Let me first say, a wonderful blog for matters in Wisconsin and regarding the law in general is Professor Ann Althouse's blog, Althouse. Go have a read and enjoy her photography as well.
But she raises an interesting story regarding Kody Brown, the husband of the family in the TV series, Sister Wives. The New York Times reports:
Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.
The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.
Professor Althouse makes a good point about this suit. Kody is not asking Utah to legalize polygamy, so he can traispe off to the courthouse with each of his wives to be married (or to be divorced, which makes family law attorneys think about "two-for-one" deals), but that he and his wives be left alone, understanding that according to their own personal beliefs, they are "married."
I think that is an important distinction. This is not the same as the marriage equality initiative by homosexuals, who are looking for legal recognition. Lawrence v. Texas was a case challenging a law that made sodomy illegal. Mind you, that could be regardless of sexual orientation - while Texas' code applied only when someone "engages in deviant sexual intercourse with another individual of the same sex," many other states have like statutes braodly aplied to anal sex or ral sex, which can be conducted between heterosexual couples.
In Lawrence, the US Supreme Court found that what Messrs. Lawrence and Garner did in the privacy of their home to be protected from State intrusion by substantive due process under the Fourteenth Amendment. In a nutshell, the "intimate acts" of consenting adults that are conducted in the privacy of their homes cannot be regulated by the State.
Justice Kenedy stated in the decision:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Now on to Utah. Utah's bigamy statute states:
A person is guilty of bigamy when, knowing he has a husband or wife, the person purports to marry another person or cohabits with another person. Utah Code Ann. § 76-7-101(1) (2003).
The problem is with the language purports to marry. Not actually married, whereby a marriage licensed is obtained and the union solemnized by a state-recognized means, e.g., a priest conducts a nuptial Mass. But if you are just "playing" marriage. Kody Brown - like Lawrence and Gardner - is not asking for state recognition of his arrangement with his legal wife and the sister wives. He just wants to be left alone. And I don't blame him.
Let me state now, I am not trying to support the cause of polygamy or homosexuality. I, like many of my fellow Catholics, personally regulate my behavior according to the canons of our faith. However, I am also fiercely libertarian when it comes to social issues. If I don't like the government sticking its nose in my wallet, I most certainly do not want it coming into my bedroom.
Yes, polygamy as practiced by many fundamental Mormons has resulted in spousal abuse, child abuse, and a drain on state welfare rolls - all of which would be the same if these people were not calling it "celestial marriage" and whatnot. There are women (and men) in abusive cohabitating relationships. I remember a joke told by the comedian Alonzo Bodden: "I got two six-year-olds . . . and they ain't twins." The fact is there is a lot of consenusal, intimate, and private acts that have resulted in problems. There has been since time immortal.
But do you want that behavior policed? Because if you say yes, then your bedroom and all that it implies regarding intimacy - your relationships, your reading material, your diary, your peronal communications - is an open book.
3 comments:
"he and his wives be left alone, understanding that according to their own personal beliefs"
I'm no lawyer, but isn't that what most people say to justify all sorts of immoral and criminal activity? It's not hurting anyone etc etc
All I see is a huge can of worms.
Cannonball, of course it can be used for that behavior. But consider that was basically the same argument used in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, In that case, Oregon enacted a law that made it compulsory for a child to attend public school. The Sisters argued that this was a violation of a Catholic's First Amendment "right of parents to choose schools where their children will receive appropriate mental and religious training." Without cases such as this, whereby the State cannot regulate religious conduct, you might see California passing the LGBT teaching law that I blogged about and insisting it be implemented in Catholic schools.
And note - there is no free pass with the declaration of "personal beliefs" and using religion as a shield. If activity is criminal, it remains so. Native American prisoners tried to sue the government to allow them to use peyote for "religious" purposes while incarcerated. No dice. Someone takes literally the Bible to stone their adulterous spouse - or cut off his weener - and I can ssure you, there will be no First Amendment protection.
You are correct, these things can open a can of worms - but that cannot deter legislation. It would be impractical to adopt an "all or nothing" approach in regulating conduct. Some behavior must be regulated to ensure the general welfare of the community - so you have to obey a speed limit sign, or you can't torch your neighbor's house because they were gossiping about you, or you have taxes no matter how Satanic you believe them to be. But a line needs to be drawn at some point where the "intimacy" of a human relationship is not subject to scrutiny by the State.
I've said it before, I'll say it again: government has no place in the State of Marriage.
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