Edward Ashbee. Politics. Volume 27, Issue 2. June 2007.
At the beginning of June 2006, the US Senate considered the Marriage Protection Amendment (MPA). The measure would, if it had been passed and then ratified by three-quarters of the states, have prohibited same-sex marriage and permitted ‘civil unions’ only if they were established by a state legislature rather than a court ruling, However, although the procedural motion which would have allowed the Senate to vote on the Amendment itself was passed by a majority of one, the numbers backing it (49) fell well short of the supermajority required either for the taking of a vote or for the passage of an amendment under the terms of the US Constitution.
Same-sex marriage will, nonetheless, remain on the political agenda. The MPA’s backers have promised to bring the Amendment back to the floor of both the Senate and the House of Representatives. The organisations that collectively constitute the contemporary Christian right will seek to ensure that those seeking the 2008 Republican presidential nomination are pledged to back its passage. The issue will also continue to shape state politics. By the end of 2006, 27 states had passed referenda amending their constitutions so as to prohibit same-sex marriage and, in some cases, forbid the legal recognition of arrangements between unmarried individuals ‘that intends to approximate the design, qualities, significance, or effects of marriage’ (Commonwealth Coalition, 2006). And the Christian right is maintaining its lobbying efforts across the remainder of the country.
Arguments
The arguments deployed by campaigners against same-sex marriage have, however, shifted in terms of both tone and character. For much of the 1980s, Christian right organisations cited biblical texts and condemned all expressions of homosexuality in unyielding moral terms. The Reverend Jerry Falwell, the principal ‘founding father’ of the Christian right, depicted AIDS as a form of retribution for immorality. From this perspective, the legal recognition of same-sex relationships would legitimise and promote homosexual activity (Eskridge, 2000). During the 1990s, however, Ralph Reed, the executive director of the Christian Coalition, sounded a more measured tone. He led the movement towards a process of reframing and the adoption of forms of language associated with the Bill of Rights. If, it was said, the provisions of anti-discrimination legislation were extended so as to incorporate gays and lesbians, the religious convictions and First Amendment rights of those who rejected the homosexual ‘lifestyle’ would be placed in jeopardy. A motel owner could not, for example, lawfully turn away a same-sex couple wanting to share a room. Alongside rights, the movement placed a growing emphasis upon the extent to which homosexual conduct was a matter of choice. There was no ‘gay gene’. Instead, homosexual activities could be compared with adultery or the use of pornography. Gay sex was a dysfunctional and often compulsive form of immoral behaviour that could be overcome with sufficient self-resolve and prayer. Condemnation of the sin was tied to compassion for the sinner.
Nonetheless, despite the hopes and aspirations of the Christian right, same-sex relationships increasingly gained statutory recognition. Some local governments extended limited rights to same-sex partners. In 2000, in the wake of a state court ruling, Vermont established civil unions granting some of the benefits associated with marriage. This prompted the introduction of same-sex marriage in the Bay State in May 2004. The momentum continued. In April 2005, Connecticut established civil unions in a move hailed by gay rights campaigners. Passage of the measure had been a purely legislative process that had not been forced upon lawmakers because of a court ruling. Although California governor Arnold Schwarzenegger vetoed a bill that would have established same-sex marriage, the state adopted legislation establishing domestic partnerships (which are akin to civil unions).
The Lawrence ruling
In June 2003, the US Supreme Court (Lawrence v. Texas) struck down the remaining state laws that prohibited sodomy. It had, as both gay rights activists and the ‘pro-family’ movement asserted, important implications for marriage.
The Lawrence ruling built upon notions of individual ‘privacy’ that had been established on the basis of ‘penumbral’ rights implicit within the Bill of Rights when the Court struck down state laws prohibiting the use of contraceptives in 1965 and abortion in 1973. Lawrence went further and talked in expansive terms of a right to ‘liberty’. In writing the majority opinion, Justice Anthony Kennedy drew upon the concept of substantive due process that emerged from the Fifth and Fourteenth Amendments. Due process, it was argued, not only referred to the maintenance of procedural guarantees for those suspected of an offence but imposed constraints upon the overall scope of governmental authority. Individuals had ‘the full right to engage in their conduct without intervention of the government’ (Lawrence v. Texas, 2003).
Five other members of the Court rallied behind Kennedy although Sandra Day O’Connor backed the ruling on the basis of the equal protection clause in the Fourteenth Amendment. However, a minority of the Court, Antonin Scalia, Clarence Thomas and the late Chief Justice William Rehnquist, issued a forceful dissent. It challenged the ‘right to liberty’ and instead asserted that in so far as there was substantive due process, its scope was restricted to fundamental rights that were ‘deeply rooted in this Nation’s history and tradition’ (Lawrence v. Texas, 2003).
