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SCOTUS: States Must License Same Sex Marriage (but not Polygamy)

Date: Jun 27, 2015
Word Count: 600 words
Cross-Reference: Obergefell v. Hodges, SCOTUS, marriage equality

With a 5-4 Decision, in the Obergefell v. Hodges case, the US Supreme Court has determined that the right of individuals to choose their marriages is a fundamental liberty right – but polygamy was not included. 

On June 26, 2015, in a 5-4 Decision, the Supreme Court of the US (SCOTUS) made history deciding Obergefell v. Hodges. Same sex marriage (SSM) is fully legalized throughout the United States. All States must legally recognize individuals' fundamental liberty right to choose their marriage – as long as they are "two-person unions." Polygamy was not included. 

Justice Kennedy was the Court Majority's key swing-vote. Opposing that Majority, Chief Justice Roberts, and Justices Scalia, Thomas, and Alito, each wrote four separate Dissents. 

Writing the Court's Decision, Kennedy determined that same-sex marriage is specifically a fundamental right, based on what he called the "four principles and traditions." 

  1. "The right to personal choice regarding marriage is inherent in the concept of personal autonomy."
  3. "The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."
  5. Protecting the right to marry "safeguards children and families."
  7. Marriage "is the keystone of the Nation's social order."
Kennedy concluded: 
"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. ... [The petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right."
The Dissents were adamantly opposed. Chief Justice Roberts sounded the Constitutional alarm. 
"If you are among the many Americans - of whatever sexual orientation - who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
For unrelated consenting adult polygamists (UCAPs), this decision came as a partial surprise. 

National Polygamy Advocate, Mark Henkel had wanted the Court to correctly acknowledge the fundamental right of liberty of individuals to choose their own consenting adult relationships of marriage. But Henkel equally expected that Kennedy would rightly hold fast to the Court's - and Kennedy's own - previous Tenth Amendment federalism (as per the United States v. Windsor Decision of 2013). 

In a January 2015 article, Henkel explained how - with Kennedy's swing vote - the Supreme Court might otherwise apply a more Constitutionally-correct work-around. Henkel wrote: 

"While loathe to actually defining marriage specifically (due to Windsor and the Tenth Amendment), SCOTUS could instead decide generally that marriage is a 'fundamental right of importance' for the Individuals."
Instead, Kennedy avoided that Constitutional work-around. Surprisingly, the Court simply mandated that all States must specifically give marriage licenses to same sex marriage too. Polygamy was not included. 

On a side note, an ironic coincidence emerged by this Decision being officially decided on June 26th of 2015. Two other related Decisions, Lawrence v. Texas (2003) and United States v. Windsor (2013), were also respectively decided on June 26th. 

Ultimately, Obergefell v. Hodges - along with its four vehement Dissents - made history. Notwithstanding the unconstitutional approach to define the fundamental liberty right of individuals to specifically choose same sex marriage (SSM), the otherwise constitutionally correct principle may eventually be generally applied for individuals to choose unrelated consenting adult polygamy (UCAP) too. 

Excepting "two-person union," all that Kennedy declared about the importance of marriage to those who choose same sex marriage (SSM) equally applies to others who choose unrelated consenting adult polygamy (UCAP). 

For UCAPs, only one obstacle to freedom remains to be overcome - the outstanding bigotry of big government still unconstitutionally mandating an arbitrary determinant of "two-person unions" for the definition of marriage. After that, polygamy will be included.


Bibliographic URLs:

Obergefell v. Hodges 
June 26, 2015 
National Polygamy Advocate ™ 
Will SCOTUS Legalize Polygamy in 2015? 
January 28, 2015 
[Reviewed for publication - Review Board.]

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