Court Ruling on Polygamy/Polyamory (New York)

[smac97]

Just saw this (published on 9/24) :

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"In Sum, the Problem With {the Same-Sex Marriage Cases} Is That They Recognize Only Two-Person Relationships"

A New York trial court judge concludes that polyamorous relationships are entitled to the sort of legal protection given to two-person relationships.

It's a fairly long read.  The key parts:

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The decision is yesterday's West 49th St., LLC v. O'Neill, decided by New York Civil Court Judge Karen May Bacdayan. Scott Anderson and Markyus O'Neill lived together in an apartment; Anderson was on the lease, and O'Neill was not. After Anderson died, O'Neill would have had the right to renew the lease if he were "a non-traditional family member," but Anderson was married to Robert Romano. The apartment building company therefore argued that O'Neill was just a roommate, but the court concluded that there needed to be a hearing about whether Anderson, Romano, and O'Neill were actually in a polyamorous relationship:

Before gay marriage was legalized in any state, Braschi v Stahl Assocs. Co. (N.Y. 1989) was decided. The New York State Court of Appeals became the first American appellate court to recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition, and that the nontraditional family member is entitled to receive noneviction protections. The Braschi court interpreted the Rent Control Law in effect at a time when there was no legal recognition of same-sex marriage, and broadly construed the law to effectuate its remedial purposes.

Braschi is widely regarded as a catalyst for the legal challenges and changes that ensued. By the end of 2014, gay marriage was legal in 35 states through either legislation or state court action. Obergefell v Hodges (2015), the seminal Supreme Court decision that established same-sex marriage as a constitutional right, was also heralded as groundbreaking. However, Braschi and its progeny and Obergefell limit their holdings to two-person relationships. The instant case presents the distinct and complex issue of significant multi-person relationships.

The Braschi court held:

"The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties. In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services … These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control."

The plurality, perhaps desiring not to go "too far," concluded that "the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics (emphasis added)." Appellant Braschi should therefore be afforded the opportunity to prove that he and Blanchard had such a household." The dissent[ ]took issue with the plurality's legal analysis and suggested that it unreasonably strained reach its ultimate holding. "… [W]e have no direct evidence of the term's [family] intended scope. The plurality's response to this problem is to turn to the dictionary and select one definition, from the several found there, which gives the regulation the desired expansive construction." However, had the Braschi court not extended itself to interpret the statute to provide noneviction protections to an unmarried same-sex couple, that community would have waited for over 20 years, when gay marriage was legalized in New York, to receive an equal opportunity to maintain housing stability after the death of a partner.

In one of many incremental steps toward the legalization of same-sex marriage, shortly after Braschi was decided the legislature amended the Rent Stabilization Code to add evidentiary factors to be considered when determining whether a person has sufficient emotional and financial commitment to the former tenant of record to qualify for non-eviction protections. These factors, none of which are solely determinative, include, without limitation:

1) "longevity of the relationship;

2) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

3) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;

4) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

5) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, conferring upon each other a power of attorney and/or authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

6) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

7) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;

engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship[.]"

This section further states, "In no event would evidence of a sexual relationship between such persons be required or considered."

Despite the documentary nature of many of the enumerated factors, "absence of documentary evidence does not undermine a succession claim when the totality of the testimonial evidence … establishes the requisite emotional and financial commitment (emphasis added)." …

Why then, except for the very real possibility of implicit majoritarian animus, is the limitation of two persons inserted into the definition of a family-like relationship for the purposes of receiving the same protections from eviction accorded to legally formalized or blood relationships? Is "two" a "code word" for monogamy? Why does a person have to be committed to one other person in only certain prescribed ways in order to enjoy stability in housing after the departure of a loved one? Why does the relationship have to be characterized by "exclusivity"? Why is holding each other out to the community as a family a factor? Perhaps, as in the instant case, the triad has chosen to closet their relationship from others? Perhaps the would-be successor is not "out". Maybe they do not believe their "real" family is open to alternative kinds of relationships. "Holding out" discounts the existence of prejudice and misunderstanding about communities and people that are not "normie." Do all nontraditional relationships have to comprise or include only two primary persons?

