Experiments in Matrimony

Just Married: Same-Sex Couples, Monogamy, and the Future of Marriage
by stephen macedo
princeton, 320 pages, $29.95

Before the Supreme Court decision in Obergefell v. Hodges, the law of most states restricted marriage to opposite-sex couples. Now that the Court has held that the Constitution guarantees the right to marry a person of the same sex, that restriction is gone. Same-sex marriage is the law of the land.

Stephen Macedo understands that expanding marriage to include same-sex couples raises thorny questions. If marriage is no longer exclusively heterosexual, perhaps it should also cease to be monogamous. Though he applauds the advent of same-sex marriage, Macedo is opposed to polygamy and spends most of Just Married arguing against it. But there are more momentous consequences of gay marriage that he barely considers.

In making his case against polygamy, Macedo touches on two key questions about the nature of marriage. Is marriage essentially a sexual relationship? Does marriage carry the expectation of sexual fidelity and exclusivity?

Macedo concedes that “romantic love has been the paramount reason for marriage for quite some time.” He avers that “sexual relations in marriage have a special sort of significance,” which he attributes to their “connection with the act of procreation.” Yet, not surprisingly in light of his strong embrace of same-sex marriage legalization, he does not assign central importance to procreation, either as a defining feature of marriage or as a practical expectation. In consequence, his (apparent) defense of the sexual connection as setting marriage apart from other social relationships is unpersuasive. If the significance of sex is tied to the creation of children, as Macedo says, but marriage is no longer directed towards “the act of procreation,” why demand that sex be a part of marriage at all? In his view, there appears to be no rationale for distinguishing marriage from an asexual friendship, or any other lifelong alliance between two people, whether related by blood or not.

Sexual fidelity also receives a weak and equivocal defense. Should sexual exclusivity continue to be an abiding feature of marriage? Are fidelity and exclusivity constitutive of marriage? Macedo dances around the question. Because of his reluctance to embrace traditional sexual morality and to express moral disapproval of any private sexual choices, he objects to infidelity only because it entails deception and betrayal. In other words, the problem is lying, and not what is being lied about. This will not do. Deception and betrayal are aspects of infidelity only because we expect sexual exclusivity. If that expectation is relaxed or suspended, there is no need to deceive and betray.

At one point, Macedo does acknowledge the destabilizing power of infidelity. He goes so far as to assert that “twoness makes sense for marital and marriage-like commitments” because “jealousy is an extremely powerful human passion.” This “makes polyamory a nonstarter for loving relations that are committed and reciprocal, at least for the vast majority.” But his chief concern seems to be defending gays against the charge that their penchant for sexual adventurism and open relationships will undermine the norm of sexual fidelity in marriage generally. He reassures us that, “as the gay rights movement has matured and more gay Americans have come out,” gay voices for sexual variety and adventure have been “muted” and “marginalized.” Beyond that, Macedo mostly ducks the hard questions: Are open relationships (including multiple simultaneous sexual partnerships) really undesirable, unstable, or untenable? Do they truly need to be? Specifically, how malleable is that green-eyed monster jealousy—that “powerful human passion”—upon which he relies to dismiss the viability of polyamorous and extramarital exploits in but a few sentences? And how important is the invocation of that passion to his case against polygamy?

Macedo’s main argument against polygamy is that, in addition to engendering jealousy, rivalry, and emotional resentment among women, it brings additional social evils in its train. These include female subordination, gender inequality, early marriage, and child neglect. As with his treatment of sexual jealousy, the problem with this characterization is that it leaves unresolved the question of whether these evils are inherent in plural marriage or whether they can and should be overcome by re-socialization of the sort applied over the last decades to encourage acceptance of homosexuality. Macedo concedes that harmonious polygamous families exist, as do stable homosexual households. And it is difficult to separate the observed features of past and present polygamous practices from the religious and social settings in which they are observed. How can Macedo be sure that polygamy would bring “stationary despotism” when practiced in an avowedly egalitarian society like our own?

Macedo’s case against legalizing plural marriage bears an uncomfortable resemblance to that advanced against gay marriage itself. When Mark Regnerus, a University of Texas researcher, reported that children raised by gay parents were at higher risk of trouble than children raised by opposite-sex parents, critics objected that the children in the study were raised when homosexuality was considered aberrant. Once society becomes more accepting of these arrangements, they said, the problems associated with them will diminish. Likewise with polygamy, one assumes. If plural marriage were legalized, much would depend on who practiced it, whether society accepted it, and how it would work. Such patterns are hard to predict, but there are grounds for speculation.

So let’s speculate. Social theorists such as Charles Murray have written of how stable marriages are now most common among relatively privileged members of society (educated whites and Asians), with marriage less enduring and in decline among other populations. Short-lived, simultaneous relationships and multi-partner fertility are growing among the less educated, especially among blacks, as these groups retreat from formal marriage. Given that lower-middle-class people are finding it difficult to maintain formal marital relationships of any kind, they are unlikely to lead the charge into plural marriage. Successful polygamy, like stable marriage and our well-established custom of serial monogamy, would appear to require the superior organizational skills and self-discipline characteristic of the educated. Moreover, being married to more than one woman is expensive. Leaving aside certain religious minorities, formalized polygamy in twenty-first-century America would be practiced mainly by the affluent upper class.

