Same-Sex (Monogamous) Marriage v. Polygamy: Macedo’s Incomplete Sex Equality Analysis

Abstract

In this essay, in the form of a review of Professor Stephen Macedo’s book, Just Married, I offer a sex equality critique of the underlying principles of the Obergefell v. Hodges decision about sex and marriage. Specifically, I use the example of polygamy, raised both in the Obergefell opinion and by Professor Macedo, to critique the assumptions about monogamous marriage that underlie the majority opinion. I explore what these assumptions reveal and conceal about sex inequality for straight and gay people. Are heterosexuality’s (read: patriarchy’s) privileges of privatized violence, economic inequality, and sexual aggression simply extended, with impunity supplied by state sanction, into gay relationships, cloaked, as they now are after Obergefell, in privacy and the romanticism of the family ideal? Obergefell, as did its precursor Lawrence v. Texas, proceeds from an assumption of sexual equality, especially in marriage, which is taken as the paradigm of consent in the heterosexual model. Why is it that proponents of marriage, generally, including of same-sex marriage, are better able to see sexual inequality in the context of a polygamous marriage but rarely acknowledge it, or acknowledge it only as exceptional, in the context of monogamous marriage? Why is the kind of scrutiny with which we approach ideas of sexual agency, emotional and physical well-being, and consent in the context of polygamy by and large absent from any mainstream academic discussion of marriage per se? In this essay, I explore and answer these questions.

Keywords: Obergefell, sex equality, same sex marriage