JUST GET RID OF MARRIAGE AND PUT IT OUT OF ITS MISERY:

Scalia's complaint against the Obergefell majority -- although he doesn't put it this way -- is that once again a moral perspective has been allowed to displace the process of patient legal analysis. This time the morality is different; not the stern old testament morality that ruled in Bowers and was overruled in Lawrence, but the morality of love, identity, intimacy, spirituality, aspiration, dignity, self-expression and respect -- all words Kennedy uses and words that bear the mark of the vaguely new age sensibility Scalia derides when he refers to the "opinion's showy profundities" that are, in fact, "profoundly incoherent." What exactly, he asks, is the legal import of intimacy and spirituality, and "who ever thought" that they were "freedoms" of a kind that merited constitutional protection? How can this claim be traced by a legal analysis to clauses in the Constitution? How can the court justify the creation of "'liberties' that the Constitution and its Amendments neglect to mention?"

There may be answers to these questions, but, Scalia insists, the court doesn't really answer them. It instead proclaims the virtues of the moral perspective it "really likes" while heaping scorn on the moral perspective it "really dislikes."

Once the court's preferred morality is in place, it is hard to see what stands in the way of deriving from it a case for the protected constitutional status of polygamy, also a form of intimacy that could be said to express the dignity, identity and self-expression of those who engage in it. The legal judgment against polygamy was established in an opinion that cited as its chief support the older morality the court has now rejected. In Reynolds v. United States (1879), a Mormon's claim that he had a right to engage in plural marriage because his religion commanded it was disallowed. Polygamy, the court declared, "has always been odious among the northern and western nations of Europe... and was almost exclusively a feature of the life of Asiatic and of African people." In short, we white Protestants just don't do that kind of thing. "It is impossible to believe," the court continued, that the "constitutional guaranty" of the free exercise clause "was intended to prohibit legislation" criminalizing plural marriage.

Now it would seem to be impossible to believe anything else. With the prohibition against interracial marriage struck down, the prohibition against g[**] sex struck down and now the prohibition against gay marriage struck down, the prohibition against plural marriage cannot be far behind. To be sure, there are some problems that would have to be thought through or re-calibrated, such as community property laws, inheritance laws, custody laws, probate laws, tax laws and the like. But that's just a matter of tinkering with the details. The main principle -- the protection of "our most profound aspirations" (Kennedy) -- demands its extension to polygamy.

That is exactly what Scalia predicted in his dissent to Lawrence when he responded to the majority's insistence that its decision had no implications for the issue of gay marriage. "Don't you believe it," Scalia retorted. "If moral disapprobation of homosexual conduct is 'no legitimate state interest'... what justifications can there possibly be for denying the benefits of marriage to homosexual couples?" He was right, and there is no reason that the logic of his argument should stop there. The Obergefell majority says as much when, after noting the expansion of freedom in Lawrence, it declares, "It does not follow that freedom stops there."

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