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.