In Lawrence v. Texas, the U.S. Supreme Court, reversing its own then-recent holding in Bowers v. Hardwick, ruled that laws against homosexual sodomy are unconstitutional–even though the Constitution says nothing about sex, let alone sodomy–on the ground that the right of privacy (also never mentioned in the Constitution) protects all consensual, private sexual contact between adults. Lawrence immediately was seen as a milestone in the campaign for gay marriage. Some conservatives noted that the Court’s rationale would protect polygamy, too, but they were denounced as killjoys. Lawyers noticed, however. Soon after Lawrence, several lawsuits were commenced in federal courts asserting a constitutional right to polygamy.
Earlier this year, in United States v. Windsor, the Supreme Court didn’t quite decree that gay marriage is a constitutional right, but in striking down key provisions of the Defense of Marriage Act it came perilously close. I don’t think many observers doubt–I certainly don’t–that gay marriage will soon be anointed as a right by the federal courts, if the issue isn’t first made moot by state legislatures.
Once gay marriage has been enthroned, polygamy is next on the agenda. Here’s the thing: once you take the teleology of reproduction out of the equation, there is no logical objection to polygamy. If Fred and Sam can be in love–which I don’t doubt–and therefore are entitled to marry–there’s the rub–then why can’t Fred, Sam and George be in love, and equally entitled to marry one another? Polygamy follows from gay marriage as night follows the day.
Last Friday, the portion of Utah’s anti-polygamy law that applied to cohabitation, passage of which was a condition of Utah’s admission to the Union, was ruled unconstitutional by Federal Judge Clark Waddoups. Judge Waddoups’s opinion has been criticized in some quarters and, in any event, represents not the last word on the subject, but rather an opening shot. Still, I don’t think it is hard to see where this is heading.
The same liberals who were outraged, or pretended to be, when conservatives pointed out that gay marriage would lead to polygamy, are now starting to dip their toes into the water. Like the New York Times, the official voice of the Left: “One Man, One Woman. Or More.” The Times invited six commentators to weigh in on polygamy; four were in favor. Click to enlarge:
The summaries of the four pro-polygamy views will sound familiar. Stop me if you’ve heard this before:
“Legally, No Different From Same-sex Unions: Liberals should not let themselves be manipulated into only caring about one kind of marriage discrimination.”
“Enough With the Scare Tactics: Like same-sex marriage, plural marriage should be debated on its merits. Let public policy concerns, not sloppy moralizing, guide the law.”
“We Are A Nation of Boundary Breakers: Permitting consenting adults to engage in polygamy may, perhaps, make all our families freer to be as we choose.”
“Understanding Who ‘They’ Are: Ultimately, we must ask ourselves: Are polygamists deviants who should be repressed, or are they as deserving of respect and dignity as anyone else?”
Trust me: it’s coming. First, any criticism of polygamy will be effectively silenced. Today the principal star of “Duck Dynasty” was suspended by A&E for comments in an interview that were deemed anti-gay, although just a year or two ago, they would have been considered self-evidently true. Before long, the same thing will happen to anyone in the public realm who questions the desirability of polygamy. Then polygamy will be blessed as a constitutional right. Who can deny the power of true love?
At that point, marriage, an institution that has existed for thousands of years and has been considered indispensable by nearly everyone since time immemorial, will be extinct. The consequences are unknowable. Some libertarians argue that the solution to this problem is to get the state out of the marriage business entirely. I would be sympathetic to this approach if I could understand what it means. Is the entire field of family law, which has been an important part of our civilization’s legal structure for centuries, to go out of existence? How can you have family law without marriage law? I don’t get it.
As Scott is fond of pointing out, the first platform of the Republican Party announced the party’s opposition to the “twin relics of barbarism,” slavery and polygamy. That platform turns out to be more relevant to current affairs than we might have thought. This time, however, the GOP’s opposition to polygamy is likely to be overrun by the establishment, which considers any anti-religious initiative to be good policy.