# If Utah make polygamy legal. **URL:** \ **Category:** Great Debates\ **Created:** [May 12, 2016, 8:35pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631 "2016-05-12T20:35:03Z")\ **Posts on this page:** 7\ **Page:** 4
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [May 17, 2016, 5:48pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/61 "2016-05-17T17:48:50Z")
> [@Nava](#): > > None of your questions are relevant to **Saint Cad** ’s, unless you posit that the answers from the rest of the American legal system depends on the specific form of polygamy, in which case it would be you who needs to explain how. > [@Pantastic](#): > > The way that the rest of the American legal system would respond to a particular state making a new form of marriage available depends heavily on what that new form of marriage is, how it works, and how it differs from traditional marriage. For example, if Utah only allowed ‘one husband, many wives’ polygamy, it would get struck down on equal protection grounds since. It’s not really 'posit’ing to point that out, it’s a fact that’s really obvious to anyone who knows enough to answer the question. Going even beyond that, even if the system developed by Utah (and it needs to be a new system, not just dropping restrictions on the current one) that does not run afoul of the Constitution, how it is implemented matters. If it is a parallel system that requires a custom legal document drawn up for every union that would be similar to a complex contract or corporation, it is possible that other states could respect and enforce those contracts/charters. Although, some states probably have laws that would invalidate some clauses and conditions when in that state. Just like you can’t enforce a mandatory arbitration clause in some states, but you can in others. If it more like current marriage where most of the clauses and requirements are set up in law, then it would require major legal overhauls to recognized in a different state. IANAL, but I don’t think the Full Faith and Credit clause can be stretched that far. ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [May 17, 2016, 6:00pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/62 "2016-05-17T18:00:50Z")
> [@T.M](#): > > This can happen within Islam, if a Muslim visits the USA with multiple wives that he has legally married in his own country you accept it. If a man takes a bride in a country where the age of consent is 13, What happens if they visit America as man and wife for the honeymoon. these are genuine situations that can happen so the Utah situation is not unsurmountable. A man living with three woman is not breaking the law unless he decides to marry the three of them. The law needs to be updated as morality has moved on You have already been corrected on the current state of law with regards to foreign marriages that are banned in the U.S., but I want to reiterate that I, and I think everyone else in this thread, support decriminalizing non-fraudulent, legally consenting, multi-partner relationships and cohabitation. I know that some of these laws (usually referring to a “house of ill-repute”) were on the books and being sporadically enforced a decade or so ago, but I don’t care is five adults want to live together in any arrangement that suits all participants. I just won’t go to bat to give that relationship the same type of legal status as marriage until I see specifics that I can agree with on how it will work. I also need to see that enough people want it to make it worth the cost. Even it it meets all my ethical requirements, I don’t want my state to spend the millions of dollars it would require to write, pass, and implement an entirely new family law paradigm that only benefits one five person poly group, but leaves all the other poly configurations out in the cold. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 17, 2016, 8:57pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/63 "2016-05-17T20:57:17Z")
> [@Velocity](#): > > This is what I’ve wondered as well. The SCOTUS argument seems to be that if people want a certain type of marriage, then it is depriving them of Constitutional equality to not give it to them. > [@UDS](#): > > I think not. They have to want a form of marriage which is already extended to others. _Obergefell_ stated that the equal protection argument was only one alternative basis for the decision, while its primary rationale was the Due Process Clause. As I noted above, the Court identified four factors making marriage a fundamental due process right, and presumably the parties seeking to strike down a hypothetical state polygamy law would have to show that polygamous marriage does not satisfy all four of those factors. Purely IMO, I think it does, if only because the factors are so broad. As I also mentioned, the _Obergefell_ opinion does include the term “two-person” here and there, and (again purely IMO) its use of the term is notable for how arbitrarily it is tacked on. There is no actual reasoning set forth in _Obergefell_ to justify a two-person limitation. From a due process point of view, drawing a line at “two-person” is as baseless as drawing a line at “opposite-sex.” Particularly since polygamous marriage has always existed and still does exist at least somewhere in the world while SSM is essentially a new thing, it’s hard to say that a two-person limitation is more fundamental than one requiring opposite sexes. Indeed, one sees in discussions like these is that the only objection not based in animus that anyone can muster is that multiple-party marriage is complicated. _Obergefell_ elsewhere indicates that “slow down, it’s complicated” cuts no ice – nor should it, constitutionally. Desegregation of a school system is complicated, but the Court didn’t punt on that basis. Instead, it set a whole second set of briefing and arguments in the consolidated _Brown v. Board_ cases to consider remedies. ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [May 17, 2016, 9:24pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/64 "2016-05-17T21:24:44Z")
