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

Will Gay Marriage Lead to “Marriage with Multiple Partners?” Emory Symposium Says No. June 11, 2015
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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44 responses to “Will Gay Marriage Lead to “Marriage with Multiple Partners?” Emory Symposium Says No.”

  1. “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.”

    The problem is that the same is true when you replace the word polygamy with homosexuality. Thus this argument has already been denied by the lower courts.

  2. I remember clearly the arguments that Roe would not increase abortion and would never allow abortion at any point. That was a lie and so is this.
    Some of the justices have even said it is going to happen. I hope they recuse themselves, but I doubt that too.

    • I also remember the insistence that Roe would not lead to euthanasia. I actually believed this. I was wrong, wasn’t I?

  3. The facts strongly suggest that you are wrong.

    First, gay marriage has been a legal, social institution in Massachusetts for over 11 years, and between that day and today gay marriages are formed and exist in 75% of US states. In 11 years there has been no serious, credible increased attempt to legalize polygamy in this country.

    Second, the first modern known legal gay marriage occurred over 14 years ago in The Netherlands and since then gay marriage has become a legal, social institution in Belgium, Denmark, Iceland, Norway, Portugal, Spain, France, the United Kingdom, Ireland, Sweden, Luxembourg , Finland, Canada, Mexico, Argentina, Brazil and Uruguay. I may have omitted a few. And in those 14 years there has been no serious, credible increased attempt to legalize polygamy in those countries.

    Third, polygamy has been a legal, social institution for centuries in northern Africa, many Arab states and some of South East Asia. But no serious, credible westerner has been recently pointing to those countries and that thousand year old tradition saying, ‘hey that’s a great idea, let’s get that over here.” It just doesn’t happen. The closest is that in in 2007 a few former soviet countries (including Kyrgyzstan, Uzbekistan, Tajikistan and Kazakhstan) tried legalizing civil polygamous marriage in their countries but the measures failed miserably.

    Sure, there have always been a few crackpots pushing for polygamy, and there always will be. But the legal advances noted above have had no material effect in the USA or other countries that have gay marriage. It’s just not going to happen.

    Contrarily, recent years have seen restrictions on polygamy where we would never have expected it, including Uganda, Morocco, Benin, Indonesia, Turkey and Namibia, among others.

    Methinks the civilized world is increasingly recognizing that people try to go through life two by two, and so we change our laws to facilitate that.

    [One wordsmithing point worth mentioning, if I may. The USSC doesnt “create” rights. It determines- or finds – that a right exists or does not exist. They didn’t create a new right to interracial marriage in 1967. They determined that as US citizens we already have the right to marry outside of our race and that laws preventing such marriages are illegal and unenforceable. A similar finding as regards gay marriage will happen (one way or the other) in a few weeks.]

    • None of this applies to a Supreme Court creation of a legal right to gay marriage in the 14th Amendment. It also does not address the socio-political agitation for polygamy which has already begun and will intensify by powers of 10 if such a court ruling occurs.

      You are talking about a time in history when the agitation was all for gay marriage and supporters of gay marriage were working hard to keep the lid on other forms of marriage experimentation so that it wouldn’t harm their case with the public. Once that is no longer a factor, the gates for agitation for polygamy and other forms of marriage will take off.

      • Rebecca, you are not being reasonable. just because you afraid something will happen, doesnt mean that it will. And what in the world does “supporters of gay marriage were working hard to keep the lid on other forms of marriage experimentation” mean? That’s a doozy.

        Is there any reasonable and objective support for any of your statements in this post?

          • Wow. I’m trying my hardest not to take offense at your last post, but it seems that’s your intent, though in my experience, it is unlike you to try to offend.

            Hide? I hide from nothing, as you know from my comments on this blog, and as I stated above (and you have twice now ignored), the USSC does not create rights. The USSC determines what our existing rights are, when their existence is in question.

            • pesq87, I was not talking about you. I don’t know you or anything about you. The idea that I wrote this post to offend you is a non sequitur. Of course, I didn’t. You weren’t even on my mind.

              If you are talking about the phrase “hide and watch” it is a … I dunno … a form of Okie slang, I guess. Sort of like “ugly enough to make a freight train take a dirt road” and “rode hard and put up wet,” “pour water on the fire, call the dogs and take it to the house.” I could go on. And on. Okies have their own language. Like the post itself, it had nothing to do with you personally.

