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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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