“Sister Wives” clan to challenge constitutionality of Utah’s polygamy law

posted at 9:35 pm on July 12, 2011 by Allahpundit

Who’s angrier about this? Traditional marriage activists, or gay rights activists who don’t want to see the debate about same-sex marriage dragged down the slippery slope when they’re trying to build on momentum from New York?

Nationally-known constitutional law professor Jonathan Turley said the lawsuit to be filed in U.S. District Court in Salt Lake City will not call for plural marriages to be recognized by the state. Instead, it asks for polygamy between consenting adults like his clients, former Utahn Kody Brown and his wives, to no longer be considered a crime.

“We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs,” Turley said in a press release. The Browns star in the TLC network show “Sister Wives.” There is no word yet on whether they will appear in a press conference scheduled for Wednesday…

The complaint to be filed Wednesday, Turley said, presents seven constitutional challenges to the state’s bigamy law. It is largely based on the right to privacy.

“In that sense, it is a challenge designed to benefit not just polygamists but all citizens who wish to live their lives according to their own values—even if those values run counter to those of the majority in the state,” said Turley, a member of the faculty at George Washington University.

If the distinction between decriminalization and state recognition seems confusing (which it did to me at first), it helps to know that Utah’s bigamy statute includes cohabiting with one person when you’re legally married to another. And in fact, this guy is only legally married to one woman; the other three are, er, “sister wives.” Basically, he’s arguing that he doesn’t care if the state recognizes them as legal spouses or not, just that he doesn’t want the cops to come knocking and lock him up when they find out. In that sense, his court claim mirrors the current legal regime in most states where gay marriage is banned but gay sex is constitutionally protected.

So, no lawsuit to legalize polygamous marriage — yet. But legal precedents have a funny way of building on each other:

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses…

The questions surrounding whether same-sex couples should be allowed to marry are significantly different from those involved in criminal prosecution of multiple marriages, Ms. Pizer noted. Same-sex couples are seeking merely to participate in the existing system of family law for married couples, she said, while “you’d have to restructure the family law system in a pretty fundamental way” to recognize polygamy.

Professor Turley called the one-thing-leads-to-another arguments “a bit of a constitutional canard,” and argued that removing criminal penalties for polygamy “will take society nowhere in particular.”

Ah, but they’re not asking to change family law, just to take polygamy out of the penal code. The family law case will be the next lawsuit. FYI, the Supreme Court already upheld laws against polygamy — 130 years ago, rejecting a Mormon challenge based on the Free Exercise Clause. So there’s precedent here if SCOTUS wants it when it eventually hears a case along these lines. Two important footnotes, though. One: The Court’s language in Lawrence v. Texas, a decision authored by Anthony Kennedy, was famously broad in its implications (a point noted by Scalia in dissent at the time), so there’s no telling whether that earlier precedent is still good law. And second, Lawrence itself overruled a much more recent precedent in Bowers v. Hardwick to arrive at its holding. So yeah, there’s quite a fair chance that the Brown clan might pull this off.

Exit question: Speaking of people who aren’t eager to watch this court/media battle play out, how excited do you think Mitt Romney and Jon Huntsman are right now?

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Jvette on July 13, 2011 at 1:47 AM

Nicely articulated.

DrMagnolias on July 13, 2011 at 4:57 AM

The complaint to be filed Wednesday, Turley said, presents seven constitutional challenges to the state’s bigamy law. It is largely based on the right to privacy.

If the complaint is based on the right to privacy, it seems to me that they have voluntarily given up any privacy rights if they have their own reality TV show.

And while gay marriage advocates may not be happy that this brings to the fore the slippery slope of the gay marriage argument, overturning polygamy laws is the next logical step for the gay rights folks. Sooner or later they are bound to claim that bisexuals’ civil rights are being infringed because they are not allowed to marry both a man and a woman.

Then comes reducing or just doing away with “under age” or “age of consent” laws.

