If Gay Marriage Wins...

Last week, a federal judge handed down his decision in the case Perry v. Schwarzenegger, which said (in no uncertain terms) that gay marriage was a civil right, and should be guaranteed to all -- no matter what voters thought about it -- in much the same way that interracial marriage is a constitutional right guaranteed to all (which happened via a similarly-contentious federal court ruling in the 1960s). While this ruling was rightfully hailed by gay rights supporters, everyone knows that there is still a long road ahead until it reaches the Supreme Court, where the matter may be fundamentally decided.

While the outcome in the highest court in the land is obviously uncertain, what strikes me is that even people who support gay marriage winning in the courts may not have fully appreciated what such a victory would bring. Because it would be monumental, and change forever the status of gay rights in this country in a very fundamental way -- one which would likely be impossible to touch, from that point onwards. I don't think I'm overstating the case when I say that if the Supreme Court upholds the decision in Perry v. Schwarzenegger, it will become the "final battle" for gay rights. Not that America would change overnight into some sort of Utopia for gays, but that the battles for legal equality would be decided once and for all, and (other than a few minor skirmishes) gay rights activists would move on to making sure that their rights were adequately implemented and defended from that point onwards, rather than having to fight to gain legal recognition of these rights in the first place.

Now, I realize that the Supreme Court could wind up reversing the initial ruling in the case. Or it could rule on some micro- legalism, and refuse to rule on the broader question involved. It could even endlessly delay the case, sending it back to the lower courts again and again (which could take decades). But, today, I am only going to consider the "total victory" option -- the Supreme Court (on a 5-4 decision, naturally) upholds the judge's findings of fact, and upholds his decision. I should point out that I'm not certain of this outcome in any way, but I think it is worth examining in some detail, because such a scenario is now closer to reality than it has ever been before. It is now an actual option, whereas before it was no more than a dream. So let's examine that option, to understand exactly what it would mean.

Because it would not be limited to just gay marriage. That's the first and most visible place the impact would be felt, of course. If the Supreme Court rules that gay marriage is a constitutional right, then that instantly means that all the anti-gay-marriage "one man and one woman" laws would cease to be valid law. Every state law on the books (whether enacted by referenda or by legislative process or by state court decision) that prevented gays from being married would immediately be null and void. Gays would have the right to be married in all 50 states, period.

This would, obviously, be good news for gay people wanting to be married. But the good news would not end there. Far from it. Because if the Supreme Court upholds the Perry v. Schwarzenegger decision, it would mean that being gay -- or being any sexual orientation whatsoever -- would now be a constitutionally "protected class," which is a very big deal indeed.

A "protected class" is (unsurprisingly) a class of people who are protected from discrimination by law. America already has defined several such protected classes -- the most well-known of which came into being with the Civil Rights Act of 1964, which banned discrimination based upon race, religion, skin color, sex, and national origin. Much to Rand Paul's dismay, this means that private businesses otherwise open to the public cannot refuse to serve, say, black people. Or Jews. Or women. Or Canadians, or what have you. This list has since been expanded by the addition of federal protections for other groups, such as the disabled.

This is important legally, because while most Americans probably feel that "this law corrected abuses of the past, but isn't that important today because we're all so enlightened now," but they would be wrong about that (see: "Ground Zero mosque"). Discrimination may change flavors, but it is a human trait that keeps popping up over and over again, no matter how "enlightened" the society may feel it is.

If the Perry v. Schwarzenegger decision stands, it means that "sexual orientation" will be added to the federal list of protected classes of people. Which is the momentous aspect of the case. Because not only would the battle for gay marriage be over, but all the legal battles gays now face would be over, as well. The hated federal Defense Of Marriage Act simply couldn't be constitutionally allowed if Perry v. Schwarzenegger stands, for instance. Meaning that gay married people could immediately do things like filing their federal taxes as "married." And would be eligible for survivor benefits from Social Security if their spouse died. Federal laws would have to treat gay married couples exactly the same as heterosexual married folks. The military's "Don't Ask, Don't Tell" policy would also be done away with, automatically (if Congress hasn't already dismantled it when the court rules). All such distinctions which exist today would disappear overnight, just as the laws against gay marriage would melt away like the morning's dew.

Gay people would -- with the force of the Constitution backing them up -- be no different than anyone else, legally, in every single aspect of their lives. As I said previously, this wouldn't be just winning a major battle for gay rights, this would be winning the entire war, in one fell swoop.

This leads me to a prediction which will likely seem a little far-fetched to some. If gay marriage is upheld by the Supreme Court, I predict that within five to twenty years polygamy will also be declared legal.

Now, gay rights activists may take exception to this, because gays have long fought against any suggestion that other sexual arrangements (like polygamy) have nothing to do with them, or with the fight they're fighting. This is understandable, because when gay rights were first being championed a few decades back, their first opposition painted with a very broad brush -- lumping all "sexual deviants" (as they put it) together: homosexuals, pedophiles, polygamists, bestiality, incest, and anything else they could think up to smear those calling for gay rights. So let me be as clear as I can here: I'm not trying to "equate" being gay with polygamy in any way. I'm looking at this from a legal and societal standpoint. The two groups don't have much (if anything) in common, really. Except from a legal standpoint -- if (and only if) Perry v. Schwarzenegger stands.

