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The Confederate Lawyer
May 20, 2008

Marriage and Polygamy
by Charles G. Mills

The California Supreme Court has held that the state of California may not constitutionally deny the name "marriage" to same-sex unions as long as the state applies the term to marriages of opposite-sex couples.

Meanwhile, certain Fundamentalist Mormons (with the help of elements in the Mormon and non-Mormon mainstream press) are waging a public relations war. Their goal is to depict the polygamist wives in Texas who had their children taken away by the authorities as no different from conservative Christians who homeschool their children.

These two seemingly unrelated events are actually intertwined.  Every victory for same-sex "marriage" helps the polygamist cause, and every polygamist victory helps the same-sex "marriage" cause. Marriage is between two people because it is between a man and a woman. Marriage is between a man and a woman because there are two complementary sexes. Denial of either of these facts lays the groundwork for denial of both of them.

Advocates of same-sex "marriage" advance two main arguments. First, marriage is a fundamental right that should not be denied to homosexuals. Second, to deny marriage to homosexuals constitutes discrimination. The California Supreme Court agreed with both of these arguments.

The historical argument for polygamy has been based on freedom of religion. This argument has failed so often and for so long that it will probably never be used again. Instead, new arguments will probably assert a fundamental right to marry the people of one's choice. Additionally, to allow a divorced person to marry, but not an estranged but undivorced one, is discriminatory; to deny marriage to people who cannot be satisfied with one spouse is similarly discriminatory. Each of these arguments finds support in the California decision.

The meaning of polygamy is also changing. Polygamy traditionally has been understood to mean marriages of one man to more than one woman. Polygamy between the Civil War and the sexual revolution of the 1960s was associated with religious fanaticism, but it does not have to have this association. Three-way sex is now out in the open. If homosexuals are now to be treated by the law as a normal but persecuted, why not think of polygamy, not as a phenomenon of religious fanatics but as a phenomenon of the sexually "liberated"? Why not think of marriage as a group marriage in which the husband and all his wives are all married to each other? Viewed this way, polygamy becomes a sort of same-sex marriage, both a precedent for other kinds of same-sex marriage and a corollary to the legalization of same-sex marriage.

One must also wonder if the logic of the California court has not risked making bisexual people victims of discrimination, since they cannot marry the husband and wife of their choice.

In pre-Christian Hawaii, both men and women could have multiple spouses. This situation led to complex relations based not only on one's spouses but also on the other spouses of one's spouses. That kind of situation is the logical consequence of the California onion.

The California court said that it is not necessary to use the word "marriage" as long as the state uses exactly the same word to describe a real marriage and a same-sex "marriage." This is the key to the problem. The California court does not believe that the word "marriage" has a real meaning. If one ceases to believe in marriage, one ceases to have a logical basis for defining it. The result will be a social disaster because marriage creates families and families are the building blocks of society.

Our struggle against polygamy and same-sex "marriage" is one united struggle. If we do not insist that marriage is always between one man and one woman, or if we compromise even slightly, we invite consequences we can only guess at and a social disaster.

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The Confederate Lawyer is copyright © 2008 by the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

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