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I Wed Thee, and Thee, and Thee

from the magazine

I Wed Thee, and Thee, and Thee

If homosexual marriage, then polygamy? Autumn 2004
Politics and law
The Social Order

Same-sex marriage advocates tend to jeer at the argument that allowing such unions will open a smorgasbord of marital practices. They insist that what interests them is not to transform the institution radically but only to welcome their homosexual friends, neighbors, and relatives to its benefits. A few recent developments suggest that they're dead wrong.

Consider a recent USA Today op-ed by Jonathan Turley, arguing that it's time for poly-gamous marriage to receive constitutional protection. However misguided, Turley is no bomb thrower. He is a Georgetown University prof, a prolific scholar, and a frequent television talking head on legal issues. Here, he simply underscores two points that homosexual advocates downplay: first, that the Supreme Court's 2003 Lawrence decision, striking down anti-sodomy laws, “recognized the constitutional right to engage in any form of consensual sexual relation,” presumably including multiple partners; and second—and somewhat more plausibly, given that Lawrence is about private sexual practices and implies nothing about marriage—that Reynolds v. United States, the 1878 Supreme Court case that upheld a ban on polygamy in the United States territories, is so filled with racist innuendo and cavalier attitudes about religious freedom that it would be unlikely to pass muster today.

Turley isn't just playing an intellectual parlor game. Polygamy advocacy groups—and yes, Virginia, they do exist—have been following the same-sex marriage debate as closely as the Iranian mullahs are following our presidential election. “Polygamy is the next civil rights battle,” is the motto on the Pro-polygamy.com website, a “Christian polygamy” group. (Christian polygamists are evangelicals who base their beliefs on the Old and New Testaments; by contrast, Mormons cite extra-biblical revelations of their founder, Joseph Smith.) A Mormon group, “Principle Voices of Polygamy,” is “encouraging empowerment of individuals and families from the polygamous culture to secure for themselves equal representation and civil rights.”

More disturbing still, several legal cases pleading the cause of polygamy are already in motion. In Bronson v. Swensen, a Utah threesome has filed suit against the Salt Lake County Clerk's office for denying them a marriage license. Their attorney, who, like Turley, specializes in civil rights cases, argues that if Texas cannot criminalize sodomy, Utah should not be able to criminalize polygamy—though again, why the right to commit sodomy implies anything about marriage, let alone marriage with multiple or same-sex partners, is unclear. In another case, Tom Green, facing a prison sentence because he was “married” to four women (though he never sought a license with any of them), is appealing to the Supreme Court on the grounds that the state has violated his religious freedom.

Same-sex marriage supporters often make a powerful case by pointing, say, to the man denied the chance to say good-bye to his dying lover or to the beaming faces of gay “newlyweds” in Massachusetts. Opponents, though, fretting about “undermining society's bedrock institution,” have had to labor in the realm of abstract argument. That may be about to change.

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