Lawrence v. Texas, the Polygamy Edition

The following editorial from the Los Angeles Times is spot on:

Jonathan Turley is probably not the most popular man right now with supporters of same-sex marriage. The George Washington University law professor has filed a suit challenging the constitutionality of Utah's anti-polygamy laws — and his argument is based on a landmark 2003 Supreme Court gay rights decision. That's not good news in the view of most gay rights supporters, who don't want their cause linked to that of polygamists any more than they want to see parallels drawn with people who engage in incest, bestiality and other taboo sexual practices.

The Utah case involves Kody Brown, his legal wife, Meri Brown, and three other "sister wives." It's not actually about marriage, and it doesn't challenge the right of the state to refuse to issue wedding licenses to polygamous families. The Browns are in court because they fear they will be prosecuted.

The 2003 gay rights case, Lawrence vs. Texas, was also a criminal matter unrelated to same-sex marriage. The court overturned the conviction of two men found to have violated a state law against same-sex sodomy. But in reaching that conclusion, Justice Anthony M. Kennedy offered a paean to intimate relationships defined by sexuality that easily can be transferred to the context of same-sex marriage, and potentially to polygamous marriages as well:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the [Constitution's] due process clause gives them the full right to engage in their conduct without intervention of the government."

Kennedy emphasized in Lawrence that same-sex marriage wasn't before the court. Similarly, in an interview with the New York Times, Turley suggested that decriminalizing polygamy will not inevitably lead to a movement for polygamous marriage. But language addressed to one issue often surfaces in cases dealing with others. When Massachusetts' highest court decided to strike down the state's limitation of marriage to heterosexual couples, it cited the Lawrence opinion.

So is polygamy about to receive the same legal status that same-sex marriage now has in several states? Not in the near term. For one thing, the U.S. Supreme Court has not recognized same-sex marriage, a prerequisite, some think, for acceptance of polygamous marriage. Meanwhile, the federal court in Utah, in parallel with Lawrence, may rule simply that the Browns and other polygamous families are immune to prosecution but can't have their multiple "spiritual marriages" blessed by the law.

But, like Lawrence, a ruling sympathetic to unconventional sexual behavior could plant the seeds of a future campaign for full marriage equality. In that case, governments would have to prove that it's rational to limit marriage to two individuals, homosexual or heterosexual. That might seem obvious, but so, at one time, did the argument that marriage should be confined to opposite-sex couples.

Obama Supports Bill that Could Recognize Polyamory

The Obama Administration, which has already made the unprecedented move of refusing to defend the Defense of Marriage Act, has decided to support the curiously-named Respect for Marriage Act that would repeal DOMA. Edward Whelan, a former law clerk for Justice Antonin Scalia and a former counsel to the Senate Judiciary Committee, testified before a Senate committee as follows:

Far from respecting marriage, S. 598 would empty the term of any core content. In its section 3, S. 598 would redefine marriage for purposes of federal law to include anything that any state, now or in the future, recognizes as a marriage.

The inevitable effect, and the presumed purpose, of section 3 of S. 598 is to have the federal government validate so-called same-sex marriage by requiring that it treat as marriage for purposes of federal law any such union recognized as a marriage under state law. Section 3 would also require taxpayers in the states that maintain traditional marriage laws to subsidize the provision of federal benefits to same-sex unions entered into in other states.

Further, the principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage clearly threaten to pave the way for polygamous and other polyamorous unions, especially via the judicial invention of a state constitutional right to polyamory. If the male-female nature of traditional marriage can be dismissed as an artifact and its inherent link to procreation denied, then surely the distinction between a marriage of two persons and a marriage of three or more is all the more arbitrary and irrational. The administrative burden of allocating the benefits of marriage among the members of a polyamorous union so that they would not exceed those of a two-member union is surely insignificant in the face of the polyamorists' asserted right (in the language of Planned Parenthood v. Casey (1992)) "to define [their] own concept of existence, of meaning, of the universe, and of the mystery of human life." Indeed, it's doubtful that any further sliding down the slippery slope would be necessary to get to polyamory: unlike the novelty of same-sex marriage, the polygamous version of polyamory has been widely practiced throughout history (and is therefore arguably up the slope from same-sex marriage).

