Politics & Policy

Boehner’s Odd Choice

Professor Jonathan Turley (Chip Somodevilla/Getty)
Jonathan Turley is a good lawyer. But his advocacy on one issue should rule him out.

Imagine this scenario. It’s 2022. The second-term Republican president, stymied by the Democratic Congress in implementing his signature legislative initiative — the Social Security Reform Act, let’s say – takes a series of executive and regulatory actions that cut Congress out of the process. House Democrats announce plans to sue the president, and, in what at first seems like a great legal and public-relations coup, they retain a prominent conservative Republican law professor — a critic of expansive executive power on the part of presidents of both parties — to handle the litigation. But it turns out that the professor is not merely a conservative. On at least one issue – the rights of women – his views are radically out of the mainstream. In a series of articles and court cases he has defended sex discrimination and argued that women should be subordinate to their husbands.

Of course the Democratic base would be in an uproar, and the House leadership would almost certainly have to sever ties with the sexist professor.

The flip side of this scenario is unfolding now, and it’s time for the Republican base to play its role. Last week, House Speaker John Boehner announced that he had hired liberal George Washington University law professor and media talking head Jonathan Turley to bring suit against the Obama administration for altering the Affordable Care Act (specifically, deferring the employer mandate in order to make the law more politically palatable) without congressional authorization. The lawsuit may also challenge the president’s more controversial executive order effectively granting amnesty to millions of illegal immigrants.

Like the conservative professor in the hypothetical scenario, Turley is a principled opponent of executive overreach by either party. He is also, however, the legal community’s leading advocate for establishing a constitutional right to polygamy. In op-eds in the New York Times, the Washington Post, and other venues, and in litigation attacking Utah’s polygamy ban, he has argued that the celebrated Lawrence v. Texas decision overturning sodomy laws articulated an expansive privacy right “to live your life according to your own values and faith” that must be extended to “plural relationships.”

In a world where newfound rights to previously banned sexual practices are rapidly gaining ground — the New York Times recently gave space to another law professor to make the case for legalizing pedophilia, and the German Ethics Council is arguing for the legalization of incest in Germany — it is very possible that Professor Turley has the winds of change at his back. But, of course, trends and fads come and go. For many decades, numerous developing countries thought that nationalizing foreign companies was the path to economic prosperity. We in America once tried to eliminate poverty among children through Aid to Families with Dependent Children. But at least those experiments were relatively new. This time, however, the cultural Left is reaching into a bag of tricks that is anything but new. Polygamy, sadly, is an old experiment that has been tried in many places and at many times. The arguments against it are manifest.

In an elegant and erudite treatment of this subject published earlier this year, Marriage and Civilization: How Monogamy Made Us Human, William Tucker traced the history of polygamy back to the dawn of mankind. It is not a pretty tale. Most notably, he makes a compelling case that allowing some men to obtain many wives, while others are unable to find a wife at all, is a surefire recipe for violence and discord. This has been found to be the case among primitive agricultural communities in places like Micronesia and the Amazon. The same is true in the Islamic Middle East and among the numerous hordes of warriors that poured out of Central Asia. Violence and discord also characterized the early decades of Mormonism here in the United States before the Church of Jesus Christ of Latter-Day Saints abolished polygamy in 1890. While the scarcity of women to marry was a strong incentive for young men to go to war and attempt to conquer other lands, it was also a strong disincentive for economic development. Tucker makes the case that the extreme underdevelopment of West Africa stems in part from the widespread practice of polygamy.

More fundamentally, polygamy is intrinsically inegalitarian. It means many wives for some men and none for others. It also means that earlier, and typically older, wives are less valued. Especially in the Islamic world, these older wives often find themselves on the path to involuntary divorce, as younger women are brought in to replace them. Interestingly, this clearly contradicts the concept of “marriage equality” used to argue for gay marriage. As with so many liberal causes, the Left here talks the language of equality. But somehow some powerless group always gets left out: fatherless children, mentally ill homeless people, crime victims, disfavored ethnic groups like Asian-Americans, discarded women in polygamous harems.

Given all of this, should the Republican party — the natural defender of the traditional family — be engaging a lawyer who ardently champions this radical and destructive “rights” claim? After all, the platform of the Republican party that nominated Abraham Lincoln condemned polygamy and slavery as the “twin relics of barbarism.” Beyond that, though, for the nation’s more conservative party to enlist Turley as its lead counsel in this high-profile case would go a long way toward mainstreaming his views. While few liberals now openly share these views, the GOP action sends a clear signal that they’re no big deal — that even John Boehner is cool with them. And what self-respecting liberal Democrat wants to seem less cool than John Boehner?

We’ve all seen this movie before. A position once considered beyond the pale becomes respectable and then obligatory after gaining a foothold of acceptability in some conservative institution. It’s time to shut down this familiar process now. Professor Turley is undoubtedly an excellent lawyer, but there are many excellent lawyers in Washington whose views are not anathema to the Republican party and harmful to women around the world. The GOP should not be doing anything to give these views its imprimatur.

— Dennis Saffran is a lawyer and Republican activist in New York, the former head of a center-right public-interest organization, and a frequent contributor to City Journal. Eamon Moynihan, a former New York State government official, currently consults for a specialty finance company in the real-estate industry.

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