From there it will only be a hop, skip and a jump to legalizing marriage to your dog, horse or whatever else catches your fancy. All in the name of “love” and “equality”. And fully supported by Barack Obama. If you didn’t see it, check out this quote:

Obama said progress will be slower than some people want, but he added that he was confident that there will be a day “when every single American, gay or straight or lesbian or bisexual or transgender, is free to live and love as they see fit.

Ordinary American on July 13, 2011 at 5:29 AM

Next up…NAMBLA.

stenwin77 on July 13, 2011 at 6:33 AM

The Gay Marriage slippery slope from ‘aw, that could never happen’ to reality in months, not years.

Perhaps centering marriage on procreation will come back in fashion some day… along with chastity and virtue. That is how Christians converted Romans who were disgusted with their society. I expect an uptick in back-to-basics fundamentalism very soon now that supports these values, or at least groups forming that support them anyway because it is a good way to live.

ajacksonian on July 13, 2011 at 6:45 AM

This is a fine example of why it is vital that legislatures and not courts decide what constitutes a marriage. And also why this should remain a state level decision. There is no right to marriage in our Constitution. All that is required is that equal protection and other rights be upheld by the states when they make their laws.

So, a majority of NYers said through their representatives that they wanted same sex marriage. As long as a majority does not want polygamous marriage then there won’t be unless the courts overrule the democratic process.

This is why, for example, I applaud same sex marriage in NY and condemn it in MA.

MJBrutus on July 13, 2011 at 7:17 AM

Note to AP:

As I read your write up, you are conflating marriage with sexual conduct. Lawrence vs TX was about sodomy laws which were an attempt to regulate private behavior. It had nothing to do with marriage contracts which are public documents. So a law prohibiting group sex or sex with multiple partners would probably be illegal due to Lawrence. That has nothing to do with the marriage debate!

To follow up on this, while I admire Scalia more than anyone on the bench, I disagreed with him in his dissent. Perhaps it was just the wording, but I felt he missed the boat. Scalia argued that there is a state interest in morality and thus the state may regulate moral conduct. Surprise, surprise, I agree with him! But only to a limited extent. The court has long established that a state interest is trumped by other more fundamental rights specifically granted by the Bill of Rights. The rights to assemble and associate in private are among those and I do not believe the state interests can intrude on those basic rights.

MJBrutus on July 13, 2011 at 7:26 AM

At the risk of annoying the Libertarians here I have no problem with the govt regulating marriage whether it involves gay people or multiples. Marriage is a means of fostering civil society and IMO warrents some regulation.

Whether it is “fair” or not a gay marriage is going to be something “other” than a regular marriage. My problem with polygamy, beyond the ewww factor, is that most men are unable to completely support the multiple children produced. Thus the taxpayer ends up supporting these children because their mothers are low income single parents. That does not mean I think rich men should be able to have harems – marriage involves more than money.

katiejane on July 13, 2011 at 7:37 AM

Does anybody who has watched this show know how these “sister wives” support themselves and their children? I ask because in every story I have read about these polygamous cults, the families are typically receiving multiple forms of public assistance.

It seems to me that if your chosen “lifestyle” isn’t sustainable without massive contributions from taxpayers, you have no business complaining about violations of your “privacy” rights.

AZCoyote on July 13, 2011 at 7:43 AM

Does anybody who has watched this show know how these “sister wives” support themselves and their children? I ask because in every story I have read about these polygamous cults, the families are typically receiving multiple forms of public assistance.

AZCoyote on July 13, 2011 at 7:43 AM

When the show started, the dad had his own business and 2 of the 3 wives worked with 1 staying home to care for the kids (most of whom were in school). Later, 1 wife got fired when she “came out,” and the 4th wife moved to Utah, joined the family, and was looking for work, so then only 1 wife worked. Not sure how things are going now that they had to move to Nevada. They seemed to be doing pretty well, though, judging by the number and type of vehicles they own.

tikvah on July 13, 2011 at 7:50 AM

The Muslims are currently waging war with Western Civilization on many fronts with demographics being one. The Muslims practice polygamy and we in the west are financing this practice with the generous welfare states of Europe and America. So maybe, just maybe, these folks could be on to something in our fight to keep from being overrun by hordes of Christian hating Muslims. If a guy can support his harem without government support, who am I to say he can’t have as many concubines as he wants. Just a thought. And conversely, if a woman can support multiple guys why can’t she have more than one husband. After all, it can work both ways.

devolvingtowardsidiocracy on July 13, 2011 at 8:03 AM

More than one wife? This suit should be dismissed on the grounds that claimant is non compos mentis.

curved space on July 13, 2011 at 8:07 AM

tikvah on July 13, 2011 at 7:50 AM

And then there is the TV show.

