WASHINGTON, July 4, 2015 — The Supreme Court’s decision to legalize same-sex marriage across the country is the end of the legal discussion on the topic, at least for now. It isn’t, however, the end of the discussion on marriage.
Justice Anthony Kennedy’s opinion rests on four principles, which according to him “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”
His first and third principles raise some intriguing possibilities, and his fourth principle opens the floodgates to a world of fun.
The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.
The concept of personal autonomy is the foundation of the Supreme Court’s concept of the right to privacy. The right to privacy protects a person’s freedom to choose to enter into certain acts and experiences, specifically those having to do with sex, reproduction and family. It has expanded into a liberty protected by the due process clause of the 14th Amendment.
Almost all the court opinions developing this liberty stem from cases involving sex, reproductive rights and marriage. The most famous among them are Griswold v. Connecticut, which in 1965 first recognized a right to privacy within marriage and struck down laws banning contraception; Roe v. Wade – enough said; and Lawrence v. Texas, which struck down anti-sodomy laws.
Kennedy reiterates the fundamental importance of personal autonomy with regard to marriage, emphasizing that marriage itself is fundamental with his second principle.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. … Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.
Do polygamists have children?
While you ponder the implications of Kennedy’s third principle on the answer to that question, let’s consider the arguments for and against polygamy.
Polygamy was banned in the United States and its territories in 1878, by the Supreme Court’s decision in Reynolds v. the United States. Some Mormons practiced polygamy at that time, and when the U.S. acted to suppress it, they argued that it was a matter of religious freedom.
In its opinion, the court argued that the practice was one of “Asiatic” and “African” people, not of westerners, and that it was therefore “foreign” and “odious to Western civilization.” It claimed further that if polygamy were allowed, human sacrifice might follow, and “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
That reasoning would certainly be rejected by the court today, not least because denouncing a practice as Asiatic or African would invite furious charges of racism. If someone chooses to take the fight for polygamy to court, what might be some less racist, more modern arguments against it? If marriage is as fundamental a right as Kennedy claims it is, why limit it?
The two most common lines of argument are that polygamy is bad for women and children in polygamous marriages, hence for society; and that the imbalance of power in polygamous relations requires extensive and complex laws to address. Further, polygamy would greatly increase the complexity of divorce, inheritance, Social Security and family law.
Complexity is a serious practical matter, but if a right is fundamental, the complexity of law required to guarantee the right is not a legitimate barrier. Kennedy emphasizes the fundamental nature of marriage and privacy in all four of his points, so legal complexity is not a good reason to deny polygamists the right to marry.
More important, as Kennedy eloquently reminds us, “Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” This isn’t just a matter of rights of adults to enter polygamous marriages, but about creating a stable environment for children in which they know that their families are not “somehow lesser.”
Whose family is more stigmatized as “lesser”: Little Heather’s with her two mommies, or young Ephraim’s with his nine mommies and a dad?
Is polygamy bad for women, children and society? The evidence presented on that regard suffers two problems: It either comes from foreign – African and Asian – societies, or it comes from polygamists living on the fringes of our own.
The impact of plural marriage in Nigeria hardly seems relevant to three or four people marrying in New York. Social customs and expectations in Nigeria are far different, and the power dynamics of marriage there are not likely to be similar to those in New York.
That women and children in polygamous families in Texas and southern Utah don’t thrive is hardly surprising. They can’t live openly as polygamists in Salt Lake or Dallas. Only strongly fundamentalist members of fringe religious groups flout the law, and they live according to rules and standards that aren’t normal in the broader society. They live also with the additional burden of knowing they might be arrested or sent into foster care at any moment.
Using the situation of these people to argue against legalizing polygamy is like using suicide rates of gay teens to argue against legalizing homosexual sex. Suicide and mental problems might be common among gays who live in constant fear of being beaten, imprisoned, kicked out of their families and fired from their jobs if they are outed. The modern solution would be to eliminate the crime and the stigma, not maintain the laws against the behavior.
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. … 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.
A minor argument against polygamy is that rich men might marry a disproportionate share of the women, leaving other men to fight over the rest. That assumes that rich men want harems and that women want to join them, but it also overlooks Kennedy’s opinion. We can’t discriminate; women could have multiple husbands. And we can’t discriminate by sexual orientation; if we legalize polygamy, gay men might wed in groups. We might end up with polyamorous marriages, say two men marrying two women in a marital foursome.
We associate polygamy with poverty and ignorant women, but what if, facing high costs of living in New York or San Francisco, three or four professionals wed? This isn’t the handmaid’s concubinage; the woman or women might be in charge. Their household income would be significant; polyandry might become the norm at Google.
What if there’s a divorce? How would we settle assets? Marriage is a contract; include a prenup as a standard part of the package.
A final serious question involves the welfare of children. If polygamy is bad for kids, shouldn’t it be banned?
Well, bad compared to what? We now have several broad legal settings in which children can be raised in a family: with their married biological parents; with married different-sex parents, at least one of them not a biological parent; with married same-sex parents; with unmarried parents; with foster parents; and with a single parent. Statistically it will be the case that kids won’t do equally well in each of these settings. Yet none of them is illegal, and none will be made so.
If kids do better in households with married biological parents than with married same-sex parents, should we ban same-sex marriage? Justice Kennedy says “no,” as does everyone else who celebrated his opinion. So if kids in polygamous families don’t do as well as kids in a traditional family, so what? That isn’t a reason to keep them out of other non-traditional families, and if you know what’s good for you, you won’t suggest that it is.
Justice Kennedy’s opinion is a fine jumping off point for all sorts of marital arrangements. If we don’t immediately jump into them, it is because we aren’t willing to apply Kennedy’s fine reasoning to a situation we don’t want. That is, we will ban polygamy on grounds of social preference, not on constitutional grounds. But then, doesn’t that imply that the decision to expand marriage to same-sex couples is based on social preference, not on constitutional grounds?
Under Kennedy’s opinion, we’ve redrawn the line defining marriage, but we’ve redrawn it not because the Constitution demands it, but because we want to. That’s the sort of thing legislatures should be involved with, not courts. Let’s celebrate same-sex marriage, but understand that a mushroom cloud is seeping out of that shiny uranium ball the Court’s been playing with, and there’s no way to put it back in.