Indeed, the Braschi court's referral to "normal familial activities" reveals an intent to limit the application of noneviction protections to someone who can demonstrate a traditional marriage but for their sexual orientation. The Braschi decision, heralded as a radical leap—a discouragingly accurate characterization given the decades that passed before gay marriage was legalized—was still decided in "a relatively narrow and safe context." Paradoxically, the Braschi court's formulation of what comprises a nontraditional relationship is rooted in traditional ideology. {"The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of 'family' and with the expectations of individuals who live in such nuclear units…".}

However, what was "normal" or "nontraditional" in 1989 is not a barometer for what is normal or nontraditional now. Indeed, the definition of "family" has morphed considerably since 1989. Specifically, many articles have been written about multi-person relationships in recent years, revealing a preference that for some has long been known. For example, a recent article from The New Yorker magazine describes the broadening recognition of such relationships and how these relationships are challenging the norm:

"In February 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who 'consider themselves to be a family' to be recognized as domestic partners….[T]he neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents. In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents. American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?" { The New Yorker magazine, March 22, 2021 issue, How Polyamorists and Polygamists Are Challenging Family Norms. See also Polyamory and the Law, Harvard Law Today, August 3, 2021, available at https://hls.harvard.edu/today/polyamory-and-the-law/.}

This begs the question: Should a person who would not meet the requirements for succession to a rent stabilized apartment after Braschi was decided in 1989, now, 33 years later, be evicted when they may qualify, as was the concluded in Braschi, under a more inclusive interpretation of a family?

As stated by the Hon. Jenny Rivera in Green v Esplanade Venture Parthership (N.Y. 2021) [arguing that a person should be able to "recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond," and not just as to a family member -EV], "Scores of cases decided before and after Braschi prove that New York courts are well-equipped to apply a functional mode of analysis in order to identify strong and caring bonds, when the important remedial purposes of New York law so require." Citing to Zimmerman v Burton (N.Y. Civ. Ct. 1980), Judge Rivera notes that "[t]he law must keep abreast of changing moral standards" as the Zimmerman court did in recognizing the tenant succession rights of unmarried partners.

In sum, the problem with Braschi and Obergefell is that they recognize only two-person relationships. Those decisions, while revolutionary, still adhered to the majoritarian, societal view that only two people can have a family-like relationship; that only people who are "committed" in a way defined by certain traditional factors qualify for protection from "one of the harshest decrees known to the law—eviction from one's home."

Those decisions, however, open the door for consideration of other relational constructs; and, perhaps, the time has arrived. As Justice John Roberts foretold in his Obergefell dissent:

"Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

It is striking how much of the majority's reasoning would apply with equal force to the claim of a fundamental right to plural marriage…. If not having the opportunity to marry serves to disrespect and subordinate gay and lesbian couples, why wouldn't the same imposition of this disability … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships (internal quotation marks and citation omitted)?" …

Here, Mr. Anderson, Mr. Romano, and Mr. O'Neill had a relationship to one another. There was knowledge of all persons about the others and, at least, passive consent, even if they did not all like each other. Was the relationship a "good" one? Mr. Romano describes Mr. O'Neill as "intimidat[ing]," and Mr. O'Neill describes Mr. Romano as "abusive." It seems equally as unimportant as considering sexual relations to delve into the level of happiness in a relationship. Is one stripped of their rights to "marital property" on the basis of having a "bad" marriage? Would noneviction protections not devolve to an emotionally abusive spouse?

Both [O'Neill] and Mr. Romano profess to have loved and cared for Mr. Anderson deeply. Read together, their affidavits imply that Mr. Anderson loved both of them in different ways. The relationship between Mr. O'Neill cannot be dismissed based on the allegations that he did not always contribute to household expenses, or "did not pay his fair share of the rent or household expenses." This may, in fact, indicate a desire on Mr. Anderson's part to provide for Mr. O'Neill. Had Mr. Romano and Mr. Anderson chosen to live together, Mr. Anderson would very likely enjoy noneviction protections. However, they chose to live apart, and [O'Neill] was the one "at home." The existence of a triad should not automatically dismiss [O'Neill]'s claim to noneviction protections. If [O'Neill] could potentially qualify in his own right, it should not be a dispositive factor that another person who does not live in the subject could also qualify if only they lived in the apartment….

The court recognizes the difficulty and potential implications of not interpreting the Braschi court's interpretation of the word "family" as drawing a bright line which must end at what is now considered a traditional dyadic relationship. (The internet is rife with articles bemoaning the estate planning and child custody complications that arise from these new relational constructs.) But, "[w]e just do not know the answers or implications for an exponential number of varied fact situations, so we should do what courts are in the business of doing—deciding cases as best they fallibly can." Accordingly, the court declines to award either party summary judgment….

