THE UNINTENDED CONSEQUENCES OF CHICKEN STEALING: SAME-SEX MARRIAGE AND THE PATH TO POLYGAMY.

• Author: Holland, Thomas D.

"I'm sick of these conventional marriages. One woman and one man was good enough for your grandmother, but who wants to marry your grandmother? Nobody, not even your grandfather." Captain Spaulding [Groucho Marx], Animal Crackers, 1930 (1) I. INTRODUCTION

On May 7, 1942, the Justices of the U.S. Supreme Court met in their wood-paneled conference room to discuss the fate of Jack T. Skinner, a small-town Oklahoma petty crook and one-time chicken thief. (2) At stake for Jack Skinner was not jail time nor a fine--he already was serving a multi-year sentence for armed robbery at the Oklahoma State Prison in McAlester (3)--but something much more fundamental: the physical ability to procreate. When the Court issued its holding twenty-six days later, (4) the nine Justices unwittingly had set the country on a path that would culminate seventy-three years later in the legal marriage of two men living in Ohio and the shattering of the traditional concept of marriage. (5)

What makes Skinner even more remarkable, given the long shadow that it ultimately cast over the concept of marriage, is the fact that marriage was not at issue in the case. In fact, were it not for the clever lawyering skills of Skinner's attorneys (discussed infra), the case likely would have remained an obscure footnote to a dark and rather clouded time in U.S. history. Instead, the Court's linkage of Jack Skinner's natural procreative rights to the concept of civil marriage resulted in the recognition of what Justice Douglas termed "one of the basic civil rights of man... . fundamental to the very existence and survival of the race." (6) Indeed, this newly recognized right to procreation and marriage was so fundamental, wrote Douglas, that any attempt by a state to burden that right must survive the "strict scrutiny" of the Court. (7)

The discussion that follows in the next section focuses briefly on the legal evolution of the concept of marriage, how the Court got from Skinner, which narrowly tied marriage to procreation and the formation and maintenance of the nuclear family, to a concept now cast in the broader terms of privacy rights "inherent in the liberty of the person." (8) The second section attempts to distill the current view of marriage, now shorn of any implicit ties to the nuclear family. The discussion then briefly examines how plural marriage--polygamy (9)--has been dealt with by U.S. courts historically and how the holdings have reflected the politics and social mores of their era. Finally, the focus then shifts to what the evolving concept of marriage, culminating in the Court's 2015 holding in Obergefell, means for the legal arguments for, and against, polygamy. If the implicit, if not explicit, ties between marriage and the traditional nuclear family--one man, one woman, and their offspring--no longer exist, then what guardrails remain? Despite concerns raised by the dissenters in Obergefell v. Hodges that "much of the majority's reasoning [in upholding a constitutional right to same-sex marriage] would apply with equal force to the claim of a fundamental right to plural marriage," (10) the door may not have been flung open as widely as some may fear, or others may hope. There is a discernable principle that threads through over a hundred years of Supreme Court opinions, and it has remained constant and unaltered: The state may not impose a total restraint on the fundamental right of an individual to select and bond with another individual in an intimate relationship--regardless of whether that relationship is called "marriage" or not. The hopes of would-be polygamists notwithstanding, existing state bans on bigamy and polygamy appear to impose no such total deprivation but rather merely regulate and condition the timing and sequencing of those relationships for the purpose of meeting arguably legitimate state ends.

2. PIECES OF THE PUZZLE: THE EVOLVING PICTURE OF MARRIAGE

   The legal cases that define the concept of marriage span over 130 years. Examining each individually, as if they were jigsaw puzzle pieces plucked one-by-one from the box, reveals no clear pattern, but when all of the pieces are arrayed face-up on the card table, a clear picture can start to be assembled, provided you start at the edges.

