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Polygamists Challenge Utah Bigamy Law

The news that the Sister Wives reality show stars are filing a lawsuit challenging the anti-polygamy laws in Utah doesn’t come as a major shock. The show has always seemed like its agenda was to “normalize” polygamous relationships – “see how they have adorable children and chip in on the household responsibilities and have regular jobs, just like a real family?” – so an eventual legal challenge seemed like the logical course it would take.

If you’ve never seen the show, it follows a Utah ad salesman named Kody Brown who lives with his wife and three other women who he calls his “spiritual spouses,” as well as their brood of 16 kids. Unlike the fundamentalist Mormon polygamists you see marrying 15-year-old girls dressed in Pilgrim attire, the Browns strive to come across as the typical modern American family. They dress in regular clothes, the women aren’t blatantly subservient to their “husband,” and they all hold ordinary jobs.

And unlike typical religious fundamentalists, they’re not challenging anti-polygamy statutes as a violation of their religious freedom. They’re opposing them on the same grounds gay activists overturned anti-sodomy laws in 2003:

Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.

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.

In Justice Antonin Scalia’s dissent from Lawrence v. Texas, he predicted the Supreme Court’s conclusion could eventually open the door to polygamous relationships. Regardless of whether you agree with the court’s ruling, this news indicates that Scalia’s “slippery slope” argument was pretty accurate, as least as it relates to polygamy.

What makes this even more interesting is that the mainstream Mormon Church (LDS) has been one of the staunchest and most vocal opponents to gay rights, and helped fund the successful Proposition 8 campaign against gay marriage in California (LDS opposes polygamy as well). To have some fringe Mormon fundamentalists profiting off the victories of the gay rights movement – and at the same time giving credence to the “slippery slope” argument that’s often used by critics of gay marriage – is understandably distressing for both the LDS church and gay marriage advocates.

And it’s easy to see where this path may lead. If the Brown’s are successful in their lawsuit, is it a leap to see how polygamous marriage could be next? As Charles Krauthammer wrote back in 2006:

After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one’s autonomous choices in love, then the first requirement — the number restriction (two and only two) — is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

Krauthammer is right. And while it may not be fair to equate polygamy with gay marriage (I believe polygamy is a lifestyle choice, while being gay is not), it seems likely polygamists can build a solid case on the basis of the legal victories of the gay rights movement. And this might be happening sooner than many people expected.



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