Will legalization of same-sex marriage lead to the legalization of polygamy? Proponents of same-sex marriage dismiss the question, for if they ever did face it squarely, they would have to admit the truly radical nature of the case for homosexual marriage. The logic of the polygamy question is this--If marriage can now be homosexual as well as heterosexual, why must it be limited to two persons rather than three . . . or several? Proponents of same-sex marriages have dismissed this question as irresponsible, irrelevant, and inflammatory. The question is indeed controversial, but only because it demands to be answered. It is by no means irrelevant.
That fact is underlined by Richard A. Posner in a recent article published in The New Republic. Posner is a judge sitting on the United States Court of Appeals for the Seventh Circuit, and he also serves as senior lecturer at the University of Chicago Law School. He is one of the nation's most prolific and influential legal scholars, and his opinion on this question cannot be dismissed lightly.
Posner criticizes Gerstmann for basing his case for same-sex marriage on the argument that marriage is a "fundamental right." Such rights cannot be taken away by the state without a compelling reason, and Gerstmann argues that the state does not have any compelling reason to deny same-sex couples the rights of marriage. As Posner explains, "When Gerstmann describes the right to marry as fundamental, he means that any person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage." When applied to same-sex marriage, this appears to bolster Gerstmann's case. If marriage is indeed a "fundamental right," the state must offer a compelling argument against the right of homosexuals to marry, and Gerstmann alleges that the government has made no such case.
Posner then leaps upon the great legal crevice created by Gerstmann's argument. When Gerstmann argues that marriage is a fundamental right, asserting that same-sex couples cannot be denied this right, Posner understands this logic to go far beyond Gerstmann's argument. Once marriage is defined as a fundamental right, all persons must be granted that right unless the state offers a genuinely compelling argument that would support its denial. As Posner argues, "He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses." If marriage is a fundamental right, Posner explains, then it is a fundamental right for everyone--not only for heterosexual and homosexual couples.