On topic discussion regarding homosexuality
VOLOKH at law.ucla.edu
Thu Apr 15 17:58:12 PDT 2004
I actually agree with Frank's argument that if there is a
constitutional right to same-sex marriage, founded in the parties'
autonomy, one can plausibly ask: Why not a right to marriage between
cousins (where such a marriage is forbidden), between adult siblings, or
between more than two people? I think there are distinctions that can
be drawn, especially between monogamous marriages and polygamous
marriages, but it's not obvious that those distinctions are sufficiently
persuasive, at least as a theoretical matter. I'd like to hear what
distinctions others on the list would draw.
My objection wasn't to this line of argument generally -- it was
the rather odd definition of bisexuality, and to the focus on polygamous
marriages as somehow being more related to bisexuals than to others.
True, under a two-person marriage rule, a bisexual must choose to marry
either a man or a woman; but under a two-person marriage rule, a
heterosexual man must choose to marry either woman A or woman B, and the
two heterosexual women A and B may not simultaneous marry the
heterosexual man of both their dreams. So the question of why the right
to marry doesn't extend to larger groups remains -- it's just not a
question to which bisexuals are particularly relevant. In fact, I
suspect that the overwhelming majority of would-be polygamists would be
heterosexual, not bisexual.
Francis Beckwith writes:
> First, you don't have to call me "Professor Beckwith." Call
> me "Frank." In light of what you said earlier about the use
> of formal titles on this listserv, you're giving me the
> willies. :-) Second, and more to the point, if marriage is
> limited to only two people of whatever gender combination,
> isn't the bisexual--even if we accept the "standard"
> definition--constrained by the state to choose a man or a
> woman to marry? Why should he, especially given his desires,
> be constrained by someone else's understanding of what
> marriage is. Isn't that what is being argued right now
> against traditional marriage? Third, the purpose of my
> argument is to ask a question of
> principle: if marriage is not something that is inexorably
> connected to a particular understanding of the nature of men
> and women and their conjugal union, then what precisely is
> it? If it is simply whatever we define it to be (like the
> colors of traffic signals), then there is no standard outside
> of our collective willfulness by which we can measure our
> definition of marriage so we know that we have the right one.
> But then it is not clear on what grounds someone could claim
> to be unfairly denied entrance into the institution. But
> suppose it is up to the autonomy of individuals to define
> what marriage is, e.g., Bob, Fred, Ted, and Alice, with the
> blessings of their priest, agree that they have a marriage.
> Then to limit marriage to only two people who are not closely
> related cannot in principle be forbidden.
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