 

Eugene Volokh, the author of the piece, concludes:

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I should note that in Same-Sex Marriage and Slippery Slopes (2005), I argued that slippage from recognizing same-sex relationships to recognizing polyamorous relationships was unlikely, and I still tentatively think so; and this particular decision is, after all, the decision of just one judge at a relatively low-level court, who is expressly criticizing in part the decisions of the New York high court and the U.S. Supreme Court. Still, I thought the opinion was worth noting.

So this may not go anywhere.

Thanks,

-Smac

[The Nehor]

[Benjamin McGuire]

I am not sure that this creates the support for polygamy (at least not a formal support). One of the fascinating things about this issue is that this shift isn't really something new. In 1930, the Census Bureau changed its definition of "family" to be:

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A family consists of a householder and one or more other people living in the same household who are related to the householder by birth, marriage or adoption.

What did they change it from? Prior to 1930 their statement was:

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The term ‘family’ as here used signifies a group of persons, whether related by blood or not, who live together as one household, usually sharing the same table. One person living alone is counted as a family, and, on the other hand, the occupants or inmates of a hotel or institution, however numerous, are treated as a single family.

This idea of sharing a table was the core identifying feature of a 'family' for quite a long period of time. The problem that we face today is that the first definition (the more recent one involving marriage) is no longer adequate. The rise in cohabiting adults (many of whom have children together) and other non-traditional family structures has challenged the requirement for marriage in the definition of family. On the other hand, as this case shows, we have used the term "family" in a great deal of legislation - and I suspect this was done without more narrowly defining what was meant by the term family, and it was done on the assumption that the definition of a family would be fairly stable. And while cases like this may lead to more specific definitions in terms of legislation, it leaves a lot of legal material from the last century in a less determinate state.

Edited October 4, 2022 by Benjamin McGuire

[Tacenda]

The Brown family in Sister Wives is falling apart from problems with one wife leaving Kody, and another that doesn't get any romantic love from Kody and the other wife stays with him but it's mainly a platonic relationship, and with one wife only that Kody gives most of his time, love, romance to. 

[Calm]

8 hours ago, Benjamin McGuire said:

This idea of sharing a table was the core identifying feature of a 'family' for quite a long period of time.

I love this. 

[smac97]

More here:

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COMING SOON: POLYGAMY

You could see this one coming a mile away, and many of us did. When the Supreme Court declared that there is no rational reason to deny the right of two people of the same sex to marry–love is love!–it eliminated the teleological foundation of marriage and the family. If marriage is no longer grounded in the biology of reproduction–it takes two, a man and a woman, to make a child–then the number two is likewise irrational. If George and Ken can be in love, and therefore entitled to marry, then why can’t George, Ken and Susan?

The inevitable has happened, as a court in New York seems to be the first to extend the logic of Obergefell to polygamous relationships. FrontPage reports:

New York City’s eviction court – the venue of a landmark same-sex relationship decision long before Obergefell v Hodges – is now the source of a legal opinion that comes down clearly on the side of polyamorous unions.

The decision came in the case of West 49th St., LLC v. O’Neill, decided by New York Civil Court Judge Karen May Bacdayan, concluded that polyamorous relationships are entitled to the same sort of legal protection given to two-person relationships.

In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who ‘consider themselves to be a family’ to be recognized as domestic partners. The neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. “The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents.”

“Why then,” posited the judge, “except for the very real possibility of implicit majoritarian animus, is the limitation of two persons inserted into the definition of a family-like relationship for the purposes of receiving the same protections from eviction accorded to legally formalized or blood relationships? Is ‘two’ a ‘code word’ for monogamy? Why does a person have to be committed to one other person in only certain prescribed ways in order to enjoy stability in housing after the departure of a loved one?”

Chief Justice John Roberts was one of many who saw where the logic of Obergefell would lead. He wrote, in dissenting from that decision:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

Exactly. If you take biology out of the mix, “two” is an arbitrary and irrational number. And in the short time that has gone by since Obergefell, the concept of biology itself has come under widespread attack. If things continue on their present course–and they will, absent a vastly invigorated conservative movement–the “right” to polygamy will soon be established. Which is to say that the rest of us will have polygamy jammed down our throats.