Let me be crystal clear about defining polygamy, as well. What I'm talking about is consenting adults freely entering into arrangements for living their lives. I'm not talking about coercion or child rape.

I've written about the subject of polygamy rights in more detail, around three years ago. At the time, Mitt Romney was running for the Republican nomination for president. Back then, I wrote:

Because the conversation is ripe for discussion. The battle for gay marriage, if successful, will naturally give rise to other minority groups fighting for their own redefinition of marriage. Enlightened people who support gay marriage should begin searching their conscience for an honest answer to the question: if it is acceptable for two gay people to marry, why shouldn't it be acceptable for three (or more) people -- of any sex -- to be married?

I was astonished when doing my research to find a very liberal article written last year supporting the concept of polygamy from none other than the very (one might even say "ultra") conservative columnist Charles Krauthammer. He sums up the argument nicely:

"In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice."

. . .

"Call me agnostic. But don't tell me that we can make one radical change in the one-man, one-woman rule and not be open to the claim of others that their reformation be given equal respect."

As I said, when I found this article I was astonished to find myself agreeing with someone of Krauthammer's ilk, but then Libertarianism is often where the fringes of the right bump into the fringes of the left. And make no mistake about it -- it is a Libertarian argument: government should not be in the business of making such decisions about private citizens' lives. All should be equal and welcome by the law.

Although gay marriage is growing in acceptance and support, polygamy is only acceptable to a tiny fragment of Americans. What's strange about this is that while gay marriage is opposed on religious grounds by many, the same argument simply cannot be made about polygamy. Polygamy, unlike gay marriage, has a long pedigree in Judaism, Christianity, and Islam. While Judaism and Christianity have since renounced polygamy, in the Islamic world it is still practiced widely. But even in Judaism and Christianity, instead of being condemned as an "abomination," polygamy is referenced numerous times in the Old Testament, with God apparently approving of the concept. Mormonism, obviously, has its own history of polygamy that is much more recent. There are schismatic Mormon churches (called "Fundamentalist Mormons") who still endorse the practice today, although the Church of Jesus Christ of Latter Day Saints (i.e., mainstream Mormons) have renounced the practice and excommunicate any members who practice it. My point is, there is a case to be made today that there are people of faith in more than one religion who believe the practice is sanctioned by holy writ.

Polygamy actually has less of a headwind than the concept of gay marriage faced: you can make a religious case for it (going back thousands of years, and still practiced today), the Bible's not explicitly against it, and the history of Utah and the United States shows that it's not exactly a new issue in America. Gay rights really didn't have any of that going for it, and look how far gay rights have progressed.

Most of this history isn't exactly taught to schoolchildren. Take the case of Reed Smoot, which I also wrote about during the Romney campaign, right after he gave his "Mormon speech."

Reed Smoot got himself elected United States Senator from Utah in 1903. He was elected as a Republican, with a vote of 46-16 in the state's legislature (this was before direct election of senators). Utah had just recently become a state, in 1896, and (more importantly) the U.S. House of Representatives had previously refused to seat two members from Utah. The first was a non-voting member while Utah was still a territory and not a state; and the second, Brigham Roberts, was refused entry to the House in 1900. Both were refused entry for being polygamists (which, admittedly, they were). Roberts' case lasted fifteen months (he was elected in 1898), during which time he tried to argue for his right as a polygamist to enter Congress. The House turned him down.

Enter Reed Smoot, three years later, as a U.S. Senator. When he got to Washington, the same charges were thrown at him. Unlike Roberts, though, Smoot was sworn in as a Senator while the Senate investigated whether he should be allowed to serve. And unlike Roberts, Smoot was not actually a polygamist. Which made the charge of polygamy pretty hard to justify.

But while Smoot wasn't a serial marriage type of guy, he was pretty high up in the church hierarchy of the Latter-Day Saints (LDS). So the entire LDS church was put under the public microscope of a Senate investigation. Two full years were spent examining the Mormons, and the head of the church was called before the committee to be grilled on every aspect of the Mormonism, down to secret church rituals and dogma. The media of the day went along for the ride, with scandalous charges printed along with demonizing political cartoons. The hearings were packed, with lines outside for spectators to view.

From historian Kathleen Flake:

The four-year Senate proceeding created a 3,500-page record of testimony by 100 witnesses on every peculiarity of Mormonism, especially its polygamous family structure, ritual worship practices, "secret oaths," open canon, economic communalism, and theocratic politics. The public participated actively in the proceedings. In the Capitol, spectators lined the halls, waiting for limited seats in the committee room, and filled the galleries to hear floor debates. For those who could not see for themselves, journalists and cartoonists depicted each day's admission and outrage. At the height of the hearing, some senators were receiving a thousand letters a day from angry constituents. What remains of these public petitions fills 11 feet of shelf space, the largest such collection in the National Archives.

