NEW YORK (Christian Examiner) – For years, Christians and social conservatives warned that if same-sex marriage were legalized, there would be no logical reason not also to allow polygamous or polyamorous relationships.
A University of Chicago assistant law professor is now acknowledging: They were right.
Writing in The New York Times July 21, William Baude said Supreme Court Justice Anthony Kennedy's majority opinion in Obergefell v. Hodges laid the groundwork for further expanding the legal definition of marriage – even if Kennedy and supporters of gay marriage deny it.
"If there is no magic power in opposite sexes when it comes to marriage, is there any magic power in the number two?" Baude asked. "[T]he issue was hard to discuss candidly while same-sex marriage was still pending, because both sides knew that association with plural marriage, a more unpopular cause, could have stymied progress for gay rights. (Opponents of same-sex marriage had reasons to emphasize the association, while supporters had reasons to play it down.) With same-sex marriage on the books, we can now ask whether polyamorous relationships should be next. There is a very good argument that they should."
Specifically, Baude wrote, Kennedy's opinion spotlighted what the justice called the "fundamental right to marry" – a right that could not be bound by history.
"That right was about autonomy and fulfillment, about child rearing and the social order," Baude wrote. "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.
"And while Justice Kennedy's opinion does not explicitly discuss this possibility, it is easy to see how future generations could read his language to include polyamory or plural marriage," Baude continued.
Polygamy is still unpopular among the American public, but it is slowly gaining ground. Since 2003, the percentage of U.S. adults who believe it is morally acceptable has increased from 7 percent to 16 percent, according to Gallup. During that same time span, the percentage of Americans who say "gay or lesbian relationships" is morally acceptable jumped from 44 percent to 63 percent.
As Christian Examiner reported in early July, a Montana man involved in a polygamous relationship filed for a marriage license to his second wife just four days after the high court's decision. It was denied.
"While Justice Kennedy's opinion repeatedly presumes that marriage involves two people, it is not hard to imagine another justice in 20 or 40 years saying that the assumption is similarly unenlightened," Baude wrote.
Baude noted that Judge Richard A. Posner of the U.S. Seventh Court of Appeals rejected the legal argument for polygamy following the Supreme Court's decision, saying it would lead to gender imbalances "if the five wealthiest men have a total of 50 wives." Writer and author Jonathan Rauch made a similar argument.
"Gender equality is of course a serious concern," Baude wrote. "But the arguments above rest on the assumption that plural marriage will involve only one man and multiple women. That assumption is weak. Plural relationships could well be (and in some circles today are) between multiple people of both sexes, not all of whom are strictly heterosexual."
The lesson from the same-sex marriage debate is "we should not be too wedded to historical assumptions," Baude added.
"It was not that long ago that many people held vicious stereotypes about same-sex relationships that led them to wrongly assume that gay people were unfit for marriage," Baude wrote. "We should not make the same mistake in assuming we know what plural marriages in the future would be like."
Just 20 years ago, he noted, same-sex marriage legalization was unthinkable. In fact, it was a Democratic president (Bill Clinton) who signed the very law – the Defense of Marriage Act -- that another Democratic president (Barack Obama) worked to overturn.
"So the real force of the polygamy question is a lesson in humility," Baude wrote. "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."