I want to return to the argument made by some that if we say the fundamental right to marry can be used to strike down prohibitions against same-sex marriage, it must therefore be able to be used to strike down prohibitions against polygamy. I simply don't see how this is supposed to follow. The argument for same-sex marriage is not that there can be no regulations with regards to marriage. On the contrary if the state is going to recognize marriage in any way there must be laws deciding how we determine whether two people are married and what are the consequences of that determination. Same-sex marriage proponents merely claim that in a free society the choice of whom one marries must reside with the individual and not the state absent some compelling governmental interest in restricting that choice. This seems clear to me, but not to others so perhaps I am not understanding them or they are not understanding me, or both. To try to make myself better understood I thought an analogy might be helpful.
I believe we have a fundamental right to vote. This does not mean I believe that the state should not be able to regulate voting. On the contrary it must if the vote is to be recognized in any way. Rather I believe that in order for the right to vote to be meaningful it must not only include the right to cast a ballot for somebody but it must also necessarily include the right to cast a ballot for the candidate of our choice. That is in a free society the choice of whom one votes for must reside with the individual and not the state absent some compelling governmental interest. Because of my belief in this right to vote I would be suspect of even those restrictions which placed parallel burdens on different segments of the society. For example, suppose the law required that there be one senator of each sex from each state. This law burdens men and women equally. Neither group is advantaged or disadvantaged by it. Nobody is excluded from running for Senator nor is anybody excluded from voting. There may even be a legitimate goal advanced by this proposal. It would result in a Senate that, in terms of gender, more accurately reflected the population. Every state would have a Senator of each gender and the two would "complement" one another, and so forth. I believe such a policy, though, would violate our fundamental right to vote for the candidate of our choice.
Does it follow that the legislature must permit anybody who so chooses to vote for as many candidates as they would like? Such a system, as in approval voting, could work. In fact I think it would be a better system than we currently have. But I do not think there is a right to such a voting system. The right to vote cannot include the right for us to each decide which voting system we would like to use. Every person has the right to vote (barring a compelling reason to disenfranchise), but not the right to vote for as many candidates as one would like. In a similar manner while the state would need a good cause to deny someone the opportunity to run for office, it is certainly reasonable to restrict the person to one office at a time.
UPDATE: In introducing this post at MarriageDebate.com, Eve Tushnet writes:
Not sure how far this gets you given that a) a huge part of the SSM debate is over whether sex difference is relevant to marriage in a way that it is not relevant to being a senator, and b) a lot of the "ssm-->polygamy" claims rest on particular rationales for ssm that are different from the anti-sex-discrimination rationale that Gabriel finds most persuasive.
Let me address Eve's second point first. Although it is true that I find the sex discrimination argument the most persuasive, this post was based on a different argument, namely the fundamental right to marry. When in my analogy I compared it to a situation in voting where lines were drawn based on sex I did so to try to parallel to some extent the situation we face in marriage. In doing so, though, perhaps I obscured the right to marry argument somewhat. If it helps let us suppose a different restriction on the right to vote. Perhaps the legislature decides that in order to combat political corruption and undue influence they were going to prohibit anybody from voting for anybody with whom they are related or with whom they have done business in the past. Again I suspect this would be unconstitutional even though everybody would still be eligible to vote and the law is applied to everyone.
As for Eve's first point, I simply note that how sex difference is relevant to marriage would arise in evalutating the state's interest in prohibiting SSM (or how it's relevant to governing and representation would arise in its interest in requirng a senator of each sex). That would not have anything to do with whether a compelling interest were needed.