On the Case: Issue 9

The Supreme Court of the United States decides that all states of the United States must permit and recognise same sex marriage.

In this ninth edition of On the Case, Professor Michael Quinlan, the Dean of the School of Law, Sydney, discusses the recent decision of the Supreme Court of the United States in relation to same sex marriage.¹

In Brief

This case involved claims that the marriage laws of some States of the United States², which did not permit or recognise marriages between persons of the same sex, were unconstitutional. By a majority of 5 to 4³ the Supreme Court agreed. As a result of this decision same sex marriages must be permitted in all of the 50 States of the United States.

Background

Whilst s51 (xxi) of the Australian Constitution of 1901 provided Australia's Federal government with power in relation to 'marriage' prior to the introduction of the Marriage Act 1961 (Cth), in Australia, marriage was regulated by the States. The Marriage Act 1961 (Cth) currently only permits marriages to occur between one man and one woman and expressly excludes recognition of any same sex marriages which might take place outside Australia. In December 2013, Australia's High Court found that the 'marriage' power in the Australian Constitution had a very broad scope which encompassed same sex marriage and polygamy⁴. As a consequence, in Australia, the question of whether or not same sex marriage should be permitted and regulated by the state is an issue for the Federal government. In contrast, in the United States, the States have continued to regulate marriage.

In the United States, prior to 2003 all States recognised only marriages between one man and one woman. In 2003, the Massachusetts Supreme Judicial Court found that limiting marriage in this way violated that State's Constitution⁵. Between 2003 and the time of this decision, 15 other States and the District of Columbia had recognised same sex marriage⁶. The remainder of the 50 States continued to recognise marriages only between one man and one woman⁷.

Like Australia, in the United States, there are Federal and State anti-discrimination laws and a range of approaches to religious freedom. Since 2003 a range of service providers and property owners, who continued to maintain that marriage could only involve one man and one woman and had religious objections to same sex marriage, have been prosecuted for breaching State anti-discrimination legislation⁸.

The Facts

In this case, 14 same sex couples and 2 men whose same-sex partner had died (together the petitioners), claimed that, by refusing to issue marriage licences or to recognise marriages lawfully performed in another State, their home States⁹ had violated their rights under the Fourteenth Amendment to the United States' Constitution. This case was an appeal from a decision of the Sixth Circuit Court which had found against the petitioners. The Supreme Court upheld the appeal and found that the Fourteenth Amendment requires States to issue marriage licences to two people of the same sex and to recognise marriage between two persons of the same sex lawfully performed in other States. As a result of this decision same sex marriages must be permitted in all of the 50 States of the United States.

The Majority's Opinion

The Due Process Clause of the Fourteenth Amendment prevents a State from depriving "any person of life, liberty, or property, without due process of law." The majority identified four principles which it found compelled the conclusion that the Fourteenth Amendment required States to permit same-sex couples to "exercise the right to marry."

The first principle is that "the right to personal choice regarding marriage is inherent in the concept of marriage." In the majority's opinion the nature of marriage is that, through the enduring bond of marriage, two persons, whatever their sexual orientation, can together "find other freedoms, such as expression, intimacy and spirituality."

The second principle is that "the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." According to the majority:

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

The third principle is that marriage "safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education"¹⁶ and that it "affords permanency and stability important to children's best interests." ¹⁷
In the majority's view children of unmarried parents are stigmatised "knowing their families are somehow lesser" and suffer significant material costs by being raised by unmarried parents.¹⁸ In the majority's view as a result "[t]he marriage laws at issue here thus harm and humiliate the children of same-sex couples."¹⁹ The majority point out that, in stating this principle, they are not suggesting that children are essential to a meaningful marriage and they observe that "[a]n ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State."²⁰ As a result, according to the majority, childbearing is only one of the "many aspects" of the "constitutional marriage right."²¹

The final principle is that marriage is a keystone of the social order of the United States²². For this reason the States benefit married persons in a range of ways and marital status is also significant under United States' Federal law²³. In the majority's view, the exclusion of same-sex couples from marriage, not only deprived them of access to the material benefits of marriage but it demeaned gays and lesbians, effectively taught that they were unequal in many respects and excluded them from "the transcendent purposes of marriage and..fulfillment in its highest meaning."²⁴

