Privacy Without Politics: Why The Sister Wives Lawsuit Is About Privacy Not Polygamy

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”

  1. JT you say
    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.

    I am late to this but why do you say he is right by mistake, or that he is “dead wrong” otherwise? He does not assert that there is a spectrum, which is the part I think you object to; he asserts that there are other cases that need to be considered. In other words, if you want to erase this line, where would you redraw it? Don’t you always need to answer this question? And if you don’t want to “draw a line”, where is the closest line that you will run into?

    Children would remain a line. So would use of force or fraud or drugs except alcohol. Otherwise, consensual beastiality or living-will necrophelia?
    Also, “dead wrong” is a tired and toothless expression.
    You could try “quite wrong”, and go for the British vote.

    I suggest that governments get out of the marriage business altogether, and make people sign contracts with escape clauses or penalties for non-performance. There could be a standard one for lazy people.

  2. It is also interesting that from an article on orato.com “Are we naturally polygamous?” there is reference to the average size of a male vs. the average size of the female dictating the prevalence of polygamous unions.

    “The bigger the male, the larger the harem. In fact, if you graph mammals logarithmically, with the size ratio of males to females on one axis and the harem size on the other, it forms a straight line. We humans have a natural harem size of 1.2 women per man, so for every five men, one of them could be expected to have a harem of two women.”

    Could it be that politicians, business men, and preachers wouldn’t be falling from grace if they were allowed to take a second wife instead of trying to hide their natural inclination to have more than one wife?

  3. For Susan and others on the thread who believe that the Bible condemns polygamy (specifically polygyny), I would like to suggest that a more thorough study is in order. Fortunately, others have already done so. Take the time to read through what seems to be a comprehensive study of what the Bible, both Old and New Testament have to say, by a Christian author who doesn’t practice this lifestyle nor desires to practice it or see others practice it.
    http://bible.org/article/morality-biblical-polygyny

  4. “The Lost Boys” syndrome everyone is so afraid of is a fallacy when it comes to the open public practice of polygamy. The real problem is that even now there is a large pool of men that are not marriage material…I happen to know a number of them. What polygamy does is give women more men to chose from – every man is always available. Women benefit in that they are not left out if they don’t get one of the “good ones” at a young age…the men that are good husbands are still available. Women will not have to lower their standards and marry what is left in the remaining pool of available men. There are numerous unmarried women w/wo children that would like to have a husband, but unfortunately most of what they have to choose from turns their stomachs. They wait and dream and hope…but usually just grow old alone. Spend some time looking through dating sites if you have any doubts – you will see the men they have to choose from, and the plethora of available women that are looking for a decent husband. Why are all these women still available? Yup, the man they are looking for is already married.

    1) Polygamy gives women more and better men to pick from.
    2) If anything polygamy forces men to be better men to compete for the available women.
    3) Men that are not marriage material will complain regardless which system is in place; no woman would likely have them either way.

  5. “However, your statement above is not true and Jews and Christians do not see the same meanings in the Torah, there in lies some of the misunderstandings that have persisted for 2,000 years. Jews do not believe in the concept of “original sin”, nor do we believe that humans are innately sinful and must achieve grace through the blessings of God and/or Jesus.
    The concept of Messiah (Moshiach) found in the Torah speaks of a complete human being and the idea that the Messiah would be “The Son of God” is impossible to conceive from a Jewish perspective. Moses and David were Messiahs, meaning leaders of the Jewish people on the paths of righteousness, not even semi-divine beings. Jews for the most part don’t believe in an afterlife or heaven and hell. As I said above, the belief is that humans must heal this world and thus fulfill God’s purpose”

    Jack,

    It seems to me that Jesus divinity is the lynch-pin of Christian belief. This is directly counter to Jewish teaching and indeed unthinkable in Judaism. If that is not therefore a key example of the divide between Christianity and Judaism (which after all wrote the Torah), what is. Jews also do not believe in the concept of “original sin” and we did write Genesis. No conflation at all.

  6. One more point.

    In many ways, the john (customers of prostitutes) and the polygamee (a woman who marries a polygamist. Should she be called a jane?) are similar.

    Johns partner with prostitutes knowing that those women are likely to have another man’s children, and they are in part providing for those children, despite the male biological deterrent. Polygamees partner with polygamists knowing that the polygamists provide for other women and their children, despite the female biological deterrent.

  7. Mike Spindell,

    “Jewish people and Christians also agree on the books of the older testament.”

    Not to get all particular, but I don’t see where you actually treated Susan’s quote in your last post. Rather, you conflated a variety of teaching (which are not commonly or consistently held in Christianity) with those in Judaism. Try again?

  8. 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.

    Were these harms endemic to polygamy itself, or its illegalization?

