Law & the Courts

No, Polygamy Is Not a ‘Right’

Yet since Obergefell, that proposition has been hard to defend.

Representative Katie Hill (D., Calif.) is resigning amid allegations that she was part of a “throuple” (a three-way sexual relationship) with a campaign aide and a House staffer. Hill is a Democrat, which probably explains the recent spate of articles from mainstream publications defending polyamory.

CBS News has run two pieces in the past five days lamenting the “stigma” faced by those engaged in “ethical non-monogamy” and the attendant lack of “legal protections” for those in such relationships. The push began long before the Hill allegations, in fairness: The New York Times has a veritable library of think pieces from the past few years defending the practice.

What’s striking as you read the various arguments for the virtues of polyamorous unions — each one subtly (or not so subtly) suggesting that such unions ought to be recognized as legitimate marriages — is their congruence with the undergirding logic employed by the majority in Obergefell v. Hodges.

In his Obergefell dissent, Chief Justice John Roberts noted “how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”

And while it was verboten to say so at the time, the reasoning of Obergefell’s majority — that the due-process clause of the 14th Amendment guarantees two adults of either sex the right to enter into state-recognized matrimony — readily lends itself to abolishing other components of the definition of marriage. If sexual difference is not a meaningful feature of marriage, why should the union be restricted to two — and only two — people?

A lot of intellectual energy was spent attempting to debunk this supposed red herring. Perhaps the ne plus ultra came via Jonathan Rauch in a Politico article, “No, Polygamy Isn’t the Next Gay Marriage.”

Rauch’s article took aim at two possible principles that a future court might apply to a legal challenge brought by polygamists: rational basis and strict scrutiny. On the rational-basis front, Rauch cited the body of “theoretical and empirical literature” that, he argued, demonstrates “that polygamy has many severe consequences for third parties.”

Whatever the merits of his argument — and its frightening implication that the only barrier between us and polygamous marriages is the ever-fickle “theoretical and empirical” social-science literature — what if, say, one study comes out challenging the academic consensus Rauch portrays? Two studies? Three? Indeed, it wouldn’t take much for a few polygamy sympathizers in the academy to massage the numbers in such a way as to knock down Rauch’s house of cards. More fundamentally, much of what Rauch asserts would happen to a society that legalized polygamy — marital imbalances between high-status and low-status men, the diminution and objectification of women — is already manifest today in our hyper-sexualized culture.

Rauch proceeds to address the strict-scrutiny standard, whereby a future court, weighing the merits of polygamous “marriage,” would consider whether a state’s refusal to recognize polygamous marriages amounts to a violation of the 14th Amendment, as refusal to recognize same-sex marriages did in Obergefell. He answers by citing a handful of tenuous moral arguments and asserts that the polygamist’s “case is trivially easy to distinguish from [the one underpinning] Obergefell, which was based on a very different kind of moral, social, and legal proposition.”

Except it’s not at all easy, much less trivially so, to distinguish between the merits of the two propositions. The majority in Obergefell did not find the fact that the West, for at least two millennia, held a stable conception of marriage — a union between one man and one woman, open to procreation and the rearing of children — compelling grounds to reject the claims of the plaintiffs. Obergefell clearly conceives of marriage as a “right” — civil, legal, and moral — to be extended to consenting claimants, with only passing regard for the existing strictures of the institution. Anthony Kennedy’s opinion uses a nebulous, inchoate definition of marriage predicated on poetic notions of “dignity” and “love” rather than the traditional, unbroken consensus of Western civilization. Why would the Court find the traditional restriction of marriage to a union between two persons a compelling reason to withhold the right to marry from three (or more) claimants?

If “love,” “dignity,” and the pursuant tax advantages are the constitutive parts of marriage, on what grounds would Rauch or the courts withhold those “rights” from polygamous unions?

Much of this comes down to Rauch’s say-so. But, like the social science he relies on, society’s “moral, social, and legal” sensibilities are subject to change as the Singerian “expanded circle” ethic —Peter  Singer’s secular eschatology that conceives of moral progress as an interminable “expansion” of man’s concern for others, starting from his immediate kin and radiating outward — dominates our cultural conscience and envelops ever more anomalous and obscure domains of sexual activity.

One can imagine a possible path forward. Polygamy will become polyamory, “consensual nonmonogamy,” or whatever premise-smuggling euphemism its practitioners prefer. Serial philanderers with bizarre unions will become “polyamorous Americans” whose “rights are under assault.” They might get their own letter in the LGBTQ alphabet soup. Opponents will be called prudes, scolds, and deplorables. Beto O’Rourke will seek to strip tax-exempt status from every church that so much as hesitates to affirm the moral rectitude of 14-person marital unions. Every polygamous union in Colorado will insist that Jack Phillips bake their “wedding” cake and drag him before the state’s Civil Rights Commission when he refuses.

John, Robert, and Edward Kennedy each saw occasion to appropriate George Bernard Shaw’s play Back to Methuselah when they affirmatively recited a derivative of the Serpent’s temptation of Eve in the Garden: “Some men see things as they are and say, why; I dream things that never were and say, why not.”  By the rules they’ve created, why not allow polygamists to get married?


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