I briefly alluded to the federal lawsuit filed by the polygamous group involved in the Sister Wives reality show. Jonathan Turley linked the complaint on his blog. They are challenge an Utah law that has been the subject of some state rulings already, one that covers those who "purport" to be "married" or cohabits with another while married. This is not a mere adultery statute (which he railed against for years) or targeted at those who claim each spouse are "legally" so, attempting to obtain legal benefits (including a license; only one wife was legally married here) arising out of that. So, it is more than a simple claim of bigamy.
Upfront, one can see the problem here. If a couple "cohabits" with a third, which let's say includes a shared sexual arraignment (is that even necessary?) under the same roof, many would not deem this issue for the criminal courts. The group here does not claim civil benefits. They do not wish the state to recognize "marriage" includes polygamous unions. They wish to live together as a family and be able to label themselves "married" (as a same sex couple might without state license if a church blessed their arraignment) in a purely religious sense.
The key case they wish to build off is Lawrence v. Texas. They want to protect an "intimate association," one that does not require the state to provide a "formal recognition" but just not make their "private sexual conduct a crime." The complaint notes in some detail the historical, religious and current presence of the practice of polygamy as well as how open it was, including to governmental officials. The complaint was submitted after the family was under investigation for violating the state law prohibiting polygamy, which only did so after the family went on national television and in effect made their actions blatant. The state even set up an outreach program with polygamous families.
The complaint also notes that the state selectively enforces its laws, particularly targeting certain people in polygamous relationships. This is the normal when such morals legislation is in place -- a consistent application could not be credibly accomplished, so arbitrary rules are set up. Or, someone who is particularly troublesome, such as are too open about what they are doing. This raises freedom of speech and in this context religion concerns; like it or not, the Supreme Court upholds general applicable laws even if it burdens religious exercise. So, peyote use can be banned, even as applied to religious use. But, if only certain types of polygamous relationships are targeted in a way that raises religious biases, it is a problem.
Polygamy is sometimes raised as a slippery slope when same sex marriage or relationships are protected.* The issue here isn't the same as SSM as generally discussed, which is a matter of state recognition, not private practice. This is more akin to a case involving a lesbian couple that got married in a religious ceremony and it was used to bar one from getting a job as a prosecutor since same sex sodomy was illegal at the time. One step further here since criminal penalties are involved. The selective targeting involved here also is problematic.
Various problems related to polygamy are raised. But, that would suggest at best that a polygamous relationship might nullify state marriage benefits. I doubt this group would consent to relinquish the one legal marriage to live in a polygamous relationship, but by my understanding, even if the four were not legally married, they would currently break the law by "purporting" to be married. A purely religious practice would be constructive polygamy. This seems problematic. After all, how many would wish to criminalize a free love commune?
Avoiding sex discrimination in monogamous marriage is still a step beyond polygamy even taking this into consideration. But, fears of slippery slopes or not, Lawrence does suggest protection of various intimate sexual relationships beyond marriage. It's somewhat artificial, but I think a line can be drawn here once a couple gets married. State marriage benefits are in place in part out of the assumption that only one couple is involved, even if adultery or threesomes might be imagined. Actually setting up shop with two or more spouses might be a hard line to draw in some fashion, but that seems to be a step above.
The law however is troublesome for the reasons offered. Putting aside the selective prosecution, the reach is dubious. The cohabitation provision is particularly so. And, overall, criminal laws against consensual adultery are problematic violations of consensual intimacy that is but a step beyond banning fornication. I'm not sure, particularly yet, this will help a man and his four sister wives, but some sort of successful as applied challenge can be imagined given this law's breadth.
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* The other is incest, which also raises various line drawing, involving step, adopted and outside of the nuclear family (what level of cousin?) questions. I watched a miniseries recently where a woman couldn't marry her now dead husband's brother because it was illegal at the time. This was WWI era England. They waited a few decades, having some children along the way, until it was.
Upfront, one can see the problem here. If a couple "cohabits" with a third, which let's say includes a shared sexual arraignment (is that even necessary?) under the same roof, many would not deem this issue for the criminal courts. The group here does not claim civil benefits. They do not wish the state to recognize "marriage" includes polygamous unions. They wish to live together as a family and be able to label themselves "married" (as a same sex couple might without state license if a church blessed their arraignment) in a purely religious sense.
The key case they wish to build off is Lawrence v. Texas. They want to protect an "intimate association," one that does not require the state to provide a "formal recognition" but just not make their "private sexual conduct a crime." The complaint notes in some detail the historical, religious and current presence of the practice of polygamy as well as how open it was, including to governmental officials. The complaint was submitted after the family was under investigation for violating the state law prohibiting polygamy, which only did so after the family went on national television and in effect made their actions blatant. The state even set up an outreach program with polygamous families.
The complaint also notes that the state selectively enforces its laws, particularly targeting certain people in polygamous relationships. This is the normal when such morals legislation is in place -- a consistent application could not be credibly accomplished, so arbitrary rules are set up. Or, someone who is particularly troublesome, such as are too open about what they are doing. This raises freedom of speech and in this context religion concerns; like it or not, the Supreme Court upholds general applicable laws even if it burdens religious exercise. So, peyote use can be banned, even as applied to religious use. But, if only certain types of polygamous relationships are targeted in a way that raises religious biases, it is a problem.
Polygamy is sometimes raised as a slippery slope when same sex marriage or relationships are protected.* The issue here isn't the same as SSM as generally discussed, which is a matter of state recognition, not private practice. This is more akin to a case involving a lesbian couple that got married in a religious ceremony and it was used to bar one from getting a job as a prosecutor since same sex sodomy was illegal at the time. One step further here since criminal penalties are involved. The selective targeting involved here also is problematic.
Various problems related to polygamy are raised. But, that would suggest at best that a polygamous relationship might nullify state marriage benefits. I doubt this group would consent to relinquish the one legal marriage to live in a polygamous relationship, but by my understanding, even if the four were not legally married, they would currently break the law by "purporting" to be married. A purely religious practice would be constructive polygamy. This seems problematic. After all, how many would wish to criminalize a free love commune?
Avoiding sex discrimination in monogamous marriage is still a step beyond polygamy even taking this into consideration. But, fears of slippery slopes or not, Lawrence does suggest protection of various intimate sexual relationships beyond marriage. It's somewhat artificial, but I think a line can be drawn here once a couple gets married. State marriage benefits are in place in part out of the assumption that only one couple is involved, even if adultery or threesomes might be imagined. Actually setting up shop with two or more spouses might be a hard line to draw in some fashion, but that seems to be a step above.
The law however is troublesome for the reasons offered. Putting aside the selective prosecution, the reach is dubious. The cohabitation provision is particularly so. And, overall, criminal laws against consensual adultery are problematic violations of consensual intimacy that is but a step beyond banning fornication. I'm not sure, particularly yet, this will help a man and his four sister wives, but some sort of successful as applied challenge can be imagined given this law's breadth.
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* The other is incest, which also raises various line drawing, involving step, adopted and outside of the nuclear family (what level of cousin?) questions. I watched a miniseries recently where a woman couldn't marry her now dead husband's brother because it was illegal at the time. This was WWI era England. They waited a few decades, having some children along the way, until it was.