I don't know which is more frustrating: (1) trying to explain baseball to the British; (2) trying to explain the law to non-lawyers; or (3) trying to explain the difference between [A] and [B] to someone who is desperately determined to believe that [A] and [B] are the same.
Ever since Lindsay Graham's galactically stupid question to Attorney General nominee Loretta Lynch on the subject of same-sex marriage and polygamy, I've been on several comment boards trying to explain to both "conservatives" and "liberals" why recognizing a right to marry someone of the same gender does not necessitate a right to marry more than one person at a time. I'm neither gay nor married so I really have no dog in this fight, and I have no feelings about polygamy one way or the other, but I enjoy debating these issues because it helps me understand my own position and it's not a bad way to hone my legal skills. The fact is that, legally and constitutionally, the right to marry someone of the same gender and the right to marry more than one person at a time are not equivalent.
"Liberals" who disagree with me on this usually just end up accusing me of "want[ing] to" deny or "being OK with" denying marriage rights to polygamists, siblings, &c. (Or I get the passive-aggressive "Well, then let's just ban [X] too" nonsense.) Because there is, of course, no difference whatsoever between knowing, understanding or acknowledging that a state can limit and has a rational basis for limiting the number of parties to a marriage or the consanguinity of the parties, and being personally "OK with" it or "want[ing]" the states to do it or to keep on doing it. No difference whatsoever. [snark; is that passive-agressive? :) ]
"Conservatives," on the other hand, are only pretending to empathize with polygamists and amorous siblings so they can accuse me, and all "liberals," of inconsistency and hypocrisy. I've had some exhausting conversations over the last few days with "conservatives" who try very, very, very hard not only to not understand the law, but to not understand the difference between apples and oranges. Apples and oranges are both food, therefore apples are oranges.
The common thread between the two is that everyone seems to try very hard to paper over the differences between things that are different, and split hairs between things that are the same, in order to get to their desired conclusion. Or, perhaps more accurately, emphasize and see only the differences where the similarities are important, and vice-versa. If you want and need to believe that apples are oranges, then to you they're both food, they're both fruit, they're both sweet, they both grow on trees, they both have seeds, they're both made into juice, &c., and that's all you really need to convince someone -- i.e. yourself -- that they're the same. And there are plenty of differences between them (type, color, flavor, texture, nutritional content, where they're grown, &c.) that you can point to if you're trying to convince someone/yourself that they're different.
Over the last few days, discussing this issue with both "liberals" and "conservatives," I've learned inter alia that:
- There's no difference between same-sex marriage and polygamy.
- There's no difference between liberty and equality.
- There's no difference between equality and equivalence.
- There's no difference between gender and numerosity.
- There's no difference between gender and consanguinity.
- There's no difference between gender and consent.
- There's no difference between characteristics and emotions.
- There's no difference between characteristics and desires.
- There's no difference between characteristics and legal statuses.
- There's no difference between definition and qualification.
- There's no difference between permitting something and requiring it.
- There's no difference between criminalizing bigamy and defining marriage.
- There's no difference between redefining marriage and changing or eliminating a qualification for marriage.
- There's no difference between the meaning of a term and the purpose/effect of what that term denotes.
- There's no difference between the right to marry one person and the right to marry more than one person.
- There's no difference between the right to marry a person of the same gender and the right to marry more than one person.
- There's no difference between the right to marry a person of the same gender and the right to marry one's sibling.
- There's no difference between a state's justification(s) for limiting marriage to two people and its justification(s) for dictating the gender of the parties.
- There's no difference between a state's justification(s) for dictating the gender of the parties to a marriage and its justification(s) for limiting the consanguinity of the parties.
- There's no difference between prohibiting a brother and sister from marrying one another and prohibiting women over 40 from marrying.
- There's no difference between a marriage with two parties and one with more than two parties.
- There's no difference between having one spouse and having more than one spouse.
- There's no difference between the administration of an estate with one claimant and the administration of one with multiple claimants.
- There's no difference between the intestate succession rights of one spouse and those of multiple spouses.
- There's no difference between a joint tax return for two people and one for more than two people.
- There's no difference between a tenancy-by-the-entirety in real property owned by two people and a tenancy-by-the-entirety in real property owned by more than two people.
- There's no difference between allowing one person to claim the marital testimonial privilege with respect to a criminal defendant and allowing more than one person to claim that privilege with respect to that defendant.
There is, however, a difference between a "traditional" marriage and a gay marriage. Those two things are different. Absolutely everything else anyone can think of that's even remotely related to this issue is exactly, precisely, entirely, and in all conceivable ways the same.
It's an age-old rhetorical technique to accuse people of inconsistency and hypocrisy by asserting that the outcome of [X] requires the same outcome in [Y], even though [X] and [Y] are almost always distinguishable. Heck, that's what we lawyers do; if the precedent case came out the same way, explain to the judge why the instant case is the same, and if not, why it's different and should go the other way. Whether the differences or similarities are important depends on which side I'm being paid to advocate for. Non-lawyers do the same thing; start with the outcome you want, and adjust your understanding of precedent, and of what's important, accordingly. So all of that is understandable.
What bothers me is that for a lot of people, on "both" "sides," it seems to be more important to believe, judge and accuse whoever you're arguing with that they're being inconsistent, dishonest and/or hypocritical, than to actually understand the issue, to the point where the former becomes the only objective. We're more interested in judging people than in objectively understanding concepts, nuances, fine distinctions, &c. The goalposts move so often and so quickly in these conversations that it's often hard to keep up.
I guess we'll just have to see what happens after the SCOTUS rules on this. Somehow I don't see the upcoming decision on marriage having the effect of striking down limits on the number of parties to a marriage, or the number of spouses a person can have at once. But, I'm a lawyer; what do I know?
No offense intended to our friends across the pond who enjoy, understand and appreciate America's National Pastime. 3 weeks till Spring Training!! LET'S GO METS!! :)