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In response to my article on polyamory, mentioned in Why Just Two? , Hadley Arkes wrote me with a few comments of his own on the subject, which he’s given me permission to post here. During the hearings over the Defense of Marriage Act in 1996, he wrote, he and Robert George had argued

that once we broke away from the telos of sexuality in begetting, or once marriage was detached from that purpose, we couldn’t see the ground of principle that confines marriage to two rather than three or more (the polyamorous). But you suggested here another dimension to the argument:  We can use the terms provided to us by Justice Kennedy, when he said that the opposition to the homosexual life could be regarded essentially as an “irrational animus,” for there were no plausible reasons in support of that opposition.

If the other side cannot really supply a principled justification for refusing to recognize the love of the polyamorous by recognizing it in marriage, then why doesn’t it become apparent that the refusal to accept polygamy or polyamory could be attributed mainly to a stubbornness or an aversion that cannot quite explain itself.  In other words:  an irrational animus. I think we have to make use of that.

Your article reminds me of an argument I made in a conference at Princeton, and at Harvard, which was published in a book we did for the Witherspoon Institute. It’s about the “political jujitsu” of the argument for gay marriage: that the central and the strongest argument offered by the proponents of gay marriage also supplies the strongest lever against their position.

Their strongest argument is that “it is not necessarily” true that all heterosexual marriages will produce children, that all heterosexual couples intend to beget children, or that every homosexual couple will be notably worse as parents than any heterosexual couple. They have the proper form of the argument: They demand nothing less than a “categorical” moral ground for the law, a proposition that answers to the question of “whether it is necessarily true that . . . ”.

This is remarkable: the people who have been arguing that there are no moral truths and improper to legislate on moral grounds, now tell us that we not only need a moral justification before we legislate, but that we need nothing less than a categorical, exceptionless moral truth!

But then here is the turn: Once they put those premises into place, they cannot flick away our demand for a principled justification for their position. They can’t answer the question on polyamory by saying, “Well, that happens only rarely.”  The question is, What is the ground of principle on which you reject the claim of any polyamorous ensemble?


Professor Arkes’ most recent article for the magazine,  Vast Dangers in a Small Space , takes up a related subject, the case of  Christian Legal Society v. Martinez. His most recent articles for “On the Square” are  Mr. Justice Breyer Writes a Dissenting Opinion and Vast Dangers—Confirmed , a follow up to “Vast Dangers in a Small Space.”

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