perhaps the simplest and most compelling way of conceptualizing American constitutionalism from a normative standpoint is to see that its overarching purpose as creating space for individual decisions and the behaviors that follow from them do not need to be left to legislative majorities. In practice, though, conditions of moral pluralism render such perfectionist liberalism ill-suited for a society that is so diverse, still is quite religious, and remains so deeply divided over so many questions of political morality. Even if it were more practical, for constitutional purposes, the bar cannot be set too high for real persons. At some point, political and legal theorists have to take them as they are (and what they value) and not as they would like them to be (and what perfectionist liberals wish they would value). One does not have to be cynical about human nature to appreciate that any normative political or constitutional theory worthy of serious consideration cannot make unrealistic assumptions about human beings and their inherent limitations even under the best of conditions.
Allowing the exercise of such autonomy may lead to personal choices that are foolish, self-destructive, or bizarre, but their having such unfortunate qualities does not mean the state may deny such personal choice on that ground alone. For example, as evidenced by the high divorce rate, for many persons – particularly younger ones – the decision to marry is probably flawed – unless one sees it as a learning experience and thus an opportunity for personal growth. It would probably not be a terrible idea to regulate childbearing and childrearing more strictly if one is mainly concerned about outcomes. It might even be defensible to set the minimum age for a marriage license at thirty, when more people are financially stable and mature enough to undertake the responsibilities that marriage demands. Even if the state could identify proven risk factors as part of its criteria in determining whether to issue a marriage license, it would be constitutionally unthinkable. The Constitution does not require the decision to have a child or marry to be wise or minimally informed. With respect to monogamous marriage, neither person has to reflect carefully about forming a marital relationship. In fact, they do not have to put any serious time or effort into the decision and may later regret it. At most, the state could probably encourage them to do so by providing financial incentives, such as tax credits, to take a course. Constitutionally, it remains unclear when a regulation is so strict – such as mandatory, extensive premarital counseling – that it amounts to an infringement on the right to marry.
A deeply personal choice, then, is normally considered to be at least minimally autonomous, even if it were easier somehow than it normally is for the state to evaluate the quality of the decision making. Under the law, competent adults are treated as if what they decide to do is to be permitted and that does not involve a judgment by the state about the merits of their decision. Even if it were possible for philosophers to come up with a robust conception of autonomy and agree on its essentials, it still would be nearly impossible for the state to ascertain how autonomous each decision to marry actually is. Legal theorists cannot overlook such practical considerations. And if that were not enough, to trust the state to do so competently and fairly would be an exercise in wishful thinking. If personal choice were not so important, then the state might be able to compel women to have abortions or force fathers to marry the mothers of their children to avoid the possible disadvantages of single motherhood. The state may not interfere with their private lives even with the best of intentions. Nor would such interference be warranted even in situations where such interference would produce overall good consequences (say, fewer unwanted children and fewer unhappy marriages and nasty divorces).
Why, then, should marital choice be restricted to only one partner at a time? After all, under the status quo, we let people choose whom they want to marry, even if such a marriage is probably doomed to failure, as if it were part of the plot of a Shakespearean tragedy. The decision to marry is probably one of the most important decisions many people will ever make – about half of them more than once – because their marital arrangement affects all aspects of their lives – from their living arrangements to their career decisions. In terms of constitutional neutrality, the state should not promote a particular view of marriage on the grounds that such an intimate relationship is better than the alternatives because (a) people are different and consequently flourish in different ways; (b) flexibility can be beneficial when circumstances and personal feelings change; and (c) they have a right to make such choices – for better or for worse. One of the lessons from the debate over the constitutionality of laws that limit the right to marriage to opposite-sex couples is that the state may not do so to foster a particular conception of marriage at the expense of other potentially valuable conceptions. That is why those who have vociferously opposed same-sex marriage have gone out of their way to fall back on rationales that ostensibly do not implicate judgments about which lives are best, such as the state's purported (and almost silly) interest in promoting responsible procreation. Those who oppose same-sex marriage continue to conceal their real reasons for their opposition, which are often linked to their moral disapproval of homosexuality, which in turn can usually be traced to their religious convictions. The other less obvious and more controversial implication is that the state should leave the marriage business.Footnote 45
One way to understand a constitutional requirement of neutrality more generally is that the state must respect the freedom and equality of all adults and sincere and reasonable disagreement in important constitutional cases frequently stems from what these values are supposed to mean in the twenty-first century. In my view, the decision to marry implicates both of these values. Lawrence v. Texas can be read as standing for a prima facie right of freedom of choice in personal matters.Footnote 46 As Sunstein notes, this decision means that in discerning which rights are fundamental, tradition is not always determinative.Footnote 47 Ultimately, Lawrence may serve as precedent for a constitutional right to plural marriage.Footnote 48 American constitutional practice strongly suggests that when the timing is right, judges have little trouble reinterpreting past judicial decisions to find support for the constitutional conclusion that they want to reach. The line of argumentation would be that competent adults are better equipped than anyone else is to decide what is best for them in selecting marital partners. Without this assumption more generally, it is hard to make sense of the constitutional doctrine of substantive due process that engendered so many cherished U.S. Supreme Court decisions.
That is not to say that everyone would subscribe to that bold claim. Even when one disputes the constitutional concept of autonomy I advance and prefers letting the state act for paternalistic reasons, that preference still has to be articulated and defended. Judicially, such a preference is usually considered to be a conservative position, as expressed in Washington v. Glucksberg, where the Supreme Court rejected the right to physician-assisted suicide.Footnote 49 This constitutional principle of respecting personal choice is sufficiently well established to be used as the basis of a constitutional right to plural marriage. As such, the state may have a prima facie obligation to respect each person's decision to marry one or more persons for whatever personal reasons he or she happens to have. At the very least, that view is more plausible than it may initially seem. Here, let me remind readers that constitutional understandings are not static; all of them can and some of them do change dramatically over time. Even though the structural parts of our Constitution seem impervious to social forces, so much of the Constitution-in-practice lies outside of the constitutional text and original public meanings.
Constitutionally, that people exercise their autonomy or freedom of choice poorly with respect to their means and ends is neither here nor there; it may be sad they make the personal choices they do, but that possibility or even likelihood does not warrant the state's interfering with the most important aspects of people's private lives unless compelling reasons for such interference exist – and “compelling” does not mean any reason the state happens to come up with. The rationale for intervention cannot be the poor quality of the decision-making process or the likely outcome of the choice, as I have explained earlier. Under the status quo, even when many individuals make bad choices regarding whom to marry and later have second thoughts, the state does not intervene. The mere possibility of future regrets does not warrant the infringement of the right to choose to marry even the worst possible partner for that person. The state could not subject those who want to marry to background checks or psychological evaluations, as if they were purchasing a handgun, to identify marriages that are more likely to be dysfunctional or are at a greater risk of failing. Nor is there a legal limit on how many times people can marry or divorce or how many children they may have, even when they have criminal records, diagnosed psychological disorders, substance abuse problems or other addictions, have anger management issues or a history of violence, are insolvent, or are delinquent on child or spousal support payments. They are free to make the same bad choices over and over again.