   The constitutional issue of same-sex marriage came to a head in June 2015 when the Supreme Court issued its holding in Obergefell v. Hodges. By the time the larger motes of doctrinal dust had begun to settle, marriage was established, clearly and unequivocally, as "a fundamental right inherent in the liberty of the person" that was protected from undue state interference by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (11) Gone, once and for all, was any explicit or implicit tether between marriage and the nuclear family. In retrospect, the outcome was foreseeable, though by no means inevitable, but the early opinions in the line of cases that culminated in the summer of 2015 were anything but prescient. In no small part, this lack of legal clarity resulted from the fact that many of the Court's early holdings implicating marriage didn't derive from cases involving marriage at all--such as Skinner--and the Court's views on the fundamental nature of marriage often were expressed in sweeping, almost tautological, comments that had very little to do with the final holdings in the cases. And yet, as seismic as the changes to the concept of marriage might appear, there is a solid core of logic that threads through the Court's myriad holdings over the last hundred years--even if the Court itself has not always emphasized it. The logic chain involving marriage is, in fact, a good case study on how Court dicta become Court dogma through time. It is a story that appears straightforward in hindsight but is anything but a straight path--and it all began with a death on the Oregon Trail.

   1. Maynard v. Hill, 1888

      Maynard v. Hill (12) established marriage as fundamental to human existence and placed its regulation squarely within the control of the state. (13)

      History has a sense of humor. It is no small irony that the case widely cited as the starting point for the Court's view of marriage as a fundamental right (14) actually was concerned with the validity of a divorce. (15) In 1850, David Maynard, physician and entrepreneur, left his wife Lydia in Ohio (they had been married in Vermont) and headed for the west coast to start a new life. (16) Whatever the underlying problem was, it is clear that Dr. Maynard had no intention of returning to either Lydia or the cornfields of Ohio, and it was somewhere along the Oregon Trail, en route to present-day Seattle, that Dr. Maynard met Catherine Broshears, a recent widow who would soon become the second Mrs. Maynard. (17) First, however, he had the logistically unenviable task of securing a divorce from Lydia, who at that time was living over 2000 miles away in an era before phones, faxes, and the internet. How ever he managed it, by late 1852, Dr. Maynard had checked all of the administrative blocks, and in December, he received what must have seemed like a much sought-after Christmas gift--the Legislative Assembly of the Territory of Oregon (which included what would later become Washington State) declared that "the bonds of matrimony heretofore existing between D. S. Maynard and Lydia A. Maynard be and the same are hereby dissolved." (18)

      The marital affairs of Dr. Maynard and his two wives likely would have been lost to history were it not for the fact that David Maynard was one of the founding fathers of Seattle, (19) and as such possessed sizable territorial land grants. (20) Some of these grants subsequently were lost to rival claimants, and in 1888, Maynard's grown children from his marriage to Lydia (David and Lydia were both by then deceased) brought suit to recover some of this land on the grounds that their parents' territorial divorce was invalid. (21) If the divorce was invalid, they argued, then Lydia (and through her, her children) had valid claims to half of the land. (22) It was in this context that the U.S. Supreme Court found itself faced with the seemingly pedestrian task of determining whether a territorial legislature could legally dissolve a state-sanctioned (in this instance, Vermont) marriage. (23) In justifying its holding--that the Maynards' divorce was in fact valid--the Court went on to recognize the special role that marriage plays within society. (24) It is an institution, Justice Field wrote, that forms "the foundation of the family and of society, without which there would be neither civilization nor progress." (25) Thus with the stroke of a jurist's pen, a fundamental right to marriage had been created. Equally as important, however, is that Justice Field's opinion unequivocally placed the regulation of marriage under the state, not the church. "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature." (26)

      The first link in the chain had been forged; the next would originate from a most unlikely source: a common Bible story.

   2. Meyer v. Nebraska, 1923

      Meyer v. Nebraska, (27) a cornerstone of substantive due process, linked marriage to the formation and maintenance of the nuclear family. (28)

      As was the case in Maynard, the next seminal case in the definition of marriage did not directly involve marriage at all. In the isolationist atmosphere of World War I, several states passed laws in an attempt to curb the use and teaching of foreign languages, notably German. (29) One of these was Nebraska, which in 1919 adopted the Siman Act, prohibiting the teaching of any foreign languages in public and parochial schools until "after a pupil shall have attained and successfully passed the eighth grade." (30) To the large German-American Lutheran community living in rural...