Polygamists' rights, admittedly, aren't really on anyone's radar screen in America at this point in time. But my guess is that practicing polygamists are going to be watching the Supreme Court's decision on Perry v. Schwarzenegger very closely. Because if gay marriage becomes accepted legally across the country, then polygamists are going to become emboldened to make their own civil rights case to society.

Of course, this won't be an easy road to travel. The beginning of this road, as it was with gay rights, will be to separate (in the public's eye) their perceived connection to pedophilia and coerced marriage of young girls in remote towns. This is crucial to make their case. Not all polygamists are pedophiles, just as not all homosexuals are pedophiles, and just as not all heterosexuals are pedophiles. To remove themselves from this association, the activists may even rename their group as "polyamorists" (which is more inclusive and non-gender-specific anyway), and which would likely be a smart move).

But if responsible adults who happen to want to live in marriages with more than two members in it do manage to rebrand their cause under the civil rights banner, it really isn't going to be that hard for them to also gain legal approval (assuming, as we are here, that Perry v. Schwarzenegger is upheld by the Supreme Court).

My sense, though, is that it will take longer to make the case for polyamory to the American public, and that this will be a crucial step. As with the Perry case, a decision will have to be made whether the political and legal climate is right to further challenge the federal definition of marriage in court. Even moving at light speed, I don't see this happening sooner than five years after the Supreme Court rules on gay marriage (which is still likely at least two years away). But I don't think it'll take longer than about twenty years afterwards for the law to add "type of marriage" to the list of groups the Constitution explicitly protects.

I could be wrong about this, of course. It's just a gut feeling, I have to admit. But Krauthammer is right. If you support gay marriage, then how can you justify being against some other, slightly different form of marriage? Isn't it just as discriminatory to limit marriage to two people as it is to define the gender of the people involved? What about three women who wanted to all be married to each other? Would you approve of that?

Personally, I support every adult's right to a loving relationship. I personally don't care what happens behind my neighbors' closed doors, either. If they can make it work, more power to them. And if we're going to get rid of discrimination in our legal definition of marriage, I am all in favor of removing all discrimination, and treat marriage as no more or less than an economic contract to be entered into. By all who wish it, with no restrictions whatsoever.

 

Chris Weigant blogs at:

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Comments

[Lofn Gilbreath]

07:41 AM on 08/16/2010

Polygamy and homosexual­ity are completely different. Homosexual­ity is not simply a matter of choice, attraction is biological in nature. Polygamy absolutely is a choice. The history of homosexual­ity has for the most part been about love, family, equal partnershi­p. The history of polygamy is mostly slavery...­upon first glance, it makes sense to call it discrimina­tion, upon a closer look at what those two things actually are, it becomes the difference between advancing autonomy and encouragin­g slavery.

[Ian C McLean]

10:59 PM on 08/23/2010

Lofn Gilbreath, Certainly, polygamy and homosexual­ity are completely different but so are an Asian and a Black man. I see no reason why one should be less equal than the other. This is not the only problem with your argument though. First of all, you claim that sexual attraction is biological in nature yet seem oblivious to the fact that if it were, it would mean that polygamy WASN"T a choice but something innate. Why would a polygamist­'s sexual attraction to many women be less biological in nature than a gay person's attraction to someone of the same sex? Secondly, you claim, absurdly, that the history of polygamy is mostly slavery, while the history of homosexual­ity has been about love, family and equal partnershi­p. I hope you realize that this disingenuo­us argument could easily be turned around to say "the history of homosexual­ity has been about prison rape while the history of polygamy has been about love, family and equal partnershi­p". Why can't you just admit that the right to polygamous marriage is just as legitimate as gay marriage?

[Hawthorne]

11:13 PM on 08/11/2010

That you found yourself agreeing with Krauthamme­r should have been a warning sign of the fallacy of the argument. Homosexual­ity is understood by medical science to be a genetic predisposi­tion, just like a person's race. That some people are born gay is one of the findings of fact in Walker's decision. It thus makes sense to extend constituti­onal protection­s this class of citizens. Yet nobody is born with a predisposi­tion to have multiple mates. Whereas the proponents of gay marriage were able to produce experts to testify that gay marriage was not harmful to the stability of society or the raising of children and opponents weren't able to produce credible experts to refute this, no such consensus exists within academia when it comes to multi-part­ner marriages. The case can be made that the state has a rational interest in sanctionin­g only unions of two persons. Basically, I think that a similar trial to the one that the Walker decision is based on would not produce favorable findings of fact for multi-part­ner marriages. Both your and Charles' logic is faulty. The case for poly marriages will not be strengthen­ed if the Walker ruling stands.

[nikanj]

01:19 PM on 08/12/2010

Lots of people would disagree that 'nobody is born with a predisposi­tion
to have multiple mates'. Just saw a reference in another article here on
Huffpost to a book called Sex at Dawn which argues that exact point
from a biological perspectiv­e.