    Remember that private, consensual sodomy was illegal in many states before the Supreme Court’s decision in Lawrence . Would pathologies emanating from sodomous unions, such as domestic violence and sexual abuse, be endemic to the unions themselves, or due to the fact that such unions were illegal and thus partners in such unions had no legal recourse?

  9. “Jewish people and Christians also agree on the books of the older testament.”

    Susan,

    I thank you for your good wishes and truly believe you are a good person spreading your “good news” to others. I’ll will not include you in the same category of some who would turn our country into a virtual theocracy.

    However, your statement above is not true and Jews and Christians do not see the same meanings in the Torah, there in lies some of the misunderstandings that have persisted for 2,000 years. Jews do not believe in the concept of “original sin”, nor do we believe that humans are innately sinful and must achieve grace through the blessings of God and/or Jesus.
    The concept of Messiah (Moshiach) found in the Torah speaks of a complete human being and the idea that the Messiah would be “The Son of God” is impossible to conceive from a Jewish perspective. Moses and David were Messiahs, meaning leaders of the Jewish people on the paths of righteousness, not even semi-divine beings. Jews for the most part don’t believe in an afterlife or heaven and hell. As I said above, the belief is that humans must heal this world and thus fulfill God’s purpose

    I could go on about the differences, but above are the most important ones.
    Neither you nor I can conclusively prove either belief and an argument on the merits would be wrongly destructive. I have no wish to try to convince you to change your faith, which in any event wouldn’t be possible. However,
    you have no way of convincing me that your faith is a path I should follow and as I’ve said I’m quite familiar with the Gospels and the Christian Bible.

    Why don’t we just agree to this difference of belief in good faith and wish each other future blessings in our lives and beyond? In the end if we are to be judged by God, our actions in this life will speak for themselves and the decisions will be out of our hands, in those of far greater power.

  10. Following is a direct quotation from the Minister of Justice and Attorney General of Saskatchewan Canada:

    “In Saskatchewan it is possible to enter into a spousal relationship without that relationship being solemnized under The Marriage Act, 1995. The Family Property Act provides framework to deal with situations where spousal relationships overlap in time. This most commonly occurs when two people married under The Marriage Act, 1997 separate without going through the formal divorce procedures for a number of years. The separated spouses may enter into new common law spousal relationships prior to the finalization of the divorce of the previous marriage. ”

    It should be noted that “separated spouses” may also live under the same roof in Canada.

    In Canada, the province of Saskatchewan has cleverly renamed polygamy “relationship overlap”, thereby avoiding the Federal government prohibition against polygamy. Although it is illegal to sanction or assist or recognize polygamous unions in Canada, the state of Saskatchewan does it with impunity. What difference visa vis the Browns?

    http://stoppolygamyincanada.wordpress.com/2011/01/05/the-problem-of-relationship-overlap-in-saskatchewan/

  11. I have no idea what religion has anything to do with deciding whether or not homosexuality is a “born that way” cause or if it is a developmental disorder–ie.psychopathology??

    a,levy

  12. Susan,

    Where in this country are you talking about Christians being marginalized…You are aware that there is a difference between Scriptural and Spiritual Truths? Jesus, the JEW, practiced from what I have been able to discern SPIRITUAL Truths….

    Susan,

    Spiritual Truths can be subjected to so many different interpretations….Just like folks Truths on abortion…..Is it a Subjective Interpretation or and Objective Interpretation….Can you tell what the difference is…

  13. Mike, Thank you for your post of July 22, 9:40 am. I’m glad you received a tremendous blessing last year. I thought you made good points in explaining how a majority Christian population can impose their cultural customs on minority groups. (It seems the tables have turned, however, and Christians are now being marginalized.) My concern, however, is not that society conform to a Christian worldview. (That will never happen because we now have a highly pluralistic society–see Os Guiness’ thoughts on that.) I am resigned to the fact that we live in a time similar to Augustine’s when he wrote the “City of God” as he watched the Roman Empire crumble around him. I believe we are seeing the decline of American society, maybe even Western Civilization. This country, this world will one day pass away. That is ok, because as Christians, our hope is in the Eternal City. “[For Abraham] was looking for the city which has foundations, whose architect and builder is God…but…they desire a better country, that is a heavenly one. Therefore God is not ashamed to be called their God, for He has prepared a city for them.” Hebrews 11:10, 16

    My desire is not to Christianize society but to sound the alarm that there is transcendent truth. People get upset about the idea of Christianity being rammed down their throats–well God doesn’t do that. However, people wrongly interpret His “silence” as tacit approval to their ways, as if He has evolved and doesn’t mete out justice anymore. The time for justice hasn’t arrived–He offers mercy to all who will take it. I urge you, Mike, to raise yourself above the spirit of the age, and consider Scriptural truth. (By the way, for 2,000 years the Church–Catholic, Protestant, Orthodox, have in the main agreed on the canon of the scripture–spurious books were rejected long ago–Jewish people and Christians also agree on the books of the older testament.)

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