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.
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.
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 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:
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.
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?
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.