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. Miles,

    BTW: The freedom of association issue was an aside. If you read my comment it deals specifically with the complaint, and more specifically the first cause of action.

  2. Maggie Simi,

    We could discuss what we think the Rule 12(b) motion to dismiss will contain, or in lieu of that, what the Rule 56 motion for summary judgment.

    Those usually cut to the chase, if ya know what it mean.

    Whatta ya think?

  3. Miles,

    BTW, I only mentioned freedom of association in the context where there was one marriage license but additional members of the plural marriage, AND sexual relations were only being done between the man and woman who had the license.

    It may very well be that freedom of intimate association would apply even if sexual relations happened between all of the women and the only man.

    But when discussing legal issues it is best to stick to the case at hand. 😉

  4. BTW, In the original thread wherein Professor Turley announced the case, I also cited Lawrence v Texas before Professor Turley had filed and furnished a copy of the complaint to us.

    I did not know he would also see the applicability of Lawrence.

    Am I getting through yet? CQ CQ CQ 😉

  5. Miles,

    Dredd, You raise the question of the constitutional principle of freedom of association

    I probably would have done better to mention it as “freedom of intimate association” … a bit more focused and less generalized.

    I would like to see your analysis as a comparison or distinguishing of homosexual sex (Lawrence v Texas) between or among consenting adults, with polygamy.

    That would be more focused than a comparison with slavery of a particular race with polygamy.

    BTW, I think the “inequality argument” (that the one man is outnumbered in a plural marriage of the Brown type) is a canard overshadowed by the “consenting adult” finding of fact. 😉

  6. Dredd, You raise the question of the constitutional principle of freedom of association, a reasonable principle in itself,but like all constitutional principles not existing in isolation from other great principles like equality.

    The analogy to the political/constitutional question of slavery is apt. No constitutional principle stood in the way of slave holding prior to the Civil War, or more accurately, several constitutional principles stood in favor of it. There were of course the 3/5s provision which clearly assumed it, and the fifth amendment protections of private property which many held to sanction slavery: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    Slaveholders could self righteously claim that the Constitution was on their side. Appeal to the constitution was useless for slaves and abolitionists alike. The system was rigged. And yet far sighted people, including in the end even Lincoln, understood that there was a larger principle of human equality at stake. A war and constitutional amendments were necessary to resolve the contradiction between the ideals of the Declaration of Independence (all men are created equal) and the sad reality of the constitution which sanctioned, and was interpreted by courts to sanction, the ownership of human beings.

    The other great 19th century question of political order and human equality was polygamy, and because it was confined largely to one state that question was resolved in a less clear and unambiguous way. Utah and Mormon leaders banned it as a political price for entry to the union. The constitutional issue was not forced. Polygamy was recognized as so violative of the political order (even if the class of harmed individuals, men frozen out of marriage, did not play a large role in the debate) that it was left behind even by those who thought previously that it was a religious obligation.

    Now, a century and a half later, you and others claim, like slave owners in the mid-19th century that the constitution does not ban your favorite institution of inequality, polygamy and you claim that it protects it. I think you’ve got some strong arguments on your side, but that doesn’t mean the constitution or the courts are right on this issue. It only means that they agree with you.

    So we are faced with a constitutional crisis. We polygamy abolitionists are fighting against a political system and constitutional order that provides no firm constitutional wording prohibiting the kind of inequality that polygamy creates, and in some ways even sanctions it as a form of religion, free association, and perhaps even a privacy right.

    Against that we have only 5 or 10 centuries of Western civilization’s practice of marriage equality between men (monogamy), and the Declaration’s firm commitment to the principle that “all men are created equal” and endowed with certain unalienable rights.

    What that amounts to is a constitutional crisis, left unresolved precisely because Utah voluntarily solved the problem in a political sense, but the United States failed to resolve it in a constitutional sense.

    This is a situation in which a constitutional amendment may ultimately be required so that people like you and Mr. Turley are not able to destroy the principle of marriage equality among men (monogamy) that has been long established and enforced in our society.

    Fortunately, even the Constitution is a political document that can be amended to reflect broad social/political consensus. If we can’t do what is right within the Constitution as it is, ultimately we’ll have to change the boundaries of the Constitution. Let’s hope and assume we won’t need a Civil War to do it.

  7. The Brown Lawsuit is a “challenge to Utah’s criminal polygamy law.”

    That criminal law applies to both males and females.

    I cited Lawrence v Texas upthread, which turned on the 14th Amendment, which is set forth in the Brown complaint.

    The Brown complaint, for example, cites to Lawrence at paragraph 30, 31, and at paragraph 180 within the First Claim For Relief.

    Why all the cricket sounds with respect to Lawrence upthread?

    Why all the policy talk and “people like this and people don’t like this, that, and the other” talk that is covered in Lawrence?

    Any of those policy arguments are applicable to consensual homosexual acts in the privacy of a private bedroom, and were held inconsequential in Lawrence, even though homosexuality traditionally is more eschewed than polygamy.

    The “holier than thou” policy considerations considered upthread are mentioned in the Brown complaint as well in paragraphs 68-99 (biblical figureheads were polygamous).

    The cultural norms and not-norms are discussed in paragraphs 100-110 of the Brown complaint (international law allows polygamy).

    Criminalization of consensual adult bedroom behavior is a fundamental issue in this case.

    If a State cannot criminalize that behavior then the Browns are expressing the law properly and have a valid complaint.

    If there is no consensual adult sexual behavior involved in the “spiritual marriages”, as the complaint calls them, but such acts take place only in the state granted marriage to one of the consenting females, then the Brown living conditions would be protected by the constitutional principle of freedom of association.

  8. Mike A.

    Mike: ” I can think of no duty imposed upon society to insure men an adequate supply of eligible females for purposes of marriage.”

