Justice Scalia is (in)famous for his view that when the Court struck down Texas’ criminal sodomy statute in Lawrence v. Texas, it undermined bans on “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” To some, this slippery slope argument is coming true in a federal district court in Utah in the case Brown v. Buhman. The Browns, the plural family from the reality television show “Sister Wives,” sued to invalidate Utah’s criminal bigamy statute, which finds a person guilty of a felony when, “knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” This past December, Judge Waddoups struck the words “or cohabits with another person” from this statute as unconstitutional under the First and Fourteenth Amendments.
Immediately, Rick Santorum tweeted, “I hate it when I’m right.” Ken Klukowski of the Family Resource Council and Liberty University law school characterized the ruling as holding that “the legal reasoning of same-sex marriage means that laws against polygamy are likewise unconstitutional,” and said this decision “gives credence to . . . slippery slope arguments.” The State of Nevada tried to raise the same specter in its short-lived defense of its gay marriage ban before the Ninth Circuit, noting Brown v. Buhman plaintiffs among “others already in queue to press their own sincere desires for recognition, for respect and dignity,” and using that to argue that the Ninth Circuit should uphold Nevada’s gay marriage ban. Even such well-known figures as Princeton Professor Robert George (who has been a visiting professor at Harvard Law School for the past two falls) responded with the ominous warning that the court “has taken the first step towards giving polygamy (and, one must assume, polyamory) its Lawrence v. Texas. From there, we all know the script.”
I must be reading a different opinion from those who are concerned about a Fourteenth Amendment-gone-wild. Contrary to Professor Klukowski’s claims, the court explicitly upheld the portion of the Utah statute criminalizing polygamy, finding itself bound by the 1870 U.S. Supreme Court case, Reynolds v. United States addressing the question. While it is true Judge Waddoups criticized the 1870 case, his concern was that the Reynolds Court faulted polygamy as “introducing a practice perceived to be characteristic of non-European races—or non-white races—into white American society.” Judge Waddoups thought that the Court’s reliance on calling polygamy “contrary to the spirit of Christianity” to justify its illegality as “unthinkable as part of the legal analysis of the modern Supreme Court given the significant (and appropriate) development . . . of the protections afforded to religious minorities.”
The critics of Brown, however, focus on drawing nonexistent corollaries with legal challenges under the Fourteenth Amendment by LGBTQ individuals. They neglect to mention that the court did not even mention gay marriage or even cite last year’s Supreme Court gay marriage decision. Indeed, the court explicitly rejected a Fourteenth Amendment “fundamental right” to freedom from prosecution for polygamy under Lawrence. Only after it struck down the portion of the statute forbidding a married individual from cohabitating with a person to whom they were not married as invalid discrimination against religious minorities per the First Amendment, did the court address a Fourteenth Amendment concern. Still upholding the general polygamy ban, the court found no rational basis to “specifically formulate a general policy not to prosecute religiously motivated polygamy, though when it has proceeded anyway, it has invariably been against religiously cohabiting individuals, usually in cases in which the defendant has been convicted of the ‘collateral crime’ that the state has found correlated with polygamy, such as, ‘incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse’ at issue anyway.”
However, the very champions of religious liberties when discussing Christian exemptions to contraception and marriage seem outraged by an opinion that uses religious liberty reasoning to exempt a religious minority from what the Supreme Court itself has characterized as a Christian practice. Perhaps they simply could not set aside their script in which gay marriage leads to polygamy which leads to bestiality and didn’t bother to read the 91-page opinion. However, it is also possible they are realizing that any slippery slope may not be confined to the Fourteenth Amendment. The Reynolds Court itself expressed a concern about the First Amendment being used as a license for people to become a “law unto themselves.” Passing by the irony that this language is itself drawn from Romans 2:14, perhaps they are realizing that if we grant Christians special exemptions to ignore marriage laws under the First Amendment, how long until others, in the words of Nevada, “queue to press their own sincere desires for recognition, for respect and dignity?” Religious exemptions may begin with Evangelical Protestants and Catholics, but Brown shows that the polygamists may even get them, too. Soon, perhaps, corporations will be considered religious, and then why not just grant religious rights to fish and stones?
To the degree religious liberties advocates find offensive the comparison of polygamists, corporations, and fish in the First Amendment context, many LGBTQ individuals find similarly offensive the comparison of gay marriage, polygamy, and bestiality in the Fourteenth Amendment context. It seems that the question of slippery slopes is really just a quest for a limiting principle. If Utah appeals, I hope that the Tenth Circuit, will see the issue as just that, and not confute the issues as much as the first wave of commentators of Brown v. Buhman.
Yes, Brown v. Buhman has nothing to do with marriage- just as we were told that Lawrence had nothing to do with marriage. In both cases, this is true only in the narrowest theoretical sense; in practice, it has everything to do with marriage, as Justice Scalia predicted.
The male-female condition and the monogamy condition of “traditional marriage” are related. The reason that marriage has been limited to two people is that there are two sexes, both of which are (were) required for a marriage. Once that condition is lifted, the monogamy condition no longer makes any sense. There is a dawning awareness of this among academics, such as Elizabeth Brake and Andrew March, who have observed that the new limitations are no less “irrational” than the old ones. Most federal judges striking down state marriage laws, by contrast, lack the willingness to see this. They are plainly unable to explain why group marriage is precluded from the new marriage law they are creating for us. If you doubt this, examine the weak case against polygamy in the majority opinion in the California marriage case (In re Marriage cases, 2008), which is the only Court striking down state marriage laws that has even attempted to distinguish polygamy.
Why is the descent taking some time? As Steve Sailer has observed, the answer is sociological: the entire thing is a popularity contest. Gays are popular within elite opinion (academics, journalists, the arts/entertainment industry, etc.) and fundamentalist Mormons are not. Therefore, the former should get what they want and the latter should not. Logic is simply not part of the equation.