Tuesday, January 15, 2013

Would Lincoln Oppose Gay Marriage?

Was it Barney Frank who said that two vs. three people in a marriage was a quantifiable distinction for marriage, unlike the difference between a female wife and a male "wife"?   This is the logic:  Let's change slightly(?) the definition of marriage to be about two people and forget the common law roots of a marriage contract between the two distinct parties with distinct obligations.  Still two people, so not really that weird, they say.

Same-sex marriage will lead to polygamy?  Pshaw!  No, we want to keep marriage just as it is, between two people.  Completely orthodox.  The only people who want more than one spouse are weird Mormon perverts, and we don't care about them.  

Oh, so you don't care about their marriage rights.  I see. I guess they don't have all that Hollywood money (and Hollywood propaganda) to advance their cause.  You don't want them undermining society and complicating our laws with their weirdo lifestyles, eh.  "Those who deny freedom to others deserve it not for themselves."

Given Lincoln's strong backing of his party's anti-polygamy platform, it seems unlikely that he would have supported same-sex marriage.  (No, I'm not going to even get into the whole "Lincoln Was Gay" theory.)  Nobody made the argument then that polygamy would lead to same-sex marriage, because same-sex marriage was still universally considered a contradiction in terms, whereas polygamy was making a matter of making more commitments than the common law stated could be made in good faith.  Well, you may say, he was a man of his times in the Victorian age.

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The National Republican Party's two moral planks:  anti-slavery and anti-polygamy.  (Both referred to as twin "relics of barbarism.")  It was all about legislating morality.  Did someone say that DOMA was the first intrusion of the federal government into marital policy?  Lincoln helped pass laws legalize confiscation of money from private bank accounts in the Utah territory as well as the anti-bigamy laws about which he purportedly told Brigham Young that these laws would not be executed on his people if they did not support the Confederacy.

Lincoln and his party very much believed in keeping marriage following its traditional common law roots.  The common law inherited from the British tradition, not the Bible, is what makes marriage law expect a limited number of marital commitments.

Given that, in superficial terms, the anti-polygamy stance was socially conservative* in the sense of preserving social values, while the anti-slavery issue was, for the South, a non-conservative* issue if conservative is , it would see that these issues have little in common other than determining the national morality through centralized federal power.  (*John J. Ray questions "the old equation of conservatism with a love of the status quo and a dislike of change and new arrangements." I avoid using "progressive" here to describe social change since this has nothing to do with the platform of the progressive movement, which would arise a few decades later, and the co-opting by liberal progressivism is incidental.)

In moderating his opinion on racial equality, Lincoln appealed to the following maxim, "A universal feeling, whether well- or ill-founded, can not be safely disregarded."  This intuition is largely behind our rules against pedophilia (well-founded in my opinion).  A splendid aphorism, though it doesn't itself explain Lincoln's political philosophy; and it could be that Lincoln's anti-bigamy fervor could have been more to sell himself better as a social conservative for those who would paint him as a radical.  For Spielberg, this would merely make Lincoln a shrewd politician.

In general, I don't think it makes any sense to talk about gay rights as a "civil rights" issue.  Comparing the issue of interracial marriage (brought to a head in Loving v. Virginia) to the issue of same-sex marriage is kind of an affront to polygamists (but who cares how those "perverts" feel).  It is the polygamist community that has been (and is) in danger of being brought up on criminal charges for cohabitation — not just for entering more than on marriage contract, not just for performing a "plural marriage" ceremony, but for living with more that one person.

A man/woman can have multiple partners, even extra-marital contacts, without being a felon, but a man can't live with more than one paramour and take care of them as domestic partners.  This exists in the state of Utah because of the federal government's involvement with Utah's state charter.   Meanwhile, a gay man can live with two or three "roommates" and do whatever he likes with them.  But the gay man is considered oppressed because if he has a ceremony with one of them, while it isn't a criminal offense, the society around him doesn't have to acknowledge it on a par with the institution as it's existed for millenia, whereas the polygamist has actually committed a criminal offense by living how he/she wants to live.  The polygamists aren't asking for society to treat it on a par with monogamous marriage (yet...); they would consider it fair if their lifestyle were decriminalized on a level with gay domestic partnership.

The decision in Hernandez v. Robles makes this comment on the difference between so-called interracial marriage (in reality, there really is no interracial marriage because race isn't real) and same-sex marriage:

But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.* 
Now on the one hand, we have polygamy which, while not ubiquitous, has been a common variant of the universal marriage tradition.  The Occidental tradition as it is reflected in the British common law we inherited does not recognize polygamy as something in particular to uphold and celebrate as a society, though this doesn't mean that society can't tolerate it, provided that states and communities don't have to recognize it just because it has been recognized in another state.  As long as a state is free to tolerate and not uphold, there is no slippery slope, and there is a means of the society determining its own values rather than the federal government determining what its values should be.  Polygamy has social precedent in societies of many kinds and has religious precedent in the Judaeo-Christian cultural roots of Western civilization.

Same-sex marriage does not have this precedent in either social or religious cultural roots.  It's not even close to being as much a candidate as an extension of the Western tradition of marriage the way that "plural marriage" is.  The "heterosexist" tradition is arguably universal because it mirrors survival-relevant instincts in our sexual dimorphism.  (Whew!)  Yet, polygamy has been much more criminalized.

If a polygamist could obtain a kind of civil union with his subsequent wives, a sort of civil agreement that would protect states' interests vis-a-vis the Full Faith and Credit clause, he and his wives would probably be pleased as punch.  And most states would be all right with making federal a legal framework for protecting each state's self-determination — which is precisely what DOMA attempted to do.

Which would be much more "progressive" than any view Mr. Lincoln held (or claimed to hold, at least).

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