Same Sex Marriage Case

By Attorney Gregg Herman
June 27, 2015

In general, I agree with Judge Kennedy’s majority decision in Obergefell v. Hodges, which held that same-sex couples have a right to marry.  As I’ve stated previously, I have an interest in the decision as the more marriages, the better for a divorce lawyer like me!  More over, any other decision would have created chaos, not only due to the different laws in different states, but also due to the possible retroactive effect of disallowing marriages which already happened.

I only have one small qualm about the apparent rule of law that results, which seems to extend rights to consenting adults where there is no overriding state interest.  No, that is not expressly stated in the decision, but it seems to be the trend from Griswold v. Connecticut to Loving v. Virginia to this new case.

My qualm is the slippery slope.  If consenting adults have a right to do what they want as long as there is no victim, then what’s wrong with prostitution?  It can’t be the likelihood of child involvement or disease or degrading women, since those occur with prostitution illegal.  Can it be any worse if prostitution was legal?  I’m not sure the data from the few places with legal prostitution, such as Nevada and the Netherlands would support that conclusion.

But Loving and Obergefell  involved marriage, not sex.   OK, but then what is wrong with polygamy?  Again, assuming we are talking about consenting adults.  And for those who claim that same-sex marriage is prohibited by the Bible, why are they not for polygamy since the Bible clearly allows it?

My best argument against prostitution and polygamy are that they are icky, but I doubt that the constitution prohibits ickiness.  So while I agree with Judge Kennedy and the majority, it should be interesting to see whether far ruling extends to other relationships.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.