Memorandum

To: Professor Matthew Gubbins

From: Eric D. Towsend
Date: Tuesday, February 9, 2021
Subject: Polygamy, Obergefell v Hodges 576 U.S. 644 (2015)

Purpose of Memorandum
Polygamy is the practice of having more than one spouse at the same time. Write a
memorandum in which you apply Obergefell v. Hodges to whether the ban on
polygamous marriage violates the U.S. Constitution.

Facts:
On June 26, 2015, the Supreme Court of the United decided Obergefell v Hodges in a
5-4 decision, granting the same-sex couples the right to marry pursuant to the Due
Process Clause of the 5th and 14th amendments, and the Equal Protection Clause of
the 14th amendment. Associate Justice Anthony Kennedy wrote in the majority opinion,
“the Constitution promises liberty to all within its reach, a liberty that includes certain
specific rights that allow persons, within a lawful realm, to define and express their
identity”. In the dissenting opinion, Chief Justice John Roberts conceded that DPC and
EPC were applicable, but warned against the expansion being misused out of “caution
and concern” throughout history. He also opined that the traditionally-accepted definition
of marriage was a union between one man and woman “ to ensure successful child
rearing”. Specifically, Chief Justice Roberts warned that the expansion of DPC and EPC
could result in the legalization of polygamous marriages.

Issue:
Does a polygamous marriage violate the United States constitution?

Rule:
● Due Process Clause, 5th and 14th amendments
● Equal Protection Clause, 14th amendment
● Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, 5/102

Application:
Justice Anthony Kennedy didn’t give a deep regard to the sexual orientation of the
litigants, instead focusing on the “fundamental right to marry” based on the DPC and
EPC. As an aggregate in dissenting opinion, Justices Thomas, Scalia, and Alito, in
conjunction with Roberts, argued the Court’s ability to invalidate laws that banned
same-sex marriage subverted the democratic process of “legally recognizing” same-sex
marriage.

For context, Obergefell was a collection of 6 cases where the plaintiffs were 16 same-
sex couples, 7 children of the couples, an adoption agency, funeral director, and
widower. In each case, the basis of their lawsuits were not founded on the rights of
homosexuals to marry, rather the freedom to legally bind their lives together to receive
the same rights and benefits. The following cases summarize the foundation of 3 of the
cases:

Obergefell was conceived because John Arthur, the legal husband of the plaintiff Jim
Obergefell, was suffering from the terminal disease ALS and wanted the state of Ohio to
identify his legal husband Jim as his surviving spouse on his death certificate, based on
their marriage in Maryland.

Deboer v Snyder, Michigan law allowed adoption only by single people or married
couples. Although Jane Rowse and April Deboer held a ceremony, Michigan held a ban
on same-sex marriage.

Henry v Wymslo, four legally married couples filed a lawsuit to seek relief by forcing the
state of Ohio to list both parents on their children's birth certificates. In addition, the
Adoption agency, Adoption S.T.A.R., joined the plaintiffs because of added restrictions
and the “inadequate services Ohio law forced it to provide to same-sex parents adopting
in the state”.

Each of these 3 cases, in conjunction with 3 cases that has similar premises, can and
will provide the eventual accepted of polygamous marriages. In the dissenting opinion of
Chief Justice Roberts, he wrote that the purpose of the union of one man and one
woman was “to ensure successful child rearing”. Using that premise, there can be a
legal argument made, rooted in the DPC and EPC, that polygamour marriages will
“ensure successful child rearing”. If the union between one man and one woman is
presumed to be more successful in ensuring the proper raising of a child, then surely a
polygamour marriage with 3 or more parents is a better situation for the children.

Illinois Marriage and Dissolution of marriage provides the purposes of marriage with
regard to child rearing, citing (2) strengthen and preserve the integrity of marriage and
safeguard family relationships; (5) ensure predictable decision-making for the care of
children and for the allocation of parenting time and other parental responsibilities, and
avoid prolonged uncertainty by expeditiously resolving issues involving children; (6)
recognize the right of children to a healthy relationship with parents, and the
responsibility of parents to ensure such a relationship; (7) acknowledge that the
determination of children's best interests, and the allocation of parenting time and
significant decision-making responsibilities, are among the paramount responsibilities of
our system of justice.

Domestic relationships involving children aren’t as fluid in years past and are
commonplace than married couples with children. There are millions of instances where
a man could have multiple children by multiple women, and it would be easier to marry
them to “ensure successful child rearing”, if all parties can enter into a marriage
contract. The benefits of marriage comes with the ability to have medical rights and
insurance coverage for married couples, which will be beneficial to people who have
children that share siblinghood. This benefit If the parents of these children, in whatever
and any combination, would be best to “ensure successful child rearing” based on the
legal reasoning of Chief Justice John Roberts.

Conclusion:
Based on the facts, laws and statutes, and the incredible argument I concocted,
polygamouos marriages would be validated as constitutional in the near future.