At The American Interest, Prof. Robert George (founder of American Principles in Action) lays out the case that the principles embraced by Justice Kennedy and the narrow majority in Obergefell makes polygamy inevitable—unless those principles are resolutely rejected by the American people and the next Supreme Court majority.
Kennedy is not immortal. The next president may choose the future of marriage. This is one reason I have been so involved in scrutinizing the candidates’ responses to Obergefell.
The whole essay is well worth reading. I am not convinced polygamy is inevitable. But it is now a real possibility—judicially created and enforced:
The late and extraordinarily influential legal philosopher and constitutional theorist Ronald Dworkin, a champion of aggressive judicial action to advance liberal causes, taught that law is fundamentally about a society making commitments to certain moral principles and working out their implications over time. Fundamental to that enterprise is treating like cases alike. The heart of the case for same-sex marriage was that gender differences are irrelevant to what marriage actually is, namely, a form of committed sexual-romantic companionship or domestic partnership. The challenge for same-sex marriage supporters is either to accept polyamory on the basis of the very same vision of marriage, or to offer a new and more specific vision—one that can explain why number is relevant but gender is not.
The idea of marriage as a conjugal union explains the structuring features of marriage in our moral and legal traditions, including (1) the rules of consummation (including annulability for non-consummation, but not for infertility); (2) the requirements of (a) monogamy, (b) sexual exclusivity (fidelity), and (c) permanence of commitment (“till death do us part”); and (3) the treatment of marriage as a properly public matter, something that law can and should recognize, support, and regulate, and not a merely private or religious matter, like baptisms, bar mitzvahs, and ordinary friendships (even the closest and most intimate).
Here is where Professor Dworkin’s point about the centrality of principle to law has its significance for the cause of polyamory, at least for his fellow liberals who approve of the role assumed by the judiciary in cases such as Roe and Obergefell. Where the same principle requires it, he who says A must say B. And he who says that the judiciary has the power to dictate A must say that the judiciary has the power to dictate B, even if B doesn’t yet share A’s popularity and even if the people’s representatives in the legislature say no to B. The constitutional case for the judicial imposition of same-sex marriage requires belief that the Constitution—somewhere, somehow (perhaps lurking in “penumbras formed by emanations”)—incorporates the idea of marriage as sexual-romantic companionship. But if it does, then there can be no reason of principle for withholding legal recognition from the marriage or marriages of, say, Yemeni immigrants or fundamentalist Mormons who are in polygamous partnerships, or polyamorous people like the Youngs. To observe that 75 percent of the public still opposes legal recognition of such marriages is only to highlight the need for the courts to intervene to vindicate the marriage equality rights of those in multiple-party relationships—people who cannot count on their fellow citizens to treat like cases alike when it comes to sexual partnerships that they happen disapprove of on moral or religious grounds.
If Obergefell stands—and, for what it’s worth, I myself hope it will not—the question of legal recognition of polygamous and other polyamorous partnerships cannot be avoided. The arguments of those who want to retain the idea of marriage as mere sexual-romantic companionship or domestic partnership while denying legal recognition of polyamorous marriages will sound weaker and weaker, more and more like mere rationalizations for stigmatizing what many people (for now, at least) still find icky.
Maggie Gallagher is a senior fellow at American Principles in Action.