Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, July 23, 2015

"Is Polygamy Next?" as an argument for how not to answer that very question?

Earlier this week, Will Baude had an op-ed at the New York Times: "Is Polygamy Next?" Most of the reactions I've seen have read the op-ed as an advocacy piece for recognition of the constitutionally protected right to marry as including polygamous marriage.

That reading is plausible, if one thinks the author accepts the Obergefell way of deciding on the boundaries of constitutional rights. If new understandings of marriage mean new understandings of the constitutionally protected right to marry, then we may come to recognize that right as including polygamous marriage; all it takes is a change in the understanding of marriage. That is the gist of Baude's account of why a right to polygamy may be coming down the pike. Most of the op-ed attacks attempts to limit Obergefell to monogamous marriage as flimsy and likely to collapse as "today's showstopping objections" may "come to seem trivial decades later." 

But Baude is an originalist, and he thinks others ought to be originalists as well--or at least it has seemed to me. Baude doesn't come out and say that Obergefell is wrong in result. But Justice Kennedy's opinion for the Court in that case now stands as a landmark case that he needs to navigate around if he is to hold to the belief that originalism is our law. And that method may be the real target of his op-ed.

Consider Baude's conclusion: "[W]e should recognize that once we abandon the rigid constraints of history, we cannot be sure that we know where the future will take us." Is Baude saying that those who believe marriage should be monogamous should be prepared to discard that understanding out of humility toward our possible future selves and our possible future understanding, such that it would be appropriate to recognize that future understanding as constitutionally protected (either now or at some point in the future when public opinion changes)? Or is Baude criticizing those who believe that we should change our present understanding of our past constitutional commitments on the basis of a new (and non-humble) belief in a morally superior understanding of marriage? I don't know. Surely there are other alternatives as well. But it would be surprising to find an originalist arguing for a constitutional right to polygamy.

 

https://mirrorofjustice.blogs.com/mirrorofjustice/2015/07/is-polygamy-next-as-an-argument-for-how-not-to-answer-that-very-question.html

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