Research Article

Polyamory, Social Conservatism and the

Same-Sex Marriage Debate in the US
Edward Ashbee
Copenhagen Business School
The arguments against same-sex marriage used by the Christian right and other social conservatives
in the US have shifted in character. Drawing upon the work of Stanley Kurtz, they have increas-
ingly suggested that same-sex marriage will necessarily lead to the legal recognition of polygamous
and polyamorous relationships. From this perspective, the Supreme Courts ruling in Lawrence v.
Texas (2003) had, by expanding notions of sexual liberty, paved the way for the legalisation and
recognition of all consenting adult relationships. The article suggests that the Christian rights
increased use of consequentialist arguments rather than claims structured around biblical authority
or opposition to homosexuality per se is a form of adaptation to long-term shifts in the character
of US popular attitudes.
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 ratied 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.
1
Same-sex marriage will, nonetheless, remain on the political agenda. The MPAs
backers have promised to bring the Amendment back to the oor 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.
2
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 indi-
viduals that intends to approximate the design, qualities, signicance, 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
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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 sufcient self-resolve and prayer. Condem-
nation 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 benets 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 estab-
lished 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 estab-
lished 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).
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Reframing the
debate using
rhetoric
imposing
agency on
something
many consider not
a choice
Five other members of the Court rallied behind Kennedy although Sandra Day
OConnor backed the ruling on the basis of the equal protection clause in the
Fourteenth Amendment. However, a minority of the Court, Antonin Scalia, Clar-
ence 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 Nations 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, mas-
turbation, 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 todays 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 Scalias
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 its private [sic], as long as its consensual,
then dont 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 rulings 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
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evolving
denitions
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 afrmations
of support for gay rights, Kurtzs 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 Courts ringing afrmation 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 conceiv-
able 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 everyones relationship is recognized, marriage is gone,
and only a system of exible relationship contracts is left (Kurtz, 2003b).
Kurtz bolstered his argument with ancillary claims. Firstly, plural marriage could be
justied 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 dened marriage as a
heterosexual institution and specically 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
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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 redenition of marriage so that it lost its dening characteristics
(Kurtz, 2004).
3
Marriage and parenthood had been separated. It was no longer a
lifetime commitment and simply an expression of affection. The consequences of
the redenition 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
USs 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 authori-
tarianism 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
innitesimally 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
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# of people
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 pro-
vides 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 move-
ment 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 classication would serve a legitimate public purpose that
transcends the harm to the members of the disadvantaged class (Goodridge v. Dept.
of Public Health, 2003). Kurtzs 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 coun-
trys debt to evangelical Protestantism and fundamentalism. However, although
religious faith undoubtedly plays an important role in the US political process, the
Christian rights 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 rst sight appear.
Notes
1 The measure, then known as the Federal Marriage Amendment, also failed to secure passage in the
Senate (48 to 50 votes) in July 2004. A parallel version was passed by the House of Representatives in
both 2004 and 2006 but failed to gain the two-thirds majority required for Constitutional amendments.
2 John McCain, who is widely regarded as a 2008 presidential contender, was one of seven Republicans
in the Senate to vote against the Amendment.
3 Kurtzs account of the Scandinavian experience has been challenged. See Eskridge and Spedale
(2006). There is an overview of the arguments in Ashbee (2005).
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References
Ashbee, E. (2005), The Same-Sex Marriage Debate in the US and Representations of Scandinavia,
Journal of Transatlantic Studies 3(2), pp. 159177.
Associated Press (2003), Excerpt from Santorum Interview, USA Today, 23 April, available at: http://
www.usatoday.com/news/washington/2003-04-23-santorum-excerpt_x.htm, accessed 14 November
2006.
Belien, P. (2005), Dutch Minister not to Prevent Polygamy, Brussels Journal, 1 November, available at:
http://www.brusselsjournal.com/node/301, accessed 21 July 2006.
