July 14, 2004

Richard Epstein on Plural Marriage & the Courts. "When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of plural marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All plural-marriage advocates want to do is to enjoy the same rights of association that are held by other people. Let the state argue that plural marriages are a health risk, and the answer is that anything that encourages monogamy has the opposite effect. Any principled burden of justification for the ban is not met.

But it is said that marriage is different because it is more than a private association; it is an institution licensed by the state. To which the answer is that any use of state monopoly power must avoid suspect grounds for discrimination. So the state must explain why it will favor some unions over others -- without resort to claims of public morals. The restraints on state power are the same as when the state uses its monopoly power to license drivers, or grant zoning permits.

The question here is not just whether the courts will impose their views on the people of the several states. It is whether they will allow a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision. The claim for plural-sex marriage is no weaker than any other claim of individual rights on personal and religious matters.

But since many states bans homosexual acts, some ask, why not also ban plural sex marriages? Turn the question around, however: Why ban the former, especially by constitutional amendment, when agreed to by all parties? Incest is a different matter, with the high dangers from inbreeding. [A factually false statement -- PP]. And people and poodles can't tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract.

The case against state prohibition of plural marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of plural marriage rights get strong enough politically to require traditional churches to perform plural marriages, or to admit bigamists into their clergy. Or to demand that people accept bigamists as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals."

Quoted by Virginia Postrel. Posted by Greg Ransom | TrackBack