Polygamy Waiting in the Wings While Supreme Court Addresses the Definition of Marriage

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August 21, 2012

Polygamy Waiting in the Wings While Supreme Court Addresses the Definition of Marriage

by Bruce Hausknecht

If you believe that the Constitution requires that a man be allowed to marry another man, or a woman be allowed to marry another woman, then why shouldn’t a man be able to have four wives?

That’s what a federal lawsuit going on in Utah claims. (My earlier coverage is here.) And it’s based on the same 2003 U.S. Supreme Court decision, Lawrence v. Texas, that every argument for same-sex marriage – as well as a handful of court decisions – have used for justification. Lawrence, as you may recall, threw out a Texas criminal sodomy statute as an unconstitutional violation of the “right of privacy,” the same “right” that was also used in 1973 in Roe v. Wade to constitutionalize abortion.

A federal judge has refused to dismiss a Utah lawsuit (Brown v. Herbert) that claims that polygamy is a guaranteed privacy right under the U.S. Constitution. The most recent court order did not address the merits of the constitutional arguments involved in the claim, but only the technical issue of “standing,” which boils down to whether the challenger has really been “injured” in a constitutional sense, sufficient to invoke the authority of the courts to get involved in the dispute.

The polygamy case will now proceed to a trial or some other kind of decision on the merits of the case, but against the backdrop of several marriage-related cases that have already been appealed to (but not yet been accepted by) the Supreme Court. The upcoming term, starting on the first Monday in October, has the potential to be a marriage blockbuster. We’re waiting to hear if the high court will accept any of the following: the Hollingsworth v. Perry case (the California Marriage Amendment, a/k/a Prop 8), the federal Defense of Marriage Act appeals from the 1st, 2nd and 9th Circuits, and the Arizona state employee domestic partner benefit case entitled Brewer v. Diaz.

Although same-sex marriage advocates are fond of saying that this fundamental clash over the definition of marriage is all about them, it’s obvious that it’s not. Same-sex marriage is only the current issue. Polygamy, group marriage and who knows what else, are waiting in the wings.

Either marriage means what it’s always meant, or it will end up meaning whatever the next interest group wants it to mean.

And in the end, it will have no meaning at all.

Ex-Gop Voter

In the end, it will have no meaning at all…

Right now it has no meaning.

Christians need to get the government OUT of the marriage business – let something exist for declaring legal rights, but leave marriage to the church. My marriage is between me, my wife, and God. The state I live in has NO part in it.
- BruceHausknecht
  
  Welcome back Ex-Gop Voter. Long time no hear from. I understand your point of view. It’s commonly argued. However, the other side of that argument is that although marriage is an institution that pre-dates our various government entities, the “state” is interested in promoting and regulating it in order to guarantee that future citizens are raised in the most ideal environment possible, which keeps the state (hopefully) out of the business of raising children and/or paying for it. So it provides incentives as well as parameters. If you take government out of the marriage business, you’d have to eliminate all incentives and parameters. So many of our laws are based on the family unit that I’m not sure any of us could fully grasp what the consequences might be after we get government out of the marriage business.
Liberal in Conservative Land

The slippery slope argument is a weak one. If our definition of marriage has been between one man and one woman, why aren’t there brothers and sisters racing around trying to marry each other? If siblings really were trying to gain legal recognition of their unions, would you want them to be able to keep you from getting married to the person you loved?

Yeah, didn’t think so. Keep these issues separate, just as reasonable people can. Same-sex marriage doesn’t lead to polygamy or marrying animals or nuclear winter or the whole population “turning” gay or cities burning down or anything like that. It leads to more wholesome families being formed, which is, in the end, what you want anyway.
- BruceHausknecht
  
  Dear Liberal – you make the same argument against “slippery slopes” as Curious Conflation has. Please see my response to that post and feel free to continue the conversation.
CaboCara

So you are one of “those” a site that wants to say what YOU want to say but will not let other people post comments to their views… I have tried to post this 2 times and it gets turned down… you have your right to say what you want, what about mine? ……

