The Salt Lake Tribune reported in July that an "attorney for a reality-show family files a lawsuit that could send the state’s ban on plural marriage to the U.S. Supreme Court. Nationally-known constitutional law professor Jonathan Turley said the lawsuit to be filed in U.S. District Court in Salt Lake City will not call for plural marriages to be recognized by the state. Instead, it asks for polygamy between consenting adults like his clients, former Utahn Kody Brown and his wives, to no longer be considered a crime." Turley however makes clear that he is not going to argue before a federal district court that marriage certificates must be in accord with the Constitution provided by States to a second or third spouse, or however many the case may be, but only that laws that criminalize polygamy must be abandoned. "We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs," Turley said in a press release. His clients star in the TLC network show "Sister Wives" and have been the subject of investigations by the State of Utah regarding possible polygamy charges. No charges have yet been filed.
How is he possibly going to argue that the Constitution demands decriminalization of polygamous marital relationships? The challenge is at its core based on the Fourteenth Amendment. The simple fact, however, is that the original meaning of the Fourteenth Amendment as understood by those who drafted and ratified its provision in no way can lead to such an absurd result in any of its clauses. The Fourteenth Amendment was ratified in 1868. In 1854 the Republican party termed polygamy and slavery the "twin relics of barbarism." The Fourteenth Amendment was introduced and drafted by Congressional Republicans. When looking to the history before and after the Fourteenth Amendment was ratified as seen in Congressional legislation, it becomes obvious that no one thought that the Fourteenth Amendment said anything at all about polygamy. A few decades before the Fourteenth Amendment polygamy had been against the law. As but one example, polygamy was made illegal in the state of Illinois during the era when several top Mormon leaders, including Joseph Smith, Brigham Young and Heber C. Kimball, took plural wives. The Fourteenth Amendment was plainly not meant to overturn this. Looking to federal statutes passed by Congress as examples around the same time as the Fourteenth Amendment was ratified in 1868 one finds The Morrill Anti-Bigamy Act of 1862, the Poland Act of 1874, Edmunds Act of 1882, and the Edmunds–Tucker Act of 1887, all are clear indications of the anti-polygamy views and attitudes as expressed in actual legislation of the era in which the Fourteenth Amendment became part of our Constitution. The practice of polygamy continues to be illegal in all 50 states.
Reynolds v. United States (1878) was a Supreme Court decision that dealt with a challenge to the Constitutionality of certain federal anti-polygamy laws, in large part based on the argument that polygamy was a deeply held religious belief of those engaged in it and therefore the legal restrictions and punishments imposed violated the First Amendment's guarantee of "free exercise" of religion. The Supreme Court famously upheld anti-polygamy laws in its ruling, stating in what still stands as binding precedent:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.Neither the clause of the Fourteenth Amendment which demands States provide "due process of laws," "equal protection of laws," or the "privileges or immunities of citizenship" are in any way violated by the criminalization of polygamy.
If there is no actual Constitutional basis for the challenge, what possibly can Turley's argument be based upon? The New York Times reported that "the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the 'intimate conduct' of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own 'intimate conduct' so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses." Thus the entirety of the challenge is based upon an unconstitutional and specious ruling from the Supreme Court in 2003. Justice Antonin Scalia persuasively pointed out in his dissent in Lawrence v. Texas (2003) in regards to the original meaning of the Fourteenth Amendment, that “sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today [as Lawrence is being handed down], 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.” The idea that the original meaning in 1868 of the Due Process Clause or the Privileges or Immunities Clause was to anyone that sodomy or like laws must be overturned is nonsensical and simply not historical. It is an utter abuse of the original meaning.
However, such is the road paved by the "living Constitution." One baseless Supreme Court precedent serves as an argument for the next baseless precedent. Often in debates or discussions regarding homosexual marriage, arguments are discounted as being unfathomable and unrealistic "slippery slopes." What Turley's lawsuit proves is what should already have been obvious. This sort of dismissal is a demonstration of the inability to distinguish between legal and policy arguments. In the context of policy arguments, the slippery slope argument may not always be the best of arguments if one can simply counter the slippery slope is unlikely or outlandish. That might alone be enough quell the concern as a policy matter. Further, legislation by its very nature addresses only those facts that fall within the legislation, and no more. People don't seem to realize that the "slippery slope" is actually a critical argument in application of or announcing new legal principles. It is actually essential because, as Judge James Graham wrote in his dissent to the Sixth Circuit Court of Appeals ruling upholding the Obamacare individual mandate (unlike the 11th Circuit), "one exercise of power becomes precedent for the next contemplated exercise." The Supreme Court will eventually announce a rule, and that rule will not be limited to just the facts of that particular case. It will be applied to others. Hence, by definition, in the context of legal justification for law the slippery slope argument is actually very relevant. It forces the person making the justification or crafting this new rule to either admit there is no limit to the reach of the new principle (which is often an admission of having been refuted), or else actually find some reasonable distinguishing element to include within the rule. I have seen this silly dismissal of arguments because they are "slippery slope" made in other contexts as well (e.g., most commonly in discussing gay marriage court rulings), and in many there seems to be the inability to grasp the basic point that it is of course expected and justified to challenge the prospective announcement of a new legal principle by asking about other scenarios that a new rule would in principle apply to. The built-in consequence of court rulings is that PRECEDENT should be established and the ruling should apply to many other hypothetical cases. The slippery slope is therefore key to legal argument. If a rule cannot be crafted that can address the slippery slope, then it should become clear that either the new rule is unjustified and therefore the answer is easy (i.e., Obamacare mandate unconstitutional) or that the issue is outside judicial scope and must be left with the legislature which can clearly limit the legislation to particular scenarios (i.e., definition of marriage is a state legislature issue). A legal precedent simply does not do what legislation does, which is take into account the slippery slope and address only that which it addresses, and hence investigating the underlying legal principle by means of slippery slope is actually essential.