A high divorce rate indicates that many couples eventually realize they cannot continue to live together and would prefer to be single or look for another partner. Even if they do not divorce, a married couple may stay together for the wrong reasons and be anything but happy. Being together fifty years does not necessarily reflect marital bliss. Like it or not, with respect to monogamous marriage, as far as the state is concerned, adults are left to reap the benefits or to suffer the consequences. These days, marriage law for couples is laissez-faire with respect to their “internal marriage.”Footnote 50 It tells the couple very little about how they are supposed to interact with each other. They do not have to live together, pool their finances, cooperate, treat each other nicely, or love each other; basically, they only must refrain from harming each other. Within such a minimally regulated monogamous marriage, “individuals are free to create a variety of meanings of marriage for themselves.”Footnote 51 For the most part, the state is indifferent to its quality. Why, then, is marital choice so limited when it comes to marrying more than one person at the same time or marrying someone who is already married to someone else? The decision to enter into such a marital relationship may turn out to be wonderful, terrible, or somewhere in between the two extremes, but the likely outcome is hard to predict without a crystal ball.
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own conception of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.Footnote 53
In Lawrence, Kennedy cites this passage to support his belief that the Constitution protects a fundamental right to not only make deeply personal decisions but to also live according to them. To view Lawrence as a case merely about same-sex sex or sexual activity more generally is to miss its deeper meaning: why we value the freedom to select our intimate partners in forming the kinds of personal relationships we find most worthwhile. If Texas had made friendships between gay persons illegal, then even if such friendships were platonic, many of us would still conclude that such a law violates the constitutional principle of individual autonomy without adequate justification.
From this perspective, Bowers is wrongly decided not so much because a state could criminalize certain kinds of consensual sex acts but because it denies a competent adult sovereignty over crucial aspects of his or her life. As I mentioned earlier, it is important to distinguish between criminalizing the practice of plural marriage and the state's refusal to include such relationships in its definition of civil marriage. Kennedy draws this distinction in Lawrence.Footnote 54 The former would seem to require even more justification than the latter because before the Supreme Court's decision, a person could be prosecuted for violating the Texas statute and deprived of his or her freedom. Even if criminalization did not require additional justification, though, in his dissent in Lawrence, Justice Scalia fails to distinguish between them. Additionally, he insinuates that the right to autonomy articulated by Justice Kennedy in his majority opinion might force the state to recognize bigamy. The failure on Scalia's part to recognize such a distinction weakens the slippery slope argument that the judicial invalidation of laws that ban consensual same-sex sex between adults will invariably lead to a constitutional right to plural marriage. Because there may be relevant differences between the two situations, one may be able to draw a principled distinction between them.
A closer examination of Lawrence reveals that the Supreme Court did not explicitly equate a privacy right to engage in same-sex sexual intercourse with same-sex or plural marriage. For Kennedy, this case “does not involve whether government must give formal recognition to any relationship that homosexual persons seek to enter.”Footnote 55 As he later explains, the constitutional concern that arises in this case is that in the eyes of the law, those who engaged in such sex acts were criminals.Footnote 56 For Justice Sandra O'Connor, a rational basis for prohibiting same-sex marriage still may exist.Footnote 57 On the other hand, Scalia has a point: It is not unreasonable to identify the implications that the justices themselves may not have seen (or may not have said out loud to avoid provoking controversy). After all, when it comes to public opinion about same-sex marriage, 2003 is not 2015. At the end of the day, Scalia may be right – for the wrong reasons – in linking what the Supreme Court said in Lawrence to the future meaning of marriage. Kennedy begins his majority opinion in Lawrence by writing that “[f]reedom extends beyond spatial bounds” and speaking of the “transcendent dimensions” of liberty.Footnote 58 That is language that invites interpreters to expand the constitutional right of autonomy and it is hard to believe that Kennedy was unaware that what he had said could be taken in different directions under different circumstances. Shortly thereafter, he refers to such well-known substantive due process cases as Pierce, Meyer, Griswold, Eisenstadt, and Roe.Footnote 59 In fairness, then, Scalia cannot be labeled an alarmist, particularly when Kennedy may have intimated a much broader right to autonomy and judges will have to construe the holding of the case and apply it to unforeseeable fact patterns. No one can know with any certainty what a precedent may come to mean in the future or what outcome in a new case it may ultimately support.
That said, Scalia's view could be more nuanced. The first step to distinguishing the privacy right recognized in Lawrence from a right to plural marriage would be to see that there may be plausible or even compelling reasons to justify a ban on plural marriages that simply do not support keeping same-sex sex acts illegal. Lawrence can be reasonably construed as standing for a presumption in favor of freedom of choice in the most important aspects of people's private lives.Footnote 60 The state can no longer rely on its purported interest in preserving public morality without providing additional (and better) reasons for prohibition, but the Supreme Court does not specify which reasons would suffice.Footnote 61 As one commentator writes, Lawrence not only “remove[d] one huge roadblock” to same-sex marriage, but it also may have laid the groundwork for a more Libertarian understanding of the extent to which the state may not restrict options when it comes to deeply personal decisions.Footnote 62
Today, a law that made interracial marriage a crime would be undeniably unconstitutional.Footnote 63 A law that made interracial cohabitation a crime would also be characterized as such and banning other sorts of cohabitation between consenting adults would be – at the very least – constitutionally suspect.Footnote 64 Those constitutional facts imply that it may not be as easy as it used to be to interfere with people's private lives by limiting their choice of marriage partners. True, one could believe a state could not criminalize a consensual living arrangement without recognizing it as a marriage-like status. Whether states may make polygamy illegal is a separate (but related) question from whether states must treat a plural marriage as if it were a monogamous marriage; the sorts of reasons the state would adduce to defend such a law are also relevant in the second situation.
At the same time, we now live in a post-Lawrence world, and in terms of human psychology at least, it seems that as time passes, more people will become more accustomed to defining marriage less narrowly when the Supreme Court refuses to permit the state to restrict freedom on the basis of traditional morality. Mere moral disapproval of same-sex consensual sex no longer suffices to make that act a crime from the standpoint of the Constitution and in the eyes of most Americans. Instead, the rationale for such a law will have to be more compelling than the purported sinfulness of the behavior in question or the moral distress that that behavior may cause others when nobody is being directly harmed.Footnote 65 The privacy rationale of Lawrence is less controversial than it used to be and the notion that the state should not interfere in people's most important personal choices is no longer limited to the question of whether the state may criminalize certain sorts of activities.
