In response to the Brown family retaining me as counsel in their lawsuit against the state of Utah, I would like to inform them that I accept their offer and declare that I am taking their case. In light of this, I would advise for them to take this case to court not only on the premise of the Obergefell v. Hodge and Lawrence v. Texas decisions, but as well as some other establishments in our Constitution. Aside from the two cases mentioned above, I would like to point out that the Utah bigamy law, though morally understandable for many, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise of religion, freedom of speech, freedom of association, and the ban on the establishment of state religion protected under the 1st Amendment. With that being said, I would like to explore the several points made by Justice Kennedy in regards to same-sex marriage that consistently apply with the case of polygamy.
Firstly, in Obergefell v. Hodges, Justice Kennedy states that same-sex couples have the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser.” In respect to that being said, I see few arguments as to how that is any different between a family of three seeking the same rights and concerns for their children. Perhaps the only true difference between cases against same-sex marriage and polyamorous relationships is that polygamy lacks support from the general public. However, I believe that the gap between same-sex marriage and plural marriage is actually quite small, specifically on the basis of Obergefell. After analyzing the majority’s opinion, I came to realize that it mostly focused on the “fundamental right to marry” protected under the 14th Amendment of the Constitution, which only brings me to my next point. In Obergefell, the “fundamental right to marry” is loosely described in terms of autonomy and personal fulfillment, which therefore inherently should include groups of consenting adults who believe in polyamorous relationships and wish to revolve their family around such a lifestyle. Regardless, over the past 50 years the definition of the “fundamental right to marry” has completely transformed and with it being upheld through the many marriage cases that the Supreme Court has taken, so has the “fundamental right to privacy.”
Secondly, like same-sex marriage, polyamorous marriage is not “deeply rooted” in our nation’s history. Again, in Obergefell, the court constantly reiterated that marriage is a legal and social right and that by denying gay couples the right to marry, states were hindering them from obtaining said legal and social rights. That being said, I stress, again, that the case for polygamy is akin to the case for same-sex marriage. Since the majority opinion in Obergefell stressed the importance of making the rights said above available to all married individuals, I don’t see a reason as to why the number can’t go beyond two.
Lastly, under the 1st Amendment of our Constitution, the freedom of religion prevents the government from establishing any official religion within the United States. As citizens of the United States, the Brown family has the right to exercise their religious rights. Again, that being said, their polygamous decisions in regards to their intimate life does not hurt or infringe on anyone, other than on a moral spectrum. Therefore, it should be protected under the First Amendment.
Though chances for the Brown family to win this case are currently very slim, I believe that in the following years the case against polygamy will, legally, be insubstantial to keep the practice illegal. Though Obergefell widened the definition to the “fundamental right to marry”, the wide opposition against polygamy will most likely stay strong. Even if polygamy is held to be a fundamental right, it is unknown on what basis the Supreme Court will rule the case. Therefore, I cannot give a solid decision to the issue being presented and can only go as far as giving you the information presented in the preceding paragraphs.
2017