A Pink Herring: The Prospect of Polygamy following the Legalization of Same-Sex Marriage
![handle is hein.journals/conlr38 and id is 1077 raw text is: A PINK HERRING:
THE PROSPECT OF POLYGAMY FOLLOWING
THE LEGALIZATION OF SAME-SEX MARRIAGE
The history of constitutional law 'is the story of. the
extension of constitutional rights and protections to people
once ignored or excluded.... ' This statement is as true in
the area of civil marriage as in any other area of civil
rights. '
[C]ivil marriage is an evolving paradigm. 2
If... marriage can be distorted in its meaning to include
between a man and a man or a woman and a woman, then
how do you draw the line between group marriage, bigamy,
polygamy, and all the living arrangements there are? ,3
I. INTRODUCTION
Over the past forty years, a robust trend of Supreme Court cases has
expanded the definition of liberty to include the right of married couples to
use contraceptives,4 the right of unmarried individuals to use
contraceptives,5 the right to seek an abortion,6 and the right to marry
regardless of race.7 These cases set the foundation for Lawrence v. Texas,
which held that gay men have a constitutionally protected liberty interest to
engage in private intimate conduct. Justice Scalia, in his now infamous
dissent, argued that the majority holding in Lawrence left all morals-based
legislation, including same-sex marriage, bestiality, and polygamy,
vulnerable.9
1 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 966 (Mass. 2003).
21d. at 967.
3 Federal Marriage Amendment (The Musgrave Amendment): Hearing on H.R. J. Res. 56 Before
the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 108th Cong. 39 (2004) (statement
of Rep. King (R-Iowa)).
4 Griswold v. Connecticut, 381 U.S. 479, 486,499 (1965).
5 Eisenstadt v. Baird, 405 U.S. 438, 453-55 (1972).
6 Roe v. Wade, 410 U.S. 113, 164-65 (1973); see also Planned Parenthood v. Casey, 505 U.S.
833, 868-69 (1992).
7 Loving v. Virginia, 388 U.S. 1, 12 (1967).
' 539 U.S. 558, 577-79 (2003).
9 Joseph Bozzuti, Note, The Constitutionality of Polygamy Prohibitions After Lawrence v. Texas:
Is Scalia a Punchline or a Prophet?, 43 CATH. LAW. 409, 410 (2004). Justice Scalia, in his dissent in
Romer v. Evans, 517 U.S. 620, 648 (1996), first predicted that polygamy bans would prove
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A Pink Herring: The Prospect of Polygamy following the Legalization of Same-Sex Marriage
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