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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Once again, Miles posts his sexist crap that believes that social science research should be the end all to be all for determining fundamental civil rights.
all of you are missing the most vital point in the story. and that point is GOVERNMENT IS ENSLAVING YOU FROM THINGS,PRACTICES, AND BELIEFS WHICH ARE OUR RIGHTS NOT PRIVILEGES.
1. driving a car is a right not a privilege yet the government has enslaved you to believe that you can NOT drive said car without a license…
2. you can NOT get married without said license…
3. you can NOT perform a job duty without a degree or certificate.
4. you can NOT own a house with a mortgage and taxes.
and at such time as the government feels you are no longer entitled to have any of those privileges they TAKE THEM AWAY FROM YOU. WITHOUT A LOOK BACKWARD.
why does who i have a personal relationship concern anyone but me and the other individual(s) involved?
who are you to tell me in no uncertain terms that ” so what your unhappy, unsatifisfied, and unfulfilled in your current marriage. you are to stay in that marriage and make the best of it. does the GOD who is genderless and benevolent not advocate for happiness,peace and joy in the world and as such in the very lives we live?
NO I AM NOT RELIGIOUS BUT I AM SPIRITUAL. and the higher power i believe in. wants everyone to enjoy the time we are given on earth. in the case of the browns. the wife is okay with her husband having other lovers. why doesnt the government do more to outlaw said religions rather then the teachings of those religions?
Susan, I deal with facts, and for the past forty years with the rules of evidence. Your “five hundred” witnesses never had their testimony tested by cross examination. If you want them to be credible, produce them for depositions. Oh wait. You can’t. They have been dead for twenty centuries. So we have no credible witnesses, and no other evidence except tales that were not written down until a century or two after the fact, from stories handed down by storytellers.
What I believe or do not believe is of no matter, and certainly no business of anyone but me. Where you go off the tracks is when you try to impose your belief system on others, as Mike Spindell pointed out so eloquently above.
Susan, believe anything you want. Just do not try to sell it to me.
Mike S.,
That is why I admire your posts…You are pragmatic about this…of course we all pull it out of our asses at one point or time another in our lives…FYI, the Catholics did not get branded as such until 100’s of years after Jesus death…What a lot of fundie Baptists do not understand is that, the Baptist were around long before before the reformations….the pope did not engender himself well as they were tired of rulers and set off pretty much like the mormans but for different reasons….
Though anti-papists, they are not, in the technical and/or historical sense of the word, “Protestants,” because they never protested against anyone….They do now protest….but only when convient….
“Won’t you tell us how Soren Kierkegaard would have reacted, in what I consider an apparent systematic Christian failure to adhere to the teaching of from what I have read posed a real or imagined political threat to the house of David”
AY,
I’ve never read Kierkegaard, nor felt the need to. Everything I learned about philosophy I learned in Kindergarten. I’ve written here years before a quote I once heard which is: All of human philosophy can be summed up by the thoughts running through an average person’s mind as they take a long Saturday night bath. That doesn’t mean I’m anti-philosophy, or that I don’t think highly of those highly conversant with it. I have great respect for any learning people do beyond my ken. I respect all knowledge greatly and admire those that took the time to acquire it.
I’m more of a cut the Gordion Knot with a sword type of guy. As my HS Yearbook said of me “Mike thinks that life is just a snap of his fingers”. I was in Gestalt Psychotherapy for 10 years as a patient, I let my “gut” do my thinking for me, or as some would think of me, pull it out of my ass. I’m also a devotee of the existentialism of the “Beats,” which translates well into Gestalt Philosophy.
As for a threat to the house of David, I think it’s a shame that Christians don’t understand that Jesus was a Jew until the day he died. Jews don’t believe in original sin, are not big on an afterlife and believe in healing the world rather than waiting for Armageddon. Jesus said nothing of the final days as in Revelations. That was written by a Christian Monk around 150 to 250 CE, who was really metaphorically talking about the Romans and had a rather vivid, bloody imagination. Paul never knew Jesus and could not have been a Pharisee if he was working for the high Priest. And so it goes.
Hey Mike S.,
Won’t you tell us how Soren Kierkegaard would have reacted, in what I consider an apparent systematic Christian failure to adhere to the teaching of from what I have read posed a real or imagined political threat to the house of David…
Miles,
I absolve you of any need to practice polygamy. Stop trying to impose your views on others. I’ve read it all and to me not only doesn’t it wash, but it is endlessly repetitive.