Under section 3 of S.598, any polyamorous union recognized as a marriage under state law would have to be recognized by the federal government as a marriage for purposes of federal law. Thus, the foreseeable effect of S. 598 would be to have the federal government validate any state's adoption of polyamory and to require taxpayers throughout the country to subsidize polygamous and other polyamorous unions.

One has to wonder why those so committed to repealing DOMA would propose a bill that opens the door to federally-recognized polyamorous marriage, knowing that such a provision will make the bill all the more difficult to pass. The likely reason is that the drafters of the bill are beholden to those who actually desire legalized polyamorous marriage. It will be interesting to see how the debate over this provision unfolds.

Same-Sex Marriage And Totalitarianism

Archbishop Timothy Dolan created a stir when, leading up to the legislative vote in New York state that legalized same-sex marriage, he stated the following:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

Critics, predictably, argued that New York did nothing more than “pass a law to end discrimination against same-sex couples.” However, considering the rising conflict between churches and the states that legalize same-sex marriage (and the propensity for the state to trump the church under the guise of ending “discrimination”) Archbishop Dolan’s concerns appear all the more real.

Dolan was speaking of Totalitarianism, a political system where the state recognizes no limits to its authority and strives to regulate every aspect of public and private life. George Weigel recently wrote at National Review Online about how marriage worked in a totalitarian state, that of communist Poland:

Under Polish Communism, Catholic couples — which is to say, just about everyone — got “married” twice. Because marriages in the Catholic Church were not recognized by the Communist state, believers had two “weddings.” The first was a civil procedure, carried out in a dingy bureaucratic office with a state (i.e., Communist-party) apparatchik presiding.... The entire business was a farce, regarded as such by virtually all concerned. Some time later, [couples] were married, in every meaningful sense of that term, in [a Cathedral].

Ever since the Massachusetts supreme court created a right to same-sex marriage, liberals have proposed resolving the conflict between church and state on the marriage issue by emulating Communist Poland. Alan M. Dershowitz, a law professor at Harvard University, wrote in the Los Angeles Times as follows:

The solution is to unlink the religious institution of marriage -- as distinguished from the secular institution of civil union -- from the state. Under this proposal, any couple could register for civil union, recognized by the state, with all its rights and responsibilities. Religious couples could then go to the church, synagogue, mosque or other sacred institution of their choice in order to be married....

Sound familiar? Yet this is the necessary result when the state tries to regulate public and private life by trying “to re-invent the very definition of an undeniable truth – one man, one woman, united in lifelong love and fidelity, hoping for children – that has served as the very cornerstone of civilization and culture from the start.”

Let the People Vote!

The latest reports say that the vote in the New York Senate on whether to legalize same-sex marriage is resting in the hands of just two Republicans. As the National Organization for Marriage blogged, hundreds have gathered on the steps of City Hall, chanting, "Let the People Vote!" NOM supports a referendum for the citizens of New York and letting the legislature do what the people decide.

This is the only reasonable alternative. Professor Nancy Cott, one of plaintiffs' experts in the Proposition 8 case of Perry v. Schwarzenegger, testified that the social meaning of marriage in society is defined by "how the public views marriage." Moreover, Cott also agreed that "the law very definitely has an impact on the social meaning of marriage."

Any law legalizing same-sex marriage, in the words of Ian Robinson, would "strip marriage of its deep meaning as a symbol of the male-female union that it is quintessentially a part of [life] on this planet, and to pare it down to the status of a civil union, a merely legal arrangement." In other words, laws allowing same-sex marriage would remove a very important social meaning of marriage.

The people of New York, and any other jurisdiction for that matter, must be allowed to vote on the legal definition of marriage. First, it only makes sense that the same people who define the social meaning of marriage should be allowed to define the legal meaning of marriage as well. Second, we know that changing the legal meaning of marriage will, in turn, change the social meaning of marriage. And the people might not want that to happen.

