University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1997 Polygamy and Same-Sex Marriage David L. Chambers University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/88 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Family Law Commons, Fourteenth Amendment Commons, Legislation Commons, and the Sexuality and the Law Commons Recommended Citation Chambers, David L. "Polygamy and Same-Sex Marriage." Hofstra L. Rev. 26, no. 1 (1997): 53-83. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. POLYGAMY AND SAME-SEX MARRIAGE David L. Chambers* I. INTRODUCTION In the American federal system, state governments bear the responsibility for enacting the laws that define the persons who are permitted to marry. The federal government, throughout our history, has accepted these definitions and built upon them, fixing legal consequences for those who validly marry under state law. Only twice in American history has Congress intervened to reject the determinations that states might make about who can marry. The first occasion was in the late nineteenth century when Congress enacted a series of statutes aimed at the Mormon Church, prohibiting polygamy in the Western territories and punishing the Church and those within it who entered into polygamous marriages. The more recent occasion was just last year. In the summer of 1996, Congress adopted the Defense of Marriage Act, which provides that, regardless of state laws, all acts of Congress referring to married persons shall be read as applying only to persons married to a person of the opposite sex. During the hearings and debates that led to the Defense of Marriage Act, many members of Congress and many witnesses drew comparisons between polygamy and same-sex marriage. Most of the comparisons were shallow and sarcastic, but, taken as a group, they offer interesting insights into conceptions of marriage and family in this country. They also prompted me, an advocate of same-sex marriage, to examine the history of governmental response to polygamy in the United States and to compare that experience with the current experience of lesbians and * Wade H. McCree, Jr., Collegiate Professor, University of Michigan Law School. An earlier form of this Article was delivered as the Sidney and Walter Siben Distinguished Professorship Lecture at Hofstra University School of Law in March 1997. The Author is grateful for the com- ments of John DeWitt Gregory, William Rubenstein, and Jane Schacter. HeinOnline -- 26 Hofstra L. Rev. 53 1997-1998 HOFSTRA LA W RE VIEW [Vol. 26:53 gay men in their efforts to establish a legal right to marry persons of the same sex. The brutal response to Mormon polygamy offers sobering warnings to those of us who would tinker with mainstream Americans' conception of marriage. At the same time, it is not mainstream Americans alone who need to become more comfortable with difference. In the United States, polygamy has been regarded with hostility by the right, the middle, and the left--today and in the past. One of the lessons to be derived from exploring the history of reactions to Mormon polygamy is that all of us, including those of us who favor same-sex marriage, find difference threatening, and that all of us, including those who favor same-sex marriage, need to work harder to understand those who are different from US. II. POLYGAMY IN THE DEBATES OVER TE DEFENSE OF MARRIAGE ACT In May of 1993, the Supreme Court of Hawaii held that its law limiting marriage to opposite-sex couples was presumptively unconstitu- tional under the Hawaii constitution's equal protection clause when taken together with another constitutional provision prohibiting discrimination on the basis of sex.' The Supreme Court gave the State an opportunity to demonstrate to a lower court that it had compelling reasons of policy for limiting marriage to opposite-sex couples.2 After much delay at the State's request, a hearing was held in the lower court. In December 1996, the trial court, unpersuaded by the State's asserted reasons, held that the Hawaii constitution compels that same-sex couples be permitted to marry on the same terms as opposite-sex couples The case is now back before the Hawaii Supreme Court.4 The decisions of the Hawaii courts produced a lively public debate and a virulent political reaction both in Hawaii and in the rest of the country.' In Hawaii itself, the legislature voted to submit to the state's 1. See Baebr v. Lewin, 852 P.2d 44, 67 (Haw. 1993). 