SCOTUS, Same Sex Marriage, and Polygamy

The US Supreme Court’s recent decision mandating that all states must recognize the legal validity of same-sex marriage has opened a debate as to whether the legal reasoning on which the decision is based must lead to the recognition of polygamy. What some had perceived as a mere bogeyman for the right-wing argument that recognition of gay marriage is a slippery slope that would surely one day lead to legal marriage between humans and canines, in the face of the Court’s argument that marriage is a fundamental right to which no citizen may be deprived, it turns out to be a serious question that must be addressed.

(There is a flaw in the Court’s reasoning, in that it has dismissed the fact that the only reason that the state has any legitimate interest in marriage is the possible effects that heterosexual coupling will have by bringing new human being into the world. It is for that reason that laws against adultery and pre-marital sex existed in the first place giving the state a role in the licensing of marriage. For this article, however, we shall set aside any criticism of the Court’s reasoning for another time. The question is now, given the Court’s reasoning, must polygamy be recognized?)

Most of the discussion has focused on the question as to whether polyamory (the desire for multiple sexual partners) is “hard-wired” into some people as the court has concluded that homophilia is “hard-wired” into gay men and women, as opposed to being a “life-choice” (as for example, a bisexual person who chooses a gay lifestyle). In other words, some argue, just as a gay person could never be happy in a marriage with a person of the opposite sex, so a poly-amorous person could not be happy with only one spouse. Furthermore, does not this ruling include also bisexuals right to marry? Why should a bisexual be limited to marry either a person of the same sex or a person of the opposite sex? By the reasoning behind the Supreme Court’s ruling, should s/he not be allowed to have both a husband and a wife?

As interesting as such a debate may be, it really misses both the main point of the Court’s decision as well as the main reason for the permissibility (albeit couched with caveats and restrictions) of polygyny in  Islamic law. These discussions over whether some men must have multiple wives in order to be happy might titillate the reader, but the Qur’an offers no such argument in favor of polygyny. Polygyny is (reluctantly) permitted for one reason and one reason only: to address the question of how women and orphans can be guaranteed a right to a family in a society in which women outnumber men (historically, most societies). A verse revealed after warfare had created an abundance of widows and orphans in the nascent Muslim community of Medina states, “And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess [i.e. widowed captives of war who would be freed by their marriage]; this is more proper, that you may not deviate from the right course” (4:3).

We find ourselves in a similar situation today in the United States. We have all heard the complaint of older single women that all the good men “are either gay or already married.” It’s no joke. According to the Census Bureau, “[f]or every 100 unmarried women there are 88 unmarried men.”  And that’s just the tip of the iceberg.  For women over forty there are only 60 unmarried men over forty for every 100 unmarried women. Excluding the estimated 10%  gay population from the pool, the last ratio drops to 55 unmarried straight men over forty for every 100 unmarried straight women over forty.  Unless polygyny is legalized, it is just a matter  of mathematics that almost half of the women over forty will be denied the fundamental right to marriage recently discovered by the Supreme Court. This is not just an abstract moral question. There is a practical social problem at issue.

The bottom line is that if the right to marry is a fundamental human right which the state must recognize to the point where gay men and women must be licensed to marry one another, then on what grounds dare the state deny the right of heterosexual women to marry a man already married (with the consent of his existing spouse)? This question is not merely hypothetical. One affected couple has already stated its intention of suing the state of Montana for refusing to recognize their marriage. Will the Supreme Court deny Christine her right to be married to the man she loves just because he’s already married to Victoria? Even though Victoria wants Christine to be her co-wife? We eagerly watch to see if the Court really meant what it said.

Imad-ad-Dean Ahmad, Ph.D., and Eva Forslund
Minaret of Freedom Institute






One response to “SCOTUS, Same Sex Marriage, and Polygamy”

  1. […] or not one supports the SCOTUS’ gay marriage ruling (which should apply to polygamous marriages), one should understand Reza Aslan and Hassan Minhaj’s arguments for embracing the rights […]

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