Looking down the road

polygamyisutahsomeIn 2003, the U.S. Supreme Court struck down a Texas law against sodomy. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,” Justice Anthony Kennedy wrote for the court.

Justice Atonin Scalia disagreed with the decision — and even more so with the reasoning behind it. The court wrote the ruling so broadly, he argued, that the current social order would be massively disrupted. Since the court didn’t “cabin the scope of its decision,” state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would also be attacked, Scalia predicted.

High-profile efforts to introduce same-sex marriage have been covered frequently. Jon Pomfret, writing for The Washington Post, looked at what progress has been made on the first of Scalia’s list: bigamy. He talks to various polygamists, including “Valerie,” about their efforts to legalize polygamy. Valerie, by the way, insists that she’s “just like you and me.” I love that meme. Anyway:

Valerie and others among the estimated 40,000 men, women and children in polygamous communities are part of a new movement to decriminalize bigamy. Consciously taking tactics from the gay-rights movement, polygamists have reframed their struggle, choosing in interviews to de-emphasize their religious beliefs and focus on their desire to live “in freedom,” according to Anne Wilde, director of community relations for Principle Voices, a pro-polygamy group based in Salt Lake.

In their quest to decriminalize bigamy, practitioners have had help from unlikely quarters. HBO’s series “Big Love,” about a Viagra-popping man with three wives, three sets of bills, three sets of chores and three sets of kids, marked a watershed because of its sympathetic portrayal of polygamists. The U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, also aided polygamy’s cause because it implied that the court disapproved of laws that reach into the bedroom.

The piece focuses on the positive, but does mention the child rape that happens in some polygamous communities. It also discusses the Mormon roots of the practice. Pomfret says that state authorities adopted a “don’t ask, don’t tell” policy in recent years.

One reason was that the politically powerful Mormon Church, while officially opposing polygamy, did not want the bad press strict enforcement might bring. Another reason was that law enforcement was worried that isolated polygamist communities would erupt in violence if raided. An internal memo at the Arizona attorney general’s office in 2002 spoke of a “Waco-level problem” among the polygamous communities along the Utah state line.

For such huge claims, it would help to have some substantiation. If you’re going to say the Mormon Church was able to get law enforcement officers to stop enforcing the law in order to bolster the church, you need some support. Also, if you have that information, that would make a fantastic story. But no one from the LDS is quoted.

Other than that, the piece is fine. A colleague of mine described it as “surfacey,” noting that none of the polygamy sources mentioned on ReligionLink‘s polygamy page was quoted. What the piece does do is offer a starting point for discussion.

Whether or not polygamists are successful in using the Lawrence decision to help legalize bigamy, their efforts need to be covered. In general it would be helpful for reporters to look down the road at more marriage stories.

If fundamentalist Mormons succeed in overturning laws against bigamy based on the First Amendment instead of the Fourteenth Amendment as in Lawrence, what would be some of the unintended — or intended — consequences of such a decision?

If gay marriage is legalized, will that help formally sanction families such as the ones profiled in The New York Times last week — with multiple female and male partners? How might that affect family law, the tax code and inheritance laws?

If barriers to marriage are lowered, would there be an incentive for non-intimate couples or groupings to marry for benefits? If so, would that change how companies confer benefits? If companies cease offering benefits for partners, would that affect whether — for instance — one spouse is able to stay home and raise offspring?

Writing stories about how arcane our marriage laws are, as many reporters do, is fine. But it would be nice to see more in-depth reporting about the consequences of changes to marriage laws.

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  • Christopher W. Chase

    These are important questions on the transformation of marriage laws. But as often happens, the law has yet to catch up with actual lives on the ground. Some polyamorous families have learned how to avoid much of the financial, tax, and inheritance hardships by incorporating as non-profits. Each partner in the marriage holds a stake as a trustee in the assets of the corporation. As young children of the groups marriage grow of age, they gain legal access to “corporate” assets. It may sound strange, but the ‘limited liability corporation’ has provided a capitalist model to circumvent the restrictions of many marriage laws, at least to some degree. Medical powers of attorney and other factors of course come into play in other situations.

  • MattK

    “If fundamentalist Mormons…”

    What? What is a fundamentalist Mormon? What are the fundamentals of the Mormon religion?

    How about “non-mormons”, or “morman-like schizmatics” or “members of a church that broke away from the Mormons and practices polygamy”

  • Thuloid

    Mollie–

    You say: “If fundamentalist Mormons succeed in overturning laws against bigamy based on the First Amendment instead of the Fourteenth Amendment as in Lawrence…”

    So far as I understand it (and I may well be mistaken, but it’s worth mentioning), any such effort against a state law would necessarily come through the Fourteenth Amendment, as it’s via the Fourteenth that elements of the Bill of Rights are applied to the states. So it’s not an either/or sort of thing–a case based on the First Amendment would also have to be based on the Fourteenth (though possibly different in reasoning from Lawrence, which may be what you meant to say).