The Decision

Taking into account the four principles identified above, the majority found that same sex couples enjoyed a fundamental right to marry which was manifest.²⁵ They found that this right arose "from a better informed understanding of…liberty."²⁶Whilst noting that many who considered same sex marriage to be wrong did so on "decent and honourable religious or philosophical premises", but without explanation of what those premises might be, the Court found that denying marriage to same sex couples "would disparage their choices and diminish their personhood."²⁷ They therefore concluded that the right of same sex couples to marry is a fundamental right inherent in the liberty of the person protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

As noted in the "Background" section above, in those States which had permitted same sex marriage prior to this judgement, issues in relation to the freedom of religious objectors to refuse to act in ways which they consider contrary to their faith, have arisen under State anti-discrimination laws. The majority mention the religious freedom to teach and advocate – but not the freedom to act or decline to act – in the conclusion of their judgment:

Finally it must be emphasised that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organisation and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths and to their deep aspirations to continue the family structure they have long revered.²⁸

The Minority Opinions

The main arguments advanced in the minority judgments relate to judicial overreach, the meaning of marriage, the limited extent of the right to privacy, the logical grounds for the future expansion of the scope of marriage and religious liberty. Each of these is considered below.

Judicial Overreach

The minority judges considered that decisions to permit same sex couples to marry or not were matters for State legislatures and voters²⁹. They criticised the majority for intervening and precluding the operation of the democratic process³⁰. For example, Roberts CJ's observed that in his view judges had no special moral, philosophical or social insight to justify their imposing their views on the nation by reliance on "the pretence of 'due process.'"³¹

The meaning of marriage

Alito J criticised the majority's characterisation of marriage. In his view, the majority was able to argue that same sex marriage served the same State objectives as opposite sex marriage only by characterising marriage as being fundamentally to promote the well-being of the married couple in providing for their emotional fulfilment and support³². For the majority the reason for the State to be involved in this private affair was said to be the indirect benefit that "persons who live in stable, fulfilling and supportive relationships make better citizens."³³ Whilst Alito J recognised that many hold the view that marriage is about the happiness of married people, he noted that this was not the traditional view of marriage³⁴. As he explained the traditional view of marriage is inextricably linked to procreation and that is "the one thing that only an opposite-sex couple can do."³⁵

Roberts CJ noted that the traditional meaning of marriage was not irrational and had formed the basis of "every culture throughout human history."³⁶ Whilst Roberts CJ recognised that some aspects of marriage have changed over time³⁷, in his view, "the core meaning of marriage" was that a union between one man and one woman and that has endured³⁸. For Roberts CJ this meaning of marriage is fundamental and based on the premise that:

[F]or the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. Society has recognised that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.³⁹

Alito J recognised that, with the increase in the number of children born out of wedlock⁴⁰, the connection between marriage and childbirth, foundational to the traditional view of marriage, may not be recognised by all Americans today. Nevertheless, in his view, it was not the Court's role to require States to abandon the traditional understanding of marriage ⁴¹ . In his view, it was not possible to now know or to predict the long-term consequences of changing the meaning of marriage to incorporate same-sex marriage and any such change was beyond the Court's remit⁴².

The limited scope of the right to privacy

Roberts CJ and Thomas J noted that the laws complained of did not prevent same-sex couples from living together, engaging in intimate conduct, raising their children as they saw fit, publicly making vows to their partners, engaging in religious wedding ceremonies, holding themselves out as being married and that they did not condemn anyone to live alone⁴³. Roberts CJ rejected the majority's justification for its decision on its "reasoned judgment" and "new insight" as legally inadequate and resting on policy preferences⁴⁴.

The future expansion of the scope of marriage

Given the majority's reasoning, Roberts CJ questioned the logical basis on which the Court might refuse recognition of polygamy and noted the far deeper historical and traditional roots of polygamy compared to same-sex marriage⁴⁵.

