Lessons from Roe in the Brown Polygamy Case

Submitted by Mark Esposito, Guest Blogger

Rarely do I disagree with our host, but on the Brown polygamy case we do. And not so much on the merits of the case as on the timing of it. I’ve said before I would decriminalize the practice of polygamy and regulate it much as we do other human relationships where there exists real risk of overreaching or exploitation. I think this approach serves the interests of the important right of privacy and protects the vulnerable.

Where we differ is on the timing of the claim. Professor Turley seeks to make the issue about privacy and proceeds now to protect that right. We all know that we live in the present and cannot always wait for the perfect time. However, I think in seeking societal change, when the case is argued might be as important as what is argued. To a large degree Professor’s Turley’s haste is correct. The Brown case involves pressing issues of great importance to the litigants. Also, as been pointed out before, there are many forms of psuedo-polygamy which both the law and society ignores–serial philandering and open marriages, to name just two — and which can only be described as tacit approval of their non-criminality. I think we ignore them based upon crude notions of “it’s none of our business,” or “if it works for them, that’s ok.” However, where this rationale breaks down is when we are asked to put a societal imprimatur on a practice that is overwhelmingly disapproved.

We tolerate quite well many activities we find distasteful. Hate speech is the most obvious one, but there are many others from ill-designed and inefficient social welfare policies to taxing policies that are regressive. We do so because we see a higher purpose in the toleration and we see them as necessary evils to the fulfilment  of more important goals such as free speech, providing minimum financial support to the poor, or job creation. We are not however called upon to endorse hate, or waste, or lining the pockets of the rich. Government doesn’t ask us to do that.

However, in this case the court as the interpreter of law and hence social policy, will be called upon to place an official stamp of approval on the concept of multiple adult sexual partners within a family unit. I think very few of us would contend that such an approval would be benign. Aside from the practice’s most famous proponents being regarded as little more than a cult by a many Americans, the major obstacle is the affront to prevailing notions of morality. Obviously, this consideration cannot stand front and center to the court, but it is not unimportant. Courts have occasionally reversed years of institutionally mandated moral sentiments with cases like Roe v. Wade.  However, while most religious institutions were (and are) adamantly opposed to legalized abortions, the public has never been as uncompromisingly against the practice as has been portrayed.

A New York Times poll in 2007 found abortion sentiments substantially similar to attitudes held 1989 when the questions were first asked:

Since the question was first asked in 1989, less than a quarter of those surveyed have called for an end to abortion. But the split between those who want it without restriction ,and those who would like to see more restrictions, has vacillated throughout the years. Currently, 41 percent of those surveyed called for more stringent limits, 34 percent said it should be available without restriction, and 23 percent preferred that it not be permitted at all.

Even in 1973, when Roe was decided, Americans acceptance of legalized abortions had risen over the preceding eight years from 41% to 68% under six specified circumstances. (Abortion Attitudes: 1965 – 1980, Granberg, D, Family Planning Perspectives). Justices deciding the Roe case thus were armed with an established public sentiment overwhelmingly in favor of legalized abortion in certain circumstances.

How then does polygamy fair in the court of public opinion. A 2009 US News and World Report poll found an overwhelming 91% of Americans found polygamy morally wrong. While it is true that more (92%) found infidelity within a monogamous relationship more repugnant, the point seems well-established that the public is not yet interested in considering this lifestyle as “normal.” Recent polls about Mitt Romney make the same point in reference to his religion:

When asked to describe their impression of the Mormon religion in a single word, somewhat more (27%) offer a negative word than a positive one (23%); 19% give a neutral descriptor. The most common negative word expressed is “polygamy,” including “bigamy” or some other reference to plural marriage
(Pew Poll, 2007).

How then should one frame the issue of the case? Professor Turley does so in terms of privacy, which has a popular appeal. A 2006 Zogby poll on the issue made these expected findings:

The survey of 13,456 likely voters finds Americans largely unwilling to surrender civil liberties – even if it’s to prevent terrorists from carrying out attacks – a significant departure from their views in the months immediately after the 9/11 terror attacks. Even routine security measures, like random searches of bags, purses, and other packages, were opposed by half (50%) of respondents in the survey. Other measures fared worse. Just 37% would be willing to allow random searches of their cars – a dramatic drop in support compared to a survey conducted by Zogby International in December, 2001. Support for regular roadblocks to facilitate such searches was even lower, with just one-third of voters (33%) in favor. Four years ago, 59% backed such measures.

My own feeling however is that this is a strategy fraught with problems. Is the public to accept that this particularly controversial expression of privacy is divorced from or more compelling than prevailing notions of morality, especially when that expression is so diametrically opposed by the public? Do judges’ attitudes on the propriety of the practice, differ markedly from the public’s at large?  Will judges overturn existing law based on notions of privacy when its expression is so inimical to the public’s will?

My own personal feeling is that judges will not. My experience is that despite popular belief of rampant judicial activism, most judges tend to avoid being out front in matters of social consciousness. Rather, they prefer to defer to the legislatures to allow any groundswell of popular support to filter into the political process. As the polling history of Roe shows, some laws are ripe for change in the minds of both judges and the public. And some, in the words of Jefferson (as he considered changing the insidious but long-standing Virginia prohibition on slaves testifying against whites), involve so radical a proposition that “ the public mind would not yet bear the proposition.”

This does not mean that the fight is not worth making, nor that a streak of enlightenment might not shine on the jurists as they deliberate the cause. Nor does it mean that courts should be guided by currently existing prejudices in the face of genuine constitutional extensions of rights. It simply means that some judges do try to read the minds of the public even as they divine the law. If Roe is any guide, Brown may be more bellwether than instrument of social change.

~Mark Esposito, Guest Blogger

85 thoughts on “Lessons from Roe in the Brown Polygamy Case”

  1. “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.

  2. Michael,

    Frankly, you probably have more in common with prostitutes/johns than does a polygamist. Disagree as I might with the life style, they are certainly committed. So before going on to make bizarre and intellectually bankrupt comparisons (that the John is “providing” for the recently conceived child by paying its mother for sex although only to be ditched and forgotten…are you kidding?), make a call to Goodwin and see if you can round-up a good Hitler comparison.

  3. 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.

  4. Mespo,

    “Let ‘em eat monogamy! Your predictive powers about my predispositions, like everything else about your commentary, are spot on — of course.”

    Apart your continued obsession with red herrings, I am certainly happy that we can agree.

    “We’ll just muddle along [garble, garble] other shores rightfully unwilling to share their omniscience which they possess in such abundance.”

    Did you ask?

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