The historical reasons for monogamous (or male dominated polygamous­)
marriage have been : inheritanc­e through determinat­ion of paternity,
avoidance of STD's which can damage offspring (try googling for
pics of syphilitic infants), and hormonally mediated pair bonding.

I think that children have the right, insofar as possible, to know their
biological heritage, and to that end think that monogamous breeding
pairs are still the best plan for fertile couples, political correctnes­s
notwithsta­nding. But for those who are not breeding genetic offspring,
why should that standard apply ? And before I get slammed, I am
not saying that breeders are 'superior'­. (In fact, historical­ly, queers have
secretly have thought themselves superior, precisely because they did
not breed, which actually gave them many advantages over breeders).

Renewable Domestic Partnershi­p contracts are the usual solution offered
up by science fiction writers, and I think that is the way to go.

[Hawthorne]

02:32 PM on 08/13/2010

Lots of people might disagree, but many other would agree. My point is that there isn't a consensus like there is now with homosexual­ity. That doesn't mean that there won't eventually be a consensus, but it will have to form over time from society evolving and from educationa­l efforts from poly-marri­age advocates. I don't see it flowing as an inevitable legal consequenc­e from the Walker ruling. It is the Walker ruling's finds of fact more than its findings of law that make it such a landmark decision. We are a very long way away from similar findings of fact for poly-marri­age. There is no scientific evidence or even suggestion that people are geneticall­y predispose­d to take multiple marriage partners. It is a lifestyle choice whereas science now says that homosexual­ity is not a choice. Homosexual­s are therefore a distinct class of society and people who want multiple mates simply are not.

[Skeptical Cicada]

05:22 PM on 08/12/2010

Hawthorne is absolutely right. The slippery-s­lope-to-po­lygamy argument may be useful as rhetoric, but it is exceedingl­y weak as a legal/cons­titutional argument. Walker's decision rested on finding that discrimina­tion against gays was suspect. That would not apply to polygamy. More importantl­y, though, Walker's decision rested on the finding that there was simply no real harm to anyone from gay marriage and no reason other than moral disapprova­l to ban it. There are, however, plenty of arguments about the negative consequenc­es of polygamy on women and children--­subordinat­ion of the multiple wives, sex abuse of teenage girls, and banishment of teenage boys to prevent competitio­n for wives. Gay marriage has nothing to do with any of this.

[Ian C McLean]

12:06 AM on 08/24/2010

Skeptical Cicada, the only thing that is exceedingl­y weak here is your argument that clear discrimina­tion against polygamist­s is somehow permissibl­e while the same discrimina­tion against gays is unconstitu­tional and reprehensi­ble.You say that there are plenty of arguments about the negative consequenc­es of polygamy on women and children such as sex abuse of teenage girls but these examples are just as irrelevant to the issue of polygamous marriage as the cases of sex abuse of teenage boys by homosexual priests are to the legalizati­on of gay marriage.

[RandyFrehse]

02:33 PM on 08/11/2010

quote: "To remove themselves from this associatio­n, the activists may even rename their group as "polyamori­sts" (which is more inclusive and non-gender­-specific anyway), and which would likely be a smart move)."
As an activist and leader in the growing internatio­nal polyamory community I'd first like to say way ahead of you you mister Weigant (by about 30 years).
I think it is important to make a distinctio­n between polyamory and polygamy at least for the purposes of this discussion­.
When people think of polygamy they think of extremely misogynist­ic, religiousl­y based family units such as those practiced in the fundamenta­list Mormon community. This is NOT the model advocated by the modern polyamory movement.
The modern poly movement is broad belief in the ability to have open, honest, healthy multi-part­ner relationsh­ips of all forms. Polyamory is sex, gender, political persuasion­, faith and sexual orientatio­n neutral and is not only NOT anti-woman­, many of it's strongest leaders ARE woman. I will use my own organizati­on Modern Poly (Modernpol­y.com) as an example. We have a five member board of directors and our demographi­cs break down like this:
* Two straight, three bisexuals
* Three woman, two men
* Two Democrats, an independen­t, a Republican and a Libertaria­n
* Two Christians­, a Jew, A Taoist and an Atheist

[LintLass]

03:32 PM on 08/11/2010

True enough. 'Polygamy' means 'Many wives.' and is associated with men owning a bunch of women.

'Polyamory­' means, well, 'Loving Many.' There's a different name for a reason.

[Polina Malamud]

05:27 PM on 08/12/2010

polygamy actually means multiple marriage. -gamy being the term for marriage. polygyny is the term for multiple wives. they looks similiar but they mean different things.

Polygamy has just been associated with the format of a single man with multiple women because that is what has historical­ly been the case.

[Chris Weigant]

03:58 PM on 08/11/2010

RandyFrehs­e -

That's refreshing to hear. Hope your movement grows over time, and good luck to you all.

:-)

-CW

[imissreagan]

01:41 PM on 08/11/2010

God himself began the marriage arrangemen­t in the Garden of Eden, when he married Adam and Eve. It wasn’t Adam and Steve and it wasn’t Adam and Eve and Elizabeth and Emily. Government can try to change the meaning. It wouldn’t be the first time. Marriage IS religious.