The Secular Case Against Same-Sex Marriage

This is a great article by Ian Robinson, President Emeritus of the Rationalist Society of Australia and a former editor of the Australian Rationalist, from www.onlineopinion.com.au:

My Godfather was a bachelor who lived in a small cottage in East Melbourne. We called him Uncle Ernest but he was actually my grandfather’s brother and technically my mother’s uncle. He came once a week to dinner at our house and was an important influence on my development. Although my parents were by no means uncultured, he brought something extra into my life in terms of a respect for the arts and the value of refinement and taste. He was for me a model of elegance and urbanity and, most important of all, gave me a sense of style. I still remember when he took me to my first Shakespeare play in the city, performed by the visiting Old Vic Company. I believe he had a similar positive influence on some of my cousins.

He was a loved and respected member of my extended family and I never heard a word spoken against him. The family sometimes mentioned his late companion who shared the cottage with him for many years, well before my time, but there was no hint at all that there was anything untoward in this.

I am now almost certain that he was gay and I am grateful that he was. If he had been heterosexual he would most probably have married and had his own children and been too busy with them to give me the benefit of his dignified presence.

My subsequent life has been enriched by countless encounters, and sometimes ongoing relationships, with a wide range of gay people in all walks of life. Most of them were first and foremost fine people, intelligent, creative and enthusiastic, and their homosexuality, while part of their identity, was neither here nor there in the argy-bargy of day-to-day existence.

I believe my personal experience can be generalised to the whole society. Our whole culture has benefited from the presence of homosexuals in our midst, not just as mentors but as productive and creative people in their own right, and we should thank whatever evolutionary forces made it a fact that it is normal that a percentage of the population at any one time will be drawn to same-sex rather than heterosexual unions.

Homosexuality is normal, but it is not the norm. If it were the norm, the human race would have died out eons ago. The norm for human beings is sexual reproduction which requires not same-sex but opposite-sex unions. At the most basic level, our survival as a species requires the coming together of male and female gametes.

In human societies the way this essential union is symbolised is in the institution of marriage. This is how the centrality of the male-female partnership is celebrated in our culture and, in a non-religious sense, it is sacred; that is to say, heterosexuality is so important to our survival, so fundamental to the continuation of the species, that we have an ingrained sense that marriage as a heterosexual union should not be tampered with. It symbolises in the social sphere the vital role that the male-female gamete union plays at the biological level.

It is true that in the past, and even now, many societies have discriminated against homosexuals and one of the ways they have done this is to deny them the civil advantages that are bestowed on married couples. In a just society, no-one should withhold such privileges from a person or a couple simply on the grounds of their sexual orientation. But to solve this problem by introducing same-sex marriage is to strip marriage of its deep meaning as a symbol of the male-female union that it is quintessentially a part of nearly all animal life, including human life, on this planet, and to pare it down to the status of a civil union, a merely legal arrangement. This is why I feel queasy about the idea of same-sex marriage. It is achieving equality for some by taking something important away from many others, and that, I think, is not just. The just way to give equality to homosexuals is to acknowledge their relationships in civil, unions which give them the recognition and legal rights they want and deserve, without at the same time making meaningless the rite of marriage as a female/male inter-relationship in the process.

Being equal does not mean being the same. Marriage celebrates the male-female bond, which is worth celebrating, but his doesn’t mean we shouldn’t also celebrate homosexual partnerships for the contributions they have made. I think of Gertrude and Alice. Of Patrick and Manny. And so many more. The list is a long one.

But we must also recognise that there is a sense in which homosexual partnerships are not the same as heterosexual ones and this difference should also be celebrated.

I sometimes think that some members of the homosexual community are playing a game of “Let’s Pretend” – “Let’s pretend we’re heterosexual”: Heterosexual couples have children, so let’s get ourselves a baby. Heterosexual couples get married, so let’s get ourselves married. This seems to me to be at one level a denial of one’s homosexuality, of what makes homosexuality unique. Freedom is not the ability to become like other people, freedom is the ability to become more fully yourself! Isn’t this what “Gay Pride” means. There is no pride in making believe you are just like everyone else.