Religious liberty

Roberts CJ noted that "[m]any good and decent people oppose same-sex marriage as a tenet of faith" and that the United States' Constitution guaranteed the freedom to exercise religion but not the right of same sex couples to marry⁴⁶. He also noted that in States where same sex marriage has been legislatively enacted, accommodations had been made for religious practice ⁴⁷ but that "[h]ard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same sex marriage."⁴⁸ For example, he referred to the Solicitor General's acknowledgement that the tax exempt status of religious institutions who continued to oppose same-sex marriage would be in question⁴⁹. Roberts CJ and Thomas J noted the majority's references to the ability of religious believers to continue to "teach" and "advocate" their views of marriage and their failure to use the First Amendment term "exercise" in relation to religion⁵⁰. As Thomas J observes:

In our society, marriage is not simply a governmental institution: it is a religious institution as well. Today's decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples…religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly related to the civil restraints placed upon religious practice⁵¹.

Roberts CJ observed that, given the majority's decision, where same sex marriage was not already legal it would become so as a result of the Court's decision and that decision itself could not include specific religious protections to be applied in the States. In Roberts CJ's view "[u]nfortunately, people of faith can take no comfort in the treatment they receive from the majority.."⁵²

Implications of this Case for Australia

Like the results of the Irish referendum on same-sex marriage this decision received substantial media attention in Australia⁵³. The Australian Constitution is very different to the United States' Constitution. It would also appear from the judgment that there are also substantial differences in the two countries' current societal attitudes to de facto couples and to children born of wedlock⁵⁴ and in relation to differential treatment of couples based on their marital status and sexual orientation⁵⁵. In Australia, State and Federal reforms to a range of provisions have been made to encompass same sex couples without any change to the definition of marriage⁵⁶.

As noted in the "Background" section above, in Australia, the question of whether or not same sex marriage should be permitted and regulated by the state is an issue for the Federal government and not for the Courts. This means that whether or not the majority was correct in finding a fundamental right to same sex marriage protected by the Fourteenth Amendment or not is not directly relevant⁵⁷. It also means that Australia's Federal parliament has the opportunity, if one of the Bills proposing the introduction of same sex marriage comes before it for debate, to consider the issues in a more holistic manner than it is possible for a Court to do. The judgments in this case consider a range of issues which have received scant, if any, attention in Australia to date and which warrant comment.

The meaning of marriage

An appropriate starting point for any discussion about altering the meaning of an institution which is so fundamental to society as marriage⁵⁸, might be the purpose and meaning of marriage. The majority and minority judgments address this question but their different answers to it really drive their conclusions. There has been very little discussion about this foundational question in the discussions about same sex marriage in Australia.

Alito J describes the traditional view of marriage as being between one man and one woman as inextricably linked to procreation⁵⁹. Whilst the majority's third principle of marriage is that marriage "safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education"⁶⁰ and that it "affords permanency and stability important to children's best interests."⁶¹ and they relegate childbearing to being "only one" of the aspects of marriage. Essentially they dismiss the importance of this aspect of marriage in their finding that "[a]n ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State."⁶²

None of the judges in Obergefell really adequately address the traditional or conjugal view of marriage which is more than simply about childbearing intention or potential⁶³. It is true that only one man and one woman can, by their own sexual union, generate a child. It is also true that this can be an intended or unintended result and that, even couples believed to be infertile, sometimes conceive. The traditional, conjugal or comprehensive view of marriage is an understanding of marriage which applies equally whether or not children result. It is precisely the differences - physical, emotional and spiritual - between man and woman which enables the life-long, exclusive, monogamous, comprehensive bodily, emotional and spiritual union of traditional, comprehensive or conjugal marriage⁶⁴. Whilst this is the Catholic understanding of marriage⁶⁵ it is not an understanding of marriage founded solely on religious beliefs⁶⁶.

Alito J observation that the traditional meaning of marriage may sound unfamiliar to many in the United States today⁶⁷ is no doubt also true in Australia. No fault divorce, readily accessible contraception and abortion, the equivalence in treatment of married and de facto couples and the rise in the number of children born out of wedlock, have all impacted on the understanding of marriage. This traditional or conjugal meaning of marriage is consistent with the current definition of 'marriage' in the Marriage Act 1961 (Cth) but it is inconsistent with same-sex marriage and with any other forms of marriage.