The fact is that Turley has a strong argument based on that unsound Supreme Court precedent that is Lawrence v. Texas . The Supreme Court actually cited "freedom" that "extends beyond spatial bounds" and "liberty...in its spatial and more transcendent dimensions" to strike down the Texas sodomy law in 2003. Justice Anthony Kennedy declared that, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." The Supreme Court said that "[w]hen 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." Overturning its own precedent that was only 17 years old in Bowers v. Hardwick (1986) upholding State sodomy laws, the Supreme Court instead decided to arrogantly state that the original meaning of the Fourteenth Amendment was irrelevant, because "those who drew and ratified the Due Process Clauses of...the Fourteenth Amendment" apparently "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Of course, Justice Kennedy left unexplained why the one unelected branch that is the Supreme Court is to be the one tasked with making this determination as to what is or is not "oppressive" rather than the elected branches or the people themselves when the Constitution's provisions as intended are not truly at issue. Of course, there is no "Oppressive Clause" in the Constitution, which is yet another vagary so malleable that it means only what five Justices of the high court want it to mean. There is only the text of the Constitution which is nowhere violated in Lawrence v. Texas. But with this precedent already in place, the polygamists should very credibly now be able to argue that polygamy must be decriminalized because it is a matter of autonomy of self, a matter of personal freedom and liberty, and all sorts of other vague concepts announced in a Supreme Court opinion that was far more about reaching an intended result than it was about adhering to Constitutional principles. The polygamists should be able to argue that these polygamy laws were a product of the blinded backward times in which they came from, and now only serve to oppress. Any distinction will be utterly disingenuous, a further proof that the Supreme Court all too often reasons backwards, finding its result first and then comes up with its reasoning afterwards. There is absolutely no reason the Lawrence v. Texas precedent, if taken seriously, should not result in the decriminalization of polygamy.
While Turley disclaims any intent to force the several States to provide plural marriages with certificates and all the benefits therewith, it is of course the ultimate result that could emerge if the federal judiciary were to rule his way in his case, just as Judge Vaughn Walker absurdly ruled the Fourteenth Amendment demands that every State provide gay couples with marriage licenses. Federal district court Judge Vaughn Walker can be seen relying in large part on Supreme Court precedents like Lawrence v. Texas which was limited in theory only to decriminalizing sodomy. In fact, Justice Antonin Scalia predicted in dissent in Lawrence, "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." Scalia was clearly correct, as the laws against polygamy are currently being called into question in a federal court case on the basis of that decision from which he so vigorously dissented.
Of course, Turley's conceding that the Constitution does not disallow a State to restrict marriage to monogamous couples, or at least unwillingness to argue that the Constitution demands polygamous marriage certificates be provided by the States, itself shows the weakness of his argument. Following his line of thinking, there is no right to be "married" to more than one spouse with a certificate. But then there is simply no Constitutional right to be "married" to more than one person. This should therefore apply whether or not each and every person within that relationship gets a license from the State (which of course cannot happen because that is, for now, against the law). If marriage can be defined, violating those laws defining marriage openly can be criminalized by engaging in a "married" relationship with more than one person against the definition of marriage.
The most important point is that there is now new precedent on the books with the 2003 case of Lawrence v. Texas. Without that case, this challenge of Turley on behalf of polygamous reality TV stars would be a sure loser. There is little doubt about that. With that one sodomy law case if it were to actually be honestly applied, it would seem like Turley has an easy winner. What is also beyond doubt is that this polygamy lawsuit has therefore got to have those engaged in the federal lawsuit falsely claiming that the Fourteenth Amendment demands gay marriage nationwide, and who in that battle refuse to acknowledge the possibility of a new judicially created legal principle creating a slippery slope, quite annoyed. Tweet
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