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December 16, 2013

About That Polygamy Decision

As predicted by the likes of Antonin Scalia and Rick Santorum, the slope America has been on since Lawrence v. Texas is certainly slippery.

A U.S. District Court judge has sided with the polgyamous Brown family, ruling that key parts of Utah’s polygamy laws are unconstitutional.

Judge Clark Waddoups’ 91-page ruling, issued Friday, sets a new legal precedent in Utah, effectively decriminalizing polygamy.

It is the latest development in a lawsuit filed by the family of Kody Brown, who became famous while starring in cable TV channel TLC’s reality series “Sister Wives.” The show entered a fourth season at the end of the summer.

Waddoups’ ruling attacks the parts of Utah’s law making cohabitation illegal. In the introduction, Waddoups says the phrase “or cohabits with another person” is a violation of both the First and 14th amendments.

Now on its face, this decision is correct. If government cannot criminalize gay sex and cannot criminalize adultery and cannot otherwise criminalize sexual relations between consenting adults, there really is no basis for allowing it to criminalize who people claiming to be in a committed marital relationship while one of them is in a legally recognized marriage with another party.

But the grounds justifying this decision come straight from Lawrence v. Texas, notes Professor Jacobson over at Legal Insurrection.

The Court (at page 74) relied heavily on the U.S. Supreme Court’s ruling in Lawrence v. Texas (outlawing an anti-Sodomy law):

Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence. The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the Statute, “it is, of course, the state that has equated private sexual conduct with marriage.” (Pls.’ Opp. to Def.’s Mot. Summ. J. 25 [Dkt. No. 72].) That is, in the case of people who have not even claimed to be legally married—are not making any claim to legal recognition of their unions or the network of laws surrounding the institution of marriage—“[i]t is the state that is treating the relationship as a form of marriage and prosecuting on that basis.” (Id.) As such, this, in effect, criminalizes “the private consensual relations of adults.” (Id.)


And as Jacobson notes, this is exactly what Justice Scalia warned about in his dissent ten years ago. And I'll note that this is the same sort of thing that Senator Rick Santorum predicted at the time as well.

“If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

I recall, as a kid in the mid-1970s, reading an article in Time Magazine about the gay rights movement and how the goal was to be left alone. Twenty years ago, ans the first court ruling requiring civil unions were made, we were assured that it would never lead to gay marriage -- until another court ruling (and a series that followed) brought that into being, to the point that it is likely to be imposed upon the United States despite the desires and beliefs of the American people. So is it any wonder that I look at this ruling and find myself speculating that there will be legal sanction for polyamorous marriages in my lifetime because of the path we have set out upon this ruling?





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As Mitt Romney said when he ran in 2008: Marriage is between a man and a woman and a woman and a woman. . .

|| Posted by Tom Zakes, December 17, 2013 03:52 AM ||

Rhymes With Right - About That Polygamy Decision
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|| Posted by okzolpbq, February 23, 2017 09:24 AM ||
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