On June 26, 2015, the U.S. Supreme Court issued its landmark decision, Obergefell v. Hodges, holding that the Fourteenth Amendment of the U.S. Constitution requires a State to license a marriage between two people of the same sex. A large majority of American’s praise the decision and its recognition that our laws now recognize the simple truth that marriage is a deeply personal choice which no law should abridge. The brush with which the majority in Obergefell painted the new constitutional right to same sex marriage was, without doubt, a broad one. So broad, that the dissenting justices in Obergefell have argued that the High Court’s decision has paved the way for polygamous marriage.
It probably does not surprise the dissent that, last Tuesday, a Montana man, Nathan Collier, and his two wives, Victoria and Christine, applied to have their polygamous marriage legalized by Billings County. The marriage clerk initially rejected the Colliers application but then submitted it to the County Attorney for further review. If Billings County denies the marriage license, the Colliers have promised a constitutional challenge.
To be fair, the dissent’s remarks that Obergefell has opened the door to polyamorous marriage cannot be dismissed as so much conservative sour grapes. The majority’s vindication of the right to personal choice and its linking such right to the concept of individual dignity and autonomy are, indeed, broad and sweeping.
The Obergefell majority based its decision upon four principles and traditions which, on their face, apply equally to polygamous relationships. First, Obergefell holds that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Like choices concerning contraception, family relationships, procreation, and child rearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. Obergefell teaches that, because it fulfills yearnings for security, safe haven, and connection, civil marriage is an esteemed institution. Indeed “the decision whether and whom to marry is among life’s momentous acts of self definition.”
The second principle upon which Obergefell relied is the principle that the right to marry supports a union unlike any other in its importance to committed individuals. According to Obergefell, “marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live, there will be someone to care for the other.”
Third, Obergefell recognizes that the right to marry “safeguards children and families and thus draws meaning from related rights of child rearing, procreation and education.” By giving recognition and legal structure to their parent’s relationship, “marriage allows children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Children of same sex relationships, until now, have “suffered significant material costs and have been relegated, through no fault of their own, to a more difficult and uncertain family life.”
Finally, Obergefell relies upon the principle that the Nation’s traditions “make clear that marriage is a keystone of our social order.” According to Obergefell, “marriage is the foundation of the family and of society, without which there would be neither civilization nor progress. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race, once thought by many to be essential.”
Of course, the Colliers would argue that all four of the foregoing principles and traditions apply with equal force to the legalization of their own relationship. They would argue that their right to personal choice regarding marriage is inherent in the concept of individual autonomy, and that the yearnings for security, safe haven, and connection apply equally to them. The Colliers would also argue that their right to marry responds to the universal fear of being alone and also offers the hope of companionship and understanding. Is their companionship, they ask, any less significant to them than those committed to bilateral relationships?
The Colliers admit that they are engaged in an intimate, multilateral relationship which is their right. The three have already procreated which is also their right. Currently, however, the institution of marriage safeguards only Victoria and her biological children. It could be argued, and Christine doubtless will argue, that her children will suffer the stigma of knowing their family is somehow lesser. There is no doubt that Christine’s children do, and will continue to, suffer the “significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.”
Finally, Colliers would agree that marriage is a keystone of our Nation’s social order even though the institution as evolved in substantial ways over time. Nathan might even argue, with the utmost sincerity, that his forebears found polygamy to be a religious, if not existential, imperative.
This post should not be understood to advocate bigamy nor to criticize it. Nor is this post intended to detract from the rights which the proponents of same-sex marriage have fought so valiantly and successfully to attain. This post does, however, observe the tectonic shifts – some gradual and some rapid – in how we coalesce as a society. This post also shoots a flare into the next frontier of individual dignity and autonomy and where the intimate choices that define personal identity and belief might take us in our domestic relations.