Cindy Munford on July 13, 2011 at 8:14 AM

And while gay marriage advocates may not be happy that this brings to the fore the slippery slope of the gay marriage argument, overturning polygamy laws is the next logical step for the gay rights folks. Sooner or later they are bound to claim that bisexuals’ civil rights are being infringed because they are not allowed to marry both a man and a woman.

Ordinary American on July 13, 2011 at 5:29 AM

Not to mention, limiting marriage to 2 people made sense in a society that limited marriage to members of the opposite sex. Two sexes. Marriage limited to one of each. Therefore only 2 people allowed in a valid marriage.

But once you allow people of the same sex to marry, 2 becomes an arbitrary number. What is the difference between 2 gay men marrying and 3 or 4 gay men marrying? Absolutely nothing.

If polygamists hadn’t brought this forward so soon, gay activists would have pushed for it eventually anyway.

Imagine how much fun the reality shows will be in the future. Bob has four wives: Sue, Jane, Debbie, and Fran. Debbie and Fran are also married to each other. If Bob divorces Debbie, is she still married to Fran? Is she still part of the family?

CJ on July 13, 2011 at 8:17 AM

Freaks.

Coronagold on July 13, 2011 at 8:20 AM

OK: simple question for gay marriage supporters: why is discrimination based on numbers OK, but discrimination by gender not? Especially when polygamy has extensive religious and historical precedence that gay marriage does not?

michaelo on July 13, 2011 at 8:21 AM

For those who don’t understand the argument against polygamy they should read this thread from the headlines earlier in the day. Polygamy is far worse than gay marriage in that it will destroy our society in the long run if it becomes widely accepted. One only needs to look at Islam to see the long tradition of the enslavement of women and the disenfranchisement of most young men.

Honestly AP, I wish you guys would at least link to the related threads from the headlines when you decide to blog on something directly related. There were almost 250 comments in the headline thread and I think it is worth it for those commenting in this thread to also see the posts in that thread as well.

NotCoach on July 13, 2011 at 8:39 AM

This is exactly how the gay marriage movement got started. First decriminalize and declare unconstitutional the sodomy laws under which gays were prosecuted. Then without the underlying criminal sanction, mobilize the courts to treat gays the same way as heterosexuals, and then the coup de grace give gays marriage rights that have never been granted in all of human history in any society in the name of “equal rights”.
Within ten years, given the gay rights precedents, we will see polygamy in the US. If the mormons are smart they will be enlisting muslims in their fight, so the libmedia will be flummoxed and unilaterally disarmed in their attacks so as to not appear islamophobic.

eaglewingz08 on July 13, 2011 at 8:44 AM

MJBrutus on July 13, 2011 at 7:26 AM

Scalia was absolutely right in writing that the Lawrence ruling opens the door to legitimizing and legalizing all behavior. And the suit being brought now only reinforces that. Those continuing to claim this suit is only about cohabitation are splitting hairs. Destroying society from the inside is done one baby step at a time. They win on this issue then the lawsuits start coming demanding legal recognition of polygamous marriages. After they win on that on supposedly aggrieved group is next?

I guarantee you that when the federal DOMA gets in front of SCOTUS there will be at least 4 justices who use Lawrence v. Texas as justification for striiking the law down.

NotCoach on July 13, 2011 at 8:46 AM

Reading this HotAir entry reminded me of an old saying I read somewhere (Wintzell’s Oyster House in Mobile, AL I believe): “Polygamy is one wife too many. Monogamy: same thing.”