The constitutional right to marriage does not appear in the constitutional text, but it is well established in case law and only the most fanatical of originalists would take the opposite view. As the Supreme Court stated in 1974: “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”Footnote 66 However, knowledgeable people sincerely and reasonably disagree about its scope; they do not always converge on the rationale for the constitutionality of certain restrictions.Footnote 67 The constitutional right to marriage – unlike most other fundamental rights – is a positive right; it does not ask the state to refrain from doing something but rather places an affirmative duty on the state to provide a status.Footnote 68 States can decide some of its eligibility requirements and which material benefits or legal privileges – if any – to attach to it.Footnote 69
Although the U.S. Supreme Court refused to hear this case on appeal, the Utah Supreme Court directly addressed the issue in Holm of whether polygamy can be a crime. Rodney Holm was convicted of violating an antibigamy statute despite raising a number of claims under the U.S. Constitution, including free exercise of religion, substantive due process, overbreadth, freedom of association, and equal protection.Footnote 70 The Utah Supreme Court ruled that “Holm misconstrues the breadth of the Lawrence opinion” and concluded that it is “actually quite narrow.”Footnote 71 According to its opinion, that court had no other choice but to read the decision as narrowly as possible and in doing so distinguish the fact pattern of Holm's case. Unlike Lawrence, this case involves “marriage” and a minor.Footnote 72
To be in favor of the decriminalization of polygamy is certainly not to be in favor of a brave new marital world in which anything goes and the state condones child brides, lost boys, or other serious crimes. At the outset, we would be equally concerned if Holm had only “married” one minor. The harm, which the Utah penal code covers, concerns the state's interest in preventing minors from making decisions they are not sufficiently prepared to make and subsequently being exploited or harmed. The rationale of Holm parallels that of statutory rape laws that take into account differences in power and the greater likelihood of immaturity on the part of the person who is too young to consent legally (and also too young to form a valid marital contract). If a minor had not been involved, then Holm would probably not have been prosecuted in the first place. Even if he had been prosecuted, the result on appeal would probably have been different because a minor's involvement was a material fact of the holding. It is not terribly difficult to see why the state's interest in protecting minors is much stronger than its interest in saving competent adults from themselves. Lawrence is about consenting adults and not minors. This kind of narrow reading is not obviously wrong, but it fails to capture the spirit of the opinion, which as I explained earlier is about having the right to make the most personal of personal choices without undue interference by the state.
In Green, another case from Utah involving a criminal conviction for polygamy, in his concurrence, Justice Matthew Durrant claims that the state has a compelling interest in prohibiting polygamy because it threatens monogamous marriage.Footnote 73 This is a remarkable admission on the part of one of the justices that the state's rationale is perfectionist; it is advancing a particular conception of marriage on the ground it is superior to the alternatives. Unlike in the past, that rationale is increasingly problematic. The more recent lower federal court decisions regarding same-sex marriage indicate that the state may no longer use the alleged superiority of monogamy to justify the unequal treatment of certain marriages. By contrast, in her dissent, Chief Justice Christine Durham maintains that Utah lacks the authority to criminalize “the privacy of intimate, personal relationships between consenting adults” and adds that if Holm's intimate partner had not been a minor, his conviction would have to be overturned.Footnote 74 While she stops short of recognizing a constitutional right to plural marriage, she points out that Utah has not adduced evidence that supports its position that polygamy causes incest, sexual assault, statutory rape, and/or failure to pay child support.Footnote 75 She then concludes that Utah lacks an important state interest in criminalizing bigamy.Footnote 76
Those who oppose plural marriage – if they want their view to have the force of law – must do a better job of elucidating why the legal definition of marriage should exclude marital relationships that contain more than two adults and must address why an exclusion of that kind is consistent with treating everyone fairly. My point is not that they could not possibly do so but that they have not come close to doing so when their constitutional position cannot be based on legal moralism, tradition, or on utilitarian reasoning that relies so heavily on the empirically questionable secondary effects of only one type of plural marriage – namely, traditional polygyny. Their only real option is to reject the value of autonomy or personal choice and maintain that paternalism on the part of the state would be appropriate because some women will make the decision, which they will later regret, to enter a multiperson marriage.
Even if this option were more plausible, it does not cohere with the American constitutional tradition, which can be construed as requiring exceedingly persuasive justification when a statute infringes on the fundamental right to marry. My defense of plural marriage does not stem from a crude moral relativism or subjectivism but from a basic moral insight: What is good for human beings varies significantly with particular facts about them and their circumstances. Respecting their right to choose – notwithstanding the potentially adverse consequences – reflects the constitutional importance of their participating in the decision-making process and the likelihood that they are more knowledgeable about themselves than anyone else could be. That is why I defend the constitutional right to marry more than one person at the same time and remain agnostic about whether it would be better for more people to have multipartner relationships. A plural marriage is not for everyone and probably not for most of us, given the time, patience, and effort that having a decent intimate relationship with only one partner requires.
On the other hand, marriages not based on any sort of romance or sexual intimacy might turn out to be not only more stable and fulfilling for more people but also invite them to reconsider their priorities and figure out what is most important to them. Just because two people are mutually sexually attracted hardly means that they will be compatible in the most important ways, enjoy each other's company, and live happily ever after. In the end, whether a particular person should make such a choice – like other profoundly personal choices – is best left up to him or her. Premarital agreements already permit couples to contract around most of the default rules that would otherwise govern the end of their marital relationship, allowing them to customize their marital relationship to a great degree. Still, courts can invalidate such agreements in situations where the party that is disadvantaged had no legal representation or the terms are egregiously unfair. Whether it ultimately works better than the alternatives is contingent on the particulars. This is why everyone should care about whether such a right ought to exist; it is wrong to frame the issue too narrowly and not see it as a matter of whether the state has the authority to restrict people's freedom of choice in highly personal matters.
If traditional monogamous marriages were inherently unequal, frequently involved less than fully autonomous choices, or were unarguably dysfunctional, to ban them on those bases alone would amount to a serious violation of the liberty of the two persons who want to marry each other.Footnote 77 Critics of plural marriage have not yet adequately defended this double standard. I doubt they will be able to do so if what they have produced so far is any indication of the quality of arguments they shall offer at a later date. At bottom, the state's not extending the constitutional right of marriage to those who would marry more than one person at the same time is unjustified discrimination. That conclusion follows from the premise that all of us are free and equal under the Constitution and must be treated as such.
