In 1890, the president of the Latter Day Saints, Wilford Woodruff, declared that he would advise his fellow Mormons “to refrain from contracting any marriage forbidden by the law of the land.” Congress still required that Utah establish a constitution holding that “polygamous or plural marriages are forever prohibited.” Utah did so, and won its statehood.
It is not my intention to get between the Mormons and other Christians or between anyone, of whatever religion or sexual orientation, and the Constitution. It is my intention to remark upon the abiding nature, and explosiveness, of these passions. And upon the tricks that history can play on all of us.
For it turns out that only a week before a federal judge struck down the state’s ban on same-sex marriage last month, a different federal judge, also sitting at Salt Lake City, struck down the core of the very ban on plural marriage that the federal government had once established as a condition of statehood.
So where does this leave our justices? It’s too soon to say whether the Utah same-sex marriage case, known as Kitchen v. Herbert, or the polygamy case, known as Brown v. Buhman, will go to the Supreme Court. But it’s not too soon to say that the justices could find themselves in quite a quandary—one predicted precisely by Justice Antonin Scalia when, in Lawrence v. Texas, he dissented from the court’s decision to end state bans on sodomy.