The Democratic Party is so freaked out over the decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade that it accidentally voted to legalize polygamy.
To review, the Dobbs majority opinion, written by Justice Samuel Alito, makes it very clear that the court’s holding does not touch other decisions dependent on the 14th Amendment’s protection of unenumerated rights.
“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely,” Alito wrote, “is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life.’ … None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. … Our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
Despite this crystal-clear assurance, many Democrats are insisting that the court’s ruling in Dobbs makes other Supreme Court decisions based on the 14th Amendment vulnerable, including Obergefell v. Hobbs, which created a right to same-sex marriage, and even Loving v. Virginia, which legalized interracial marriage.
While Justice Clarence Thomas did say in his concurrence that he would revisit Obergefell and Griswold v. Connecticut, the first case to find that the 14th Amendment protected a married couple’s right to use contraceptives, no other justice signed his opinion. If a case challenging Obergefell ever made it to this court, and there is no reason a case would ever make it that far, it would lose 8-1.
Despite all these facts, Democrats in Congress felt the need to vote on a “Respect for Marriage Act,” which they pitched as legislation that would protect “the hard-earned gains of the Equality movement.”
The problem is the actual text of the legislation did a little bit more than that. As Heritage Foundation Senior Fellow Roger Severino noted, the way the bill is written would make polygamy legal nationwide as soon as just one state legalized it.
“For the purposes of any Federal law, rule, or regulation in which marital status is a factor,” the bill reads, “an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered in to.”
This means that if California were to legalize polygamy, then every state of the union would also have to recognize polygamous marriages formed in California.
Is the possibility of a state legalizing polygamy far-fetched? No more far-fetched than the Supreme Court overturning Obergefell. In fact, support for legalizing polygamy has risen in recent years from a low of 5% in 2006 to a high of 20% today. And support for polygamy is strongest among the Democratic Party, particularly younger Democrats who are the future of the party.
Who knows? Maybe a decade from now, Democratic efforts to legalize polygamy won’t be so accidental.