In a column online at the New York Times, Adam Liptak discusses the different ways in which the Supreme Court might rule in favor of same-sex marriage—a narrow decision requiring states to recognize same-sex marriages performed in other states, a broad decision recognizing a right to same-sex marriage on the grounds that same-sex marriage bans discriminate on the basis of sexual orientation and deny same-sex couples a fundamental right, or a middle of the road decision.
To what extent might the justices be influenced by their concerns about the implications of a right to same-sex marriage for a right to polygamous marriage? If traditional ideas about marriage are not sufficient to justify a ban on same-sex marriage, are they sufficient to justify a ban on polygamous marriage, especially since polygamy bans arose out of anti-Mormon animus?
One way to avoid the question would be to decide that same-sex marriage bans discriminate on the basis of sex—a ban on same-sex marriage allows women to marry men, but prohibits men from doing so. Similarly, same-sex marriage bans allow men to marry women while prohibiting women from doing so. A ban on polygamous marriage simply prevents anyone from marrying more than one other person.
Or perhaps the Court would say that the state has important interests beyond tradition in prohibiting polygamous marriage, that polygamous marriages cause tangible harm to spouses and children in a way that same-sex marriages do not. But that would require the Court to get into a complicated balancing between the interests of individuals wanting a polygamous marriage and the interests of the state in preventing polygamy. More importantly, it would require the Court to explain why regulation rather than prohibition of polygamous marriage is not an adequate answer to the concerns raised by polygamy.
Tomorrow’s oral argument may provide some hints on this question.