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?
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.
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.
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.