Orsborne v. Massachusetts

Feb 25, 2008 • Karen

The prompt:

In 2006, Rachel Orsborne sought and was denied a marriage license by the state of Massachusetts. She had hoped to enter into a “plural marriage” between herself and two other adults – a couple who has been legally married for 25 years. Ms. Orsborne, who recently turned 19 years of age, notes that she is deeply in love with both of her prospective partners, that the state of Massachusetts recognizes and performs same-sex marriages, and that there is both a long-standing cultural tradition of plural marriage (in the Old Testament as well as in the United States) as well as persecution and discrimination against those in polygamous unions. Ms. Orsborne professes no religious affiliation and does not claim any First Amendment violation of religious freedom. She does claim that by denying a marriage license, the state of Massachusetts has unconstitutionally discriminated against her, in violation of the Equal Protection clause, as well as violating her fundamental rights to marriage under the Due Process clause of the Fourteenth Amendment.

The Circuit Court rejected Ms. Orsborne’s claim, citing Reynolds v. United States (1878), in which the Supreme Court upheld the constitutionality of prohibitions against polygamy. However, because that case was argued principally as a religious Free Exercise case, the Supreme Court today has granted certiorari on the fundamental rights claim (although not on the question of equal protection). You are clerking for one of the Justices and have been asked to write either a brief or a draft opinion (your choice) roughly 4-6 pages in length, to be filed with the faculty administrative assistant in Balch 216 no later than 11am on Monday, February 25.

The opinion (written under the name of "Justice Lessig," bahahaha):


Justice Lessig delivered the opinion of the court.

Appellant Orsborne is a woman living in the state of Massachusetts. She wished to marry two other adults already married to each other and, to do so, applied for a marriage license from the state of Massachusetts. However, the state denied appellant’s marriage license request, citing state and federal anti-bigamy laws. Except for her potential partners’ previous marriage, there is no reason that appellant could not marry each of them individually; all involved are legal adults unrelated to one another, all are capable of giving consent, and the state of Massachusetts recognizes marriages between both same-sex and different-sex couples. In suing for a marriage license, the appellant is challenging anti-bigamy laws on constitutional grounds. The question facing the court today: does the “liberty” of the Due Process clause of the Fourteenth Amendment include the right to marry more than one person?

There is a well-established ‘penumbra’ of fundamental rights related to marriage and sexual relationships that is recognized under the Fourteenth Amendment. Skinner v. Oklahoma ex rel. Williamson, Griswold v. Connecticut, and Roe v. Wade all demonstrated the right to choose whether or not to have children. Pierce v. Society of Sisters and Meyer v. Nebraska defended the right to bring up those children how one wished. Lawrence v. Texas found unconstitutional laws prohibiting private sex acts between consenting adults. And, perhaps most relevant to the present case, Loving v. Virginia denied the constitutionality of arbitrarily proscribing marriage choices with regard to race. As the Court found in Lawrence, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” This case clearly represents all of these aspects of the “autonomy of self” protected by the Constitution. As in Loving, it represents not only particular individuals’ fundamental right to proceed in the intimate conduct of marriage, but also the right to question and remake traditional conceptions of marriage in general. As liberty must mean “protect[ion] from arbitrary government action,”* then, limits on the marriage right based on the number of participants must be shown to be non-arbitrary in nature and compelling in their aims.

Opposing this line of case law is Reynolds v. United States (1878), which declared laws prohibiting bigamy constitutional. In that case, the Supreme Court found unanimously that the principle of government non-interference in religious matters was not unlimited. Citizens cannot participate in activities such as human sacrifice, for example, at the expense of the rule of law, even if their religious beliefs demand it. The First Amendment protects only religious beliefs absolutely; religious practices may be regulated when “in violation of social duties or subversive of good order.” Chief Justice Waite’s opinion found that overruling Reynolds’s religious practice in the name of the rule of law was warranted in the case of polygamy because

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.
In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.

The case today claims no religious exemption and does not rest on the First Amendment.** Still, if such a fundamental right as the freedom of religion cannot stand against anti-bigamy laws, what can?

Over a century has passed since Reynolds. Most of the previously listed cases defending marital, familial, and sexual freedom were decided after the Reynolds decision; while many of them reflect ideas about the sanctity of those relationships long-held in our society, they do represent a significant change in legal thought and the understanding of the Constitution.

Furthermore, despite the law, citizens have nevertheless experimented with the structures and confines of marriage. Communities of swingers, polyamorists, and LGBT people have redefined marriage and marriage-like relationships in many different ways, despite the lack of legal protections in most jurisdictions and despite archaic adultery or fornication laws still on the books. These experiments may lead either to heartache or to happiness. In either case, they push the social development of the nation forward. No one argues now that the United States is worse off for allowing mixed-race marriage and that Loving should be overturned. Yet once upon a time miscegenation, too, was seen as “odious among the northern and western nations of Europe” and “an offence against society.” It was once believed that the “dilution” of whiteness would lead to the corruption and downfall of the United States. The racism behind justifications for anti-miscegenation laws and Reynolds is equally apparent and equally baseless. Therefore, there is no need to defer to stare decisis in this case.

The appellee has not pronounced a state interest, compelling or less so, in the existence of bigamy laws. There is no evidence that, say, plural marriage is extraordinarily harmful to its participants, that children within plural marriages are worse off than those within single ones, or that plural marriages somehow threaten to destabilize society. The defendant, as in the Reynolds decision, relies upon naught but English common law and Western tradition to support its proscription of bigamy. The Constitution owes much to English legal tradition, and most of its writers were of English descent. There is no question that English common law has been a useful resource in interpreting it; there is also no question of monogamy’s privileged status under the English system. On the other hand, as the appellant has argued, the sanction of polygamy has roots in American cultural history too, particularly in the Old Testament and in originalist Mormon religious doctrine. For the last fifty years, the United States has been the leading practitioner of serial (though not concurrent) polygamy. These histories cannot be arbitrarily discounted. Ultimately, however, we cannot look to tradition to the exclusion of all else when liberty is at stake.

The United States is a government of laws and not of men--nor of cultural taboos. The Constitution is a guarantee of liberty for all, not just our forefathers; freedom of thought and the right to basic autonomy of self do not extend only to choices that 19th century colonists might have made. For God’s sake, let us hold our tongues and let them love.***



* H.N. Hirsch, A Theory of Liberty, p. 51.

** There is also a potentially significant structural distinction to be made between Reynolds and the appellant’s proposed marriage. Instead of joining in two distinct marriages that may induce a competitive relationship between the two auxiliary spouses, the appellant wishes to create a single marriage in which all participants are equal in love and under the law. It is in spirit identical to a traditional monogamous marriage; the only difference is the number of participants.

*** From John Donne’s “The Canonization”:

For God's sake hold your tongue, and let me love,
Or chide my palsy, or my gout,
My five grey hairs, or ruin'd fortune flout,
With wealth your state, your mind with arts improve,
Take you a course, get you a place,
Observe his Honour, or his Grace,
Or the King's real, or his stamped face
Contemplate, what you will, approve,
So you will let me love.

Alas, alas, who's injur'd by my love?
What merchant's ships have my sighs drown'd?
Who says my tears have overflow'd his ground?
When did my colds a forward spring remove?
When did the heats which my veins fill
Add one more to the plaguy bill?
Soldiers find wars, and lawyers find out still
Litigious men, which quarrels move,
Though she and I do love. […]