Supreme Court gay marriage: John Roberts’ dissent is wrong about polygamy and the Constitution.

John Roberts’ Gay Marriage Dissent Is Wrong About Polygamy—and the Constitution

John Roberts’ Gay Marriage Dissent Is Wrong About Polygamy—and the Constitution

Outward
Expanding the LGBTQ Conversation
June 30 2015 4:09 PM

John Roberts’ Gay Marriage Dissent Is Wrong About Polygamy—and the Constitution

U.S. Supreme Court Chief Justice John G. Roberts.
U.S. Supreme Court Chief Justice John G. Roberts.

Photo by Mandel Ngan-Pool/Getty Images

In his wide-ranging dissent in the Supreme Court’s landmark ruling on same-sex marriage, Chief Justice John Roberts set out a simple proposition: “If same-sex marriage, then polygamy.” Indeed, the chief argues boldly that it would have been less of a stretch if the Supreme Court had embraced not same-sex but plural marriage, declaring, “[F]rom the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

The chief justice is on to something important that goes to the heart of the constitutional controversies that now swirl around traditional marriage, monogamy, and same-sex marriage. Elsewhere in Slate, William Saletan says Roberts is wrong to link same-sex marriage with polygamy, but from the perspective of the constitutional vision defended by the chief justice, polygamy is indeed far easier to swallow than same-sex marriage. From the point of view of an alternative framework that Justice Anthony Kennedy seems to accept, however, same-sex marriage and polygamy appear in very different lights, with the one contributing to and the other undermining the Constitution’s core commitment to equal liberty.

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The problem, in other words, lies not only in Roberts’ flawed description of marriage and its history—though he does err there—but rather in his approach to interpreting the Constitution. Only by seeing this can we appreciate why the court’s same-sex marriage decision strengthens marriage as a constitutional matter.

When litigants appeal to the Constitution for the recognition of some new right or the extension of an old one, on what basis should we decide whether their argument succeeds? The chief justice insists that the interpreters’ touchstones are history and tradition. What judges should not do, he argues along with many other conservative jurists, is rely upon his or her own best moral judgment about whether denying the claimed right would be unfair or unjust in light of our best understanding of liberty and equality. The chief insists that relying on “new insights” into the “nature of injustice” displays a “willfulness” that betrays the judge’s role and shows a want of due “humility.”

The very first line of Roberts’ dissent concedes that the same-sex couples who challenged state laws excluding them from marriage “make strong arguments rooted in social policy and considerations of fairness.” But he evidently believes that the Constitution knows nothing of fairness. So his dissent concludes: Those who “celebrate today’s decision” must not “celebrate the Constitution. It had nothing to do with it.”

And so, with an eye toward history and tradition, Roberts and the other dissenters repeatedly and colorfully insist that marriage “has formed the basis of human society for millennia: for the Kallihari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” Indeed, “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” He then states, quite wrongly, “For all those millennia, across all those civilizations, ‘marriage’ referred to only one relationship: the union of a man and a woman,” and he adds that this is the “universal definition.”

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Absolutely not.

Later on, the chief justice adds, more accurately, that “plural unions … have deep roots in some cultures around the world.” Well, yeah. The Aztecs were polygamous, and so were the Han Chinese: Monogamy was established as the law of the land in China only under Mao Zedong in 1950. Polygamy was practiced among the patriarchs in the Old Testament. It is permitted in Islam and continues in much of the Arab and Muslim worlds. I am not sure about the Kallihari Bushmen, but polygamy was and remains common across much of Africa in the form of what is termed “traditional marriage.” Japan and Turkey established monogamy as part of their efforts to modernize only in the 20th century, and India adopted monogamy (except for Muslims) in its post-independence constitution in 1949.

So across all those millennia that Chief Justice Roberts is so concerned about, polygamy is very common. Fully 85 percent of the societies studied by anthropologists have practiced polygamy as the preferred marital form for the privileged. It overwhelmingly takes the form of polygyny: one husband with multiple wives. Polyandry, or a marriage involving multiple husbands, is both rare and fragile and seems to exist mainly under highly unfavorable circumstances.

Of course, the confusion about monogamy and polygamy does not undercut what seems to be the even more basic point that Roberts and other conservative same-sex marriage opponents want to make: that marriage has been a procreative union. Man and woman or man and women, it’s procreative all the same.

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So it turns out that if we want to analyze the marriage issue on the basis of millennia of human experience, as Roberts urges that we do, what claims our attention is marriage as the procreative union of man and woman or women.

Now, why should we care about any of this, and what does it tell us about the comparative status of same-sex marriage and polygamy under the U.S. Constitution?

When the chief justice says that embracing polygamy would be a shorter step than embracing same-sex marriage, he is absolutely correct if the justifiability of rights claims under our Constitution depends upon the depth and breadth of the claim’s rootedness in the historical record. From the standpoint of his constitutional vision, polygamy looms large indeed.

