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Marriage, Polygamy and Gays

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One of the religious right's standard sputterings is that legalizing same-sex marriage will open the door to legalizing polygamy. Many of us have dismissed these sputterings as just another bogeyman that the right is conjuring up...one that will make voters afraid of gay people. After all, it usually comes in the same breath with a threat that same-sex marriage will lead to people wanting to marry their pets... a ridiculous idea that shows how paranoid the religious right is, and how willing they are to grasp at straws to make a point. After all, marriage requires consent, and pets can't consent.

But polygamy is a different matter. And it is one of the major battlefields in the marriage war.

Many "traditional" religionists don't want us to have marriage, of course, and they will fight us to the death on this point, even if we agree to call it "civil unions" or "domestic partnerships." But they're also using the noisy public debate about "gay marriage" as a diversion, to keep the public away from a serious debate about the pros and cons of polygamy. So far, their tactic has met with mixed success, because some polygamists are actually making a little headway in their drive for recognition.

Twelve years ago, Congress passed the Defense of Marriage Act. DOMA defined marriage as the "legal union between one man and one woman as husband and wife. Note the operative word "one." This language was established nearly a century and a half ago, in the 1868 federal legislation outlawing polygamy, that targeted the Mormons. Today, throughout the states, anti-gay-marriage legislation -- including Prop 8 -- often opts for a different wording, namely "a man and a woman," which would seem to skirt the polygamy issue.

But there's no doubt that the Alliance for Marriage Foundation, which was the main lobbyist/instigator for DOMA legislation, had a double purpose. They were determined to slam the door on both gays and polygamists at the federal level. Congress and President Clinton evidently went along with the AMF's supporters -- which were conservative Christians, Jews and Black Muslims who note with alarm that an growing percentage of the U.S. population are demanding legalization of polygamy. The grounds for this demand: religious freedom.

The fact is, not one but three different factions want to get polygamy legalized. Each is basing its claim to religious freedom on its sacred book.

The Mormon Polygamists

Naturally the first to come to mind is the Mormon Church. Polygamy, or "plural marriage" as they call it, was one of the practices of ancient Hebrew patriarchs that Mormons sought to restore at their founding in 1830, as per their Book of Mormon. In 1890, after occupation of Utah by federal troops, lots of coercion, unfriendly legislation by Congress and rejection by the U.S. Supreme Court, the LDS Church agreed to give up polygamy.

But today there are still an estimated 100,000 Mormons who are said to practice polygamy underground. Some are creepy rogues like Warren Jeffs and his splinter group, who were prosecuted for their crimes against minor children. But the majority of closet polygamists are portrayed by supporters as dignified community figures who view the practice as legitimate when practiced by consenting adults.

Why should anybody tremble at Mormon leverage on this issue today? Because, in the last century, the LSD Church has moved from marginal to massive in its social and economic influence. It can now swing the vote in several Western states, not just Utah, but California, Nevada, Arizona and Wyoming. We already saw how they swung California with Prop 8. Plus the LSD church can now field politicians who are viewed as serious candidates for President, like Mitt Romney.

Does the Mormon leadership ever plan to formally reintroduce the polygamy issue? They insist not. But in recent years, a rash of individual Mormon polygamists have gone to court hoping that their cases would make it on a freedom-of-religion basis. So far, they've been slapped down. In 2006, Utah's Supreme Court upheld the constitutionality of the state's bigamy statute, and the U.S. Supreme Court agreed. Still, with the right case, and enough money, and a changing political climate, individual Mormons in favor of polygamy might get what they want. That scares the bejeezus out of the DOMA crowd.

The Bible-Based Christian Polygamists

Less known to most Americans is the growing movement of Christian polygamists. Somewhat like the Mormons, they base their marriage dogma on the early Hebrew patriarchs like Abraham who were said to be polygamists. Their sacred book is the Bible's Old Testament. But they resent being compared to the Mormons. Many don't even consider the Mormons to be "Christian" because their canon of belief differs from the Mormons' on some points. They fall over themselves to point out that they are not child molesters like Warren Jeffs.

The Christian polygamists take a different tack on trying to change U.S. law. They insist that the federal law outlawing polygamy is unconstitutional, that it violates separation of church and state. They demand that government stop trying to "protect marriage" with its laws. Instead, they say, government should get out of the business of regulating marriage altogether, and leave this "sacred" institution to the churches. In advocating this, the Christian polygamists are bucking several centuries of Western history and precedent. In most Western countries, religion deliberately turned marriage over to civil government precisely because some churches had issues with other churches about efforts to control access to marriage.

But Christian polygamist leader Henkel fulminates against "the false god of big socialist government" and its policy "to define, license, and control God's doctrine of marriage."

