Law
11:48 am
Thu May 31, 2012

Would Gay Marriage Lead To Legal Polygamy?

Originally published on Thu May 31, 2012 2:27 pm

Transcript

MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, we're going to take a closer look at health care in this country. Here on various programs at NPR we've been examining the way our health care system looks to people who've actually been sick. In a few minutes we're going to talk about some of the things people of Hispanic descent say they are experiencing. There are some real differences when compared to both non-Hispanic whites and African-Americans.

We want to talk about that in a few minutes. That's later. But first we want to talk about the politics of marriage. Same sex marriage, or marriage equality, if you prefer, has proven to be a persistently explosive and emotional issue, and while many people raise the tenets of faith to explain their point of view, there are other arguments. And one of those arguments increasingly raised by opponents of same-sex marriage is that legalizing same-sex marriage will eventually open the door to demands for legal recognition of plural marriage, especially polygamy.

We wanted to take this argument seriously, so we've invited two guests who have though seriously about it. With us now, Jonathan Rauch. He is the author of the book "Gay Marriage: Why it's Good for Gays, Good for Straights, and Good for America." He's also written about this issue for Reason magazine and most recently for the Washington Post. Also with us, Austin Nimocks. He is the senior legal counsel for the Alliance Defense Fund. That's a conservative Christian legal consulting group.

The group opposes same-sex marriage. And they were both kind enough to join us here in our studios in Washington, D.C. Welcome to you both. Thank you for coming.

JONATHAN RAUCH: Thanks, Michel.

AUSTIN NIMOCKS: Appreciate it.

MARTIN: So, Austin, I'm going to start with you, if that's OK. You - and I should point out here that you and Mr. Rauch also actually happen to agree that plural marriage should not be recognized in the United States. I think it's important to say that up front. But why do you think that legalizing same-sex marriage, particularly on a national basis, would inevitably lead to redefining marriage to include plural marriage?

NIMOCKS: Sure. And one of the reasons that proponents of marriage and maintaining marriage between a man and a woman believe that is because by so doing it stays as a child-centered institution and not one that's concentrated on the desires of adults. And if marriage is redefined to be about any two adults who are in love or committed to each other and it's about adults and not the kids that flow from procreative relationships, then from a policy standpoint you have to ask the question, then why can't three or more adults be just as loving and committed to each other?

And that's the question primarily that's being raised. If it's about the procreative relationships that produced and raised the next generation and we keep it a child-centered institution, then the risk of polygamy and plural marriage does not exist.

MARTIN: Is it really a child-centered institution, though, in that we don't deny marriage to people who do not intend to procreate or who are beyond the age when they logically would do so?

NIMOCKS: Absolutely. We don't deny them that opportunity but it goes to the fundamental question of why do we have marriage laws. Why do we issue marriage licenses? And when you look on a marriage license, there are two requirements, basically - that you have to be of age and of the opposite sex. The government doesn't ask you if you're in love, if you're committed.

And there's a reason that those things are not on a marriage license - because the government's interest is in what happens from procreative relationships between men and women. And that's the thrust of it.

MARTIN: Jonathan Rauch, you obviously don't agree. And we were thinking about the fact that South Africa, for example, is the only country on the African continent that recognizes same-sex marriage, but it's also recognized, in its constitution, plural marriage, and many people think that that compromise was in fact linked. But you don't believe that one necessarily leads to the other. Tell us why.

RAUCH: No. Just the opposite. Same sex marriage leads away from polygamy, not for it. It's odd to argue that because children need parents, you should be against polygamy. That's one of the arguments polygamists make - that, you know, you have more moms and a dad. Isn't that great? In fact, the problem with polygamy is exactly what's good about same-sex marriage, which is that everyone should have the opportunity to marry.

We are not asking, gay marriage advocates, for the right to marry everybody or anybody, just to marry somebody. We're asking to have that opportunity. The problem with polygamy, historically, and there's tons of literature about this, Michel - polygamy is the oldest form of marriage and the most predominant form of marriage in human society - the problem with it is that it almost invariably means one man, multiple wives, and when one man takes two wives, some other man gets no wife.

So a lot of people lose the opportunity to marry and you get societies where you've got a lot of unmarried young males who are very unhappy, a lot of social disruption, a lot of violence. And there's a whole academic literature on this. Gay marriage changes none of that. In fact, gay marriage leads us away from that to a society where everyone can marry.

MARTIN: Why, though, what about Austin Nimocks' argument that if the argument is people love whom they love, isn't it conceivable that people might love more than one person and therefore would want that relationship to be legally protected? Why wouldn't it lead to that?

RAUCH: Well, of course, gay people can...

MARTIN: Given particularly that people - it is traditional. Polygamy is tradition in many societies even today.

RAUCH: Sure. And of course we got rid of polygamy for very good reasons long before gay marriage came along, and all those reasons will still be valid and all of those reasons continue to hold in a world where you have gay marriage.

Remember, fundamentally what I tell people is when straights get the right to marry three people or their dog or a toaster, gay people should have that too. But until then, that's not what we're talking about. We just want to be able to marry someone instead of no one.

MARTIN: We're talking about the debate over whether same-sex marriage rights inevitably would lead to plural marriage rights, and if so, why? Our guests are Jonathan Rauch, the author of "Gay Marriage: Why it's Good for Gays, Good for Straights, and Good for America." Also with us, Austin Nimocks. He's senior legal counsel for the Alliance Defense Fund. That's a conservative legal consultancy group that opposes same-sex marriage rights.

