On Friday, shortly after the Gaypocolypse began raining down on the media landscape like an ELE comet strike, I had already begun musing on Twitter about the no longer hypothetical slippery slope which had just opened up. To be sure, we’ve had more than a few discussions of slippery slope items in years past which were little more than hyperbole in the real world. But then, the “real world” has been changing rather rapidly in the past few years and I’ve had to take a fresh look at some items which I’d previously written off as straw men, but have now risen up like all too real zombies. For example, only a few years back I scoffed at the idea that a Christian business person could be forced to participate in a gay wedding ceremony if it violated their 1st Amendment beliefs. And of course I assumed that no preacher could ever be forced to either conduct such a ceremony or be driven out of business. (It didn’t happen with the Hitching Post, but it came close.) And don’t even get me started on the idea of redefining gender in a courtroom setting contra chromosomal arrangements.
One of the benefits of having Fridays off is that Ed is forced to tackle thorny plot twists such as these before me, so he jumped into the whole polygamy angle while the initial fight was still raging. One of the first items he offered (which ran along the same lines as the questions which immediately came to my mind) came directly from the horse’s mouth, so to speak. While I know that Chief Justice Roberts isn’t particularly popular around the ranch here these days, he brought up an interesting point which Ed highlighted.
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.
Ed raised what he saw as a possible (though significantly improbable) argument against Roberts’ polygamy point, even in the brave new world of collisions between government and marriage.
Dignity and self-determination are the cornerstones of Kennedy’s championing of gay rights throughout his many landmark opinions on the subject. You could argue, when the time comes, that polygamist marriages are inherently undignified because they place women in a position of de facto subservience to men, but that’ll be a hard argument to make when you have sister-wives in front of TV cameras swearing up and down that their relationships with their husband are 100 percent equal and that they’ve never felt exploited even for a moment.
This doesn’t work for me because I never thought that the court was going to try to make a case for anything resembling the “dignity and tradition of marriage” angle. Frankly, I’m shocked that Kennedy even went so far as to say that there was any tradition involved, and where he did it looked like 95% window dressing and 5% law, intended to placate the aggrieved masses who he knew would be beating down the gates. In my view, the court was always going to be forced to treat this as some sort of legal pronouncement, void of religious or moral currency, simply saying that it was a thing which was available to some and therefore must be available to all. When you peel all the colorful excuses out of the majority decision on Friday I think that’s what they boiled it down to.
But let’s return to the real meat of this essay, which deals with the other items awaiting us in the ditches of that slippery slope. (I’ll try to keep the jiggery pokery to a minimum.) First, the most extreme examples include conversations about people marrying animals. That line of discussion should be shut down because animals can not give meaningful legal consent for anything and the court has an easy out. But once we leave American Pharoah and his friends out of the discussion, things get a bit more cloudy. I happen to think that the Chief Justice is correct when it comes to polygamy. What is the argument against plural marriage, given its far more substantial historical roots when compared to SSM? Ed’s point of wives being placed in a subservient role to men falls apart as soon as the Strong Independent Woman card is played. Further, who says it’s always multiple wives? If one woman wants to marry five men, are the men being unfairly subsumed? Mind you, I think plural marriage is a terrible idea since I have enough trouble taking care of one wife, but our legal system seems to offer no real impediments at this point.
With that said, let’s dig a little bit deeper into the rabbit hole. What restrictions between humans could the court still argue for in terms of marriage? Certainly a minimum age would be in play since we don’t allow children to provide consent. But that age already varies from state to state and some, such as Mississippi, will let you go below it if both sets of parents sign off on the deal. Will those barriers stand?
And finally, how about incest laws? Does the state and / or federal government have a vested interest in preventing siblings from marrying? In terms of protecting the next generation from genetic pitfalls, that should be possible. But once you go beyond siblings, where does that gray line get drawn? Some states will allow first cousins to marry. Once you get to second cousins it’s pretty much a free-for-all. And what will the court say to siblings who are sterile under this new set of rules? I don’t even want to venture a call on that one.
In short, the entire playing field just changed as I see it. If you remove any and all moral barriers (which is obviously possible, if not already a done deal) then where do the interests of the state begin? As I said, I’ve run around the hamster wheel in my mind for a while now, and not only do I think plural marriage is on the way, I honestly can’t come up with a legal argument against it which looks like it would hold water.