Why Obergefell Is Unlikely to Lead to Polygamy

Why Obergefell Is Unlikely to Lead to Polygamy
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It took less than a week for a Montana trio to decide that the recent Supreme Court decision requiring states to recognize gay unions as marriages also requires states to recognize plural marriages. I doubt if the case is going anywhere; if it were to somehow reach the Supreme Court, it would probably be reversed in a one-sentence summary opinion, much as the first attempt at gay marriage was rejected 44 years ago.

But this doesn’t really answer the question of whether we will or should travel down this road. There’s been a fascinating online discussion of this question, featuring two of my favorite left-of-center (to wildly different degrees) writers: Jonathan Rauch (here) and Fredrik DeBoer (here and here).

Rauch and DeBoer are mostly concerned with the “ought” argument: Should we go down this path, given support for same-sex marriage?  But there is a different question that needs to be asked: Will we go down this road? Is the almost inevitable denial of a right to plural marriage going to follow the same route as the denial of a right to gay marriage in the 1970s did?

I think the answer is no. I don’t think, however, this is a matter of logic. I will confess that, as a normative matter, I think DeBoer probably has the upper hand in the debate of what the implications of the moral arguments for marriage equality are (in brief, he believes we should go down the plural marriage road). As a legal matter, I think the people who believe plural marriage can be distinguished are likewise probably wrong, at least given the way the Obergefell decision was written.

The court’s attempts to clarify that it is a union of “two” people that is intrinsically beautiful are so forced as to be cringe-inducing; almost every such sentence could be rewritten, without becoming any less truthful, by either simply excluding any reference to a number or excluding the number and inserting “man and woman” into the phrase. Furthermore, there’s really no good reason why the specific harms addressed by the case – a man who wished to be added as a spouse to his loved one’s death certificate, or a woman who wishes to have full legal rights with respect to a spouse’s children – would not manifest for a “sister wife.”

Rauch suggests that contemporary social science provides a compelling government interest that would override these concerns, but someone in 1967 seeking to calm concerns that Loving v. Virginia would one day lead to gay marriage would have the exact same argument at his disposal—homosexuality was even classified as a mental illness at the time.

Will the science here change? It is hard to say, but I’m not particularly persuaded even by what is out there today. For one thing, polygamists have been long pushed to the fringe of society by laws and general disapproval; we’d expect poor results under these circumstances, and probably in ways that cannot easily be controlled for.

Rauch’s suggestion that no developed country has plural marriages simply assumes a causal arrow that may not exist or may be a result of a third factor (like religion), and also undercuts the argument that we have any sort of relevant experience with plural marriage.

With that said, I think that society and, to a lesser extent, courts, don’t really make these sorts of moral judgments on the basis of carefully considered intellectual arguments. Most people – and probably most justices – couldn’t give a competent explanation of the differences between act and rule utilitarianism, or offer a critique of consequentialism.  Instead, they offer a sort of “gut check” that combines different intellectual strands willy-nilly, intermingling class distinctions with judgments about history and religious experience along the way. In this case in particular, I think that society ultimately moved toward support for gay marriage for four reasons, only one of which really helps supporters of plural marriage.

1) Individual autonomy/rights talk. My read of DeBoer’s argument is that this is really what the marriage equality fight should have been about. Embedded in this is DeBoer’s own apparent distaste for consequentialism, at least with respect to rights, a distaste that has much to commend it.

On this telling, gay marriage should be supported not because it has no bad consequences (or has good consequences). It should be supported because the state should not be in the business of dictating to people the sorts of unions that they can form: Love is love. This sort of argument finds support in the Obergefell decision, most prominently in the due process prong of the decision: Autonomy is the first principle underlying marriage equality that is discussed. Of course, all four of the premises could easily be applied to the relationship between a man and a second woman, but the point here is simply to concede that respect for autonomy is clearly a motivating factor for the court, and that this would also lead to support for plural marriages.

But in terms of politics, I think that is a recipe for getting a minority of the population on board. If you look at the long-term trend line on acceptance of homosexuality, there is a bump upward in the 1970s, followed by a plateau. In 1978, 43 percent of respondents thought that homosexuality should be legalized. In 1996, that number was 44 percent.  Even as late as 1987, the General Social Survey found that 74 percent of respondents believed that homosexual relations were always wrong. 

In any event, concerns about autonomy are clearly part of America’s reasoning, and are a major portion of the court’s due process reasoning.  I also tend to believe that this reasoning cannot be cabined in to exclude plural marriages. But it is also clearly not the entire story as to why society has accepted gay marriages, which almost certainly helps drive what the court thinks.

