Opponents of gay rights often warn that legalizing same-sex marriage would inexorably lead to legalizing polygamy. Maybe it would, and maybe it should. Denying gay couples the right to marry violates state constitutional guarantees of equality, as the California and Massachusetts high courts have rightly ruled. (The Supreme Court of California also held that the right to marry is fundamental.) Surely Mormons have the same rights to equal treatment under law—and of course, they have a substantial First Amendment claim to engage in multiple marriages according to the dictates of their faith.
So why is polygamy illegal? Why don’t Mormons have the right to enter into multiple marriages sanctified by their church, if not the state? There’s a short answer to this question but not a very good one: polygamy is illegal and unprotected by the Constitution because the Supreme Court doesn’t like it.
It didn’t like it in the past. That was a long time ago. Maybe this court will be friendlier to full marriage equality.
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