In defense of marriage: why same-sex marriage will not lead us down a slippery slope toward the legalization of polygamy.

I. INTRODUCTION

Shortly after 9:00 a.m. on May 17, 2004, the town of Cambridge, Massachusetts recorded the nation's first legal same-sex marriage. (1) The couple, Marcia Kadish and Tanya McCloskey, had been together for eighteen years. (2)

On that same day, President George W. Bush reaffirmed his disapproval of same-sex marriage and, once again, asked for a constitutional amendment defining marriage as between a man and a woman. (3) State legislators quickly reacted, and, as of the inception of this Article, nineteen states incorporated a ban on gay marriage in their state constitutions. (4) In the following weeks, the gay-marriage conundrum dominated the media, political debates, and academic discussions throughout the nation.

Although the question of whether the nation should recognize same-sex marriage is not novel, (5) the Massachusetts Supreme Court's landmark decision of Goodridge v. Department of Public Health (6) rekindled the debate in recent years. The plaintiffs, fourteen individuals varying from therapists to lawyers, each attempted to obtain a marriage license in March and April of 2001. (7) State officials either denied or refused to accept the applications on the ground that Massachusetts does not recognize same-sex marriage. (8) The couples filed suit in April of that same year, alleging that restricting marriage to opposite-sex couples violated the Massachusetts Constitution's Due Process and Equal Protection Clauses. (9)

The lower court dismissed the plaintiffs' claim, concluding, "[P]rohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the 'primary purpose' of marriage, 'procreation.'" (10) In a decision that shocked the nation, the Massachusetts Supreme Court rejected this argument, holding that the state had not presented any convincing grounds for prohibiting gay marriage, and "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." (11)

Unsurprisingly, the decision ignited fierce debates throughout the nation. With Goodridge, Massachusetts had become the first state in the union to legalize same-sex marriage. While gay rights advocates heralded Goodridge as a catalyst for further decisions in support of same-sex marriage, opponents argued that it impaired the "sanctity of marriage." These critics defined marriage as strictly between a man and a woman because it was the "favorable setting for procreation" and the "optimal setting for child rearing." (12) They argued that legalizing gay marriage would open the floodgates for other prohibited forms of marriage, ultimately leading us down a slippery slope toward polygamous marriages. According to conservatives, if the state could not be justified in prohibiting same-sex couples from legally obtaining a marriage license, there would no longer be a basis to preclude polygamous couples also seeking legal recognition.

This Article contends that same-sex marriage and polygamy are distinguishable. Historically, polygamous marriages in America have been replete with social dangers, not present in same-sex unions. In Part II, the Article will examine the history and development of views regarding marriage and sexuality, beginning with early Christian philosophies, and then exploring the role of these theological roots in contemporary American marital law. Part III will set forth the history of the Mormons in the United States, and the role of polygamy in their culture. Part IV surveys commonly-cited legal rationales for banning same-sex marriage, and scrutinizes the arguments under the Equal Protection and Due Process clauses. Part V evaluates the contention that permitting gay marriage will open the floodgates to the legalization of polygamy, and concludes that this concern has no merit because the State has legitimate and independent public policy concerns that would justify the continued prohibition of polygamy.

II. HISTORY AND DEVELOPMENT OF MARRIAGE

A. Early Christian Views Regarding Marriage & Sexuality

The development of the legal concept of marriage in the United States has its heritage in English ecclesiastical courts. (13) To understand the religious roots of marriage, it is necessary to examine the philosophies of early Christian theologians, as their beliefs on sex, homosexuality, and marriage ultimately influenced American family law.

1. Augustine, Jerome, and the Fourth Century

St. Augustine of Hippo, one of the most influential Christian theologians, had an inherent hostility toward sex and believed that one should engage in sex only within the marital union and solely for the sake of procreation. (14) Augustine developed his beliefs during the time he spent as a follower of the Manichaean religion, an unpopular Christian subset founded in the Third Century. (15) The Manichees believed that the universe was a constant struggle between light and dark, and, in order to reach salvation, man had to release the light imprisoned within his being. (16) Followers rejected procreation and marriage because they believed both would ultimately lead mankind toward darkness. (17)

Stoic philosophy and Gnostic thought, which gained popularity during the Fourth Century, also heavily influenced Augustine's views. (18) Gnostics promoted celibacy, because they believed that the "pleasures of the flesh were evil" (19) and that the fall of humankind could be traced to sexual intercourse. (20) They preached that "[o]nly a cessation of sexual activity in the world [could] bring about life without death; thus[,] so long as humans continue to marry and copulate, [the] species will be imprisoned in evil and sick unto death." (21)

Stoic philosophers encouraged man to strive for celibacy, and argued that sex and sensuality blocked out reason. (22) However, the Stoics conceded that the average person could not overcome sexual desires, and thus permitted sexual relations for the unenlightened, but only within the marital relationship and for the purpose of procreation. (23)

Augustine drew from these ideologies and ultimately regarded marriage as positive only to the extent that it restrained man's sexual desires and produced offspring. (24) Celibacy and virginity were still preferred, but marriage was almost a necessary evil to assist those who could not abstain. (25) Even within the marital confine, Augustine considered sex that could not result in procreation as sinful. (26) Because of his views on sex, Augustine advocated lifetime marriages and insisted that remarriage become unavailable for divorced persons. (27) Persuaded by his teachings, in 407 A.D., the Council of Carthage ultimately disallowed remarriage for divorced Christians. (28)

