Commentary Magazine


Topic: Big Love

‘Big Love’ Vindicated: Polygamy and Privacy

Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

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Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

It should be specified that the federal court decision doesn’t get us quite there yet. Utah’s polygamy law is still on the books, but hanging by a thread. As the Salt Lake Tribune explained:

Utah’s bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words “marry” and “purports to marry,” meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licenses.

But by saying that the Utah law violated the plaintiffs’ right to free exercise of religion guaranteed by the First Amendment as well as infringing on their right to privacy—the legal principle that served to take down state laws prohibiting contraception and homosexuality—Waddoups has merely taken the next logical step toward legalized polygamy that will, sooner or later, allow polygamists the same rights as other married people.

There are reasons to worry about this. As Stanley Kurtz wrote in the Weekly Standard back in 2006, there is an inherent contradiction between the patriarchal model of polygamy where the husband has authority over his various wives and democracy. Kurtz argued that the 1879 U.S. Supreme Court ruling in Reynolds v. United States that supported the right of states to restrict polygamy not only protected traditional marriage but democratic norms. Prior to the Mormon Church’s renunciation of polygamy, Utah was for all intents and purposes a theocracy. In a society where husbands rule over families like ancient Eastern potentates, freedom isn’t likely to thrive.

According to Kurtz:

Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds in 1878 understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.

When Kurtz wrote his piece, the debate over polygamy was just starting to bubble up in no small part because of the premiere of the HBO series Big Love which ran from 2006 to 2011. The show contrasted the “good polygamy” of its protagonist Bill Hendrickson, an upwardly mobile Viagra-popping entrepreneur who just happened to have three highly attractive wives with the “bad polygamy” of the cult living in a remote compound dominated by an evil “prophet” and his son, a repressed homosexual. If one ignores the religious dimensions of the argument between the LDS church and fundamentalist Mormons that was part of the subtext, the series presented the choice of plural marriage as one that ought to be encompassed by the promise of American liberty.

Indeed, that’s the point made by Georgetown University law professor Jonathan Turley, who represented the plaintiffs in the Utah case. As the New York Times reports, Turley believes that the Utah case is about “privacy rather than polygamy” but also noted:

Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. 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.

In 2006, Kurtz cited Turley’s writings in the wake of Lawrence as a sign that the country was heading toward “a final slide down the slippery slope.” He was right about that, at least as far as gay marriage and polygamy were concerned. But it remains to be seen whether his worries about the future of democracy are similarly prescient. Even in rural Utah, polygamy is something practiced by only a small minority. It is difficult to make the case that either the fictional Hendricksons or the reality stars of Sister Wives present much of a challenge to American democracy. Nor, as Turley rightly argued in court, is there any reason to cite abuses, especially of minors, by cults as unique to polygamy since incest, mistreatment of children, and welfare fraud can also be found in sectors of society that purport to support monogamy.

But liberals like Turley still refuse to acknowledge that Justice Antonin Scalia was right when he predicted in his dissent in Lawrence that the demise of sodomy laws would lead to the legalization of some things that advocates of gay rights wanted no part of. If we have “evolved” to the point where marriage by any two consenting adults of either sex should be recognized by the state, then there isn’t any logical or legal rationale for prohibiting the same privilege for any number of citizens cohabiting to claim the same right.

All that is needed is a little candor on this issue on the part of critics of the dwindling band of opponents of gay marriage. The floodgates have been opened, and if that makes some of us uncomfortable, especially those who understandably view polygamy as synonymous with the exploitation of women, then we should be honest enough to acknowledge that it is merely part of the price that had to be paid to give gays the same right to marry afforded to other citizens.

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On DOMA, SCOTUS Follows the Culture

Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

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Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

For example, even today as much of America celebrates the newly enshrined concept of marriage equality, few seem to have any problem prohibiting two or three women from marrying the same man and in treating such “Big Love” marriages as being beyond the pale of the law’s protection. Under the logic of the DOMA decision, that ought not to be true. But even to ask the advocates of gay marriage if their victory should extend to polygamous spouses would probably be viewed as a provocation rather than a reasonable question. Perhaps that will no longer be true in a generation, but unless the entertainment industry is prepared to start including more “plural marriage” characters in its situation comedies, I wouldn’t bet on it.

