Kody Brown, center, poses with his wives, from left, Janelle, Christine, Meri, and Robyn

Is Utah’s ban on polygamy unconstitutional? Last week a Federal Court judge ruled that it is, after Kody Brown and his four wives, the stars of the reality TV series Sister Wives, challenged it.

Judge Clark Waddoups, of United States District Court in Utah, struck down provisions of Utah’s bigamy law, which make “religious co-habitation” illegal. Kody Brown, who belongs to the Apostolic United Brethren Church,  an offshoot of the Mormon church, and has four wives and 17 children, welcomed the decision:

“Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.”

Judge Waddoup’s ruling will not allow a man to be legally married to several women. He specifically stated that the state still has a right to enforce a ban on multiple marriage licences. But it does allow polygamists to come out of the closet and live without fear of prosecution.

Although Brown v. Buhman is sure to be challenged and could be overturned, it is a milestone in the evolution of modern relationships from monogamous and permanent traditional marriage, to no-fault divorce and serial polygamy, widespread de facto marriage, same-sex marriage and now polygamy.

Most Americans are still deeply hostile towards polygamy so supporters of same-sex marriage constantly argue that the US is not on a slippery-slope to polygamy. Judge Waddoups’s decision, however, makes it very clear that being unpopular or disliked is not a legitimate reason to discriminate against a lifestyle. And, in fact, all the arguments deployed in favour of same-sex marriage work perfectly well for polygamy – and other even more colourful forms of plural marriage.

The judge’s 91-page decision relies on two fundamental ideas expressed in two famous decisions of the US Supreme Court.

The first is that a ban on polygamy is essentially religious discrimination and that heterosexual, monogamous marriage is merely a Christian institution. He grounds this idea on an 1878 case, Reynolds v United States. George Reynolds, the secretary of Mormon leader Brigham Young, had been charged with bigamy. His defence was that his religion obliged him to be married to several women and that his marital arrangements were protected by the First Amendment of the US Constitution. The Supreme Court did not accept this. In a unanimous decision it said, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people”. In a subsequent decision in 1890, the Court described polygamy as “a return to barbarism” and “contrary to the spirit of Christianity.”

To Judge Waddoups, such words are “unthinkable” in a racially and religiously pluralistic society. There can be no rational basis for a ban on “religious co-habitation”. Society is no longer predominantly Christian and its standards cannot legitimately define relationships.

The second case is Lawrence v. Texas, which ruled in 2003 that homosexual sodomy could not be criminalised because it was protected by a constitutional right to privacy. This has buttressed arguments for same-sex marriage. If the government cannot prohibit homosexual behaviour, how can it prohibit relationships based on that behaviour?

Judge Waddoups has simply extended this line of reasoning to polygamous relationships. The attorney representing Kody Brown and his wives, Jonathan Turley, summed this up in the New York Times: “We should fight for privacy as an inclusive concept, benefiting everyone in the same way. Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith.”

The common thread in Waddoups’s reasoning is that marriage is simply a legal framework which gives public recognition to the affections of adults. Children are just a footnote, an optional extra, in their relationships.

The reality of authentic marriage is quite different: it is centred on children. Marriage deserves to be recognised and protected by the government because the loving care of a father and a mother is the best environment in which to raise children.

A polygamous marriage is superior to a same-sex marriage because both a father and a mother are involved in raising a child. But even if there is no physical, sexual or emotional abuse of the wives or children, it fails to treat them with the dignity that they deserve. Men and women deserve unique and exclusive love as a fundamental aspect of their human dignity. Polygamy introduces division and competition into relationships.

Contrary to what Judge Waddoups contends, the repudiation of polygamy is not a uniquely Christian idea. It is based on historical experience and even on the finding of social science. Although polygamy a fact of life in many societies, the ideal relationship has always been between one man and one woman. Christianity merely ratifies this and places it within its own theological framework.

Is this bracket creep from same-sex marriage? No, it’s bracket creep from the idea that every kind of sexual expression deserves government protection so long as no one is physically harmed. As Justice Kennedy wrote in another famous case about sexuality: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 

But as support for same-sex marriage grows, the twin notions that Christian morality has no rational basis and that any non-abusive sexual relationship is legitimate will take deeper root. Polygamy is obviously the first cab off the rank, because there are thousands of polygamous families belonging to offshoots of the Mormon Church. As the number of Muslims grows, some are certain to demand the right to polygamous marriage.

One person who must feel more than a little satisfaction at Brown v. Buhman is US Supreme Court Justice Scalia. In his dissent to Lawrence v. Texas, he declared that the majority opinion “effectively decrees the end of all morals legislation” because if “the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above- mentioned laws [against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational basis review”.

Justice Scalia has often been ridiculed for his forthright comment. But Judge Waddoups has proved him right.

Michael Cook is editor of MercatorNet. 

Michael Cook

Michael Cook is the editor of MercatorNet.