A question of equal protection

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.

The above quote is from the majority opinion of the Supreme Court in Obergefell v. Hodges, which just made gay marriage a right to everyone in the USA. This was done with a broad interpretation of the 14th Amendment; you can’t just prevent people who love each other from marrying, after all.

Well, not exactly. Notice the emphasis I placed on the quote. Two people in love have protections under the law that three or more people do not. If:

A. Marriage is just a weird thing people do when they love each other, and

B. It’s wrong to not let people participate in this ritual because of their non-traditional instantiation of the institution

How the fuck is that fair? Why don’t polygamous people deserve equal protection?

Chief Justice Roberts asked this very question:

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

Obviously, the Supreme Court only rules on cases in front of them. It’s just as obvious that if an otherwise identical case about plural marriage reached the SCOTUS, it wouldn’t benefit from the same broad interpretation of the 14th Amendment that just made same-sex marriage legal. They wouldn’t use the logic of “but equal protection. But LOVE!” to protect plural marriage.

This is because fashionable people in urban areas think that same-sex marriage is cool. Fashionable people in urban areas do not think that that polygamy is cool. In fact, it’s downright icky to baby boomers. This preference that the intelligentsia have for gay marriage is obviously the reason that the court made the ruling that it did, and that’s the problem here.

The Supreme Court is only supposed to rule on questions of law, not questions of politics. Theoretically, judges aren’t supposed to have different rulings on otherwise identical issues because all the beautiful people agree that gay marriage is good but plural marriage is still kinda, you know, weird. Even if polygamists people are weirdos, they still fucking get equal protection.

This is the most worrying thing about a very broad interpretation of the law. We already have a legislature and an executive that exist to reflect the current fashions and tastes of the populace. We don’t need a judiciary to reflect the illogical dichotomies of public opinion with illogical interpretations of the law.


A defense of this apparent contradiction comes in the form of, “but those things are different.” It’s true, of course, that gay people getting married isn’t the same as more than two people getting married. But the problem for this line of argumentation is that same-sex marriage is has different essential characteristics from a traditional marriage as well. If having different characteristics and components disqualifies people who want a certain kind of non-traditional marriage, why not others? Polygamy is probably more native to the institution than same-sex marriage is, anyway.

I am genuinely curious as to what this essentially component of either renders or should render homosexuals and polygamists as unequal before the law, from either an is or ought standpoint. After all, the modern premise of marriage is that the institution exists to bond together people who love each other. If this is our premise, then the moral imperative of the legalization of polygamy is obvious.

But a same-sex marriage and a male-female marriage are different things. That’s why equal protection doesn’t make sense. The latter arose in every society to regulate, from a social standpoint, the obligations attendant upon child rearing, and to hardwire incentives that lead to the good of future generations based on the Darwinian, complementary natures of the male and the female. Marriage isn’t just about loving someone; the sobering truth is that, romantically speaking, people are fungible. You could love another woman just as much as your wife if the conditions are right, and the candidates for that love number in the hundreds of millions.

Marriage is (or was) an institution of duty not to one person but to people, place, and future generations. The strategy of “protecting the sanctity of marriage” was doomed to fail in the first place. Outward appearances may be the same, but the changes in the underlying logic of marriage necessary to make divorce the norm and gay marriage possible happened decades ago.

Also, we need to stop pretending that capital is the conservative’s friend:


  1. I can’t even imagine a legal argument against polygamy–not one that wouldn’t also outlaw gay marriage, anyway. Polygamy of FLDS and Muslims and the like seems clearly protected under the Establishment Clause. The best argument I’ve seen anyone muster (from a technical, non-moral perspective, because moral perspectives aren’t allowed,) is that it’d be hell for the insurance companies. The only reason it’s not law already, IMO, is that the FLDS and their ilk are socially unpopular and so have to hide out in remote areas or else they will get arrested, and so they have chosen a strategy of keeping their heads down and avoiding the legal system, the Muslims don’t have the numbers yet to make public noise about an institution that would reflect badly on them, and the vocally “polyamorous” can’t maintain relationships for long enough to make a court case worthwhile. Basically, gays have been way more popular than polygamists for a long, long time–and the SCOTUS is making political/legal decisions here based on popularity.

    Liked by 1 person

  2. There is no difference where strict ‘albeit hyper-Liberal’ interpretations of the 14th are concerned. Look at the common objections —

    1) Polygamy is not popular and does not have a well-funded lobbying organization!

    Not relevant Constitutionally

    2) Polygamy is still off-putting to most people!

    Not relevant Constitutionally

    3) States have an interest in preventing exploitation of women, which is what polygamy often involves!

    Most same-sex partnerships are rife with domestic abuse to the point of epidemic, though not all. The same can be said of Polygamy’s exploitation of women. A majority abuse of an isntitution does not allow you to bar a minority from enjoying it responsibly (at least according to the SSM advocates)

    4) Three people cannot have a child!

    Nor can two sodomites

    Here is the thing. You are right that there is not the kind of popularity enjoyed by same sex couples for polygamists, but does there need to be? We know the people pulling the strings want to open marriage up for EVERYONE. It further degrades the institution into an insignificance. Let’s say a court does rule that it is a constitutional right. Will the people who it makes uncomfortable complain? Will the people who advocated for SSM but said they were against polygamy, actually stand up to stop it. Not a chance. They’ve got theirs and they don’t care.


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