    Actually, it IS difficult to think of, because we don’t think of monogamy as an expression of that commitment, but of course that’s exactly what monogamy is and always has been: a social policy that ensures that powerful men do not monopolize the available women and create a large class of men with no reproductive, marriage or love prospects.

    Mike: “And although it has no evidentiary value, I have a sense that that particular problem may be more potential than real. Were polygamy legalized tomorrow, I do not foresee large numbers of men suddenly rushing into the market for additional wives.”

    Well, we all see what we see, but in a sense the scale of the problem doesn’t matter very much. If just 10% of men take two wives, that means that 10% of men can have no wives. In a nation of 300 million that is 15 million men, over a lifetime. My own sense of it is that once you legitimize polygamy, and legitimize the growing disparity in income and resources, the opportunities for upper middle class and wealth men to acquire wives will be quite prodigious.

    I think your inability to imagine how bad it could get is partly based on the fact that we tend to assume that monogamy is the natural condition, when in fact it is an enforced collective social choice designed to block the emergence of polygamous family groups and maintain a peaceful and just society. For monogamy to exist individuals and society have to care about it. If we choose not to do so, there is no telling how many and how large polygamous family groups will become, or how large the floating groups of marauding and dispossessed young men will become..

    One things for sure: once we allow polygamous families to form, it will be harder than hell to break them up. There is no easy return to monogamy, if I’m right about the cruel social order that polygamy will create.

    Mike: “Nor do I foresee large numbers of women willing to be one among several. I believe that polygamy is a lifestyle for the few.”

    Again, you are perhaps biased by years of living with monogamous social assumptions, pressure and laws, reflecting an ancient commitment to equality in marriage between men. We have, all of us, forgotten what the world looks like when we drop our commitments to equality. You need only read the writings of intelligent women in polygamous marriages to hear articulate thoughtful defenses of the relationship and of their husbands. There is nothing wrong with polygamous marriages for the men and women who choose them. Most evidence suggests that they like them, and why would we think that others would not feel the same?

  9. Yes, there are laws that might be useful in treating the symptoms. I think it is always more effective, cost-wise and other-wise, to eradicate the disease rather than treat the symptoms. Your mileage may vary.

    But it’s not just abandonment and abuse, which are expensive enough to counteract. There is also the issue of education. Who is going to be responsible for putting these kids in schools, and getting them up to grade level? College is clearly out of the question, cost-wise, but at least we would want (at least I would want) them to be educated at a level that would allow them to be gainfully employed.

    But clearly, this is an issue that goes beyond simple privacy issues. Arguing it on those grounds might be effective in a courtroom, but the realities that are ignored in such arguments are still realities that are going to cost us.

  10. Mike A.,,

    I provide the following links for the purpose of discussion:

    One Man, Many Wives, Big Problems
    The social consequences of polygamy are bigger than you think
    Jonathan Rauch | April 3, 2006


    Bare Branches’ and Danger in Asia
    By Valerie M. Hudson and Andrea M. Den Boer
    Sunday, July 4, 2004; Page B07

    (Bare Branches: The Security Implications of Asia’s Surplus Male Population)

  11. Dave R:

    I saw the trailer and read the lost boys link. I’ve also seen a couple of documentaries on the sect. We do have criminal and civil laws capable of dealing with neglected, abused and abandoned children. They should be vigorously enforced against these people. What other links are you referring to? I don’t see any links to the problem of surplus males.

  12. Mike A.,

    “I became aware of the “lost boys” issue only within the past couple of years. However, I believe that existing laws relating to the neglect and abandonment of children are adequate to address it.”

    Unfortunately, the abandonment of some of these “lost boys” hasn’t been addressed. I think we need to ask why.

  13. Mike A – “I can think of no duty imposed upon society to insure men an adequate supply of eligible females for purposes of marriage.”

    You didn’t read those links provided by myself and Miles, did you? If you had done that, you would understand that your statement is a strawman, and that there are other societal consequences associated with the expulsion of males from polygamous families. Read those links, then we can discuss those, please.

  14. “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent. Com. 79), and from the earliest history of England polygamy has been treated as an offence against society.” -Reynolds v. United States, 98 U.S. 145, 164:

  15. mespo,

    An interesting point in re cognitive dissonance. Most people don’t look at life with a diagnostic eye. Sometimes it’s easy to forget that not everyone can or are willing and able to compartmentalize their thinking.

  16. Lawrence v Texas, 539 U.S. 558 (2003)

    Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions … The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.”

    The women are consenting adults. The man is a consenting adult. The behavior takes place in the privacy of their home, their bedroom. And that behavior is made criminal by statute.

    The fundamental principle in Lawrence is the same as in Brown isn’t it?

  17. Bob, Esq., I vote for the “inch from the slime” model.

    Since I view marriage as a matter of contract, the issue for me is whether a multi-party marriage contract is violative of existing public policy and, if so, whether the right to privacy in this instance trumps public policy.

    Existing public policy is clearly opposed to polygamy. Therefore, the decision will hinge on the second question. I will be completely astonished should Prof. Turley prevail.

    Two of the public policy concerns that have been raised are particularly interesting. I became aware of the “lost boys” issue only within the past couple of years. However, I believe that existing laws relating to the neglect and abandonment of children are adequate to address it.

    The question concerning large numbers of eligible males unable to connect with eligible females strikes me as somewhat peculiar. I can think of no duty imposed upon society to insure men an adequate supply of eligible females for purposes of marriage. And although it has no evidentiary value, I have a sense that that particular problem may be more potential than real. Were polygamy legalized tomorrow, I do not foresee large numbers of men suddenly rushing into the market for additional wives. Nor do I foresee large numbers of women willing to be one among several. I believe that polygamy is a lifestyle for the few.

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