The television show Sister Wives, with its one man, four women, and 16 children, has been touted as our chance to gaze upon the “reality” of polygamy. The Brown “family” has been presented as simply your ordinary family—one that just happens to need four sub-homes and an arrangement that permits the man to choose which woman and children to visit each night. This is not a show about casual sex or adultery. According to the family members themselves, it’s a show about a single family.
The family was originally living in Utah, where what they are doing is illegal, and wouldn’t you know it? Their extreme flouting of the law led to an investigation. Shocking. It reminds me of the Church of Marijuana, whose leaders and members seem surprised every time they are arrested for, yes, distributing and using marijuana.
The Browns are now suing Utah for making their behavior illegal and forcing them to move to Nevada. Essentially, their argument is that they have a right to be married however they choose.
As Joanna Grossman points out in her prior Justia column on the Brown family, their lawsuit raises every constitutional argument conceivable—which is often a good measure of how unlikely it is that a litigant can win.
In short, the Brown family is grasping at straws. Professor Jonathan Turley is their lawyer. In this column, I’ll argue that the Browns will not—and should not—win their case.
Polygamy Cases, Present and Past
Coincidentally, the Supreme Court of British Columbia, Canada, is currently considering whether polygamy is a constitutionally protected activity. The court held lengthy hearings, collected evidence and accepted expert reports (including two from me) on the topic, and also heard from active polygamists in BC.
The key point I made in my first expert report to the Canadian Supreme Court was that no court in the United States has ever held that the anti-polygamy laws violate the free exercise of religion, or any other constitutional principle, despite well over 100 court challenges.
My second expert report responded to Jonathan Turley’s attempt to argue that polygamy is constitutionally protected because private consensual sex is constitutionally protected, as was held by the U.S. Supreme Court in Lawrence v Texas. I agree with Joanna Grossman that the argument is not strong. Nor are the free exercise arguments.
The first decision in the United States on the topic was Reynolds v. United States, in which the Supreme Court held that no man may be a law unto himself, and that each must be subject to the laws that govern all. Just as important, the Reynolds Court described the long history behind the anti-polygamy laws across the United States:
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offense against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offenses against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.
By the statute of 1 James I (c. 11), the offense, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that “all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,” the legislature of that State substantially enacted the statute of James I, death penalty included, because, as recited in the preamble, “it hath been doubted whether bigamy or polygamy be punished by the laws of this Commonwealth.”
From that day to this we think it may safely be said that there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or lesser extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. An exceptional colony of polygamists under and exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
Anti-Polygamy Laws Represented a Universal Ban, and Did Not Target the Church of Latter-Day Saints
It is historical fact that the anti-polygamy laws in the United States have been universal from the start, as the Court explained. Every state outlawed polygamy, and Congress extended that prohibition to the Territories, including the Utah territory, where the Latter-Day Saints were practicing polygamy.
Thus, the misleading notion—popular even among some law professors—that somehow the LDS was being singled out by the polygamy prohibition is false history. In truth, they chose a practice that was universally condemned and then were subjected to the law that bound every other United States citizen.
It is critical that Americans understand that the laws against polygamy preceded the LDS’s practices, and that the extension of the anti-polygamy laws to Utah were not created to oppress the LDS, but to oppress the practice. It just so happened that the LDS were the ones engaging in the universally and historically reviled practice.
Thus, when either Mormon-derived polygamists like the Browns, or Muslim-based polygamists, try to argue that anti-polygamy is a form of religious persecution, they (and we) need to be reminded that the anti-polygamy laws are neutral and generally applicable, rather than being targeted at any one group. Thus, they are not constitutionally suspect.
The Focus of Anti-Polygamy Laws Was Not Religion, but Patriarchal Oppression
The Supreme Court also noted that the “patriarchal” principle typically leads to oppression. The Browns and their Stepford Wife-like existence are a perfect example.
Here you have one man who has one family with four subparts and who holds all the power. Typically, he spends his evening with the family he chooses. It is obvious that there is an equation in the family: one man = four women (or five women, or 10 women) and he is the one who will choose how many women are his equal.
Part of the pathos of the Sister Wives show comes when patriarch Kody Brown introduces a new wife and mom to the “sisters.” (Is anyone else as offended by the title of this show as I am, with its overtones of incest? Sisters have brothers; wives have husbands. It is just another marker of the women’s troubling, second-class status.) For those who believe in gender equality, this arrangement should be seen as more than just television entertainment; it is a recipe for oppression, and a foot in the door for the patriarchal principle that unfairly ruled our world not so long ago.
No collection of individuals—even those with their own reality-television show, or a set of religious beliefs—has the power or right to define what marriage is. That is the obligation and power of the state legislature. When marriage is defined, it also determines a wide range of issues, including who is responsible for which children, who inherits from whom, and who owns what. These are crucial constitutive elements of our society that cannot be left to the whim of each individual.
