- Readers of Monday's edition of USA Today must have been
shocked to read Jonathan Turley's article promoting the legalization of
polygamy. Then again, it is becoming harder and harder to shock the American
people. In any event, the article serves to prove the point that acceptance
of homosexual marriage will open the floodgates to the normalization of
any and all sexual relationships.
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- Jonathan Turley, Shapiro Professor of Public Interest
Law at George Washington Law School, is a well-known legal scholar. Indeed,
he is one of America's foremost constitutional specialists, whose face
became familiar to most Americans through media coverage of the Clinton
sex scandals and the former president's impeachment trial. Turley offers
a voice of professorial reason, and he has not been closely identified
with social activism. Nevertheless, in his article published in USA Today,
he presents a forceful case for the legalization of polygamy.
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- In the background is a case out of Utah which may lead
the U.S. Supreme Court to review the right of states to criminalize polygamy.
The plaintiff in that case, Tom Green, is a Utah polygamist who has been
convicted in Utah, but has now appealed to the Supreme Court, citing the
Court's 2003 decision Lawrence v. Texas which struck down laws criminalizing
sodomy. As Turley comments, "If the court agrees to take the case,
it would be forced to confront a 126-year-old decision allowing states
to criminalize polygamy that few would find credible today, even as they
reject the practice. And it could be forced to address glaring contradictions
created in recent decisions of constitutional law."
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- As Turley sees it, laws against polygamy run counter
to the logic of the constitution and lack credibility in today's context
of sexual revolution. "Individuals have a recognized constitutional
right to engage in any form of consensual sexual relationship with any
number of partners," Turley argues. "Thus, a person can live
with multiple partners and even sire children from different partners so
long as they do not marry. However, when that same person accepts a legal
commitment for those partners 'as a spouse,' we jail them."
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- The professor's logic makes sense--if we accept his premise
that citizens have "a recognized constitutional right" to engage
in any form of consensual sex with any number of partners, without respect
to gender. As he sees it, criminalizing polygamy is nothing more than a
form of national hypocrisy. Since no existing laws criminalize the sexual
behavior, the criminalization is directed only at those who would solemnize
their sexual relationships by claiming the institution of marriage. As
Turley and polygamists see it, "it is simply a matter of unequal treatment
under the law."
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- Beyond all this, Turley sees religious liberty as an
underlying issue. "The difference between a polygamist and a follower
of an 'alternative lifestyle' is often religion," he explains. And
that religion in this case is Mormonism. The Mormon practice of polygamy
was controversial from the start, and opposition to polygamy was in part
what drove the Mormons to the Utah territory in 1847. Mormon leader Brigham
Young, later governor of the Utah territory, taught that Mormons would
put their salvation at risk by refusing to accept polygamy. However, the
federal government and public opinion were adamantly opposed to polygamy,
and the issue became the major obstacle to Utah's acceptance as a state.
In 1862, Congress passed the Moral Anti-Bigamy Act, which outlawed polygamy
in U.S. territories. The bill was signed into law by President Abraham
Lincoln, and the nation waited to see how Mormons would respond. The answer
came quickly when in 1874 Brigham Young's personal secretary, a man named
George Reynolds, set himself up as defendant in a test case to contest
the constitutionality of the moral act. In 1878, the High Court upheld
the act in the case Reynolds v. United States.
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- In his USA Today article, Professor Turley levels his
guns at that 1878 opinion, charging that the court "refused to recognize
polygamy as a legitimate religious practice, dismissing it in racist and
anti-Mormon terms as 'almost exclusively a feature of the life of Asiatic
and African people.'" Later, the court would declare polygamy to be
both "a blot on our civilization" and "a return to barbarism."
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- According to Turley, this is an undeniable violation
of the Constitution's free exercise clause. "Given this history and
the long religious traditions, it cannot be seriously denied that polygamy
is a legitimate religious belief," Turley asserts. "Since polygamy
is a criminal offense, polygamists do not seek marriage licenses. However,
even living as married can send you to prison. Prosecutors have asked courts
to declare a person as married under common law and then convicted them
of polygamy."
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- Turley does not advocate polygamy, insisting that he
detests the very concept. "Yet if we yield our impulse and single
out one hated minority, the First Amendment becomes little more than hype
and we become little more than hypocrites," he urges. "For my
part, I would rather have a neighbor with different spouses than a country
with different standards for its citizens."