2. See id. at 68. 3. See Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235, at *20-22 (Haw. Cir. Ct. Dec. 3, 1996). 4. The case is currently docketed as No. 20371 before the Hawaii Supreme Court. 5. See 142 CoNG. REC. H7480 (daily ed. July 12, 1996); 142 CoNG. REC. H7441 (daily ed. July 11, 1996). Showing his emotion over the subject, a member of the House of Representatives stated: "The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit." 142 CoNG. REc. H7482 (daily ed. July 12, 1996) (statement of Rep. HeinOnline -- 26 Hofstra L. Rev. 54 1997-1998 19971 POLYGAMY AND SAME-SEXAfARRIAGE voters a constitutional amendment that would permit the legislature to limit marriage to opposite-sex couples.6 Nearly twenty other states also enacted legislation in direct response to the Hawaii decisions. Many declare that in their state, marriage is limited to one man and one woman, and all declare that their state will not recognize a marriage between two people of the same sex even when validly conducted in another state.' Even Congress has expressed itself. In the summer of 1996, at the height of election fever, each chamber passed, by overwhelming margins, a bill that Congress called the Defense of Marriage Act8 ("DOMA"). DOMA has two substantive sections. One declares that states need not recognize a same-sex marriage conducted in another state. The other declares that all federal statutes and regulations that refer to married persons or spouses shall be read as applying to persons in opposite-sex relationships only. The intended effect of the two provisions is to leave a gay couple married in Hawaii both at the mercy of other states and, uniquely among persons legally married in the United States, without federal government recognition of their relationship. The title of the Act, the Defense of Marriage Act, is revealing. Since the bill deals solely with same-sex marriage, the title is intended to convey that gay marriage is a threat to the entire institution of marriage, and many of those who favored the bill appeared to believe that it was. Gary Bauer, the President of the Family Research Council, testifying in support of DOMA before the Senate Judiciary Committee stated, "We are being asked to restructure our entire sexual morality and social system to embrace a concept that has never been accepted anywhere in the world Barr). Following Rep. Barr's comments crucifying the same-sex marriage movement, another Representative responded: "The factors that erode marriages, the factors that lead to divorce, the factors that lead to abandonment and spousal abuse, none of them have ever been attributed to, in any significant degree, same-sex marriage." Id (statement of Rep. Frank). The Hawaii legislature reacted by amending its marriage statute to expressly provide that it would not apply to same-sex marriages and challenged the court's authority to rule on a policy question such as this. See Act of June 22, 1994, No. 217, 1994 Haw. Sess. Laws 526, 530-31 ("The legislature finds that Hawaii's marriage licensing statutes, both as originally enacted and at present, are intended to apply only to male-female couples, not same-sex couples.... [and it] is a policy question within the exclusive purview of [the legislature]."). 6. It also voted to extend to long-term couples who were not married some of the benefits of marriage. See H.B. 117, 19th Leg. (Haw. 1997). 7. See, e.g., ALASKA STAT. § 25.05.013 (Michie Supp. 1996); ARiz. REv. STAT. ANN. § 25-112 (West 1991 & Supp. 1997); GA. CODE ANN. § 19-3-3.1 (Supp. 1997); 750 ILL. COMP. STAT. ANN. § 5/216 (,Vest 1993); VA. CODE ANN. § 20-45.2 (Michie Supp. 1997). 8. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (to be codified at 28 U.S.C. § 1738C and I U.S.C § 7). HeinOnline -- 26 Hofstra L. Rev. 55 1997-1998 HOFSTRA LAW REVIEW [V/ol. 26:53 by any major culture.... [M]arriage is a unique bonding of the two sexes .... It is the core of civilization."9 He believed that Congress needed to protect civilization by excluding gay people from the benefits of marriage. Another witness, Dennis Prager, a conservative commenta- tor, was more direct: "At stake is our civilization."'" And Jesse Helms, on the floor of the Senate, cried out, "[A]t the heart of this debate is the moral and spiritual survival of this Nation."'" In the legislative hearings and debates on DOMA, the subject of polygamy arose often in two quite different contexts.