Utah has declared polygamy illegal, and for good public-policy reasons. When practiced in a community, it leads to the necessity of each man looking to younger and younger women, and the abandonment of some of the boys to make the odds work for the men. Even if the Brown clan can make polygamy look banal, as opposed to outright evil, the structure has a sure tendency to suppress women, foreclose the full flowering of their potential, and make children defenseless.
How do I know? If you are charmed by the Brown family, despite the women’s second-class status to their husband, you should make sure to tune in to the trial about to commence in Texas of FLDS prophet Warren Jeffs. He is already trying the FLDS’s familiar tactic of accusing everyone around him of bias so as to deflect attention from his own crimes. What he has done to girls in the name of polygamy should be—and is—more than enough evidence to show why the Browns’ bid to defeat Utah’s anti-polygamy law is so wrongheaded.
Fortunately, there is also a backstop to Utah’s defense of its statute. Utah had to agree, as a condition for statehood, to join all other states of the union in banning polygamy. It is in a provision of the state’s very constitution. Thus, even if a Utah court were to hold the current version of the law unconstitutional, the State of Utah still could not permit such a marriage. And that result is a just one—for the reasons that led the states to impose on their newest member of the union such a condition is as valid today as it was then.
Posted in:Constitutional Law, Family Law
MCN’s Contribution: I’m not making one. At least not one on the merits.
Throughout these long, drawn out and ultimately fruitless debates on homosexual marriage and polygamy, the homosexual caucus has consistently accused my team of making arguments in bad faith, esp the polygamy argument. Pan, for example has asserted so on this very thread.
The cry of “you’re bigots” has also been a constant theme.
From the start, it’s difficult to argue with people like this, except to reply in kind.
More importantly, our moderator himself (who to his long-delayed credit recently and grudgingly stated he will no longer raise the bloody flag of “you’re bigots”, although I cannot help but think he kept his fingers crossed) has not exercised good faith in asking for “essays” on this subject, vide his snide and sneering introduction above and his similar language on the Thomas More Society thread below.
He’s already concluded that any arguments contra are, well, what he said they were. That is not an invitation to civil debate.
The fact is that the homosexual caucus has no interest in treating in good faith any arguments submitted by my team on this subject. As is clear, the caucus considers those arguments as void ab initio, a position further amplified with the cries that “it’s a denial of civil rights” and “you’re bigots”(homosexual marriage) and “it’s a red herring made in bad faith” (homosexual marriage as a slippery slope to polygamy).
While I personally find that caucus’s arguments on both these subjects to be, putting it generously, incoherent and ad hominem, I see no reason to make any arguments on this particular thread (except to thrown in the occasion hand grenade when someone says something egregiously stupid, which I expect to be often) because a) I have already made them extensively on other threads, b) the moderator himself has not made an invitation in good faith to discuss them, and c) they will merely invite imprecations of “bad faith” and “you’re bigots”.
We’ve heard plenty on this board of both, especially that last, and it’s way past the point at which it sounds like “two legs good, four legs better”. Or, perhaps more to the point, “Ignorance is Strength”.
Don’t give me any grief about chickening out. You people know my views, I’ve stated them enough times. When you want to deal with them rationally, we can. This isn’t the occasion, as our moderator has made clear.
Posted by: MCN | Wednesday, January 09, 2013 at 02:03 PM
The main argument against polygamy is that it is associated with the subjugation of women -- pretty much always and everywhere it is practiced. It is associated with cultish or morally primitive behavior among insular sects or like environments that reduces the status of women to that of servants or slaves, which is offensive to our modern cultural ethos of sex equality (which is not merely a Western cultural preference but a strong unviersal moral concern about the rights of individuals we feel justified in insisting upon) and damaging to the dignity of the women involved. Within certain communities, women may feel pressure to submit to such relationships, and legalization would only encourage that pressure rather than discourage it, which is what we should do by culturally and legally marginalizing it. (Secondary arguments have to do with legal practicalities, as mentioned by many above, but such concerns could probably be dealt with if we really wanted to legally recognize polygamous marriages. I'm not convinced that they alone justify the policy. Ambiguities concerning settling rights and duties upon divorce, for example, already exist, and there's no reason to think that they couldn't be addressed in the case of multiple spouses. The law routinely deals with multi-party legal arrangements.)
The counterarguments are several: First, it is not *necessarily* associated with the subjugation of women. Second, absent another crime such as domestic violence, illegal already, the state is not generally empowered to prevent the subjugation of women, any more than it is empowered to outlaw misogynistic speech or otherwise intervene in the psychological, emotional, and social dynamics of intimate human relationships. Third, whatever problems are associated with polygamy are present anyway among those who practice an informal version of it, which is not illegal and can't be made illegal. Fourth, it is connected for some with the practice of their religion such that outlawing it comes close to religious discrimination, or, at the very least, a heavy-handed imposition of a cultural/moral norm to prevent legal recognition of conduct that is *in itself* harmless.
To which the responses are: No, it is not *necessarily* associated with the subjugation of women, but it is correlated, and the state is not generally obligated to address concerns with perfect precision -- unless, that is, important individual rights are at stake. Are such important individual rights at stake here? There are three possible contenders for a rights argument for polygamy I can see -- that it violates the "harm principle," that it discriminates on the basis of religion, or that it impairs a fundamental right to marriage.