> [@Tom\_Tildrum](#): > > _Obergefell_ stated that the equal protection argument was only one alternative basis for the decision, while its primary rationale was the Due Process Clause. As I noted above, the Court identified four factors making marriage a fundamental due process right, and presumably the parties seeking to strike down a hypothetical state polygamy law would have to show that polygamous marriage does not satisfy all four of those factors. Purely IMO, I think it does, if only because the factors are so broad. > > As I also mentioned, the _Obergefell_ opinion does include the term “two-person” here and there, and (again purely IMO) its use of the term is notable for how arbitrarily it is tacked on. There is no actual reasoning set forth in _Obergefell_ to justify a two-person limitation. From a due process point of view, drawing a line at “two-person” is as baseless as drawing a line at “opposite-sex.” Particularly since polygamous marriage has always existed and still does exist at least somewhere in the world while SSM is essentially a new thing, it’s hard to say that a two-person limitation is more fundamental than one requiring opposite sexes. > > Indeed, one sees in discussions like these is that the only objection not based in animus that anyone can muster is that multiple-party marriage is complicated. _Obergefell_ elsewhere indicates that “slow down, it’s complicated” cuts no ice – nor should it, constitutionally. Desegregation of a school system is complicated, but the Court didn’t punt on that basis. Instead, it set a whole second set of briefing and arguments in the consolidated _Brown v. Board_ cases to consider remedies. I have addressed my logic behind making a clear distinction between SSM and polygamy already (see [this](http://boards.straightdope.com/sdmb/showthread.php?t=612735) thread as well as comments above, but I think your argument about _Obergefell_ is not supportable. You say that a) the polygamy meets the four factors in listed in the decision and that b) the two party potion is “tacked on”. How can you reconcile that with the fact that the second factor listed is: > [@Justice Kennedy](#): > > A second principle in this Court’s jurisprudence is that **the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.** The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567 Bolding mine. > **[14-556\_3204.pdf](https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf)** ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [May 18, 2016, 1:29am UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/65 "2016-05-18T01:29:31Z")
> [@Tom\_Tildrum](#): > > _Obergefell_ stated that the equal protection argument was only one alternative basis for the decision, while its primary rationale was the Due Process Clause. As I noted above, the Court identified four factors making marriage a fundamental due process right, and presumably the parties seeking to strike down a hypothetical state polygamy law would have to show that polygamous marriage does not satisfy all four of those factors. Purely IMO, I think it does, if only because the factors are so broad. > > As I also mentioned, the _Obergefell_ opinion does include the term “two-person” here and there, and (again purely IMO) its use of the term is notable for how arbitrarily it is tacked on. There is no actual reasoning set forth in _Obergefell_ to justify a two-person limitation . . . Well, perhaps it appears “tacked on” with no “actual reasoning” because, in _Obergefell_ the exclusive nature of marriage was not in issue. It was common to the position of both parties; therefore no need to explain or analyse it. The court only has to answer the questions raised by the case before it. In a hypothetical future case where the exclusive nature of marriage is challenged, I don’t think the court has to dismiss what _Obergefell_ has to say on the basis that the reasoning wasn’t set out. Rather they can note what _Obergefell_ had to say, note that the justification for saying it is now in issue, and then embark on a consideration of whether it is justified or not. The key issue here, I think, is that marriage isn’t a legal fiction (like, say, the incorporation of a limited liability trading company, or the conferring of legal personality on a governmental entity). It’s the legal recognition of an established social reality. People do enter into marriage vows with one another, and this changes not only the relationship between them as individuals but also the relationship between them as a couple and their families, their friends and neighbours and their wider society. Marriage is established by social conventions and practices which the law then recognises, for the pragmatic reason that refusing to recognise reality