The principles of marriage identified by the majority in Obergefell focus primarily on personal choice, companionship, understanding, the "transcendent" purposes of marriage and fulfilment of the married couple. Some have called this the revisionist view of marriage⁶⁸. On this view of marriage gender is irrelevant.

The traditional and the revisionist views of marriage are incompatible with each other. Which of these views of marriage should be endorsed by the State is a fundamental question which should be expressly addressed in considering any change to the meaning of marriage the Marriage Act 1961 (Cth).

The future expansion of the scope of marriage

Gender and number are fundamental in the traditional or conjugal meaning of marriage. If, as in Obergefell, the revisionist view of marriage is adopted, careful consideration will need to be given to whether other forms of marriage, such as polygamy, should also be recognised. Given polygamy's historical, religious and traditional roots⁶⁹, a fair, rational, non-discriminatory and logical basis on which that and other forms of marriage, should continue to be excluded from recognition in Australia, will need to be formulated if that is to continue to be so. As Roberts CJ observed in Obergefell it was difficult to see a logical basis, given the majority's reasoning, on which the Court might refuse future recognition of polygamy⁷⁰.

Religious liberty

Whilst the various bills proposing the introduction of same-sex marriage in Australia include religious freedom protections for priests and pastors, such that they would not be required to officiate weddings contrary to the teachings of their religious denomination, this is a very limited form of protection. If same sex marriage were introduced in Australia, with those limited protections, allegations and prosecutions of religious objectors who are service providers to the wedding industry, of the sort seen in the United States, can be expected.⁷¹ There has been little discussion in Australia of the religious freedom implications of introducing same-sex marriage although Australia's Human Rights Commissioner has recently written on the issue⁷². The complaints to Tasmania's Anti-discrimination Commissioner by Martine Delaney against the Catholic Archbishop of Hobart, Archbishop Julian Porteous, in relation to the distribution of the Catholic Bishops of Australia's pastoral letter on the 'Same-sex Marriage' Debate Don't Mess with Marriage, in Tasmanian Catholic schools and parishes, suggest that even the religious freedom to teach and advocate referred to as requiring protection by the majority in Obergefell⁷³ but criticised as inadequate by that Court's minority judges, is already under threat in Australia⁷⁴.

Conclusion

Whilst not directly relevant in a legal sense in Australia, the United States' Supreme Court decision in Obergefell may provide a springboard for further consideration of some of the issues relevant to the same-sex marriage debate in Australia.