        • Reasonable is recognizing the universal definition of marriage as between a man and a woman. You want to change that because of emotions.

          • Reasonable is not doggedly adhering to some outdated morality from a time when, ironically, men could marry as many women as they could support.

            There is no “universal definition.” Some people just want that to be true really bad.

            • Who is the authority on “outdated”?
              Just because it isn’t on YouTube or Pandora?
              We ignore history and biology at our own peril. That’s what you are doing.

    • Good reply. Yet, isn’t it logical that the Muslim minority in the US will try and sue for the right to polygamy at some point in time? It didn’t happen yet in any other country but as you wrote yourself, the first gay marriage was only 14 years ago.
      The other question I have is where the court takes its authority from to redefine marriage. Clearly, the idea of gay marriage cannot be found in the constitution since its writers did not anticipate nor believe in such marriages. Neither is gay marriage part of any cultural heritage, suggesting humankind never termed same-sex unions ‘marriage’. So it seems to me the Germans are right when they only grant some fiscal advantages to such unions but stop short at giving them the status of marriage. The court seems out of bounds here. No court or legislative body has the right to redefine marriage, and the case should have therefore been rejected.

      • I think 2 legal concepts together answer your question.

        The first is the concept of “judicial review.” That’s where you, as a citizen, can go to court and say “hey, this existing law is wrong and violates my rights as a citizen” and the courts in this country have the POWER to review that law and determine if you are correct. If so, the law will be invalidated or changed in a way so that it no longer violates your rights. It’s a great country! Judicial review is one of the basic checks and balances in the separation of powers that underpins most (all?) of our legal system.

        The second concept is that of “fundamental rights.” Those are the super-important rights that you have as a citizen of this country. Things like the right to vote, the right to free speech and the right to marry. Some fundamental rights are expressly listed in the USC and some have been inferred by judges from the words in the USC. The most controversial may be the “right to privacy”, which is not expressly stated in the USC but which our courts have determined is in fact, a right of every citizen. (Some scholars say that we do NOT have a right to privacy and that the USSC was wrong to say that we do. But I digress.)

        If the government enacts a law that limits one of your fundamental rights, then the government has to have an extremely good reason for doing so. (Makes sense, right?). If our marriage laws prevented you from marrying your daughter (p.s. they do) and you sued the government, then the government would have to show an extremely good reason for preventing you from doing what you want to do. (P.S., they probably could).

        In recent years, many States have enacted laws expressly limiting your fundamental right to marriage by saying “oh, by the way, you cant marry someone of your own gender.” Gay people sued and most courts (dozens of them?) determined that the government has no good reason for limiting this fundamental right to straight couples. One appellate court disagreed with all the other appellate courts that have looked at this issue and so the USSC is now going to review the laws and make a final decision.

        If the practical effect of that decision is to “redefine” what marriage means under our laws, then we’ll have to live with it. Because that’s how our system works.

        • pesq87, “the right to marry” is not in the Constitution, anywhere. One could argue that it is in the Declaration of Independence when it says “rights to life, liberty and happiness,” but it is not specifically stated.

          • Clarification: You are correct that the right to marry is not expressly stated in the USC, but our rights are greater than the few thousand words in that document. The highest court in our country, in interpreting our laws, has expressly stated in over 15 separate, written, reasoned, judicial opinions, that we have a fundamental right to marry.

    • How about polyandry? Maybe your wife would like a couple more males to help around the house?

      You don’t really feel like cleaning the gutters today? Get Bill to do it. Ed’s out mending fences, and Sidney has the flu.

        • No, no, that’s women’s work. Y’all best get to mowing the back forty, fixing the truck, and get out there and slaughter some chickens for dinner while yer at it. We gots men to feed!

          • Then get me an extra wife to help with the cooking for all those menfolk! A friend of mine commented once that, “if a wife stays home, takes care of the kids, keeps the house clean, does the laundry and cooking and all that, please, can I have a wife?” That was before, well, yes, she could have a wife.

  4. Other than stating that gay marriage is against the common good, and “my religion forbids it,”everyone against it has not made a good argument for Gays not having the right to be married. I like reading your post because, whether I agree with you or not, you typically have well reasoned arguments to back your position. “My religion…” doesn’t work on many levels mainly because yours isn’t the only one; many Christians and Catholics (not the majority, but many) support it and don’t think the religion forbids it; and why should your religion be the boss of me?