The defenders of traditional marriage can console themselves that the majority in the DOMA case did not overreach in the manner of the authors of the Roe v. Wade decision and have not attempted to mandate gay marriage throughout the country. They have wisely left the decision about whether to legalize such unions to the states. Doing so reaffirms the basic concepts of federalism and allows those states that refuse to accept gay marriage to go on doing so. That may change if Hillary Clinton is elected president in 2016 and is able to replace some of the court’s conservatives with liberals. At that point the court may strike down all state laws or constitutional amendments that do not conform to this standard, which is something they refused to do in the California Proposition 8 case today where they merely said the plaintiffs had no standing to defend the statute.

But the point here is that gay marriage advocates won the legal war because they first won the culture war. Those conservatives who hope to avoid the same outcome on other issues would do well to remember that. 

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Does South Africa’s “Big Love” President Have a Lesson for Liberal America?

You have to hand it to the Republic of South Africa. That continent’s richest country may have a lot of problems, but there’s no obsessing about the sexual escapades of its political leaders in the way we prudish Americans obsess about ours. South Africans appear to believe in marriage and lots of it. In fact, in a story that didn’t make it into the pages of most American newspapers on Monday, Britain’s Guardian reports that South African President Jacob Zuma reaped the congratulations of his countrymen by marrying his third wife today in a traditional Zulu ceremony. The only hitch in the proceedings occurred when the 67-year-old president slipped and fell backward while performing a traditional solo dance throughout which he wore animal pelts and white tennis shoes. He is believed to be uninjured.

According to a different report about the event from the AP, South Africa’s new first (or should I say third) lady, 38-year-old Tobeka Madiba, has actually already been married to the president under civil law (he paid her family the bride price back in 2007) and has given birth to three of Zuma’s 19 children.

But three isn’t enough for the popular Zuma, who revels in his reputation as a representative of Zulu traditionalism. The Guardian says he is planning on marrying a fourth woman, Gloria Bongi Ngema, who has also already given birth to one of his children. His other wives are Sizakele Khumalo, whom he married in 1973, and Nompumelelo Ntuli, who became his wife in 2008. Another marriage ended in divorce (though that wife is now South Africa’s home-affairs minister). Yet another wife killed herself reportedly after describing her marriage as “24 years of hell.”

For those wondering how South African women feel toward a polygamist president, a better question would be to wonder how they feel toward a president who was tried for rape in 2006. Zuma was acquitted of raping the daughter of a family friend. His defense consisted of stating that he believed that the woman’s decision to see him alone was an invitation to consensual intercourse. The following year, the victim was granted asylum in the Netherlands.

While all this may seem either revolting or ridiculous to Western sensibilities, it does raise the question of whether or not polygamy is compatible with genuine democracy. Back in 2006, Stanley Kurtz penned a fascinating piece in the Weekly Standard, which insisted: “Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.”

However, as Kurtz noted then, in the era we live in, a growing number of Americans, including the majority of some courts and legislatures, appear to believe that it is not only permissible but also mandatory to redefine our traditional concepts of marriage to allow gay unions. But it isn’t clear what legal — as opposed to religious — principle would mandate that same-sex marriage be labeled kosher while plural marriage still be treated as beyond the pale.

