polygamy1(1)U.S. District Court Judge Clark Waddoups declared Utah’s law making polygamy a crime to be unconstitutional last Friday.  When Utah sought to become a state in 1896, Congress required Utah to ban the practice of polygamy (a marriage between three or more persons).  The Church of Jesus Christ of Latter-Day Saints disavowed polygamy in 1890 and in 1904.  Different sects of Latter-Day Saints still continue the practice.

The Supreme Court ruled against polygamy in Reynolds v. U.S. in 1878, but Judge Waddoups declared he could not base his opinion on this ruling alone.

It would be an easy enough matter for the court to do as the Defendant urges and find against the Plaintiffs on the question of religious cohabitation under the Statute, defaulting simply to Reynolds v. United States, 98 U.S. 145  (1879) without seriously addressing the much developed constitutional jurisprudence that now  protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices, though such legislatures may sincerely believe that such criminal sanctions are in the best interest of society. The court has concluded that this would not be the legally or morally responsible approach in this case given the current contours of the constitutional protections at issue.

He cites the history of the United States targeting Mormon polygamy and the racial undertones that accompanied it during the late 19th Century.  He then writes:

The court need not be entirely bound by the extremely narrow free exercise construct evident in Reynolds; that case is, perhaps ironically considering the content of the current case, not controlling for today’s ruling that the cohabitation prong of the Statute is unconstitutional. In fact, the court believes that Reynolds is not, or should no longer be considered, good law, but also acknowledges its ambiguous status given its continued citation by both the Supreme Court and the Tenth Circuit as general historical support for the broad principle that a statute may  incidentally burden a particular religious practice so long as it is a generally applicable, neutral law not arising from religious animus or targeted at a specific religious group or practice.

He cites the Supreme Court’s Lawrence v. Texas ruling changed what was could be considered acceptable basis for morals legislation passed by State Legislatures.

With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator in the saga of religious polygamy in Utah (and America). When the federal government targeted Mormon polygamy for elimination during the half century from the passage of the Morrill Anti-Bigamy Act of 1862 through the Congressional inquiry into the seating of Utah Senator Reed Smoot from 1904 to 1907, the “good order and morals of society” served as an acceptable basis for a legislature, it was believed, to identify “fundamental values” through a religious or other perceived ethical or moral consensus, enact criminal laws to force compliance with these values, and enforce those laws against a targeted group. In fact, with the exception of targeting a specific group, this has remained true in various forms (depending on the particular right and constitutional provision at issue) until the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) created ambiguity about the status of such “morals legislation.” But the LDS Church was a victim of such majoritarian consensus concerning its practice of polygamy as a foundational and identifying tenet of religious faith.  See Reynolds, 98 U.S. at 166-67 (noting that Congress was “deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order”). Although the court doubts that Lawrence actually must be interpreted to signal the end of the era in which the “good order and morals of society” are a rational basis for majoritarian legislation, there is no question this was the prevailing view in the 1870s.

Ken Klukowski, senior legal analyst at Breitbart News points out:

In its 2003 Lawrence v. Texas case, the Supreme Court overruled previous sexuality precedents by declaring unconstitutional laws that made homosexual sodomy a crime, holding that although the Constitution says nothing about sex or marriage, there is nonetheless a right to consensual sexual activity between adults that government cannot regulate. This was over the vigorous dissent of conservative justices, who said that the Constitution commits such questions of marriage and morality to the states and the democratic process, and that therefore federal courts have no power to impose their own moral judgments.

The Lawrence case lays the foundation that has been cited for a decade now in court to make the case for a constitutional right to same-sex marriage. If government cannot forbid homosexual conduct, this argument goes, then neither can it deny those who define themselves by homosexual behavior to officially recognize any such relationship as a marriage. It began a political, religious, and philosophical debate in America between two different definitions of marriage and family.

This give credence to the “slippery slope” argument that I and others have used in defending the definition of marriage.  Klukowski continues:

If, therefore, you have a right to officially recognize those homosexual relationships through redefining marriage to include same-sex couples, then there is no reason to say it cannot include more than two people, so long as everyone is a consenting adult.

This lawsuit is the brainchild of Prof. Jonathan Turley at George Washington University. He’s designed a two-step strategy, piggybacking on same-sex marriage: first, decriminalize polygamy, then assert a right to official recognition of polygamy.

As Turley explained in previous court filings, he believes there is a “right to self-determination of private relations and family matters free of government intrusion.” He noted that many oppose polygamy, and goes on to assert that polygamists “are entitled to protection from such majoritarian animus and bias vis-à-vis their private lifestyles and relations. Their status under domestic law is a civil rights issue deserving the same protections afforded to homosexuals and other minority groups.”

The exact legal arguments for same-sex marriage equally apply to multiple-person marriages. Turley acknowledges that marriage laws that do not include both are “a tool for the imposition of a uniform moral agenda or tenets on citizens.”

The case will likely go to the U.S. 10th Circuit Court of Appeals in Denver, CO.  The decision does not just apply to Mormons, but Muslims and anyone who seeks to have a multiple marriages whether for religious or non-religious reasons.

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