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Article Excerpt
Drawing the Line
Senate Judiciary Committee Chairman Orrin Hatch told the Senate on Monday that same-sex couples should be able to live together like married people, should have insurance and estate benefits like married people, and should be able to visit and care for each other in hospitals like married people.
But Hatch, R-Utah, said he draws the line at actually declaring them married. "We ought to be able to solve those inadequacies in the law without changing a 5,000-year-plus definition of marriage," Hatch said.
--Deseret News, "Hatch Draws the Line," July 13, 2004
Before you gay-rights folks land on me with both feet, I would like to remind you that I have been supportive of your movement for many years. [...] I cannot support same-sex marriage, however, because it flies in the face of cultural and traditional family life as we have known it for centuries. And that's where I must draw the line.
--Ann Landers, Chicago Tribune, July 21, 1996
One of the curiosities of the gay marriage debate is the insistence that a single word, as opposed to the actual rights, privileges and benefits for which most advocates of gay marriage are aiming, should be the target of anxious proscription: "do not use that word for yourselves; we won't give it to you," seems to be the sentiment. Estranging the word with an adjective seems more unsettling than any civil protections could ever be (Orrin Hatch himself would recall the controversy that ensued when his own ancestors appended another adjective--"plural"--to "marriage"). The problem is not about word play, of course, and in what follows my aim is not to argue for any political position regarding gay rights, or what gay marriage should be called, but to examine a cluster of similar, though historically disparate, rhetorical treatments of non-normative marriage. My intention is not to reduce the problem of marriage to a question of the differentials of linguistic meaning, but to read those shifting and contingent meanings, and the impulse to draw lines and make sometimes vast cultural distinctions, as signs of more material disturbances that animate the need for comparatively empty and even redundant definitions, in law, of what "marriage" is. How or why is it imaginable that drawing a line at a word preserves the "sanctity" of what it refers to?
In the nineteenth century, in regard to what Mormons called "the Principle" of "plural" or "Celestial" marriage, and what the rest of the country called "polygamy," American anxiety was not over a word, but over the very existence of the practice within the nation's borders. The quoted phrase in my title is from Reynolds v. United States, the first anti-polygamy case to reach the U. S. Supreme Court. In its 1879 opinion, which ruled against practicing Mormon polygamist George Reynolds and his claims to freedom of religion, the court argued that the disestablishment clause of the first amendment deprived Congress of legislative power over religious opinion but was "left free to reach actions which were in violation of social duties or subversive of good order" (164). Unlike most other controversial 19th-century civil rights decisions made by the court (such as Dred Scott), Reynolds, which drew a line between "action" and belief, was not overruled in the twentieth. Sarah Barringer Gordon describes the effect of this ruling for monogamous Americans as reassuring them "that the marital structure they inhabited was indeed the very marrow of the Constitution, the highest expression of civilization, and the essential building block of democracy" (121-122). Punishing polygamists made others feel they were better, truer Americans in the country's exceptionalist project. The legacy of this decision is difficult to overestimate. In deciding that "the establishment and free exercise clauses would not protect local differences in domestic relation," the court initiated a dramatic change in how constitutional amendments were viewed: as a "positive vision of the moral limits on the American federal system [...] cloaked in a comforting layer of familiarity" (122). To assert this moral vision, the trial judge in the original case invoked the "innocent" women and children who were polygamy's victims, an invocation that Reynolds' lawyer, George Washington Biddle, asserted was unfairly prejudicial. The judge also stretched the meaning of "innocent," a word which is already its own legal baseline: the "victims of this delusion," he told the jury, "are pure-minded women and [...] innocent children--innocent in a sense even beyond the degree of the innocence of childhood itself" (qtd. in Firmage and Mangum 153). Biddle also argued that the Morrill Anti-Bigamy Act, which Congress passed in 1862, was unconstitutional because it violated Article 4, Section 3, which gave Congress "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Biddle argued that this article conferred "only the power to make 'needful' rules and regulations to protect the national interest, not the authority to intervene in local concerns" (Gordon 123).
Along with his citation of Dred Scott, Biddle's invocation of Article 4 posed a problem for his defense because it was the basis for the Missouri Compromise, which drew the Mason-Dixon line, above which slavery was proscribed. The Morrill Act was passed in the midst of the Civil War, in the aftermath of which sentiment in favor of defending local sovereignty over "person and property" was unpopular. Biddle argued that the state had a right to prohibit only that which was patently evil, and he cited the Ten Commandments as types of universal proscriptions that do not include polygamy. In the context of both biblical and constitutional codes, he argued, the government had abused its authority against the majority of a local population. The government's arguments drew upon a more humanist and secular (but arguably no less religious) argument about the dangerous effects of polygamy and the troubling potential consequences of permitting it. Should George Reynolds not be imprisoned, General Charles Devens argued, all kinds of religious atrocities would emerge in the territories: "'Hindu widows [would] hurl themselves on the funeral pyres of their husbands, East Islanders [...] expose their new-born babes, Thugs [...] commit gruesome murders,' all in the 'name of religion.'" Human sacrifice, he argued, was the logical consequence of the sacrifice of humanitarianism (Gordon 126, 127).
The government's lawyer drew the connections between Christian monogamous family structure, human rights and stable democracy by drawing the line at this explicitly foreign and implicitly murderous practice, whose foreignness was aligned with nonwestern barbarisms. As Gordon observes,
Polygamy thus marked the outer edge of a legal system riven by jurisdictional difference and transient populations. Preoccupation with rising divorce rates, abandonment, the relationship of marriage to political stability--all could be conveniently channeled into the condemnation of polygamy. By attacking plural marriage in Utah, one could pretend that the legal experience of husbands and wives in the rest of the country was more uniform--more monogamous--than it actually was. (Gordon 129-130)
Though Reynolds involved an outlawed marital practice, the opinion turned on a definition not of marriage but of religion. Chief Justice Morrison R. Waite wrote, "The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which [the disestablishment clause] was adopted." In order to draw the line against polygamy, the court turned to the historical context of the First Amendment, citing the preamble to the Virginia Act of 1785, which served as a model for the disestablishment clause, and which argued for the right of the state to interfere "'when principles break out into overt acts against peace and good order'" (qtd. in Gordon 132). Chief Justice Waite also quoted Thomas Jefferson in his "Letter to the Danbury Baptists" of 1802: "'the legislative powers of the government reach actions only, and not opinions'" (qtd. in Firmage and Mangrum 154). Most legal scholars agree that the action/belief line that Reynolds drew is a dubious one, since beliefs and actions are in many cases inseparable in the "free exercise" of religion. More pointedly, Orma Linford has argued that "the Court never quite explained why plural marriage was a threat to the public well-being" (341). According to Laurence Tribe, Reynolds was decided wrongly because it trammeled personal rights of privacy and religious expression for the benefit of amorphous social goals: no victims were produced, and moreover it was conceded that polygamous societies could indeed be well-ordered (in the case of the Mormons, exceedingly so). Instead, "the Court found subversions of the social order on the basis of a syllogism that polygamy meant patriarchy, which meant despotism" (Firmage and Mangrum 157).
If Reynolds crossed even more lines than it drew, later anti-polygamy legislation was even more corrosive of Mormon rights. The Edmunds Act of 1882 and the Edmunds-Tucker Act of 1887 disfranchised polygamists, took control of Utah's public school system, abolished female suffrage and the Mormon territorial militia, and disincorporated the Mormon church, escheating most of its properties to the United States. (Mormon women's suffrage was proof, Mormons argued, that polygamy was not slavery, though it was...
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