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.
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