Carl on July 13, 2011 at 8:51 AM

NotCoach on July 13, 2011 at 8:46 AM

Do you really think that laws against sodomy were Constitutional? Would a law requiring that only heterosexual, married couples be allowed to have sex and only in the missionary position be lawful? Where do you draw the line between the state’s interest in morality and a private citizen’s right to pursue happiness in his/her own way?

MJBrutus on July 13, 2011 at 9:00 AM

Hugh Heffner and Charlie Sheen have nothing to worry about because they don’t claim to be married to the multiple women living in their homes with whom they share beds. Ditto unmarried men who have children with multiple women. Just men who claim to have religious reasons for multiple sexual alliances.
obladioblada on July 12, 2011 at 10:03 PM

Yes. This is purely a religious issue, as is gay marriage.

For those interested in the legal debate, this recent law review article argues that the polygamy/gay marriage analogy is not legally sound, and a more accurate analogy would be between polygamy and sodomy. The article is a response to this article.

dave742 on July 13, 2011 at 9:08 AM

The way I see it, being married to numerous women sounds more like torture than a right.

Of course it would be handy if you could get their cycles scheduled so that each has them a different week. But I have always heard that when a group of women are together a lot their cycles end up being on the same schedule… YIKES!!

jeffn21 on July 13, 2011 at 9:13 AM

Do you really think that laws against sodomy were Constitutional?

Yes. We have a long legal history to back that up with. As a political matter though I find no use for sodomy laws in today’s world. But that really isn’t the problem here.

The problem here is the expansion of the concept of a right to privacy which is not itself a constitutional right. This is a concept invented by SCOTUS. Kennedy’s opinion in Lawrence though takes the mythical right of privacy to its logical conclusion in declaring that the government has no compelling right to ever interfere with a private citizen behind closed doors. Once that is codified into the legal system anything and everything is eventually allowed.

Would a law requiring that only heterosexual, married couples be allowed to have sex and only in the missionary position be lawful?

Yes. Would it be enforceable? No. Would we want to try and enforce it as a society? No.

As I said, there really is no constitutional right to privacy. However, the government must have a compelling reason to enter our homes so ultimately there is a de facto right to privacy. But creating out of thin air an explicit right leads us down this road in which anything is allowed.

Where do you draw the line between the state’s interest in morality and a private citizen’s right to pursue happiness in his/her own way?

MJBrutus on July 13, 2011 at 9:00 AM

Through democracy. Despite the fact that there have been many laws in the country that try to define acceptable private behavior we have still gotten along just fine doing as we please behind closed doors. The government has never had the right to enforce laws by monitoring our behavior, only the right to prosecute under these laws when people are found to be breaking them.

NotCoach on July 13, 2011 at 9:13 AM

NotCoach on July 13, 2011 at 9:13 AM

OK, you and I do agree that there is a state interest in morality and that interest does justify legislation in many cases. But all state laws are constrained by our Bill of Rights, if not prior to the 14th Amendment then certainly since then. Our disagreement is over our opinions about what rights we may or may not possess that would trump the state’s interest.

You’re right that we have no explicit right to privacy in our Constitution. We do however have many aspects of privacy guaranteed which collectively can be referred to as a right to privacy. Saying we do or don’t have a right to privacy is thus just semantics. That semantic ambiguity is why I have avoided using the term “right to privacy.”

The specific question is whether our rights to assemble and do what we want with our bodies (the most personal of our property) in the privacy of our own homes as we wish are violated by anti-sodomy laws. I say that of course they are where you say that they aren’t.

MJBrutus on July 13, 2011 at 9:25 AM

As I said, there really is no constitutional right to privacy. However, the government must have a compelling reason to enter our homes so ultimately there is a de facto right to privacy. But creating out of thin air an explicit right leads us down this road in which anything is allowed.

I would always err on the side of more privacy than less when it comes to government intrusion into my personal life.

Good Lt on July 13, 2011 at 9:36 AM

MJBrutus on July 13, 2011 at 9:25 AM

I don’t think we are that far apart, but I am not sure you understand just how much damage the courts have done by creating an explicit right to privacy. We both understand that excluding the so called right to privacy our constitutional rights still leave an implicit right to privacy. But creating an explicit right, with Lawrence being the culmination of this, makes all arguments concerning any behavior compelling.