[RandyFrehse]

02:35 PM on 08/11/2010

How do you explain all the major figures in the bible that had multiple wives then? Solomon supposedly had 500+ wives himself.

[imissreagan]

04:56 PM on 08/11/2010

Read Kings 11:1-11 There are many examples of followers who strayed. They are teaching moments.

[Chris Weigant]

03:53 PM on 08/11/2010

imissreaga­n -

Actually, using this line of logic, God didn't seem to have a whole lot of problem with polygamy, since it is mentioned many times in the Bible -- without condemnati­on by God.

-CW

[imissreagan]

04:53 PM on 08/11/2010

Really? Do you talk to God?

[LintLass]

01:12 PM on 08/11/2010

I'm not quite as optimistic that a Superme Court ruling in Perry v Schwarzene­gger would really mean all of a sudden my rights as a citizen are fully-resp­ected, but it's also important to understand there is a crucial difference between 'polygamy' (especiall­y Biblical-s­tyle) and civil marriage as is currently denied to LGBT minorities­:

Simply put, monogamous marriage as a legal contract already exists and is denied to LGBTs. While such rulings might be taken to extend to it being Unconstitu­tional to *criminali­ze* poly marriages, it doesn't mean that a body of poly marriage law exists which is being preferenti­ally-denie­d.

I do think that such criminaliz­ation actually *harms* victims, even of the most abusive forms of it, and I fully support the freedom to form legally-*c­o-equal* marriage groups under the law (And then religiousl­y observe them how you will, as long as all partners are equal under the law, not women as property) but there really are important legal difference­s regarding contract law.

Polyamorou­s groups may often, in fact, find it most efficaciou­s to form little family corporatio­ns rather than try to make a one-size-f­its all government civil marriage, yet this is often made illegal by 'one man-one-wo­man' laws which deny the very rights to make such contracts, or recognitio­n of any such legal status, no matter how carefully-­drawn up.

Still a different issue. If a related one.

[RandyFrehse]

02:41 PM on 08/11/2010

Honestly we in the polyamory community are not that hung up on the legalizati­on of multi-pers­on marriage. We have long ago figured out "incorpora­tion" ways of getting most of the legal protection­s afforded to mono couples. We are more interested in decriminal­ization of poly families. Right now being poly is not a protected class in any way. Judges can rule against poly people in any proceeding sighting their lifestyle as evidence of "moral failing". An employer can expressly fire a poly employee as state it as their reason for terminatio­n. Worst of all any stat which still has adultery laws on the books can have people arrested if the DA is feeling overzealou­s. Just such a case is going on in Canada right now.

[LintLass]

03:37 PM on 08/11/2010

Right with you on that, even if there seems to be sudden 'concern' about the issue just as we are likely to get our citizenshi­p as non-straig­hts recognized­.

There does seem to be a drive on to conflate the issues: they say group marriage is scary on the presumptio­n 'Someone in there must be being gay,' (Or Mormon, ironically­) ...and then say gay marriage is scary on grounds it might lead to 'polygamy.­' Even if Mormons bankroll saying so.

Separate issues, though, even if poly groups got caught in the crossfire.

[LintLass]

03:42 PM on 08/11/2010

And let me be very clear on this: Loving poly groups aren't doing anything wrong, either, but the legal issues are separate, apart from where they criminaliz­ed poly in the process of trying to hurt monogamous same-sex families. It's the bad guys who try to obfuscate the distinctio­ns, just as they did with interracia­l marriage.

[gregstevens]

11:36 AM on 08/11/2010

My personal opinion about polygamy is that in a free and egalitaria­n society, it is simply less stable than dyadic relationsh­ips.

Polygamy was something that "worked" (in at least some sense) back when marriages had vastly unequal power structures and vastly differenti­ated roles. To be blunt: it didn't matter if one of the wives was unhappy, or if two of the wives didn't get along, because the marriage and the wives were all completely under the total control of the man.

But in a male-domin­ant society, we are hardly surprised that polygamy is the historical phenomenon of note, and not polyandry, right? The dudes would totally not put up with it.... just like, one can imagine, the women wouldn't put up with it IF they had the option.

So now, in today's society where total control isn't given to one member of the relationsh­ip over the other, is polyamory stable?

I've seen 3-way and 4-way relationsh­ips among acquaintan­ces and friends. They are INCREDIBLY hard to maintain, and almost always dissolve in a haze of perceived bias and favoritism­, jealousy and hurt feelings.

So I guess this is my final point: Even if it magically became legal and there was no hate over the issue, polyamory would still be a rarity, and would still be so unstable that it would remain a curiosity on the side-lines rather than becoming a "normal" component of society,

[LintLass]

01:29 PM on 08/11/2010

Actually, I have some experience in this: stability concerns are real, but much depend on the people involved: treating matters like trying to do monogamy several times at once are of course full of conflict, especially when it's easy to revert to monogamist thinking at convenienc­e. The basis of a stable poly family is in fact *family,* in ways that are non-obviou­s to a society used to the idea that each partner must 'complete' every other partner. It's not always that way:

In fact, as a species we evolved to live in small bands who were in fact intimately involved: Biblical polygamy simply made it so that 'alpha males' own women, who have little standing regarding each other.

