Will Gay Marriage Lead to “Marriage with Multiple Partners?” Emory Symposium Says No.

Photo Source: Flickr Creative Commons by Bombman https://www.flickr.com/photos/ajay_g/

Photo Source: Flickr Creative Commons by Bombman https://www.flickr.com/photos/ajay_g/

If the Supreme Court creates a 14th Amendment right to gay marriage in it upcoming decision, will that open the gateway to a legal right to polygamy?

Justice Alito asked that question directly during hearings on this decision. There was predictable outrage in certain quarters because of Justice Alito’s question.

Now Emory Law Journal attempts to put the question to rest by taking it seriously and answering it in the negative.

The journal recently held a “paper symposium” on this question. The upshot of the papers it published is that polygamy imposes a preponderance of harm to the human rights of women and children, as well as to the social order in terms of polygamy’s poverty and inequality creating force within societies.

For this reason, that authors argue that America would be able to avoid legalizing marriage between anybody and anything, even if gay marriage is considered a 14th Amendment right, based on arguments in favor of the public good.

This is sophistry in defense of what the authors consider to be a done deal. The forward to the symposium flatly states that the author anticipates that the Court will find a “right” to gay marriage in the 14th Amendment.

These papers and this symposium attempt to soften the blow of such a decision. They’re a scholarly version of the there-there-little-buttercup, it-doesn’t-mean-all-that-much stuff that came out after the DOMA decision. That was bogus then, and this line of reasoning is bogus now. Here’s why.

The authors of these papers seek to answer the serious question of what legal basis for restricting marriage to any definition at all remains if the Court creates a 14th Amendment right to gay marriage. They answer that there is a basis for restricting marriage to two people. Their reason for claiming that the courts will protect marriage between two people is, essentially, because it is best for the common good. 

The authors outline arguments against polygamy and for restricting marriage to two people based on the harms polygamy inflicts on society and on persons. They emphasize the obvious harms to the the civil and human rights of women and children that are inherent in polygamy, and also discuss polygamy’s poverty-creating force, as well as its destructiveness to men without money. They then claim that this gives the state a legitimate legal basis for restricting marriage to two people.

In other words, they are claiming that creating a 14th Amendment right to gay marriage will not lead to future rulings in favor of polygamy because polygamy harms the common good.

This is nonsense. The Catholic Church cares about the common good. The United States Supreme Court clearly does not.

The Court has a long history of ignoring the public good in decisions such as this. The Supreme Court single-handedly created the culture war that is ripping this country apart with it bench legislating in the Roe v Wade decision. It set the country on the road to destruction of marriage with the hydra-headed DOMA decision.  If it uses the 14th Amendment to create a “right” to gay marriage, it will simply be doing more of the same.

The idea that we can base our hopes of preventing a rush to legalize marriage between everybody and everything by trusting the Supreme Court’s desire to protect the common good is fantastical.

If the Supreme Court “finds” (good word) a 14th Amendment right to gay marriage, the agitation to legalize polygamy will ramp up within a couple of months, if not sooner. If you think I’m being alarmist, then hide and watch.

This agitation will be coupled with an all-out attack on the First Amendment rights of small business owners as well as individuals who express opinions in the workplace or other public venues that challenge politically correct thinking.

I remember when the DOMA decision was handed down, I predicted that what has happened would happen. A number of people said that I was being too negative, when in fact, I was deliberately down-playing what was coming. I’m telling you now that I’m also soft-peddling what will happen if the Supreme Court creates a right to gay marriage under the 14th Amendment.

That would be a draconian decision.

Go here to read the papers published in Emory Law’s symposium on marriage.

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Will Legalizing Gay Marriage Lead to Legalizing Polygamy?

When you knock down a wall to let in your pet lion, how do you keep the other predators out?

Answer: You can’t. 

That’s a simplified version of the logic behind the reasoning in an article from the Baptist Press. The article says that there is no legal basis for reediting marriage to include two men or two women that does not open the door for virtually any other innovation.

I agree with this, btw. The legal twisting and turning necessary to overturn almost every marriage law in this country require destroying the institution as the legal entity that we have known it for at least 2 millennia. What we put in its place after that will be wide open.

The move to legalize polygamy has been quietly racketing up for quite some time and it’s coming from the same folks who are pushing gay marriage beginning, of course, with lawsuits from the ACLU and television shows normalizing polygamy such as Big Love and Sister Wives.

The Baptist Press article says in part:

 

by Michael Foust
WASHINGTON (BP) — Redefining marriage to include same-sex couples would jettison the rationale and logic behind prohibitions on polygamous marriages, according to several friend-of-the court briefs urging the U.S. Supreme Court to uphold the traditional definition of marriage …… “Ultimately, there is no principled basis for recognizing a legality of same-sex marriage without simultaneously providing a basis for the legality of consensual polygamy or certain adult incestuous relationships,” reads one of the briefs, filed by the Christian legal group Liberty Counsel. “In fact, every argument for same-sex marriage is an argument for them as well.”…  A friend-of-the-court brief signed by 18 state attorneys general also briefly warns about the potential legalization of polygamy if gay marriage is legalized. The brief — which supports Prop 8 — says the traditional definition of marriage is tied to the fact that only a man and woman can reproduce, thus continuing society’s very existence. The state has an interest, the brief says, to see that children are raised, ideally, by the mother and father who beget them. A mother and father in each home is “optimal for children and society at large.”

“Once the natural limits that inhere in the relationship between a man and a woman can no longer sustain the definition of marriage, the conclusion that follows is that any grouping of adults would have an equal claim to marriage,” the attorneys general brief states, arguing that marriage no longer would be about the needs of children but about the desires of adults.Liberty Counsel’s brief quotes 19th century Supreme Court cases that upheld the federal government’s ban on polygamy in Utah. Among them were Reynolds v. United States (1878) and Murphy v. Ramsey (1885). In the 1885 case, the justices affirmed the traditional definition of marriage, writing that laws are “wholesome and necessary” when they are established on the basis of the idea of the family as “consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” The court called traditional marriage “the sure foundation of all that is stable and noble in our civilization.”Liberty Counsel asserted that “when the traditional definition of marriage as that between one man and one woman is reversed to include other marriages, the state is left with little, if any, justification for other laws restricting marriage.”  (Read the rest here.)

Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email (baptistpress.com/SubscribeBP.asp).

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