Polygamy is a Constitutional Right?
Gosh, I didn't see this one coming.

From the Dallas Voice: The Community Newspaper for Gays and Lesbians in Dallas:

SALT LAKE CITY (AP) — If Texas cannot criminalize sodomy, Utah should not be able to criminalize polygamy, argued the attorney for three adults who want to live together as husband and wives.

The three filed a lawsuit after they were denied a marriage license by the Salt Lake County Clerk’s Office in December.

They ask that the county clerk be required to issue the marriage license, and they seek a declaration that the state’s criminal and civil bans of polygamy are unconstitutional.

“What my clients want is to be able to enter into that relationship without the stigma of being branded as criminals,” civil-rights attorney Brian Barnard argued Tuesday before U.S. District Judge Ted Stewart, who took the case under advisement.
Assistant Attorney General Jerrold Jensen argued that the group lacks legal standing to challenge the statutory prohibition against polygamy because they have not been charged with violating it. He conceded they have standing to challenge civil bans on plural marriage.

Jensen cited an 1878 U.S. Supreme Court decision upholding the polygamy conviction of George Reynolds, personal secretary to Mormon pioneer leader Brigham Young.
“Those concepts and that holding in that case have not been overturned,” Jensen said.

However, Barnard said the recent U.S. Supreme Court decision striking down a ban on private same-sex activities provides a basis for striking down the polygamy ban.

Is this true? Does the Lawrence v. Texas case decided by the United States Supreme Court in June 2003 provide a basis for making this argument? You bet it did.

For those not familiar with the case, Lawrence v. Texas was the case which concerned the Sodomy laws in the State of Texas (but obviously affects the sodomy laws of every other state). It was essentially a revisiting of the case of Bowers v. Hardwick, 478 U. S. 186 (1986) which held that states had the right to make sodomy illegal in their respective jurisdictions. Of course, that was in the 1980s, and there was talk that Justice Powell had said after the 5-4 decision in Bowers that he believed that he had made a mistake and would have voted (if given another opportunity) to strike down such statutes. Of course, Powell has not been on the court for more than 10 years, but the fact that he questioned his own vote and the changing morays of our society made it certain that the Bowers v. Hardwick case would be revisited.

Between Bowers and Lawrence, however, the court took the opportunity to expand on the meaning of the "right to privacy" (which appeared miraculously in the 1965 Supreme Court case of Griswold v. Connecticut) in a case called Planned Parenthood v. Casey. While I don't want to take the time here to go through the entire details of the evolution of the right to privacy from its single celled infancy in Griswold to its full-grown quadriped status in Casey, it is sufficient to note here that the "right to privacy" has continually expanded since its inception in 1965. In Casey, it reached a new zenith in both scope and power when the court described the right to privacy in broad, sweeping terms that transmuted the right into one of "personal autonomy."

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [505 U.S. 833, 852]

If you have never read this language before, take a moment to read it closely. Consider its implications. The right to privacy becomes, under this language, not merely a right preserving the bedroom from the bedroom police. It is not merely a right preserving the right to take contraceptives so as to decide whether one should have children and when. It has evolved into an all-encompassing right that gives individuals a great deal of say in many, many areas that are at the center of the culture wars: euthanasia, abortion, homosexuality, etc. etc. This extension of rights to the individuals must, necessarily, limit the rights of societies to regulate those activities. By analogy, if we have the right to free speech (which we do), the times and ways in which the government can regulate those rights is necessarily limited. Legally, the government may limit that speech only if it can show a compelling state interest and no lesser intrusive alternative. Likewise, if we have the right to personal autonomy (which Casey announces we do), then the right of the government to regulate the activities encompassed in that right is necessarily limited in the same way.

With that background, consider what Lawrence says. The court decided to use the case to continue with its expansive reading of the liberty interest of the Due Process Clause of the Fourteenth Amendment to the Constitution. Justice Kennedy, in the majority opinion, tries to be careful not to overstep the bounds, but the principles he states are certainly more broad than the exceptions he paints. Note, for example, the echoing of the language from Casey in the following quote from Justice Kennedy in the Lawrence case.

The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Consider what he is saying here, as opposed to what must necessarily follow from the language. While he suggests that there are limits to the protections provided by the right to personal autonomy (echoed in the first paragraph, but certainly precedent for the decision) in that the State can regulate a relationship where it "abuse[s] an institution that the law protects", the language surrounding that limitation is much, much broader. So much so, that it all but swallows up the exception he notes. The state is restricted in its attempt to regulate the "personal relations" between people. The state cannot try to define the "meaning of the relationship or set its boundaries . . . ." Adults are free to "choose to enter upon this relationship in their homes and their own private lives . . . ." If a person expresses their sexuality in "intimate contact with another person," that contact is part of a personal bond that is protected by the Due Process Clause of the Fourteenth Amendment. And if the Fourteenth Amendment extends to "intimate contact with another person", why not intimate contact with other "persons"?

Justice O'Connor, in her concurring opinion, chimes in:

Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” [Citation omitted.] Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.”

Thus, moral disapproval of actions by the majority is an insufficient basis for the state to ban a particular activity. Like polygamy, perhaps? Maybe, but Justice O'Connor identifies protecting the institution of marriage as, perhaps, a Constitutionally valid reason to ban marriages outside of tradition.

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

That is, it appears to until you consider Justice Scalian's response to her statement in his dissenting opinion:

But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurispru-dence JUSTICE O’CONNOR has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

I think that Justice Scalia is correct. In fact, Justice Scalia's scathing dissent (of course, all of Justice Scalia's dissents are scathing, so I suppose "scathing dissent" is rather superfluous) shows that the extension of the right to personal autonomy is not only foreseen, it should be expected.

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U. S., at 196.2

He also later states:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead JUSTICE STEVENS’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

So, does the attorney arguing under Lawrence, when coupled with Casey, have a case? Unfortunately, I think so. At least enough to require the court to discover some nuances in these decisions that it has so far failed to voice if it decides to reject the practice of polygamy. I find it hard to believe that this court with its present mix of justices will be inclined to discover any such nuances.


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