Unless your last name is Van Winkle, you likely already know that, yesterday afternoon, the California Supreme Court concluded that the state’s law prohibiting same-sex marriage (SSM, for short) is unconstitutional. Put more simply, in 30 days, SSM will be a reality in California. For those of us here on the Left Coast, things are about to get very interesting. Within hours of the ruling, Los Angeles Mayor Antonio Villaraigosa, without a hint of irony, told a gathering of reporters: “I plan to marry as many people as I can.”
Like many others, I’m still working my way through the 100+ page opinion. We lawyers sure love our footnotes, and one in particular has got me thinking. To be clear, I am no fundamentalist Mormon, and I certainly am not bucking for the opportunity to bring another set of problems wife into my happy family. But I can’t help but be annoyed by the apparent fact that, over a century later, courts are still content to rely on outdated and prejudicial attitudes towards Mormon polygamy.
The key holding — one that will be contested in the coming months by way of a final ballot initiative — is that the right to marry “guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” The Supreme Court dropped the following footnote to this sentence:
We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous. Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the right to marry. Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. Thus, our conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives. (emphasis added; legal citations deleted).
As I read it, this footnote is the Court’s way of brushing aside fears of a “slippery slope” resulting from their decision. According to this argument, which has featured prominently in both the California and the national debate, SSM should be banned because legalization necessarily will open the door to all manner of heretofore prohibited martial relationships. Inevitably, polygamy is at the top of every list of “loves that dare not speak their name.”
Here’s my question for you: Do you agree with the Court that polygamy between is truly “inimical to the mutually supportive and healthy family relationships promoted by the right to marry?” Is polygamy so nefarious a practice that, by its very nature, it will have a “detrimental effect on a sound family environment?”
This is the same logic the U.S. Supreme Court relied on 120 or so years ago to validate legislative efforts (including the Edmunds-Tucker Act) to stamp out polygamy (in Reynolds v. United States (1879) and Late Corporation of the Church of Jesus Christ of Latter-day Saints (1890)). As Sarah Barringer Gordon deftly illustrates in her book, “The Mormon Question,” this analysis was flawed to the extent it relied on a hodge-podge of ill-informed and simply false ideas about Mormons promulgated by the popular (and very loud) anti-polygamy movement, i.e. Utah women were enslaved by the Church, etc.
I see that same sort of stereotypical thinking in yesterday’s ruling. As a starting point, the Court lumps polygamy in with incest without bothering to draw any distinction between the two. From there, the Court treads on shaky legal ground. To wit, the jurisprudence cited by the Court holds that laws restricting certain marital relationships are necessary for reasons such as (i) “protecting persons who may not be in a position to freely consent to sexual relationships”; (ii) “guarding against inbreeding”; and (iii) “promot[ing] and protect[ing] family harmony and protect[ing] children from the abuse of parental authority.” As applied to polygamy, these concerns — just as the notion of white slavery in turn-of-the-century Utah — rely on a profoundly distorted vision of the practice wherein underage girls are forced to marry adults, including their own parents. The message sent is clear — polygamy, just like forced sexual relationships between parent and child, is malum per se (evil in itself).
I, for one, am not persuaded that this is the case. I believe that consenting adults could create polygamous relationships in which there is no coercion and certainly no inbreeding. If polygamy were to be legalized, would society run the risk of such untoward practices? Of course — if reports are to be believed, the FLDS practice polygamy in a similar fashion. But the more important question is whether that risk is so great that polygamy should be outlawed entirely. Inherent in any marital relationship — be it a monogamous heterosexual couple, a monogamous homosexual couple, or a polygamous arrangement between 3 people — is the risk that one partner will force his/her will upon the other(s). As of today, we permit the first categories of marriages; why not polygamy?
You may be asking yourself, why should I care, since polygamy in the LDS church has gone the way of the dodo? Here’s why: despite the best efforts of the men in the big buildings on Temple Square, we will always be associated with polygamy. That’s just a fact. And that’s OK by me, as long as folks take the time to disabuse themselves of the same sort of prejudicial notions lurking behind the Court’s formal language. My progenitors, while they may have been many things, were not involved in relationships equatable with incest. So, when I see discussions of polygamy that require that conclusion (i.e., polygamy = incest), I cannot help but think it sets us all back a few steps. That’s why this little footnote, buried amidst hundreds of pages of legalese, is stuck in my craw.