Can the government really limit marriage to two people?

There’s an interesting question for you. The government (at both the state and federal level) has been sticking its beak into the concept of marriage pretty much since the founding of the nation. We went through many iterations of what the government could and couldn’t regulate over the generations, with the trend always being toward fewer restrictions. Prohibitions against interracial marriage were done away with, as well as interfaith marriages in some states. The last big change was, of course, the prohibition against same-sex marriages. But is there one definition left that may be going the way of the dodo? How about the idea that marriage must, by definition, be between two people, with any number greater than two constituting bigamy, which is still illegal?

John Hirschauer at National Review tackled that challenge this week. While he’s clearly against any more changes (and some of the previous ones, I presume), he seems to feel that a challenge demanding polyamorous (or plural) marriages might survive in the courts.

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?

Hirschauer’s analysis is full of good legal research combined with a healthy bit of snark, scoffing at the idea of plural marriage but clearly concerned that recent court rulings have built a bridge to polygamous marriage that might withstand any assault. And while I respect his religious beliefs, I find myself asking… why not?

Yes, the idea of polygamous marriage sounds silly to me because I also grew up understanding that marriage was a union between two people. Generally, two people with different plumbing, to boot. But when I force myself to consider the question on its raw merits, I find myself going back to my opinion on gay marriage, which I published here many times during that whole debate. I’ll summarize it again here briefly. When asked if I “support gay marriage” I generally always responded as follows:

No, I don’t support gay marriage. I don’t support straight marriage. I support my marriage and the rest of you are pretty much on your own. What I remain opposed to is the idea that the government – at any level – can demand a permission slip in the form of a license and charge a tax, calling it a fee, to receive a blessing from the government for two people to engage in a private ceremony before family and friends that affects nobody else on the planet.

Mind you, that’s only for the ceremonial “title” of being married. Questions of tax benefits or burdens, inheritance and all of the other baggage that goes along with it can be handled contractually whether you are married or not. When pressed for a solution to the previous conundrum, I always suggested that the word “marriage” be stripped from the tax codes entirely and from almost every other law as well. (I say “almost” because the government should still maintain the ability to protect the underage, the mentally impaired and others who can’t give meaningful consent from the possibility of marriage being used as a fig leaf to cover abuse.) But since our current government would never agree to all that, approving gay marriage was probably the only other choice, though far inferior to simply getting the government out of the business of marriage.

But if that’s my position (and it’s one I’ve been satisfied with for quite some time now), how can I justify the portion of that speech where I specify “two people to engage in a private ceremony?” As I said, the concept of a polyamorous relationship remains completely foreign and mystifying to me. I’ve barely been able to struggle along seeing to the needs and/or demands of one woman these past 25 years. The idea of doing that for two would leave me in a panic-induced coma.

But that’s just me. Who am I to say that three people couldn’t engage in such a private ceremony? More to the point, who is the government to say? I would fall back on the fundamental basis for how our governments should determine when a law is valid to pass. If we are to restrict the actions of free individual citizens, we should be able to answer one question. Is the action to be prohibited causing harm to or restricting the rights of other citizens? If the answer is yes it’s fair game for being restricted under law. If the answer is no, well… you’ve got a lot of explaining to do.

With that in mind, I would still never consider marrying more than one person. But I’m not sure the government should restrict it if that’s what they really want to do.