‘Texas Penal Code … undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause … The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty”, so long as “due process of law” is provided’ (Lawrence v. Texas, 2003, emphases in original).
Scalia argued furthermore that the moral standards adopted by a community or society were a legitimate and proper basis for lawmaking (Bowers, Attorney General of Georgia v. Hardwick et al., 1986). If these moral standards were not accepted as a basis for constitutionally proper legislation, all restrictions upon consensual sexual relationships were thereby open to question:
‘State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding’ (Lawrence v. Texas, 2003).
The consequences of ‘sexual liberty’
Although those who opposed the Lawrence ruling talked in terms of ‘states’ rights’ and the ‘usurpation’ of legislative authority by the Court they also echoed Scalia’s critique and explored the broader implications of the judgment for notions of ‘privacy’ and ‘liberty’. Even before the ruling had been issued, Senator Rick Santorum of Pennsylvania, one of the most visible social conservatives on Capitol Hill, shared his fears:
‘If you say there is no deviant as long as it’s private [sic], as long as it’s consensual, then don’t be surprised what you get … And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does’ (Associated Press, 2003).
Then and in November 2003, the Massachusetts Supreme Judicial Court cited the Lawrence ruling’s invocations of liberty and asserted that there was no rational basis for the denial of marriage rights to same-sex couples (Goodridge v. Dept. of Public Health, 2003).
Against this background, those opposed to same-sex marriage began to deploy other forms of argument that went beyond both morality and the language of rights. In particular, they drew upon the work of Stanley Kurtz, a fellow at the Hoover Institution who regularly contributes to conservative periodicals such as National Review and The Weekly Standard. In contrast with many of those more closely associated with the Christian right, Kurtz asserted his commitment to ‘tolerance’ and opposition to statutes prohibiting sodomy (Kurtz, 2001; Kurtz, 2003a). Although they have sometimes distanced themselves from his affirmations of support for ‘gay rights’, Kurtz’s polemics have been reproduced by almost all Christian right organisations, most notably the Family Research Council, Focus on the Family, Concerned Women for America and the Traditional Values Coalition. They have been cited in both Congress and by White House staff (Ashbee, 2005).
In the wake of Lawrence, Kurtz addressed the issues of privacy and liberty by spelling out the implications of the ruling, as he saw them, in stark and dramatic terms. The ‘Supreme Court’s ringing affirmation of sexual liberty’ established that consenting adults should be able to enter into any relationship or relationships that they chose and would thereby, Kurtz asserted, not only lead to same-sex marriage but also to polygamy (plural marriage which is usually polygynous and structured around one husband) and polyamory (based upon multiple but more egalitarian relationships):
‘Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female … Once we say that gay couples have a right to have their commitments recognized by the state, it becomes next to impossible to deny that same right to polygamists, polyamorists, or even cohabiting relatives and friends. And once everyone’s relationship is recognized, marriage is gone, and only a system of flexible relationship contracts is left’ (Kurtz, 2003b).
Kurtz bolstered his argument with ancillary claims. Firstly, plural marriage could be justified by those who supported it on the basis of sexual orientation and the recognition of bisexuality as a legitimate form of identity:
‘bisexuality is emerging as a reason why legalized gay marriage is likely to result in legalized group marriage. If every sexual orientation has a right to construct its own form of marriage, then more changes are surely due. For what gay marriage is to homosexuality, group marriage is to bisexuality’ (Kurtz, 2005).
Secondly, it was said, the courts – including the US Supreme Court – were unlikely to uphold the 1996 Defense of Marriage Act (which had defined marriage as a heterosexual institution and specifically empowered states that sought to deny recognition to same-sex marriages conducted elsewhere) or protect marriage as an institution. This would open the way for the legal recognition of polyamorous relationships. Thirdly, once same-sex marriage was established, the homosexual lifestyle would undermine its foundation. Gay culture is, Kurtz asserts, tied to promiscuity and the seeking out of partners beyond the primary relationship. The vows of marriage and the principle of monogamy on which marriage and the family rest would be devalued and discredited. As traditional marriage was weakened, the basis would be laid for the social institutionalisation of polyamorous relationships.
What was the evidence for all of this? Kurtz pointed to European experience. He argued that the legal recognition of same-sex relationships in many European countries, particularly the Scandinavian nations, had not only added to economic and cultural developments during the latter half of the twentieth century, all of which had increased the numbers of children born out of wedlock, but had also paved the way for a redefinition of marriage so that it lost its defining characteristics (Kurtz, 2004). Marriage and parenthood had been separated. It was no longer a lifetime commitment and simply an expression of affection. The consequences of the redefinition process became evident, Kurtz suggested, in September 2005 when a man and two women (a polyamorous triad) concluded a samenlevingscontract, or ‘cohabitation contract’ before a notary in the Dutch town of Roosendaal. The Dutch Minister of Justice, a Christian Democrat, refused to annul the proceedings (Belien, 2005).
