Justice brings up polygamy in Prop 8 gay marriage case

Washington • If gay marriage is legal, what about polygamy?

It's a long-debated political question, one that surfaced in Tuesday's Supreme Court hearing on California's gay marriage ban, known as Proposition 8.

Justice Sonia Sotomayor brought it up while questioning former U.S. Solicitor General Ted Olson, a Republican who argued that gay marriage is an individual right and should be protected by the Constitution.

"If you say that marriage is a fundamental right, what state restrictions could ever exist?" Sotomayor asked before referencing polygamy and incest among adults.

Olson responded by saying that polygamy raises questions "about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody — it is an entirely different thing."

"If a state prohibits polygamy," he said, "it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."

At one time, the Utah-based LDS Church practiced polygamy, which it renounced in 1890. The faith's leaders directed members to support Prop 8 in 2008 and signed on to a friend-of-the-court brief asking the Supreme Court to leave same-sex marriage to state legislatures and Congress.

mcanham@sltrib.com