Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, the first decision to overturn a same-sex marriage ban—the force of the Chief Justice’s predictions about plural marriage likely would have been blunted. To understand why, we must remember that, despite the fact that it is fundamental, unlike nearly all other individual constitutional rights—both explicit and implicit—the right to marry does not exist unless the state provides for it. In other words, the Constitution does not compel states to offer their citizens the opportunity to enter into the legal relationship known as marriage. But if a state chooses to offer its citizens that opportunity, it cannot discriminate against parties who seek to enter into marriage absent some legitimate basis for doing so.

As numerous federal and state courts have concluded, there is no legitimate basis for excluding same-sex couples from marriage. Though as a historical matter such couples were not eligible for marriage, that is not a valid argument for continuing to prohibit them from marrying when they otherwise satisfy the structural requirements for eligibility. Those requirements contemplate two parties who have consented to be married in the eyes of the law, so that they may both enjoy the particular benefits that this binary legal relationship provides and undertake the particular responsibilities it assigns. Nothing about the inherent nature of those benefits and responsibilities disables same-sex couples from entering into marriage.

The point here is that every state has limited marriage to a union of two—and only two—parties. That binary relationship forms the structural core of the institution of marriage. For a court to hold same-sex couples equally eligible to enter into that relationship no more changed the definition of marriage than would an order foreclosing a state from declining to provide a particular opportunity to otherwise qualified members of the opposite sex. See United States v. Virginia. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to any combination of parties who desire it would take that court well beyond the judicial role contemplated by current equal protection doctrine.

To illustrate, consider this hypothetical situation: suppose in response to Obergefell the state of Pennsyltucky decided to get out of the marriage business altogether—in other words, suppose the state decided not to offer its citizens the opportunity to enter into any form of civil marriage. Could a court order the state to create that legal relationship, with all of the public and administrative costs associated with managing it? No more than a court could order a state to provide funds to allow aspiring but impoverished political candidates to run for office. It’s equally unlikely a court would order a state that currently offers its citizens the opportunity to enter into binary marriage—which is to say, every state under current law—to admit any number of parties to that relationship. Unlike the relief requested by the plaintiffs in Obergefell, such an order would in fact change the structural definition of marriage.

At bottom, multiple-party relationships simply aren’t the same as two-party relationships. The binary relationship—and not the genders of the parties to it—lies at the heart of marriage as the states have defined it today. Plural marriage may come, but it will be the result of legislative rather than judicial action.

Lawrence Friedman