Plural Marriage, Group Marriage and Immutability in Obergefell v. Hodges and beyond
![handle is hein.journals/umkc84 and id is 887 raw text is:
PLURAL MARRIAGE, GROUP MARRIAGE AND
IMMUTABILITY IN OBERGEFELL V. HODGES AND
BEYOND
Edward Stein*
For decades, opponents of marriage for same-sex couples have appealed
to polygamy. The ChiefJustice's dissent in Obergefell is no exception insofar as
he says that the logic of the majority opinion with respect to same-sex marriage
also applies to plural marriage. This Essay explores the resources for
distinguishing polygamy from same-sex marriage, focusing on the mutability or
immutability of the desire to engage in plural/group marriage as compared to the
desires to marry someone of the same sex. It shows the appeal to immutability
does not succeed in distinguishing plural/group marriages from same-sex
marriages.
I. INTRODUCTION
At the oral argument for Obergefell v. Hodges, Justice Alito asked Mary
Bonauto, the lawyer arguing on behalf of the same-sex couples seeking marriage
equality, [s]uppose that we rule in your favor . . . and then . . . a group
consisting of two men and two women apply for a marriage license. Would there
be any ground for denying them a license?' Bonauto started her answer by
citing concerns about coercion and consent,2 but Alito tried to preclude this
response by modifying his hypothetical as follows: they're all consenting adults,
highly educated. They are all lawyers.3
In light of this question, other questions about polygamy later in oral
arguments,4 and the invocation of polygamy and bigamy in prior Supreme Court
dissents in cases about LGBT rights,5 it is not surprising that one of the
Obergefell dissents discussed group marriage and plural marriage. Specifically,
* The author is the Maurice R. Greenberg Visiting Professor of Law, Yale Law School, and
Professor of Law & Director, Gertrud Mainzer Program in Family Law, Policy, and Bioethics,
Cardozo School of Law. Thanks to Michelle Adams, Michael Boucai, Joanna Grossman, Suzanne
Kim, Solangel Moldanado, Douglas Nejaime, Kate Shaw, and Ekow Yankah for helpful comments
and suggestions.
' Transcript of Oral Argument at 17, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (No. 14-556-
Question-1).
2 Id. at 17-18.
3Id. at 18.
4 Id. at 18-19; Transcript of Oral Argument at 5-7, Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
(No. 14-556-Question-2).
5 See United States v. Windsor, 133 S. Ct. 2675, 2707 (2013) (Scalia, J., dissenting) (the
Constitution neither requires nor forbids our society to approve of same-sex marriage much as it
neither requires nor forbids us to approve of no-fault divorce, polygamy or the consumption of
alcohol); Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting) (Court's finding
Texas sodomy law unconstitutional call[s] into question states laws against bigamy, same-sex
marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.);
Romer v. Evans, 517 U.S. 620, 647-52 (1996) (Scalia, J., dissenting) (lengthy comparison of
polygamy and homosexuality).](ViewImageLocal?handle=hein.journals/umkc84&div=44&collection=&method=preview&ext=.png&size=3)
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Plural Marriage, Group Marriage and Immutability in Obergefell v. Hodges and beyond
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