Gay polygamy in Utah?

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mUX_twETB9XdG_75sgCSB3ABy now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional.

What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin!

Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be.

I. The Polygamy Case (Brown v. Buhman)

Last week judge Clark Waddoups, a George W. Bush appointee, issued a ruling in the Brown v. Buhman case. That case involved a lawsuit by Kody Brown, a practicing polygamist and reality-TV star, who challenged the cohabitation prong of the Utah statute.

By way of background: Utah has a highly unusual bigamy statute which doesn’t just ban multiple marriages, but also cohabitation by a married person. The statute is an artifact of the history of legal prosecution in early Utah. The original laws were ineffective because they required actual marriages. These were very hard to prove in criminal court. Mormon witnesses “forgot” the facts, refused to provide records, and so on. So finally, the government banned not just polygamy but also multiple cohabitation by a married person. The result was a quirky statute in which a defendant didn’t need multiple spouses — or any spouse at all! — to be found guilty of bigamy.

But it’s a law that was only ever enforced against Mormons. That is, if someone was just a ladies-man, a Hugh Hefner type married with three live-in girlfriends, they wouldn’t be prosecuted. But a Kody Brown — who has three women he calls wives, although they’re not legally married — could be prosecuted. (Actual prosecutions were rare for bigamy alone.)

In an interesting twist, the Brown v. Buhman court ruled on religious freedom grounds, not sexual autonomy grounds. The court did note that, under Lawrence v. Texas and related cases, courts have set out higher protection for individual relationship autonomy. Ultimately, though, the court’s ruling was based on the anti-Mormon intent and practice of the law in question. (For more about the background of the law and its practice, see this panel discussion.) As such, it was a limited ruling. The court struck down the ban on religiously-motivated cohabitation. However, the lawsuit did not challenge the ban on formal polygamy (more than one marriage license). And the ruling only decriminalizes the practice; it does not result in state-recognized legal relationships.

II. The Same-Sex Marriage Case (Kitchen)

The ruling in the same-sex marriage case was issued by Judge Shelby, a very new and very young Obama appointee. He’s was not a controversial appointee; sharply conservative senator Mike Lee said that Shelby would be an “outstanding judge.

The court opinion is fascinating for a number of reasons. For one, Judge Shelby quotes repeatedly from Justice Scalia’s dissents in gay-rights cases. Justice Scalia is known for invoking a parade-of-horribles argument in gay-rights cases: If the court recognizes this right, then gay people will be able to marry. The horror!

Judge Shelby takes Scalia at his word and cites these dissents approvingly. Yep, the door to gay marriage was opened up. Justice Scalia even said so! It’s a very satisfying bit of jujitsu for gay rights advocates.

Judge Shelby’s opinion engages in some complicated back-and-forth on the constitutional law claims. He suggests that plaintiffs would have a potential claim under sex discrimination (a basis which Judge Walker’s district court opinion also used). He also suggests that heightened scrutiny could apply, as could animus review; but he ultimately bases the ruling on the rational basis test. It’s an opinion quite similar in that regard to Judge Walker’s ruling in the Prop 8 litigation; and in its discussion of potential prongs, it’s also not unlike the polygamy ruling, although the legal specifics are very different.

I’ll write more on the specific constitutional law aspects of the ruling in a follow up.

In the mean while, the ruling has had an electrifying effect on Utah’s LGBT community, as individuals have married longtime partners.

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III. Thoughts and Reactions

A. The Inevitable Backlash

I’ll post a follow-up collecting and discussing reactions.

B. The red herring of “traditional marriage”

People opposed to the polygamy ruling as well as to gay-rights rulings in general often call themselves proponents of traditional marriage. There’s a real nomenclature problem there, though. This nomenclature problem is especially acute in Utah, which was settled by polygamist pioneers who were fleeing to the new territory in part to exercise their religious freedom and practice polygamy. (And if we’re looking further in the past, there’s a long tradition of polygamy in the Judeo-Christian tradition, dating back to Abraham, Jacob, Moses, and other patriarchs.)

