About that non-existent slippery slope

In a recent conversation discussing the New York Times‘ glowing hagiography of Dan Savage and his views in favor of adultery, we discussed how former Sen. Rick Santorum had said something years ago to infuriate Savage. The crime that resulted in naming the fecal slime that is sometimes the byproduct of anal sex after Santorum? He argued that the legal reasoning being used in the Lawrence v. Texas (a huge gay rights case) could be used in favor of polygamy and various other private sexual acts.

I’ve long wondered — and frequently asked about — what arguments being used in favor of same-sex marriage couldn’t also be used in favor of plural marriage. I’ve not seen this discussion engaged in the press so much as dismissed.

It turns out that we’ll get to see the early contours of the argument with a new lawsuit challenging polygamy law.

An article on the lawsuit appears in the New York Times and is a bit of a mess. We’re told that Kody Brown, his four wives and 16 children are filing the suit and that they’ve been made famous from a reality TV show called “Sister Wives.”

But we don’t know which court they’re filing suit in. I’m even confused as to whether it’s state or federal court.

There’s also some confusion as to whether the suit is a natural extension of Lawrence rights or not. Here’s the first claim:

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.

But then we hear from a number of people claiming that legally speaking polygamy couldn’t be more different from same-sex marriage. But we never quite learn why. I honestly don’t know if that’s because the reporter didn’t accurately characterize the arguments of the people claiming “this is so totally different” or if they never articulated what the actual difference is.

We don’t learn much of the religion angle, just that the Browns are members of the Apostolic United Brethren Church and that it’s an offshoot of the Mormon Church and that the Mormon Church gave up polygamy over 100 years ago.

“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University.

Again, though, we don’t learn anything about what those beliefs are.

Much of the story is spent worrying about how the case bolsters the arguments of traditional marriage law defenders. They’ve been claiming that redefining marriage to include same-sex unions may have unintended consequences in marriage law and beyond.

Such arguments, often referred to as the “parade of horribles,” are logically flawed, said Jennifer C. Pizer, a professor at the law school at the University of California, Los Angeles, and legal director for the school’s Williams Institute, which focuses on sexual orientation law.

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.

Not only are none of the many people who would disagree with the first contention quoted, neither do we learn anything about how the family law system would have to be restructured, much less fundamentally, if polygamy were legalized.

Heck, I’m just even curious why supporters of “marriage equality” would oppose “marriage equality” for the polygamous. It’s not even discussed in the piece.

There is a bit of interesting history given:

The Supreme Court supported the power of states to restrict polygamy in an 1879 case, Reynolds v. United States. Professor Turley suggests that the fundamental reasoning of Reynolds, which said polygamy “fetters the people in stationary despotism,” is outdated and has been swept away by cases like Lawrence.

Again, I’d like to know more about how Reynolds argued that polygamy was despotic, why it’s outdated and how it’s been swept away by Lawrence.

The story would have been improved a great deal by speaking with anyone who supports traditional marriage law. Heck, the story would have been improved by letting the parade of “marriage equality” attorneys who oppose polygamy simply make their case.

As it stands, the piece doesn’t quite satisfy the need for more information about the role religion plays in this looming lawsuit. Also, for a piece focused on how this polygamy lawsuit in no way justifies the “slippery slope” arguments of traditional marriage defenders, it would be nice to have seen more discussion with them in light of this lawsuit.

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  • http://www.ecben.net Will

    Another thing which is “dismissed” is what the word actually means. “Polygamy” is almost always treated as though it was simply a synonym for “polygyny”…. Hence, people attempt to meet challenges to the different standards by asserting that it is inherently Oppressive To Women, or something. (Which may be what “Reynolds” was about.
    Sorry, if *I* know real,live polyandrists, how many are out there that I DON’T know about?

  • Martha

    I did wonder when I saw this as to why the man might be going to court if he was not “breaking other laws…seeking multiple marriage licenses”, seeing as how he’s legally married to one of these women while the other three are cohabiting with him. So what was the big deal?

    A different report made it clear(er) (link courtesy of “Stand Firm”):

    http://www.theblaze.com/stories/sister-wives-polygamous-family-plans-to-challenge-utahs-bigamy-law/

    “Bigamy is a third-degree felony in Utah. A person can be found guilty of bigamy through cohabitation, not just legal marriage contracts.”