  • http://www.getreligion.org Mollie

    Thuloid,

    I’m not sure that’s right. Lawrence was, I believe, decided under the equal protection and due process clauses of the Fourteenth Amendment, but I’m not sure a First Amendment decision would have to come through the Fourteenth as well.

    Maybe we can get Linda Greenhouse in here to discuss.

  • Eric

    Another issue that hasn’t been adequately covered are issues of child custody and how that might be affected by gay unions of various sorts. There was a decision in New Jersesy last week that said, in effect, that a lesbian partner of a mother should be listed as the “father” on the birth certificate. Another issue that hasn’t been covered adequately is, what are the legal benefits of marriage? It seems like much of the debate has focused around social acceptance rather than the often marginal legal difference that a marriage certificate provides.

  • Michael

    Lawrence was decided under due process analysis. O’Connor’s concurrence raised equal protection question, but that wasn’t the basis of the majority’s ruling.

    Mormons (or Muslims) who argue that their religious liberties are threatened because of prohobitions on polygamy would likely be brough on First Amendment grounds, even though it is the Fourteenth Amendemnt that allows federal courts to reveiw state laws.

    But it would be nice to see more in-depth reporting about the consequences of changes to marriage laws.

    There probably needs to be a “perceived” tossed in here. No one knows the consequences or whether there will be consequences at all. At this point, it’s all guessing.

  • Slappy McJack

    MattK,

    You can be a Mormon and not be a member of the LDS church, which has never had exclusive claim to the name Mormon. Hence the qualification denoting “fundamentalist” – meaning they adhere to the original teachings of J. Smith – as opposed to the mainline LDS church that outlawed polygamy years ago. I realize that “fundamentalism” is a hard thing to pin down in a church that believes in active revelation, but that is the nomenclature that has been in use commonly for sometime to distinguish between the LDS and the polygamists.

    Nearly every article written about the topic of polygamy makes some reference to the fact that the mainline church outlawed the practice sometime ago. I don’t think there’s much confusion at this point.

  • Jeffrey Weiss

    Scalia’s dissent is great reading. Probably must-read for many reporters niggling at this topic.
    Here’s the key quote from the majority:

    “This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle.”

    And here’s Scalia’s response:

    “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.”

    Here’s the challenge for a reporter: Scalia and many others take it as a given that the overturning of such laws (leave aside the silly example of bestiality, which does not involve consenting adults) would be bad.
    Maybe so. But maybe not.
    And as long as the state does not force anyone into one of these various arrangements, what *would* the downsides be? I can think of a few — the administrative nightmare that polygamy would mean to the insurance industry, for instance.

    But it seems to me that it’s time for us in the MSM to take a serious look at the effects on society of the state allowing a variety of alternative legal unions between consenting adults.

    This is not simply a religion question, of course. But religion would figure into it. Such legal decisions would involve moral choices, based on a different moral calculus than Justice Scalia supports.

  • mjbubba

    This is pure speculation, but I bet that, if polygamy were legal, we would soon see small splinter Protestant churches (that might otherwise be orthodox Christian) that accept it. The Bible does not disallow it; it only advises against it. (The Bible does strongly condemn the other actions from Scalia’s list.)

  • Michael

    This is pure speculation, but I bet that, if polygamy were legal, we would soon see small splinter Protestant churches (that might otherwise be orthodox Christian) that accept it. The Bible does not disallow it; it only advises against it. (The Bible does strongly condemn the other actions from Scalia’s list.)

    It would actually be interetsing–if the MSM is going to report on slippery-slope arguments–to see if the rise in religious liberty litigation would result in groups like the Alliance Defense Fund or the Becket folks defending polygamists on religious liberty grounds. Or courts considering such an argument because of the precedents created in First Amendment cases that have been advocated by those on the political and religious right.

    Talk about you man bites dog story.

  • Thuloid

    Mollie–

    Yeah, might want to grab an authority of some sort to check. But again, AFAIK, application of First Amendment to the states always comes through the Fourteenth (as there were in fact Supreme Court decisions predating the adoption of the Fourteenth Amendment which held that the Bill of Rights did not apply to the states). One major point of disagreement among our Supreme Court justices would be whether and to what extent the Fourteenth Amendment does make the various amendments of the Bill of Rights binding on the states.

    Standard qualifier about Wikipedia being a horrible, bad, unreliable source and I’m a naughty, naughty boy for linking to it:
    http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29