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.