Up to now, the Supreme Court has punted on the issue of gay marriage. That’s pretty typical actually. In the 1960s, a very liberal Supreme Court jumped into all kinds of issues, like those involving race, abortion and the death penalty. That court thought that the public was moving left quickly and liberals felt that the court could speed up the process by just jumping to the end legally.
The results were a disaster for the left.
Those decisions resulted in a massive backlash which not only stopped society’s leftward drift cold, but started a four decade push back which has almost completely set the clock back to the way it was before the liberal court started tinkering. Even a lot of liberals, like Justice Ginsberg, have recognized this and they have become wary of trying to drive society through the courts. Thus, the court has become much more cautious about trying to change American society by legal fiat. Ergo, the court will be (and has been) very cautious about imposing gay marriage.
That said, from a legal standpoint, gay marriage is inevitable. Here’s why.
When the federal government hands out rights and benefits, it cannot discriminate. Marriage, as it currently exists, is a right (with associated benefits) created by law, and if Congress wanted to end it, it could. There is no natural right to marriage. Indeed, the only form of “marriage” the government recognizes is the legal relationship established under law in which two adults are given a special connected status that entitles them to certain tax treatments, to collect certain benefits, and to engage in certain activities. These are rights and benefit single people are not allowed to collect.
And before we continue, it’s worth understanding why this is allowed, because this obviously discriminates against single people. The answer is that the government is allowed to discriminate where it can demonstrate a sufficiently high justification for that discrimination. In the case of marriage, there is a presumption that encouraging people to marry is good for society for any number of reasons and makes society function more smoothly. Those reasons are sufficiently compelling to justify the government granting the institution of marriage and giving it special privileges, even if that discriminates against non-married citizens.
So how do gays fit into this?
As I said, when the government hands out a right/benefit, it cannot discriminate in whom it gives that right/benefit to without a really compelling reason. And “morality” is not a compelling reason. Compelling reasons tend to involve economics, the orderly administration of society, or the prevention of personal injury. So what is the compelling reason to stop gays from marrying?
It’s easy to see why children can’t marry. Marriage requires two people who are capable of exercising independent judgment and giving valid consent. Children are presumed to lack that capacity because of their immaturity. Thus, it is justified to discriminate against children by legally preventing children from marrying. It’s also easy to see why you can’t marry someone in a coma... lack of consent. Thus, it is justified to discriminate against the unconscious by legally preventing coma patients from marrying. It’s easy to see why you can’t marry a blood relative... the proven genetic damage to children resulting from inbreeding. Thus, it is easy to see why it is justified to discriminate against people who are related by legally preventing them from marrying.
It’s also easy to see why laws banning interracial marriage were struck down. Those laws were premised on “morality,” i.e. some people claimed it was immoral to allow people of different races to marry. But morality is not a valid basis for legal discrimination because “morality” is simply opinion about what conduct people who subscribe to that definition of morality find acceptable or objectionable. The law demands more. It demands a showing of societal effect separate and apart from “your view of what society should be like.” Since there was no other reason to prohibit interracial marriage except “morality,” the court struck those laws down as unlawfully discriminatory.
With gays, it’s the same thing. Other than morality, which is disputed and not a basis for legal discrimination in any event, what is the justification for allowing the government to discriminate against people who want to marry others of the same sex? Allowing this would not sanction a crime. It would not disrupt society. There is no injury concern. It would have minimal economic consequences, and it’s not clear that the benefits don’t outweigh the negatives. That leaves the court with no valid legal basis to support discrimination. Thus, the court is highly likely to strike down the limitation within the law which says this marriage must involve opposite sex partners.
In a way, this is the same legal problem as if the government decided that plumbers could not marry each other. There is no economic, criminal, personal injury, or orderly society reason to justify such a law. Thus, it would be struck down.
That’s why the court will ultimately grant this right.
But this won’t work for polygamists. Why? Because polygamists are not seeking to be granted the “right” to marry, they are seeking to expand the right itself. In other words, whereas gays and interracial couples claimed that they were being unfairly excluded from the right Congress created, polygamists would be arguing that Congress should have made a different right, one that allows for all kinds of group arrangements.
That’s a very different issue and courts don’t let you do that... you can’t expand a legislatively created right by court order. Said differently, if the federal government decides to hand out cars, you can stop it from discriminating against you in the handing out of cars, but you can’t force it to hand out houses instead.
The only way polygamists can force such a change would be by proving a general “right to marry” within the Constitution, which would then require Congress to pass laws affirming that right. But that won’t happen. For one thing, there is nothing in the Constitution which even suggests such a right. For another, the Supreme Court has repeatedly refused to find such a right when people have argued for it. Also, granting such a generalize right would be too disruptive of society; the Supreme Court simply doesn’t grant such broad, unfettered rights, even when they are in the Constitution... which this is not.
This is why (1) the Court will take its time in issuing a ruling on gay marriage, but (2) when it does, it will grant such a right, and (3) it won’t grant polygamists the same rights.