Wednesday, May 10, 2017

Supreme Incoherence

Here's a puzzler: The Supreme Court, which ruled in Obergefell (2015) that gay marriage was henceforth legal in the United States, declined last January to hear a challenge by reality TV polygamist Kody Brown and his wives to Utah's law against polygamy. It'd be interesting to read the Court's rationale for denying certeriori to the plaintiffs in the case, given the logic of legalizing same-sex marriage.

Kody Brown and His Wives

I've argued on a number of occasions on Viewpoint that extending the right to marry to gays cuts away the ground for laws against polygamy, polyamory, or almost any form of family structure one can think of. Here's why:

Marriage has for two thousand years or more been considered the union of one man and one woman, but enlightened folk in the last couple of years have decided that this traditional understanding is "oppressive" and the Supreme Court agreed. Justice Anthony Kennedy opined that opposition to gay marriage was rooted in an irrational animus against gays, and the Court took it upon themselves to rule that the gender of the individuals seeking holy matrimony no longer matters.

Very well, but if the gender no longer matters, how can the Court now decide that the number of individuals still matters? If marriage can now unite one man and another or one woman and another, why can it not unite one man and several women, or indeed any combination of people who wish to enter into the relationship? What logical grounds does the Court have for prohibiting such unions?

Perhaps there is a good reason for it, but if so it eludes me. I suspect that the Court realizes the muddle they've created and declined to hear the Utah case because they wanted to avoid the embarrassment of having to acknowledge that their decision in Obergefell was not based on the Constitution but was instead a purely arbitrary capitulation to sociological fashion. If they chose to hear Brown's case and strove to be consistent, they'd have to strike down Utah's statute and any other statutes which ban any variety of "marriage" which involves consenting adults.

Polygamy is not yet fashionable, but when it becomes so, and it probably will, the Court will doubtless find that they no longer have any logical reason to prohibit it, given the precedent they've set with Obergefell. Perhaps future generations will look back at Obergfell not as the end of an oppressive practice against gays but rather as the beginning of the end of marriage.