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Polygamy and the Marriage Free-fall
By Andrew T. Walker
December 16, 2013 12:45 PM
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Marriage in America is in a state of free-fall, and it’s the confluence of American attitudes and legal rulings that are responsible for helping push it off the cliff.
On Friday night, a George W. Bush judicial appointee, Judge Clark Waddoups, struck down a part of Utah’s law against polygamy in a 91-page ruling. The case drew nationwide attention because the plaintiff, Kody Brown, is the star of TLC’s Sister Wives, a reality show depicting the life of a polygamist family.
Waddoups’ ruling is fairly limited, insisting that the state’s ban on “religious cohabitation†is unconstitutional, and therefore should no longer be criminalized. The judge left intact the portion of the law that prohibits an individual from obtaining a marriage license while already legally married.
So, according to the ruling’s logic, it is illegal to have more than one legal spouse, but informal, private, or lifestyle polygamy is no longer illegal.
Waddoups’s ruling can’t be viewed in isolation from the events that preceded it, especially the debate over same-sex marriage and the larger effort to undo the norms of family life. Social change, for good or ill, rarely happens at a single moment in time, but over time as the sum total of a thousand smaller events. This Friday night in Utah was one such event.
In his ruling, Judge Waddoups cites the 2003 Supreme Court decision Lawrence v. Texas that rendered Texas’s anti-sodomy law unconstitutional. He even quotes Justice Kennedy’s line that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.â€
In a now-famous dissent in Lawrence, Justice Scalia predicted that the Court’s action in Lawrence in entering moral debates would have the effect of mainstreaming any and all sexual activity under the rubrics of liberty and privacy. As Scalia noted in his 2003 dissent, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. . . . Every single one of these laws is called into question by today’s decision.â€
Even the justices who did not agree with Texas’s anti-sodomy law still considered the Court’s foray into “morals legislation†a matter outside the Court’s jurisdiction. While no one in this debate is calling for a return to anti-sodomy laws, Scalia’s 2003 prescience now seems prophetic of a larger truth about family life in America: It lacks a normative position, an epidemic that Waddoups’ decision only exacerbates.
Critics of the sexual liberation movement, and in particular, same-sex marriage, have long conjectured that redefining marriage to include same-sex persons would open the door to further revision. Once the norms of marriage are based on undefined and vague conceptions of “liberty†and “equality†without addressing the substantive issues of defining what marriage is, marriage can no longer be said to be fixed, but elastic and subject to the demands of democratic fiat.
By Andrew T. Walker
December 16, 2013 12:45 PM
Comments167
Marriage in America is in a state of free-fall, and it’s the confluence of American attitudes and legal rulings that are responsible for helping push it off the cliff.
On Friday night, a George W. Bush judicial appointee, Judge Clark Waddoups, struck down a part of Utah’s law against polygamy in a 91-page ruling. The case drew nationwide attention because the plaintiff, Kody Brown, is the star of TLC’s Sister Wives, a reality show depicting the life of a polygamist family.
Waddoups’ ruling is fairly limited, insisting that the state’s ban on “religious cohabitation†is unconstitutional, and therefore should no longer be criminalized. The judge left intact the portion of the law that prohibits an individual from obtaining a marriage license while already legally married.
So, according to the ruling’s logic, it is illegal to have more than one legal spouse, but informal, private, or lifestyle polygamy is no longer illegal.
Waddoups’s ruling can’t be viewed in isolation from the events that preceded it, especially the debate over same-sex marriage and the larger effort to undo the norms of family life. Social change, for good or ill, rarely happens at a single moment in time, but over time as the sum total of a thousand smaller events. This Friday night in Utah was one such event.
In his ruling, Judge Waddoups cites the 2003 Supreme Court decision Lawrence v. Texas that rendered Texas’s anti-sodomy law unconstitutional. He even quotes Justice Kennedy’s line that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.â€
In a now-famous dissent in Lawrence, Justice Scalia predicted that the Court’s action in Lawrence in entering moral debates would have the effect of mainstreaming any and all sexual activity under the rubrics of liberty and privacy. As Scalia noted in his 2003 dissent, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. . . . Every single one of these laws is called into question by today’s decision.â€
Even the justices who did not agree with Texas’s anti-sodomy law still considered the Court’s foray into “morals legislation†a matter outside the Court’s jurisdiction. While no one in this debate is calling for a return to anti-sodomy laws, Scalia’s 2003 prescience now seems prophetic of a larger truth about family life in America: It lacks a normative position, an epidemic that Waddoups’ decision only exacerbates.
Critics of the sexual liberation movement, and in particular, same-sex marriage, have long conjectured that redefining marriage to include same-sex persons would open the door to further revision. Once the norms of marriage are based on undefined and vague conceptions of “liberty†and “equality†without addressing the substantive issues of defining what marriage is, marriage can no longer be said to be fixed, but elastic and subject to the demands of democratic fiat.
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