Skip to comments.Utah Challenge to Polygamy Law Cites SCOTUS Ruling on Sodomy
Posted on 01/13/2004 4:46:16 PM PST by Federalist 78
The warnings issued last summer in the wake of the Supreme Court ruling throwing out a Texas sodomy law are now coming true.
The high court ruled in Lawrence v. Texas that the state's sodomy law was unconstitutional, arguing the state had no right to curtail the sexual behavior of consenting adults. The case involved two men who were arrested after police entered their apartment and found them engaged in homosexual sex. (See Earlier Article)
Many pro-family groups warned that the decision would open the door to legalizing all kinds of other sexual perversions. In fact, one Republican lawmaker -- U.S. Senator Rick Santorum -- predicted in late April that if the Supreme Court struck down the Texas sodomy law, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."
Now comes word from Utah that a civil rights attorney is challenging the state's ban against polygamy. The lawsuit says Salt Lake City clerks refused a marriage license to a couple because the man was already married to another woman who had consented to the additional marriage.
Mark Shurtleff, attorney general for Utah, tells Associated Press that the lawsuit goes beyond the Supreme Court ruling. "Any time you involve marriage, family, children -- fundamental units of society -- the state does have a compelling interest in what that is," he says. "[Polygamy] happens to be a felony crime here [in Utah]."
But Brian Barnard, the lawyer representing the trio, alleges that denial of a marriage license to his clients violates the First Amendment right to practice their religion. He says his clients are claiming a religious right to what the lawsuit describes as a "sincere and deeply held religious tenet."
"Practicing polygamy for religious reasons is a crime -- it's a felony," he acknowledges. "What my clients want to do is to have that law taken off the books."
Although the Mormon Church officially condemns polygamy, it is estimated that 30,000 Mormons still practice it.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion.
Todays opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
"... why don't they:
"Do what they say, say what you mean
One thing leads to another
You told me something wrong, I know I listen too long
But then one thing leads to another.
. . ."
Why is state-sanctioned polygamy a problem? The deep reason is that it erodes the ethos of monogamous marriage. Despite the divorce revolution, Americans still take it for granted that marriage means monogamy. The ideal of fidelity may be breached in practice, yet adultery is clearly understood as a transgression against marriage. Legal polygamy would jeopardize that understanding, and that is why polygamy has historically been treated in the West as an offense against society itself.
In most non-Western cultures, marriage is not a union of freely choosing individuals, but an alliance of family groups. The emotional relationship between husband and wife is attenuated and subordinated to the economic and political interests of extended kin. But in our world of freely choosing individuals, extended families fall away, and love and companionship are the only surviving principles on which families can be built. From Thomas Aquinas through Richard Posner, almost every serious observer has granted the incompatibility between polygamy and Western companionate marriage.
AMERICA'S NEW, souped-up version of polygamy is called "polyamory." Polyamorists trace their descent from the anti-monogamy movements of the sixties and seventies--everything from hippie communes, to the support groups that grew up around Robert Rimmer's 1966 novel "The Harrad Experiment," to the cult of Bhagwan Shree Rajneesh. Polyamorists proselytize for "responsible non-monogamy"--open, loving, and stable sexual relationships among more than two people. The modern polyamory movement took off in the mid-nineties--partly because of the growth of the Internet (with its confidentiality), but also in parallel to, and inspired by, the rising gay marriage movement.
The flexible, egalitarian, and altogether postmodern polyamorists are more likely to influence the larger society than Mormon polygamists. The polyamorists go after monogamy in a way that resonates with America's secular, post-sixties culture. Yet the fundamental drawback is the same for Mormons and polyamorists alike. Polyamory websites are filled with chatter about jealousy, the problem that will not go away. Inevitably, group marriages based on modern principles of companionate love, without religious rules and restraints, are unstable. Like the short-lived hippie communes, group marriages will be broken on the contradiction between companionate love and group solidarity. And children will pay the price. The harms of state-sanctioned polyamorous marriage would extend well beyond the polyamorists themselves. Once monogamy is defined out of marriage, it will be next to impossible to educate a new generation in what it takes to keep companionate marriage intact. State-sanctioned polyamory would spell the effective end of marriage. And that is precisely what polyamory's new--and surprisingly influential--defenders are aiming for.
The family law radicals
STATE-SANCTIONED polyamory is now the cutting-edge issue among scholars of family law. The preeminent school of thought in academic family law has its origins in the arguments of radical gay activists who once opposed same-sex marriage. In the early nineties, radicals like longtime National Gay and Lesbian Task Force policy director Paula Ettelbrick spoke out against making legal marriage a priority for the gay rights movement. Marriage, Ettelbrick reminded her fellow activists, "has long been the focus of radical feminist revulsion." Encouraging gays to marry, said Ettelbrick, would only force gay "assimilation" to American norms, when the real object of the gay rights movement ought to be getting Americans to accept gay difference. "Being queer," said Ettelbrick, "means pushing the parameters of sex and family, and in the process transforming the very fabric of society."
Promoting polyamory is the ideal way to "radically reorder society's view of the family," and Ettelbrick, who has since formally signed on as a supporter of gay marriage (and is frequently quoted by the press), is now part of a movement that hopes to use gay marriage as an opening to press for state-sanctioned polyamory. Ettelbrick teaches law at the University of Michigan, New York University, Barnard, and Columbia. She has a lot of company.
Marriage is a critical social institution. Stable families depend on it. Society depends on stable families. Up to now, with all the changes in marriage, the one thing we've been sure of is that marriage means monogamy. Gay marriage will break that connection. It will do this by itself, and by leading to polygamy and polyamory. What lies beyond gay marriage is no marriage at all.
Just because some scum sucking lawyer wants to cite Lawrence in his cockamamie reasoning doesn't mean that it will carry the day, however. Outside of several hundred desert dwellers in Utah, Idaho, and Nevada, nobody else in this country really wants polygamy. More Americans know a gay person than know a polygamist.
My question is not on fidelity. I can understand a heterosexual couple. I can understand a homosexual couple. I have trouble with understanding a bisexual couple. In the case of bisexuals are we accepting them as marriage candidates in some unspoken form? I'm serious. What is it that they want?
I don't know, as I'm not a bisexual (nor could speak for all of them, I'd bet). But I do know that I didn't have to affirm that I was not a bisexual when I applied for my marriage licence.
But that's not your question either, is it?
I'd suspect that, at some point, if a bisexual person commits to one partner, whether in a heterosexual or homosexual relationship, then (presuming they remain faithful) that's it for fooling around with people of a different sex than their partner.
Maybe I'm still missing your point?