There was an interesting exchange between Justice Alito and Mary L. Bonauto, one of the lawyers arguing on behalf of same-sex marriage before SCOTUS. Alito asks Bonauto how polygamous unions could be denied the right of marriage in the future if SCOTUS ruled in Bonauto’s favor given that the rationale offered for legalizing same-sex marriage seems to apply to polygamous unions as well. Bonauto’s response was…well…interesting. After shooting herself in the foot, the best she could come up with was a statement of faith that it wouldn’t happen due to some practical and legal concerns. Not very persuasive. The fact of the matter is that once you dispense with the opposite-sex prerequisite for marriage, the idea of “two and only two” no longer makes sense. The rational basis for limiting a marriage to two people is that there are two sexes, and the sexual completeness of one man and one woman. As Robert Gagnon has written:
The principle of monogamy, restricting a sexual relationship to two persons at a time, is predicated on the twoness or binary character of the sexes. Because there are essentially two and only two sexes, the presence of a male and female in a sexual relationship is necessary and sufficient for reconstituting a sexual whole, so far as the number of persons in the union is concerned. A third party is neither needed nor desirable. If society repeals a male-female prerequisite, there no longer remains any logical or nature-based reason for society to withhold approval from multiple-partner sexual unions….[1]
Given the rationale for accepting same-sex marriage, polygamous relationships are equally justified. Indeed, a better case can be made for polygamous relationships because they have (1) historical precedent and (2) can claim religious grounds. In fact, the case is already being made. It’s only a matter of time before the logic of same-sex marriage is applied equally to polygamous unions. People will be shouting “marriage equality” and “love isn’t limited to two” on this issue too, and only the “bigots” who think the number of people in marriage matters will stand opposed.
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[1]Robert Gagnon, “Why the Disagreement Over the Biblical Witness of Homosexual Practice?: A Response to Myers and Scazoni, What God Has Joined Together?”; available from http://robgagnon.net/articles/ReformedReviewArticleWhyTheDisagreement.pdf; Internet; accessed 15 December 2006.
Thinking to Believe 
May 2, 2015 at 1:45 pm
No doubt there will be attempts to legalize polygamy, but the logic of your argument is very weak. There is simply little logical equivalency. I would think that when the issue of polygamy gets before district and circuit courts the courts will agree that the states have an interest and they will uphold anti-polygamy laws.
My guess regarding the current case at the Supreme Court: The Supreme Court will affirm Obergefell v. Hodges and allow those states that do not allow same sex couples to marry to keep their laws. However, it will simultaneously hold that each state must accept and respect same sex marriages from those states that allow them.
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May 2, 2015 at 10:07 pm
Mormons go for polygamy, Muslims go for polygamy; albeit, they only favor men having multiple wives but not wives having multiple husbands. But men having multiple wives is Old Testament and men having mistresses oiut of wedlock is pretty much a standard arrangment if you can get away from the jealous rage it may arouse.
But If we can only get away from the concept of public marriage where everyone thinks it is their business to decide for others how they should behave and let the flow go where it may then maybe it should remain the domain between a man and his goddess only.
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May 3, 2015 at 3:21 am
Randy, you say there is little logical equivalency. I don’t know why you would say this. All of the arguments employed to support SSM apply equally to polygamy: equal protection, it’s about love, it’s about sexual orientation, etc. Additionally, to make their case, SSM proponents have had to argue explicitly or implicitly that marriage is not a natural institution rooted in human nature/sexuality, but a social institution that can be whatever we want it to be. Given this understanding of marriage, there is nothing other than “bias” and “bigotry” that can stop it from becoming law.
I don’t see why the interest of the states to prohibit polygamy would be any different than their interest to prohibit SSM. States have an interest in both, but the courts have been clear that the 14th amendment requires equality. Why should those with a polygamous or polyandry orientation be prohibited from being able to marry those they love?
As for your prediction, we’ll have to wait and see.