People need to understand that polygamy is NOT “sister
wives” and “big love”. UT, AZ, TX and other
states “turn a blind eye” to true polygamy where children
(girls as young as 12) are married off to much older men and then live off of welfare, food stamps
and Medicaid (known as “bleeding the beast”)… as discussed in new
book “plygs”, Warren Jeffs, the leader of this group (serving a life sentence
for child rape) has recently ordered that only 15 men in the group can procreate
with ANY of the women of their choice within the group… it is a SAD, SICK way
to live. this group in UT / AZ / TX are
nothing but pedophiles and welfare cheats…
- BruceHausknecht
  
  Dear CaboCara – slow down, no need to vent anger at not being posted. I look at the comments during business hours. This isn’t one of those sites where comments automatically get posted, or where someone is monitoring them 24/7. And since I posted this comment, I won’t need to post your previous one, which is just like this without the “venting.” Oh, and one thing further. Nobody has the “right” to post a comment here. We post only those that further the discussion, and we don’t post abusive comments. I’m happy to post strong disagreements, but there’s a line there, and if anyone crosses it even with one word, the whole comment gets rejected. Are we clear?
  
  So are you saying that all polygamists (and there are an estimated 30,000 of them in the U.S.) are either pedophiles, welfare cheats or both, and therefore there is no constitutional argument why the definition of marriage should apply to them? If that’s your argument, I don’t think it gets you very far. There will be thousands of potential plaintiffs who don’t fit those categories who will have very sad stories to tell. Does any of this sound familiar?
  - http://www.facebook.com/joseph.anderson.5439 Joseph Anderson
    
    In other words if we don’t agree with you then our post is rejected. Typical.
    - BruceHausknecht
      
      Dear Joseph – you just disagreed with me and yet your comment got posted. I would ask you to read my response again and tell me the exact words I used that make you believe that it’s when I “don’t agree” with you that your comment gets rejected.
      
      I mean, have you noticed all the comments here that DO disagree with me?
  - momlzkcj
    
    Very good point! There will plaintiffs who are sympathetic and attractive, putting a very good “face” on polygamy. Any variation on traditional marriage is not wholesome. Bringing children into an environment that is damaging to them is wrong. Here’s the experience of someone who grew up in a “wholesome” gay family:
    
    http://www.thepublicdiscourse.com/2012/08/6065
    
    Bruce, thank you for the article!
CuriousConflation

I have yet to entertain a coherent secular argument that supports the notion that same-sex marriage has ANY effect on anyone other than those thus wed. The slippery slope to polygamy is what most slippery slope arguments are: Baloney.
- BruceHausknecht
  
  Thanks for your comment, but you’ll need to explain why you think this is a slippery slope argument. As I explained to another commenter, polygamy is not a slippery slope – it’s already landed with a thud in federal court in Utah. And my point is that the same legal/constitutional argument used to justify same-sex marriage is RIGHT NOW being used to justify polygamy. Not in the future after same-sex marriage might be ordered by the Supreme Court and somehow, by logical extension, the same right is given to polygamists via a future case.
  Same-sex marriage does not “lead” to polygamy, if you’re implying I’m using some sort of social-science “first we indoctrinate the population about same-sex relationships, then we’ll move on to polygamy” argument. The point is that the legal and constitutional arguments being squeezed from Lawrence v. Texas, if accepted by the Supreme Court, can just as easily be, and ALREADY is in Utah, being used to make polygamy as much a constitutional privacy right as same-sex marriage proponents want.
  - CuriousConflation
    
    The argument is intellectually dishonest because of the confusion of causation and correlation. In the second paragraph, above, you have eliminated some of that.
    
