The Massachusetts Supreme Judicial Court’s opinion in Elia-Warnken v. Elia, (MA Sup. Jud. Ct., July 26, 2012) brings the uneasy relationship between same-sex marriage and polygamy into focus.
Todd Elia-Warnken entered into a same-sex civil union in Vermont, and subsequently entered into a same-sex marriage in Massachusetts. Todd never dissolved the Vermont civil union. Then in Massachusetts, Todd filed for divorce. In order to grant a divorce, a marriage must be valid in the first place. The SJC considered whether Massachusetts views the Vermont civil union as if it were a marriage. If the civil union is considered a marriage, then the second marriage was not valid, as Todd violated the polygamy statute (and presumably Todd would not be entitled to any division of assets from the latter divorce).
Here is the key analysis:
Pursuant to Massachusetts law, polygamy is illegal; a marriage is not valid if “either party … has a former wife or husband living.” G.L. c. 207, § 4. If the polygamy statute applies to the plaintiff’s civil union, his subsequent marriage to the defendant was void ab initio. G.L. c. 207, § 8. We apply principles of comity to determine whether the plaintiff’s Vermont civil union is the equivalent of marriage in the Commonwealth and, therefore, under the purview of the polygamy statutes. . . . We shall recognize a Vermont civil union as the equivalent of marriage in the Commonwealth under principles of comity. . . .
The plaintiff has a spouse in Vermont; therefore, his marriage to the defendant was void ab initio. . . .
We answer the reported question in the affirmative: a Vermont civil union must be dissolved prior to either party entering into marriage with a third person in the Commonwealth.
Think about this holding.
In order to recognize one type of relationship (a same sex marriage), the SJC had to deny recognition of another type of relationship (polygamy).
In order to cement the legitimacy of same-sex marriage, and recognizing unions from other states, the SJC had to rely on a statute that criminalizes the consensual union of people in an untraditional relationship (polygamy).
I don’t see much of a difference between the arguments, from a constitutional perspective, in favor of SSM and arguments in favor of polygamy. I think they are equally valid. If we are not going to base marriage on traditional notions, why stop at a couple of the same sex. Why not a trio of the same sex? I think the key distinction is that the former cause has a very strong social movement with a lot of popular support. The latter does not.
Scalia’s screed from Lawrence about the relationship between sodomy, same-sex marriage, and bigamy has a bit of unintended salience.
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
H/T Religion Clause
Update: Previously I posed a similar question: Could the state prevent gay brothers in an incestuous relationship from marrying?
If the Prop 8 opinion means anything, what rational bases could the state proffer to justify a ban on consenting, adult incestuous relationships being recognized as marriage? I suppose the rationale about concern for genetic defects in offspring would be nugatory, as two men cannot naturally procreate. In fact, for the two of them reproduce, I think there would have to be a female involved (presumably, the female would be unrelated). Even there, the 9th Circuit more-or-less separated the notion of getting married from procreation, so reason is out. (So this would not prevent two female sisters from wedding). I suppose another rationale could be based on some Judeo-Christian opposition to incest. Under the Constitution of Reinhardt, that is out too. What other rationales are there? Nothing but pure bigotry against these brothers who want the same recognition as everyone else.