May 31, 2023

In Brief: Obergefell and Legalizing Polygamy

The logical consequence of the Supreme Court’s marriage ruling was always going to expand further.

Marriage between one man and one woman is the building block of civilization. Polygamy certainly has roots in ancient civilization, though it was not God’s design for the family. Some folks would take us back to those days, as political analyst Jonathan Tobin explains.

In 2015, the U.S. Supreme Court decided the landmark case of Obergefell v. Hodges, legalizing gay marriage in all 50 states and the District of Columbia by a 5-4 vote. Justice Anthony Kennedy, who wrote the majority opinion for the case, didn’t seem to believe that the issue of polyamory could possibly be relevant or arise due to the court’s decision. Just eight years later, The New York Times published an article … that celebrated Somerville, Massachusetts, as a haven for legal polyamory.

… The Boston suburb adopted an ordinance in 2020 granting domestic partnership rights to people in polyamorous relationships. That was followed up this spring by the passage of two more laws “extending the rights of nonmonogamous residents,” banning discrimination on the basis of “family or relationship structure” in city employment and policing. The Somerville City Council is currently considering extending the reach of that law to housing. And as the Times reports, the “nonmonogamous” are no longer unusual there.

The Times, as Tobin notes, says “there is a significant crossover between those who identify as lesbian, gay, bisexual, trans and pansexual and those who practice nonmonogamy, according to multiple studies.” Polyamory is also becoming more popular in entertainment, which he says is itself what “helped pave the way for Obergefell.” Advocates hope to repeat the playbook.

It is worth remembering that at the time the gay marriage ruling was handed down, both the majority opinion and liberals cheering it sought to assure the nation that its implications were limited.

The decision was based on the claim that marriage “equality” was rooted in the due process and equal protection clauses of the 14th Amendment to the Constitution. The right of two people of the same sex to the benefits of government-approved marriage was, according to the five-justice majority and the rest of enlightened opinion, no less compelling than those of two of the opposite sex. …

Yet as Chief Justice John Roberts noted in his dissent, there was a problem. “Much of the majority’s reasoning” in support of same-sex marriage “would apply with equal force to the claim of a fundamental right to plural marriage.” Indeed, as Justice Samuel Alito had said during the case’s oral arguments, those who claimed the equal protection clause demanded that the law recognize same-sex marriage between two people could not reasonably explain on what grounds a state could deny a marriage license to a foursome of two men and two women.

Tobin agrees, noting, “Kennedy’s opinion included many elements that can be construed as arguing against extending the right of marriage to more than two consenting adults.” Lo and behold, they are being used that way.

If marriage is possible between any two individuals of the opposite or the same sex, then why not three, four, or any number of consenting adults, regardless of their sex? And if Somerville is the harbinger of a growing movement to legalize polyamorous and inevitably polygamous marriages by cities and ultimately states, then those who will defend such laws are on firm ground declaring that the logic of Obergefell demands that all non-traditional ideas about marriage must be treated equally under the law. This is the choice America made in 2015.

Well, not America, but five judicial despots.

Politically, Tobin says, “So long as American law rejects traditional marriage as a valid definition, [liberal politicians] have no leg to stand on to deny it to groups of consenting men and women or persons who define themselves in some other manner.” And conservatives, unfortunately, have largely given up given the popularity of same-sex marriage. We can’t give up, Tobin argues, because “The same movement that is driving events in Somerville and elsewhere aims to destroy the traditional family. In its place, they wish to elevate the nihilism of cultural Marxism.”

Read the whole thing here.

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