As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.
Rather than struggling to concoct convoluted schemes for determining which adults will get their rights and which won't, how about doing the simple, honest, and fair thing of actually supporting equality?
What it boils down to is that when the government wants to exclude groups from something important like marriage, it has to show good reasons for the exclusion. And prejudice—simply thinking something is “icky”—doesn’t count as a reason.
Correct. That is Discredited Argument #1.
In private conversations with leaders in the marriage movement, I often hear two responses. The first is that there is no political energy behind a fight for incestuous or polygamous marriages.
That is more or less Discredited Argument #3. How many Vietnamese were there in the US when African-Americans fought for civil rights based on race? Not a lot, but does that mean the Vietnamese Americans shouldn't have their rights?
The second is that they would be fine if those restrictions fell as well but, in effect, “don’t quote me on that.”
Yes, I get that, too.
Greenfield then goes on to go over what the objections are to full marriage equality, especially relating to the polygamous and consanguineous freedoms to marry, doing a good job of exposing Discredited Arguments #1, 6, 8, 9, 17, and 18.
Polygamy and Incest are Choices.If the coercion argument doesn’t persuade, we could swing the other way and say sexual orientation is hard wired, but polygamy and incest are choices. In equal-protection analysis, the Court has suggested that discrimination based on immutable characteristics is more suspect, meaning the government has to show a more significant justification for the classification.
But arguments from immutability are awkward in this context. Maybe I am speaking out of school here, but arguments for marriage equality do not really depend on the claim that people have no choice about who they are. Rather, the argument that resonates most with Americans is that LGBTQ people have the same right to make choices about their families as straight people. Let’s be honest: If science revealed tomorrow that sexual orientation is fluid and changeable, the arguments in favor of marriage equality would essentially be the same, wouldn’t they? Just like our arguments for religious liberty do not depend on whether people are destined by biology to be a Methodist, our arguments about the liberty to marry need not depend on science. In any event, if we throw all our eggs in the “it’s about the hardwiring” basket, are we sure we have made the distinction we want? Are we confident that science will show that people who are polyamorous or who are attracted to a cousin are not hardwired that way?
Some people are people who are polyamorous as who they are. We also do not choose who are genetic relatives are going to be. So, we are born that way.
It's very simple. We need to adopt into law something along the lines of the Marriage Equality Amendment. That is a statement of equality rather than division, othering, and discrimination. I call on the progressive states to take the lead and set an example in their own law, and thereby reaping the financial benefits of more weddings.
LGBTQ Groups are Less Politically Powerful.The conventional view of the equal protection clause is that it empowers courts to step in to protect—in the words of the leading Supreme Court case on point—“discrete and insular” groups that are systemically disadvantaged in the political process. So to make this argument, we’d have to say that gay-rights groups are less influential in mainstream politics than those who advocate for polyamory and consensual incest. That seems flat wrong. Political successes with regard to same-sex marriage are only recent, to be sure. But the political trend is clear, and marriage equality will be a reality for most same-sex couples in America in the foreseeable future. If anything, the argument from political disenfranchisement cuts the other way—that polygamous and incestuous couples deserve more constitutional protection than same-sex couples.