    • If you mow down the law for what you want, in other words, your feelings, there will be nothing to stop you being mowed down by the same definition in another hand.

        • I agree with Ken. Marriage is a covenant relationship and the foundation of society. Just look at places where there are low marriage rates and see the breakdown of society. Marriage is for children, property and social stability.
          Feelings are very unreliable in marriage. You have to ignore them a lot to get to 43 years as my husband and I have.
          Btw, according to all gay commenters, marriage and monogamy are a joke. They are not faithful even to what they claim they wanted. So, no, it’s not about feelings.

  5. I also expect plural marriage is coming down the road, and the argument is NOT going to take the path that many expect it will. It’s not going to play out around old style one man, many women polygamy, a la “Big Love” or the FDLS in Southern Utah, or, as is pointed out below, in many Muslim areas. The ‘ick’ level on that variety of plural marriage is still a fairly high bar to cross.

    The angle where we will see the push for poly is going to be from the B in the GLBT. Identity politics is everything these days, so expect to see arguments that denying the right to marry only ONE of the genders one loves is discriminatory. “Why I should I only be allowed to marry ONLY a man or ONLY a woman when the very core of my being is that I love BOTH? Joe and Joan are both fine with me being in love with both of them, so why should we all be denied the public recognition of our love and all the benefits that go with it?”

    • The argument won’t be for polygamy–which is multiple wives–it will be polyamory–multiple lovers. After all, if two women can marry, why not three women? Two women and two men? If three or four is marriage, why not five or six? Why not ten? Twenty? One hundred? Imagine the wedding dress industry responding to THAT demand.

  6. It seems to me that this symposium is using the “Yearning For Zion” version of toxic polygamy where boys are chased off and girls given to old friends of the leader.

    There is another model, a group of consenting adults living together. Surely this must lighten the load of housework, and if the women like each other, and the household thrives, where is the community harm from that?

    My only concern is this; if our society allows for multiple legal partners, what’s to stop entire towns from marrying? That’d be weird.

  7. Ms Hamilton is obviously job shopping for a spot on Fox News. Pope Francis is trying to heal the Church and move away from such hate mongering, unchristian, self appointed, self serving prophets as her. Please pray for her.

    • Yeah, right.

      Just as soon as I get through railing at them for their corporatism and pounding on them for supporting war with anybody, anytime, they’re going to load me right in, because, you see, just like all the females on Fox, I’m a babe.

        • It was a joke jmskeptic. I’m not even annoyed by your ham-handed attempts at making this about me instead of the issues. It’s what I expect from “skeptics.”

          This blog isn’t a forum for personal assaults. If you have a thought, you’re free to discuss it. In other words, use the thinking part of your brain and frame ideas about ideas, not just rattle off personal insults as if you’re saying something.

          I’ve let you run out this string for a while now, because, to be honest, it was kind of funny to me. But now it’s time for you to start playing nice. Either that, or go back to the atheist portal where personal attacks substitute for discussion pretty much all the time.

  8. Why should the government be in the marrying business? Let any combination of adults form any kind of civil agreement of mutual obligations and benefits. Take the word, marriage, out of all legislation.

    The joke is that marriage is called a “contract.” Change IRS rules so that the marriage contract comes under the same rules as any partnership and problem solved.

    • Bill, that’s not reasonable or workable for a number of reasons. The first is that it is a system that exists and largely works – as evidenced in part merely by the sheer numbers of people that enter into marriage every day. Dismantling our largest social institution? Please, no.

      Second, which is related to my first point, but more fundamental, is that people WANT marriage and marriage is on the whole GOOD for the married people and good for society.

      So, in the same way that I want clean drinking water, housing, personal safety, and an education, and that those things are generally good for me, I want my government to help me in my efforts to have access to those things.

      Isn’t that what a government is for?

  9. The State’s only legitimate interest in marriage is to protect the rights of dependent children and to establish rules governing inheritance. Nothing about polygamy vs 1:1 marriage affects the state’s interest.

    • Robert, I disagree. See above. Doesn’t the State have an interest in seeing me get the things that I want and that are proven to be good for me? Married people are on the whole healthier and happier and more prosperous than single people. So why isn’t that a significant reason to consider the institution of marriage good social policy?

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