What Does Obergefell Mean for Multiple-Partner Marriages?

Abstract

Obergefell v. Hodges, holding that limitations of marriage to different-sex couples violate the Constitution, and similar state and federal decisions raise the question of whether states must, on the same logic, also recognize marriages with more than two partners. I take up this question in this paper, considering the legal arguments that have been made and adopted by courts for the constitutional invalidity of limiting marriage to different-sex couples, and how readily they apply to limiting marriage to two-person relationships. Because recognizing marriages with more than two partners likely requires restructuring the legal rights and duties attached to marriage, raising difficult questions of interpersonal fairness, I conclude that ultimately there is a strong basis for distinguishing the constitutional issues raised by the same-sex marriage cases from those raised by a hypothetical challenge to two-person-only marriage laws.