Judge Posner's argument against polygamy also works against same-sex marriage

Polygamy has been a hot topic in the aftermath of the Supreme Court's finding a constitutional right to same-sex marriage. Indeed, Chief Justice Roberts argued in his dissent that most of Justice Kennedy's arguments apply just as strongly in favor of a right to plural marriage:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 

(citations removed for clarity)

And the argument for a right to plural marriage isn't just a gotcha advanced by bitter conservatives. Leftist blogger Freddie deBoer and left-libertarian blogger Will Wilkinson both jumped on the bandwagon, arguing that there should be a right to plural marriage.

In typically idiosyncratic fashion, Judge Posner has come up with an argument that he thinks dispatches this plural marriage stuff:

[T]he chief justice ... suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

Posner's argument is that a policy that would create an excess of unmarried men imposes a real cost on society, and therefore is certainly not required. In other words, this is at least a rational basis for a ban on plural marriage.

I see a number of problems with this argument. From a legal perspective, it is essentially frivolous because it has nothing to do with the reasoning of Justice Kennedy's opinion, which is based on liberty and equality, not economics or utilitarianism.

But, more subtly, it could just as easily be used to construct a rational basis for a ban on same-sex marriage, at least if it's plausible that there would be more homosexual women than homosexual men. Consider Posner's society of 100 men and 100 women, but where 6% of the men and 10% of the women are gay. If same-sex marriage is allowed, the 6 gay men and the 10 gay women pair up. That leaves 94 straight men fighting over 90 "marriageable" straight women. We've got four extra, lonely men. This counts as a "real cost" in Judge Posner's world.

And, to the best of my understanding, it is in fact true that women are more likely to identify as LGBT:

The gap is even bigger if you just look at younger people, who have grown up in a society much more tolerant to homosexuality and thus might reasonably be expected to be more honest about, or even aware of, their sexual orientation:

If you do the math, you can construct an argument that permitting same-sex marriage could leave millions of American men with no potential spouse:

1) According to the 2010 census, there were approximately 41.6 million men and 41.3 million women between the ages of 20 and 39. (So you'll notice that we start with a problem.)

2) Using the more extreme figure of 8.3 percent LGBT females and 4.6 percent LGBT males, we are left with 37,872,000 million "marriageable" straight women for 39,686,000 straight men to fight over. That's 1,814,000 extra, "unmarriable" men -- over 4 percent of the prime-age male population!***

Thus, based on Judge Posner's reasoning, we have found the "real costs" of same-sex marriage, and constructed a rational basis to require that marriage remain a one-man, one-woman institution.

Just to be crystal clear, I don't actually think this hocus pocus is a good argument against same-sex marriage. But all the reasons that make it a bad argument against same-sex marriage make it an equally bad argument against plural marriage.

***Totally weird coincidence: there are about 2,000,000 American men in prison right now.

Scott Turow Lies About the Copyright Clause

Scott Turow, the famous millionaire lawyer-author, has an op-ed in the New York Times whining about a recent Supreme Court decision that makes his writing hobby arguably somewhat less lucrative at the margins. According to Turow, this is all part of a campaign of "Soviet-style suppression" of literature. (Seriously, you have to read the op-ed all the way to the end—it's a thriller!)

Silly rhetoric aside, he makes a basic error when he says—

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

You may be wondering if you missed that part of Constitutional Law class where we went over the "Instructions to Congress." But of course the Constitution does not "instruct" Congress to do anything, much less pass copyright laws. It merely permits Congress to pass them by granting it the power to do so. Nothing in the constitution requires them. Turow just wishes it did.

One thing writers are good at is twisting words. Lawyers, too. Kudos, Mr. Turow: you win the daily double.

Restraining Procreative Activity

I've spent some time scanning the transcript of the Supreme Court oral arguments in the Prop 8 same-sex marriage case. I thought one exchange in particular went very poorly for the opponents of same-sex marriage.

The key for defenders of "traditional marriage" is to come up with a rational basis for restricting marriage to one man and one woman. The general argument that opponents of same-sex marriage make is that the state has a rational basis in promoting marriage as an institution devoted to procreative activity. Since only a man and a woman can procreate, the argument goes, this provides a rational basis for restricting marriage to one man and one woman (at a time).

An obvious rejoinder is: what about infertile couples? Could the state prohibit infertile couples from marrying? Obviously not, but perhaps that can be distinguished on privacy grounds. So Justice Kagan put forth a more subtle hypothetical: could the state prohibit marriage between couples over 55 years old?

[Funny this should come up, given this recent post by Mr. Gillete.]

The lawyer arguing against same-sex marriage admitted such a law would be unconstitutional, but tried to distinguish that situation from same-sex marriage. First, he argued that almost all men are fertile until their dying day, so it's very unlikely that both parties to the over-55 marriage would be infertile. Second, he argued that marriage not only encourages procreation, but discourages reckless procreation:

Your Honor, society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that .. 

