THE BLOG

Are Polygamy Bans Unconstitutional?

12/16/2013 12:52 pm ET | Updated Feb 15, 2014

Last week a federal court in Utah struck down a key portion of Utah's ban on polygamy. In a case brought by Kody Brown, the star of Sister Wives, a reality television show about a polygamous family, the court said it was unconstitutional to prohibit a married person from "cohabiting" with another person. The decision, which is likely to be appealed to a higher court, raises the question: Is it time to rethink the longstanding ban on plural marriage?

Polygamy was first outlawed in Utah when it was still a territory. In 1874, Congress banned the practice, which had become commonplace in Utah's Mormon community. In 1879, the U.S. Supreme Court upheld the federal law, explaining that 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." The constitutionality of bans on polygamy has been so well accepted that it's been used in recent years as an argument against gay rights. According to Antonin Scalia and Rick Santorum, court rulings allowing LGBT people to have sex or to marry will inevitably undermine bans on polygamy because there's no way to distinguish between the two. A fundamental right to gay marriage, they say, will put us on a slippery slope to recognizing a fundamental right to polygamy, bestiality, and prostitution.

Gay rights however do not inexorably lead to the legalization of polygamy. While the ability to choose one's sexual partners is an important element of constitutionally protected privacy, the government may have stronger reasons to ban polygamy than gay sexual or marital relationships. Polygamy has long been associated with unique harms: the repression of women; underage girls too young to consent forced into marriage; the severe displacement of young men in geographically concentrated communities. Gay rights don't pose any of these problems. Rather, they are about the very opposite: reducing the oppression of minorities, allowing adults to engage in consensual sexual activity, and minimizing the social and psychological displacement caused by anti-gay discrimination.

Nonetheless, Santorum and others are now boasting they were right. "Sometimes I hate it when what I predict comes true," Santorum tweeted Sunday. Rod Dreher, a blogger at the American Conservative, titled a piece on the ruling, "Utah & Polygamy: We Told You So."

Perhaps they haven't quite had the time to read the Utah judge's 91-page opinion. He finds the cohabitation provision unconstitutional but not because the Supreme Court has recognized gay rights. In fact, the judge goes out of his way to distinguish his case from the LGBT cases and insists that "there is no 'fundamental right' to polygamy." The court doesn't even cite, much less rely upon, the Supreme Court's landmark gay rights decision this past June striking down the Defense of Marriage Act. Indeed, the court says that the state's ban on straightforward polygamy -- whereby an already married person enters into an additional formal marriage with another -- is constitutionally permissible.

What's unconstitutional is Utah's ban on a married person cohabiting with another, and here's why. First, the court says the law impinges on religious freedom by targeting only religious people for prosecution. Adulterers sometimes cohabit -- that is, live as a spouse with someone else -- but the state admitted to only going after Mormon cohabiters. As a result, the judge ruled, Utah's law was in practice discriminatory. Second, the court said that this distinct treatment of cohabiters was irrational. If a married person cohabiting with another is a threat to society, then why target only religiously motivated people? Utah, by only restricting in practice some cohabitation by married people, violates the baseline requirement of the Constitution that every law must further some rational government policy.

To the extent the Supreme Court's embrace of LGBT rights plays a role in the Utah case, it's in the principle that all laws must have a rational basis in public policy. Even with longstanding laws regulating sexual morality, the Constitution requires Courts to examine the reasons behind a law. In the gay rights context, such critical reflection has helped us to see that the reasons for banning gay sex or marriage are weak, based more in irrational prejudices than in valid public policy concerns. What the judge in Utah did was apply that same critical eye to the polygamous cohabitation ban, questioning its assumptions and rationale.

Indeed, maybe it's time we all reexamined polygamy. Sister Wives suggests one reason why. The show features what appears to be a genuinely loving plural marriage comprised of consenting adults. No underage girls were forced to marry Kody Brown against their will, and it's not obvious from the show how the Brown's plural marriage oppresses his wives or harms his children. Actually, they all appear to be quite normal. If the adults are all truly consenting, what business is it of anyone what happens in their bedroom -- or bedrooms? Philosophers like Martha Nussbaum and legal scholars like Ron Den Otter have argued that polygamy bans are misguided when applied to consenting adults. Perhaps the law should focus on the age of consent for plural marriage so that an arrangement like Brown's is allowed but other situations, like the Yearning for Zion sect in which underage girls are required to marry, are not.

A searching reexamination of polygamy would also reveal that the Supreme Court was wrong back in 1879 when it called this kind of marriage a deviant stranger to western heritage. Not only did the Court's opinion have a tinge of racism to it, but anyone who bothered to read the Old Testament will find numerous examples of polygamous marriage: Abraham was married to Sarah, Hagar, and Keturah; Jacob's spouses included Leah, Rachel, Bihah, and Zilpah. Even Moses had two wives. Polygamy was an important element of the society in which the Judeo-Christian tradition was born.

Of course, none of this is to say that polygamy bans are necessarily unconstitutional. There still may be good reasons to ban the practice (such as, perhaps, the displacement effect) and no one should be surprised if the Utah decision is overturned on appeal. Yet the decision should force us to ask the question the gay rights cases require of us: do these bans further a valid public policy or are they, like so many other laws regulating sex and marriage, built on fear and misunderstanding of people who make different choices about their intimate relationships?