    So technically, he could indeed be prosecuted for bigamy through cohabitation (the same way as, when adultery was illegal, people could have been prosecuted) though I am curious to know if such a case would be likely, given that he hasn’t attempted to ‘marry’ his other wives and is just living with them.

    Still, yes; now I see the application of the “Keep your laws out of our bedrooms!” Lawrence decision to this case. And for the religion ghost, there is a heck of a lot more Scriptural warrant for polygamous marriage in the Bible than the “David and Jonathan and Naomi and Ruth were all examples of loving same-sex couples” that some within various churches (okay, I’m thinking primarily of The Episcopal Church) indulged in.

  • Martha

    “But we don’t know which court they’re filing suit in. I’m even confused as to whether it’s state or federal court.”

    From the article linked above:

    “In an email to The Associated Press, attorney Jonathan Turley said he will file the lawsuit challenging Utah‘s bigamy law in Salt Lake City’s U.S. District Court on Wednesday.”

    And I see that the reason they all moved to Nevada from Utah was because the law did get involved, at least in a preliminary stage:

    “Originally from Lehi, the Browns, who have 16 children, have been featured on the TLC reality show since last fall. They moved out of Utah to Nevada in January after police and Utah County prosecutors launched a bigamy investigation. No charges were ever filed.” …

  • http://www.tmatt.net tmatt

    Spiking away.

    Working hard to keep this on the journalism issues in the coverage, not arguments about the subject matter.

  • Dave G.

    Heck, I’m just even curious why supporters of “marriage equality” would oppose “marriage equality” for the polygamous

    Easy, because those who support gay marriage but don’t support polygamy have a certain absolute set of values they believe should be reflected in our nation’s laws, just like those who don’t support anything but one man/one woman, or those who believe anything with two or more adults should be legal. It’s a case of value systems and moral absolutes. Not a case of ‘you’re for intolerance, I’m for tolerance’, as is often suggested in the media coverage I read and hear.

  • http://www.acupuncturebrooklyn.com Karen

    I was reading a piece in the Forward just yesterday where an Israeli Jewish rabbi is contending that the current Jewish prohibition on plural wives should no longer hold (and should never have applied to Sephardi Jews since it was an Ashkenazi decree.) He believes should have expired for all Jews in 1240 (Jewish millennial year 5000.) Rabbi Sopher thinks that plural marriages performed outside of Israel ought to be accepted, much as Reformed marriages which can not be performed in Israel are accepted when undergone in Cyprus or the USA. He also noted that plural marriage was common among the Jews of the Bible.

    Read more: http://blogs.forward.com/the-shmooze/139784/#ixzz1S1q8zhYV

    http://blogs.forward.com/the-shmooze/139784/

  • CarlH

    Here is the entry from Georgetown Prof. Jonathan Turley’s own blog about the filing of the lawsuit this afternoon in the U.S. District for the State of Utah (which includes a link to the complaint itself):

    Brown Family Challenges Utah’s Polygamy Law

    One of the interesting additional legal issues in this case relates to the fact that Congressional action approving Utah’s admission as a State (in 1896) explicitly mandated that polygamy must remain illegal “forever,” and the Utah State Constitution includes just such a provision.

  • http://www.tmatt.net tmatt

    Spiking, spiking, spiking away

  • dalea

    Part of the problem with comparing same sex marriage with polygamy is that the GL side regards slippery slope arguments as distractions from the point we are making. So, it has always been in the interests of GL people to ignore the issue and claim that it is not part of our concerns. The press has largely gone along with this approach. All ssm advocates are for is ssm. And most probably have no real opinion or any idea of the arguments pro and con regarding polygamy.

    Also during the period when ssm became an issue, there appear to have been no serious proponents of polygamy. Or at least none who got press coverage.

  • Joe S

    Thomas,

    I doubt gay people are that cynical. Go to the Advocate Magazine site and check out the reader comments to this story. They’re not happy to have polygamous marriages equated with same-sex marriages. It’s an emotional response based on the fact that gay relationships are now accepted as ‘normal’ but those same relationships are denied (formal) public recognition.

    Polygamous relationships are still considered ‘immoral/weird’ by the vast majority of people (including gay people) – so public recognition is treated as a joke/irritant. This could all change over time but only if significant numbers of people form polygamous unions and a cultural normalization process gets going first.