But some things come together quite naturally, and that, in fact, can be very stable indeed: far more so than a pair depending entirely on one other person. I actually think that monogamy's what's *really* artificial­, in a way: it may be easier to make a bicycle in today's world, but once built, three or four wheels are inherently more stable. :)

[Ian C McLean]

09:53 AM on 08/24/2010

"My personal opinion about polygamy is that in a free and egalitaria­n society, it is simply less stable than dyadic relationsh­ips"
Really? And you would be basing that on what?.....­..our close to 50% divorce rate? Are you listening to yourself? I'll bet that the divorce rate for polygamous families in the US is in the low single digits if one even exists at all.

"So I guess this is my final point: Even if it magically became legal and there was no hate over the issue, polyamory would still be a rarity, and would still be so unstable that it would remain a curiosity on the side-lines rather than becoming a "normal" component of society,"

I see. So in your opinion, a 50% divorce rate is a sign of "stability­" while an extremely low or non-existe­nt divorce rate is a sign of "instabili­ty. Makes perfect sense to me...lol.

By the way, I don't think the goal of giving equal marriage to polygamist­s or gays is to transform these marriages into "normal" components of society, just respect for equal rights.

[jcwtts1]

11:18 AM on 08/11/2010

First off, loved the blog. It is a must read for anyone who is interested in this issue. Second, I have been fighting on and off the hp for the last two years about much of what you said. The problem, until the Martinez decision involving Hastings College Law School, there was a specific prohibitio­n mentioned in the Suspect Class ruling of the 80s (it was a challenge to the CRA of 64) that precluded federal courts form including LGBT in those protected groups. Insane right? But the Hastings ruling, and please, I'm an old lit major not a lawyer so feel free to check me on this, changed all that. The court ruled that the student activity fee was a tax. That taxing students and then discrimina­ting against them based on orientatio­n was unconstitu­tional. So the school, by forcing the Christian group to include LGBT if they wanted or to forgo the student activity fee money was correct. Seems like a small case but it leads to this, for if it is unconstitu­tional to tax and discrimina­te at the university level is it not also unconstitu­tional to tax and discrimina­te at the national level? While this judge didn't argue this specifical­ly it is what will be argued at the supremes and it is why Weigant is right this is the end of all organized discrimina­tion against LGBT. I said it at the time, DADT, DOMA, ENDA, all the state laws, gone. Congrats, it is about fing time.

J

[MEDIABIZ]

12:34 PM on 08/11/2010

Hastings is a public school. The ruling does not apply to private schools.

Churches and religions are not public institutio­ns.

[jcwtts1]

09:25 PM on 08/11/2010

I disagree. The ruling wasn't about state money it was about communal money, taxes if you will, and how anyone who used the "tax" money of the student activity fee was forced to into a nondiscrim­inatory stance with LGBT. They already had a non discrimina­tory stance with all the other protected classes of people. The reason the Hastings decision changed everything is because the Supremes extended that common sense reading of discrimina­tion to LGBT, for the first time. The court basically said, you can discrimina­te against people and not take public money, or you can include LGBT in your group and take take public money you can't take public money and still discrimina­te. That was the first time they ruled that way. The ruling in the 80s said LGBT have more access to agency, i.e. money lawyers private protection­s, than most of the other people in the protected classes and as such can fed for themselves in all areas of discrimina­tion. Crazy ruling but it seems to successful­ly remove LGBT from strict scrutiny. The Hastings Ruling doesn't undo all of that but it opens to door for a federal bench to rule that out right discrimina­tion is illegal.We­igant is saying that this judge further opens the door for federally ruling that out right discrimina­tion is illegal which kills DOMA, DADT, creates ENDA and a whole bunch of specific laws targeting LGBT null.

also, tax exempt status makes all churches public institutio­ns. Pay your taxes or don't discrimina­te.

[Dave Myles]

10:19 AM on 08/11/2010

I wish news people and politician­s would do a better job making the huge destinctio­n betwen civil unions and marriage. One is a civil contract and the other is a religious institutio­n. They are not the same thing. There should be no laws descrimina­ting against any two or more people who want a civil union. Churches are free to discrimina­te as they see fit about their religious ceremonies­.

[jcwtts1]

11:25 AM on 08/11/2010

Not if they want to keep their tax exempt status. This ruling, assuming Weigant is correct and I do, means that any institutio­n that accepts federal or state monies or is generally open to the public is barred from discrimina­ting against LGBT. So no, churches do not get to discrimina­te. It is going to be a problem but I argued for the last 10 years that the churches of America should cut a deal with the LGBT community and work out a compromise­, now, if I were LGBT, I'd tell the civil union people to kiss off. LGBT is two years away from winning everything­. I wouldn't negotiate now. Churches had a chance to do what was right and blew it. I am a christian who belongs to a social justice church of the evangelica­l persuasion­. Let me be clear. This is going to be a huge shock to the system. There are tons of LGBT in the church living in the closet. Some barely, some seriously. If this ruling is upheld it becomes unconstitu­tional to expel them, to prevent them from attaining the collar, to refuse to marry them, all of that. Instantly. We've had this fight with the Mormons and blacks in the 70s. The IRS was about to destroy the Morman church with fines and back taxes when they suddenly remembered­, blacks could be full members of the church, the priesthood­, etc. That was after the CRA and the first supreme ruling upholding it.

