Judge Clark Waddoups, in striking down Utah’s ban on “spiritual” polygamous marriages, noted that the Republican party was founded with the goal of eliminating the “twin relics of barbarism” — slavery and polygamy.
He didn’t mean it as a compliment to the GOP.
Judge Waddoups’s decision, issued last December, was finalized this week and now heads (presumably) to the Tenth Circuit. The right to enter legally recognized polygamous marriages is not on the table in this case, only whether states can criminalize those who live in what are termed “spiritually polygamous unions.”
Waddoups, appointed to the federal bench by George W. Bush in 2008, is clearly deeply hostile to laws that limit marriage to monogamous couples. Laws against polygamy are not just wrong, they are also racist, he writes in his ruling.
Why, he asks, did the United States oppose polygamy so fiercely that it hounded Utah Mormons into abandoning the practice as a condition of statehood? Using Edward Said’s work as a conceptual framework, Waddoups answers:
19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”
When he notes that the Republican party was founded in opposition to slavery and polygamy, he doesn’t see in that pairing the irony of his casting moral opposition to polygamy as racism.
Republicans of that era linked the two together, not because they were passionately committed to racism but because they saw in the American political regime a foundational and fundamental advance in human civilization, one whose historical roots were in Europe. (Why is it that even today, when Supreme Court justices wants to cite the opinions of foreign courts as morally informative, they cite European courts, not South American or African ones?)
In the 19th century, monogamy stood as the marriage system most consistent with economic progress, the rights of women, and a democratic form of government. That continues to hold true today.
But Judge Waddoups finds in this intellectual tradition only one thing: racism.
In an 1890 decision, the Supreme Court called polygamy “a return to barbarism” that was “contrary to the spirit of Christianity”: “Polygamy leads to the patriarchal principle,” which, “when applied to large communities, fetters the people in stationary despotism,” the Supreme Court argued.
Waddoups calls these objections to polygamy “another racist or orientalist observation about this Mormon practice based in the ‘scientific’ perspective of the day.”
“Such an assessment arising from derisive societal views about race and ethnic origin prevalent in the United States at that time has no place in discourse about religious freedom, due process, equal protection, or any other constitutional guarantee or right,” he continues.
With this decision, the judge gives a hyper-caffeinated rhetorical jolt to the re-conceptualizing of traditional understandings about sex and marriage as the moral equivalent of racism.
Let me step back from the argument about polygamy (and I am not particularly a fan of using the criminal law for these purposes) to note a wider truth: Judges today have a hard time conceiving of the idea that marriage and family together constitute a system that’s necessary for the common good, and they cannot imagine that this system requires social and legal support and norms. That this system required protection was as obvious to those 19th-century Republicans determined to stamp out slavery and polygamy as it is invisible to the judges of today.
Perhaps this is in part because the broad retreat of social and legal sexual norms to the thin blue line of consent has had a far less harmful impact on educated elites (like lawyers) than on the rest of society. Private and personal norms, buttressed by private and personal abortions, appear to be doing a pretty good job of sustaining family life in the upper middle classes.
Waddoups finds it impossible to conceive that any rational person would think there could be harms from the creation of a visible public subculture of polygamy, regardless of whether the marriages are state-sanctioned. To him, such a claim is not just wrong, it is literally unintelligible: “The court agrees with [Utah supreme court] Chief Justice [Christine] Durham that ‘the state has an important interest in regulating marriage, but only insofar as marriage is understood as a legal status. . . . In the absence of any claim of legal marriage, neither participation in a religious ceremony nor cohabitation can plausibly be said to threaten marriage as a social or legal institution.’”
If the state’s interest in marriage is only in “civil marriage,” then by definition its interests cannot be affected by private marriages that do not seek legal recognition.
Waddoups goes on to write that he feels “compelled” to “identify an absurdity,” which is that banning spiritual polygamy could possibly “protect” the institution of marriage. “At a time of much discussion in society about problems arising from the decline in rates of people marrying or the increased age at which people decide to marry, the Statute penalizes people for making a firm marriage-like commitment to each other,” he writes.
Here’s the obvious conclusion that Judge Waddoups can’t see: Removing the law that criminalizes private polygamy will make polygamy a more socially visible and acceptable practice. As such, the normative, taken-for-granted character of monogamy as our long-established marriage system will be undermined. One needn’t advocate throwing the polygamously married in jail. But we could better bear the costs of decriminalizing polygamy if their existence were not treated as absurd by judicial supremacists in our midst.
— Maggie Gallagher is a senior fellow at the American Principles Project. She blogs at MaggieGallagher.com.