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Gays and polygamists in bed
The national debate over same-sex marriage
found its way into the President's State of the Union speech
Tuesday night when Bush declared that "activist judges…have
begun redefining marriage by court order, without regard for
the will of the people and their elected representatives."
He went on to say that if these judges persisted, "the
only alternative left to the people would be the constitutional
process."
The President was of course referring to the
Massachusetts Supreme Court's decision in November that the
state's long-standing ban on same-sex marriage was "incompatible
with the constitutional principles of respect for individual
autonomy." The court ordered the state legislature to lift
the ban and gave legislators six months to comply.
This blatant judicial activism has inspired
increased gay-rights activism in some states and reactionary
measures to prevent same-sex unions in others. Yesterday a Senate
committee in Ohio approved a bill that declares same-sex marriage
is "against the strong public policy of the state."
The bill, which would prevent domestic partners
of state employees from receiving benefits, is expected to pass
in the Senate and the House. Ohio Gov. Bob Taft has indicated
he also supports the bill.
So if nothing else, the activism of the Massachusetts
Supreme Court has inspired responses in some state legislatures,
where the will of the people stands a slightly better chance
of determining law than it does in the courtroom, generally
speaking. But perhaps the most bizarre consequence of the Massachusetts
ruling has been in the state of Utah, where an unexpected lawsuit
has thrown much-needed light on the issue of marriage and its
place in civil society.
On Jan. 13 in Salt Lake City, a civil rights
attorney challenged Utah's ban on polygamy, citing the US Supreme
Court's decision last summer to overturn a Texas anti-sodomy
law. According to the lawsuit, the Salt Lake County clerk's
office denied a marriage license to a one G. Lee Cook and J.
Bronson because Cook was already married to another woman who
had consented to the three-way "plural marriage."
By denying the marriage license, the suit
argues, Salt Lake County violated the plaintiffs' First Amendment
right to practice their religion. The plaintiffs, who are Mormon
fundamentalists, claim that polygamy is a "sincere and
deeply held religious tenet." Although polygamy was abandoned
by the mainstream Mormon Church more than a century ago, an
estimated 30,000 Americans still practice polygamy in the West
and consider it a necessary part of true Mormonism.
In times past it would have seemed like a
simple case: the crazy Mormons don't stand a chance, the suit
should be thrown out of court, right? Not necessarily. As logic
stands, if judges in Massachusetts can redefine marriage, trump
the state legislature and demand laws that reflect judicial
decree, then judges in Utah may well do the same. Likewise,
if the US Supreme Court can overturn a Texas state law because
it violates the "Constitutionally protected" privacy
of consenting adults (as in the anti-sodomy case), then why
should the state of Utah be allowed to trample on the rights
of consenting polygamists?
The lawsuit in Utah is a taste of strange
things to come if lawmakers in Massachusetts do not stand up
to activist judges seeking to foist a redefinition of marriage
on the American public. The Massachusetts court argued in its
November decision that the essence of civil marriage is merely
"the exclusive and permanent commitment of the married
partners to one another." Using this definition, polygamists
across the Western United States could conceivably seek a judicial
precedent protecting plural marriage.
It goes without saying that fundamentalist
Mormons and activist homosexuals make strange bedfellows. But
the actions of the Massachusetts Supreme Court have opened Pandora's
box on the issue of civil marriage, and what passed for common
sense less than a generation ago is now decried as "unconstitutional."
If civil marriage is redefined by activist judges to allow same-sex
unions, then these kinds of unintended consequences-and stranger
ones as well-will be commonplace in the future.
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