Les,
Didn’t see your comment when I wrote mine. Yours is better.
“Jesus answered and said”
Susan,
Jesus didn’t believe in divorce. Should we ban it? I have no problem with you believing what you do. Where I do have a problem is when believers try to ram their beliefs onto others who don’t believe as they do. How do you feel about that? I’m not a Christian, nor will I ever be. As for eternal damnation I’ll take my chances. Neither do I believe we are all sinners and I do believe if God exists she/he wouldn’t put us into that position. God would
be far too wise and too loving.
Anyway, those are my beliefs and I wouldn’t think of trying to persuade you to follow them. However, as you know many who call themselves followers of Jesus do want to impose their beliefs on me and the society we live in. Are you one of them?
Susan, I don’t know. Is it truly foolish to not want to be judged by another person’s interpretation of the metaphysical? This is where religious belief crosses a line for me.
Here’s what I mean. I’m 100% positive that you have a personal relationship with Jesus Christ. I’m 100% positive that Jesus Christ lives in your heart and helps you find joy in life, while guiding you through difficult times and difficult decisions. And that’s a beautiful thing.
I believe those things about you and your relationship with Jesus, despite the fact that I’m not convinced by the objective, physical evidence that Jesus Christ ever even existed as a person in history. But it doesn’t matter, because the power of belief has manifested itself in so many millions of people, that for all practical purposes, Jesus Christ might as well have existed.
And if you say that He lives in your heart, and He guides you, who am I to say that’s not true? Of course, He does, because you (and no one else) would know. That’s between you and Jesus.
But there are billions of people who have chosen to live good, kind, honest lives without Christ. They deserve the same respect that you do, in that they have found a path that leads them to good deeds (or at least away from evil ones).
So, as long as your relationship with Christ guides you internally to live a good life, being honest and kind to others, that’s lovely. But when you imply that good people aren’t quite good enough unless they’re being good for the same reasons that you’re being good, or that your God demands their worship and eternal servitude, then I think you’re doing something wrong.
Most Christians who proselytize do so because they don’t want their fellow beings to spend an eternity in Hell, which is, in a way, thoughtful. But I honestly believe that any God who would send good people to Hell for not believing in Him, is not a God worth worshiping.
Les, your comment reminds me of C.S. Lewis’ book, “God in the Dock.” We’d rather not see ourselves before God in judgement, but rather, we insist on judging God. Isn’t that foolish?
Susan,
we are sinners in rebellion against God, God has made a way of escaping judgement, it is through His son Jesus Christ. That is good news!
There are billions who would say that the notion they will spend an eternity in hell for not worshiping the right God, is not good news.
Otteray Scribe, do you believe Jesus Christ was an historical person? Then what do you do with a historical writing that says “Christ died for our sins…he was buried…He was raised…after that He appeared to more than five hundred brethren at one time, most of whom remain until now, but some have fallen asleep.” I Corinthians 15. Five hundred people saw Jesus after he was crucified! What do you say to the eyewitness accounts and historical evidence?
(reposting with links removed because moderation doesn’t like that.)
I won’t get involved in another long argument here, but the ethical flaw in Mr. Turley’s reasoning should be clear enough by now. Polygamy creates harms that extend outside of the happy polygamous family. These have been amply described by social scientists.
See the Amicus brief submitted by Joseph Henrich in a Canadian British Columbia case and posted at the vancouver Sun. (link deleted.)
These harms have been documented in the lives of young men who are driven out of polygamous communities. (Google search New York Times, Lost Boys). Look also for the Sons of Perdition movie about the lost boys of the FLDS church.
It does not require a vivid imagination to understand the disastrous social implications of legitimizing and legalizing polygamy in America. The sons of Colorado City will be just the first wave of dispossessed young men permanently shut up of marriage and reproductive opportunity by the policies Mr. Turley is advancing.
A society awash in great numbers of men permanently shut out of marriage and reproduction is more violent, more unstable and less equal.
If you look at the growing extremes of wealth concentration in America today, it is easy to imagine how, 20 years down the line, wealthy men not in Utah but on Wall Street and in corporate America could comfortably accumulate large numbers of wives while upper middle class men could aspire to two or three wives. Just imagine the social disaster that this would portend for those men frozen out of resources and marriage opportunity, and for the society in which they struggled.
Mr. Turley’s argument does not even include the reasonable Islamic limit of three wives, and indeed, how could it? Once you argue that this is a free association issue, how could any limit on the number of wives be justified for any reason, so long as relationships were consensual?
