Commentary Magazine


Topic: polygamy

‘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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First Democrat Assault on Romney’s Faith

The White House has said it would treat Mitt Romney’s religion as off-limits for attacks, but apparently that message hasn’t filtered down to everyone in the Democratic Party. In an article published in the Daily Beast Thursday night, Montana Governor Brian Schweitzer was quoted letting loose with a slam at Romney’s Mormon origins while answering a question about GOP outreach to Hispanics:

While discussing swing states, Schweitzer said Romney would have a “tall order to position Hispanics to vote for him,” and I replied that was mildly ironic since Mitt’s father was born in Mexico, giving the clan a nominal claim to being Hispanic. Schweitzer replied that it is “kinda ironic given that his family came from a polygamy commune in Mexico, but then he’d have to talk about his family coming from a polygamy commune in Mexico, given the gender discrepancy.” Women, he said, are “not great fans of polygamy, 86 percent were not great fans of polygamy. I am not alleging by any stretch that Romney is a polygamist and approves of [the] polygamy lifestyle, but his father was born into [a] polygamy commune in Mexico.”

As the Beast pointed out, both Romney’s parents and grandparents were monogamous, so tying him to the polygamous practices of his great-grandparents is a nasty piece of business and no more relevant to the 2012 campaign than an investigation into the marital practices of President Obama’s ancestors in Kenya. Though Democrats will downplay Schweitzer as a nobody who ought not to be linked to Obama, imagine if a Republican governor of an equally obscure state were to make comments about Obama’s family tree. The furor would be tremendous, and the incident would be treated in the mainstream media as emblematic of GOP racism. Any effort to downplay rather than to vigorously condemn Schweitzer’s remarks are a sure sign that Democrats hope to profit from such slurs. So while you won’t hear any slurs against Mormons from the president or even his top attack dog Vice President Biden, there will be plenty of Democratic surrogates who will be working overtime this year to foul the political waters with slurs against Mormons.

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The White House has said it would treat Mitt Romney’s religion as off-limits for attacks, but apparently that message hasn’t filtered down to everyone in the Democratic Party. In an article published in the Daily Beast Thursday night, Montana Governor Brian Schweitzer was quoted letting loose with a slam at Romney’s Mormon origins while answering a question about GOP outreach to Hispanics:

While discussing swing states, Schweitzer said Romney would have a “tall order to position Hispanics to vote for him,” and I replied that was mildly ironic since Mitt’s father was born in Mexico, giving the clan a nominal claim to being Hispanic. Schweitzer replied that it is “kinda ironic given that his family came from a polygamy commune in Mexico, but then he’d have to talk about his family coming from a polygamy commune in Mexico, given the gender discrepancy.” Women, he said, are “not great fans of polygamy, 86 percent were not great fans of polygamy. I am not alleging by any stretch that Romney is a polygamist and approves of [the] polygamy lifestyle, but his father was born into [a] polygamy commune in Mexico.”

As the Beast pointed out, both Romney’s parents and grandparents were monogamous, so tying him to the polygamous practices of his great-grandparents is a nasty piece of business and no more relevant to the 2012 campaign than an investigation into the marital practices of President Obama’s ancestors in Kenya. Though Democrats will downplay Schweitzer as a nobody who ought not to be linked to Obama, imagine if a Republican governor of an equally obscure state were to make comments about Obama’s family tree. The furor would be tremendous, and the incident would be treated in the mainstream media as emblematic of GOP racism. Any effort to downplay rather than to vigorously condemn Schweitzer’s remarks are a sure sign that Democrats hope to profit from such slurs. So while you won’t hear any slurs against Mormons from the president or even his top attack dog Vice President Biden, there will be plenty of Democratic surrogates who will be working overtime this year to foul the political waters with slurs against Mormons.

The truth is, most Americans know little about Romney’s faith, so it is possible that many actually do associate the mainstream Church Jesus Christ of Latter-day Saints to which he belongs with popular culture attacks on his faith that often center on the tiny minority of those who do practice polygamy as in the HBO show “Big Love” or reality shows that also feature such marginal practices. The LDS Church forbade polygamy 122 years ago.

While it’s not clear just how much success these off-line attempts to delegitimize Romney will have, there’s little question that a strategy to brand Romney as “weird” has been a talking point inside some high Democratic circles since last summer. The trick will be to allow President Obama, whose supporters treated all efforts to vet his associations with radical figures as racism four years ago, to stay above the fray while others throw mud at Romney.

However, the Schweitzer comment ought to be the moment when decent people on both sides of the aisle come forward to demand that the Democrats cease trying to incite prejudice against Mormons. Religious freedom is the foundation of American democracy. The incitement of religious prejudice, no matter how coyly phrased, must be treated as sternly and with as much heat as any effort to stir up racial hatred. It is vital that this be stopped now before it takes hold and becomes integral to the discussion about the election. If it does, all Americans will be diminished.

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