In the last century, family law in the United States changed dramatically, offering “adults a lot more choices” than they used to have.Footnote 78 One way to understand the aim of this book is to see it as an attempt to defend the continuation of this trend to maximize marital choice. In 1993, in Baehr v. Lewin, the Hawaii Supreme Court decided that the denial of marriage to same-sex couples constitutes gender discrimination and thus violates the Equal Protection Clause of the Hawaii Constitution.Footnote 79 That was the first time a court created something like a constitutional right to same-sex marriage.Footnote 80 The U.S. Supreme Court has declared that the right to marriage is “one of the vital personal rights essential to the orderly pursuit of happiness.”Footnote 81 That declaration alone suggests that the denial of such a right to those – male or female – who want to marry multiple persons must be based on more than mere moral disapproval, visceral dislike of the people or conduct in question, or negative stereotypes. The rationale behind the use of strict scrutiny in fundamental rights and some equal protection cases is that the state may not deprive people of their personal freedom or treat them unequally without very good reasons for doing so.Footnote 82
In the past, though, most judges have not been receptive to arguments that support a right to plural marriage and that fact probably stems from the extent to which the thinking of most judges on novel constitutional questions does not stray too far from public opinion. All things being equal, the more unconventional the legal thinking on the part of the attorney, legal scholar, or judge, the less likely he or she will ever serve on an appellate court. Not surprisingly, the vast majority of judges have been much less critical than they ought to have been toward the strength of the state's interests in not allowing the option of plural marriage. In upholding the Mann Act, Justice Douglas writes, “the establishment or maintenance of polygamous households is a notorious example of promiscuity.”Footnote 83 Today, I suspect no justice could get away with such an inaccurate statement and frame the putative right to plural marriage as simply being about having multiple sexual partners. That said, no state permits plural marriage and no state is likely in the near future to create such a right. Nor do any domestic partnership or civil union laws in this country allow multiple partners to register.Footnote 84 In almost all states, polygamy is illegal, with the exception of Hawaii, where the second marriage is merely annulled.Footnote 85 These states criminalize remarrying, attempting to remarry, purporting to remarry, or cohabitating as man and wife when a former marriage has not been terminated and the former spouse is still alive.Footnote 86
On the other hand, antipolygamy laws are usually not enforced.Footnote 87 In Lawrence, for Kennedy, the nonenforcement of statutes prohibiting same-sex sex acts meant that the state did not have a particularly strong interest.Footnote 88 In Meyer v. Nebraska, the Supreme Court first announced that marriage must be treated as a fundamental right.Footnote 89 The Supreme Court has extended this right by ensuring that states may not restrict that right without adequate justification and rejected the following reasons for limiting the choice of one's marital partner: being a member of a particular race, being incarcerated, and being behind on child support payments.Footnote 90 More recently, a growing number of state and federal judges have also found sexual orientation as a basis of marital discrimination to be constitutionally unacceptable. In sum, there is a constitutional right to marry for just about any competent adult who wants to marry another competent adult of the opposite gender.
In Loving v. Virginia, Chief Justice Earl Warren articulated the importance of a person's being able to choose his or her spouse.Footnote 91 In the context of the debate over same-sex marriage, however, each side disagrees about what the holding is. One may read Warren's majority opinion narrowly and conclude there is only a fundamental right to interracial marriage. According to this view, Loving stands for the principle that the state may not deny the right to marry to someone who seeks to marry a person of a different racial or ethnic group. The only reason the state could have for such a prohibition is racist and thus illegitimate.Footnote 92 In Loving, Warren did not find that the infamous “equal application theory” – where under state law white and black persons are “punished to the same degree” – could be separated from invidious racial discrimination against African-Americans.Footnote 93 Throughout his majority opinion, Warren's focal point was race which not surprising in the context of the struggle for civil rights. In a relatively short opinion, he mentioned “race” or “racial” numerous times in explaining why the legislative classification in question is not subject to the rational basis standard of review Virginia had asked for.Footnote 94 That is why such a narrow reading of this well-known decision is at least defensible.
Alternatively, one could construe the principle of nondiscrimination that underlies Loving more broadly and not reduce its scope to restrictions on marriage that involve race but stretch it to cover all classifications where the state does not have an adequate rationale to treat particular persons differently. Therefore, all laws restricting marriage ought to be subject to strict scrutiny, which is a fancy way of saying the state must have very good reasons for treating some persons differently than others when it denies only some persons the right to marry. No constitutional right is absolute, and even when strict scrutiny is not always fatal in fact, a very strong presumption against restricting any constitutional right is present unless the state can justify such a restriction. The implication of the use of this analytical framework is that the alleged immorality, strangeness, or offensiveness of certain kinds of marriages – even as far as most people are concerned – cannot perform the necessary justificatory work. As Evan Gerstmann observes: “If the fundamental right to marry did not protect some things that shock and repulse most people, it would be a uniquely narrow right.”Footnote 95 At present, that a particular kind of behavior allegedly corrupts public morals or causes others distress but does not directly harm them is unlikely to rise to the level of an important or compelling interest.Footnote 96
III. Millian Experiments in Living
In this section, I want to shift gears by focusing on the possible individual and collective benefits that legal recognition of plural marriage could produce. For the most part, those who defend the legal recognition of plural marriage rely on one or more of the following justifications: equal treatment, freedom of association, tolerance, respect for personal choice in private matters, acknowledgment of cultural difference, and free exercise of religion. Their strategy is recognizably liberal in incorporating a presumption in favor of allowing behavior that is largely self-regarding, putting the burden of proof on those who oppose plural marriage, and then explaining why these opponents have not met this burden. That is my basic strategy in this book. That someone has chosen to have such a marital relationship – for whatever personal reason(s) he or she happens to have – is supposed to trump any countervailing considerations – unless they are compelling. The critical point is that those reasons are his or hers. Their quality is neither here nor there because it is his or her life and no one else's. As I have argued, it is reasonable to assume that (a) most people do not try to know other people very well, (b) are not privy to the details of their lives, and (c) are not well equipped to know what is best for them. As a result, the state should defer to his or her marital choices. At most, it can try to ensure that those choices are as well informed and as voluntary as possible, which can be consistent with empowering him or her to exercise his or her autonomy as effectively as possible.
Proponents of the right to plural marriage pay much less attention to the possibly good consequences of expanding the legal definition of marriage to include multiperson relationships. In constitutional theory, the defense of the importance of personal choice in many contexts, ranging from abortion to freedom of religion, is rarely consequentialist. Furthermore, rhetorically, silence about the good consequences that might follow from such marriage is understandable when beginning a conversation about the possible merits of plural marriage may involve more risk than reward in a society that continues to privilege monogamy, has not yet fully accepted same-sex marriage, and tends to be prejudiced against sexual minorities.
However, the disadvantage of the standard liberal approach, which relies so heavily on the intrinsic value of the exercise of autonomy, is that those who employ it must remain reticent about the benefits that might flow from the advent of plural marriage. While asking for or demanding tolerance is a prudent strategy, it may amount to conceding the superiority of monogamous marriages and acknowledging that the state is justified in privileging them.Footnote 97 By comparison, in the context of the debate over same-sex marriage, to settle for civil unions is to signal that (real) marriage is only for straight persons. Unconventional marriages may move others to think more critically about the nature of their own intimate relationships and how they might improve them. As Elizabeth Emens observes: “The frequent failure of supermonogamy – the idea of one partner forever – is reflected in our high divorce rates.”Footnote 98 Even if monogamous marriages work better for most people most of the time, it does not follow that they work better for all people all the time. Because individuals and their differences matter, nothing less than individualized treatment by the state is called for. As time goes by, social acceptance of thruples or group or two-person nonromantic marriages may change the institution for the better in the sense that more people are more actively involved in making their marital relationship their own because they have a much longer list of options to choose from and have given more thought to what they ultimately want.
