Jonathan Turley set quite a few tongues to wagging yesterday when he published an article with the provocative title, “Federal Court Strikes Down Criminalization of Polygamy in Utah.” It involves the case of Brown v Buhman, where Turley himself is one of the lawyers involved. The introduction to his announcement certainly fanned the flames of those who follow this subject closely.
It is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country.
If the name Brown when related to the subject of polygamy is ringing a bell for some of you, that’s because the family in question is one and the same as the stars of the TLC series Sister Wives. This differs significantly from HBO’s highly successful, but completely fictional series Big Love, in that Sister Wives is a reality TV show based on the lives of actual polygamists.
A I mentioned above, this announcement set some people off immediately, including Professor Bainbridge.
Next stop on the slippery slope express, I assume, will be consensual adult incest marriages.
He followed that up with a tweet saying, “Robert Bork was right. We are Slouching Towards Gomorrah.”
But is it really as dire as all that? The decision already received a detailed look from David Kopel at Volokh, a law professor who deals extensively in First and Fourteenth Amendment issues, and he concluded that the decision doesn’t carry the type of impact implied in the title of Turley’s article, and it really isn’t so complicated.
Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).
Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.
Rather, the case involved the unique part of the Utah statute, which defined “bigamy” to also include when X “cohabits with another person.” This criminalizes quite a lot of conduct which, these days, is pretty common. For example, X and A are civilly married. With A’s knowledge and consent, X spends some weekends at the home of his mistress, B, with whom he has sexual relations. Under the common law, this is the crime of adultery, and adultery is still a crime in some states. But as far as I know, no state other than Utah would describe such conduct as “bigamy.”
Kopel’s analysis is fairly lengthy, but definitely worth a full read if you’re seeking to understand the long term implications of this case, assuming it survives the next rounds of appeal. The decision is splitting the Utah law into two distinct sections, one dealing with whether or not a man can go obtain four marriage licenses and marry four women (or a woman marrying four men, obviously), and another which prohibits the man from marrying one woman, living with three more and declaring that he’s married to them as well. What the court struck down was the latter portion while apparently upholding the former.
The court upholds the prohibition of bigamy based largely on two cases. One is the rather obnoxious 1878 Reynolds v. United States, which based part of its conclusion on the concept that 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. But the case also clarified that the free exercise of religion did not protect religious practices that were judged to be criminal under accepted laws, including bigamy.
The more solid precedent for the decision was cited in 1989’s Employment Division v. Smith. The Smith ruling might seem a bit counter-intuitive, as it has nothing to do with plural marriage. It deals instead with two Native American employees who wanted to collect unemployment benefits after being fired for taking peyote as part of tribal religious practices. The court found – again – that violation of standing laws such as those regulating controlled substance was not allowed on the basis of the free practice of religion.
This is another of those cases which sets my more libertarian teeth on edge for obvious reasons. I have no beef with the courts continuing to find that you can’t use religion as an excuse to break other laws. Analysis of the Smith ruling could rightly lead us to compare it to someone claiming that they are followers of Aztec religious tradition and they need to cut out the still beating hearts of their enemies. The real question here – which the Brown decision doesn’t even come lose to touching – is whether or not the “established law” in question (in this case, bigamy) is actually valid. That portion brings us back to the rather offensive sounding portions of the Reynolds decision, relying on the premise that what some private, individual adults choose to do in their personal lives is somehow “odious” based on the observation that Europeans didn’t like the fact that Asians and Africans do it.
Related: See Matt Lewis’ arguments in favor of legalized polygamy and the conservative side of it.
For another attorney’s take on it, Doug Mataconis examines some of the same points being made by Kopel and concludes that Brown and his family shouldn’t be found to be breaking any constitutionally valid laws, but hedges a bit when it comes to the issue of whether or not they should all be able to marry.
This logic would seem to me to be as equally applicable to the Browns as it was to Mr. Lawrence in the Texas case. If they wish to live together in the manner that they do, and as long as the relationship is completely consensual than it strikes me that it really isn’t any business of government at any level. These are all adults that we’re dealing with here, and based on the record there doesn’t seem to be anything about their relationship that has been harmful or abusive either to the adults involved or to the seventeen children that have resulted from the relationship. None of us are any obligation to morally approve of the relationship, of course, but moral disapproval in and of itself should not be a sufficient basis to make something a crime or to forbid it from happening. The Browns are choosing to live together in this manner, it appears to work out just fine for them, and there doesn’t seem to be any rational reason why how they chose to live should be considered a crime.
Does this mean that the Browns should be permitted to take the next step and established a legal polygamous marriage that would be entitled to the same legal benefits that two-person marriage is throughout the United States? That is, admittedly, a more difficult question. Recognizing a marriage legally ends up creating a whole host of rights and obligations under state and Federal law that may not translate well to multiple person marriage. That, however, is a practical observation rather than a principled one. That, however, is a question for another day because it’s not one that the Browns are raising, even if it will be one that conservative critics of the decision will raise as they react to this decision.
Doug’s point highlights one of the problems inherent with the idea of “getting government out of the business of marriage” as I’ve described it. It’s not enough to simply wave a magic wand and say that the government can’t tell anyone who (or how many) they may marry. If you do that, people will take advantage of the system at the expense of the taxpayer. The only way to really approach the problem is to expunge marriage from virtually all sections of the law, including – and especially – the tax code. There is no reason to give people special benefits (or, as in the case of Obamacare and other programs, penalties) just for being married. Removing one part without the other leads to disaster. The number of children in the Brown family doesn’t factor into it for these questions (they have 17) since that happens in two person marriages, albeit infrequently.
But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible. The fears that some are expressing over the Brown decision, however, aren’t really related to this question and appear to be unfounded. The court didn’t strike down rules against actual polygamy – the practice of being licensed and married to more than one spouse – but rather laws prohibiting one from saying they are married to additional people. You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.
UPDATE: (Jazz) Forgot the link to OTB. Fixed.