Boaz, D. (1997), Privatize Marriage: A Simple Solution to the Gay-Marriage Debate, Slate, 25 April,
available at: http://www.slate.com/id/2440/, accessed 13 July 2006.
Bowers, Attorney General of Georgia v. Hardwick et al. (1986), (85140) 478 US 186, available at:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers.html, accessed 21 July 2006.
CNN.com (2004), Election Results US President/National/Exit Poll, available at: http://www.cnn.com/
ELECTION/2004/pages/results/states/US/P/00/epolls.0.html, accessed 3 August 2006.
Commonwealth Coalition (2006), The Full Text of the Amendment, available at: http://www.votenova.org/
fulltext, accessed 6 February 2007.
Eskridge, W. (2000), No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling
Effect of Judicial Review, New York University Law Review 75, pp. 13271411.
Eskridge, W.N. and D.R. Spedale (2006), Gay Marriage: For Better or for Worse?: What Weve Learned from the
Evidence, Oxford: Oxford University Press.
Goodridge v. Dept. of Public Health (2003), 798 N.E.2d 941 (Mass. 2003), available at: http://1.ndlaw.com/
news.ndlaw.com/cnn/docs/conlaw/goodridge111803opn.pdf, accessed 3 August 2006.
Kurtz, S. (2001), The Ashcroft-Logger Alliance, National Review Online, 29 January, available at:
http://www.nationalreview.com/comment/comment012901c.shtml, accessed 3 August 2006.
Kurtz, S. (2003a), The Libertarian Question: Incest, Homosexuality, and Adultery, National Review Online,
April 30, available at: http://www.nationalreview.com/kurtz/kurtz043003.asp, accessed 5 August
2006.
Kurtz, S. (2003b), Beyond Gay Marriage: The Road to Polyamory, The Weekly Standard, 411
August, 8:45, available at: http://www.weeklystandard.com/Content/Public/Articles/000/000/002/
938xpsxy.asp, accessed 5 August 2006.
Kurtz, S. (2004), The End of Marriage in Scandinavia: The Conservative Case for Same-Sex Marriage
Collapses, The Weekly Standard, 9:20, 2 February, available at: http://www.weeklystandard.com/
Content/Public/Articles/000/000/003/660zypwj.asp, accessed 8 August 2006.
Kurtz, S. (2005), Here Come the Brides: Plural Marriage is Waiting in the Wings, The Weekly Standard, 26
December, 11:5, available at: http://www.weeklystandard.com/Content/Public/Articles/000/000/006/
494pqobc.asp, accessed 14 November 2006.
Kurtz, S. (2006a), Dissolving Marriage: If Everything is Marriage, then Nothing is, National Review Online,
3 February, available at: http://www.nationalreview.com/kurtz/kurtz200602030805.asp, accessed 13
September 2006.
Kurtz, S. (2006b), Big Love, from the Set, National Review Online, 13 March, available at: http://
www.nationalreview.com/kurtz/kurtz200603130805.asp, accessed 21 July 2006.
Lawrence v. Texas (2003), (02-102) 539 US 558, available at: http://caselaw.lp.ndlaw.com/scripts/
getcase.pl?court=US&vol=000&invol=02-102#dissent1, accessed 23 August 2006.
National Opinion Research Center (2007), General Social Surveys, 19722004 [Cumulative File], avail-
able at: http://sda.berkeley.edu/cgi-bin/hsda3, accessed 7 November 2006.
The Economist (2006), Back in Fashion: Big Love Dares to Speak its Name, The Economist, 30 November,
available at: http://www.economist.com/world/na/displaystory.cfm?story_id=E1_RPGQDVP, accessed
13 September 2006.
Wetzstein, C. (2005), The Marriage of Many, The Washington Times, 11 December, available at: http://
www.washingtontimes.com/specialreport/20051211-121113-7195r.htm, accessed 17 October 2006.
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