Kurtz also drew on developments in Canada, a country that has long served as the US’s ‘other’ in polemics about cultural and social policy. He pointed to the 2001 Law Commission of Canada report, Beyond Conjugality, and the extent to which the multicultural paradigm (which he suggested regarded all cultures in terms of moral equivalence) brought polygamy in its wake. The intellectual and governing elites of Canada were, he asserted, committed to:
‘the creation of a modern, secular, “non-patriarchal” relationship system that would allow for marriage-like unions in any combination of number or gender. That would mean the effective abolition of marriage’ (Kurtz, 2006a).
The ground was already being prepared, Kurtz asserted, in the US. He attached particular importance to Big Love, an HBO series about polygamous families within fundamentalist Mormon communities. The series, he suggested, is tied to efforts to reframe popular conceptions of the family. Just as television portrayals of gays and lesbians paved the way for the wider acceptance of homosexual relationships and the toleration of same-sex marriage, coverage of polygamous and polyamorous networks is, from his perspective, opening the way for the decriminalisation of plural marriage. Big Love established a contrast between ‘bad polygamy’ (where abuses such as the marrying off of very young girls or expressions of male authoritarianism take place) and ‘good polygamy’ that rests upon the voluntary decisions of freely consenting adults. It is thereby putting forward a case for legalised polyamory and, more broadly, the subversion and deconstruction of marriage and the principle of monogamy upon which it based (Kurtz, 2006b).
Reasons
Although there are, according to some estimates, 30,000 to 80,000 families living polygamously in the US, the polygamy and polyamory ‘lobby’ is small, perhaps infinitesimally so (Wetzstein, 2005). While some libertarians, most notably David Boaz of the Cato Institute, have called for the ‘privatisation’ of marriage so that marital arrangements are simply civil contracts between two consenting adults, they have not for the most part ventured towards addressing the issue of multiple partnerships (Boaz, 1997).
Why, then, has there been such pronounced talk about the prospect of polygamy and polyamory? It is, in part, a response to shifts in public opinion. Despite the passage of referenda amending state constitutions so as to prohibit gay and lesbian marriage, the proportion of the population regarding homosexuality as ‘always wrong’ fell from 76.3 per cent in 1990 to 57.5 per cent in 2004 (National Opinion Research Center, 2007). According to the 2004 presidential election exit polls, 25 per cent of those asked backed same-sex marriage while 37 per cent supported the provision of civil unions. Only a minority (37 per cent) said that there should be no legal recognition for same-sex relationships (CNN.com, 2004). Against such a background, some of the arguments that were formerly employed have far less credibility. If, however, the legal recognition of homosexual unions can be tied to polygamy the claims put forward by social conservatives seem to acquire greater legitimacy. According to a May 2006 Gallup poll, 93 per cent of Americans consider polygamy immoral. As The Economist has noted, ‘the practice is illegal, and widely reviled’ (The Economist, 2006).
The emphasis upon polygamy and polyamory also serves other purposes. It provides a cornerstone for a ‘rational basis’ defence of existing marriage law that can be employed in the courts and an answer to those within the conservative movement who talk in terms of libertarian principle or ‘states’ rights’. Kurtz directly addresses the arguments raised by those who, as in the Goodridge case, asserted that the Massachusetts constitution and assurances of ‘equal protection’ and ‘due process’ in the US Constitution require the extension of marriage rights to same-sex couples. Under the ‘rational basis’ test, legislation must bear a real and substantial relation to the public health, safety, morals or some other phase of the general welfare. Furthermore, ‘due process’ requires that ‘an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class’ (Goodridge v. Dept. of Public Health, 2003). Kurtz’s critique of polygamy seeks to supply that purpose. At the same time, it addresses the concerns of some fellow conservatives by arguing that ‘sexual liberty’ has a profound impact upon others and that this outweighs considerations of principle: ‘The libertarian asks, Just because two married gay men live next door, is that going to make me leave my wife? In a way, the answer is “Yes”’ (Kurtz, 2003a, emphasis in original).
Conclusion
European accounts of social conservatism in the US have often stressed the country’s debt to evangelical Protestantism and fundamentalism. However, although religious faith undoubtedly plays an important role in the US political process, the Christian right’s use of arguments such as those developed by Kurtz that have a secular basis and employ some of the methodologies associated with the social sciences, should not be underestimated. In this sense, the religious right in the US is rather less ‘religious’ than it may at first sight appear.