Now that the dust is settling from the Supreme Court’s decision in Obergefell v. Hodges, which recognized a right to same-sex marriage, there are new questions. In particular, could the decision presage a constitutional right to plural marriage? If there is no magic power in opposite sexes when it comes to marriage, is there any magic power in the number two?
Chief Justice John G. Roberts Jr.’s dissent in Obergefell raised this very question, intending to show how radical the majority’s decision could become. But the issue was hard to discuss candidly while same-sex marriage was still pending, because both sides knew that association with plural marriage, a more unpopular cause, could have stymied progress for gay rights. With same-sex marriage on the books, we can now ask whether polyamorous relationships should be next.
There is a very good argument that they should. Justice Anthony M. Kennedy’s majority opinion in Obergefell did not focus primarily on the issue of sexual orientation. Instead, its main focus was on a “fundamental right to marry” – a right that he said could not be limited to rigid historical definitions or left to the legislative process. That right was about autonomy and fulfillment, about child rearing and the social order. By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry.
And while Kennedy’s opinion does not explicitly discuss this possibility, it is easy to see how future generations could read his language to include polyamory or plural marriage. Earlier court decisions about marriage, Kennedy wrote, had “presumed a relationship involving opposite-sex partners,” but now we understand that the presumption was wrong. Similarly, while Kennedy’s opinion repeatedly presumes that marriage involves two people, it is not hard to imagine another justice in 20 or 40 years saying that the assumption is similarly unenlightened.
Nonetheless, many supporters of the same-sex marriage decision reject the possibility of plural marriage with surprising confidence. Writing in Slate after the decision in Obergefell, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit rejected a right to plural marriage because it would lead to gender imbalances if “the five wealthiest men have a total of 50 wives.” Similarly, same-sex marriage advocate Jonathan Rauch has argued that polygamy allows “high-status men to hoard wives” and destabilizes society.
Gender equality is of course a serious concern. But these arguments rest on the assumption that plural marriage will involve only one man and multiple women. That assumption is weak. Plural relationships could well be (and in some circles today are) between multiple people of both sexes, not all of whom are strictly heterosexual.
True, most past episodes of plural marriage have been patriarchal. But the lesson of the same-sex marriage case is that we should not be too wedded to historical assumptions. It was not that long ago that many people held vicious stereotypes about same-sex relationships that led them to wrongly assume that gay people were unfit for marriage. We should not make the same mistake in assuming we know what plural marriages in the future would be like.
To be sure, there are many potentially sound legal arguments against plural marriage. It might be administratively difficult to modify some of our marital laws, currently designed for pairs of people, to handle larger numbers of spouses. And if one thinks that the well-being of children can justify restricting marriage rights, it is possible that plural marriages could present difficulties. On the other hand, it may turn out that plural marriages are very good for children, because more adults are available to share the physical, financial and emotional demands of caring for them. If so, maybe any administrative difficulties will seem minor in comparison.
The deeper point is that we should remember that today’s showstopping objections sometimes come to seem trivial decades later. Very few people supported a constitutional right to same-sex marriage when writers like Andrew Sullivan and Rauch were advocating it only two decades ago. (Posner, for example, did not.) As we witness more experiments with non-nuclear families, our views about plural marriage might change as well. As Kennedy put it, “The nature of injustice is that we may not always see it in our own times.”
So the real force of the polygamy question is a lesson in humility. We should not assume that our judges have all the answers. And we should not assume we have them, either. Instead we should recognize that once we abandon the rigid constraints of history, we cannot be sure that we know where the future will take us.
The New York Times
William Baude is an assistant professor of law at the University of Chicago and a contributing opinion writer.