You know you want to talk about this.
Given the logic of Kennedy’s opinion, and the fundamental statement that love triumphs all, and the state and social affirmation of that love that is state-recognized marriage must be extended to gay/lesbian pairs for this reason — well, there’s not a sentence that couldn’t be applied to groupings of three or more. Well, except for the loneliness bit: “the state alleviates your loneliness with a spouse, but once you’ve got a spouse you’re surely not so lonely as to need another one.”
But given that these multispouse groupings already exist — among fundamentalist Mormons, among alternative-sexuality types, among Muslim immigrants who may have already had a polygamous marriage prior to arrival on our shores — the same reasoning could be applied to them. “There are children in these homes already; let’s give them the legal protection of allowing the second mom medical decision-making rights,” for instance.
Ann Althouse, among others, has claimed that polygamous marriage is so clearly different than SSM as to be preposterous to even consider a connection. After all, there are so many ways in with pairings work that larger groupings don’t, in terms of inheritance, medical decision-making, tax filing, etc. It’s logistically easier to keep the number in a marriage at two than to figure out the legal implications of three or more that don’t involve “extra” benefits getting sent their way. (Though while typing I noticed that Ann has now observed that the Kennedy-basis of “love” makes counter-arguments against polygamy on the basis of economics more difficult.)
But at the same time: among the Jeffs’ FLDS, polygamous families currently take advantage of the lack of such recognition, in that the secondary spouses all file for welfare benefits as “single mothers.” Taking into account the whole household’s income would be much fairer to the rest of us.
Also of interest is the knee-jerk response by SSM supporters: “how dare you compare our cause to polygamy!” because the latter, apparently, is morally offensive. But why? And why should the fact that people are morally offended by polygamy have anything to do with it, if the fact that moral offensiveness of SSM to others is irrelevant?
Now, granted, pragmatically, courts will not rule in favor of polygamy so long as public opinion is so strongly against it, even if they have to employ strained arguments or a counter “because I said so,” so this is all a moot point. But if the pro-polys find a useful marketing angle, all bets are off. After all, love wins, right?
By the way, the Court here has elevated Romantic Love as occupying a special place of privilege. Here’s a great post by Eve Tushnet on the implications.
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