This didn’t take long, did it? Faster than one can say “slippery slope,” quicker than the echoes of Chief Justice John Roberts’ warnings on the subject could dissipate, Politico Magazine published a rather lengthy appeal to the leaders of social liberalism to use the Obergefell decision to push for a constitutionally-recognized right for plural marriage.
At least Frederick deBoer eschews the phrase the right side of history. He does conclude, however, that “it’s time,” so consider it implicit, like the constitutional right for same-sex marriage in the 14th Amendment:
Most dispiriting, and least convincing, are those arguments that simply reconstitute the slippery slope arguments that have been used for so long against same sex marriage. “If we allow group marriage,” the thinking seems to go, “why wouldn’t marriage with animals or children come next?” The difference is, of course, consent. In recent years, a progressive and enlightened movement has worked to insist that consent is the measure of all things in sexual and romantic practice: as long as all involved in any particular sexual or romantic relationship are consenting adults, everything is permissible; if any individual does not give free and informed consent, no sexual or romantic engagement can be condoned.
This bedrock principle of mutually-informed consent explains exactly why we must permit polygamy and must oppose bestiality and child marriage. Animals are incapable of voicing consent; children are incapable of understanding what it means to consent. In contrast, consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty. The preeminence of the principle of consent is a just and pragmatic way to approach adult relationships in a world of multivariate and complex human desires.
Progressives have always flattered themselves that time is on their side, that their preferences are in keeping with the arc of history. In the fight for marriage equality, this claim has made again and again. Many have challenged our politicians and our people to ask themselves whether they can imagine a future in which opposition to marriage equality is seen as a principled stance. I think it’s time to turn the question back on them: given what you know about the advancement of human rights, are you sure your opposition to group marriage won’t sound as anachronistic as opposition to gay marriage sounds to you now? And since we have insisted that there is no legitimate way to oppose gay marriage and respect gay love, how can you oppose group marriage and respect group love?
I suspect that many progressives would recognize, would pushed in this way, that the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice. What we’re left with is an unsatisfying patchwork of unconvincing arguments and bad ideas, ones embraced for short-term convenience at long-term cost. We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism. The course then, is clear: to look beyond political convenience and conservative intransigence, and begin to make the case for extending legal marriage rights to more loving and committed adults. It’s time.
Just for laughs, let’s quote Roberts again here:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
I agree with deBoer about the silliness of equating SSM and polygamy with bestiality and pedophilia on exactly the same basis; the former deal with consenting adults only, while the latter do not. These reductios are too absurdum to make a compelling argument for the kind of decision we saw in Obergefell. They may arguably damage the argument against it by not defending the core of the defense of traditional marriage, which is that government policy can and should be crafted for the greatest societal good, within the explicit framework of the Constitution.
This matters because US society did not bar consenting adults from living within consensual structures before Obergefell. What Obergefell demanded, and what the Supreme Court granted, was official government recognition of same-sex relationships as marriage, largely on the same “it’s time” argument deBoer advances for polygamy. But the test of “it’s time” in a democracy should be the development of public policy in a normal organic manner, not a ruling from a majority of a panel of nine jurists. In a number of states, it was “time” for government affirmation of same-sex marriage, where referenda or legislative action changed public policy to allow it, but not in others whose constituents still saw traditional-marriage recognition as the better public policy. That’s why Kennedy et al had to rewrite due process and equal protection doctrine to impose this “right” on everyone, whether it was “time” or not.
How many states have had a groundswell of public support for government affirmation of plural relationships as “marriage”? None. That gives one an idea of the actual “time,” so to speak, and a good insight as to why deBoer wants to push this through judicial fiat. And as these judicial fiats expand under the ambiguous aegis of doctrines like equal protection and due process, the more they will come into conflict with explicit constitutional rights such as freedom of religious expression and freedom of association.
This debate goes back to Lawrence v Texas (2003), as the Kennedy opinion repeatedly notes. In that decision, the court overturned a sodomy law as unconstitutional on the basis that the morality of the nation and its understanding of the law in regard to consenting adults had changed. If so, then the state of Texas would have repealed the law on its own, rather than the court arrogating itself the jurisdiction to strike it down. The dissent, from Clarence Thomas and Antonin* Scalia, reminds us that they saw Obergefell coming on that basis of the court’s arrogating to itself the arbitration of “it’s time,” even though the majority in that case denied it:
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that thiswas a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. …
Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute. Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U.S., at 635;Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448—450 (1985); Department of Agriculture v.Moreno, 413 U.S. 528, 534—538 (1973). Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a … desire to harm a politically unpopular group,’ ” ante, at 2, are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
Thomas and Scalia expressly warned that the arbiter of the “it’s time” argument in a representative republic is the legislature, or the electorate through direct vote. Not only was that more legitimate, it also did less damage and allowed for considerably more nuance:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.
Lawrence opened the door to polygamy; Obergefell merely laid out the welcome mat. We’ll see how long it will take for the court to use this cultural jurisdiction to declare prostitution and adult incest a protected area of human expression on the basis of informed adult consent. You can bet we’ll see activists proclaiming Obergefell a rallying point for these views, and demanding that social-justice warriors take them up with the same righteousness as same-sex marriage.
Update/correction: Incorrectly wrote “Anthony Scalia” when I mean Antonin Scalia. Fixed above; my apologies to Justice Scalia for this jiggery-pokery.
Update: I’d like to remind people that I also warned about this outcome almost eleven years ago, citing Lawrence. At the time, many commenters at Captain’s Quarters thought I was engaging in hyperbole:
Turley launches into a defense of libertarianism regarding polygamy that at once decries the religious objections to it and then offers religious solutions to such sticky issues as property rights on dissolution. It’s a rambling, sometimes self-contradictory amicus brief encouraging the Supreme Court to nullify 200 years of legal thought in America on marriage, much the same as challenges for gay marriage have done. And they all can be traced back to the foolhardy decision by the present Supreme Court to elevate personal choice between consenting adults to the same level as protection against unreasonable search and seizure, an equation never dreamed of by the founders.
I’ll lay my cards on the table. I don’t see anything particularly wrong with gay marriage, as long as a majority of voters approve it. I also think that the Texas sodomy laws were about as stupid as you could have found in any penal code. [Insert Beavis laugh at “penal code”.] However, the Court used a sledgehammer when a flyswatter would have prevailed, and the consequences of their decision has led — logically — to the appeal of all anti-polygamy statutes. If in fact the Court applies the same thinking to polygamy as it did to the sodomy statutes, then they have no choice but to free Green and declare all anti-polygamy statutes null and void.
Perhaps that is the Libertarian stance. Maybe that’s for the public good, although I highly doubt it. But the court once again has set itself in a position where its own precedent requires it to legislate, a usurpation of their Constitutional authority just as much asLawrence was.
Not everything that transpires between consenting adults is legal or should be legal, let alone given Constitutional protection. But that’s where the SCOTUS has left us. They should take the opportunity to reverse their precedent and acknowledge the error they made in Lawrence, before Constitutionally guaranteed prostitution and adult incest come next.
I’d clarify one point in the above: I saw no issue with duly enacted recognition of same-sex marriage from a civil-legal standpoint, a comparison I used to contrast with the lawlessness of the Lawrence court and others poised to enact SSM by judicial fiat. A different definition of a government recognition for marriage is, after all, a government policy subject to self-governance — one reason why I later began arguing in 2008 that government should just get out of the marriage business altogether. My opinion on the definition of marriage in a religious and sacramental point of view has not changed at all.