Educated people, who are increasingly isolated from other demographic groups, have cultivated a strong set of mores and expectations surrounding companionate marriage, women’s equality, spousal roles, and child-rearing. Presumably these would be imported into polygamous relationships, tempering and shaping their character. Thus polygamy might evolve and reform in ways that would make it acceptable to elite opinion.

One knock against polygamy is that it creates a shortage of marriageable women, because a few high-status men monopolize the field. But there is presently a shortage of marriageable men both at the bottom and top of the social spectrum. Kathryn Edin and others have documented that a growing number of less educated, working-class women regard their male counterparts as undesirable mates. The reasons range from poor socialization and behavior to dimming economic prospects to lack of sexual restraint. Even among the privileged, a gender mismatch has developed, with more women than men completing college. In such a landscape, women with narrow prospects might benefit from being able to share the rare high-status or well-socialized man.

Macedo unduly minimizes other potential benefits of polygamy for women. He assumes that plural wives and their children are destined to engage in a grim struggle for their husband’s resources and attention, but this ignores the ways in which women might benefit from cooperation among wives. Sisterly aid in child care and housework might come as a boon to women struggling to balance employment and family, at least when compared to single mothers or the harried wives of busy or tradition-bound men. And the prospect of sharing a man’s sexual attention might eventually become more accepted in a society in which sexual hookups and simultaneous liaisons are more common and openly acknowledged, and where not a few women are ambivalent about the emotional (and sexual) demands of the wifely role. In other words, polygamy might evolve into a haven for neo-traditional women who seek structure, stability, and sisterhood, value career and independence, and are not particularly romantic about men or sex.

A few simple rules could blunt some of the harmful features Macedo attributes to plural marriage. No man should be allowed to take a new wife without the written permission of existing wives. Although not a guarantee (because men do often have superior bargaining power), this rule would ensure informed consent on the part of women in polygamous marriages, a classic liberal value.

Indeed, in comparing polygamous to dyadic relationships, Macedo overestimates the prospect for equality within conventional marriage. Powerful factors give men an upper hand over women, including men’s longer reproductive life, higher earnings, and larger pool of prospective mates. Women may do as well or better in polygamous marriages. Macedo fails to tell us how the evils he predicts will ensue are to be weighed against the rights and positive interests that might be at stake in practicing that form of marriage. By failing to take seriously the way plural marriage could serve liberty and autonomy, he makes things easy for himself.

Macedo’s brief against polygamy inverts the usual lopsided celebration of sexual autonomy, which stresses rights and ignores harms. Indeed, a striking feature of the jurisprudence of “fundamental rights” pertaining to sexual choices and reproduction is the absence of any acknowledgment that a lot of sexual behavior arguably protected under the rights umbrella can have egregious social consequences. Because it strenuously avoids identifying harms from the exercise of sexual autonomy, this jurisprudence does not say when or how sexual rights must be balanced against social harms. So even if the downsides that Macedo attributes to polygamy are real, we simply don’t know how to weigh them against the rights, freedoms, and prerogatives that polygamists claim and that he generally affirms, at least in the context of some kinds of sexual and marital relationships.

As if recognizing this problem, Macedo insists that “same-sex marriage and polygamy have little in common” because “the basic principles of equal liberty and fair opportunity that undergird the case for same-sex marriage argue against polygamy.” He thus avoids acknowledging that any sort of right, let alone a fundamental one, is at stake for polygamy. Yet he gives us no guidance as to how to determine what counts as a right, let alone a “fundamental” one, in matters related to sex, marriage, and reproduction, and why none of those rights might ground a case for polygamy. Men have always, everywhere, yearned for greater sexual variety and young wives. This is written in our nature. One could, after all, consider such desires “compelling.” But Macedo assures us that they give rise to no legally cognizable claim. Despite these reassurances, his arguments for recognizing same-sex marriage would, if consistently applied, commit him to permitting polygamy. The slope is slippery indeed.

Another shortcoming of Just Married is its failure to give sufficient attention to the future status, both personal and legal, of the relationship of parents to children in same-sex families. Although gay couples are intent on seeing their marriages as fully equivalent to opposite-sex relationships, there is one especially obvious way in which they are not. Opposite-sex couples frequently produce children, but same-sex marriages are sterile by nature. Both members of a same-sex couple cannot share a biological connection with the same child. At least one parent will not be a natural parent of any child born into and raised by a same-sex family. The separation of legal from biological parenthood has already occurred to some degree for opposite-sex couples. Divorce and remarriage, and the marriage of women who already have children, can produce similar situations. But these are still regarded as a deviation from the norm. For same-sex couples, the lack of mutual biological connection is intrinsic.

