NY Times Op-Ed Makes the Case for Legal Polygamy based on Obergefell

As the idea of legal gay marriage has grown more popular, the public by-and-large remains resistant to legal polygamous marriage. And that is why gay marriage supporters have until now tried to discount the slippery slope argument that the one leads to the other. They didn’t want public opinion to turn against gay marriage out of a fear of polygamous marriage.

But now that gay marriage is the law of the land, they don’t have to worry about that anymore. And so today The New York Times has published an op-ed making the case for polygamy. And it does so by appealing to the logic of Obergefell v. Hodges. William Baude writes,

NOW that the dust is settling from the Supreme Court’s decision in Obergefell v. Hodges, which recognized a right to same-sex marriage, there are new questions. In particular, could the decision presage a constitutional right to plural marriage? If there is no magic power in opposite sexes when it comes to marriage, is there any magic power in the number two?…

Justice Anthony M. Kennedy’s majority opinion in Obergefell did not focus primarily on the issue of sexual orientation. Instead, its main focus was on a “fundamental right to marry” — a right that he said could not be limited to rigid historical definitions or left to the legislative process. That right was about autonomy and fulfillment, about child rearing and the social order. By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry…

So the real force of the polygamy question is a lesson in humility. We should not assume that our judges have all the answers. And we should not assume we have them either. Instead we should recognize that once we abandon the rigid constraints of history, we cannot be sure that we know where the future will take us.

This is not the last we will hear of these kinds of arguments. Now that the genie is out of the bottle, there will be no getting him back in. 

14 Responses to NY Times Op-Ed Makes the Case for Legal Polygamy based on Obergefell

  1. Ian Shaw July 21, 2015 at 10:17 am #

    Again, this is what happens when you think critically about an argument and flesh it out to its natural conclusion.

  2. buddyglass July 21, 2015 at 11:29 am #

    You make it sounds as if he’s advocating for polygamous marriage. Seemed more objective than that. He’s a law professor musing about where the future will take us, and legal arguments for (and against) polygamous marriage.

    • buddyglass July 21, 2015 at 11:34 am #

      Worth noting that Baude has some conservative bona fides. He clerked for Michael McConnell (rumored to be one of Bush’s potential appointees to the Supreme Court) and then was a fellow at the Stanford Law Center headed by McConnell. He was also a fellow at the “Center for the Study of Constitutional Originalism”.

  3. twebb2 July 21, 2015 at 11:40 am #

    Dr. R. Scott Clark has noted that the same arguments used for same-sex marriage, which also apply to polyamory, also argue for pedophilia and bestiality (http://heidelblog.net/2015/03/marriage-as-state-sanction-of-affection-consent-nambla/). Some are already making arguments that animals can ‘consent’ to bestiality. All of these are diametrically opposed to Scripture and the Christian faith, but I wouldn’t be surprised if one day they are as American as apple pie. –Tim Webb

    • Curt Day July 21, 2015 at 10:45 pm #

      Clark tends to be an alarmist. The article linked to above shows an unprovoked ‘the sky is falling’ mentality. And seeing that he strains to find points of continuity between same-sex arguments with arguments for really unaccepted practices while ignoring obvious differences, Clark seems to be manipulative in his writing

      Clark forgets, or neglects to mention the compelling interests that shows that same-sex marriage is much closer, not that different in fact, to heterosexual marriage than any coupling he mentioned.

      In addition, when Clark wants to let nature define marital relationships, he neglects to mention a fact I pointed out on his blogsite a while ago, that there is no natural law that is universally accepted. For example, unbelievers who would respond to Clark’s insistence on following natural law could easily point out that homosexuality exists in 1,500 species and with beneficial effects.

      We need to understand that there is a trend among some Conservative Christian leaders who are simply spending too much time and energy on this subject. There could be several reasons why they do this, but most of these Conservative Christians seem intent on painting a graver picture than is warranted.

  4. James Stanton July 21, 2015 at 2:59 pm #

    It does seem true that it required the SC legalizing same-sex marriage to create an impetus for future legalization of polygamy. But, that was always a possibility even if homosexuality did not exist. We’ll see where it goes. I’m sure all those different variations of “marriage” could very well be legal shortly.

    • Ian Shaw July 21, 2015 at 3:42 pm #

      It opens up same-sex incest marriages as well.

  5. James Bradshaw July 21, 2015 at 4:33 pm #

    As I’ve said, the only ones who will be pushing for legalized polygamy will be fundamentalist Mormons, and they’ll be doing so under the guise of “religious freedom” (since they apparently believe Jesus wants them to have multiple spouses for each one of their planets or whatever).

    If that is the case, and conservatives believe that religious freedom should be given the utmost consideration, on what basis are you going to argue against it?

    • Brett Cody July 22, 2015 at 3:43 pm #

      That is a gross overstatement. The ONLY ones? Not true, James. Not true.

  6. Curt Day July 21, 2015 at 10:20 pm #

    So what. Are we being that vigilant that sporadic calls for polygamy give us cause for alarm? Such vigilance can only distract us from evangelizing.

    • Ian Shaw July 22, 2015 at 8:20 am #

      Like how the gay marriage ruling distracted everyone from the TPP bill that will cause countries, including the U.S. to lose their sovereignty in certain instances? Canada spilled the beans on that one!

      • Curt Day July 22, 2015 at 8:41 am #

        Ian,
        Or you forgot how no conservative Christian leader is talking about economic exploitation, destruction of the environment, wars and militarism or that we have far more empty homes in this country than we have homeless people.

        • Ian Shaw July 22, 2015 at 12:07 pm #

          Key word there is “leader”. Many younger evangelicals believe in being good stewards to the environment (as do I) as well as scaling down the MIC. Liberals will yell about how much they provide to those in need with welfare and how conservatives would rather them starve. That’s a political ideology (whether one believe the government should not just protect him/her but also provide for them), not a human ideology of carry for the needs of others. I’d rather have people that are down and out utilize services from non-profits and churches that are vastly available across the country, but some people would rather take from the government. But those things do nothing to change the status quo for mainline conservatives. Though I submit to you, being a Christian does not handcuff me to a specific political party. Though there are some I would avoid.

          But I’m curious to hear what you mean by “economic exploitation”?

          • Curt Day July 22, 2015 at 7:04 pm #

            Ian,
            I agree with you there. But it is a reason why some of these younger evangelicals are not staying with the Church. In addition, without Church leaders taking stands, it is easier for the media to say that the Church is not taking stands.

            Finally, your preference is fine, just don’t prohibit the government from helping those who are down and out. Such a prohibition implies that government should not or is unable to represent that portion of society. It follows then that government should or is able to represent only those who are making it economically.

            Economic exploitation refers to using the economy or economic measures to take advantage of people to the extent that they suffer significant loss or experience significant deprivation. Take offshoring so that one can employ sweatshop labor overseas. Or take offshoring so that workers are faced with the loss of jobs or, because of the increase in the supply of workers, with significant pay cuts or are paid poverty wages. Offshoring uses the principles of supply and demand to exploit workers in two ways. First, offshoring utilizes the increase in the supply of labor especially in those nations where regulations that protect workers are much weaker or are not enforced so that those who had jobs might lose them or might have to accept lower pay. Second, with the offshoring of manufacturing jobs, the labor supply for low-skill jobs increases and so does pay.

            In addition, paying poverty wages so that employees are forced to apply for gov’t assistance while trying to avoid paying taxes not only exploits the workers, it exploits the public in general for what is done to the economy.

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