If liberty protects, as Kennedy wrote ten years ago in Lawrence v. Texas, the case striking down Texas’s anti-sodomy law, the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” why can’t people in polyamorous relationships claim that right as well? If it’s wrong to exclude groups because of prejudice, are we sure the uneasiness most of us feel about those who love more than one, or love one of their own, shouldn't count as prejudice?
The Slippery Slope to Polygamy and Incest
Because laws prohibiting “polyamorous relationships,” brothers and sisters marrying, adults marrying children and the like - unlike laws prohibiting same-sex couples their 14th Amendment right to access a state’s marriage law - are rationally based, pursue a legitimate legislative end, are predicated on objective facts and evidence, and are applied to everyone equally. No race, gender, class of persons, or ethnic group is singled out for exclusion.
And, no, polygamists don’t constitute a ‘class of persons.’
In fact, polygamy is not bigamy, as the latter involves a legally recognized marriage, where there is one man, two wives, and two legally issued and recognized marriage certificates. ‘Polygamy’ may be a man simply living with several women, all unmarried, which is perfectly legal already. And bigamy is usually prosecuted in the context of fraud, not the gender make up of the relationship – there’s no Constitutional right to commit fraud.
Adults not being allowed to marry children is rationally based, so too with brothers marrying sisters. And again, these prohibitions are applied equally to everyone, no group or class of persons is singled out for exclusion, which is not the case with same-sex couples.
As Greenfield himself notes: “What it boils down to is that when the government wants to exclude groups from something important like marriage, it has to show good reasons for the exclusion.”
Indeed.
As the courts have already held, there is no good reason to exclude same-sex couples from marriage law.
Consequently, concerns with regard to states acknowledging the equal protection rights of same-sex couples in no way constitutes a ‘slippery slope’ with regard to polygamy being made ‘legal,’ as any court challenge on 14th Amendment grounds would ultimately fail.
Last, with regard to this observation by Greenfield: “If anything, the argument from political disenfranchisement cuts the other way—that polygamous and incestuous couples deserve more constitutional protection than same-sex couples.”
The mistake Greenfield makes here is equating homosexuals/same-sex couples – a legally recognized class of persons in the context of one’s 5th Amendment right to individual liberty – with polygamous and incestuous couples, who possess no such right. A homosexual exists as a gay man or lesbian woman whether married or not, the same is not true for a polygamist or those seeking an incestuous relationship. Wishing to marry one’s sister is not a protected individual liberty, nor is wishing to have more than one wife.
Greenfield also errs in that same-sex couples seek to access marriage law exactly as it exists now, unchanged and unaltered – a state recognized union of two equal partners. The same is not true with polygamous and incestuous couples. This is why there’s no such thing as ‘gay marriage,’ since marriage law as it exists now can accommodate same sex couples, the exact same marriage law opposite-sex couples access.