Janet M. LaRue

Same-sex “marriage” advocates condemned the “scare tactics” of those who sounded the alarm regarding the threat that Lawrence posed to state marriage laws, including polygamy. The Lawrence bomblets began detonating and continue.

Less than five months after Lawrence, the Massachusetts Supreme Judicial Court ordered the State Legislature to allow homosexuals to marry, favorably citing Lawrence. The court reasoned:

“The history of constitutional law ‘is the story of the extension of constitutional rights and protections to people once ignored or excluded.’ … This statement is true in the area of civil marriage as in any other area of civil rights. … As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm.” Goodridge v. Department of Public Health (Mass. 2003).

Polygamists are pushing the paradigm by arguing that if Heather can have two mommies, why not two mommies and a daddy? And come to think about it, aren’t two mommies and a daddy “better” than no mommy or no daddy?

A Utah husband and wife filed suit after being denied a marriage license for an additional wife. They argued that the Lawrence decision should be read to require Utah to permit polygamous marriage. The district court disagreed:

Giving the required deference to the Supreme Court’s own stated limitations of its Lawrence holding, this court cannot hold that Lawrence can be read to require the State of Utah to give formal recognition to a public relationship of a polygamous marriage. Contrary to Plaintiffs’ assertion, the laws in question here do not preclude their private sexual conduct. They do preclude the State of Utah from recognizing the marriage of Plaintiff G. Lee Cook to Plaintiff J. Branson as a valid marriage under the laws of the State of Utah. Bronson v. Swenson (D. Utah 2005).

The court, however, noted the tendency for laws to “evolve”: “Plaintiffs refer to the dissent of Justice Scalia in Lawrence, where he contends that the majority’s ruling will call into question state laws against bigamy, among other statutes that are based upon moral choices. … That is likely to be true.”

The case is now before the U.S. Court of Appeals for the Tenth Circuit. The Goodridge majority took it upon themselves to redefine common law marriage yet, arbitrarily limited its new definition to two persons: “We construe civil marriage to mean the voluntary union of two persons as spouses to the exclusion of all others.”

The three dissenting justices in Goodridge argued that the Commonwealth’s marriage laws were gender neutral and did not discriminate on the basis of sexual orientation. Justice Spina wrote:

The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.”

The dissenters reasoned that by extending marriage to same-sex couples, the state’s laws against polygamy and incestuous marriages would fall.

The majority disagreed:

Similarly, no one argues that the restrictions on incestuous or polygamous marriages are so dependent on the marriage restriction that they too should fall if the marriage restriction falls. Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamy prohibitions of our marriage laws. … Rather, the statutory provisions concerning consanguinity or polygamous marriages shall be construed in a gender neutral manner. Id. at 969.

Where does that leave bisexuals? How long until there’s a bisexual ménage a trois before the Massachusetts courts asking why bisexuals are “second-class” citizens in the Commonwealth?

Since the Goodridge court decided that the Commonwealth “failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples,” how likely is it that it will be able to articulate a constitutionally adequate reason to deny marriage to three people, especially when the court held that it may not treat some citizens as “second-class.”

How will the court rationalize that limiting marriage to two people can be applied in a “gender neutral manner” to bisexuals, when it refused to recognize that the prohibition against same-sex marriage applied in a gender neutral manner” to two men or two women regardless of “sexual orientation”? The court will be hard pressed to assert anything other than its own moral code, which it claimed it couldn’t’ do in Goodridge.

Justice Marshall, nonetheless, iced the slope for legalizing polygamy based on the best interests of children:

In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.

Already, an estimated 30,000 to 80,000 families are living polygamously in the United States, including hundreds of Laotian Hmongs in Minnesota and thousands of fundamentalist Mormons in Arizona and Utah. (Cheryl Wetzstein, “The Marriage of Many: If homosexuals can ‘wed,’ will polygamists be next,” Washington Times, Dec. 11, 2005, p. A01).

Given the number of children in the average polygamous household, there’s no doubt that many more children are “deprived” of state benefits because of anti-bigamy laws than are children in homosexual households.

A May 2005 Gallup poll found that 92 percent of Americans oppose the practice, which is illegal in all 50 states. But if Americans can be convinced that polygamy, like same-sex marriage or civil unions is about “fairness,” opposition can be expected to erode, once homosexual activists come out of the closet in support of the right of bisexuals’ to marry an individual of each sex.

Conservative commentator Charles Krauthammer asked: “If marriage is redefined to include two men in love, on what possible principled grounds can it be denied to three men in love?” (Wetzstein).