Macedo never denies this reality. Over two short pages, he gestures toward some of the issues that inevitably arise. The legal and practical difficulties are dauntingly complex, and many questions remain unsettled. Because only one member of a gay couple, at most, can be the child’s “natural parent,” there is always a “third parent” (mother or father) lurking in the background. These “third parents,” regardless of marital status, potentially bear rights and responsibilities toward their children. Many states currently require an unrelated parent—such as a stepmother or stepfather—to take affirmative steps (including formal adoption) to establish legal parenthood, and those rules are frequently extended to same-sex couples. Depending on the circumstances, the biological father or mother must affirmatively relinquish parental rights to clear the way for such an adoption.

The very process of producing children also gives rise to complications. Many lesbian couples use anonymous sperm donors (who have few rights under most state laws), but gay male parents who reject adoption must resort to surrogacy, for which the rules are variable, restrictive, and complex, and which raises delicate questions of class exploitation. There have been suggestions for minimizing these difficulties through various legal reforms. Some have proposed that the widely applied presumption of paternity, which ascribes legal parenthood to husbands for children born within traditional marriages, should be extended to same-sex spouses of either sex. Others have urged suspension of the “rule of two” to permit children to have three legal parents, including same-sex partners and a natural parent external to the relationship. There is a push to relax existing restrictions on surrogacy and to make contracts for surrogate services more widely available and easily enforceable. Finally, some courts have dropped the requirements of biological connection or formal adoption as a basis for legal parenthood under some circumstances, including for same-sex partners who have participated in the creation or upbringing of an unrelated child.

None of these proposals is without problems. As Macedo notes, parceling rights among multiple parents makes it easier for each to shirk. Others have worried that granting rights to non-biological parents could lead “abusive partners or anyone claiming ties to the child to drag a biological parent into court for bogus legal challenges.”

No one can predict with certainty how these issues will play out. Conflicting aspirations toward innovation and tradition haunt the new world of gay families with children. Ultimately, however, the most important consideration is how the children fare. Optimists insist they will do just fine. Children of same-sex couples are often desperately wanted and planned for. Gay male couples must resort to surrogacy or adoption, which are costly and require sustained commitment. There is every reason to believe that children in these families will be well-loved and meticulously cared for.

But what will these children think of the way they were raised once they grow into adulthood? For children of caring gay parents who nonetheless grow up without their biological mother or father, an idyllic childhood may give way to resentments, awkwardness, a sense of loss, and a lack of extended family. Macedo recognizes, albeit dismissively, the concern that children with same-sex parents run the risk of “confront[ing] a diminished context of kin altruism.”

The deep problems posed by gay parenthood are evident in a letter that appeared in the New York Times style section in 2014 in response to an article about a gay couple seeking to repeal the New York state law prohibiting surrogacy contracts. The letter states:

A gay couple (men) who are friends of mine were considering a surrogate vs. adoption choice, and they ultimately chose adoption. One of them told me his reason for rejecting surrogacy was that, even to perpetuate his own genes or those of his partner, he did not think he could spend the rest of his life feeling responsible for a child being deliberately deprived of a mother. It seems to me that this cuts to the heart of the matter.

A gay couple’s decision to create a child requires that child to grow up apart from at least one natural parent. Powerful longings run against this choice. The biological imperative runs deep, and many of those raised in unconventional, fragmented, or incomplete families are feeling its pull. Aided by sophisticated DNA technology and entrepreneurs catering to their quests, adopted children and birth parents are challenging the secrecy surrounding adoption and insisting on their right to do so. Many are taking steps to reconnect with their biological parents. The search for relinquished children, birth mothers, and lost blood relatives is now an enduring feature of the social landscape. Tracing genealogy and unearthing ancestry are also growing preoccupations.

Apart from the effects on individuals, there are broader societal considerations at stake. Margaret Somerville, a Canadian scholar, has expressed the concern that, by breaking the biological parent-child link through the habitual use of assisted or third-parent reproduction, same-sex parenting will weaken the connection between marriage and procreation and demote the importance of generational biological ties. Heather Mac Donald has a similar, albeit more gender-specific, set of worries about the proliferation and normalization of same-sex families. She notes that the unity of genetic and parental responsibility, which has been a constitutive feature of human life for most of history, is threatened by a rise in paternal abandonment and single-parent families. Although recognizing that heterosexuals have taken the lead on these trends, she predicts that lesbian families that create children who will not be raised by, and often don’t even know, their male parent will reinforce the message that fathers are dispensable. This will further undermine the importance of fathers in society—an attitude that Mac Donald sees as fueling the destructive trend towards paternal abandonment and irresponsibility. In Mac Donald’s view, the push to equalize the status of gay couples by celebrating same-sex reproductive techniques is another example of “putting what’s good for adults above what’s good for children.”

Same-sex marriage legalization will have tangled and far-reaching consequences for both adults and children. It is quite possible that the experiments we have embarked upon may leave us worse off in the long run. Like our culture as a whole, Macedo refuses to acknowledge this possibility, or acknowledges it only selectively. This refusal has left him, and us, unprepared for a future that is quickly coming.

Amy L. Wax is Robert Mundheim Professor of Law at the University of Pennsylvania Law School.