Those who call for redefining marriage to include gays and lesbians don’t talk about the other restrictions on marriage besides sex. But they weren’t able to avoid that issue during the oral arguments in Obergefell v. Hodges. Justice Samuel Alito asked the lawyer arguing for same-sex marriage whether states would still be able to ban marriages of more than two people. The lawyer responded by saying that a group marriage “is not the same thing that we’ve had in marriage.” Alito quickly noted that neither was marrying two people of the same sex. When Alito asked a similar question about whether siblings could get married, he only heard platitudes from the Solicitor General. And Justice Alito wondered whether states would have to recognize marriages of pre-teens if other states do.
The Justices rarely got a good answer to their questions, because there simply isn’t a principle that would deny those marriages but permit same-sex marriages. The only distinction is that group and pre-teen marriages aren’t popular causes, but gay marriage is supported by the cultural and political elites. Chief Justice John Roberts hit the nail on the head when he said, “You’re not seeking to join the institution, you’re seeking to change what the institution is.” Allowing same-sex marriage will not only change the definition of marriage. It will also change the definition of free speech.