Here is my column this morning in the New York Times. As is the case (even on my own paper, USA Today), the writer does not select the titles. In this case, “One Big, Happy Polygamous Family” seems a bit mocking. Thus, I have added my own title.
Since the Supreme Court’s 2003 decision in Lawrence v. Texas, Americans have enjoyed unprecedented freedom in their lifestyles and private relationships. The decision held that states could no longer use the criminal code for social engineering, dictating the most intimate decisions of citizens in their choice of partners and relations. But even as states have abandoned laws criminalizing homosexual and adulterous relations, they have continued to prosecute one group of consenting adults: polygamists.
Last week in Utah, one such family filed a challenge to the state’s criminal law. That family — a man, Kody Brown, and his four wives and 16 children — is the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” They are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone.
Utah and eight other states make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute plural families. And they’re not a small population: the number of fundamentalist Mormon or Christian polygamists alone has been estimated to be as high as 50,000. When Muslim as well as nonreligious plural families are considered, the real number is likely many times greater.
The case of the Browns, for whom I am lead counsel, is a clear example of unacceptable government intrusion. The family has not been accused of child abuse or other crime, in almost a year of being under criminal investigation. With such allegations stripped away, the only thing remaining is a family that does not look like those of other Utah citizens. The question is whether that is enough to declare them criminals.
While widely disliked, if not despised, polygamy is just one form among the many types of plural relationships in our society. It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and “cohabits” with those partners, it is considered a crime.
One might expect the civil liberties community to defend those cases as a natural extension of its campaign for greater privacy and personal choice. But too many have either been silent or outright hostile to demands from polygamists for the same protections provided to other groups under Lawrence.
The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. 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.
Others have opposed polygamy on the grounds that, while the Browns believe in the right of women to divorce or leave such unions, some polygamous families involve the abuse or domination of women. Of course, the government should prosecute abuse wherever it is found. But there is nothing uniquely abusive about consenting polygamous relationships. It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families.
Ultimately, the question is whether polygamy is allowed under the privacy principles articulated in Lawrence. The court did not state exclusions for unpopular relationships. Writing for the majority, Justice Anthony M. Kennedy said the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
The Browns are quite similar. They want to be allowed to create a loving family according to the values of their faith.
Civil libertarians should not be scared away by the arguments of people like Justice Scalia. We should fight for privacy as an inclusive concept, benefiting everyone in the same way. Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith.
Jonathan Turley is a law professor at George Washington University.
New York Times: July 20, 2011
82 thoughts on “Privacy Without Politics: Why The Sister Wives Lawsuit Is About Privacy Not Polygamy”
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Susan, I consulted the Church of the Flying Spaghetti Monster (FSM) and found the definitive Word, much updated from the comment written thousand years ago.
Source, complete with the obligatory photo of a grilled cheese sandwich bearing the likeness of the FSM:
http://www.venganza.org/2011/01/gay-marriage/
Jesus answered and said, “Have you not read that He who created them from the beginning made them male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh?’ So they are no longer two, but one flesh. What therefore God has joined together, let no man separate.”
Matthew 19: 4-6
Gene,
that is hilarious. I think Justice Scalia needs to wear a shorter robe while on the bench so that we can be assured he isn’t breaking the law!
Maybe not — Study said “healthy”; maybe that explains some things (or maybe it’s the 8% thing).
Raff,
To put Oro Lee’s comment in a legal context, I wonder if Scalia realizes he’s abandoning his 5th Amendment right against self-incrimination?
Rafflaw:
Recent study found that 92% of healthy males masturbate and that the other 8% are pathological liars
Berliner,
Thanks for that slight shift in the point of viewing … very interesting
Did I read Justice Scalia’s dissent correctly? Is he suggesting that Masturbation is illegal? Wow! There must be alot of felons out there just waiting to be jailed!
Isn’t there a federal law against polygamy?
Berliner, et al.,
this is an excellent point and goes to the heart of the matter. Suppose in the course of a couple having an “open” marriage, one or more of those extramarital friends is invited to move in. There is no bigamy, so then where does the State get the right to interfere? It is true that some States still outlaw adultery, but that is also an improper invasion of people’s privacy.
“there is just a right of privacy that protects all people so long as they do not harm others.”
Liberté, égalité, fraternité
Excellent column. This was an issue I had been content to not examine for myself, but you make an immediately compelling case.
Best wishes.
In Lawrence, the goverment’s sole justification for the statute criminalizing sodomy was that the legislature found this conduct to be “immoral.” The protection of “morals” is the most dubious aspect of the traditional construction of the police power–although typically this power was usd to prohibit conduct that took place in public places where it could interfere with the use and enjoyment of public property by other citizens. Only very rarely was the power to protect “morals” used to reach wholly private conduct.
A police power that reaches purely private “immoral” acts could always be asserted by a legislature whenever it decides to prohibit any form of conduct. By providing no judicially enforceble limit whatsoever on the police power of states, such a construction would violate the original meaning of the Fourteenth Amendment. Because it would permit legislatures to abridge the privileges or immunities of citizens and because it appears nowhere in the text of the Constitution, such a claim of power is illegitimate.
The Court in Lawrence found that this exercise of power to be improper. The actions banned neither harmed others nor took place in the public sphere where government must balance competing uses by different citizens. Justice Kennedy’s opinion protects liberty, rather than privacy, without any discussion of whether that liberty was “fundamental.” and then placed the burden on the government to justify its restriction.
So, if the Court follows Lawrence, the presumption of Liberty, not privacy, will be the deciding issue and whether the Brown’s conduct (setting themseles out as being married) is private or public will be the determining factor.
Berliner, MC, I agree….
One thing out of the article is as follows: Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong.
In how many cases has he twisted his own noose?
I agree MetroCowboy. What exactly is the government punishing with polygamy laws? Honest poly-relationships? Why do illicit ones get off the hook?
Now wait a second. I dont want to dismiss Berliners idea so fast,.as a non-lawyer but a regular on this blog I think that Berliner has a valid theory, actually I never gave it a thought before, but what Berliner says makes sense to me….
Yeah, well, my point wasn’t so much doubting the power of the state to legislate things, but more the practical workability.
For example imagine a classical playboy in the Hugh Hefner-mold, who marries one of his “bunnies,” but nevertheless continues to dally and live with his other “bunnies.” He opens the Utah City Mansion — will the cops arrest him?
Or imagine a married couple with severely mismatched sexual drives, the sexually disinterested wife agrees that he could have a lover. He finds a woman who is interested in booty calls but doesn’t want a relationship. They deal with this in the open and everyone involved consents. Illegal polygamists in Utah?
If you tie “illegal polygamy” not to legally binding marriages, but some kind of “marriage-like-behavior” you open up a *huge* can of worms.
Berliner
“How can that be illegal?”
Because the state says so, now run along, nothing to see here…
I’m a bit puzzled. Maybe my English (or Common Law legalese) isn’t good enough, but if they “are not asking for the state to recognize their marriages,” then they aren’t polygamists, are they?
They are just (from a purely legal standpoint, the persons involved may view it different from their personal/spiritual/religious standpoint) a married couple where the husband has additional lovers, and the wife consents. How can that be illegal?