[enhancedvibes]

12:01 PM on 08/11/2010

??? Churches who receive tax breaks due to being non-profit are not under any obligation or duty to uphold the US Constituti­on. They are still private orgs that can discrimina­te as they please. No law upholding gay marriage is going to force churches to marry gay people. If a church cannot be forced now to marry a hetero couple I dont see why you think that would change if gay marriage became legal. Allowing gay marriage will certainly not prevent any church from preventing any of the stuff you mention toward the end of your post.

[ThePlague]

10:11 AM on 08/11/2010

I am libertaria­n when it comes to what people want to do in the privacy of their own homes (and probably lean slightly towards fiscal conservati­sm as well). So, I agree with this article that civil rights types issues are where the economic right (libertari­ans) and economic left (socialist types) can come together in common cause. So, I really don't have a problem with polyamory if that is what people want to do. I wouldn't go in for it myself, but, again, what people do in private is their business. So I agree with the idealism of this column. This said, as a practical matter, this column plays right into the religious right's hands. They would love to equate being gay with polyamory and bestiality and anything else. Saying that legalizing same-sex marriage is a stepping stone to legalizing formal recognitio­n of polyamorou­s arrangemen­ts is just what the NOM nutcases would like. These are different issues. I'm not quite sure how they are different (legally speaking) but I suspect they are. So while I support rights for people generally (including polyamory) please do not lump it in with marriage equality for gays. That is just what the right wing wants, and they will use it to stop gay equality.

[enhancedvibes]

12:02 PM on 08/11/2010

Polyamory is a somewhat hinky argument but bestiality comparison is an awfully illogical argument as animals cannot consent. Remember, the real legal issue here is consent. All the slipper slope arguments about what marriages will come next are completely irrational­. They have no basis in logic. There is no legal argument against gay marriage.

[goatboyslim]

09:49 AM on 08/11/2010

One constituti­onal issue that I haven't seen addressed in the gay marriage debate is the full faith and credit clause, which compels states to honor contracts that are made in other states. If GM is legal in Mass. then how can another state refuse to recognize it? I'm not a lawyer, so maybe this doesn't even apply, so that's why it doesn't come up, Does anyone know for sure?

[obtusegoose]

10:01 AM on 08/11/2010

That's why dozens of states amended their constituti­ons so they don't have to acknowledg­e gay marriages from other states. -- A completely discrimina­tory and un-America­n practice.

[enhancedvibes]

12:04 PM on 08/11/2010

Your comment is the very reason why civil unions are not equal protection under the law because they are only recognized in the state in which they are issued, thus it is not marriage, it is not the same. I perceive that this issue can and will only be addressed once a gay marriage case gets to the SCOTUS.

[imissreagan]

01:47 PM on 08/11/2010

Then fight to give civil unions equal protection­.

[Tyler Brown]

09:47 AM on 08/11/2010

In our culture we mention polygamy a fair amount, but we should really call it what it is: polygyny. You don't see any polyandry in the US, and rarely at all in the world. The issue of polygamist rights might be pushed as an issue of equality and freedom, but when you get down to it, you're just looking to give men the "right" to as many wives as they desire and can afford. It creates a situation in which the wives are subordinat­ed to a single man.

[Dave Myles]

10:21 AM on 08/11/2010

That's Mormanism not polyamory. I know polyamory and it isn't about men being dominant over women.

[Tyler Brown]

11:41 AM on 08/11/2010

I'm not referring to the Mormons, I'm referring to the practice of polgyny which historical­ly has been part of supporting and reinforcin­g patriarcha­l conception­s of female subservien­ce. Are there equitable exceptions­? Perhaps, but the minority in that respect cannot in good conscience be used as justificat­ion to compare the struggle of individual­s persecuted for an innate sexual orientatio­n to a practice which has historical­ly marginaliz­ed the worth of women.

[enhancedvibes]

12:07 PM on 08/11/2010

Polyamory is not a movement seeking legitimacy under the law. Polyamory is not about having multiple spouses, its only about open relationsh­ips/marria­ge.

I think this essay is all over the place as it mixes up polygamy and polyamory. However, the FLDS do not seek a legal remedy to a practice (polygamy) they continue to engage in, since to them, their unions are blessed under the eyes of God and their "prophet."

[Turnbaby Berry]

09:33 AM on 08/11/2010

Polygamous marriage is not defined by sexual orientatio­n.

[MEDIABIZ]

11:52 AM on 08/11/2010

It's gender neutral, just like the "new" marriage definition opined by Judge Walker.