But how do these matters appear from the standpoint of the constitutional vision laid out in Kennedy’s majority opinion?

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Kennedy rises head and shoulders above the dissenters in two respects. First is his capacity to sympathetically appreciate the weight of the claims being advanced by the petitioners before the court. He sets out the moral toll exacted by decades of discrimination against gay and lesbian people and their children. He appreciates that access to marriage as it now exists is as important and relevant to gay and lesbian couples as it is to straight couples. Roberts, in contrast, rules out claims of fairness from the start! If the Constitution doesn't demand fairness in weighing the constitutional claims of a long-despised minority, what good is it?

In addition, Kennedy rightly insists that to analyze the same-sex marriage question adequately we must appreciate the overlapping and mutually reinforcing claims of liberty and equality under the Constitution, along with the fact that these have never been understood as static guarantees. Their meaning unfolds as we learn more about the various forms that human flourishing can take in conditions of well-ordered equal liberty.

That last point gets us to the heart of the matter and displays the superiority of the general framework suggested by Kennedy, and the reasons why our Constitution embraces same-sex marriage but not polygamy.

As Justice Ruth Bader Ginsburg has observed, marriage as it now exists is egalitarian: The spouses have become equal under law. Coverture, the old doctrine that a wife’s legal personality was merged with that of the husband, who was recognized as head of the household, has been consigned to history. This is indeed a revolution in the law, and a recent one at that: Full spousal equality was achieved as a matter of law only in the 1970s. As a matter of fact, it is still a work in progress.

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Marriage is only appealing to same-sex couples because marriage under our Constitution is now equal. As a union of equal spouses, marriage is very well suited to same-sex couples. And because the older pattern of gender-differentiated roles makes a lot less sense in same-sex marriages, the extension of marriage to gays entrenches its egalitarian aspect.

In other words, from a constitutional perspective that takes as its lodestar an ordered system of equal liberty, same-sex marriage is a very important but not a radical reform that builds on, extends, and further entrenches marriage’s egalitarian and constitutional character. This is why women’s groups have so long championed the cause of same-sex marriage. It is why patriarchal societies despise gay rights and know nothing of same-sex marriage.  

The striking fact, as I explain in my recently published book Just Married: Same-Sex Couples, Monogamy, and the Future of Marriage, is that gender equality and same-sex marriage, on the one hand, and polygamy, on the other, are on completely different historical trajectories. Nowhere in the world where women are equal is there any broad social movement in favor of plural marriage. Where women are becoming equal but plural marriage continues to exist, as in Africa, women’s groups are typically seeking to end it, or limit and regulate it. For example, 36 African nations (including South Africa) have ratified the African Union’s protocol on women’s rights, which calls for an end to all forms of discrimination against women, insists that “women and men enjoy equal rights and are regarded as equal partners in marriage,” and holds that “monogamy is encouraged as the preferred form of marriage.”

And if we look at plural marriage as a social reality, rather than as a utopian fantasy, we see that the unequal power dynamics that polygamy unleashes are socially destructive and inconsistent with the equal opportunity to enjoy the great good of family life. Even when practiced by only a small minority of privileged men, polygyny increases competition among men and the pool of unmarried males, contributing to greater violence and risk taking. In addition, complex families are prone to jealousy, conflict, and higher levels of violence in the home.

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The Constitution’s basic commitment to an ordered system of equal liberty should guide our analysis. Same-sex marriage extends the basic value of equal liberty to a group long subject to prejudice and discrimination. It builds upon and further strengthens the norm of spousal equality within marriage. It offers same-sex couples the equal opportunity to enter into a socially recognized form of mutual commitment of great importance. Same-sex marriage helps secure everyone’s equal standing and fair opportunity to pursue a good and successful life.

Plural marriage, in contrast, is strongly associated in practice with patriarchy and class and status hierarchies. It is, in its most prevalent forms, productive of systematically worse outcomes for women, children, and lower-status males.

The spread of monogamy is part of and parcel of the unfinished advance of gender equality around the globe. Adult freedom should be respected, and people should not be subject to criminal prosecution in the absence of direct harm to others. But a sober assessment of polygamy as lived social form provides strong grounds for not extending equal recognition to plural marriages.

Kennedy’s majority opinion clearly honors the Constitution as supreme law. He insists that we honor marriage as an institution ordered by our deepest constitutional commitments to equality and liberty.

Political conservatives often seem to take their bearings on marriage from elsewhere. The chief justice and his fellow dissenters favor an understanding of marriage that is prepolitical, has existed for millennia, that “arose in the nature of things,” as the chief says. Leading conservative thinkers have long argued that “traditional” marriage is a “two-in-one flesh communion of man and woman” that originates in the Book of Genesis. Marriage so understood has typically been patriarchal and has often been polygamous, if later books of the Old Testament and the insights of anthropologists are to be believed. From this point of view, same-sex marriage is indeed anathema.

At the end of the day, the most basic question of all is: Are we prepared to treat the Constitution as supreme law?