Similar to Augustine, St. Jerome (29) advocated celibacy because he believed that sex was a human weakness. Jerome tolerated marriage only as a refuge for the undisciplined, but cautioned that even married couples should engage in sex minimally and, again, solely for procreation. (30)

2. Christian Moral Literature From the Sixth Through Eleventh Centuries

Starting at the end of the Sixth Century, the pervasiveness of moral literature influenced Catholic sexual and marital doctrines. (31) During this time, religious leaders created handbooks detailing penances for various sins as guides for priests hearing confessions. (32) The literature characterized sex as sinful, and forbade sex outside of the marital relationship. (33) It permitted only vaginal sex in the missionary position, (34) and encouraged couples to have sexual relations in the dark, while partially clothed. (35) The penitentials listed masturbation, oral sex, and homosexuality as grave sins because they indulged in sex for pleasure and not procreation. (36) The handbooks, later used as legal manuals, eventually "infiltrated collections of canon law" and became canonical authorities. (37)

3. Gratian, Canon Law, and the Twelfth Through Thirteenth Century

Modern canon law emerged during the Twelfth Century. In the earlier part of the Twelfth Century, Gratian, a canonical jurist, developed a textbook on canon law entitled A Harmony of Conflicting Canons (Concordia Dicordantium Canonum). (38) The book became a foundation for canon law and "the first comprehensive and systematic legal treatise in the history of the West." (39) According to the text, marriage could only be justified if it fit within the doctrines of natural law. (40) Gratian preached that the natural outcome of a heterosexual union was the conception of a child, making procreation the purpose of the marital relationship. (41) Sexual acts that could not beget children were unnatural uses of the sexual organs, and were sinful because they contradicted natural law. (42)

Other canons produced during this time similarly proscribed oral sex and sodomy as grave sins. (43) Peter Lombard, a renowned Catholic theologian, developed a canon defining all non-procreative sex as a crime against nature. (44) To Lombard, sodomy was the ultimate sin, as incest and adultery at least had the potential of resulting in offspring. (45)

St. Thomas Aquinas, perhaps the most influential natural law theorist during this time, believed that sex was necessary to preserve the human race. (46) Unlike the theologians of the Fourth Century, Aquinas taught that sex, if engaged in for the purpose of procreation, was good and natural. (47) However, other acts of sex were unnatural and crimes against natural law. In his Summa Theologica, Aquinas ranked sexual acts in order from least to most sinful, placing sodomy and all forms of homosexual sex second only to bestiality. (48) He considered homosexual sex to be more sinful than violent rape, because the former was a crime against nature and Divine Law, while the latter was merely a sin against the individual. (49)

Aquinas' teaching and the canon law of this era became extremely influential in the development of Anglo-American legal doctrines. It is thus unsurprising to discover that modern law remains stubbornly opposed to same-sex marriage and the concept of a legally-recognized sexual same-sex union.

4. The Fourteenth Through Early Twentieth Century

In the late Fourteenth Century, the church became more authoritative in legal matters pertaining to family law. (50) By the Fifteenth Century, ecclesiastical courts of the Roman Catholic Church presided over the granting of annulments, which they bestowed only to "those who could prove that their present marriage was invalid by canonical standards." (51)

By the Sixteenth Century, Protestant reformers had gained popularity in England. (52) Although the reformers no longer viewed marriage as a sacrament in the Roman Catholic sense, they continued to believe that God instituted marriage. (53) They encouraged the church to allow civil governments to preside over marital matters, but preached that the government was morally obligated to comply with the laws of nature in creating legislation. (54)

In 1857, matrimonial cases were officially transferred from English ecclesiastical courts to civil courts. (55) The practice of law in the colonies, and eventually the law of the United States, has its roots in these English civil courts. (56) The courts were non-secular, but much of their "practices, definitions, prohibitions, [and] structures" had their heritage in English ecclesiastical law. (57)

Canon law roots are visible in many early American marital laws. For example, prior to the popularization of no-fault divorces, early American courts recognized the canonical defenses of "recrimination, condonation, connivance, provocation, and collusion" as defenses to an action for divorce. (58) Sodomy, the act of oral or anal sexual intercourse, remained a crime in many states until the landmark Lawrence v. Texas (59) decision in 2003. Now, in the Twenty-First Century, the United States has experienced a wave of legislation prohibiting same-sex marriage, rationalized by states as necessary to protect the sanctity of marriage and the interest in procreation.

III. POLYGAMY

Various cultures throughout the world recognize and endorse polygamy, the practice of having more than one spouse simultaneously. In the United States, polygamy is officially illegal, but there are certain subsets of religious groups throughout the nation that still engage in this practice. The most notorious and extensive endorsement of polygamy in the United States occurred in the Nineteenth Century by members of the Mormon Church. In contemporary society, a few splinter groups of Mormon fundamentalists, residing primarily in Utah and Arizona, continue to practice polygamy despite its illegality.

A. The Mormons in the United States

In 1830, Joseph Smith founded the Mormon Church, otherwise known as the Church of Jesus Christ of Latter-day Saints, in a small town in upstate New York. (60) According to Mormon scripture, Joseph had a vision at the age of fourteen while praying in the woods behind his home. (61) He testified that Jesus and God appeared to him, and told him not to join any …