Originally Posted by lawyerdad
Have you read the opinion? Because I didn't see that in there.
There are lots of references to marriage being between two people, but that's all in a descriptive rather than a prescriptive context. The majority opinion defines the liberty interest at issue as "marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex." To my knowledge, there is no state that recognizes marriages among three or more people regardless of their sex.
It would appear I'm not the only one to notice this. One Justice Roberts said in his dissent:
One immediate question invited by the majority’s position
is whether States may retain the definition of marriage
as a union of two people. Cf. Brown v. Buhman, 947
F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-
4117 (CA10). Although the majority randomly inserts the
adjective “two” in various places, it offers no reason at all
why the two-person element of the core definition of marriage
may be preserved while the man-woman element
may not. Indeed, from the standpoint of history and tradition,
a leap from opposite-sex marriage to same-sex marriage
is much greater than one from a two-person union to
plural unions, which have deep roots in some cultures
around the world. If the majority is willing to take the big
leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning
would apply with equal force to the claim of a fundamental
right to plural marriage. If “[t]here is dignity in the bond
between two men or two women who seek to marry and in
their autonomy to make such profound choices,” ante, at
13, why would there be any less dignity in the bond between
three people who, in exercising their autonomy,
seek to make the profound choice to marry? If a same-sex
couple has the constitutional right to marry because their
children would otherwise “suffer the stigma of knowing
their families are somehow lesser,” ante, at 15, why
wouldn’t the same reasoning apply to a family of three or
more persons raising children? If not having the opportunity
to marry “serves to disrespect and subordinate” gay
and lesbian couples, why wouldn’t the same “imposition of
this disability,” ante, at 22, serve to disrespect and subordinate
people who find fulfillment in polyamorous relationships?
See Bennett, Polyamory: The Next Sexual
Revolution? Newsweek, July 28, 2009 (estimating 500,000
polyamorous families in the United States); Li, Married
Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr.
23, 2014; Otter, Three May Not Be a Crowd: The Case for
a Constitutional Right to Plural Marriage, 64 Emory L. J.
I do not mean to equate marriage between same-sex
couples with plural marriages in all respects. There may
well be relevant differences that compel different legal
analysis. But if there are, petitioners have not pointed to
any. When asked about a plural marital union at oral
argument, petitioners asserted that a State “doesn’t have
such an institution.” Tr. of Oral Arg. on Question 2, p. 6.
But that is exactly the point: the States at issue here do
not have an institution of same-sex marriage, either.