Hi all,

In it's recent 4 to 3 ruling that the ban on gay marriage was a violation of the California Constitution (gay marriage foes intend to place a measure on the ballot to alter the state's constitution this November), the court considered how this ruling might affect those who in the future wanted to enter into polygamous (or, btw, incestuous) marriages. Indeed, Justice Baxter, in his dissent, cited precisely these concerns as one of the reasons he was voting to uphold the ban. In their own way, his words hold out hope for us poly folk.

Best,

Jay

Sayeth Justice Baxter: The bans on incestuous and polygamous marriages are ancient and deep-rooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?