  • Bill

    How many polygamists work at the NY Times?

    How many polygamists claim religious justification? Would that make it seem weird to the Times?

    Hooking up has no stigma. Single motherhood is honored. Birth out of wedlock is shrugged off. Would it be more acceptable to the media and popular culture if the the man just split and left the woman and children to fend for themselves with support from the state? That wouldn’t be much of a story.

    Strange that a man would have a wife and several “sister wives” and agree to do a TV series, knowing there could be consequences not only for himself, but for the women and kids.

    Your planet often baffles me, earthlings.

  • http://www.ecben.net Will

    Times coverage of Hugh Hefner’s domestic arrangements have not criticized his harem, apparently because he does not CALL them wives.

  • http://forgottencenotaph.blogspot.com J. Lahondere

    The article in question was shoddily written, but I did appreciate this closing line:

    Professor Turley disagreed, noting that “there are many religious practices in monogamous families that many believe as obnoxious and patriarchal,” and added, “The criminal code is not a license for social engineering.”

  • Harold

    Another area journalists will need to explore is the reaction of religious liberty activists who raise liberty concerns over SSM. If the polygamy push is coming from religious rights activists, how far are we willing to press religious liberty as a trump for other public policy? Should a belief in polygamy represent a legitimate reason to violate public policy, which is the slippery slope for allowing individual believer to be exempt from discrimination laws.

  • http://ingles.homeunix.net/ Ray Ingles

    Anybody seen any coverage of how “proponents of traditional marriage” justify opposition to polygamy, seeing as it’s been traditional for thousands of years in many cultures worldwide?

  • Steve

    Hmm. I made two comments yesterday, and today they are both gone. Was it something I said? Or was my name “EssEm” not acceptable, even though tmatt is sufficient?

    My points again. Lest anyone be deprived of my wisdom.

    I am a gay man who does not support gay marriage. I am conservative enough to note that marriage is already in rough shape in a society in rough shape, and transforming it to please a tiny minority of a tiny minority is deeply imprudent. Because very few gays will actually get married.
    For most, it is a means to an end, a sign of social validity. And power.

    My internal reason is that marriage has a definite historical shape; it is not just “some kinda contract between two people” but something essentially between males and females. So “gay marriage” is putting a male/male and a female/female intimacy into straight “drag.” It’s disrespectful to the difference. If my guy and I decide to make out bond legal, I’m not his husband. He is not mine.

    And finally, if you make the gender of spouses irrelevant, how can you assert that the (historically far more variable) number of spouses must stay at two? Mormon polygamy is bad enough. (The Republican party was founded to abolish “the twin relics of barbarism: slavery and polygamy”). Wait til the Muslims get in on the game. The cultural Balkanization of the DisUnited States will get much worse.

  • Marie

    “Heck, I’m just even curious why supporters of “marriage equality” would oppose “marriage equality” for the polygamous. It’s not even discussed in the piece”

    Um because there is no P in GBLT. I don’t expect groups that lobby for the blind to exert too much energy for the deaf. And even then it is more G and L than B & T. In all this we don’t hear too much about the matrimonal needs of bi-sexuals and transgendered persons. Also friends are more apt to have gay friends or know of the nice lesbians down the street than the poly-family or the transgendered persons.

  • http://www.sanjivb.com Sanjiv

    This notion that the LGBT community consitutes a powerful lobby that has brainwashed the media has to be a joke right? It sounds like the usual bleatings of the powerful mainstream majority who long for that underdog status that gives them the right to whine. There is no conspiracy, this is about the rights of individuals to be treated with the same respect as others regardless of religion and orientation. A very American principle.

    And to that point, the polygamy issue isn’t concerned with whether it’s good for women or men or kids or society at large for that matter – it’s reasonably clear that polygamy fails on all fronts. Girls are forced into marriage, boys are expelled from the culture and society is gifted with a surplus of unmarried men, who are historically prone to fight, rob and burn things.

    But the guiding principle of American Constitutionalism isn’t to legislate according to smart policy – if it was we’d have sensible gunlaws, slower cars and universal healthcare – it’s to bend to the rights and freedoms of individuals, consenting adults. And by that token, you have to give polygamy its due.

