Utah & Polygamy: We Told You So
A federal judge in Utah has struck down part of that state’s law banning polygamy, after a lawsuit was brought by the stars of the television reality series “Sister Wives.”
The ruling late Friday by U.S. District Court Judge Clark Waddoups threw out the law’s section prohibiting “cohabitation,” saying it violates constitutional guarantees of due process and religious freedom.
But the judge said he would keep in place the ban on bigamy “in the literal sense — the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.”
The 91-page decision comes months after the Supreme Court struck down a separate federal law that defined marriage as between only one man and one woman, a major legal, political, and social victory for homosexual couples seeking recognition of their same-sex unions.
Russell Moore says the right thing:
“This is what happens when marriage becomes about the emotional and sexual wants of adults, divorced from the needs of children for a mother and a father committed to each other for life,” said Russell Moore, of the Southern Baptist Convention. “Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children. Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing.”
Over at Volokh, they’re still digesting the ruling. Orin Kerr says it’s strange:
I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23). More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point. It’s definitely different.
But you don’t pay us the big bucks to skip over the legal goods, so here’s the reasoning of the court’s opinion, at least as far as I can tell. First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion. It is a phrase in the statute that has been used to target religious minorities that are polygamists, the judge reasons. The phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny. The phrase also violates Due Process under Lawrence because it violates the principle of “consensual sexual privacy,” and that it is also void for vagueness. (I don’t know where the judge gets the idea that individual words or phrases are evaluated for their constitutionality, as compared to laws, but that’s an assumption the judge makes throughout the opinion.)
It will be interesting to see over the coming days what legal analysts make of the ruling, which came down on Friday afternoon, catching everyone off guard. It seems from my reading that the ruling is fairly limited, and only prevents the state from regulating whether or not people live together in polygamous relationships. It does not make polygamy legal in the sense that it compels the state to recognize polygamous relationships as marriages. Still, it seems to me that an important line has been crossed, because if this ruling stands on appeal, it will have established that it’s none of the state’s business how people choose to organize their private sexual lives, even when children are involved. I am not as confident as the Salt Lake Tribune‘s Polygamy blog — the paper has not one but two reporters who cover the polygamy beat — is on this point:
What impact did this year’s gay marriage rulings have? It appears none. Neither of the U.S. Supreme Court cases received citations in Waddoups’ ruling. Waddoups did cite the 2003 case of Lawrence v. Texas that struck down sodomy laws for gay sex, quoting a passage affirming a right to “unwarranted government intrusions into a dwelling or other private places.”
Here is the full text of Judge Waddoups’ ruling. The only reference to gay-specific rulings is a brief mention of Lawrence vs. Texas, in which Waddoups pooh-poohs Justice Scalia’s dissent:
Cf. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting) (observing that the majority’s holding overturning Bowers v. Hardwick 478 U.S. 186 (1986) and relying on Justice Stevens’ dissenting opinion in Bowers “effectively decrees the end of all morals legislation” because “[i]f, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws [criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational basis review”). Despite Justice Scalia’s dour view in this comment, the court believes the “good order and morals of society” remain a rational basis for much majoritarian legislation under the States’ police power, though perhaps now subject to a more nuanced and equitable analysis than before Lawrence.
So, if I’m reading that correctly — and I may not be; I invite your correction — it is true to say that neither of the High Court’s rulings this summer on gay marriage are relevant to this case. But that’s cold comfort to social conservatives, because the High Court relied on Lawrence — the 2003 ruling that invalidated sodomy laws — significantly in its decision to overturn DOMA.
Waddoups calls a 19th-century Supreme Court ruling banning polygamy “racist” and “orientalist,” because it asserted that Christianity’s teaching on marriage is superior to the polygamous arrangements that some Africans and “Asiatics” (presumably this means Arab Muslims) live by. This is an important point, it seems to me. If Christianity and the Christian moral and societal framework is no longer viewed as normative in laws governing sexual practice, then the slippery slope to legalizing polygamy is here. We already know from the Lawrence ruling that the state may not regulate private consensual sexual conduct; if the principle that privileging Christian marital norms is impermissible is accepted, by what standard do we prevent polygamy? I suppose you could say it harms society in some way, but this judge rejected that argument.
Scalia’s Lawrence dissent was correct. We’re just seeing the logic of the majority opinion play out in the courts. That, and the collapse of Christianity as the basis for Western society. It’s not happening overnight. But it’s happening.