Now and again, someone talks in public as though only his friends can hear him. That happened in Atlantic Monthly as a staff writer applied the Obergefell case on same-sex marriage to the possibility of legalized polygamy. Staff Writer Conor Friedersdorf was attempting to refute that claims of Fredrik de Boer that the legalization of same-sex marriage opened (and should open) the door for multiple-partner, legally recognized, civil unions. More on de Boer’s assertions later, but here’s where Mr. Friedersdorf seemed to forget that we were watching. His first argument against de Boer was that the battle for same-sex equality is not yet over. Fredrik de Boer had acknowledged that advocates for polygamous or polyamorous unions had stayed quiet to avoid giving ammo to conservatives who would assert a slippery slope toward any kind of union under the sun. De Boer’s point being that this is completely true and now it is safe for advocates to say so without endangering same-sex marriage.
Here’s the good part, Friedersdorf says that one argument against polygamy is that same-sex marriage is still not the law in all places—advocates for multiple unions should remain quiet to avoid agreeing with conservatives. To be fair, Friedersdorf disagrees with polygamy for additional reasons. In doing so, he takes the role of “conservative” in this discussion.
He argues that state-recognized polygamy is not a human right, for example. Well okay, many of us remember when abortion was not a human right and neither was same-sex marriage. One might make the case that we only need to wait until the president’s views evolve a little more and Justice Kennedy becomes sympathetic to the suffering of polygamous people—presto-change-o, human rights!
He also argues that polygamy is patriarchal and thus victimizes women and children. If we’re going to consider polygamy, let’s wait until our society is thoroughly egalitarian. This is not an argument against polygamy but rather one against polygamy right now. He is also saying that we need to make sure that the more powerless members of our society must be protected from likely and possible negative consequences of taking such a big step. Is the impact of institutionalized same-sex marriage more certain? How about the impact of same-sex parents? If 40 or even 30 percent of Americans believe our nation’s embrace of new models of marriage and family will have victims, what evidence answers their assertion? Look at the religious and regional make-up of the court (Justice Scalia made this point in his dissent) and tell me that evangelicals in Texas or Oklahoma or Arkansas or anywhere between the Alleghenies and the Rockies had a voice. We believe, a majority in fly-over states, that same-sex marriage will not serve the common good—that it will have victims. We must grimace when same-sex advocates argue against polygamy because it will harm the helpless.
The arguments continue but this is enough to see what I’m saying. Both sides of this argument are monumentally wrong, but one side has a more valid point. The Supreme Court, in a series of decisions culminating in Obergefell, has removed moral arguments (what Justice Kennedy calls “bigotry”) for defining marriage and family. Conservatives are not being hysterical when we say that laws even liberals this week consider negative are now imaginable, even a logical extension of what’s already the law.
What was illegal then, unimaginable a decade before, is now the law of the land in our country. If there is no moral reasoning behind our laws, then all will be decided by what can be made practical or popular.
In the name of compassion and fairness another organization argues against the status quo because adults have a fundamental right “to sexual self-determination,” adding that “criminal law is not the appropriate means to preserve a social taboo.” Society is deemed cruel in this report, echoing Justice Kennedy’s rhetoric, by pointing out that this minority was being blackmailed, kept from their children and forced to live in secret to avoid society’s scorn. These points are made in the report of the German Ethics Council on incest. Their recommendation is that the possible negatives of those relationships are outweighed by the happiness of those who wish to openly and legally marry siblings. While Germany has not legalized incest, the report was written by employed social scientists who were not hooted out of the room. The “reasoning” in this report is not dissimilar to the discussion of same-sex marriage in our country over the past 10 years. What was illegal then, unimaginable a decade before, is now the law of the land in our country. If there is no moral reasoning behind our laws, then all will be decided by what can be made practical or popular. That kind of change apparently takes a decade or so. The barriers are down.
I’m not trying to be unfair. Multiple-partner relationships or the marriage of siblings will not be legally recognized anytime soon, unless public sympathies, unencumbered by reason or analysis, move that direction. When the more populous regions of our country do find polygamist or incestuous relationships romantic, the courts of that day will find an appropriate right to support that in the U.S. Constitution. There is no reason for them to say “no.” And people will march in the streets and praise them as wise and compassionate, even if they now cannot imagine such a thing. When you willfully flatten all the fences, you really have no say over what passes in or out of your former boundaries. Safety in that place is an illusion.