You know, Austin, what about Jonathan Rauch's argument that you can make public policy determinations about what is best and healthy for society? So, for example, the legal age of marriage differs from state to state. Many states have determined that it's just inappropriate for people younger than a certain age to get married, and that varies slightly.

But there's sort of a common understanding of what's good public policy and people generally adhere to that, and that that would prevail.

NIMOCKS: Sure. And there are nuances from state to state about marriage laws. You mentioned the age of consent. And then in 18 states in this country, you know, you can marry your first cousin. In the other 32 you have to be of a greater relationship. And so there are various nuances in that regard, but the thing that used to unify us in a country as far as marriage is concerned was the definition.

None of those restrictions changed the definition of marriage and so when you look at unifying ourselves as a society, I think it's important - you can't talk about that without looking at the record where Americans have chimed in on this particular issue of the definition of marriage. In the 32 states where Americans have voted, they have been unanimous that marriage is one man and one woman.

And that's been over a 15 year period, the first votes in 1998, the last vote this month in North Carolina. And that measure of consistency in red states and blue states, East Coast, West Coast, North and South, having that unifying thing says that Americans are really married to marriage and as a society believe in the idea that our institution of marriage needs to have both halves of humanity.

MARTIN: But Jonathan Rauch, why wouldn't there be a move for polygamy on First Amendment grounds? Like, for some people...

RAUCH: Oh, I think there will be. And there already is.

MARTIN: Well - because certain people within Islam practice polygamy. In a number of countries in the world where Islam is the dominant religion polygamy is permitted. So why wouldn't just on First Amendment grounds, the freedom of religion, polygamy then be something that people would pursue?

RAUCH: You're already seeing that. There's a case of that kind in court right now. And yeah, I think the people who come for polygamy are going to come primarily through the First Amendment and religious liberty, not primarily through gay marriage or any of those decisions.

MARTIN: So why wouldn't then that be a successful argument, if same-sex marriage were legal around the country?

RAUCH: Well, same-sex marriage is not based on religious liberty. It's based on good public policy. And it's based on the idea that the opportunity to marry is a fundamental right and that no one should be deprived of it. But very, very few serious people argue that the opportunity to marry multiple people is a fundamental right. You know, if you can love two people you can also love each one of them.

And the implications, of course, are totally different for marrying multiple people. Which is why I think that if polygamy's going to get argued in the courts. it's primarily going to be argued by religious people as a form of religious liberty. It won't involve the gay folks.

MARTIN: Austin Nimocks, what about Jonathan Rauch's argument that one can restrict marriage to one individual and one other individual based on good public policy grounds, that it's been, say, demonstrated historically that, you know, polygamy leads to destructive social consequences and that the states would have every right to determine that that's not acceptable, even if same-sex marriage is?

NIMOCKS: I agree with him, especially if the good public policy grounds are that marriage is about kids and that kids need both a mom and a dad, then we as a society can say, OK, we need one woman and one man. But when we change that definition and we say it's about the love and commitment of the adults who are in the relationship, then that completely changes the foundation of the public policy.

MARTIN: What's your chief objection? Is your chief objection to same-sex marriage on cultural acceptance grounds? You feel that it just kind of opens the door to other family forms that are just not healthy for society? Or is it on religious faith grounds? What's your chief objection?

NIMOCKS: Cultural mores, you know, ebb and flow throughout society. You know, we're a different society than we were 100 years ago. The chief problem with same-sex marriage from my standpoint is the fact that from the very beginning of time until the end of time, we are going to be a gendered species of men and women, and I have a firm belief - and I believe Americans agree with me on this, given the 32 votes over 15 years - that mothers and fathers are not optional, that kids need moms and dads. They have a strong need to identify who they are and from where they've come. And marriage is the institution that binds together moms and dads with the children that they create.

MARTIN: I gave Austin Nimocks the first word, so Jonathan Rauch, I think it's only fair to give you the last word. You wrote a whole book about why gay marriage is good for America. What's your best argument for why you support same-sex marriage?

RAUCH: Well, of course, it's very important to gay people. It's very important to the kids of gay people. A lot of us are raising kids. It's not going to break up anybody's traditional marriage. It's supplemental, not substitutional.

Most important, though, from my point of view - America's problem is not that we have too many marriages. It's that we have too few marriages. It's not that gay people want to get married. It's that straight people are not getting married or not staying married.

And I think same-sex marriage helped set the cultural example that marriage remains the gold standard for committed relationships in America, something everyone can and should aspire to. Polygamy, of course, points in the exact opposite direction. It withdraws the opportunity to marry from people who now have it, and that's why I'm not worried that ultimately, as people start to think about it, they'll see polygamy and gay marriage are opposites, not equivalents.

MARTIN: Jonathan Rauch is a guest scholar at the Brookings Institution. He's written extensively on marriage. Austin Nimocks is senior legal counsel for the Alliance Defense Fund. That's a conservative Christian legal consultancy group. And they were both kind enough to join us in our Washington, D.C. studios.

Thank you both so much for speaking with us.

NIMOCKS: Thank you.

RAUCH: Thank you. Transcript provided by NPR, Copyright National Public Radio.

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