is generally a bad thing. Right. Given that, a successful case for the recognition of polygamous marriage has to point to a real, subsisting institutions of polygamous marriage which is practiced by the people who enter into it and recognised, accepted and supported by their families, friends, neighbours and wider society. (To be recognised, the polygamous marriage must _also_ conform to constitutional norms like equal protection, but that characteristic alone would not in itself create a compelling case for recognition.) If your argument for recognition is based on any kind of analogy to currently-recognised marriage, then what you want recognised must in fact be analogous to currently-recognised marriage. Which means it must actually exist as an established social institution. And if we don’t already have established answers to the questions raised by Strassia, then it clearly doesn’t exist as a social institution. If we have to think about what the answers ought to be, rather than simply looking about us to see what the answers already are, we don’t yet have a social reality for which we can seek legal recognition. ---
**Author:** ![T.M](https://avatars.discourse-cdn.com/v4/letter/t/ad7895/32.png) [@T.M](https://boards.straightdope.com/u/T.M)\ **Post date:** [May 18, 2016, 12:08pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/66 "2016-05-18T12:08:15Z")
> [@Strassia](#): > > You have already been corrected on the current state of law with regards to foreign marriages that are banned in the U.S., but I want to reiterate that I, and I think everyone else in this thread, support decriminalizing non-fraudulent, legally consenting, multi-partner relationships and cohabitation. I know that some of these laws (usually referring to a “house of ill-repute”) were on the books and being sporadically enforced a decade or so ago, but I don’t care is five adults want to live together in any arrangement that suits all participants. > > I just won’t go to bat to give that relationship the same type of legal status as marriage until I see specifics that I can agree with on how it will work. I also need to see that enough people want it to make it worth the cost. Even it it meets all my ethical requirements, I don’t want my state to spend the millions of dollars it would require to write, pass, and implement an entirely new family law paradigm that only benefits one five person poly group, but leaves all the other poly configurations out in the cold. Lets make it clear I am a firm believer in marriage and if it came down to a vote I would vote against polygamy as marriage is not only a religious ceremony it is also a legal contract. The only way for it to work is for any legal benefits to apply to the first wife only the other to be wives by name only. As for the honeymoon couple do you stop them from entering the country? Do you arrest him on charges of sexual assault? Or do you ignore the issue? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [May 18, 2016, 12:58pm UTC](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631/67 "2016-05-18T12:58:59Z")
> [@UDS](#): > > Marriage is established by social conventions and practices which the law then recognises, for the pragmatic reason that refusing to recognise reality is generally a bad thing. > > Right. Given that, a successful case for the recognition of polygamous marriage has to point to a real, subsisting institutions of polygamous marriage which is practiced by the people who enter into it and recognised, accepted and supported by their families, friends, neighbours and wider society. (To be recognised, the polygamous marriage must _also_ conform to constitutional norms like equal protection, but that characteristic alone would not in itself create a compelling case for recognition.) If your argument for recognition is based on any kind of analogy to currently-recognised marriage, then what you want recognised must in fact be analogous to currently-recognised marriage. Which means it must actually exist as an established social institution. I don’t think I’d go so far as to say it must already exist, given its illegality. But I agree with the foundation of what you are saying, which is that an analogy to extant marriage must actually be valid to be persuasive. For me, as well, the question will and must arise about how two person marriage would be defined going forward. Would the creation of plural marriage impact couple marriage, either going forward or retroactively? Right now, I cannot see any way to have plural marriage that does not create a new type of marriage. Not open up the previous type to more people (as lifting bans on interracial and SS marriages did), but an actual new type of marriage with new rules, privileges, and processes. The people who handwave that away with an “Oh, people will just go to a lawyer” are ignoring that people who couple marry do not go to a lawyer to determine what the rules are. They can go to a lawyer to tweak things along the edges, but they do not change the law that way, or impact how others must interact with them. You cannot write a contract that has the effect of marriage laws. That is why SSM was so important. If you want to be able to write a contract that has the effect of marriage laws, that’s a big fucking deal and it does not currently exist. [Previous page](https://boards.straightdope.com/t/if-utah-make-polygamy-legal/754631.md?page=3)