A free HBO weekend allowed me to watch Big Love, the new polygamy drama. Has potential. Of course, with polygamy comes those who must compare it to same sex marriage. Charles Krauthammer, apparently thinking one HBO drama is a clear tipping point (as you know, the Mafia is also legitimate -- everyone just loves the Sopranos), knows too many gay people to buy the conservative line hook, line, and sinker. He just thinks now we just cannot ignore that slippery slope.
I cannot take the concern too seriously. There are simply too many differences -- the problem with an illegitimate classification is that it is invidious and/or differentiates between two classes of people without good reason. The two are connected since the bad reason tends to be related to bias and disfavor more than rational reasoning. Nonetheless, one can attack discrimination often by comparing the two groups involved, and pointing out the similarities are just too many to warrant treating them differently. Such is the case with same sex marriage.
Polygamy has any number of differences -- other than discrimination of sex and sexual orientation, which is enough -- from monogamy to warrant treating it differently. Now, the particular laws might be too broad -- surely, the old time laws that made mere promotion of polygamy a crime would be an issue as might even be those that broadly ban "cohabitation" in all its forms or "purporting" to be married. Purely religious ceremonies seem different than full fledged marriage, the state kind. And, even if the practice is clearly attached to religious beliefs, free exercise is not absolute.
As a libertarian move, it is not totally irrational to talk about a right to polygamy. But, I feel the same thing about drug use, but I can differentiate it (especially the hard stuff) from other aspects of a right to privacy and so forth. For instance, religious belief (culture is on a somewhat weaker plane) is on some level a basic part of one's being. It, at least in our tradition, is not quite a "choice," but something that comes from inside and/or above. So, religious activities have a special place. Also, overall, privacy rights include determining who you marry, even if some state involvement enters the mix. I surely do not think the state should stop married couples from having "open marriages" to some extent, banning swapping and so forth. One can even point to the usual problems with criminalization.
But, if a wife allows her husband to have a mistress ... or even still have sex with someone he once married (and divorced, but on some level, they agree some "marriage" state remains) ... this is not the same thing as polygamy. Still, many people have open relationships which are in some sense not totally incomparable. I think they have every right to have such relationships. This would be a form of informal polygamy, one that -- to be honest -- is far from new. The establishment, however, of a formalized state structure of polygamy would be quite different. It is why legal parlor games and facial comparisons break down on closer scrutiny.
So, yes, polygamy is not a total irrational result of liberal marriage norms. One might note however that from ancient times the "slippery slope" of heterosexual monogamy was polygamy -- including in the Bible -- more than same sex relationships. All the same, it is quite different from monogamy -- of any type -- and the line drawing is far from arbitrary or even hard. And, people like me who are willing to consider polygamy as not horrible are quite in the minority. Law is not a game of "well being totally principled, this sort of necessarily follows." We do not have unisex bathrooms ...
even though they had one in Ally McBeal.
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PS The move a few years ago by the Massachusetts Supreme Court to declare bans on same sex marriages to be a violation of its state constitution brings to mind their moves against slavery two hundred and twenty years before. They alone strictly interpreted provisions in its state constitution respecting the "free and equal" status of all citizens to mean slavery was invalid. This reflected special state practice and understandings respecting liberty. Other states interpreted the terms in context of their own experiences. They, unlike some people, have perspective.