Brown v. Buhman highlights the implausibility of calling this group, defenders of traditional marriage. Their vision of relationships is no more traditional than Kody Brown’s. As a matter of nomenclature, it probably makes sense simply to call them, “straight monogamy proponents.”

C. Religious Freedom

Religious freedom cuts in fascinating ways. It is a common theme invoked by opponents of gay-rights rulings. Yet the Brown v. Buhman court explicitly based its ruling on religious freedom. And in doing so, it undercut Reynolds v. United States, which is a horrible case for religious freedom.

I’ll write more on this in a follow-up; just highlighting the issue for now.

D. Ducking the issue

Duck Dynasty

How does this relate to Duck Dynasty? I’ll address that in a follow-up as well.

IV. Legal Analysis

A. The opinions are not connected.

As an initial matter, it’s important to note that these opinions are not connected. They are not connected in their legal conclusions. They involved very different plaintiffs making very different legal claims.

The Kitchen v. Herbert opinion relies on rational basis review, to arrive at a conclusion based on equal protection. The Brown v. Buhman opinion relies on the First Amendment, and its conclusion is based on religious discrimination. They don’t cite to each other. And they don’t rely on the same key underlying cases in their conclusions, either, because they arrive at very different conclusions.

In addition, the two opinions arrive at very different remedies. Kitchen v. Herbert strikes down a state law which prohibits recognition of same-sex marriage, with the conclusion that the state must recognize these as legal marriages. In contrast, Brown v. Buhman simply decriminalizes a type of religiously motivated cohabitation.

B. And yet, they reflect some common ground

While it’s easy to pooh-pooh the critics who see a coordinated attack on the meaning of marriage, I do think that the two opinions reflect some common themes. In particular, both of the courts recognize a shift in public views about regulation of sexual autonomy. Both also recognize shifting ideas about what should be considered rational. While they do not reflect a unified legal theory, both reflect a world of changing social norms.

As the Kitchen v. Herbert court notes, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

As previously marginalized groups push for broader recognition, they potentially help shift the boundaries of rational state action.

C. Sects with Ducks?

Do these opinions mean that, inevitably, laws against incest or bestiality will be struck down? (Cue scary music.)

Not really. Brown v. Buhman is the easiest to dismiss here. Remember, it was a ruling based on religious freedom. If a state passed a law or enforced it solely against one religious group — e.g., Episcopalians may not have relationships with animals, but everyone else can — then that law would probably run afoul of the court decision. Otherwise, it’s not an issue.

The Kitchen v. Herbert opinion is also unlikely to be extended in this direction. The court’s rational basis review probably would not apply to strike down laws against incest or bestiality. These are criminal laws; the case didn’t address criminal laws, and was focused only on marriage rights. Both of these are likely no-gos.

E. Gay Polygamy and the Future of Marriage

So, does this mean that a guy in Utah can now have not only two wives, but also two husbands?

It’s a fun and goofy idea. But the answer is, not really.

Remember, the polygamy ruling only invalidated the cohabitation prong of the statute, not the marriage prong. And it didn’t actually require state recognition of religious cohabitants as married. It simply removed the criminal penalty.

So, the effect is now that — if a man is married (to either a man or a woman) and he establishes additional cohabitating relationships (again, with either men or women or both), he and his cohabitating partners will not be subject to criminal prosecution and potential jail time for entering into those cohabitating relationships.

But it doesn’t mean that the state will recognize those relationships as marriages. They won’t. And if he does seek multiple marriage licenses, he can still be put in jail for that.

What does this say overall? I posted a picture from an article in The Advocate about gay polygamy. These decisions, in some ways, may reflect a view that families come in all different forms.

Of course, it’s entirely possible that they’ll be reversed on appeal. But for now, they’re a fascinating window into ideas about what marriage means, and what kinds of marriages the state should leave alone, or even recognize. I’ve tried to set out some of the basic issues here, but as you see, there’s a whole lot more to discuss. I’ll go into more depth on some of these issues in future posts.

(Cross-posted at Concurring Opinions.)

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