I wonder what took them so long. Three business days after the Obergefell decision that recognized same-sex marriage as a constitutional right, Nathan Collier decided to demand that the Montana state government recognize that love is love … is love. And if they don’t issue a marriage license to formally recognize his plural arrangement, Collier says he intends to sue:
A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.
Nathan Collier and his wives Victoria and Christine applied at the Yellowstone County Courthouse in Billings on Tuesday in an attempt to legitimize their polygamous marriage. Montana, like all 50 states, outlaws bigamy — holding multiple marriage licenses — but Collier said he plans to sue if the application is denied.
“It’s about marriage equality,” Collier told The Associated Press Wednesday. “You can’t have this without polygamy.”
This isn’t a stunt for Collier, or at least not just a stunt. He told the AP that he had been a Mormon until the church excommunicated him for polygamy, a policy on which the Latter-Day Saints have taken a hard line for a very long time. Collier married his legal wife in 2000, and then committed to the woman he calls his second wife in 2007 in “a religious ceremony,” as the AP describes it. The trio came out of the shadows of polygamy by making a recent appearance on the reality show Sister Wives, deciding at that point to become activists.
Interestingly, Collier says that he has asked the ACLU to represent them if they go to court over a refusal to issue a marriage license that includes all three of them. The ACLU announced in the wake of the Obergefell decision that they would no longer support the Religious Freedom Restoration Act because of the supposedly hateful motivations behind its use, which seems rather ironic considering that the group defended the right of neo-Nazis to parade through Skokie, Illinois a few decades ago. The ACLU’s legal director told the AP that he hadn’t seen the request, but that Obergefell was “about something very different.”
Was it? If Collier gets his way, we may find out in the next few years, and it’s all but certain Collier won’t be alone in his efforts. The popularity of reality television shows like Sister Wives, Married & Dating, the sort-of polygamy apologia of the fictional series Big Love on HBO (which has also aired documentaries on abuses in polygamy), and celebrity defenses of polyamory may have reset the American moral perspective on plural relationships involving adults. Let’s recall how the majority opinion addressed that issue in the Obergefell decision written by Justice Anthony Kennedy:
But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. …
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.
In other words, Marriage Itself is so valuable that it can’t be contained to a particular definition, especially when it’s “demeaning” to be locked outside of the definition that made Marriage Itself “a keystone of the Nation’s social order.” Exactly what, in this reasoning, restricts the form of marriage to two people? Chief Justice John Roberts asked the same question in his dissent, noting that the opinion “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,” Roberts continues, “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.”
Returning to Kennedy, the reasoning for granting constitutional protection to the right of government recognition for same-sex marriages relies entirely on the evolution of moral positioning in culture:
Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. …
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.
This is why Justice Antonin Scalia blasted the majority decision as one that turns the court into a “super-legislative” body rather than a judicial body. The role of adapting law to changing moral consensuses is that of a legislature, which creates, modifies, and repeals laws, and not to the courts which enforce and interpret them. In a constitutional republic, changing moral consensuses will produce a change in laws, as we saw in several states over the last decade on this very question.
Let’s return to the Collier case with Kennedy’s argument in mind. The threshold for changing the definition under the Equal Protection Clause, according to Kennedy, is “substantial cultural and political developments,” as well as a change in moral consensus based on relationship models coming out of the shadows. How can this not apply to Collier and other plural relationships involving consenting adults? One might argue that the culture hasn’t changed sufficiently to support legalizing plural marriage — that’s essentially David Frum’s argument today — but that’s entirely a matter of timing and taste, not law. Tilda Swinton, Maria Bello, and other celebrities are openly living in polyamorous relationships outside of the shadows without undue harm, just as same-sex couples have for the last few decades. How long until social tolerance of those relationships qualify them for the “keystone of the Nation’s social order”? Twenty years? Ten? Two?
That’s exactly why the Supreme Court’s ruling in Obergefell is such a violation of the separation of powers in the Constitution. If five of the nine justices think that the moral calculus has changed enough, then presto! a new constitutional right has been born. If four or less think so, then suddenly the post-Lawrence embrace of government celebration of the choices of consenting adults no longer applies. It’s entirely a matter of whim, not law. The Supreme Court will have to make the exact same kind of value distinction that some states made in restricting government recognition of marriage to its traditional definition, a moral distinction which the Supreme Court found illegitimate, to bar plural marriages after Obergefell.
The larger lesson of all this is that we should refrain from giving courts this entree into defining our social structure in the first place. The government should get out of the marriage business and stick to contracts, leaving the issue of what constitutes marriage to the private sector, especially houses of worship. One major denomination changed its definition of marriage today, showing (if nothing else) that market forces create organic change and choice without applying government force:
The Episcopal Church says it will permit weddings for same-sex couples after members approved the change at a meeting of its governing body.
The decision by the church, which has about 1.9 million members in the United States, follows the U.S. Supreme Court’s landmark decision last week to legalize same-sex marriage nationwide. …
The convention’s House of Deputies, which is made up of clergy and lay members, voted strongly in favor of two key resolutions Wednesday.
One removed from church canons language that defined marriage being as between a man and a woman; the other approved two new liturgies adapted for both same-sex and opposite-sex marriages.
Some Episcopalians threatened a schism over the new policy, and they may well either create a new form of Episcopalianism or perhaps individually join other existing offshoots within the Anglican communion or even the Catholic Church, which is liturgically similar. That will be their choice, based on what they believe about Christian doctrine on marriage, which is the legitimate jurisdiction of faith. Quite clearly, leaving it in the hands of government appears to be both the most unstable and most dangerous place in which it would rest.