The Battle Over Polygamy Begins

The news out of the Pacific Northwest, per the Times, is that “a wave of recent local ordinances” in liberal enclaves like Portland, Oregon, would “confer the beginning of legal protections to polyamorous relationships.” A transgender activist says the policies are “about the law catching up to where we are culturally.” Slouching toward polygamy, though, is about what the Supreme Court’s dissenters warned in the ruling legalizing same-sex marriage.In 2015, the high court majority in Obergefell v. Hodges took exception to laws in “States that define marriage as a union between one man and one woman.” These laws were unduly restrictive, Justice Anthony Kennedy’s majority opinion averred, because “the Constitution promises liberty to all within its reach.” This “liberty,” he said, “includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”More specifically, a majority of the high court held in Obergefell that denying two members of the same sex a marriage license breached their constitutional right to “due process of law.” Yet the notion that due process entitles any American to anything other than fair and equal treatment in legal proceedings, as Justice Clarence Thomas has noted, is a “legal fiction” and an “oxymoron” that lacks “any basis in the Constitution.” If two members of the same sex have a “due process” right to marry, what’s to stop, say, a group of people from following suit? The once-hypothetical issue is percolating at places like Olympia, Washington. A city councilman, Robert Vanderpool, tells the Times that he heard from members of the “L.G.T.B.Q. community who wanted more protection, including people living polyamorously.” He speaks, too, of affirming “ethical nonmonogamy.”In response, Olympia is moving toward a policy that would bar discrimination based on a “diverse family structure.” Portland, too, is weighing “broader nondiscrimination laws that would include nontraditional family structures,” the Times says, including “polyamorous relationships.” Advocates say “clearer legal protections would help them feel more open” when it comes to “looking for jobs, renting homes,” or “just engaging in small talk.”Portland’s legal umbrella would, the Times adds, even cover “consensually nonmonogamous relationships,” at the behest of liberal legislators. The Organization for Polyamory and Ethical Nonmonogamy, a spokesman says, asserts that the laws are needed to aid “people who don’t feel comfortable talking about their nonmonogamous identity.” These free spirits, he adds, “might still be at risk at work if they’re open about that aspect of their life.”At what point, though, does the legal definition of marriage blur into meaninglessness? That was a concern raised in Obergefell by Chief Justice Roberts, who reckoned a “question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” He said the majority failed to explain “why the two-person element” defining a “marriage may be preserved while the man-woman element may not.”Obergefell, the chief justice explained, sought to affirm the “dignity in the bond between two men or two women who seek to marry,” as Justice Kennedy put it. Yet the chief justice asked: “why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?” That insight highlights the flawed logic of relying on “substantive due process” to find new rights in the Constitution.The Great Scalia, too, scored the majority in Obergefell. His dissent could prove prophetic in cases over limiting marriage to two people. He fumed that “these Justices know that limiting marriage to one man and one woman is contrary to reason” and “cannot possibly be supported by anything other than ignorance or bigotry.” Of this logical lapse he warned: “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.”

The Battle Over Polygamy Begins

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