A Polygamy Hypothetical

Last week Jacob Levy asked a provocative “Hypothetical Question“:

Suppose that a state legislature forbade recognition of, or even (on the model of the polygamy statutes) criminalized, marriages between persons at least one of whom was known to be infertile. Suppose that it did so for the stated purpose of affirming the societal commitment to marriage’s central function as the primary site of childrearing.

Would such a statute be constitutional (under the federal or most state constitutions), according to the jurisprudential theories of those most strongly opposed to the Massachusetts case?

He asked this because a state’s legitimate interest in promoting procreation has been widely offered as a reasonable basis for forbidding same sex marriages. It’s a good question, and it provoked many interesting responses, including subsequent comments by Levy (scroll up from the above link).

In a similar vein, I would like to ask whether, according to the jurisprudential theories of those who agree with the recent decision of the Supreme Judicial Court of Massachusetts, laws and state constitutional provisions banning polygamy should be struck down.

This, of course, is not a new question. In his dissenting opinion in Romer v. Evans, 517 U.S. 620 (1996), Justice Scalia (joined by the Chief Justice and Justice Thomas) wrote:

The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is “forever prohibited.” See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, 4; N. M. Const., Art. XXI, 1; Okla. Const., Art. I, 2; Utah Const., Art. III, 1…. The Court’s disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis – unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.

The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood….

And recently in Utah, where polygamy remains a touchy subject, a bill was introduced by state senator D. Chris Buttars defining marriage as involving only “one man and one woman” even before the Massachusetts decision. According to an AP story that ran four days before the Massachusetts decision,

Groups that take a liberal view on same-sex marriages are marshaling to oppose the proposed legislation. The drive for recognition of same-sex marriages in a number of states, coupled with a Supreme Court decision that decriminalized homosexuality, has become impetus for growing national debate.

….

The Utah branch of the National Organization for Women issued a statement opposing Buttar’s proposal.

“This discriminatory legislation only serves to foster bigotry and hate against a responsible population of society who deserve the same privileges and rights afforded to other couples in committed relationships,” the group said.

Utah NOW president Andrea Moore-Emmett made a distinction between same-sex unions and polygamy, which “violates human and civil rights of women and children” while homosexual unions reflect “sexual orientation” in which there are no victims, her statement said. Polygamy already is constitutionally banned in Utah.

Buttars maintains same-gender and polygamist unions violate the spirit of true marriage.

Darin Hobbs, director of finance and operations of the Gay and Lesbian Community Center of Utah, also issued a statement calling Buttars’ proposal “at best, a misguided attempt to preserve the so-called sanctity of marriage.”

….

Definitions of marriage “reside in the realms of personal and spiritual beliefs,” he maintains.

In a recent post Levy quite understandably rejects the argument (which he apparently heard quite a bit of) that NAMBLA is in any way “relevant to what the legal rights and privileges of gays and lesbians who wish to commit to monogamous relationships with other adults should be.” I think he was right to do so. I’m just not clear on how one could accept the reasoning of the Massachusetts decision and still believe that a state can constitutionally require marriage to be monogamous. Polygamists, after all, are also adults with individual rights, and they have the advantage of a religious sanction for their preferred form of marriage.

UPDATE – Matt Evans has a fascinating post raising the same questions much more effectively than I have done.

ANOTHER UPDATE – George Will gives further evidence of how smart he is:

… no evidence suggests that either the Massachusetts court or the U.S. Supreme Court realizes how far the logic of their recent rulings goes. Taken together, the rulings point toward a constitutional right to, among other things, polygamy.

Last June the U.S. Supreme Court, overturning Texas’s anti-sodomy laws, spoke of a need to respect “autonomy of the self . . . [in] certain intimate conduct.” The Massachusetts court, taking its bearings from that ruling, cited “respect for individual autonomy” — emphasis added — when defining marriage simply as “the exclusive and permanent commitment of the married partners to one another.”

The binary idea of marriage — friends and foes of gay marriage agree it is an institution involving couples — arose because there are two sexes. But if the meaning of marriage and the right to marital status is sufficiently defined with reference to “autonomy of the self . . . [in] certain intimate conduct,” what principled, nonarbitrary ground is there for denying the right of marriage to, say, a threesome whose members insist that it is necessary for their self-fulfillment through intimacy?