The fact is that the polygamy issue is the very opposite of the gay marriage issue. Gay marriage enables more people than ever before to form marriage and family raising partnerships. Polygamy shuts people (men, in reality) out of marriages. It reduces the number of marriages.
Monogamy is an ancient Western pact, in effect, among men, agreeing that in matters of marriage and reproduction there shall be no undue concentration of “wealth” (in wives). Monogamy is a statement of equality among men in reproductive opportunity. It is a foundation of an egalitarian society, and possibly even the foundation of modern democracy. The fact that it also has benefits for women is an additional plus, insofar as equality between men may well be linked to the opportunities for true equality between women and men.
See Andrew Brown’s comments in the guardian (link deleted.)
There is something obscene in taking the the Constitution and using it to defend relationships that undermine the very basis of political equality which was assumed in the Declaration of Independence. We once held these truths to be self evident, that all men are created equal, endowed with certain rights, among them life, liberty and the pursuit of happiness… but not according to Turley any reasonable prospect of marriage and children. The state has no role to play, according to Turley, in enabling men a reasonable shot at marriage and reproduction.
Indeed courts have held (I believe) that the State does not have an obligation to enable a prisoner to reproduce. Perhaps Turley is making a similar argument with regard to the cast away young men of a polygamist society. They will be in effect prisoners of a society that endorses polygamy, one more growing section of an underclass shut out of economic opportunity and reproductive opportunity. I would argue that in fact no stable social order is possible without giving all men at least a fair chance in love.
The community and the state have a compelling interest in all sorts of family formation and activity, blocking incestuous marriages, blocking child abuse, intervening in spousal abuse. These are all harms internal to a marriage, but they are not the only marriage issues that the state has an interest in. The community and state also have an interest in the form of the institution of marriage itself, and its effect on the society as a whole. Turley’s focus on consent and freedom of association doesn’t even allow that the State may place any limits at all on the number of spouses. It’s a vision unmoored not only from Western monogamy but from limited Islamic polygamy.
Yes, it should be noted that apparently Turley is not defending “plural marriage” per se, but only the right to be left alone, and the state’s non-involvement in matters of personal status. That’s a technical argument, but doesn’t affect the policy issue. The next step after leaving polygamist relationships alone is for polygamist families to move to have their marriages recognized in law. Unless we are prepared with the social policy arguments against that recognition, legalized polygamy will be the next logical step. Turley’s arguments are laying the groundwork for making that argument. In any case, the harms of allowing polygamous family formation are independent of the legal status of polygamous marriages, as witnessed by the articles about the cast away and driven out young men of the FLDS described above.
It’s no surprise that a society that is throwing away all shame and boundaries in the area of wealth and inequality, is also growing more open to throwing away the most ancient principle of equality – the Western innovation of monogamy.
It will be up to social progressives to fight this effort in the name of equality and human rights, and against claims that religion, privacy and free association trump the fundamental principles of equality.
Those principles of marriage equality were so embedded in our society and in the assumptions of the authors’ of the Declaration that they did not feel the need to even state them. Perhaps their universal but unstated nature is one reason they are relatively easy to attack now, as if they were some kind of churchy moralistic atavism, and not an achievement of pre-enlightenment civilization worth preserving.
Welcome to a brave new world of inequality.
Robert Heinlein speaking in the voice of his fictional character, Lazarus Long. Some of the more pithy comments regarding religion are below:
Whatever.
Otteray Scribe, I realize you are suggesting that those are mere words of men, but God has spoken and communicated with us (there are good, intelligent reasons for believing so). He has given us good news. Here is another sample: “but He [Christ], having offered one sacrifice for sins for all time, sat down at the right hand of God…for by one offering He has perfected for all time those who are sanctified.” Hebrews 10.
Otteray Scribe, we are all in the same boat: we are sinners in rebellion against God, God has made a way of escaping judgement, it is through His son Jesus Christ. That is good news!
Read Charles Krauthammers fine article about this called Pandora and Polygamy in the Jewish World review,March 2006.
It’s hard to argue with this.
I could not find a definitive statement on the FSM page regarding plural marriage, but from what we know of the FSM, he would be perfectly happy with a blending of Fettuccine, Fettuccine, Fettuccine and Fettuccine. May they live happily together in Alfredo forever. fAmen.
Typo correction: “…written two thousand years ago…”