The Legalization Of Polygamy Was Always The Logical Consequence Of Obergefell

In 2015, the U.S. Supreme Court decided the landmark case of Obergefell v. Hodges, legalizing gay marriage in all 50 states and the District of Columbia by a 5-4 vote. Justice Anthony Kennedy, who wrote the majority opinion for the case, didn’t seem to believe that the issue of polyamory could possibly be relevant or arise due to the court’s decision. Just eight years later, The New York Times published an article last week that celebrated Somerville, Massachusetts, as a haven for legal polyamory.

A haven for academics and hippies, the Boston suburb adopted an ordinance in 2020 granting domestic partnership rights to people in polyamorous relationships. That was followed up this spring by the passage of two more laws “extending the rights of nonmonogamous residents,” banning discrimination on the basis of “family or relationship structure” in city employment and policing. The Somerville City Council is currently considering extending the reach of that law to housing. And as the Times reports, the “nonmonogamous” are no longer unusual there.

Somerville is, in the words of one of its municipal councilors, “a very queer city.” And as the Times also makes clear, “there is a significant crossover between those who identify as lesbian, gay, bisexual, trans and pansexual and those who practice nonmonogamy, according to multiple studies.”

As the Times also points out, polyamory is a staple of popular entertainment via shows like “Planet Sex with Cara Delevingne” and “Sex Diaries.” The same is true for polygamy, which was the subject of the hit HBO show “Big Love” from 2006 to 2011, and a reality show about an actual polygamous family, “Sister Wives,” which is still running after 13 seasons.

Surely, the widespread introduction of gay characters and couples into popular TV shows and films helped pave the way for Obergefell. Supporters of “nonmonogamous” relationships believe the same process is underway for their cause. But as much as the Times story on Somerville is an indication that the arbiters of fashionable left-wing opinion agree with that conclusion, it is worth remembering that at the time the gay marriage ruling was handed down, both the majority opinion and liberals cheering it sought to assure the nation that its implications were limited.

The decision was based on the claim that marriage “equality” was rooted in the due process and equal protection clauses of the 14th Amendment to the Constitution. The right of two people of the same sex to the benefits of government-approved marriage was, according to the five-justice majority and the rest of enlightened opinion, no less compelling than those of two of the opposite sex.

In their view, the traditional conception of marriage as a union of one man and one woman that dates back to the beginnings of civilization was antithetical to the law’s guarantee of equal protection to all. Any objections to this principle were deemed to be rooted in religion and not the secular laws of the United States.

Yet as Chief Justice John Roberts noted in his dissent, there was a problem. “Much of the majority’s reasoning” in support of same-sex marriage “would apply with equal force to the claim of a fundamental right to plural marriage.” Indeed, as Justice Samuel Alito had said during the case’s oral arguments, those who claimed the equal protection clause demanded that the law recognize same-sex marriage between two people could not reasonably explain on what grounds a state could deny a marriage license to a foursome of two men and two women.

Kennedy’s opinion waxed lyrical about the benefits of marriage, but he seemed to take it for granted that no reasonable person would assume his claims would apply to any union other than that of two persons. Pundits like Slate’s William Saletan backed him up, arguing that any effort to argue to the contrary was a way to delegitimize gay marriage by comparing it to polygamy and polyamory that were outrageous and clearly beyond the pale.

But the Somerville City Council begs to differ. And though the laws it has passed are antithetical to the foundational principles of Western civilization as well as the best interests of families and children, they are right to think that what they have done is the logical and inevitable consequence of Obergefell.

Kennedy’s opinion included many elements that can be construed as arguing against extending the right of marriage to more than two consenting adults. He championed the idea of such unions being immutable and the avoidance of loneliness, arguing it would be wrong to exclude gay couples from the legal benefits of marriage. He also emphasized the importance of fidelity and devotion to another person and the avoidance of conflict in long-term relationships. All of these arguments could just as easily be applied to unions that involve more than two people. Any assertion to the contrary would, like the argument against gay marriage, be rooted in those same religious and traditional ideas that Obergefell rejected.

If marriage is possible between any two individuals of the opposite or the same sex, then why not three, four, or any number of consenting adults, regardless of their sex? And if Somerville is the harbinger of a growing movement to legalize polyamorous and inevitably polygamous marriages by cities and ultimately states, then those who will defend such laws are on firm ground declaring that the logic of Obergefell demands that all non-traditional ideas about marriage must be treated equally under the law. This is the choice America made in 2015.

Polygamy is still practiced in the Muslim world and is even quietly tolerated among some Muslim immigrant communities in the United States. Likely today most liberal politicians would say they are opposed to polygamy because it is a vestige of bad ancient patriarchal societies. But so long as American law rejects traditional marriage as a valid definition, they have no leg to stand on to deny it to groups of consenting men and women or persons who define themselves in some other manner.

There is little appetite among conservatives to challenge gay marriage since it is now broadly popular. But as Roberts and Alito’s concerns are being validated by events in the culture and in places like Somerville, it will be impossible to prevent efforts to broaden the definition of marriage to conform to those accepted in queer culture without also questioning Obergefell’s logic.

Marriage and the creation of families based on the traditional definition involving one man and one woman is part of the foundation of our civilization. The same movement that is driving events in Somerville and elsewhere aims to destroy the traditional family. In its place, they wish to elevate the nihilism of cultural Marxism. And in a nation where President Biden has declared that support for the transgender cult that targets children and families is “the civil rights issue of our time,” no one should doubt that legal polyamory and polygamy are just around the corner.

As politically perilous as a relitigation of Obergefell might be, reversal of that trend would require a willingness to champion traditional values about families, sex, and marriage that would call its validity into question.

This wouldn’t be necessary if, as Kennedy and Saletan hoped at the time, gay marriage was the end of the debate. But it isn’t the end, and unless we are prepared to acquiesce to living in a country where practices such as polyamory and polygamy — which are so toxic to culture and families — can thrive, Obergefell is the battleground on which we will ultimately be dragged by the Times and the queer city of Somerville.

Jonathan S. Tobin is a senior contributor to The Federalist, editor in chief of JNS.org, and a columnist for Newsweek.

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If marriage is possible between any two individuals, then why not three, four, or any number of consenting adults, regardless of their sex?