(CNSNews.com) - Same-sex marriage is about "equal rights," attorney David Boies said on Sunday. But polygamy is different, he explained:
"What you have in a polygamy case is a situation where you're going to have multiple partners, and there is all sorts of evidence that that has harmful effects on some of the people participating and on the children."
Boies and fellow attorney Ted Olson successfully argued against California's same-sex marriage ban before the U.S. Supreme Court in 2008. On Sunday, they both appeared on NBC's "Meet the Press" with Chuck Todd to discuss the landmark marriage case that comes before the Supreme Court on Tuesday.
If the Supreme Court decides that same-sex marriage is a constitutional right, as it might do, what about the argument that polygamy must also be a constitutional right? Todd asked Boies and Olson.
"First of all, that is a silly argument," Boies said.
"This has to do with equal rights. What we are saying is, you can't deprive a loving couple of marriage simply based on their sexual orientation. Just like you can't deprive a loving biracial couple of the right to get married -- the Supreme Court held that many, many years ago.
"What you have in a polygamy case is a situation where you're going to have multiple partners and there is all sorts of evidence that that has harmful effects on some of the people participating and on the children. There is a policy reason.
"More important, there is a real reason, and that is you are not discriminating against anybody. Everybody gets to have one spouse. As long as you don't restrict it based on race, gender, sexual orientation, everybody is treated equal under the Constitution.
"What you can't do is, you can't say some people are second class and so some people can marry the person they love, one man, one woman; but two men, two women can't get married because of their sexual orientation or their gender. That's what's unconstitutional about it. The polygamy thing has nothing to do with it."
Olson, in response to the polygamy question, said homosexuality is not a choice, but polygamy is:
"The overwhelming evidence in the case that we tried (in 2008) is that sexual orientation is something that's an immutable characteristic of an individual. Choosing to have multiple spouses is a choice. It's not a part of any innate characteristic."
Olson argued that traditional marriage discriminates against people "because of their sexual orientation. Polygamy has nothing to do with that."
Arkansas Gov. Asa Hutchinson, also appearing on "Meet the Press," said same-sex marriage is both politically and geographically divisive, because in a majority of states, it's been accomplished "through judicial fiat versus the legislative process."
"And so the courts really are forcing this issue," Hutchinson said. "As to what the Supreme Court will do, I think it's a little bit unpredictable. I think they could continue to give some deference to the states, but I do think we'll probably have to clearly recognize what happens in another state."
The Supreme Court will hear two-and-a-half hours of oral arguments Tuesday on two questions: whether same-sex couples have a constitutional right to marry; and whether states must recognize same-sex marriages performed elsewhere.
Hutchinson noted that Arkansas has a constitutional amendment defining marriage as between one man and one woman.
"That is my conviction, it's my belief. But I also recognize if we talk about this issue, we need to talk about it in terms of tolerance. We need to talk about it in terms of nondiscriminatory policy, the diversity of the work place..."
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