Judge Cites Same-Sex Marriage in Declaring Polygamy Ban Unconstitutional

Ken Klukowski:

In a game-changer for the legal fight over same-sex marriage that gives credence to opponents’ “slippery slope” arguments, a federal judge has now ruled that the legal reasoning for same-sex marriage means that laws against polygamy are likewise unconstitutional.

In his 91-page opinion in Brown v. Buhman, on Dec. 13, U.S. District Judge Clark Waddoups struck down Utah’s law making polygamy a crime. In so doing, he may have opened Pandora’s Box.

As a condition for becoming a state in 1896, Congress required Utah to outlaw polygamy, which is marriage between three or more persons. This case involved a family of fundamentalist offshoots of nineteenth-century Mormonism. The Church of Jesus Christ of Latter-Day Saints disavowed polygamy in 1890, and again in 1904, but some splinter groups continue the practice.

Waddoups’ opinion would not only cover such groups, however, but also Muslims or anyone else who claims a right—religious or otherwise—to have multiple-person marriages. He notes that the Supreme Court ruled against polygamy in its 1878 case Reynolds v. U.S., but said he cannot simply rest upon that decision “without seriously addressing the much developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices.”

In its 2003 Lawrence v. Texas case, the Supreme Court overruled previous sexuality precedents by declaring unconstitutional laws that made homosexual sodomy a crime, holding that although the Constitution says nothing about sex or marriage, there is nonetheless a right to consensual sexual activity between adults that government cannot regulate. This was over the vigorous dissent of conservative justices, who said that the Constitution commits such questions of marriage and morality to the states and the democratic process, and that therefore federal courts have no power to impose their own moral judgments.

The Lawrence case lays the foundation that has been cited for a decade now in court to make the case for a constitutional right to same-sex marriage. If government cannot forbid homosexual conduct, this argument goes, then neither can it deny those who define themselves by homosexual behavior to officially recognize any such relationship as a marriage. It began a political, religious, and philosophical debate in America between two different definitions of marriage and family.

For over 5,000 years of recorded human history, marriage laws worldwide were about providing a social structure for producing and raising children. These laws simply acknowledged the biological reality that only sex between a man and a woman can produce a baby, and that, correspondingly, that every child born into the world has two parents, one of which is a man, the other a woman.

Marriage laws were designed to secure parental rights for that man and woman over the child they had created, and also imposed strict duties and obligations on each of them for raising that child. As part of that, those laws also bound the man and woman to each other, imposing obligations of sexually exclusivity, mutual care, and support.

Those laws were created for the nurturing of those children, and assign the gender role of demanding the man’s protection and support of the woman during pregnancy and once the children were born. They were designed primarily for the protection of children, and secondarily for the support of women.

A man and woman would form a new family to act as a single unit in society, and care for any children resulting from their monogamous sexual relationship. Thus, marriage has been defined as the union of one man and one woman. More precisely, it is the union of (1) two consenting persons, (2) of opposite biological sex, (3) who are not close blood relatives.

The new conception of marriage, rooted in the proliferation of no-fault divorce laws in the 1970s and the sexual revolution, is that marriage is about personal happiness and fulfillment. People should be free to form whatever relationships they find personally satisfying and to follow whatever their personal sexual inclinations are to engage in whatever form of sexual behavior they find gratifying.

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