Remember that whole “slippery slope” argument that was used to argue against gay marriage? The one in which opponents of the idea claimed that allowing gays to marry would open the door to legalizing polygamous marriages?
Well, in the wake of the Supreme Court’s ruling that gay marriage is legal in all 50 states, Nathan Collier of Montana is trying just that, using marriage equality as a way to justify his application for a second marriage license. According to Collier, he married his first wife legally in 2001 and his second wife “spiritually” in 2006.
Collier cites the following passage from the dissenting opinion of Chief Justice John Roberts in the gay marriage ruling as ammunition for the validity of plural marriage. :
Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not… Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.
Roberts may be putting a positive spin on an argument originally used in 1878 during Reynolds v. United States, wherein the Supreme Court wrote 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.” Only instead of saying “the life of Asiatic and of African people,” Roberts is employing the less offensive “cultures around the world.”
Meanwhile, the polygamous Brown family, stars of the reality TV show Sister Wives (which Collier has also appeared on), are likewise on the road to getting hitched—in their case, to four spouses. Polygamy has been a punishable offense in Utah since the Edmunds Act of 1882, but in December of 2013, a lawsuit brought against Utah County by the Brown family was decided in their favor on the grounds that the 19th century anti-polygamy laws were in no small part inspired by irrational hostility toward Mormons.
U.S. District Judge Clark Waddoups held that because the law criminalizes “spiritual cohabitation” (arrangements where the participants claim to be part of multiple religious marriages, but make no attempt to obtain state recognition), it violated the First and Fourteenth Amendments (the state of Utah is currently appealing).
Is this really happening?
Polygamy as a form of abuse
Not surprisingly, the rise of polygamy is being met with widespread condemnation on both sides of the political aisle.
Utah State Attorney Parker Douglas contends that the practice of polygamy can be associated with crimes like sexual assault, statutory rape, and exploitation of government benefits, and that maintaining the illegality of polygamy helps investigators gather evidence and strengthens cases against abusers.
Meanwhile, Jonathan Rauch of the Brookings Institute takes a more anthropological stance against polygamy, claiming that “by allowing high-status men to hoard wives at the expense of lower-status men, polygamy withdraws the opportunity to marry from people who now have it.” In this zero-sum game, he argues, the stabilizing institution of marriage is unreachable for lower class men, who then turn to violence and crime.
It comes down to the Constitution
In late August 2015 the Cato Institute, the Kansas-based libertarian think tank, filed an amicus brief in support of the Brown family. In essence, the brief makes the case that in preventing citizens from saying “that’s my wife” in reference to as many people as one wants, the state of Utah is violating the First Amendment. Cato suggests that Utah isn’t criminalizing bigamy so much that it is criminalizing speech.
Regardless of how Brown v. Buhman or Collier v. Twito pan out, the issue of the constitutionality of polygamy is not going to go away any time soon. With the continued influx of refugees and immigrants from Africa and the Muslim world, where polygamy is legal and often widely practiced, the debate may begin to take on a universal tone, challenging our presumptions about marriage in general.
So maybe a slippery slope isn’t such a bad thing? It appears likely we are going to find out in the not-too-distant future.
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