The typical liberal strategy of avoidance of the possible merits also reinforces what is supposed to be “normal” by obscuring how the state's privileging certain intimate relationships marginalizes others that may be equally or more valuable.Footnote 99 The state's creating the possibility of plural marriage would let Americans know that at least for some people, a nonmonogamous or nonsexual marital relationship fits in with their way of life better than the alternatives. The measure of a successful marriage, then, could be less about its form – whether it is two-person or opposite sex – and more about the quality of the relationship and what the individuals in that relationship happen to value, need, or desire.Footnote 100
We live in a society in which the superiority of monogamy goes virtually unchallenged and social pressures and legal incentives nudge most of us in a monogamous direction.Footnote 101 In a new marital regime, some people might not choose monogamy if other options are available. Politically, one might go even further by taking John Stuart Mill's position that the state should promote unconventional behaviors because such a policy creates opportunities for experimentation.Footnote 102 In what follows, I put forth an affirmative case for plural marriage – rooted in Mill's well-known idea of experiments of living – by calling attention to the value of the unconventional to the individual and the society in which he or she lives.
My position is premised on the importance of enabling people to develop into the kinds of people they aspire to be. For some of them, a plural marriage could be a vehicle of self-development. There may be a lot more to be said on behalf of the experiment of plural marriage and its possible benefits than most people realize when so little is known about what such marriages might be like in a society that did not reduce all of them to the worst manifestations of polygyny or demonize those who partake in them. Most Americans have little familiarity with plural marriage because the media tend to focus on FLDS polygyny – at the expense of all its other forms – and to be preoccupied with its salacious aspects. Footnote 103 Moreover, those who practice nonmonogamy more generally are not inclined to out themselves to their colleagues, friends, neighbors, and family members. Like many gays and lesbians in the past and some of them today, most polygamists do not feel comfortable disclosing their identities to the rest of the world.
The vast literature on Mill's political thought is daunting and I shall not attempt to take sides in debates over what Mill really meant or believed. Instead, I will try to reconstruct his idea of experiments of living in the present-day setting of the question of how our society should view plural marriage and treat those who want to have such a marital relationship. Plural marriage was not what Mill had in mind when he spoke of experiments of living in the nineteenth century, but at present, we would not embrace a number of Mill's views, such as those involving nonwhite societies, which Mill thought to be uncivilized. Moreover, in some respects, Mill is far from a twenty-first-century feminist. That is not to say that Millian insights about the value of the unconventional are no longer relevant. If anything, they are even more crucial in a society that normally prides itself on its tolerance of difference and therefore tends to be too complacent. The greatest danger is that we sincerely think we are open to the unconventional when we are not because we have internalized the correctness of the conventional. Our moral judgment about nonmonogamous intimate relationships is more likely to reflect our love of the familiar and our fear of difference than its possible merits.
My primary purpose, then, is not exegetical, which is why I will refer to “Millian” experiments of living as I attempt to put together a Millian argument in favor of unconventional personal relationships and marriages while giving credit where credit is due.Footnote 104 Mill puts his finger on a problem that still characterizes a liberal democracy like our own: The real threat to individuality is not only to be found in coercive laws but also in the tyranny of public opinion, which too often confirms the status quo and pressures people to conform to widely accepted social norms that threaten individuality and impede self-cultivation. Most Americans sincerely believe themselves to be open-minded, but they are too often prone to be afraid of the other, to make rash judgments, to be self-righteousness, and to make themselves feel morally superior by condemning what they do not know or understand.Footnote 105 Even when they make the effort, they still may not appreciate what is unfamiliar when it has no place in their conceptual framework about how people are supposed to live.
This all-too-human practice of distrusting the unconventional continues to occur – even in liberal societies that are supposed to be open to difference – and remains troubling because it unnecessarily interferes with some persons’ lives and detracts from their quality. It is never easy for anyone to adopt a different way of life in the midst of well-entrenched social norms that most people take for granted. Being misunderstood is particularly painful. That Mill was opposed to social conformity goes without saying; to follow custom uncritically is to avoid the duty of developing one's own individuality. Failing to do so reveals a character flaw on the part of the person who cares more about how others perceive him or her than what he or she ought to care deeply about – namely, becoming the kind of person who does not fear the unconventional and acts accordingly. The trouble lies not in the fact that public opinion tends to converge on certain beliefs and behaviors but that ordinary people care too much about what others think, thereby deterring them from what they would otherwise do.
For Mill, unconventional ways of life must be tolerated because they may illuminate the nature of human flourishing and yield examples that can be emulated, making social progress possible.Footnote 106 As David Heyd writes: “Tolerance is a philosophically elusive concept.”Footnote 107 As it is usually understood, toleration involves noninterference so people are free to choose how they want to live. The trouble that results from intolerance is not just political conflict and even violence but also that intolerance leads to interference with how that person is living his or her life when the state could simply leave him or her alone to allow him or her to have the life he or she desires. The wrong stems from the unnecessary restriction of personal liberty when others are not being harmed or at risk of being harmed. In terms of autonomy or freedom of conscience, what matters is the extent to which that way of life was freely chosen.Footnote 108 It does not mean acceptance in the sense of respect for that way of life due to its quality. To ask someone to value or respect my particular way of life on its merits is to ask too much. It may be unreasonable to criticize others for not respecting a life they sincerely believe to be frivolous or mistaken. That is why, at the end of the day, widespread tolerance is a substantial achievement in any human society – whatever its basis happens to be.Mill did not have a lot so say about tolerance per se, but he opposed coercive interference and left room for noncoercive interference, even in cases of self-regarding conduct for people to convince others that their way of life is misguided. In his words:
As it is useful that while mankind are imperfect there should be different opinions, there should be different experiments of living; that free scope should be given to varieties of character, short of injuries to others; and that the worth of different modes of life, should be proved practically, when anyone thinks fit to try them.Footnote 109
In this passage, Mill makes several points that need to be disaggregated. First, human agents have to do it themselves. As John Skorupski writes: “People then have to do their own work of self-development, because human potentialities are diverse and best known to the individual person, and because only by working out their own plans of life, do they develop more freedom.”Footnote 110 Second, Mill assumes that people have not perfected themselves. They cannot continue to cultivate their capacities and learn from the process of trial and error unless they retain the imagination and courage to take advantage of opportunities for such growth. Third, people must have space to cultivate their own individuality, provided they do not harm others. Fourth, what a good human life consists of is to be determined by experience. The “experiments” part of “experiments of living” suggests that for Mill, personal growth or self-improvement is always possible, provided that one is continually willing to experiment. A life is not best because it is “the best in itself, but because it is his own mode [of living].”Footnote 111
Other than the previous passage, Mill has a bit more to say about the character of such experiments and why they are worthwhile. As he remarks: “People should be eccentric.”Footnote 112 A conception of the good is supposed to yield a perspective of self-understanding, which is personally compelling (has normative force for the agent) and guides him or her in deciding how to live in a manner that reflects the kind of individual that he or she aspires to be. The implication is not that a particular conception of the good that meets this test is superior to all its rivals. Rather, each person must test his or her theoretical conception against his or her personal experiences and adjust his or her conception accordingly.Footnote 113 In this respect, one's life is always a work in progress.
