Foureleven wrote earlier this year about the show “Sister Wives” and its portrayals of women in plural marriage. Now the family depicted in that TLC series is back in the news: they’re challenging Utah’s 1890 anti-bigamy laws in federal court (the Utah state constitution also forbids polygamy). Kody Brown, his four wives and sixteen children moved to Nevada recently after being the target of a criminal investigation in Utah following their “outing.” If you’re not familiar with their story, there’s a good summary here from CNN’s OnReligion blog.
My problem with polygamy is that it’s the most patriarchal and inegalitarian form of marriage, which becomes painfully obvious when you listen to women from the Fundamentalist Mormon tradition—including Brown’s wives—talk about their husband’s spiritual authority over them and their “happy helpmeet” role in family life (to say nothing of the husband’s privilege of having multiple sexual partners while the wives may have only one). I don’t for a second buy that women are empowered by sharing a husband. But I don’t think what they’re doing is criminal.
In certain FLDS communities, like the Longing for Zion “compound” led by Warren Jeffs—the model for “Big Love”‘s Juniper Creek and Roman Grant—the forced marriage of underage girls demands criminal prosecution. But the Browns and many other “mainstream” polygamists do not commit these crimes. They are simply consenting adults calling themselves a married family, as their lawyer, Jonathan Turley, a professor of law at George Washington University wrote in a recent New York Times editorial:
The family has not been accused of child abuse or other crime, in almost a year of being under criminal investigation. With such allegations stripped away, the only thing remaining is a family that does not look like those of other Utah citizens. The question is whether that is enough to declare them criminals.
While widely disliked, if not despised, polygamy is just one form among the many types of plural relationships in our society. It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and “cohabits” with those partners, it is considered a crime.
There’s no compelling reason for the state to intervene in these peoples’ lives. Honestly, if the state were to prosecute every unequal marriage or misogynist religion, belief system, or living situation there would be precious little time or money for it to do anything else. The fact that the state gives a pass to other repressive lifestyles and religions and only singles out an FLDS family makes it look an awful lot like religious persecution.
Despite this, leftists and civil libertarians have been slow to defend or support the rights of polygamous families like the Browns, despite their stated commitment to minimizing government interference in Americans’ private lives. Why? Turley writes:
The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.” [ed: Masturbation? SRSLY?]
Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. 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.
Scalia’s slippery slope argument here is a fallacy, as most slippery slope arguments are (for a distinguished jurist, it’s embarrassing how often Scalia falls back on this particular fallacy). No one is arguing that if we decriminalize polygamy, we must then decriminalize every other act under the sun.
If consenting adults want to live together and raise children in what they feel is a spiritually significant relationship, who is the state to tell them otherwise? They aren’t applying for multiple marriage licenses. They aren’t even asking the state to redefine marriage to include theirs. They’re simply asking for the right to conduct their private and religious lives without being prosecuted. Sure, their religion and private lives may fall outside societal norms, but that’s not a valid reason to criminalize their behavior. Like the anti-sodomy laws overturned by the Lawrence decision, Utah’s anti-polygamy laws date back to a time when pre-marital sex, homosexual sex, and even other religions were banned by the state (Don’t believe me on that last one? Ask a Native American, whose religious practice was outright banned in the 19th century West). Those laws no longer make sense culturally, and judicial precedent is not on their side.
Or, as the Brown’s lawyer put it: “Can they be prosecuted because their private relationships are obnoxious to other citizens?” I say no.