Just in time for the Supreme Court’s eagerly awaited or in any event impending decision in Obergefell, Professor Ronald C. Den Otter (of a California state university in San Luis Obispo) has mounted an impressive Defense of Plural Marriage. As the good professor notes in a balkinization guest post,
Those who care about gays and lesbians being discriminated against cannot ignore whether those who would marry multiple partners, if they were allowed to do so, are also being treated unfairly. … What too many advocates of marriage equality fail to see is that the compelling reasons that support same-sex marriage, such as the value of personal choice in selecting a marital partner and the importance of equal legal treatment, also support a right to plural marriage.
That case looks more compelling by the day. As evidenced by various television freak shows, Professor Den Otter shrewdly observes,
Americans are becoming more accustomed to the possibility that it may not be wrong for people to have an unconventional intimate relationship, provided that everything is consensual and between or among those who are legally capable of giving consent. Under conditions of moral pluralism, it stands to reason that at least some Americans may want to marry differently and not have the state refuse to provide them with a menu of marital options to select from.
That’s like so true. Or at least it stands to reason, possibly. But what’s going to be on the menu (and do we have a special tonight)? Perhaps, Judge Richard Posner once mused, gay marriage advocates should be tasked with “explaining what the state’s compelling interest is in forbidding a man to marry his beloved dachshund.” (Provided, I presume, that he or she is, or they are, found to be legally competent.) The judge’s question, posed in 2003, now reads like it was written millennia ago on a different planet. Under conditions of moral pluralism, we’re no longer allowed to pose such inquiries.