As HBO’s “Big Love” series about Mormon fundamentalists gears up for the premiere of its fourth season this week, Zuma’s shenanigans provide a version of reality TV that makes Bill Hendrickson, the show’s embattled home-improvement entrepreneur with three very different women to deal with at home, look pretty tame. But as Kurtz wrote in 2006, the impetus for the premise of the series may come from a liberal Hollywood mindset that seeks “to highlight the analogy between same-sex unions and polygamy.” The point is, if your libertarian instincts tell you that it’s none of your business if two men or two women marry each other, then why is it the state’s business if one man marries two, three, or four women, so long as they are all consenting adults? Kurtz’s answer, dictated in no small measure by his concern about the spread of polygamy in the West as a result of tolerance for the Muslim practice of plural marriage, was that “stable, monogamous, parenthood-focused marriage” is part of the foundation of a society in which freedom can thrive. There is little question that, as Zuma’s preeminence in South Africa proves, polygamy can lead to a society ruled by men, not laws. That’s a sobering thought that ought to worry even the most ardent libertarians on such issues.

You have to hand it to the Republic of South Africa. That continent’s richest country may have a lot of problems, but there’s no obsessing about the sexual escapades of its political leaders in the way we prudish Americans obsess about ours. South Africans appear to believe in marriage and lots of it. In fact, in a story that didn’t make it into the pages of most American newspapers on Monday, Britain’s Guardian reports that South African President Jacob Zuma reaped the congratulations of his countrymen by marrying his third wife today in a traditional Zulu ceremony. The only hitch in the proceedings occurred when the 67-year-old president slipped and fell backward while performing a traditional solo dance throughout which he wore animal pelts and white tennis shoes. He is believed to be uninjured.

According to a different report about the event from the AP, South Africa’s new first (or should I say third) lady, 38-year-old Tobeka Madiba, has actually already been married to the president under civil law (he paid her family the bride price back in 2007) and has given birth to three of Zuma’s 19 children.

But three isn’t enough for the popular Zuma, who revels in his reputation as a representative of Zulu traditionalism. The Guardian says he is planning on marrying a fourth woman, Gloria Bongi Ngema, who has also already given birth to one of his children. His other wives are Sizakele Khumalo, whom he married in 1973, and Nompumelelo Ntuli, who became his wife in 2008. Another marriage ended in divorce (though that wife is now South Africa’s home-affairs minister). Yet another wife killed herself reportedly after describing her marriage as “24 years of hell.”

For those wondering how South African women feel toward a polygamist president, a better question would be to wonder how they feel toward a president who was tried for rape in 2006. Zuma was acquitted of raping the daughter of a family friend. His defense consisted of stating that he believed that the woman’s decision to see him alone was an invitation to consensual intercourse. The following year, the victim was granted asylum in the Netherlands.

While all this may seem either revolting or ridiculous to Western sensibilities, it does raise the question of whether or not polygamy is compatible with genuine democracy. Back in 2006, Stanley Kurtz penned a fascinating piece in the Weekly Standard, which insisted: “Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.”

However, as Kurtz noted then, in the era we live in, a growing number of Americans, including the majority of some courts and legislatures, appear to believe that it is not only permissible but also mandatory to redefine our traditional concepts of marriage to allow gay unions. But it isn’t clear what legal — as opposed to religious — principle would mandate that same-sex marriage be labeled kosher while plural marriage still be treated as beyond the pale.

As HBO’s “Big Love” series about Mormon fundamentalists gears up for the premiere of its fourth season this week, Zuma’s shenanigans provide a version of reality TV that makes Bill Hendrickson, the show’s embattled home-improvement entrepreneur with three very different women to deal with at home, look pretty tame. But as Kurtz wrote in 2006, the impetus for the premise of the series may come from a liberal Hollywood mindset that seeks “to highlight the analogy between same-sex unions and polygamy.” The point is, if your libertarian instincts tell you that it’s none of your business if two men or two women marry each other, then why is it the state’s business if one man marries two, three, or four women, so long as they are all consenting adults? Kurtz’s answer, dictated in no small measure by his concern about the spread of polygamy in the West as a result of tolerance for the Muslim practice of plural marriage, was that “stable, monogamous, parenthood-focused marriage” is part of the foundation of a society in which freedom can thrive. There is little question that, as Zuma’s preeminence in South Africa proves, polygamy can lead to a society ruled by men, not laws. That’s a sobering thought that ought to worry even the most ardent libertarians on such issues.

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