2) “They’re born that way.”  DeBoer savages the argument that marriage should be available to gay couples because sexual orientation is an intrinsic trait – would we be justified denying a same-sex marriage to someone who is bisexual? He may be right – though I think he’s at his weakest here – but I think the “born this way” argument nevertheless plays a role in why society (and the court) have shifted on gay marriage.

It may seem difficult for a younger reader to appreciate today, but when I grew up, homosexuality really was broadly thought of as a matter of choice or upbringing. In 1989, when I was in high school, only 19 percent of respondents in a Gallup poll thought that homosexuality was “something a person was born with.” A plurality first accepted that homosexuality was innate in 2001, and a majority in 2015.

If you think that attraction to a member of your own sex is something that is just simply part of who a person is, it is more difficult, at a very visceral level, to justify excluding them from marriage. This is reflected in the court’s peroration: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.” I don’t think this is part of the court’s underlying logic, at least as the opinion was written, but the dicta here reflects the power of this social development. No one is likely born a polygamist (though I could see tendencies toward monogamy hypothetically emerging as a trait at some point), so it is unlikely that such an emerging understanding will drive a movement toward plural marriage.

3) The power of familiarity.  When Sen. Rob Portman changed his mind on gay marriage after his son came out, many people mocked him for only caring about the issue when it hit close to home.  But this was misguided, as it missed the story of how most people over age 40 likely came to change their mind on the issue.  When I was in high school, no one in my class of almost 1,000 was out of the closet. Gays and lesbians were an abstract concept, even though there were some teachers and classmates we suspected were gay (and quite frankly, many of us would have supported them if they had come out). This is reflected in public opinion polling. In 1985, only 24 percent of people responded that someone had come out to them.

By 2013, that number had risen to 75 percent.  This is wholly unsurprising; if homosexuality is at least to some degree a trait, we would expect it to be at least somewhat randomly distributed throughout society.  Almost everyone will meet someone who is gay at some point in their lives. Empathy is a powerful motivating factor, and it is one thing to say that “gays,” as some sort of abstraction, should not marry; it is another to say that your neighbors’ kid is stuck living alone. The same simply is not true of polygamists, who tend to live apart from society (not entirely by choice).  This probably isn’t how we should make moral decisions, but I don’t have much doubt that it is how an awful lot of people do make these decisions.

4) Great spokespeople. When I grew up, the face of the gay rights movement was found in gay pride parades and activist groups like ACT UP, who often seemed to go out of their way to disparage bourgeoisie morals (like throwing down communion wafers in churches).

But during the 1990s, that shifted.  “We’re here, we’re queer, get used to it” gave way to “hate is not a family value.” This was an important, perhaps even crucial shift, as the gay rights movement came to be seen as a part of middle-class morality, rather than something at odds with it (not without some internal dissension).

But what was more important, I think, was what followed. Melissa Etheridge came out in 1993. Ellen DeGeneres came out in 1997. A slew of celebrities followed: The “Queer Eye for the Straight Guy” folk, Anderson Cooper, Portia de Rossi, Suze Orman, Neil Patrick Harris, just to name a few off the top of my head. These celebrities didn’t comport with the preconceived notions of what a gay person “ought” to look or act like for many Americans. This “de-otherizing” of gays, I think, was one of the keys to public acceptance of homosexuality resuming its upward march in the 1990s.

There have been attempts to create a similar conception of polygamists, most famously with the popular show “Sister Wives.” But even they are associated with a religious group that most Americans are unlikely to associate with. Scandals such as the one involving Warren Jeffs have only reinforced the idea that polygamy is something that “others” do.

Perhaps celebrities will begin to take on multiple spouses in the next few decades.  If that happens – if Brad Pitt had been happy to stay with Jennifer Aniston but just wanted to add Angelina Jolie to the club – things could change.  But for now, it seems unlikely that a spate of relatable polygamists will emerge into the mainstream culture in the next few years. That remains a crucial distinction.

I wish to re-emphasize that what precedes this is descriptive, not prescriptive. In an ideal world, the state of the law and popular morality wouldn’t be decided by which groups have sufficient social power. In terms of cold logic, being gay was no less “okay” in the 1980s than in the 2000s. But once again, “is” and “ought” are two separate categories, and I think it is extremely difficult to deny that without the all of the above factors, we probably wouldn’t be where we are today.

Likewise, as Oliver Wendell Holmes famously put it over 125 years ago, “[t]he life of the law has not been logic, it has been experience.” This was probably taken too far by the legal realists (and especially their progeny) who followed, but I think there is much indisputable truth in that sentence. For worse or for better, the societal transformation of public views on homosexuality almost certainly was a driving force in acceptance by the court of a right to same-sex marriage.

But these factors are not present for those in plural marriage, and seem unlikely (though not impossible) to emerge anytime soon.  Because of this, I think it’s unlikely that we will follow Obergefell to its logical conclusion.

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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