By William C. Duncan
Is the legal acceptance of polygamy the most predictable consequence of the legalization of same-sex marriage?
To judge by the dissents to the U.S. Supreme Court’s marriage redefinition decision and by many conversations with a wide variety of people (not a scientific measure), one might think so.
I have my doubts.
It is clear that advocates of polygamy think the Obergefell decision requires recognition of some type of group marriage. In a pending Utah case, the attorney for a polygamist and his wives has argued exactly that. The logic is clear: If the Supreme Court says that the U.S. Constitution requires marriage to be defined as a government program for bestowing approval on adult intimate relationships, it’s hard to see why that “right” has to be limited to two people (as Chief Justice John Roberts pointed out).
The assumption, however, is that the court is required to follow its own logic. That’s not necessarily the case. In 1997, the Supreme Court said judges should not identify new, unwritten rights in the Constitution unless those rights were consistent with our nation’s history and tradition. That rule would surely have precluded the court’s same-sex marriage decision, but instead the court dismissed that rule saying it only applied to the subject of the earlier case — an asserted right to physician-assisted suicide.
Thus, even if the court’s logic would support a right to polygamy, the court might still avoid taking a case or could decide against a polygamous claim if they feel that’s just not the right kind of marriage. The key holding is essentially about the court’s authority to settle contentious social questions than it is about the answer to those questions. It seems more likely, for instance, that the court would support a group marriage than more conventional polygamous unions (i.e., a man with multiple wives).
The second consequence, also noted in the dissenting opinions, is that the court’s opinion will lead to conflicts with religious liberty. This concern is not speculative; it has already begun to occur.
To me, the most egregious example is a recent ruling from the Ohio Supreme Court Board of Professional Conduct. The board said that judges cannot perform opposite-sex marriages unless they are willing to perform same-sex marriages. Since solemnizing marriages is a tiny portion of what judges do, and they are certainly not a chokepoint for couples seeking to marry, it seems churlish to remove their discretion to perform whatever marriages they perform. But what’s more absurd is that the board says if a judge has performed marriages in the past and wishes to no longer do so – even if the judge’s decision not to perform marriages has nothing to do with same-sex marriage – the judge must continue to perform marriages because, in the board’s opinion, the decision to stop would be understood as having a discriminatory motive (i.e., that the only reason the judge is stopping is to avoid performing same-sex marriages, which is, ipso facto, evidence of bad intent). So, if a judge decides he or she no longer has time to perform marriages or dislikes the job or whatever, they must nonetheless continue to perform marriages for fear of seeming inadequately enthusiastic about the new marriage regime.
The Ohio opinion points to four other states with similar rules.
Which is to say, there’s an awful lot of compulsion in the Supreme Court’s blow for “freedom.”