[interruption, followed up later with:] 

[Marriage is] designed, Your Honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage. 

So the idea is, it seems, that marriage has a purpose even when the woman is no longer fertile because the marriage norms of fidelity and monogamy discourage "irresponsible procreative conduct outside of that marriage" by the still-fertile male spouse.

But why isn't this an argument for same-sex marriage? Gays and lesbians are of course just as fertile as heterosexuals, and they do have children. If the institution of marriage is essentially about norms of monogamy and fidelity, which are enforced to prevent irresponsible procreative conduct, why wouldn't allowing gays and lesbians to marry be just as likely to prevent irresponsible procreative conduct?

Indeed, many gays and lesbians get married to members of the opposite sex and have children with them, only to have those marriages break apart when it is discovered that the marriage is based on a fundamental lie. Allowing same-sex marriage would seem to make this less likely, and thus promote this supposedly essential function of marriage.

The Freedom to Own Slaves?

Prof. Dale Carpenter points out that St. Thomas University School of Law Professor Robert Delhunty is using a slavery analogy to argue (implicitly) in favor of a constitutional amendment banning same-sex marriage in Minnesota. Prof. Delhunty's premise is that whenever one party gets freedom, the freedom of another party is necessarily constricted:

[W]henever the law expands the freedoms of one person or group, it necessarily contracts those of another. When the U.S. Supreme Court raised the bar to success in libel suits brought by public officials, it expanded the freedom of the press but diminished the freedom to serve in public office without fear of being defamed. Freedom to publish narrows the right to safeguard a reputation.

Fairly cogent points. But, alas, he goes on:

[T]he constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both. 

It is rare, but perhaps occasionally wonderful, to see an argument reduce itself to absurdity. Prof. Carpenter breaks it down:

So slaveowners lost what Delahunty calls a “freedom” — “the freedom to own slaves” — when they were forced to live in a world where they could no longer own slaves. It’s just that slaves gained more freedom from their freedom than slaveholders lost from losing the freedom to own other people.

I am going to put this in the bottom ten percent of arguments I've seen against same-sex marriage.

Terrible arguments in favor of Illinois's "wiretapping" statute

Illinois's unconstitutional "wiretapping" statute makes it a felony to make an audio recording of police officers going about their business in public spaces. A bill had been pending in the legislature to fix this before the Illinois Supreme Court gets around to it. That bill, however, has been killed.

The State Journal-Register article quotes three legislators making three different arguments against the bill. Each of the arguments is ridiculous.

Ridiculous argument #1:  Representative Jim Watson, one of the opponents of the bill, had this to say:

Why should [the police] have to go get a court order to record these people when these people can record them?

This is just hogwash. Police have every right to record the activities of citizens going about their business in public. And they do so all the time. For example, as Radley Balko points out, many cops are equipped with microphones during arrests. No warrant required.

Ridiculous argument #2: Representative Jim Scacia says that the bill opens the possibility for citizens to alter audio recordings of interactions with police to make them look bad. If that's truly a concern, here's an idea: make it a felony to alter audio recordings of interactions with police to make them "look bad." My guess is that if there were such a law it would never be enforced because this never actually happens. Making audio recordings of police officers is perfectly legal in most states. You have not missed the scandal of altered, make-cops-look-bad audio recordings in those states. It doesn't exist.

Ridiculous argument #3: Representative Dennis Reboletti says,

We should not be creating an atmosphere where people enter this ‘got you’ mode and try to tape law enforcement, trying to catch them (doing things).

Hmm. A lot of people think that people behave better when they're being monitored. That's part of the point of police departments, in fact. And in a state like Illinois, which has a horrid history of corruption and torture by police, you might think that some "gotcha" citizen reportage might be welcomed.

But even if you accept Mr. Reboletti's dubious premise that citizen recordings of police officers should be discouraged, it doesn't follow that such conduct should be criminalized and made a felony. For example, the goal of discouraging gotcha recordings could be achieved by making these kinds of recordings inadmissible in court. You could even make the recordings contraband. These would be laws only a Nazi could be proud of (and I hate Illinois Nazis) but at least they would accomplish the stated goal without putting people in prison for pressing "record" while standing on the street corner.

In any event, Mr. Reboletti's argument is ultimately disingenuous because it is already legal to take pictures of and make video recordings of police officers "doing things" in public, as long as there is no audio. If the goal is to discourage an atmosphere where citizens can make a record of cops' public activities, there is no justification for this discrepancy.

All of this goes to show that the law is unconstitutional. No one can come up with a compelling state interest that this law is narrowly tailored to address. No one can even come up with a non-ridiculous argument. The law is a disgrace.