What’s Next for Marriage after Tuesday’s Vote?
This column by ACRU Senior Legal Analyst Ken Klukowski was published on November 10, 2012 on Breitbart.com.
Supporters of traditional marriage lost big on Election Day, with four states redefining marriage to include same-sex couples. Marriage defenders acknowledge they have serious work to do on several fronts going forward, even as the nation must now begin to consider the question of polygamy.
Washington State and Maine redefined marriage in their states to include two-man and two-woman couples. In Maryland the legislature recently did so with a new statute that was signed into law by Governor Martin O’Malley, a Democrat weighing a presidential run in 2016, and a statewide ballot measure to overturn that law narrowly failed. And in Minnesota, a proposed state constitutional amendment to reaffirm marriage as one man and one woman narrowly failed to pass.
Traditional marriage has previously enjoyed a success record of 33-0 in statewide contests, winning in every state the people were given a chance to vote. The record from this week was a batting average of 1000 for the other side, resulting in a 33-4 national tally.
Predictably, both liberals and social libertarians say this week’s results show that gay marriage is inevitable nationwide. And some in the Republican Party trying to redefine conservatism as a political movement solely focused on economic issues (with some also arguing for strong national security) say this is proof that the GOP should throw these issues overboard going forward.
But the facts from the election returns don’t support the contention that marriage is a losing issue. First, it appears that supporters of gay marriage had vast resources to promote these ballot measures that swamped social conservatives, easily outspending supporters of traditional marriage. The Left managed to heavily market this issue not only to their base but also developed ads targeting Republicans, young people, and minorities with customized messages as to why those specific audiences should support gay marriage. Traditional marriage supporters had insufficient funds to effectively respond.
Second, in each of those four states, traditional marriage outperformed Mitt Romney and Republican candidates in general. Far from a drag on the ticket, traditional marriage received more votes than Romney in each of those four states. Thus, most citizens voting Republican/Romney also voted for traditional marriage, and also a sizable bloc of Democrat/Obama voters supported traditional marriage.
In the end two things appear clear within the context of how gay marriage is currently being discussed. The first is that there is a trend among young voters in favor of gay marriage. The second is that, given the narrow margins in these races, traditional marriage still wins when equally funded, but a large imbalance of resources for promotion and organizing to mobilize voters can give gay marriage a winning edge.
The looming question that America will soon face as a consequence of gay marriage is polygamy.
The definition of marriage in America has always been the Western Civilization definition: the union of (1) two persons, (2) of opposite sex, (3) who are not close blood relatives.
The United Nations recognizes 192 nations around the world. More than a quarter of them–roughly 50 countries–have legal polygamy. Marriage of one man with multiple women is expressly approved by the second-largest religion on earth, and as such is legal in Muslim nations all over the planet.
One estimate is that there are 600,000 polygamists in the United States today. While some of those are fundamentalist offshoots of Mormonism (which abandoned the practice of polygamy in the 1890s), many or most are ordinary Muslims who were legally married in their country of origin. The U.S. and the American state in which they live simply recognizes only one wife in each marriage.
Polygamy has been practiced for thousands of years and today is prevalent in the aforementioned countries. More than that, it enjoys official religious approval from a faith that has been around since 605 A.D. and is found in every nation on earth. This is not some fringe movement or even a social oddity; it’s mainstream in dozens of countries.
By contrast, gay marriage first began on this planet in 2001 in Europe and came to America in 2003 by judicial decree in Massachusetts. So the question becomes this: If you uncouple marriage from its historical or religious foundations, under what neutral legal principle can you say that the second element of marriage–that it is between people of opposite sex–can be eliminated, but that the first element–that it is between two people–is untouchable?
If you define marriage as simply the union of consenting adults, and insist on “marriage equality,” then there are many millions of people who could insist on American law accepting and recognizing their polygamous marriages. And more of those people are legally immigrating to the United States every day.
There is even already a lawsuit underway. Professor Jonathan Turley of George Washington University’s law school is representing some fundamentalist Mormons in Utah, arguing as a first step that polygamy must be decriminalized the way the Supreme Court decriminalized homosexuality in the 2003 case of Lawrence v. Texas. That case is ongoing today, with a decision possible in 2013. If successful, a follow-up lawsuit will argue that polygamy is a constitutional right. While the Supreme Court rejected that argument in the 1878 case Reynolds v. United States, that same Court in 1878 would have ruled against gay marriage as well.
It’s hard to see how one issue succeeds while the other fails. But whether this current case succeeds or not, there will be others. One or more will take hold and begin moving toward the Supreme Court.
So this issue of marriage has profound implications, covering the gamut from tax law, to family law, to state and federal entitlements, to inheritance and finance. And beyond “traditional” polygamy of one man with multiple women (which is properly called polygyny) found in Islam, there are also questions about the possibility of polyandry (one woman with multiple men) and polyamory (multiple men with multiple women). As unlikely as those sound to most Americans, there is a new, sexually graphic TV series on Showtime appropriately named “Polyamory,” a reality series following the lives of real polyamorists in America today.
It’s enough to make your head spin with the implications. What would a “divorce” look like? Can you divorce one partner but not others? What about child custody? For that matter, how many of the adults in the marriage have parental rights over the children?
So we’re in a brave new world when it comes to the very definition of what we call a family. It will be interesting to see if all of these other proposed family units make Americans rethink whether we want to redefine the institution of marriage at all.