uno itinere non potest perveniri ad tam grande secretum -- Q. Aurelius Symmachus, 384 C.E.

Monday, July 25, 2011

A Nonexistent Slope, Slippery or Otherwise: SSM Opponents Latch On To Polygamy Suit

Brown with three of his wives.
I've written previously about the frustrating habit of otherwise intelligent people bringing up polygamy whenever talk turns to legalizing same-sex marriage.

With news this week that Kody Brown of "Sister Wives" fame had filed suit in Utah to challenge the criminal law against polygamy, such comparisons went into overdrive.

American Family Radio's Bryan Fischer tweeted"Multi-adulterous man in Utah files suit to legalize polygamy. Using same arguments homosexuals used. He wins, pets next." Fischer then links to a Washington Times story that cites a number of comments from supporters of same-sex marriage to suggest there are parallels between the two.

Brown is being represented by constitutional scholar Jonathan Turley, who defended the suit in the New York Times and specifically admonished civil libertarians not to shy away from a case defending "the right to live your life according to your own values and faith."

Personally, I'm morally opposed to polygamy. Not simply because "everyone thinks so," as Johanna Brooks at Religion Dispatches summarily dismissed objections to it, but because it undermines the principle that married spouses should be equal partners. There can be no equality in a family structure in which one man is with multiple partners, no matter how well everyone is treated and how happy they might be with the arrangement. But these are moral qualms.

Legally, I think the state has a legitimate interest in recognizing only unions between two people, as the tax benefits and other legal privileges afforded to married couples could prove too complex and unyielding if divided among more people. As noted in the Economist, "extending these same rules to polygamy would be a fiscal nightmare." Not to mention that treating all unions equally would become almost impossible if some of them contained more people. And what then? Do we put a cap on it? Four wives? Five? And if so, is that not as equally arbitrary as capping marriage at two people?

But this is about the criminalization, not legalization, of polygamy, despite the slippery slope Fischer and his ilk love to slide down. (Do we really need to point out, yet again, that pets can't enter into a legal contract, only adult humans can?) Turley addressed the marital legalities of the matter at the very start of his column with a point seemingly lost on all the chatter that followed -- and, perhaps not surprisingly, completely omitted or ignored in the Washington Times' story on the matter. The Browns "are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone."

That's right: the Browns' suit isn't about forcing the state of Utah to legally recognize each of Brown's subsequent marriages (Turley notes that "one of the marriages is legal and the others are what the family calls 'spiritual.'"). They are merely seeking to strike down a law that criminalizes the family structure they have chosen.

As patriarchal and morally inferior as I might consider the Browns' family arrangement, I agree with Turley that in a country that prides itself on freedom of conscience, the right to live in the family structure of one's choice should be paramount. Though same-sex marriage opponents liken this case to the legalization of gay marriage, Turley is instead arguing it based on the 2003 U.S. Supreme Court case Lawrence v. Texas, which struck down sodomy laws. Sexuality being the intensely personal matter that it is in accordance with one's own conscience, the court rightly decided in that case that the government has no business regulating the activities that go on between two consenting adults ("consenting adults" being the two words that seem lost on the slippery-slope crowd).

As Turley pointed out, 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." There does indeed seem something very peculiar about a legal code that winks at men fathering children all over the place with multiple women, but criminalizes said behavior if he puts a roof over all their heads.

Regardless, it's clear the Browns' case has nothing to do with the legalization of gay marriage, since their argument is not that the state should be legally recognizing all four of Brown's unions but instead should simply not prosecute them for living together. Indeed, their case seems to be about safeguarding individuals, yet again, from an overreaching government illegitimately concerned with the specifics about what goes on in someone's bedroom -- or bedrooms, in Brown's case.

That should be something all civil libertarians are on board with -- even if it means defending a family structure we dislike, such as polygamy.

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