The Supreme Court’s decision in June that legalized same-sex marriage across the country has unleashed a renewed debate over polygamy, leaving some to wonder why marriage should be considered between just two persons.
The first legal challenge involving polygamy came last week after a man from Montana said the Supreme Court’s decision inspired him to apply for a marriage license so he can legally marry a second woman. Nathan Collier, who was featured on the reality television show “Sister Wives,” said he will sue the state if it denies him the right to enter into a plural marriage.
“It’s about marriage equality,” Collier told the Associated Press. “You can’t have this without polygamy.” A county civil litigator Kevin Gillen said he was reviewing Montana’s bigamy laws and expected to send a formal response to Collier by this week.
Chief Justice John G. Roberts’s dissenting opinion raised the question of whether the court’s rationale could be used to legalize plural marriage down the road.
“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,” Roberts wrote. “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.”
Some are now using Roberts’s arguments to revisit the idea of legalized polygamy.
“It’s time to legalize polygamy,” writer Fredrik Deboer declared on the day of the Supreme Court’s decision, arguing that “the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need.” His essay provoked a series of responses, including one from Brookings Institute’s Jonathan Rauch, who defends gay marriage but not polygamy. “It’s no coincidence that almost no liberal democracy allows polygamy,” Rauch wrote.
Jonathan Turley, a law professor at George Washington University, wrotethat the rationale behind the Supreme Court’s decision could cause some to reconsider polyamorous families, in which more than two people are in a marriage-like union. In an opinion piece for The Washington Post, Turley pointed to what he described as Supreme Court Justice Anthony M. Kennedy’s finding of “a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the ‘dignity’ of marriage.”
“What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, ‘the highest ideals of love, fidelity, devotion, sacrifice, and family’?” Turley wrote. “The justice does not specify.”
Kennedy wrote in the majority opinion that the discrimination against same-sex couples is unconstitutional because it’s linked to prejudice. On the other hand, Ilya Somin, a law professor at George Mason University School of Law, said it’s difficult to identify the sort of prejudice against polygamous families that Kennedy cited as motivating unconstitutional prohibitions against same-sex marriage.
“With polygamy, it’s much tougher to find a group that would be sympathetic to the public where this group would suffer greatly if we didn’t have polygamy available,” Somin said. “The road to success for polygamy will be a much tougher one than same-sex marriage.”
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