"President
Obama now says that it is important for him to affirm that same-sex
couples should be able to get married. As such, for him, 'marriage' is
now nothing more than a union between any two consenting adults. So,
then, what is the President’s position on polygamy? Is it 'evolving,'as
well?
If so, why is the number 'two' sacred? If 'consent' between 'adults' is
the key, what’s wrong with consensual polygamy?" -- John Donald O'Shea, May '12, "Is polygamy a constitutional right?"
The U.S. Supreme Court in Obergeffell v. Hodges
(2015) has now held that two people of the same sex have a
constitutional right to marry. Do you see any problems with that
holding? Risks?
If fundamental liberty requires that any two (competent) consenting individuals must be allowed to marry, how can there be a bar to the marriage of three -- or more -- (competent) consenting adults?
What constitutional principle demands that any two consenting adults must be allowed to marry, while at the same time denying the same fundamental liberty to three or more consenting adults?
If the sex of the partners is irrelevant, and if all that is required of the two people is their consent, how can three or four — or more — consenting adults be barred from practicing polygamy?
Justice Anthony Kennedy, writing for the majority in Obergeffell, largely ignores those questions.
Chief Justice John Roberts, in dissent, however, squarely addresses the polygamy (plural marriage) question, with emphasis on the “historical aspect of marriage being between a man and a woman for over a 1,000 years.”
“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.
“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.
“If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
The chief justice then examined the majority’s justifications for same-sex marriage, and shows they would also justify polygamy.
“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 ‘there 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?”
So if two consenting adults have a constitutional right to marry, why not three? Is two more sacred than three? More constitutional? If the states can’t constitutionally define marriages as being “between a man and a woman,” what constitutional principle would allow same-sex marriage, but bar polygamy? Is the harem now legal in America?
Justice Kennedy, speaking for the majority, also gives a fourth justification: “With respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
But to say there is no risk of harm to third parties is absurd. Already a baker in Oregon has been assessed $135,000 in damages for failing to cater a same-sex marriage. If that verdict stands, Justice Kennedy’s assertion that the right of two consenting adults poses “no risk of harm to third parties,” comes from five judges wearing blinders.
Nor does Justice Kennedy fear for the First Amendment religious rights of people opposed to same-sex marriage.
“Finally, it must be emphasized that ... those who adhere to religious doctrines, may continue to advocate ... that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles ... central to their lives and faiths, and to their own deep aspirations to continue the family structure.”
Justice Kennedy reassures Americans that may still believe and teach that same-sex marriage is wrong. But do you see any assurance that Americans can still engage in the free exercise of their religion -- also guaranteed by the first Amendment -- by refusing to participate in or assist in a same-sex marriages?
Certainly the Oregon Labor Commission didn’t. How else do you explain their $135,000 damage assessment? What about contentious objectors? Does not the free exercise of religion guarantee the right not to participate -- to contentiously object? To not seemingly approve?
Make no mistake: I am not opposed to people or their legislators permitting same-sex marriage. That’s called democracy. The issues raised by Justice Roberts and the Oregon damage award spotlight the folly of judges deciding public policy questions and creating new constitutional rights under the guise of interpreting the constitution.
If fundamental liberty requires that any two (competent) consenting individuals must be allowed to marry, how can there be a bar to the marriage of three -- or more -- (competent) consenting adults?
What constitutional principle demands that any two consenting adults must be allowed to marry, while at the same time denying the same fundamental liberty to three or more consenting adults?
If the sex of the partners is irrelevant, and if all that is required of the two people is their consent, how can three or four — or more — consenting adults be barred from practicing polygamy?
Justice Anthony Kennedy, writing for the majority in Obergeffell, largely ignores those questions.
Chief Justice John Roberts, in dissent, however, squarely addresses the polygamy (plural marriage) question, with emphasis on the “historical aspect of marriage being between a man and a woman for over a 1,000 years.”
“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.
“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.
“If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
The chief justice then examined the majority’s justifications for same-sex marriage, and shows they would also justify polygamy.
“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 ‘there 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?”
So if two consenting adults have a constitutional right to marry, why not three? Is two more sacred than three? More constitutional? If the states can’t constitutionally define marriages as being “between a man and a woman,” what constitutional principle would allow same-sex marriage, but bar polygamy? Is the harem now legal in America?
Justice Kennedy, speaking for the majority, also gives a fourth justification: “With respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
But to say there is no risk of harm to third parties is absurd. Already a baker in Oregon has been assessed $135,000 in damages for failing to cater a same-sex marriage. If that verdict stands, Justice Kennedy’s assertion that the right of two consenting adults poses “no risk of harm to third parties,” comes from five judges wearing blinders.
Nor does Justice Kennedy fear for the First Amendment religious rights of people opposed to same-sex marriage.
“Finally, it must be emphasized that ... those who adhere to religious doctrines, may continue to advocate ... that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles ... central to their lives and faiths, and to their own deep aspirations to continue the family structure.”
Justice Kennedy reassures Americans that may still believe and teach that same-sex marriage is wrong. But do you see any assurance that Americans can still engage in the free exercise of their religion -- also guaranteed by the first Amendment -- by refusing to participate in or assist in a same-sex marriages?
Certainly the Oregon Labor Commission didn’t. How else do you explain their $135,000 damage assessment? What about contentious objectors? Does not the free exercise of religion guarantee the right not to participate -- to contentiously object? To not seemingly approve?
Make no mistake: I am not opposed to people or their legislators permitting same-sex marriage. That’s called democracy. The issues raised by Justice Roberts and the Oregon damage award spotlight the folly of judges deciding public policy questions and creating new constitutional rights under the guise of interpreting the constitution.
Posted: Friday, July 17, 2015 11:00 pm, QCOnline