So by all means find non-discriminatory ways to recognise same-sex relationships but don’t do it at the expense of blurring and obscuring the unique role of sexual reproduction and its social representation in marriage in the continuing social life of our species.

Change Marriage Law, Change Marriage Culture

From the Washington Post:

Although... the marriage rate has dropped in half since 1970, even as the percentage of babies being born outside of wedlock more than tripled over the same time period—one surprising bright spot when it comes to married life in America is that sexual fidelity seems to be on the upswing....

For instance, in the 1970s, 63 percent of men and 73 percent of women said marital infidelity is "always wrong." In the 2000s, 78 percent of men and 84 percent of women said that marital infidelity is "always wrong."

Likewise, in the 1990s, 17 percent of married men and 11 percent of married women reported that they had been unfaithful to their spouses. In the 2000s, infidelity reports fell to 16 percent and 10 percent, respectively, among men and women.

I have often expressed my concern that the acceptance of same-sex marriage will erode this "bright spot" of sexual fidelity in marriage. As the New York Times put it, "If innovation [i.e., the acceptance of sexual infidelity] in marriage is going to occur, it will be spearheaded by homosexual marriages." This would be problematic because "marital infidelity tends to exact a devastating toll on the quality and stability of family life," causing divorce and trauma for any children involved.

Naturally, advocates of same-sex marriage argue that letting gays marry will do nothing to undermine the norm of monogamy for everyone. John Corvino, at 365gay.com, recently wrote that same-sex marriage "won’t change straight people’s ability to think for themselves... While monogamy may be hard, it’s not so hard that a monogamous couple (straight or gay) can’t look at a non-monogamous couple (straight or gay) and conclude, 'Nope, that’s not right for us.'"

The truth is not so simple. Without the benefit of hindsight, one could, for example, have reasoned that no-fault divorce wouldn't change a couple's ability to think for themselves. One could have reasoned that while life-long marriage may be hard, it's not so hard that one couple can't look at another couple getting divorced and conclude "Nope, that's not right for us."

Of course, we know that in reality, no-fault divorce helped change the very essence of marriage. It helped to transform the fabric of society to a point where people have difficulty even viewing marriage as a life-long commitment, let alone practicing it. With no-fault divorce, changing marriage law changed marriage culture. I expect that changing marriage law again would do the same by undermining the norm of monogamy for everyone.

Who's Afraid of the Big, Bad Research?

Political correctness is causing researchers to skew their findings, which in turn is confusing the debate over same-sex marriage. Two recent examples illustrate this point.

First is a recent study that clearly establishes that the sexual propensities of children raised by lesbian parents are different than children at large. Researchers based in California completed a study that concluded that “daughters of lesbian mothers are more likely to engage in same-sex behavior and to identify as bisexual.” This is consistent with other studies that have concluded that “the offspring of lesbian and gay parents might be more open to homoerotic exploration and same-sex orientation.”

Are not these findings relevant to the national dialog and the debate over same-sex marriage? Yet these facts are suppressed or ignored because they cut against the politically-correct idea that there are no differences between children raised by same-sex couples.

Second is a recent study by ChildTrends that concludes that “happy parental relationships are quite consistently related to better outcomes for children and families across all types of subgroups.” Yet, as reported by the National Catholic Register, the underlying data to this study also showed that “[c]hildren living with biological or adoptive parents did better than those with their unmarried biological or adoptive parents; the outcomes were significantly worse for children in a married stepfamily and worst with one biological parent and an unmarried partner.”

Are not the findings about family structure also relevant to the national dialog? Yet they, too, were suppressed because they cut against the politically-correct idea that children need nothing more than loving parents, regardless of family structure.

These findings are highly relevant and it is dangerous to ignore them especially when we consider whether to fundamentally change the legal definition of marriage. No one has to disagree with same-sex marriage simply because children of gay and lesbian parents are more open to same-sex orientation or because children thrive best with their married, biological parents. But these facts must not be suppressed because of political correctness: They are relevant to the marriage debate.