“It’s not a case people can sniff at,” said Richard G. Wilkins, a law professor at Brigham Young University. “If you can’t require monogamy, how in the world can you deny the claims of the polygamists, particularly when it’s buttressed by the claim of religion?” (“Utah Polygamy Ban Challenged,” CBSNews.com, Jan. 27, 2004: http://www.cbsnews.com/stories/2004/01/27/national/main596268.shtml).

After Canada legalized same-sex marriage, its government launched a study to look at the ramifications of polygamy.

Every homosexual organization claims to be fighting for the rights of bisexuals. For example, the Human Rights Campaign (HRC), The Gay & Lesbian Alliance Against Defamation (GLAAD), the Association for Gay, Lesbian, and Bisexual Issues in Counseling (AGLBIC), the National Gay and Lesbian Task Force and Lambda Legal Defense and Education Fund.

Lambda’s “Mission Statement” states: “Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV thought impact litigation, educations and public policy work.”

As a guest on Laura Ingraham’s radio show a few years ago, I debated Evan Wolfson, former project director of Lambda Legal. Relying on Lambda’s expressed concern for the rights of bisexuals, I challenged Wolfson to admit that legalizing same-sex marriage would lead to legalizing polygamy. My questions, which Wolfson dismissed as a scare tactic, were: If polygamy isn’t legalized, how will a bisexual marry just one person without denying his or her “bisexual orientation”? Otherwise, in order to marry, won’t bisexuals have to make a gender choice in a spouse and then engage in adultery in order to fulfill who they are as bisexuals?

Wolfson, now director of Freedom to Marry, says in his book, Why Marriage Matters America, Equality, and Gay People’s Right to Marry: “Civil unions.... are unequal in the security, clarity, and status they provide, unequal in the legal protections that flow from them, unequal in fact as well as in name—and names or words, of course, matter.”

Wolfson is critical of the recent New Jersey Supreme Court ruling: “But I’m not satisfied because the high court opened the door to equality but didn’t finish the job [because it referred the decision to the legislature]. There’s only one way to provide equality and that is by equal treatment.”

How long will bisexuals accept less than “equal treatment” while homosexuals continue to diss civil unions and push for the right to “marry” in other states? Who thinks bisexuals don’t want the same “legitimacy,” “acceptance” and “affirmation” for bisexual behavior that legalized polygamy will provide? How long will they wait for their homosexual “allies” to help them achieve the equal right to “marry” the persons of their choice?

Judge Donald G. Collester Jr., of the New Jersey court of appeals voted to extend marriage to same-sex couples. He said his colleagues exaggerated the ‘specter of polygamy.’ The homosexual plaintiffs ‘do not question the binary aspect of marriage; they embrace it,’ Judge Collester said. Moreover, he said, despite myriad briefs filed in the case, ‘no polygamists have applied” for marriage rights.” (Wetzstein).

It’s notable that in the polygamy cases filed since the Lawrence decision, the plaintiffs have been represented by or supported by amicus briefs by the ACLU or one of its state chapters, but not by a homosexual rights organization.

Truth be told, homosexual rights organizations aren’t pushing for the right of bisexuals to marry two people because it would hurt the cause of extending same-sex marriage to other states. Wolfson is adamant that homosexuals should never settle for civil unions, which makes the so-called concern for full equality of bisexuals a very distant prospect.

Homosexual rights leaders and their allies insist that the “slippery slope” to polygamy argument is a rhetorical dodge, while no doubt giving their bisexual friends a wink-wink. According to Wetzstein, Evan Wolfson still thinks “It’s a “scare tactic.”

It makes you wonder how long bisexuals will be content riding in the back of the homosexual marriage bus, and how long before another activist court pushes marriage down the slippery slope to ultimate destruction.

When society and its courts think “fairness” and “tolerance” trump morality, the laws of God and what’s best for children, what will stop polygamists from marrying? Why limit it to three, “loving and committed” people? Why not two adults and a consenting minor? Why not a dozen polyamorists?

[I]n former days the free-thinker was a man who had been brought up in ideas of religion, law, and morality, and only through conflict and struggle came to free-thought; but now there has sprung up a new type of born free-thinkers who grow up without even having heard of principles of morality or of religion, of the existence of authorities, who grow up directly in ideas of negation in everything, that is to say, savages. Leo Tolstoy, War and Peace.

Who doesn’t know that you have to hide the playbook if your goal is to negate marriage by taking a duped and desensitized society down the slope slide by slide?


Janet M. LaRue

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. Be the first to read Janet LaRue's column. Sign up today and receive Townhall.com delivered each morning to your inbox.