    For a full argument for decriminalization, and a full expose of what a toxic, broken culture polygamy is, read Secrets & Wives: The Hidden World of Mormon Polygamy (Soft Skull).

    http://bit.ly/hqzdR0

  • Dave G.

    Sanjiv,

    Nobody is saying that the Gay Rights movement has brainwashed the media. We are saying that those in the media actively and openly support the gay rights movement, because gay marriage is an absolute value system that they support, just like those who support gay marriage, but not polygamy, support one absolute value system and not another absolute value system. As I said above, it’s not about tolerance or intolerance, it’s about this set of values as opposed to that set of values. As for the idea that polygamy is bad for you, yeah, I’d agree. I would also agree there is plenty of evidence to suggest homosexuality among men at least is far from the healthiest lifestyle choice either. It’s that this one particular world view happens to be advocated by a large swath of those in the media, not that they’ve been brainwashed. And of course that’s all fine and dandy. Those in the media are free to have their values. But there is a strong feeling that they tilt the argument in one side’s favor, and that’s not what we want from our media organizations – one way or another.

  • Nancy D.

    Actually, this is about redefining Marriage so that one can profess to be “married” while being engaged in the act of adultery, simultaneously.

  • http://www.abbottepub.com/tyndale21gospels.html Stephen A.

    I’ve never seen this subject handled well in the media, and this article is really not an exception.

    It may not be a ‘slippery slope’ but perhaps legalization of multiple partners is inevitable, based on legal language the media has completely ignored.

    I’ve often wondered why no one in the media, for example, has every seriously questioned how polygamy can POSSIBLY not meet the same standards of the Supreme Judicial Court in Massachusetts which legalized same-sex marriage there. In their ruling, judges noted that government CANNOT have a say in the marital arrangements of those who “love one another.” They went on to rather arbitrarily exempt polygamy in that ruling, but I’m wondering HOW they could do this, based on their own language, and I’m not seeing this and other statements about government’s role in “partnering” that have been written in court rulings being discussed in news analyses of this issue.

    (For the record, I’m not a polygamist nor do I know any or really support the practice. I’m just trying to be objective.)

    Were I covering this, I’d start asking opponents – including gay marriage supporters – why they believe legalized polygamy is NOT inevitable, based on past court rulings like the one in MA.

    I’m sure Prof. Turley will be bringing this and other issues up as this case is heard. That surely will bring it into the media. Maybe.

  • http://demographymatters.blogspot.com R.F. McDonald

    Steve:

    “I am conservative enough to note that marriage is already in rough shape in a society in rough shape, and transforming it to please a tiny minority of a tiny minority is deeply imprudent. Because very few gays will actually get married.”

    Most of my coupled gay friends in my 20/30-something demographic either have married or have plans to get married. And, yes, the male ones do refer to their husbands.

    Expecting all same-sex couples to get married immediately is a bit of a leap. For starters, expecting marriage to be immediately adopted in an aggregate of people who had been prevented from marrying since forever is a bit much; you need a culture of marriage.

  • c matt

    Such arguments, often referred to as the “parade of horribles,” are logically flawed, said Jennifer C. Pizer

    Where does this prof get “parade of horribles?” Aside from her, I have not heard this term. I have heard the term “slippery slope (ss),” and have heard it claimed ot be a logical fallacy. But that deopends upon the strucutre of the argument. In one sense, ss can be consuidered a logical fallacy – if A (SSM) occurs, then B (polygamy) must/will occur. If there is no determinative causal relationship, then it would be a logical fallacy.

    However, the argument was not a strict ss argument. It goes more like: If A (SSM) is allowed because enforcement of principle B (denying the self-professed relationships between consenting adults) is invalid, then thing C (polygamy) which is prohibited because of principle B must also be allowed.

    What SSM proponents who claim recognition of SSM does not support recognition of polygamy must show is that the principle that consent trumps the gender requirements of marriage is somehow invalid when it comes to the numerical requirements of marriage. I have not seen any argument establishing why consent is more important when it comes to gender but not more importantwhen it comes to number.

  • c matt

    And in fact, given that polygamy has been around in various cultures for millenia, I don’t see how they can claim it requires a more fundamental restructuring of the institution of marriage than SSM (which has NOT been around for millenia). We also have, essentially, serial polygamy through our easy divorce culture, so it is more a tweaking than a complete reworking. Still waiting to see specifics on this.