I made a similar observation back in 2016:

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My personal opinion is that legalization of polygamy is a matter of when, not if.  Once the traditional understanding of marriage is destroyed (SSM is doing that), once marriage as a concept is decoupled from procreation (SSM is doing that), once marriage becomes just another type of contract (SSM is doing that), then polygamy is essentially indistinguishable from same-sex marriage.  So if the latter is a constitutional right, then so is the former.  If the states are constitutionally prohibited from defining marriage as to gender, how on earth can they be constitutionally permitted to define marriage as to number?  The eventual answer to this question is . . . they are not so permitted.  We have destroyed the traditional purpose and function of marriage (from the government's point of view, anyway).  We did so by legalizing same-sex marriage.  So polygamy is, I think, well on its way.

I also made this prediction (same link) :

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Further to the above ideas, if and when polygamy is legalized, I think it will arise not from legislation, but from judicial fiat.  When the Supreme Court radically re-defined marriage to include same-sex marriage, it created the precedent for the legalization of polygamy.

I also raised some of practical difficulties that will arise when polygamy is legalized (same link) :

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Seriously, though. I haven't thought much of legalizing polygamy.  I'm just saying if as I consider it and it comes down to what it did for me regarding SSM, I might support it.  I'm all for consenting adults living as they deem necessary, as long as it doesn't hurt others. 

That sounds nice in the abstract.  But I think we should think the matter through.  For example, consider the complications that arise when "consenting adults" withdraw their consent.  When they get a divorce.  Think about things like child support, child custody, alimony, visitation schedules, division of assets, and so on.  Think about how difficult a job it is for the courts to manage such issues in the breakup of a binary marriage.  With multiple parties (say, three wives and one husband, or four husbands and one wife, or three husbands and two wives, and . . . you get the idea), it will be a nightmare.

What about property ownership during the marriage?  Will lenders be willing to loan money for, say, a home to a marital group of five people?  Six?  Will they be allowed to not loan money based on marital status (probably not)?  Will this present an increased risk to lenders?  Will lenders increase interest rates to offset those risks?

What about taxes?  How will tax deductions work where a married group may have four or five or six wage-earners, but who will be entitled to the same sort of tax deductions and breaks as binary couples?  Is that fair?  Will that materially affect the amount of taxes collected?  Will collected taxes go up or down?  If down, will the government raise taxes on everyone to offset the diminished revenues owing to group marriages?

I'm just spitballing here.  I think a more rigorous examination of the prospective problems associated with legalizing polygamy would be much more sobering.  Here's one preliminary effort (emphasis added) :

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Legalizing polygamy would not be anywhere near so simple {compared to the legalization of same-sex marriage}. It would require an extensive reworking of our law in many areas in order to be workable. Will these be treated as one group marriage (rather like a business association, which would then be governed by a board of some sort), or a series of (nonexclusive) binary marriage contracts? With multiple legal spouses, what do we do about insurance benefits? Who gets to make medical decisions? Child custody issues? Does a polygamous spouse get the immigration benefits of marriage? Which spouse gets social security benefits, or do you allocate them pro rata among all spouses or something like that? How would intestacy work? The practical challenges to legalizing polygamy would be legion.

These legal challenges could be solved by motivated legislatures committed to solving them. After all, writing laws is what they do, and certainly creative solutions to these kinds of conundrums could be found. But in the absence of a substantial constituency backed by public opinion stumping for such legal marital structures, it just ain’t gonna happen.

And yet it's a constitutional right, isn't it?  So I'm not sure a "substantial constituency backed by public opinion" is going to be required.  After Obergefell, the pro-polygamy folks are pretty much pushing on an open door.

And here:

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Well it sounds like you have some ideas right there to differentiate the cases of SSM and polygamy. 

No, not really.  From a constitutional rights perspective, these problems are irrelevant.  Imagine the Supreme Court in Brown v. Board of Education saying something like "Well, yes, race-based segregation of public schools in unconstitutional, but desegregation will be a hassle, so we'll allow this unconstitutional state of things to continue."

If SSM is a constitutional right, then so is polygamy.  That's the argument.  And it seems like a pretty good one.  That it is a right that will be incredibly difficult to implement is irrelevant.

And here:

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Intrinsic parts of family law include there only being two people in a marriage,

Yeah, well, we're well past that.  Male/female duality in a marriage was also "intrinsic" in the American legal treatment of marriage.  Until five justices on the Supreme Court decided it wasn't intrinsic after all.

If the Supreme Court can tinger with the definition of marriage as to gender, why can't it also tinger with the definition as to number?

And here:

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Of course. But I don't think there is a strong argument that it is Constitutional, and I don't think there will ever be a strong advocate to ever seriously try.