Above all, people must be open to having new experiences, learn from them, and scrutinize their most cherished beliefs. Otherwise, they will not only fail to appreciate the lives of others who are different from them but will also lack self-awareness. It is not enough for an individual to reject conventional wisdom, to display contempt for tradition, to be different just for the sake of being different (like teenagers), or to contemplate theoretical possibilities from a distance. They also must “acknowledge the contingency of their inherited commitments.”Footnote 114 Put another way, nobody should ever forget that had they been born at a different time in a different place into different circumstances, their lives would be very different. As John Gray states, “an autonomous agent must have distanced himself in some measure from the conventions of his social environment and from the influence of the persons surrounding him.”Footnote 115 This statement may mean that at least some people will adopt nonliberal ways of life. In Alan Ryan’s view, “The moment of truth for a pluralist comes when he is asked whether he is happy to see a great variety of non-liberal ways of life flourish for the sake of variety. …”Footnote 116 According to Ryan, Mill ducks this normative question by insisting we simply do not know enough about nonliberal ways of life to render an informed judgment about their merits.Footnote 117
Unlike Ryan, I think that Mill may be more right than he is wrong about how well, even today, we understand how people in other cultures understand themselves and what makes life worth living. Mill’s way of thinking about the nature of a good human life has political and legal implications. The trouble is that in a democracy, Mill believes that citizens are likely to misuse their power by suppressing dissent and difference.Footnote 118 Public opinion more often than not turns out to be uninformed oppressive. In the end, Mill seems to be mostly pessimistic about the prospects of most people's successfully resisting conformity in thought and action. The forces of individuality do not stand much of a chance against them. Majorities tend to marginalize minorities – and not just religious and cultural ones – and people do not want to be treated in that way if they can avoid it. The problem is not force or the threat of force but what Mill refers to as “prevailing opinion and feeling.”Footnote 119 Thus, democratic societies tend to produce a certain type of person – namely, one who is inclined to accept norms uncritically, look skeptically at difference, not be introspective, and not be willing to consider the possibility that how things are done may not be the best way of doing them – at least not for everyone. Nonetheless, some hope remains. In Mill's words: “In this age, the mere example of nonconformity, the mere refusal to bend the knee to custom, is itself a service.”Footnote 120
As aforementioned, my aim is not to reconstruct what Mill had in mind with respect to experiments of living or to suggest we should be proud we have met his low expectations. Instead we should think about how all of us can use the concept today in a world that differs from that of Mill but is not too far removed from it. What should count as such an experiment, then, should not be confined to what was considered experimental in the past when circumstances change. Some people will probably be more emotionally satisfied in plural marriages, but they will also develop into better human beings insofar as they become more open, self-aware, emotionally mature, thoughtful, and better at communicating and resolving conflicts.Footnote 121 The jury is out until we have sufficient data – and that means Americans must be willing to countenance plural marriages at least until they learn more about them.Footnote 122 As Justice William Brennan writes in his dissent in Michael H., “we must be willing to abide someone else's unfamiliar or even repellant practice because the same tolerant impulse protects our own idiosyncrasies.”Footnote 123
I suspect that some plural marriages will turn out to be more like traditional monogamous marriages than many people anticipate – with the good and the bad – because no one who shares social space with others escapes adopting many of the common beliefs in circulation about how people are supposed to interact with one another. The success of any given plural marriage is contingent on its specifics.Footnote 124 In that sense, it does not differ from its monogamous counterpart. In other respects, though, plural marriages are bound to present unique challenges for those involved in them due to the presence of multiple persons and their special dynamics. Ultimately, there is much to be said for monogamy inasmuch as a closer companionate relationship probably requires emotional and sexual exclusivity for the vast majority of people. There are only so many hours in a day and only so many days in a week. The more time each person has to spend with the other, the more emotionally close they can become. The same can be said about friendship. Most people do not have six or seven best friends, but they may have more than one or two. They may have many “Facebook friends” but to call a “Facebook friend” a real friend is like saying that an honorary degree is the equivalent of a real one. The development of such intimacy is more likely to take place if one does not have multiple partners and lacks the time it usually takes to get to know someone more than superficially. Along similar lines, for a parent with multiple children, it will be harder to discover what the child cares about, to meet his or her particular emotional needs, and to help him or her cope with hardships. The larger the family, the harder this task becomes, which is not to say a father or mother in a large family could not be a better parent than a father or mother with only one child.
Unfortunately, from an early age, most Americans are taught that being married is part of a good human life.Footnote 125 I say “unfortunately” because such socialization may preclude them from seriously considering the upside of remaining single or encourage them to sacrifice other equally worthwhile personal relationships or goals. My impression is that most women suffer more than most men do from such social expectations when they have internalized certain beliefs about marriage and its importance but fail to meet what society expects of them. By contrast, few men dream about their wedding day. Today, the belief that marriage has to be opposite sex is changing slowly but surely, which means marriage is more diverse than it once was. Despite more diversity, most people continue to assume marriage has to involve two – and only two – persons at the same time. As noted, part of the trouble is that for most Americans, plural marriage is synonymous with the worst aspects of FLDS polygyny and thus it is likely to consist of one man married to multiple wives. In this country, people continue to associate polyamory with promiscuity and continue to believe that unconventional sexual behavior is shameful.Footnote 126 While they can no longer have their legislators make certain consensual sex acts a crime, they can make nonconformists feel guilty about their personal choices. In a polygynous marriage, the wives would not be romantically involved with each other or one another, as they would be in a polyamorous triad. This assumption about plural marriage is understandable, given the link between it and traditional polygyny in our culture, but at least several multiperson intimate relationships, which already exist, could constitute a plural marriage. Almost any combination of numbers and sexual orientation is possible in a polyamorous arrangement. If any new form of marriage threatens to undermine traditional marriage, I suspect it would not be plural unions but rather nonsexual ones – regardless of the number of persons involved. Most Americans cannot imagine a “marriage” between two very close friends – regardless of their gender. Nor can they wrap their minds around the possibility that someone's life may be complete without her being romantically entangled with anyone.
Although the legal recognition of plural marriage would probably increase the number of people who practice nonmonogamy over time, it is difficult to predict the magnitude of such an increase or the forms it would take. Notwithstanding what the law permitted, for the foreseeable future, American society would not stop sending very strong messages about the superiority of monogamy. On the other hand, such recognition also would open the door to a woman's marrying multiple men, multiple women, or multiple men and multiple women simultaneously. A plural marriage would not always be polygynous and therefore would not always reinforce traditional gender roles. The existing polyamory community in the United States is diverse.Footnote 127 At present, those who partake in such relationships tend to be mostly white, older, straight, and middle class.Footnote 128 Also, polyamory is not the equivalent of an open marriage, which requires emotional monogamy but not sexual exclusivity.Footnote 129 Some situations may not have bright lines and polygamists may describe their unconventional lifestyles differently. The point is that any polyamorous relationship – whatever form it takes – is oriented toward emotional and sexual nonexclusivity.
