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14 Dec 2013
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 caseReynolds 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.