Legislative efforts along this line have already been tried. In Maine in 2007, a state legislative committee quickly killed a proposed bill, L.D. 779, which sought to remove clergy from certifying marriage licenses. Christian conservatives, even the pro-polygamist variety, have convinced themselves that "all churches will be compelled to perform same-sex marriages if we LGBT people get the legalization we want."

The Muslim Polygamists

The third threat that the DOMA crowd see coming is from traditionalists in the U.S.'s growing Muslim population. Since 1900, the U.S.'s Islamic community has been quietly growing; but in recent decades, however, that growth has exploded with an inflow of immigrants and refugees, many of them from fundamentalist Islamic countries where plural marriage is legal. While liberal and even moderate Muslim-Americans have largely abandoned the practice of polygamy, traditionalists still insist on it. Their sacred book, the Koran, authorizes Muslim men to have up to four wives, provided they can care for them adequately.

U.S. census authorities don't keep stats on religion, so they don't know how big the Muslim population actually is. Recent conservative estimates put it at nearly 3 million, while liberal estimates push it as high as 7-8 million. Even a middling 5-6 million would make Muslims a sizable voting bloc. Muslim immigrants or refugees who arrive here with more than one wife, though legal in their country of origin, are required to pick one wife as the legal spouse under U.S. law and jettison the rest. However, according to a recent NPR story, there are an estimated 100,000 U.S. Muslims, perhaps more, who are practicing closet polygamy.

With plural marriage so thoroughly outlawed in the U.S., one would think that the DOMA faction wouldn't lie awake at night worrying about Islamic polygamy. But evidently they do...and here's why. Immigrant traditionalists who want the same kind of life here that they lived in their countries of origin have discovered a back door into our legal system. Through it, they're quietly linking their Islamic law system, sharia, with our practice of civil arbitration.

Under conservative Islam, sharia is "state religion" -- government by clerics (called imams), rather than government by elected officials. In countries like Iran and Saudi Arabia that have a sharia government, all decision-making involving law -- legislation, courts, education, family issues, even finance -- is based on Koranic teachings. With the growth of large conservative immigrant Muslim populations in Western countries, the issue of how these immigrants can continue practicing their sharia-based religion freely within non-Muslim law systems, has become a very hot one. From the traditionalist Muslim standpoint, religious freedom in the U.S. should include the right to plural marriage.

Right now, sharia is actually stealthing its way into the U.S. Sharia courts are operating in Texas, of all places, under the aegis of a Second Court of Appeals decision that sharia judgments rendered by U.S. imams are enforceable by government.

The new Texas process now makes it possible for civil and family-law cases involving traditionalist Muslims and their beliefs to be handled in faith-based arbitration. Here, issues like dowries, divorce and child custody can be shunted from regular court to Texas Islamic Court, on request of the parties involved. There the cases would be handled in a manner that Islamic sensibilities would find friendly. Sharia law is also reportedly being used in Minnesota and New Jersey. In California, where the biggest U.S. population can be found, attempts are being made to launch sharia courts as well. All these developments are being fiercely opposed by human-rights and Muslim women's organizations.

And the constitutionality of U.S. sharia courts may well be challenged in higher courts, or their existence ended by oppositional legislation.

Meanwhile, how might this U.S. sharia movement open the door to polygamy? It might create a body of decisions that allows the practice to become gradually legalized nationally through establishing precedent. Under U.S. law, arbitration decisions carry a great deal of force.

Meanwhile, those who fear that legalization of same-sex marriage and polygamy are linked can also point to what's happening in Canada. Sharia courts have already come and gone in Canada, having been outlawed in 2006. Yet in the liberal-minded province of Ontario, which legalized same-sex marriage several years ago, there is now some legal slack for Muslim polygamists who enter the country and can show that they were legally married to more than one wife in their country of origin. Reportedly Muslim men are receiving welfare and social benefits for each of their partners, both from Ontario Province and the city of Toronto.

Two Final Points

In Texas, a state DOMA and constitutional amendment uses the anti-polygamy language to define marriage as a "union of one man and one woman." Yet the Texas legal system apparently has no problem doing a 180-degree flip-flop in order to accommodate marriage practices that might touch on closet polygamy of traditionalist Muslims. Surely this is a horrible contradiction that LGBT lawyers and activists, and their non-gay supporters, should point out.

In the meantime, some Mormon, Christian and Muslim advocates of plural marriage are themselves opposed to same-sex marriage, and accuse us gays of trying to "redefine" marriage. Yet they're trying hard to redefine marriage themselves. It's the biggest "go figure" we've faced.