First, this is pure morals legislation, and we disfavor pure morals legislation. This position rests on J.S. Mill's "harm principle" -- the idea that people have the right to do what they want absent concrete harm to others, and it is that harm to others alone that justifies state intervention. A few problems with this: First, the Constitution, though inspired by Mill's philosophy, does not actually adopt a harm principle as a hard restriction on state action. Morals legislation is not automatically prohibited. Indeed, the default rule is that democratically elected legislatures can do what they want absent a strong reason grounded in the Constitution's guarantees of individual rights. Second, the state isn't, strictly speaking, prohibiting polygamy. That is, it's not saying that you can't cohabit as a polygamous family and hold informal marriage ceremonies. You can still do what you want; the state is merely withholding official legal recognition of the arrangement. Third, there *is* a harm involved, as discussed above, concerning the women who enter into these relationships, such that the law is, in a sense, meant to protect and not restrict liberty rights. Yes, the law is paternalistic in that regard, but paternalism is not automatically out of bounds. Yes, as noted, the law is not narrowly tailored to address that harm. Such narrow tailoring, though, is generally only demanded when the law violates an *equality* norm -- that is, where it engages in some sort of impermissible discrimination against a protected class of individuals -- or impairs a fundamental right. Otherwise, the legislature is permitted to address problems with a blunderbuss -- hitting its target only sometimes, and missing it entirely in other cases. So, does the polygamy law discriminate or impair a fundamental right?
All laws discriminate in some fashion, but, to be imperssible discrimination, the law has to discriminate on the basis of a suspect classification, such as race, ethnicity, sex, age, or sexual orientation. The polygamy law doesn't discriminate on the basis of any of those characteristics. Some argue, though, that it discriminates on the basis of religion, which is a suspect classification. The problems with this argument are: (1) It restricts only an arguably religious practice, and does not restrict that practice on the basis of religion. It's not directed at religion, but rather at certain conduct deemed potentially harmful. In the vast majority of cases, a religious practice that violates an otherwise valid law of general applicability will have to cede to the law in order to achieve the government's legitimate objectives. (2) It would only be religious discrimination for, at most, a handful of people who would have to demonstrate a bona fide religious requirement. LDS no longer sanctions polygamy, and I'm aware of no religion that truly *requires* it. Some engage in polygamy as a matter of tradition or culture, but these are not suspect classifications and such commitments must give way to otherwise valid laws.
Does the polygamy deny a fundamental right? There is a fundamental right to marriage, yes, but, obviously, the law permits would-be bigamists to get married -- just to one person at a time. They are not excluded from marriage, either as a matter of technical law or as a matter of practical reality. Unenumerated fundamental rights gain their recognition from historical practice, and there is no historical practice in favor of polygamy -- indeed, the historical practice has been to outlaw it. Historical practice alone, perhaps, does not decide the issue, because historical practice can be blind to its discriminatory or prejudiced character. But even where we look beyond the historical practice to the *reasons* for conferring upon marriage the status of a fundamental right, we do not see those reasons supporting plural marriage. Marriage is seen as a basic civil right because it is "fundamental to our very existence and surivival." (So said the Surpeme Court in Loving v. Virginia, the case that struck down miscegenation laws.) One can argue with that rationale, of course -- the stronger argument against miscegenation laws is that they discriminate on the basis of race -- but it certainly doesn't extend to polygamy.
Posted by: JakeH | Wednesday, January 09, 2013 at 03:43 PM
Not so fast, bucko. I agree that polygamy does not complicate child custody decisions, but strongly believe that it's reasonable for the state to refuse to recognize polygamous marriage on complexity grounds.
Let me make the complexity argument another way. Civil marriage is, among other things, a set of default choices. Getting married is like entering into a bunch of legally enforceable arrangements governing, for example, who will inherit your property if you die without a will, who will make medical decisions for you in the event you are incapable of doing so. Now, not everyone wants all of those things, so it's perfectly legal for a husband to, say, write a document naming his brother as the individual who will make medical decisions for him. But in general, most people who get married want to enter into most of the legally-binding arrangements that come along with marriage.
I doubt there is any similar consensus among would-be polygamists about what the default arrangements should be in relationships among three or more people. I mean, is it really the case that all (or nearly all) women married to two or more men would want their first husbands to make medical decisions for them?
Or say a man is married to three wives who don't work, whom he married years apart, and that he and his middle wife decide to divorce. What is the best default rule governing the percentage of the family's assets that she should get? And, more to the point, is there any reason to think that all, or nearly all, families consisting of one husband and three wives would want the same default rule?
Without consensus, or near-consensus, on the part of polygamists and would-be polygamists, the state has no reason to set up a bunch of default rules that would govern polygamous marriages, and indeed, no way of reasonably choosing among the sets of default rules that might be set up.
Posted by: Taxpayer | Wednesday, January 09, 2013 at 06:25 PM