Oh, I imagine Kody Brown and/or some others will give it a try.  It's not that hard.  Have the group go to a county clerk and ask for a marriage license authorizing all three to marry each other.  They will be turned down.  They file suit, lose at the trial court, appeal, lost at the state or federal appellate courts, appeal, and so on.  Eventually, I think someone will end up at SCOTUS.

I agree that there is not a strong argument for constitutionally-mandated recognition of polygamy.  But then, I thought the same about same-sex marriage.  

If anything, I'd say that polygamists have a better constitutional argument as compared to the same-sex folks.  

And here:

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Male/female duality in a marriage was also "intrinsic" in the American legal treatment of marriage.  Until five justices on the Supreme Court decided it wasn't intrinsic after all.

No and no. "Male/female" duality was an arbitrary restriction,

 

Not so.  Marriage's relationship to procreation, to the next generation of taxpayers, was long the basis of the government's interest in regulating marriage.  Not arbitrary at all.

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in the same way that "of the same race" was also arbitrary.

 

Ah.  So why can't we say "The number of people who can be in a marital relationship with each other is an arbitrary restriction, the same way that 'of the same race' was also arbitrary"?

Anti-Miscegenation laws were fairly different.  In Loving v. Virginia, Justice Warren said that marriage was a one of the "basic civil rights of man" and that this right is "fundamental to our very existence and survival." See here. This may sound like picking a nit, but it is not, as "basic" and "fundamental," at least in this usage, are not synonymous. Further, it can be seen from the quote that Justice Warren is actually quoting someone else in his assertion. Here is the actual wording he is quoting, from the case Skinner v. Oklahoma, rendered by Justice Douglas:

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We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.

This original quote makes it clear that the reason marriage is "fundamental to our very existence and survival" (as Justice Warren said) is because of procreation. (The Skinner v. Oklahoma case had to do with the forced sterilization of "habitual criminals," not with marriage, per se.) To assert that the procreative aspect of marriage should not be considered when applying Justice Warren's paraphrase of Justice Douglas' statement which specifically cites marriage and procreation is a classic example of leaving out inconvenient facts and possibly twisting a statement to mean something it didn't originally mean.

Justice Warren also directs readers to the case of Maynard v. Hill (1888), which can be found here. That case talks about, among other things, how basic marriage is to society, even that it has "more to do with the morals and civilization of a people than any other institution." It also quotes the Supreme Court of Rhode Island (among others) which said that marriage "signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable."

As I see it, the "basic" and "fundamental" characterizations of marriage which Justice Warren had in mind pertained to a husband and wife, and included the promise, at least generally, of a procreative component. He could not see that limiting such marriages through anti-miscegenation laws was lawful, but it is--at least on the surface--a definite stretch to say that marriages between two people of the same sex, which precludes the potential of procreation that Justice Warren thought critical, would be considered either "basic" or "fundamental" by him.

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Marriage laws are all based on there being two people in the partnership.

Well, that's not quite complete.

Until recently, marriage had long been defined as the association of people based on the attributes of those people, including

• A) gender (a man and a woman),
• B) number (two people),
• C) age (the minimum age varies by jurisdiction a bit),
• D) mental capacity (the specific minimum requirements may vary a bit by jurisdiction),
• E) consent (no coerced marriages),
• F) consanguinity (no incest), and
• G) species (no human / non-human marriages).

The Supreme Court has knocked down one of these (gender), so it seems that some (all?) of the others are likewise susceptible to being constitutionally tossed out.  As I see it, the "age" and "mental capacity" and "consent" criteria can be tweaked a bit, but are otherwise probably not going anywhere (though not based on constitutional considerations).  But the others are probably susceptible to being tossed (as the first one, "gender," already has been).
...
 

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But the laws don't make sense if the number of people in the partnership is something other than two. That is why sex is arbitrary, but number is not.

I don't understand.  You are presenting logistical problems, but they aren't insurmountable.

And in any case, so what?  There were logistical problems when same-sex marriages were legalized, but we sorted them out because a constitutional right was in play.

So if there is a constitutional right to polygamy, the logistical problems are not an impediment.

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Arguments for same-sex marriage are along the lines of, "we want to marry the person who we choose and receive the same benefits that other people receive who marry the people who they choose."

And arguments for polygamous marriage are along the lines of, "we want to marry the persons whom we choose and receive the same benefits that other people receive who marry the people who they choose."
...
 

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Legalizing polygamy would have countless logistical nightmares because marriage is intrinsically a two-person affair.

So what?  Since when are logistical difficulties a basis to deny someone constitutional rights?

...

