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Why The Polygamy Slope Is Slippery

More on the Utah ruling and the slippery constitutional slope from same-sex marriage to polygamy, from Jonathan Tobin. Tobin cites a New York Times quote of Georgetown George Washington University law professor Jonathan Turley, who represented the victorious polygamist plaintiffs in the case: Jonathan Turley, a law professor at George Washington University who represented the Browns […]

More on the Utah ruling and the slippery constitutional slope from same-sex marriage to polygamy, from Jonathan Tobin. Tobin cites a New York Times quote of Georgetown George Washington University law professor Jonathan Turley, who represented the victorious polygamist plaintiffs in the case:

Jonathan Turley, a law professor at George Washington University who represented the Browns in this case, disagreed with Justice Scalia’s reasoning and said in an exchange of emails that the case “is about privacy rather than polygamy.” He added, “Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.”

This is disingenuous. Of course it’s about polygamy, in the sense that the case was to a significant degree about whether the right of privacy extends to polygamists in the same way SCOTUS extended it to homosexuals in the Lawrence ruling invalidating sodomy laws. This is like saying that a case is not about neo-Nazis marching through a Jewish neighborhood, but about the First Amendment right to free speech. Defending the abstract principle entails the concrete instance. It may be the case that defending the abstract principle requires society to accept something repugnant — indeed, that’s exactly what the Skokie case in 1978 was about. And that is what the post-Lawrence right to privacy discovered by the Supreme Court entails, though many gay marriage supporters don’t want to acknowledge it. Here’s Tobin:

But liberals like Turley still refuse to acknowledge that Justice Antonin Scalia was right when he predicted in his dissent in Lawrence that the demise of sodomy laws would lead to the legalization of some things that advocates of gay rights wanted no part of. If we have “evolved” to the point where marriage by any two consenting adults of either sex should be recognized by the state, then there isn’t any logical or legal rationale for prohibiting the same privilege for any number of citizens cohabiting to claim the same right.

I don’t think many people understand Scalia’s reasoning. He was not opposed to ending sodomy laws. He simply thought there was no fundamental constitutional right to sodomy, even under our constitutional understanding of privacy. From his dissent:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowerssupra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,”ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.


    Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added)Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Of course 10 years later — this summer, in fact — the Supreme Court did what Scalia predicted, and struck down as unconstitutional the law forbidding the federal government from recognizing same-sex marriage. Scalia believes, and said in his Lawrence dissent, that if a state wishes to throw out its sodomy laws, that’s the state’s right. But the constitutional right to privacy cannot mandate the end of sodomy laws. If it does, said Scalia, on what basis do we maintain any morals legislation that stigmatizes and punishes private consensual sexual conduct? The logic of this naturally leads to this summer’s Windsor decision, in which Lawrence‘s finding that anti-sodomy laws are invalid stood as a precedential pillar on which SCOTUS invalidated DOMA. The logic, based on the Lawrence precedent, is hard to refute.

So, if states had gotten rid of sodomy laws by legislative action, they would have retained the right to criminalize polygamy. But having found a constitutional right to privacy invalidating sodomy laws, by what logic does one tell polygamous/polyamorous families that the right to privacy that protects gays, and on which gays gained federal marriage recognition, doesn’t protect them? As Scalia said, the principle has a logic to it.

It may be worth it, in the end, to permit polygamy — as our courts eventually will — for the sake of establishing same-sex marriage rights. Let us note, though, that the idea that one would lead to the other was strenuously denied by same-sex marriage proponents, and still is today. Don’t you believe it. Here’s Tobin:

All that is needed is a little candor on this issue on the part of critics of the dwindling band of opponents of gay marriage. The floodgates have been opened, and if that makes some of us uncomfortable, especially those who understandably view polygamy as synonymous with the exploitation of women, then we should be honest enough to acknowledge that it is merely part of the price that had to be paid to give gays the same right to marry afforded to other citizens.

Good luck with that. Honesty would impede gaining the results advocates want.



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