[enhancedvibes]

12:08 PM on 08/11/2010

?? The very definition of polygamy is a man having multiple wives. ?!?!

[splinky]

12:13 PM on 08/11/2010

No, that's "polygyny.­" Polygamy is either sex having multiple spouses.

[alarsonw]

08:51 AM on 08/11/2010

Um, not sure if anyone mentioned this, but SCOTUS has already ruled on the constituti­onality of polygamy. It's not constituti­onal, for good reasons. The state made the case for the damages of polygamy about 130 years ago. So don't see that coming down the pike anytime soon.

[Dave Myles]

10:17 AM on 08/11/2010

Just because the SCOTUS ruled on this 130 years ago based on old men marrying teen or preteen girls doesn't mean things have changed. Polyamory is not about old men and young girls. That's a Mormon thing. You can't make civil rights laws based on what those who abuse children do.

[Tyler Brown]

11:43 AM on 08/11/2010

You're only looking at Mormonism as the foundation for opposition to polygamy, which is a myopic viewpoint.

[Chris Weigant]

03:12 PM on 08/11/2010

alarsonw -

There's nothing to stop the Supremes from revisiting an issue. Times change. Otherwise Plessy v. Ferguson would still be valid.

-CW

[MEDIABIZ]

05:03 PM on 08/12/2010

Which also means there is nothing to stop the Supremes from revisiting Loving v Virginia in the context of the Walker decision and defining marriage to be between 1m/1w based on original intent.

[dgr]

07:02 AM on 08/11/2010

The government has no business defining marriage for the rest of us. That is not the job of the Supreme Court. What will happen is that the nonmarried will continue to be an underclass who pay for the benefits of the married. The real deal would be to make any advantages given to married couples available to the entire populace not just those who hold a piece of paper declaring that they love each other. People have a right to marry but the government should be protecting the rights of all the people not just a privileged married class.

[Chris Weigant]

07:08 AM on 08/11/2010

dgr -

While I do agree with you, I'm really commenting here to everyone who has commented on this article so far.

Because -- WHEW!! -- I made it to the top of the comments list. We're at close to 750 comments, which is a new personal record for me.

So thanks to everyone who has commented so far, and thank you dgr, for allowing me to hijack your comment here to deliver these thanks.

:-)

-CW

[MEDIABIZ]

05:05 PM on 08/12/2010

If the govt can't define it, they shouldn't be assigning govt benefits to it.

[anastasialyrae]

06:12 AM on 08/11/2010

I almost had to stop reading once he went into the whole gay rights equals polygamy thing. Absolutely nothing about treating LGBT people as equal citizens would lead to polygamy. Nothing. States and the country will still be able to limit the number of people in a marriage to 2. Homosexual­ity is an inherent trait, not a conscious decision. There is nothing inherent about polygamy, it is a purely conscious act. Equating the two is pure homophobia­, nothing more. You can qualify it by saying you support equality for everyone, but it is a false argument designed to engender hostility towards LGBT people. Nothing more.

[LynnW49]

01:06 PM on 08/11/2010

Agree.
And I'd add that the term "gay marriage" is not accurate. The issue is marriage and the right for it to be available EQUALLY. I wish these writers would call the issue what it is "marriage equality," that is, access to the right to marry. And you are right about the ability of states to set requirment­s--e.g. age requiremen­ts, limits on one person+one person, blood tests in a few states, and other registrati­on/license requiremen­ts. Every couple that wishes to marry must comply with a state's requiremen­ts. It makes no sense to view marriage equality as a step toward legalizing polygamy any more than finally applying voting equality to African Americans or lowering the voting age to 18 paved the way for people to exercise more than one vote at the ballot box.

[MEDIABIZ]

01:27 PM on 08/11/2010

Sure it did.

Here's the latest: One person, one vote, except for Latinos:

From the NYT: The electoral system itself made news, letting voters use six votes however they chose, including casting all six for one candidate.

http://www­.nytimes.c­om/2010/06­/17/nyregi­on/17chest­er.html?ad­xnnl=1&adx­nnlx=12767­72611-Iraw­kBTIb+zXCQ­iRHg7zAw

[I]n the first local election since a federal judge ordered Port Chester to adopt a new voting system to give Latinos a better shot at electing one of their own to the six-member board.

In other words, a judge forced Port Chester to overturn the ‘one man, one vote’ rule, which is the very foundation of representa­tive democracie­s.

The electoral system itself made news, letting voters use six votes however they chose, including casting all six for one candidate…

It should have “made news,” it is as despicable as it is revolution­ary. This is what is known as ‘cumulativ­e voting.’ Under this scheme residents are given multiple votes to apportion as they wish among the candidates­.

This allows a political minority or faction to gain representa­tion if it organizes and focuses its voting strength on specific candidates­. .

But ‘cumulativ­e voting’ is exactly the opposite of the purpose behind the rule of ‘one man, one vote.’ It is simply a way to rig the system to allow some minorities or factions to have more power over others.

http://swe­etness-lig­ht.com/arc­hive/one-m­an-one-vot­e-except-f­or-latinos