Jason
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May 3, 2015 at 2:29 pm
THE bisexual argument for polygamy I believe is wrongly rooted in the supposition that bisexuals are attracted to either sex; that’s way too simplistic a view, a fallacy and no bonafide bisexual would argue for polygamy on the grounds of sexual attraction for others. I believe that a bisexual by nature is not one who is so much attracted to either the male or female hand that fulfills the gratification but by the sexual sensuality the bisexual experiences. The gratification of the bisexual is the governing constituent here and not the hand that milks the cow; it could be a milking machine or a vacuum cleaner for all intents and purposes, it’s the END not the MEANS that dictates.
In other words bisexual gratification is merely the dog being wagged by the tail. Now, a bisexual wants to have the dog wagged by the tail but whether the tail wagging the dog is the hand of a male person or the hand of a female person, the vacuum cleaner or the milking machine is irrelevant to the bisexual; it is not the hand holding the tail that wags the dog; it is the “tail that wags the dog” unto gratification, that is the important event for the bisexual.
Whether the hand is male or female has nothing to do with sexual attraction here, the main attraction is the sexual gratification of the experience for the bisexual; that is the bisexual’s only desire; you could change hands in mid stream and it wouldn’t matter because its the tail wagging the dog that counts not the hand holding the tail.
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May 3, 2015 at 3:27 pm
Senator Ted Cruz was asked recently how he would react if one of his daughters (ages 4 and 7) came out as gay, he replied: “We would love her with all our hearts. We love our daughters unconditionally.”
That may have been the only thing a presidential candidate could say given recent trends on such issues. A majority of Americans (55 percent) now support same-sex marriage, a figure that shoots up to nearly 80 percent among people 18-29 years old, according to Gallup.
“Public opinion has rendered its verdict on the morality of gay and lesbian relationships,” writes Republican pollster Whit Ayres in his new book “2016 and Beyond.” “The only question is whether the Republican Party will acknowledge and adapt to this new reality.”
Ditto for the religious community or they will continue to decline into irrelevance.
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May 5, 2015 at 5:35 pm
Jason,
You asked about my comment at post 1 where I stated that polygamy and same sex marriages are not logically equivalent. The difference I was referring to is that polygamy is certainly a matter of choice, whereas a majority of the members of the Supreme Court would, I believe, consider a person’s sexual orientation to be a non-choice matter.
Note that the myriad of local, state, and federal anti-discrimination laws almost invariably focus upon classes of people who’s membership in the class was not a matter of choice: race, gender, national origin, disability , genetic information. A notable exception is “religion” which is included because of early influence from the Catholic and Jewish communities, whom were often discriminated against because of their religion. Most Catholics and Jews would not consider their religion a matter of choice. They would argue almost all of them were born into that class and it is not acceptable to expect them to change one’s religion in order to get a job.
In my opinion, the legal community has assumed sexual orientation is not a matter of choice. There are many experts who would agree. Therefore, the same sex marriage laws, I would think, have crossed that first hurdle. Polygamy would never cross that hurdle and would be dismissed, I believe, almost out of hand, by most legal experts.
The heart of the matter before the Supreme Court, as I see it, is not whether the Gay Community should be allowed to marry. I think the secular world, and the courts, would agree they should. The question before the Court is whether the states should be allowed to decide whether or not those marriages might be harmful to the community at large, and therefore whether the states should be allowed to outlaw them for that reason. I believe the majority of the members of the Supreme Court probably believes that same sex marriages do not harm the community at large.
However, there is another part of the constitution that is also very important to the Supreme Court – the “Full Faith and Credit Clause” (Article 4 Section 1) whereby the individual states must (usually) honor the laws and judgments of the other 49.
My guess is the Supreme Court will rule that states may keep their laws against same sex marriage, however each state will be required to honor the marriages performed in the other states that allow same sex marriages. The practical effect will be that a same sex couple will be allowed to marry in Illinois yet live in Alabama and file their state taxes as a married couple, gain inheritance rights and pension rights enjoyed by married people, demand certain insurance benefits granted to married couples, etc.
And, if you like watching me out on a limb – I think the vote will be 9 – 0.