NotCoach on July 13, 2011 at 9:40 AM

I would always err on the side of more privacy than less when it comes to government intrusion into my personal life.

Good Lt on July 13, 2011 at 9:36 AM

As a political matter I agree. But as a legal matter Lawrence makes anything and everything ultimately acceptable. Our constitutinal rights create an implicit right to privacy but not an explciit right. Lawrence v. Texas sets in stone an explicit right that opens the doors wide open to anything and everything.

NotCoach on July 13, 2011 at 9:42 AM

NotCoach on July 13, 2011 at 9:40 AM

We aren’t that far apart. I agree, for example that Roe vs Wade was a tragically flawed decision because it was based on a supposed shadow cast by an implied right to privacy. I think that it could have been a good decision if based on a woman’s right to property, but I’ll admit that even that is certainly arguable. That certainly bolsters your excellent point that a generalized court-created right to privacy has been extremely damaging.

Our, not so great, area of disagreement is over which side of a grey line this specific type of law falls. I am usually inclined to give individual freedom and liberty the benefit over the state’s moral interests when we are in the grey area.

MJBrutus on July 13, 2011 at 9:48 AM

More importantly, what affect does this have for polygamists’ employment. So many large companies embrace, no, wait, ENDORSE homosexual marriage one wonders if they will embrace polygamy as well. Furthermore, if employers can base hiring decisions on behavior (see credit checks), how does this fit in with basing hiring decisions for homosexuals (behaviorally driven) versus polygamists (behaviorally driven). Heck, we already know one sister wife lost her job. If it was a homosexual that lost their job, the media would be calling it a hate crime. And considering unemployment rates, can said polygamist sue for damages? What they do in the bedroom is none of the employers business.

rbendana on July 13, 2011 at 9:49 AM

Good for them. Government needs to get out of the marriage business entirely.

CTD on July 13, 2011 at 9:56 AM

. But as a legal matter Lawrence makes anything and everything ultimately acceptable. Our constitutinal rights create an implicit right to privacy but not an explciit right. Lawrence v. Texas sets in stone an explicit right that opens the doors wide open to anything and everything.

I’m not unconfortable with this.

The more privacy we have from government, the better. It’s not an “anything goes if it’s in privacy” ruling – rape is illegal, as are murder, kidnapping, etc. Whether they’re done in private spaces or not.

But apart from that, if you want to cover your body in chocolate and hook batteries up to your naughty bits while your partner spanks you with a 2 by 4, go for it. None of the government’s or anybody else’s business.

Good Lt on July 13, 2011 at 9:58 AM

Good Lt on July 13, 2011 at 9:58 AM

Hey soldier, it’s a date :-)

MJBrutus on July 13, 2011 at 10:14 AM

But apart from that, if you want to cover your body in chocolate and hook batteries up to your naughty bits while your partner spanks you with a 2 by 4, go for it. None of the government’s or anybody else’s business. Good Lt on July 13, 2011 at 9:58 AM

The problem is that people often want to make such things my business. When they do I have a right to express myself without being called a bigot. If they don’t want my opinion they should keep it to themselves.

Akzed on July 13, 2011 at 10:17 AM

When they do I have a right to express myself without being called a bigot.

Akzed on July 13, 2011 at 10:17 AM

You have the right to express yourself. You don’t have the right to not be called a bigot.

MJBrutus on July 13, 2011 at 10:23 AM

You have the right to express yourself. You don’t have the right to not be called a bigot. MJBrutus on July 13, 2011 at 10:23 AM

I guess you’re right. I may not have a right not to be offended, but I don’t deserve to be offended for being normal.

Akzed on July 13, 2011 at 10:38 AM

At the risk of annoying the Libertarians here I have no problem with the govt regulating marriage whether it involves gay people or multiples. Marriage is a means of fostering civil society and IMO warrents some regulation.