    More importantly, there is a substantial difference. I can make a persuasive secular argument about the harms of polygamy (which is a solely heterosexual enterprise). Yet, there does not exist a secular argument that connects societal harm to a few gays getting hitched. If anything, they might adopt more hard to place children which is a benefit to society. Then there is the experience. Massachusetts continues to have the lowest divorce rate and the best performing public schools in the country.
    - BruceHausknecht
      
      I’m not even sure why you’ve mentioned the things you just did in your second paragraph. Neither the constitutional basis for polygamy nor same-sex marriage rests on proving one or the other is “bad” for society. You’re making a sociological argument that, frankly, won’t have a bearing on what the federal court in Utah will do if it finds the right to privacy as applied in Lawrence applies to the subject of marriage. If sexual privacy equals the right to same-sex marriage, then as Justice Scalia pointed out in his dissent in Lawrence, all the other categories of marriage restrictions based on morality will fall as a matter of constitutional logic and Supreme Court precedent.
anonymous

I may be for gay marriage, but it is certainly my opinion that marriage is between two individuals. Marriage to me is a commitment between two people and two people only.
- BruceHausknecht
  
  So why do you believe that marriage is “between two people and two people only?” What has influenced your conclusion that marriage can be between two people of the same sex, but cannot be between more than two people? I’m not asking that question to be snarky or insulting, but I do want to hear your thoughts and understand how you get there.
  - Greg B.
    
    Heterosexuals have the right to marry the ONE adult, unrelated person they have chosen to legally commit themselves to. Gay and lesbian citizens deserve the same right. If men were allowed to marry several women, then women would have the legal grounds to demand the right to marry several men, gay men would have the same to marry several men, etc. But marriage is limited to two people and multiple-partner marriage-like unions iaee not something the currently exist in our laws. Therefore the polygamy argument is an irrelevant and baseless distraction.
    - BruceHausknecht
      
      Greg – you realize, don’t you, that you’re arguing that marriage has always been a two-person arrangement and therefore a new arrangement like multiple marital partners is quite out of the question, constitutionally. Supporters of one man, one woman marriage argue precisely the same thing about the historical nature of opposite sex marriage. Using your framework, same-sex marriage is an irrelevant and baseless distraction because it does not currently exist (in the jurisdictions where there are now efforts to have it imposed judicially).
      - Greg B.
        
        No, that’s not what I’m arguing. I’m saying that the principles on which the case for marriage rights for gay and lesbian couples is built do not support the argument for polygamy. Unlike marriage equality, polygamy is an entirely different argument calling for an entirely new institution to be created. Not only have you created a straw man out of what I said but you’ve misrepresented the legal complexities of sane-sex marriage. Marriage as a two-person legal relationship exists. Although there are jurisdictions where the laws have a gender requirement for to obtain a marriage license, the actual laws that define that legal relationship may be applied just as easily to same-sex couples as to opposite sex ones. Unlike with multiple partner arrangements, allowing marriage for same-sex couples doesn’t require the creation of an entirely new system. This is a fact that can be verified by examine the implementation of marriage in any of the 7 U.S. jurisdictions in which it has occurred. Your argument wouldve been like saying that changing the gender requirements of voting to allow women to vote required a completely new democracy like institution to be created first. Your argument simply does not hold water.
      - BruceHausknecht
        
        Greg – In order to address your argument, I am going to assume that we’re not talking any longer (if we ever were) about either equal protection or fundamental rights under the 5th and 14th amendment as a basis for re-defining marriage to include other types of marriage. I doesn’t sound like you are arguing from those positions. It sounds more like you’re arguing that so many existing laws are based on the duality of marriage, that same-sex marriage fits more easily into that arrangement than polygamy, and therefore somehow is justified as a new definition but a more-than-two arrangement would not fit our existing laws as well, and is therefore excludable. I’m not sure how you reach this understanding of our existing laws, and I don’t know for a fact that it would be true or not. But I’m willing to indulge the assumption if it allows the argument to proceed.
        
        If I’ve got your argument correct this time, I would note a couple of things.
        
        First, your premise that a “two person legal relationship exists” begs the question why you don’t start from the premise that two person, opposite sex legal relationships exist.” You really can’t focus on the dual nature of the traditional marriage definition without noting the sexual complementarity that is the basis for the number two.
        Getting beyond that, though, I would argue that for equal protection and fundamental rights analysis under the 5th and 14th Amendments, I don’t see how courts can conclude that the number of marital partners can be restricted to two but can be expanded to include same-sex couples because there are only two in that relationship as well. The argument that existing laws already favor a two-person relationship and that polygamy is therefore a “new institution” doesn’t strike me as an argument that a court will even consider.
        
