Justice Alito: Why Not Let 4 Lawyers Marry One Another?

By CNSNews.com Staff | April 29, 2015 | 9:58 AM EDT

Justices Sonia Sotomayor and Sam Alito (AP Photo/Charles Dharapak)

(CNSNews.com) - In the oral arguments presented yesterday in the Supreme Court on the question of whether the U.S. Constitution guarantees two people of the same sex the right to marry one another, Justice Samuel Alito asked whether—if two of the same sex have a right to marry—why not four people of opposite sexes.

“Would there be any ground for denying them a license?” Alito asked.

“Let's say they're all consenting adults, highly educated. They're all lawyers,” he said.

Alito posed the question to Mary L. Bonauto, a lawyer who was presenting the court with arguments on behalf of clients seeking to establish a right to same-sex marriage.

Bonauto expressed the view that states cannot prohibit two people of the same-sex from marrying but can prohibit four people of different sexes from marrying.

Here is an excerpt from the argument:

Justice Samuel Alito: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?

Mary Bonauto: I believe so, Your Honor.

Alito: What would be the reason?

Bonauto: There'd be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the wait and see question for a moment, if I may. Because—

Justice Antonin Scalia: Well, I didn't understand your answer.

Alito: Yes. I hope you will come back to mine. If you want to go back to the earlier one –

Bonauto: No, no.

Alito: -- then you can come back to mine.

Bonauto: Well, that's what -- I mean, that is -- I mean, the State –

Alito: Well, what if there's no -- these are 4 people, 2 men and 2 women, it's not--it's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. What would be the ground under--under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

Bonauto: Number one, I assume the States would rush in and say that when you're talking about multiple people joining into a relationship, that that is not the same thing that we've had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right –

Alito: But--well, I don't know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it's a good one. So this is no -- why is that a greater break?

Bonauto: The question is one of--again, assuming it's within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there'd be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don't apply here, when we're talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that's my answer on that.

To read the entire transcript of yesterday's argument in the Supreme Court click here.