For the most part, the literature on polyamory is not theoretical. Thus, there is a real need for more scholarship on this topic. The extant literature is not written for an academic audience and rarely offers a sophisticated defense of the practice. When it does, though, writers highlight the benefits to the individual in terms of self-growth. Mostly, it contains practical advice about courting, living arrangements, parenting, and legal issues.Footnote 130 That focus is understandable due to the continuing marginalization of polyamory and its analogues and the risk of being discriminated against for being different. One of the primary assumptions in the literature is that one partner will never meet all the other partner's needs and that one of them is likely to want intimate interactions with others.Footnote 131 People who are intimate are likely to be compatible in some ways but not in all ways. No single person can meet all of his or her partner's needs, which dooms many monogamous relationships from their inception. It is natural, moreover, to want to spend quality time with more than one partner – just as it is natural to want to have multiple friends. But that does not necessarily mean he or she wants the current relationship to end. Polyamorists insist that polyamory is not only about sex but also about emotional intimacy and self-realization. It cannot be reduced to swinging or sexual experimentation but rather is a way of life.Footnote 132
According to Judith Stacey, many same-sex relationships cross such social boundaries as race, gender, age, and socioeconomic status and facilitate more democratic social interactions.Footnote 133 One of the somewhat underappreciated arguments in favor of same-sex relationships relies on the claim that such relationships indirectly undermine traditional patriarchal relationships by providing a counterexample of how two people can live together as equals. These days, such an argument – while perhaps sound – would play right into the hands of those who oppose same-sex marriage on the ground that its legal recognition will forever change what marriage means in this country (for the worse). The mere existence of same-sex marriage may prompt people to realize that marriage could be much more diverse than it currently is. Quite frankly, those who draw the line at traditional opposite-sex marriage do not want Americans to take seriously its other possible forms because they may adopt those forms someday, which amounts to saying that competent adults are better kept in ignorance for their own good. Otherwise, they (or their children) may end up preferring other marital forms that better suit their unique circumstances.
The existence of same-sex marriage may encourage people to be more introspective and to reflect on the choices they have made and are going to make in the future with respect to their own intimate relationships or marriages. If that turns out to be true, it is not to be regretted. More and more people would think more deeply about what they want their intimate relationships and families to be like, which would make such serious choices more autonomous and probably improve the quality of their lives. People's perspectives are often limited because their personal experiences are limited. They need to have their emotions engaged before they can see others less judgmentally, which demands more than mere exposure to unconventional ideas and practices. Without such experiences, it will be much harder for them to become more enlightened. The truth is that most of us are afraid to leave our comfort zones. The worst kind of intellectual arrogance is the refusal to appreciate the fact that we normally do not understand others and their lives very well, but we act as if we do and have nothing more to learn. After all, straight persons may learn from gay and lesbian persons about how to have healthier intimate relationships. Indeed, it would be hard to find anyone who believes that his or her intimate relationship does not contain considerable room for improvement when he or she has a moment of clarity. The existence of a variety of plural marriages would be the next logical step in inducing Americans to think and act beyond what is socially approved at a particular historical moment.
In the spirit of Mill, real examples of unconventional ways of life have no substitutes. People learn most from their own experiences and some of these experiences cause them to question whether the life they are leading is the right life for them when they begin to see the world in a different light. Under the First Amendment, it is often said there are no false ideas. The marketplace of ideas (and not the government) is supposed to determine which ideas are most likely to be true. People are legally permitted to say just about whatever they want to say about opposite or same-sex marriage or alternative lifestyles. A person is as free to defend a traditional conception of marriage as he or she is to claim it is a racist, patriarchal, or heterosexist institution that should be abolished. In a society such as ours that is committed to free speech, we will not have to worry too much about a shortage of unconventional ideas, especially in an Internet age in which it is so much easier than it used to be for like-minded people to discuss issues they care about. In such circumstances, people have access to a wide range of ideas. However, such possible exposure may be inadequate when it is so much more instructive to see real examples, to be given the opportunity to experiment and learn from the experience, and to develop empathy for those who are different and curiosity about what could be.
There is an enormous difference between reading about something or watching a documentary about it and meeting real people and interacting with them to discover what their lives are like. The latter tends to be so much more emotionally powerful. Some personal experiences, I believe, are necessary for people to see themselves and others with less distortion and to develop the compassion that can help them understand all forms human suffering. I take Mill's point to be that personal growth only takes place when we are no longer so intimidated by the unfamiliar. I doubt anyone who has not been married or cohabitated with a romantic partner could give very useful marital advice. Personal experience (and failure) and trigger introspection in a manner that cannot easily be duplicated. Part of the explanation why younger people are so much more tolerant of gays and lesbians and their intimate relationships is that they are much more likely to know nonstraight persons as colleagues or friends.Footnote 134 The point is not only that some people will be happier in nonmonogamous marriages but also that those who directly experience it are more likely to be tolerant of other differences and look at their own lives more critically. Also, they may come to have less unrealistic expectations about themselves and their partners. Eventually, the mere presence of such marriages is likely to make others less fearful about the unconventional more generally, even if that way of life is not for them.
One of the profound insights in Mill's political writings is that people are different, and as a result, what may make one person happy is not necessarily what would make another happy. Such a legal status as marriage can serve multiple purposes: to foster companionship, friendship, sexual gratification, caregiving, intellectual stimulation, and financial security. Under the status quo, every state cares about how a marriage is configured; it has to be between two and only two persons. In all fifty states, as long as a person meets the age, mental competence, and consanguinity requirements and is not already married, he or she may marry another person of the opposite gender.Footnote 135 As one cultural anthropologist puts it, “our national American culture, in its narrowly focused absolutist vision as the only [his emphasis] proper martial form, has caused much suffering to many, if not most, Americans.”Footnote 136 For some or even most persons, monogamy has some well-known advantages. On the other hand, it may cause frustration, boredom, despair, and misery. One of the prominent themes in the growing nonacademic literature on polyamory is that of personal fallibility (or what Mill would have referred to as our imperfection). Because all humans are deeply flawed, they ought to take advantage of the opportunities that life gives them to identify their shortcomings in the name of self-improvement. Above all, this process includes being more honest with yourself and others.Footnote 137 The vast majority of intimate relationships are probably not as honest as they could be. For a variety of reasons, partners do not share everything with each other and will rationalize their dishonesty and conceal the kind of person they really are because they fear their partner will no longer love them or stay with them when he or she learns the truth.
For polyamorists, though, this typical way of being in a monogamous relationship is misguided. Expectations of sexual and emotional monogamy cause misery by forcing people to be more dishonest than they otherwise would be and precipitating feelings of guilt and shame. By contrast, being radically honest with oneself and with one's intimate partner(s) enhances communication.Footnote 138 If you think it would be easy to be radically honest, then trying being that way for more than a few days. Do not rationalize white lies, correct misunderstandings instead of letting them slide by, and avoid misleading people by taking things out of context or one sharing your side of the story. If you think that such honesty is not important when all is said and done, then imagine how much better your life might be is you were more honest with yourself, your colleagues, your friends, your neighbors, and your family members. The reasons to aspire to an ideal plural marriage are recognizably Millian. The aim is to become a better person by being more honest with yourself and with others, including your intimate partner(s). Part of this commitment to radical honesty requires seeing sex, love, and human relationships through a new pair of eyes and behaving accordingly. If a man or woman wants to have other sexual partners, then he or she does not have to hide that fact from his or her partner(s), creating a more authentic relationship in which neither person has to lie to or deceive the other about what he or she really wants, thereby minimizing hypocrisy and making a genuine commitment (and intimacy) possible.
