Proposition 9

“Couldn’t legalizing gay marriage be seen as a positive for the Church because it would bring us one step closer to legalizing polygamy, a practice the Church still believes in?”

This was my comment in Sunday School during a discussion of gay marriage. There was an awkward silence afterwards. After a moment the teacher acknowledged that, well, that certainly was an idea, and then quickly moved on.

This was about ten years ago, during the years I particularly relished being difficult. (I blame those teenage hormones).

I’ve thought about it a lot since then. I really think I’ve got an ironclad case that if gay marriage is legal, then polyamory1 should be as well (On the other hand, my case that the Church would or should be interested in legalized polygamy is significantly weaker).

I had a discussion with one of my friends about it the other night. He disagreed; his argument was that marriage has always been about two people. He even went so far as to look up the definition of marriage in several different online dictionaries. That’s an okay argument, maybe, if you’re arguing in an environment where gay marriage isn’t legal. But as soon as gay marriage is legal, then you have nothing to stand on. Oh, the traditional definition of marriage is between two people and no more? Well, guess what, the traditional definition of marriage is between a man and a woman.

Moreover, the “tradition” argument is even more precarious with polyamory than it is with gay marriage because there is actually a long history of polyamory, or at least polygamy, across many cultures throughout the world. In fact, there are many cultures today where polygamy is already legal (although polyandry is far less common). There are even biblical arguments that can be made in favor of polyamory! This is looking like a slam dunk.

I think the concluding lines of the recent ruling2 overturning Proposition 8 could one day be equally applied to polyamorous relationships. Let’s see how that sounds:

Moral disapproval alone is an improper basis on which to deny rights to polyamorous individuals. The evidence shows conclusively that Proposition 9 enacts, without reason, a private moral view that polyamorous relationships are inferior to monogamous relationships. Because Proposition 9 disadvantages polyamorous individuals without any rational justification, Proposition 9 violates the Equal Protection Clause of the Fourteenth Amendment.

CONCLUSION

Proposition 9 fails to advance any rational basis in singling out polyamorous individuals for denial of a marriage license. Indeed, the evidence shows Proposition 9 does nothing more than
enshrine in the California Constitution the notion that monogamous relationships are superior to polyamorous relationships. Because California has no interest in discriminating against polyamorous individuals, and because Proposition 9 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 9 is unconstitutional.

Yet given all this, I don’t think that legalizing gay marriage will inevitably lead to legalizing polyamory. The logic seems to flow directly to it, but many today argue that the logic that led us to outlaw slavery over a hundred years ago, to end “separate but equal” over 50 years ago, and to throw out anti-miscegenation laws leads inexorably to legalizing gay marriage, and yet many others do not see it that way. Similarly, I imagine many will disagree that legalized gay marriage logically leads to legalized polyamory.

I do think, however, that if there was a movement to legalize polyamory, it may be made under a larger umbrella of moving marriage towards a generic contract. The less specific marriage gets, the more it lends itself to being a purely legal matter. If you’re familiar with contract law you know that although there are laws and precedents for the legality of certain contractual terms, by and large whatever contract terms the individuals forming the contract dream up are enforceable. It may be that one day we would move towards marriage being an actual, signed contract, with standard clauses (“In the event of death of the one, the undersigned agree that the other shall inherit all property”, etc.) that can be modified however the participants see fit.


1. I use polyamory instead of polygamy, as polygamy is specifically one man with multiple wives, whereas polyamory indicates more than one partner in general. Polyandry is one woman with multiple husbands.
2. If you’d like to read the full text of the ruling, you can find it here.

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2 thoughts on “Proposition 9

    • You know… I think I agree with you on this one. I even think it would be better if marriage were a purely legal artifact, a contractual relationship. Let the religious definition of marriage be the sole purvey of religions, and let the legal definition of marriage be the purvey of governments, and let never the twain meet.

      To me, it would make the religious rite of marriage more sacred if it could be divested of its legal trappings. Make all that boring legal stuff happen somewhere else, outside of the church.

      Then, the likewise happens… you can have whatever sorts of legally-recognized relationships in a pure-contract sense, but you don’t have to ask your bishop/pastor/priest/rabbi/imam/whatever to perform what is essentially a legal advisory role.

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