Polygamy and the Marriage Free-fall

by Andrew T. Walker

Marriage in America is in a state of free-fall, and it’s the confluence of American attitudes and legal rulings that are responsible for helping push it off the cliff.

On Friday night, a George W. Bush judicial appointee, Judge Clark Waddoups, struck down a part of Utah’s law against polygamy in a 91-page ruling. The case drew nationwide attention because the plaintiff, Kody Brown, is the star of TLC’s Sister Wives, a reality show depicting the life of a polygamist family.

Waddoups’ ruling is fairly limited, insisting that the state’s ban on “religious cohabitation” is unconstitutional, and therefore should no longer be criminalized. The judge left intact the portion of the law that prohibits an individual from obtaining a marriage license while already legally married.

So, according to the ruling’s logic, it is illegal to have more than one legal spouse, but informal, private, or lifestyle polygamy is no longer illegal.

Waddoups’s ruling can’t be viewed in isolation from the events that preceded it, especially the debate over same-sex marriage and the larger effort to undo the norms of family life. Social change, for good or ill, rarely happens at a single moment in time, but over time as the sum total of a thousand smaller events. This Friday night in Utah was one such event.

In his ruling, Judge Waddoups cites the 2003 Supreme Court decision Lawrence v. Texas that rendered Texas’s anti-sodomy law unconstitutional. He even quotes Justice Kennedy’s line that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”

In a now-famous dissent in Lawrence, Justice Scalia predicted that the Court’s action in Lawrence in entering moral debates would have the effect of mainstreaming any and all sexual activity under the rubrics of liberty and privacy. As Scalia noted in his 2003 dissent, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. . . . Every single one of these laws is called into question by today’s decision.”

Even the justices who did not agree with Texas’s anti-sodomy law still considered the Court’s foray into “morals legislation” a matter outside the Court’s jurisdiction. While no one in this debate is calling for a return to anti-sodomy laws, Scalia’s 2003 prescience now seems prophetic of a larger truth about family life in America: It lacks a normative position, an epidemic that Waddoups’ decision only exacerbates.

Critics of the sexual liberation movement, and in particular, same-sex marriage, have long conjectured that redefining marriage to include same-sex persons would open the door to further revision. Once the norms of marriage are based on undefined and vague conceptions of “liberty” and “equality” without addressing the substantive issues of defining what marriage is, marriage can no longer be said to be fixed, but elastic and subject to the demands of democratic fiat.

Once the norms of marriage that give it shape — permanency, complementarity, monogamy, and exclusivity — are removed, no principle of logic based on appeals to an undefined conception of “equality” can restrict any number of persons from entering what they believe is a marriage. The logic of the sexual liberation movement lacks the necessary limiting principle to deny polygamists their own attempt at “marriage equality.”

In his decision, Judge Waddoups has adopted a revisionist conception of marriage, one where marriage is adult-centric rather than child-centric, premised on an expansive understanding of the Bill of Rights coupled with suspicion toward majoritarian politics. The New York Times summarizes the ruling well:

“To state the obvious,” Judge Waddoups wrote, “the intervening years have witnessed a significant strengthening of numerous provisions of the Bill of Rights.” They include, he wrote, enhancements of the right to privacy and a shift in the Supreme Court’s posture “that is less inclined to allow majoritarian coercion of unpopular or disliked minority groups,” especially when “religious prejudice,” racism or “some other constitutionally suspect motivation can be discovered behind such legislation.”

As many predicted would happen, the ruling represents the appalling precedent handed down in this year’s Windsor U.S. Supreme Court decision.

Defenders of man-woman marriage have contended that altering the definition of marriage would lead to the institution’s further redefinition. Today, those ridiculed for predicting a “slippery slope” argument stand vindicated. The door has been opened to define marriage as based on the mutual love of two persons, regardless of sexual compatibility.

Proponents of same-sex marriage have failed to give a logically satisfying response on why expanding marriage to include same-sex marriage won’t portend the legalization of polygamy. Sometimes, the most ardent of activists will lay bare their intent to bring polygamy into the mainstream. Mostly though, same-sex marriage activists dismiss concerns of this nature, drawing arcane, ineffectual differences between “status” and “conduct” on the part of those who practice polygamy. What’s known at present is that Judge Waddoups has disregarded the interests of women and children who find themselves — whether in consensual or religiously enforced contexts — in polygamous relationships, a type of relationship that has known harms associated with it.

While Judge Waddoups may have helped remove a social taboo while keeping the legal taboo associated with polygamy intact, he has certainly paved the way for continued legal victory. However it is spun, the state has tipped its hat to polygamy, giving it ample precedent to begin its mainstreaming in U.S. law. As the Lawrence decision helped advance a libertarian vision of sexuality, so too does the Waddoups ruling help further an increasingly libertarian vision of marriage.

Today’s ruling shapes tomorrow’s culture. The rapid pace of the LGBT movement’s advance in America was surely quickened by the Lawrence decision. If there comes a day where “marriage equality” includes those in polygamous relationships, Waddoups’s ruling will be seen as a harbinger.

Andrew T. Walker serves as the director of policy studies with the Ethics and Religious Liberty Commission.

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