By MIKE MANNO
OK, well, we should have seen this coming.
Last year Mississippi passed a law protecting traditional one-man, one-woman marriage. The law was stayed by a federal district court, but that decision was reversed by a panel of the Fifth Circuit Court of Appeals. Homosexual activists have now asked that the matter be reviewed en banc, that is, by the entire Fifth Circuit.
Enter one Chris Sevier, and friends who are polygamists. They have filed a federal lawsuit claiming that the state should not recognize same-sex marriage unless it recognizes polygamy as well. The reasoning within the suit may be a bit too convoluted to explain, but can be boiled down to this: Either same-sex marriage should not be recognized or it should be accepted along with other types of marriage such as polygamy.
WJTV News in Jackson, Miss., quotes Sevier as arguing why same-sex marriage is a religion, saying: “Because gay marriage is not secular. It’s controversial. It’s questionably real. It’s questionably moral. And just like polygamy, and zoophilia, and machinism, and other forms of perspective marriage are also not secular. All forms of parody marriage are equally part of the religion of secular humanism.” Whatever that means.
Machinism? Sevier is not a polygamist, he is a self-described “machinist” and joined the lawsuit to be able to marry — sitting down? — his computer!
Goofy as Sevier’s plan is, similar lawsuits are being filed in several other states and the idea is simple: If marriage can be redefined by the courts that redefinition must include multi-party marriages. Chief Justice John Roberts, in his dissent to the same-sex marriage case, Obergefell v. Hodges in 2015, warned that this would occur if a redefinition of marriage was done by the court:
“The universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history — and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuing that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.”
Further on he warned, “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from 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.
“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If ‘(t)here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?
“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyandrous relationships?”
The chief justice was not the only one to warn that the acceptance of same-sex marriage could open the door to polygamy. Slate, the online publication, as well as The Washington Post and others speculated — both before and after the Supreme Court decision — that multiparty marriages were now on deck to follow the trail that Obergefell blazed.
And if you were observant you could see it coming even before the Obergefell decision. Various attempts to “legalize” plural marriages — or in some instances “decriminalize” them — were made over the years but found no real support. That is until the cast of a cable reality program took to the courts.
In 2011 the cast of TLC’s Sister Wives filed suit in federal court challenging Utah’s criminal polygamy law. In case you missed it, the program was about Kody Brown and the four women to whom he was “married.” The network’s web page described the program this way:
“At first glance, the Browns are a typical big American family, but as patriarch Kody explains; ‘I fell in love, fell in love again, and then again, and then again.’ This is a look at the polygamist lifestyle of Kody Brown, his four wives, and their extraordinary family.”
Within the “family,” however, there was only one legal marriage. The other three “marriages” were deemed by the participants as being religious only; thus Kody Brown was legally married to only one wife and was cohabiting with three other “wives.”
Viewers of the program, obviously concerned about the example being broadcast, contacted Utah authorities about what they were viewing and an investigation ensued. The Utah statute involved said: “(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person. (2) Bigamy is a felony of the third degree. (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.”
Brown then filed suit alleging that the statute violated their substantive due process right “to freely make personal decisions relating to procreation, contraception, family relationships, and childrearing,” and the Equal Protection Clause, “because it treats religiously motivated polygamists differently from other people,” among other claims.
They asked that the court hold the statute unconstitutional and that the state be enjoined from enforcing it against them.
Surprisingly, the district court ruled in favor of the Browns and entered into a lengthy discussion of the last such case before the U.S. Supreme Court, Reynolds v. United States (1878), as to why polygamy was originally found harmful to society, and citing concerns:
“But what exactly was the ‘social harm’ identified by the Reynolds Court in the Mormon practice of polygamy that made the practice ‘subversive of good order’? ‘Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.’
“The practices were therefore objectionable because they were characteristic of ‘oriental’ races including ‘Asiatic’ and ‘African’ peoples, both considered to be morally inferior based on such practices, and civilizationally inferior based on ‘the patriarchal principle’ attributed to their societies, not to mention racially inferior.
“In other words, the social harm was introducing a practice perceived to be characteristic of non-European people — or non-white races — into white American society.”
Of course there was an appeal and the Tenth Circuit reversed on the technical ground that the case was moot since the Utah state’s attorney had a policy of not prosecuting cases similar to the Browns’ — thus the family lacked standing to bring the suit.
Kind of anti-climactic, but the Browns did appeal to the Supreme Court, which after briefing by the parties, refused last January to take the case.
So, will Mr. Sevier get to marry his computer? Can your crazy neighbor marry his Irish Setter? How about your aunt and uncle adding your niece to the mix?
Think it’s funny? We all laughed at the first same-sex marriage cases and look where we are now. Throw in the racial and cultural arguments by the federal district court in Utah and anything can happen.
Be watchful — man-machine matches may be on the way.
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