¹Obergefell et al v Hodges, Director, Ohio Department of Health et al 576 US ___(2015) (Obergefell)
² Michigan, Kentucky, Ohio and Tennessee
³ Kennedy J delivered the Court's opinion and was joined by Ginsburg, Breyer, Sotomayor and Kagan JJ to form the majority. Chief Justice Roberts and Scalia, Thomas and Alito JJ were in dissent and each wrote a separate judgment and Scalia and Thomas JJ joined Roberts CJ dissent, Thomas J joined Scalia J's dissent, Scalia J joined Thomas J's dissent and Scalia and Thomas JJ joined Alito J's dissent.
⁴The Commonwealth v Australian Capital Territory [2013] HCA 55 (Commonwealth v ACT). For a summary of this decision see A. Keith Thompson (Dr) and Patricia Muscat "The High Court finds ACT same sex marriage law invalid" On The Case Issue 2, The University of Notre Dame Australia, Schools of Law http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-2
⁵Goodridge v Department of Public Health, 440 Mass. 309, 798 N.E. 2d 941
⁶ 11 States and the District of Columbia had changed their marriage laws to include same sex marriage through a popular vote or through their parliament and 5 State Courts had interpreted their State Constitutions as requiring the recognition of same sex marriage. See Obergefell Roberts CJ 9 [B]
⁷ ibid
⁸ For example, in Craig and Mullins v Masterpiece Cakeshop Inc and Anor, State of Colorado Administrative Court CR 2013-0008 6 December 2013, cake makers who, on the grounds of a religious and conscientious objection to same sex marriage, declined to bake a cake celebrating such a wedding in Oregon, were held to have acted unlawfully (see Todd Starnes, "Oregon ruling really takes the cake – Christian baker guilty of violating civil rights of lesbian couple" Fox News, Jan 21, 2014 http://www.foxnews.com/opinion/2014/01/21/christian-bakery-guilty-violating-civil-rights-lesbian-couple/); an anti-discrimination claim was brought against a bridal shop in New Jersey for refusing to sell a wedding dress to a lesbian bride (see Nina Terrero, "N.J.Bridal Shop refused to Sell Wedding Dress to Lesbian Bride: Owner says "That's Illegal" ABC News, Aug 19, 2011 http://abcnews.go.com/US/nj-bridal-shop-refused-sell-wedding-dress-lesbian-story?id=14342333); in Washington State a florist who felt unable to supply flowers to a same sex couple's wedding by reason of her strongly held religious convictions was prosecuted (see Blaise Joseph "Discrimination "nonsense" in Washington state" Conjugality 12 April 2013 http://www.mercatornet.com/conjugality/view/12064; http://www.reuters.com/article/2013/04/19/us-usa-gaymarriage-washington-idUSBRE93I08820130419); in New Mexico wedding photographers whose strong religious beliefs prevented them from photographing a same-sex wedding, were found to be in breach of the New Mexico Human Rights Act in Elane Photography LLC v Vanessa Willock, Supreme Court of the State of New Mexico, Docket No.33,687 (see Michael Quinlan, "Same sex marriage and religious freedom collide in New Mexico" On the Case Issue 1 http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-1; in New York State a devout Catholic married couple who owned and controlled a corporate entity, Liberty Ridge Farm LLC which owned and controlled a farmland property in Albany were prosecuted for declining a booking for a same sex wedding in New York State Division of Human Rights on the Complaint of Melisa McCarthy and Jennifer McCarthy (Complainant) v Liberty Ridge Farm LLC, Cynthia Gifford and Robert Gifford (Respondent) (Case numbers 10157952 and 10157963) (see Neville Rochow, "Same-sex marriage and property rights compete in New York State" On the Case Issue 7 http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-7) 
⁹ See n2 above
¹⁰ Kennedy J delivered the Court's opinion and was joined by Ginsburg, Breyer, Sotomayor and Kagan JJ to form the majority
¹¹Obergefell Kennedy J 12
¹² ibid
¹³Obergefell Kennedy J 13
¹⁴ ibid
¹⁵Obergefell Kennedy J 14
¹⁶ ibid
¹⁷Obergefell Kennedy J 15
¹⁸ Ibid – the judgment does not identify what these costs may be
¹⁹ Ibid
²⁰ Ibid
²¹Obergefell Kennedy J 16
²² ibid
²³Obergefell Kennedy J 17
²⁴ ibid
²⁵ Ibid
²⁶ ibid
²⁷Obergefell Kennedy J 18
²⁸Obergefell Kennedy J 21
²⁹Obergefell Roberts CJ (with whom Scalia and Thomas J joined) 2-3; Scalia J (with whom Thomas J joined) 5-6; Alito J (with whom Scalia and Thomas JJ joined) 2-3 and Alito J (with whom Scalia and Thomas JJ joined) 6-7
³⁰Obergefell Roberts CJ 25, Scalia 5-7