Randy
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May 5, 2015 at 11:27 pm
Randy,
Same-sex marriage is just as much a choice as polygamous marriage. Neither involve an orientation because orientations belong to people, not institutions like marriage. But perhaps you meant to say that gay people (who want to have a same-sex marriage) have a gay orientation, whereas people who want to have a polygamous marriage do not have a polygamous orientation. But how could you prove that? After all, what is an orientation? It is a natural desire for some X. It is a natural attraction for some X. We identify sexual orientations by asking people what they desire sexually. We say gay people have a gay orientation because they desire to be in relationship with and have sex with people of the same gender. But the same is true of people who want to be involved in polygamous relationships. They naturally desire to be in relationship with and have sex with more than one person. How is that not a sexual orientation? How could someone say otherwise? And if they are naturally oriented to need multiple partners to be fulfilled (their sexual orientation), how could the courts deny them their rights?
But the issue of choice and orientation is irrelevant to the issue of marriage anyway. Just because someone doesn’t choose to be attracted to someone of the same gender doesn’t mean we need to allow them to marry. Whether or not someone is able to participate in the institution of marriage is dependent on what marriage is. What would someone say if I said I had a right to have a hysterectomy? They would think I was crazy because the nature of a hysterectomy requires that I have female organs in the first place. Marriage is not a social construction that we can change at will to make it mean whatever we want it to mean. Marriage is a very specific kind of relationship. It is a relationship based on human nature and human biology. It is the kind of relationship that forms a one-flesh union (with the potential for children) between two sexual opposites. So even if we said that homosex was morally benign and homosexual relationships were a social good, it still wouldn’t follow that two people of the same gender can become married because that kind of a relationship is not a marital relationship by its very nature.
So while I agree with you that sexual orientation is not a choice (which is not to say that it cannot change; only that people do not choose what or who they are sexually attracted to), that is irrelevant to the question of marriage. At best, it could be construed as relevant to the question of the morality or legitimacy of same-sex relationships. But same-sex relationships could exist without being called marriage.
Jason
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May 10, 2015 at 4:12 pm
Jason,
The Justices seemed concerned about the consequences of declaring marriage a constitutional right.
As an example of consequences – even churches ( I would think) would be required to not discriminate against gays wanting to marry. There would be many other such consequences. I do not think the Supreme Court will make such a sweeping decision. I think they will let all this percolate for decades.
If a state writes a law that allows same sex marriage, then, I would think, federal courts (and the Supreme Court) could still rule that a church does not have to perform them. Didn’t one of the Justices make the point that state law is quite different than a constitutional right?
Yes, same sex marriages could be called “civil unions” with all the benefits that accompany marriage. That, however would not satisfy the gay community. The gay community has a much broader agenda than marriage and the accompanying benefits. They want to be a protected minority so that all discrimination against them would have to stop – employment, housing, etc. I don’t think they will achieve that through the Supreme Court, although they have made inroads with local and state legislatures.
Incidentally, none of what I am saying is meant to indicate my personal views. My personal views on this subject are similar to yours. I am only stating what I think the Supreme Court might do.
Randy
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May 16, 2015 at 8:46 pm
Washington (AFP) – The United States slammed Gambian President Yahya Jammeh on Saturday for “unconscionable” remarks, after the West African leader reportedly threatened to slit the throats of gay men in his country.
Homosexuality is illegal in Gambia, and Jammeh created in October the crime of “aggravated homosexuality” which carries a sentence of up to life imprisonment.
In a speech last year, Jammeh called homosexuals “ungodly, Satanic… vermins [sic],” drawing criticism from rights groups.
Rice said the United States is concerned about reports of broader rights violations in the country, including allegations of missing US citizens.
“We are deeply concerned about credible reports of torture, suspicious disappearances -– including of two American citizens — and arbitrary detention at the government’s hands,” Rice said.
Rice warned the US could take action. It revoked trade preferences with Gambia last year following reports of a crackdown against the country’s lesbian, gay, bisexual and transgender (LGBT) community.
“We are reviewing what additional actions are appropriate to respond to this worsening situation,” Rice said.
“We repeat our call for the Gambian government, and all governments, to lead inclusively, repudiate intolerance, and promote respect for the universal rights and fundamental freedoms of all people.”
Source:
http://news.yahoo.com/us-slams-gambias-president-unconscionable-gay-comments-223012790.html
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July 30, 2015 at 6:57 pm
[…] Please tell us, counsel, why polygamy is not next? […]
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