On Same-Sex Marriage and Polygamy

The law should be principled. That is, it should rest on reason, a reason that reaches similar answers for similar cases. The passions should be left to politics. Much that’s wrong with American constitutional law these days is that it’s result-driven, and the results the justices want are driven by the passions in the guise of this vague, warm-fuzzy thing called “justice.”

Oliver Wendell Holmes, Jr. had this to say about justice: “I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” In other words, justice, in this sense, is about what we want, not about reason.

The Court’s downfall can be dated from the 1965 case of Griswold v. Connecticut, when it created a new, hitherto unheard-of right to privacy, because the justices didn’t like the idea that states could regulate contraception. Since then, things have gone rather predictably. In the recent case of United States v. Windsor, the Court, in the person of “Catholic” Justice Anthony Kennedy, reached a principled decision in striking down section 3 of the Defense of Marriage Act. Except that he didn’t. True—and this is where the principle comes in—the Federal government probably overreached by trying to define marriage. Traditionally that’s a state concern. But Kennedy didn’t leave it at that. Instead, he took the opportunity to lecture us on how bigoted the lawgivers were for discriminating against gay couple like that. Maybe and maybe not, but the lecture was gratuitous.

Second, and more seriously, Kennedy essentially ignored Article III’s “case or controversy” requirement in order to render this decision. As Justice Scalia notes, quite correctly, by the time this case got o the Supreme Court, the parties—Ms. Windsor and, effectively, Mr. Obama—were in collusion, both asking for the judgment below to be affirmed. For more than 200 years, that would have been enough for the Court to decline jurisdiction. But Kennedy was so hot to tell us how we’re homophobes that he pretty much ignored that precedent. Thus, his opinion is driven by passion, by what he wants to do, not by what the law commands.

Thus, I’m looking forward to the day when polygamists seek to overturn legal bans on polygamy. The Court, heavily influenced by Kennedy in cases such as Windsor and Lawrence v. Texas, is spouting off a whole bunch of stuff about the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Marriage is no longer about the basic socio-relational building-block of society that’s geared largely, though not entirely, towards producing children. Instead, it’s based “on defining one’s own family and consecrating a union based on love,” in the words of law professor Kent Greenfield. If we’re going to be principled about this, then, we should allow polygamous, and even incestuous marriages.

I’m not kidding about this, and I’m not saying this in order to march out a parade of horribles, which is what most of the Right does when it comes to this issue. If we’re to have same-sex marriage, I genuinely, really do want us to have polygamous and polyandrous marriages.

Why?

Well, putting on my historian’s hat, I could say it’s because historically there’s a lot more basis for polygamy then there is for same-sex marriage. So, a fortiori, if same-sex marriage is OK then polygamy must be OK.

But I don’t want to do that. Instead, I want this simply because I want the law to be principled. It shows that the justices are at least trying to be reasonable and that the courts, supposedly the last bastion of reason, isn’t really governed by the passions. I don’t want the Court to say in one breath that marriage is about “defining one’s own family and consecrating a union based on love,” and then in the next breath start hemming and hawing and pretending that there are legal reasons not to allow polygamy, when it refused to even consider that possibility when it was looking at same-sex marriage,

If the Court is truly principled, then if it allows same-sex marriage, it must allow polygamy. If it does that I’ll breathe a bit more easily.

If the Court just wants to play politics based on a perverse sense of fairness—perverse because it’s based on an absurd mix of what the justices personally think is fair mixed in with a bit of who, on the left, can scream the loudest (them Mormon polygamists tend to be right-wingers, after all, which shouldn’t make a difference but which I’m betting will), and if the Court is willing to be as blatant as this, then all hope for the law and reason are lost.

If you think there really should be a difference between same-sex marriage and polygamy, I invite you to read Greenfield’s article, in which he pretty much shoots down the supposed distinctions.