While in that post Prof. Witte is addressing "The Legal Challenges of Religious Polygamy," one of Fr. Harmon's correspondents raises this from California Justice Marvin Baxter’s dissent from the revolutionary Court's lawless creation of same-sex marriage:
The bans on incestuous and polygamous marriages are ancient and deep-rooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.Again, the link to the T19 post and comments is here. Prof. Witte's full commentary is here. For for excerpts of Justice Baxter's dissent, see here by Cobb, here by the Thomas More Law Center, and here on the West Law Report blog.
That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?