Because of course, Republican senator Lindsey Graham from the great state of South Carolina, decided he would ask the current United States Attorney General nominee Loretta Lynch if same-sex marriage and polygamy were the same, you know, constitutionally speaking.

Graham asked Lynch, currently U.S. Attorney for the Eastern District of New York, to explain the legal difference between same-sex marriage and polygamy in a hearing before the Senate Judiciary Committee. This hearing is just one of several which will occur during the confirmation process, and questions like Graham's are not going to be unusual in the upcoming months.

What is the legal difference between a state — a ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?


In addition to this leading question, he went on to specifically demand that Lynch explain why one was constitutional and the other was not. The problem is, as Lynch told the Senator, that she doesn't currently have the experience with settling this question, and she hasn't yet looked into how she would frame a legal answer to the question.

Now, for those, especially those on the Republican side who might be inclined to say, "well, darn it, she should know, and she should answer!" Not exactly. The AG is the president's woman, and as such, her job is to advise the president of legal precedent which affects the administration's position on various issues. If POTUS asks Lynch, presuming she is confirmed, to find an answer that question, then, of course, she would find it necessary to find an answer. However, the administration isn't currently asking that question, nor have they asserted that there is any comparison (or lack of comparison!) between the two. The only group talking about polygamy at all are people like Lindsay Graham.


However, I'll take a stab at your question, Senator. You ask for the difference? The difference is in whether a right granted individually to enter into the legal contract known as marriage with one other person can be restricted to the two individuals in that contract being of different sexes. Current arguments, and indeed precedent, in constitutional law would suggest that the answer is: no, such a restriction cannot occur. However, polygamous relationships do not deal with an individual right to enter into a contract with one other person, but rather an individual right to enter into a contract with multiple persons. While one might argue that polygamous relationships still come down to individual rights and should be afforded the right of contract, that is not the discussion the courts are having. The discussion is about if a two-party contract can be restricted on the basis of gender (and de facto restricted on the basis of orientation). Therefore, Mr. Graham, as of current, discussions of polygamy are right out.

The question you want to ask is not predicated on the existence of gay marriage, but rather is already predicated on the existence of two person marriage (that is, predicated on already existing "straight" marriages). So I ask you, instead, Senator:

What is the legal difference between different sex marriage being constitutional but polygamy being unconstitutional?

Why is my right to enter into what is ultimately a legal contract about sharing assets and liabilities determined by only choosing a single partner? I can form a corporation with multiple partners, but I can't share my life with multiple partners? I'm not polyamorous. I'm strictly mono-amorous and monogamous, however, since you asked the question... I think the constitutionality of recognising business agreements with multiple partners is a greater threat to bans on polyagamy than another constitutional expression of a two-person "marriage" contract.

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