In a lawsuit brought by Kody Brown, star of the reality show Sister Wives, a federal judge in Salt Lake City on Friday struck down part of Utah’s 1973 anti-bigamy law, finding that while a man does not have the right to legally marry multiple women, the state cannot prevent cohabitation with multiple “wives” as a religious practice. Lyle Denniston explains the ruling:
Judge Waddoups drew some inspiration for his ruling from the Supreme Court’s 2003 decision in Lawrence v. Texas, declaring a constitutional right of adult same-sex couples to engage in private sexual conduct. But he said he could not rely directly and fully on that ruling, because the Tenth Circuit has given it a narrow reading. Instead, the judge relied mainly upon a 1993 decision, Church of the Lukumi Bablu Aye v. Hialeah, a ruling that barred government interference with the religious rituals of animal sacrifice of the minority faith, Santeria. From that decision, Judge Waddoups found a requirement that the Utah law’s ban on religious cohabitation could not survive a “strict scrutiny” analysis.
While the state law’s ban on cohabitation with another person is formally neutral as written, the judge said it nevertheless is not neutral in its actual operation in banning religious cohabitation. That portion of the 1973 state law discriminates against cohabitation only when it is practiced by those who do so as a matter of religious faith, the judge said. The state of Utah, the judge noted, does not prosecute those who engage in cohabitation as an act of adultery — that is, a married person having intimate relations with a person who is not the spouse. The state thus threatens prosecution only for those who cohabit as a religious activity, according to the judge.
David Copel expects the case to go to higher courts:
It would not be surprising if the case were appealed to the Tenth Circuit, and Judge Waddoup’s opinion seems careful to color within the lines of the Tenth Circuit’s cases interpreting (rather narrowly) the aforesaid modern Supreme Court cases. Should the Browns prevail in the 10th Circuit, the case seems a good candidate for the Supreme Court. The Tenth Circuit has several anti-polygamy decisions within the past few decades, and Judge Waddoups worked hard to distinguish them. Whether the 10th Circuit will consider the distinctions persuasive remains to be seen.
It is important to remember Brown v. Burnham in no way establishes a constitutional right to plural marriage. Nor does the Brown decision challenge ordinary state laws against adultery. Rather, the decision simply strikes down an unique state law which defined cohabitation as “bigamy.” Even then, the statute might have been upheld but for the government’s policy of reserving prosecutions solely for cohabitators who for religious reasons considered themselves to be married to each other under God’s laws, and who fully conceded that they were not married under the civil law of the state.
Mataconis analyzes the ruling’s implications:
Does this mean that the Browns should be permitted to take the next step and established a legal polygamous marriage that would be entitled to the same legal benefits that two-person marriage is throughout the United States? That is, admittedly, a more difficult question. Recognizing a marriage legally ends up creating a whole host of rights and obligations under state and Federal law that may not translate well to multiple person marriage. That, however, is a practical observation rather than a principled one. It’s also a question for another day because it’s not one that the Browns are raising, even if it will be one that conservative critics of the decision will raise as they react to this decision.
Anticipating another argument that many on the right will likely make in response to this decision, it strikes me that this decision is only tangentially related to the issue of same-sex marriage. It’s related in the sense that the 14th Amendment arguments regarding the rights of people to live their private lives and consensual obligations free from state interference are issues in both situations, and also in the sense that the Utah law against “religious cohabitation” clearly treats a certain class of people differently in violation of the Equal Protection Clause.
However, it’s unrelated in the sense that the arguments for same-sex marriage are merely seeking to extend to gay and lesbian couples the same rights and legal privileges already granted to opposite sex couples, whereas this case seeks to attack a provision of Utah law specifically punishing people for their religious beliefs. Indeed, for the most part, there is very little in this opinion that would be applicable outside of Utah and outside of the specific facts of this case. So, when you see the “slippery slope” crowd worrying that the next step along the road is, as Professor Bainbridge puts it, the legalization of adult incestuous marriage or the end of laws against incest themselves, you can largely dismiss it as little more than political rhetoric.
Tobin is also on that slippery slope:
While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.
Dreher foresees “the collapse of Christianity as the basis for Western society”:
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.
Eugene Kontorovich, on the other hand, praises Waddoups for his “courageous civil rights ruling”:
Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.
The Dish 