As most Americans were thinking thoughts of Christmas cheer, a federal judge in Utah dropped a bomb on the institution of marriage, striking down the most crucial sections of the Utah statute outlawing polygamy. Last Friday, Judge Clark Waddoups of the United States District Court in Utah ruled that Utah's anti-polygamy law is unconstitutional, violating the free exercise clause of the First Amendment as well as the guarantee of due process.
In one sense, the decision was almost inevitable, given the trajectory of both the culture and the federal courts. On the other hand, the sheer shock of the decision serves as an alarm: marriage is being utterly redefined before our eyes, and in the span of a single generation.
Judge Waddoups ruled that Utah's law against consensual adult cohabitation among multiple partners violated the Constitution's free exercise clause, but a main point was that opposition to polygamy did not advance a compelling state interest. In the background to that judgment was the argument asserted by Supreme Court Justice Anthony Kennedy to the effect that the only real opposition to any form of consensual sexual arrangement among adults would be religiously based, and thus unconstitutional.
Kennedy made that assertion in his majority opinion in the 2003 case of Lawrence v. Texas that struck down all state laws criminalizing homosexual behavior—and the Lawrence decision looms large over Judge Waddoups's entire decision. In fact, he referred to a succession of court decisions that had vastly expanded the scope of sexual behaviors and noted: "To state the obvious, the intervening years have witnessed a significant strengthening of numerous provisions of the Bill of Rights."
Yes, that is to state the obvious. Key to that line of legal reasoning is the declaration by Justice Kennedy in Lawrence that the U.S. Constitution recognizes "an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct." More than once, Kennedy had inserted a statement about the Constitution requiring acceptance of "liberty of the person both in its spatial and more transcendent dimensions." Justice Antonin Scalia acerbically dismissed this argument as the "sweet mystery of life passage," but the damage was done. Judge Waddoups was working within Kennedy's structure of thought, and Utah's law against polygamy was found to violate that zone of privacy.
Jonathan Turley, the George Washington University professor who argued the case for the plaintiffs, did not try to force the State of Utah to extend legal recognition to the man and the four wives with whom he is related. Instead, he argued that the state had no right to prohibit their consensual cohabitation by force of law. Read narrowly, Utah's law against bigamy—claiming legal marriage to more than one spouse—remains in effect, but to little effect. At this point, most polygamists are not seeking legal recognition for their multiple relationships. Stay tuned for that.
The case had attracted a lot of attention long before Judge Waddoups handed down his ruling. The case was brought by Cody Brown, who along with four wives and 17 children, stars in the "reality television show" known as "Sister Wives." In a statement released after the ruling, Brown stated:
While we know that many people do not approve of plural families, it is our family and based on our beliefs. . . . Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.
In terms of those "different faiths and beliefs," Judge Waddoups ruled that polygamy, rightly understood, was just "religious cohabitation." Polygamy had been outlawed throughout the United States since the late 19th century, when Utah was forced to adopt such laws in order to enter the Union. The Mormon church then disavowed polygamy. The Browns are part of a group described as a "fundamentalist offshoot" of the Latter Day Saints.
Jonathan Turley, the attorney who represented the Browns, has long been an ardent opponent of anti-polygamy laws. In an article he published shortly after the decision was handed down, Turley argued that the case was not really about polygamy, but privacy. "The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns. It is a victory not for polygamy but for privacy in America."
At the same time, he also acknowledged the link between the legalization of homosexual relationships and the acceptance of polygamy. "Homosexuals and polygamists do have a common interest," he said, "the right to be left alone as consenting adults." He added: "There is no spectrum of private consensual relations—there is just a right of privacy that protects all people so long as they do not harm others."
Of course, the moral revolution that has transformed marriage in our times did not start with the demand for legal same-sex marriage. It did not begin with homosexuality at all, but with the sexual libertinism that demanded (and achieved) a separation of marriage and sex, liberating sex from the confines of marriage. So sex was separated from marriage, and then sex was separated from the expectation of procreation and child-rearing. Marriage was separated from sex, sex was separated from reproduction, and the revolution was launched. Adding to the speed of this revolution, then, was the advent of no-fault divorce and the transformation of marriage into a tentative and often temporary contract.
Once that damage had been done, the demand to legalize same-sex marriage could not be far behind. And now polygamy is enjoying its moment of legal liberation. Once marriage was redefined in function, it was easy to redefine it in terms of permanence. Once that was done, it was easy enough to redefine it in terms of gender. Now, with the logic of moral revolution transforming marriage in all respects, polygamy follows same-sex marriage. If marriage can be redefined in terms of gender, it can easily be redefined in terms of number.
As legal scholar Jonathan S. Tobin has explained, "Waddoups's ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy."
But the central issue in Judge Waddoups's decision is consent. He simply extended the argument that virtually anything to which consenting adults agree is covered by constitutional protection—anything. As Jonathan Turley stated clearly, "there is no spectrum of private consensual relations."
And so both marriage and morality take another major blow. This one came even faster than was feared. The reverberations from this decision will be massive and far reaching. But that insight is merely, to quote Judge Waddoups, "to state the obvious."
John Schwartz, "Utah Law Prohibiting Polygamy Is Weakened," The New York Times, Saturday, December 14, 2013. http://www.nytimes.com/2013/12/15/us/a-utah-law-prohibiting-polygamy-is-weakened.html
Jonathan Turley, "Federal Court Strikes Down Criminalization of Polygamy in Utah," JonathanTurley.org, Friday, December 13, 2013. http://www.nytimes.com/2013/12/15/us/a-utah-law-prohibiting-polygamy-is-weakened.html
Jim Dalrymple II, "Federal Judge Declares Utah Polygamy Law Unconstitutional," The Salt Lake Tribune, Friday, December 13, 2013. http://www.sltrib.com/sltrib/news/56894145-78/utah-polygamy-waddoups-ruling.html.csp
Jonathan S. Tobin, "'Big Love' Vindicated: Polygamy and Privacy," Commentary, Sunday, December 15, 2013. http://www.commentarymagazine.com/2013/12/15/big-love-vindicated-polygamy-and-privacy-sister-wives-gay-marriage/