Long before the word polyamory came into being, Bertrand Russell described jealousy as being a creature of convention.Footnote 139 These days, many polyamorists stress the importance of overcoming jealousy.Footnote 140 For polyamorists, jealousy is a vice. Polyamorists do not see it as an inevitable reaction rooted in evolutionary biology. Instead, it is a barrier to developing healthier relationships with others. For most adults, to be jealous of a friend's other friends is to be immature or petty. Having multiple friends is not only normal but desirable because each of them has different admirable qualities we appreciate. Having multiple husbands or wives, by contrast, seems to be fundamentally different in the minds of most Americans. When one examines why one feels jealous, one can begin to overcome certain fears, such as not being everything to one's partner, feeling inadequate, and being abandoned. Polyamorists have coined a term for overcoming jealousy – “compersion” – which involves taking joy in your partner(s)’ pleasure or happiness with another partner.Footnote 141 As Stacey observes, gay men seem to manage jealousy better than most opposite-sex couples do.Footnote 142 While doing so is easier said than done, its possibility indicates people can work against what appears to be natural human limitations.
Another related theme in the literature is the importance of escaping the tyranny of socialization, where many people are forced to conform to norms that do not suit them, may frustrate them, and may make them miserable. We still live in a society in which, for the most part, alternative lifestyles are discouraged, even if most of them are no longer illegal. Those who are unconventional are the target of emotional blackmail. Society tells them they are “morally deficient, psychologically disturbed, and going against nature.”Footnote 143 In the past, these same kinds of accusations were leveled against gays and lesbians. Consequently, most of us internalize a norm of monogamy and believe that the only choice is monogamy or infidelity.Footnote 144 As one writer puts it: “But there I was, thinking that maybe I wanted to stay in my marriage and [her emphasis] see other people.”Footnote 145
Surely, this desire could be selfish or driven by one's libido. My aim is not to romanticize polygamous relationships, which are surely difficult to maintain and probably as flawed as their monogamous counterparts. One could have good or bad personal reasons for wanting to have or experiment with some sort of a multiperson relationship. Nor is there a guarantee that a person in such a relationship will develop into a more enlightened human being. His or her experience could have the opposite effect. Be that as it may, that personal choice – freely made – is his or her own and must be treated as such; it may serve as a path toward self-knowledge by providing opportunities to come to terms with his or her flaws, insecurities, and unhealthy desire to control others. As much as possible, as the pro-polygamy argument goes, people should be able to opt for such a relationship without being condemned as immoral, immature, deviant, or weird. Legal recognition of such relationships would reduce the stigma associated with them. For these reasons, we could view a polygamist relationship as a present-day Millian experiment of living and the state could foster it by allowing plural marriage to be a marital status. That reform would not only help normalize polygamist relationships and families, but it would also send a more general message to society that unconventional families are prima facie morally acceptable. This change in the law would allow those who partake in them to have the opportunity to have more fulfilling lives because they would have different opportunities to learn about themselves and others, to face their fears, to be honest with themselves, to decide what kind of life best suits them, and to be willing to change when necessary.
As Mill reminds us, what a good life consists of is always subject to experience and revision; it is not the kind of question that can be answered a priori but rather demands imagination and the courage to defy convention. The refusal to recognize the truth of this statement has a high cost, such as depriving those who would adopt that way of life under conditions of greater tolerance of the opportunity of leading what may be a better life for them. That is a Millian argument in favor of plural marriage that urges us to guard against our unfortunate tendency to assume that the conventional is correct when it comes to how people should arrange their personal lives. More than 150 years ago, Mill warned us against the tyranny of public opinion. In a modern democracy, the real threat to freedom is not the coercive power of the state but the power of others to marginalize those who are different by making them feel as if they are not only different but inferior.
We seem to have come a long way from the kind of conformity that existed in Victorian England at the time Mill penned “On Liberty.” When it comes to marriage, though, our congratulating ourselves is premature. After all, three or more may not be a crowd; whether it is depends on the participants and what kind of intimate lives they want to have together. As I have tried to show in this section, the legal recognition of plural marriage could not only help normalize polygamist relationships and families – whatever forms they take – but it would also communicate to society that unconventional relationships, provided they are consensual and involve adults, are not to be ruled out without serious consideration about their possible merits. That is another way of saying the state must respect the lives of marital nonconformists.
In this chapter, I have tried to lay the groundwork for a constitutional right to plural marriage by first showing that such a right is a logical extension of the more abstract constitutional right of autonomy. Nonrecognition of plural marriage amounts to an unconstitutional denial of marital choice. I then explained, using Mill's famous idea of experiments of living, why plural marriages present opportunities for introspection and self-growth that may not exist in a society that continues to revere monogamous marriages. A real plural marriage could be morally problematic for the same reasons a monogamous relationship could be morally problematic: It could be characterized by selfishness, insensitivity, laziness, manipulation, jealousy, exploitation, and physical and emotional abuse. But that sort of dysfunctional behavior can be and too often is present in much more widespread monogamous intimate relationships and marriages.
That is not to say, of course, that people should seek out plural marriages if they prefer a two-person sexually and emotionally exclusive arrangement. It may be true that today, for most individuals, having multiple partners at the same time is unworkable. As Oscar Wilde might have put it, the trouble with plural marriage is it might take up too many evenings. However, advocates of the constitutional right to plural marriage need not argue for the more ambitious conclusion that such marriage is superior to its monogamous alternative. They only have to show it is possible that plural marriage may work for the people who participate in such unconventional arrangements. Such a marriage may also serve as an example of a way of life that enables others to see (a) there are other options that may better fit their circumstances and (b) to enable those who will never opt for plural marriage to be more reflective about their own intimate lives to improve them. “Respecting one's fellow citizens as equals,” Nussbaum writes, “doesn't mean approving of their choices, but it does mean respecting their right to make certain choices consistent with the principles of equal dignity and equal entitlement.”Footnote 146
The question of whether (unqualified) monogamous marriage is better than (unqualified) plural marriage obscures what is really at issue: whether unconventional intimate relationships have enough potential value to receive legal recognition. The route toward more understanding and subsequently more acceptance requires depicting such relationships more accurately, appreciating their diversity, and reflecting on why someone – gay, straight, bisexual, transgender, or asexual – would want to have such a marriage. Sooner or later, as a society, we need to have this conversation. Just as Americans must resist caricatures and see sexual minorities as they are, they also need to recognize the possibility that the love different kinds of polygamists may express for each other is as real as that of any gay or straight couple.