The confirmation hearing for A.G. nominee Loretta Lynch are underway in the Senate Judiciary Committee, and so far they seem to be amiable. Most of the Republican thunder has been aimed at the current occupant of the office, Eric Holder, to the point that they all had to reassure themselves that Ms. Lynch was not Mr. Holder.
But then Sen. Lindsey Graham (R-SC) came up with this question:
“If the Supreme Court rules that same-sex marriage bans are unconstitutional, it violates the constitution for a state to try to limit marriage between a man and a woman, that’s clearly the law of the land unless there’s a constitutional amendment to change it, what legal rationale will be in play that would prohibit polygamy?” Graham asked.
“What’s the legal difference between a ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional? Could you try to articulate how one could be banned under the constitution and the other not?”
I’m not a lawyer, but I do know that it’s perfectly legal to limit the number of parties in a contract, but it’s a violation of the idea of equal protection to limit the parties based on something as innate as gender. So, yes, polygamy can be banned on those grounds, but you shouldn’t do it just because the parties have the same type of genitalia.
But oh my dear Lindsey, didn’t they teach you reductio ad absurdum in law school? But more importantly, why would you ask this particular question? Where are you going with this? Looking for loopholes?