³¹Obergefell Roberts CJ 22, see also Scalia's critique of the unrepresentative nature of the Court Obergefell Scalia 6-7
³²Obergefell Alito J 3-4
³³Obergefell Alito J 3
³⁴Obergefell Alito J 4
³⁵ ibid
³⁶Obergefell Roberts CJ 3, 25, see also Scalia 7
³⁷ With arranged marriages falling out of favour and coverture and racial restrictions on marriage being repealed or struck down by the Supreme Court: Obergefell Roberts CJ 7
³⁸Obergefell Roberts CJ 8, 16
³⁹Obergefell Roberts CJ 5; see also Alito J 5
⁴⁰ He notes than more than 40% of children in the US are born to unmarried women: Obergefell Alito 4
⁴¹Obergefell Alito 5
⁴²Obergefell Alito 5 citing his dissenting judgment in Windsor 570 US slip op 8-10
⁴³Obergefell Roberts CJ 17-18, Thomas J 9-10
⁴⁴Obergefell Roberts CJ 19, see also Scalia 7
⁴⁵Obergefell Roberts CJ 20-21
⁴⁶Obergefell Roberts CJ 27-28
⁴⁷Obergefell Roberts CJ 27-28
⁴⁸Obergefell Roberts CJ 28
⁴⁹ ibid
⁵⁰Obergefell Roberts CJ 28, Thomas J 15
⁵¹Obergefell Thomas J 15-16
⁵²Obergefell Roberts CJ 28; see also Alito J 7
⁵³ See e.g. Michael Koziol, "Love Wins: World celebrates US Supreme Court decision legalising gay marriage" Sydney Morning Herald June 27, 2015 
: http://www.smh.com.au/world/lovewins-world-celebrates-us-supreme-court-decision-legalising-gay-marriage-20150626-ghz4tx.html#ixzz3fvplgpCm
⁵⁴ The marital status of couples or of the parents of children seem to be a matter of complete indifference in contemporary Australia 
⁵⁵ According to The Australian Bureau of Statistics, Australian Social Trends, July 2013 "Legislative reforms at the State/Territory and Commonwealth level have removed the majority of legal distinctions between same-sex couples and opposite-sex couples, recognising their relationships in matters such as superannuation, taxation, social security, inheritance, and support for veterans. In some states and territories, relationship registers have been created, or arrangements for the recognition of domestic partnerships have been introduced. "Australian Bureau of Statistics Australian Social Trends, July 2013http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features10July+2013
⁵⁶ibid
⁵⁷ Similarly, neither the criticism by the minority judges of the majority judgment for over-reaching or expanding the scope of the Fourteenth Amendment are directly relevant.
⁵⁸See Obergefell Kennedy J 16, Roberts CJ 4-6
⁵⁹Obergefell Alito J 4 and see also Obergefell Thomas J 15-16
⁶⁰ ibid
⁶¹Obergefell Kennedy J 15
⁶² Ibid
⁶³ A good discussion of the meaning of traditional or conjugal marriage can be found in Sherif Girgis, Robert P George and Ryan T Anderson, "What is Marriage?" 34 Harvard Journal of Law and Public Policy 246
⁶⁴ The Catholic Bishops of Australia, "Don't Mess with Marriage", Australian Catholic Bishops Conference 2015 6-7
⁶⁵ ibid
⁶⁶ Girgis, George and Anderson above n62, 247
⁶⁷Obergefell Alito J 4
⁶⁸ Girgis, George and Anderson above n62, 246-247
⁶⁹ There are no good reasons to expect that demands for recognition of polygamous marriage would not be the natural result of the introduction of same sex marriage in Australia Whilst there are no official figures for those in polygamous relationships in Australia (see Natalie O'Brien, "Probing polygamy" The Australian, June 26, 2008, http://www.theaustralian.com.au/news/probing-polygamy/story-e6frg8go-1111116736076) according to the SBS Insight programme "Although it's outlawed, polygamy is still practiced informally in Australia. Having more than one spouse is a long-standing and legitimate cultural norm in some Indigenous Australian, African and religious communities in Australia (SBS, "Polygamy" Insight http://www.sbs.com.au/insight/episode/overview/479/polygamy ). According to the guests interviewed on that programme polygamy is common in at least one Lebanese Muslim community in Sydney and polygamy is a very normal part of life in the Sierra Leonean community in Australia.
⁷⁰Obergefell Roberts CJ 20-21 noting at 20 that an appeal was pending on that very question in Brown v Buhman 947 F.Supp. 2d 1170 (Utah 2013)
⁷¹ See n 8 above
⁷² Tim Wilson, "Defend Religious Freedom" The Australian, 6 July, 2015 10; Joe Kelly, "Church could opt out of marriage" The Australian 7 July, 2015. For a US perspective in support of both same sex marriage and religious freedom see Douglas Laycock and Thomas C Berg, "Protecting Same-Sex Marriage And Religious Liberty"99 Virginia Law Review 1 [2013]
⁷³Obergefell Kennedy J 21
⁷⁴ Robert Hiini, "Protest at letter a 'sign of what's to come." The Catholic Weekly Vol 73 No 4783 12 July 2102 1,3