Nobody, and I mean nobody, every argued that same-sex marriage should be legalized because the logistics were relatively easy to sort out.  The argument was that same-sex marriage was a constitutional right.  Logistical difficulties were not a primary concern.

So it may end up being re: polygamy.  If there is a constitutional right to it, then that settles the question.  Sorting out the logistics is a downstream consideration.

And here:

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It appears the Constitutional basis in Overgefell was "right to marry", individual autonomy etc. I think it would be difficult to show that todays Constitutional standard for the right to marry and individual freedom do not apply to a individuals seeking legal plural marriage.

I agree.  The government's interest in regulating marriage was previously predicated on marriage's relationship with procreation, with the continued existence of our country through the begetting of the next generation of taxpayers, farmers, soldiers, doctors, teachers, parents, etc.

Polygamy plainly hews far close to that governmental interest than same-sex marriage.  A child born to a same-sex couple is a biological impossibility.  In contrast, a child born to a polygamous family is a standard and expected thing.

We used Obergefell to knock down a fundamental - in my view, the most fundamental - part of Chesterton's Fence defining the parameters of marriage (the pairing of male and female).  Knocking down the rest is just a matter of time.

I should also note here that the undermining of the institution of marriage is not restricted to re-defining it out of existence.  Fornication, promiscuity, pornography, infidelity, abuse, and other varied violations of both the letter and the spirit of the Law of Chastity have also done significant damage.

Thanks,

-Smac

[The Nehor]

3 hours ago, smac97 said:

We used Obergefell to knock down a fundamental - in my view, the most fundamental - part of Chesterton's Fence defining the parameters of marriage (the pairing of male and female).  Knocking down the rest is just a matter of time.

I should also note here that the undermining of the institution of marriage is not restricted to re-defining it out of existence.  Fornication, promiscuity, pornography, infidelity, abuse, and other varied violations of both the letter and the spirit of the Law of Chastity have also done significant damage.

Considering the legal reasoning of Obergefell died with Roe I think your supposition that this change is inevitable are dubious. We can now knock down threats to marriage like gay marriage, sodomy (hopefully equally applied to heterosexual couples this time), contraception, miscegenation, all the evils that have undermined marriage can be knocked out.

[smac97]

45 minutes ago, The Nehor said:

Considering the legal reasoning of Obergefell died with Roe I think your supposition that this change is inevitable are dubious.

I'm not sure about that.  I suspect you are paying more attention to the dissenting opinion (which is not binding) and Justice Thomas's concurring opinion (also not binding) than to the majority opinion (which is).  The majority opinion went out of its way to differentiate and distinguish its holding re: abortion from Obergefell:

• "The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a 'potential life,' but an abortion has that effect."
• "Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would 'threaten the Court’s precedents holding that the Due Process Clause protects other rights.'  Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479).  That is not correct for reasons we have already discussed.  As even the Casey plurality recognized, '[a]bortion is a unique act' because it terminates 'life or potential life.'  505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is 'inherently different from marital intimacy,' 'marriage,' or 'procreation'). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
• "Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. {}  But we have stated unequivocally that '[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.' {} We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'  Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852.  Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by 'appeals to a broader right to autonomy.' {} It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence."

The "legal reasoning of Obergefell" is expressly differentiated from the "legal reasoning" in Dobbs.  

Thanks,

-Smac

Edited October 7, 2022 by smac97

[The Nehor]

10 hours ago, smac97 said:

I'm not sure about that.  I suspect you are paying more attention to the dissenting opinion (which is not binding) and Justice Thomas's concurring opinion (also not binding) than to the majority opinion (which is).  The majority opinion went out of its way to differentiate and distinguish its holding re: abortion from Obergefell:

• "The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a 'potential life,' but an abortion has that effect."
• "Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would 'threaten the Court’s precedents holding that the Due Process Clause protects other rights.'  Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479).  That is not correct for reasons we have already discussed.  As even the Casey plurality recognized, '[a]bortion is a unique act' because it terminates 'life or potential life.'  505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is 'inherently different from marital intimacy,' 'marriage,' or 'procreation'). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
• "Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. {}  But we have stated unequivocally that '[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.' {} We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'  Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852.  Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by 'appeals to a broader right to autonomy.' {} It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence."

The "legal reasoning of Obergefell" is expressly differentiated from the "legal reasoning" in Dobbs.  

Thanks,

-Smac

It is true that the majority opinion said that but I quite bluntly don’t trust these justices to feel in any way bound by that opinion. They expressly say there is a differentiation but the rulings were all based on (roughly) the same constitutional reasoning. If one domino falls the others are much easier to knock over.