Now that a federal judge in Massachusetts has ruled part of the Defense of Marriage Act unconstitutional, the religious right is playing a new card in its deck to try to stave off the march toward marriage equality for gays and lesbians: alleging that privileging heterosexual marriage is a requirement of statehood.
The argument is made by Brian Raum, a lawyer for the Alliance Defense Fund:
“Marriage has always been defined as one man and one woman by the federal government,” continued Raum. “In fact, it was a condition of statehood that marriage be defined as one man and one woman during the polygamy battle in the 19th Century. ADF will continue to defend marriage at the state and federal level.” (Emphasis theirs.)
This seems to be the new talking point for anti-marriage equality groups. Focus on the Family’s Citizen Link mentions it noting that: “The federal government settled the issue of marriage in the late 19th century when it refused to recognize polygamy as a condition of statehood.”
National Organization for Marriage head Maggie Gallagher also makes mention saying: “The simple fact is that the right of the federal government to define marriage for the purposes of its federal law and federal territories has been clear since the late 19th century, when Congress banned polygamy.”
First, it’s clear that the ADF is still using the old scare tactic of “gay marriage leads inevitably to polygamy,” which is absurd on its face, since no one is trying to allow a man or a woman to marry multiple men or women. Gays and lesbians are fighting for monogamous marriages, and no one is advocating for a return to polygamy. If gays and lesbians were fighting for polygamous relationships, then, Baum could have a point.
Second, is it true that “it was a condition of statehood” that marriage be defined as one man and one woman? Not entirely.
Both NOM and Citizen Link are a bit more honest in their assessment than Baum at ADF. History reveals that Congress did, indeed outlaw polygamy in the 19th century. The Morrill Anti-Bigamy Law of 1862 was signed by President Lincoln and did several things:
– First basic federal legislation by the Congress of the United States that was designed “to punish and prevent the practice of polygamy in the Territories of the United States”.
– Bigamy punishable by a $500 fine and imprisonment not exceeding five years.
– All acts passed by the Legislative Assembly of the Territory of Utah “pertaining to polygamy and spiritual marriage” were annulled.
What it did not do, however, was make the requirement of marriage being defined as one man and one woman as a condition for statehood for all states. How could it, since 34 states had already been admitted to the union before the law was enacted? None of them, by law, had to expressly outlaw polygamy to gain entrance to the union.
The Morrill Act was passed to prevent Utah from becoming a state without first renouncing polygamy, which was still endorsed and practiced by the Church of Jesus Christ of Latter Day Saints (Mormons), which made up the majority of the population in that territory. What Congress was trying to do was outlaw polygamy, not write a law to normalize heterosexual monogamous marriage, or enact some “litmus test” for statehood. That was not the point.
In addition to the Morrill Act, other key developments include the U.S. Supreme Court’s decision in Reynolds v. the United States in 1879 and the Edmunds Act of 1882, which made polygamy a felony by federal statute and revoked polygamists’ right to vote. Again, these moves, especially the decision in Reynolds, were mainly concerned with whether polygamy could be protected as a religious exercise, not a decision on defining marriage once and for all, or making it a requirement of statehood.
All of this wrangling over polygamy had the desired effect and Utah rewrote its constitution to exclude polygamy “forever.” Utah finally won statehood in 1896, after six unsuccessful attempts over 47 years.
The bottom line here is that the anti-marriage gang is up to its old tricks, trying to conflate polygamy and marriage equality to create fear and loathing of gays and lesbians. This talking point has an added twist, insinuating that any state that legalizes gay marriage could somehow be kicked out of the union because they have violated some federal law defining marriage as a requirement for statehood. Such a “litmus test” does not exist.
So far, all of the fear-based arguments against marriage equality have been losers. If there is any justice, this shameless twisting of history will meet with the same fate.
