Opponents of same-sex marriage warned of dire consequences if they were legalized, that pressure would build to make polygamy also legal and people would demand the right to marry their children or siblings or their pets. Now that the Supreme Court has authorized such marriages in the Obergefell ruling, they may decide to show that their warnings were not mere hyperbole and test that proposition by making such marriage license requests.
This would not be a new tactic. Some may recall an earlier post of mine from a year ago where I wrote that back in 1975, a county clerk in Colorado issued a license to a same-sex couple to marry because there was nothing in the rules that explicitly forbade it. Her action caused an uproar but before she was overruled by the state’s attorney general, a man came in and asked her for a license to marry his horse.
A man has now applied for a marriage license to marry two women, using as his argument the Supreme Court dissent by chief justice John Roberts that said that if the court could approve same-sex marriage, then how could it argue against polygamous ones?
The Supreme Court’s ruling on Friday made gay marriages legal nationwide. Chief Justice John Roberts said in his dissent that people in polygamous relationships could make the same legal argument that not having the opportunity to marry disrespects and subordinates them.
Collier, 46, said that dissent inspired him. He owns a refrigeration business in Billings and married Victoria, 40, in 2000. He and his second wife, Christine, had a religious wedding ceremony in 2007 but did not sign a marriage license to avoid bigamy charges, he said.
Collier said he is a former Mormon who was excommunicated for polygamy and now belongs to no religious organization. He said he and his wives hid their relationship for years, but became tired of hiding and went public by appearing on the reality cable television show “Sister Wives.”
This is interesting. It is not clear that this particular case is being done simply to make a point. Given his history, it may well be that Collier is genuine in his desire to have multiple wives. I wonder if those who made the slippery slope argument will support Collier in his case?
Reader Jason sent me a link to an excellent article by Richard A. Posner, a judge of the U.S. Court of Appeals for the 7th Circuit, that describes Roberts’s dissent in the same-sex marriage case as ‘heartless’ and criticizes its reasoning.
Posner says that one should not forbid something unless it imposes real costs on others.
John Stuart Mill in On Liberty drew an important distinction between what he called “self-regarding acts” and “other-regarding acts.” The former involves doing things to yourself that don’t harm other people, though they may be self-destructive. The latter involves doing things that do harm other people. He thought that government had no business with the former (and hence—his example—the English had no business concerning themselves with polygamy in Utah, though they hated it). Unless it can be shown that same-sex marriage harms people who are not gay (or who are gay but don’t want to marry), there is no compelling reason for state intervention, and specifically for banning same-sex marriage. The dissenters in Obergefell missed this rather obvious point.
I go further than Mill. I say that gratuitous interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits—in fact no offsetting benefits at all beyond gratifying feelings of hostility toward gays and lesbians, feelings that feed such assertions as that heterosexual marriage is “degraded” by allowing same-sex couples to “annex” the word marriage to their cohabitation.
So does that mean polygamy should also be made legal? He says that one could make an argument that polygamy does impose some costs to others that could be grounds for disallowing it, and in the process contradicts Roberts’s sweeping statement that the idea of marriage between one man and one woman has been the universal rule for millennia.
That’s nonsense; polygamy—the union of one man with more than one woman (sometimes with hundreds of women)—has long been common in many civilizations (let’s not forget Utah) and remains so in much of the vast Muslim world. But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.
Of course, if one allows both polygyny and polyandry and there were enough women with multiple husbands to roughly balance out the men with multiple wives, that might mitigate the societal costs. But that kind of parity could not occur until there was gender parity in other major areas like income and wealth and jobs. There would be other complications as well that have to be addressed, such as inheritance and parental and property rights but presumably those societies that currently allow polygamy have developed rules for dealing with them. It may be that the existing rules in the Muslim-majority societies that allow only polygyny favor men, and one would need to develop gender-neutral rules in order to pass muster in the US.
Posner’s argument is that one should not forbid something that does not cause harm to others. But that is a philosophical argument, not a constitutional one. I argued before that arbitrariness by itself is not grounds for invalidating something. The constitutional argument has to be whether forbidding something violates the constitution. The court ruled in the case of same-sex marriage that banning them violated the 14th Amendment. What would be violated by forbidding polygamy?
I myself have no fundamental problem with one person having multiple spouses as long as the relationships are between consenting adults and there is gender parity. At present there is no great pressure to make polygamy legal, though that may change in the coming decades. Although acceptance of same-sex marriage has been remarkably rapid as major social changes go, it still took decades to get to this stage.