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- But does the criminalization of polygamy violate the
Constitution's free exercise clause? In its 1878 decision, the Supreme
Court ruled that it did not. As evidence, the court cited the state of
Virginia's adoption of a law criminalizing polygamy after it had passed
an act establishing religious freedom and after the state's constitutional
convention had sought an amendment to the Constitution of the United States
stipulating that "all men have an equal, natural, and unalienable
right to the free exercise of religion, according to the dictates of conscience."
Only after adopting these safeguards to religious liberty did Virginia
adopt the statute first set down by King James I of England, making polygamy
a criminal offense punishable by death.
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- When Turley dismisses this argument, he is laying the
groundwork for arguments to be put before the Court citing religious liberty
as the justification for decriminalizing polygamy. In reality, however,
laws against polygamy are more likely to be struck down on other grounds--the
very grounds used to promote same-sex marriage.
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- As Stanley Kurtz noted in a seminal article first published
in the August 4-11, 2003 edition of The Weekly Standard, "Among the
likeliest effects of gay marriage is to take us down a slippery slope to
legalized polygamy and 'polyamory' (group marriage). Marriage will be transformed
into a variety of relationship contracts, linking two, three, or more individuals
(however weakly and temporarily) in every conceivable combination of male
and female."
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- Kurtz is indisputably correct in this assessment, but
same-sex marriage advocates routinely dismiss such claims as scare language
and reckless hyperbole. Kurtz dismisses their evasion. "The bottom
of this slope is visible from where we stand. Advocacy of legalized polygamy
is growing. A network of grass-roots organizations seeking legal recognition
for group marriage already exists. The cause of legalized group marriage
is championed by a powerful faction of family law specialists. Influential
legal bodies in both the United States and Canada have presented radical
programs of marital reform. Some of these quasi-governmental proposals
go so far as to suggest the abolition of marriage. The ideas behind this
movement have already achieved surprising influence with a prominent American
politician."
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- In 2000, after the state of Vermont had adopted legislation
allowing civil unions, Matt Coles of the American Civil Liberties Union's
Lesbian and Gay Rights Project, asserted: "I think the idea that there
is some kind of slippery slope [to polygamy] is silly." Nevertheless,
the ACLU has intervened in Tom Green's case and has declared its support
for the decriminalization of all "laws prohibiting or penalizing the
practice of plural marriage." If Matt Coles can't see the slippery
slope, it is because he is already standing at its bottom.
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- Jonathan Turley's article may serve as a catalyst for
future legal developments, but Stanley Kurtz's article in The Weekly Standard
offers a powerful and persuasive refutation of the pro-polygamist arguments.
Kurtz reviews developments at the level of popular culture, noticing the
emergence of polygamist and polyamorist groups and the publication of Loving
More, which he describes as "the flagship magazine of the polyamory
movement."
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- More frightening still is the survey Kurtz provides of
developments among family law radicals. As he notes, "State-sanctioned
polyamory is now the cutting-edge issue among scholars of family law."
Kurtz provides ample documentation for this claim, demonstrating beyond
doubt that the real agenda behind calls for decriminalizing polygamy is
the destruction of marriage as our society's normative institution. Martha
Fineman, Professor of Law at Cornell University, has argued for the elimination
of marriage as a legal category. University of Utah law professor Martha
Ertman, described by Kurtz as "standing on the cutting edge of family
law," argues for eliminating all distinctions between traditional
marriage and polyamory, rendering the issue "morally neutral."
Martha Minow, professor at the Harvard Law School, wants a complete transformation
of family law. As Kurtz explains, "Minow argues that families need
to be radically redefined, putting blood ties and traditional legal arrangements
aside and attending instead to the functional realities of new family configurations."
Kurtz notes that in their 2002 book Joined at the Heart, former vice president
Al Gore and his wife Tipper used Minow's definition of a family: It is
any group "joined at the heart" regardless of relationship established
by blood or law.
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- We get the point. If marriage is not culturally understood
and legally defined as a relationship between a man and a woman, it can
and will mean anything. Those who claim that marriage can be redefined
to allow same-sex relationships without destroying the institution itself
are lying to themselves and to the public.
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- Jonathan Turley's article serves as a signal of where
the debate over marriage is going. Once again, the courts stand at the
center of this cultural conflict. All this goes to show once again that
we will either define marriage for the courts, or the courts will define
marriage for us. Can there be any doubt where this is headed?
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- R. Albert Mohler, Jr. is president of The Southern Baptist
Theological Seminary in Louisville, Kentucky. For more articles and resources
by Dr. Mohler, and for information on The Albert Mohler Program, a daily
national radio program broadcast on the Salem Radio Network, go to www.albertmohler.com.
For information on The Southern Baptist Theological Seminary, go to www.sbts.edu.
Send feedback to mail@albertmohler.com.
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