        And this may be a little rabbit trail, but what about the incest prohibition in our marriage laws. Just because a medical risk is associated with incestuous marriages, should that type of restriction be permitted under the Constitution if there really is a “fundamental right” under the 14th Amendment to marry “the one you love.” But, I digress.
        
        Second, the implementation of same-sex marriage in the 7 jurisdictions you noted is, as expected, playing havoc in other states that don’t recognize it. Divorce proceedings, support payments, adoptions, parental rights, taxes, inheritance laws are proving fertile ground for litigation around the country. Same-sex marriage is not the foot-that-fits-the-glass-slipper situation you are positing.
        
        Your voting rights analogy is interesting, but actually proves my point. The right to vote for women was not mandated by a court decision (that is what this post is all about, after all – i.e., courts mandating a new legal right), but passed by constitutional amendment, as part of the democratic process. And further, they weren’t granted the right to vote because people realized they wouldn’t have to change anything about the election process, they were granted the right because if a nationwide, public debate that was resolved in a democratic fashion.
        Which gets me back to the central point of this blog post: Does the “sexual privacy” underpinning of the Lawrence decision apply to the sexual privacy of other than a two-person couple? Nothing in that decision says anything about the number two, and this polygamy case in Utah is pushing the same argument that all same-sex marriage cases have argued. Okay, I’m done. Thanks for trading arguments.
Harold

I predicted this a few years ago when the same sex marriage argument first began to surface. After this, waiting in the wings, is NAMBLA, a pedophile organization which believes that laws against sexual conduct between adults and children are unconstitutional. Don’t laugh. They are getting a hearing in some high circles. Once you open the door to one group, you have no right to deny it to another. Polygamy, pedophilia, incest, etc. will follow. Marriage will end up meaning absolutely nothing!
MarineGrunt

Who gave the Supremies the authority/power to define marriage?
- BruceHausknecht
  
  That’s a good question. They shouldn’t have such authority, but then again they shouldn’t be able to do a lot of things they do. The reasoning they may use if they decide to re-define marriage (based on how some lower courts have done it) is that under the 5th and 14th Amendments’ due process and equal protection components, states and/or the federal government cannot constitutionally prohibit same-sex couples from marriage. So by declaring that government cannot define marriage the way it’s always been defined, courts in effect re-define it themselves.
- Greg B.
  
  The moment marriage became a legal concept, the courts had the authority to interpret laws relating to it. If you don’t want our shared system of government to control the laws surrounding marriage, you should working to abolish all laws surrounding marriage and leave it as a pirely religious/spritual/ceremonial concept. But of course, no “pro-family” group will do that. They want to have their cake and eat it too.
DandyRandy

With regard to “standing” in the courts, it’s not whether the person was “really” injured, but if the claims made are taken as true, has the person been injured. Another’s ding also deals with who can be a party in the case. Since I have no intentions of having multiple spouses, I would not have standing to sue, because I am not injured buy any laws that prevent me from doing so.
Greg B.

Absurd. The relevant privacy right is the right to have multiple sex partners simultaneously. It’s quite a leap to claim that the right to simultaneously engage in sexual relationships with, say, a half dozen people (which is a constitutional right) means that the government must create an entirely new marriage-like institution to accommodate many partners. On the other hand, same-sex marriage relies on completely different reasoning – that gay and lesbian citizens have a right to enter into an EXISTING legal institution.
Ash

Bruce, I always enjoy your analysis of marriage issues, and you do an EXCELLENT job with challengers who come here.

Keep up the good work. It is much appreciated.
- BruceHausknecht
  
  Ash – thanks. Also saw your comment over at Nomblog. You just made my Friday! Have a great one.
Precioso

I cannot view all the comments. Good treatment of a complex topic. Thanks
- BruceHausknecht
  
  Precioso – thanks. If your comment and my reply are visible, can you give me a little more info on the problem you’re having seeing comments. What browser are you using?