I listened to the oral arguments on Tuesday and I didn't hear what you're describing exactly as you're describing it. The judge didn't ask why four people couldn't get married. He asked if there were any grounds for denying such people a license. She answered in the affirmative, because she assumed that the state would step in because polygamy introduces legal family complications that don't have to do with two consenting adults. That's why she gave examples over competing custodial rights and so on. She said nothing about it being unhealthy and so on.
Originally Posted by evensaul
Here's the relevant transcript, for those who are interested:
JUSTICE ALITO: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?
MS. BONAUTO: I believe so, Your Honor.
JUSTICE ALITO: What would be the reason?
MS. BONAUTO: There'd be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and
consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the latency question for a moment, if I may. Because...
JUSTICE SCALIA: Well, I didn't understand your answer.
JUSTICE ALITO: Yes. I hope you will come back to mine. If you want to go back to the earlier one
MS. BONAUTO: No, no.
JUSTICE ALITO: then you can come back to mine.
MS. BONAUTO: Well, that's what I mean, that is I mean, the State...
JUSTICE ALITO: Well, what if there's no... these are 4 people, 2 men and 2 women, it's not it's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers.
JUSTICE ALITO: What would be the ground under under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?
MS. BONAUTO: Number one, I assume the States would rush in and say that when you're talking about multiple people joining into a relationship, that that is not the same thing that we've had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental...
JUSTICE ALITO: But well, I don't know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it's a good one. So this is no... why is that a greater break?
MS. BONAUTO: The question is one of again, assuming it's within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there'd be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don't apply here, when we're talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that's my answer on that.