WASHINGTON, D.C. (June 27, 2015): Although little noted in news reports of the gay marriage decision, the Supreme Court’s same-sex marriage ruling, according to two different Justices as well as many legal experts, opens the door wide and could provide the legal basis for the legalization of plural marriages, and Politico is already calling for it to be used to achieve the full legalization of polygamy.
gay marriage vs polygamy
Indeed, the legal theory that marriage is a fundamental constitutional right – a liberty interest – could even require the legalization of incestuous marriages between consenting adults, especially same-sex unions – like those between a mother and adult daughter or between two adult brothers – where there is no legitimate concern about the risks of inbred offspring, says public interest law professor John Banzhaf.
Chief Justice John Roberts was very clear in his prediction on gay marriage: “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”
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Roberts’ opinion cites a recent decision which struck down the criminalization of cohabitation in a plural-wife arrangement in Utah, saying: “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman.”
It is also noteworthy that Justice Antonin Scalia, in his dissent in an earlier gay rights case, repeatedly compared laws prohibiting same sex marriage with those prohibiting polygamy and adult incest.
For example, he said “This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner-for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.”
Many find it hard to see how the gay marriage ruling can be limited to marriage between only two people. As Roberts pointedly noted: “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”
Politico has gone even further, calling for just such an expansion in a piece entitled “It’s Time to Legalize Polygamy.”
When the Chief Justice spells out a new legal theory in detail, and at least one other justice apparently shares his view, it’s hard to argue that the constitutional argument for plural marriage is frivolous, although it may not be right around the corner as Politico proposes, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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