Rauch proceeds to address the strict-scrutiny standard, whereby a future court, weighing the merits of polygamous “marriage,” would consider whether a state’s refusal to recognize polygamous marriages amounts to a violation of the 14th Amendment, as refusal to recognize same-sex marriages did in Obergefell. He answers by citing a handful of tenuous moral arguments and asserts that the polygamist’s “case is trivially easy to distinguish from [the one underpinning] Obergefell, which was based on a very different kind of moral, social, and legal proposition.”
Except it’s not at all easy, much less trivially so, to distinguish between the merits of the two propositions. The majority in Obergefell did not find the fact that the West, for at least two millennia, held a stable conception of marriage — a union between one man and one woman, open to procreation and the rearing of children — compelling grounds to reject the claims of the plaintiffs. Obergefell clearly conceives of marriage as a “right” — civil, legal, and moral — to be extended to consenting claimants, with only passing regard for the existing strictures of the institution. Anthony Kennedy’s opinion uses a nebulous, inchoate definition of marriage predicated on poetic notions of “dignity” and “love” rather than the traditional, unbroken consensus of Western civilization. Why would the Court find the traditional restriction of marriage to a union between two persons a compelling reason to withhold the right to marry from three (or more) claimants?
If “love,” “dignity,” and the pursuant tax advantages are the constitutive parts of marriage, on what grounds would Rauch or the courts withhold those “rights” from polygamous unions?