Whether it is “fair” or not a gay marriage is going to be something “other” than a regular marriage. My problem with polygamy, beyond the ewww factor, is that most men are unable to completely support the multiple children produced. Thus the taxpayer ends up supporting these children because their mothers are low income single parents. That does not mean I think rich men should be able to have harems – marriage involves more than money.

katiejane on July 13, 2011 at 7:37 AM

I agree with everything you said. Lot’s of good points in a short post. Wish I could do that.

Elisa on July 13, 2011 at 10:41 AM

Good take on this, AP.

Elisa on July 13, 2011 at 10:42 AM

And so it begins.

I agree with what alot of you are saying.

Either marriage (as the building block of any healthy and successful society ever) is between one man and one woman or it isn’t.

We have already been destroying marrriage enough over the last 5 decades, to the detriment of children and our society.

And marrying beloved pets will not be far behind.

Ask PETA and those who think we have specieism if you don’t believe it could happen.

Elisa on July 13, 2011 at 10:49 AM

My problem with polygamy, beyond the ewww factor, is that most men are unable to completely support the multiple children produced.

Then women shouldn’t marry those men. In general, under polygyny, women marry financially secure men, and are better off under polygyny:

“We concur with Becker, Grossbard, Ridley, and Wright that most women are materially better off under polygyny than under monogamy. However, there is one very important scope condition for this statement, which remains implicit in the male compromise theory: resource inequality among men. Women benefit from polygyny only when there is extreme resource inequality among men.”

As a result of being ruled by a plutocratic government, I don’t think the US has any problem qualifying as a culture where there is extreme resource inequality.

In addition, the more women contribute economically to the family, the more polygyny there is in the society:
“In 1958, Dwight Heath relied on Murdock’s data to demonstrate that polygyny was positively correlated with a society’s level of female contribution for subsistence. Heath theorized that when women play a greater role in economic productivity, families will be structured around the presence of more women. In other words, greater female economic contribution leads to polygyny.”
Cornell Journal of Law and Public Policy
Fall, 2006
16 Cornell J. L. & Pub. Pol’y 101
LENGTH: 48825 words
ARTICLE: EVERYTHING LAWYERS KNOW ABOUT POLYGAMY IS WRONG
NAME: Shayna M. Sigman*

dave742 on July 13, 2011 at 11:11 AM

Why exactly would Romney or Huntsman not want to see this supreme court battle play out? Talk about a loaded question and a not so veiled attempt to tarnish Mormons which have absolutely nothing to do with this story. They would likely welcome it since the wall to wall coverage of such a battle will finally destroy the popular and false stigma that Latter Day Saints are polygamists or that they condone polygamy. It’s time to remove this false witness from the arsenals of paid clergymen who’s bottom lines are clearly threatened by the successful LDS media campaign and ongoing missionary efforts.

Stop the Press on July 13, 2011 at 12:54 PM

Utah’s bigamy statute includes cohabiting with one person when you’re legally married to another

Depends on your definition of “cohabit”, a lot.

I’ve lived with a married couple; I wasn’t “in” their marriage (which would just be weird); but the only demonstrable difference from outside is I wasn’t sleeping with either of them. We did live under the same roof for almost a year before I ended up moving for work.

Was it “bigamy” to live there? I can’t see how. But I can’t see how a court could differentiate that from what they’re legally stating for “cohabitation” either.

If you want this to be a law; you want the government to figure out who is sleeping with who in the house to see if this is illegal bigamy or just roommates?

I’m not saying they should be allowed to get hitched as a big group (although I don’t much care either way to be honest); but the government has no place deciding who can live in your house… or what rules you and your wife set up in your relationship.

gekkobear on July 13, 2011 at 2:00 PM

You’re a hypocritical idiot. You’re on record opposing all types of consensual acts occurring within the privacy of the home.

blink on July 13, 2011 at 10:54 AM

Not murder, rape or kidnapping.

Unless, to you, rape, kidnapping and murder are the equivalent of polygamy.

Which is, you know, idiotic.

Good Lt on July 13, 2011 at 2:09 PM

Hey soldier, it’s a date :-)

MJBrutus on July 13, 2011 at 10:14 AM

Hey now!

Good Lt on July 13, 2011 at 2:10 PM

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