Advocacy groups for polygamy and individual liberties on Saturday hailed a federal judge’s ruling that key parts of Utah’s polygamy laws are unconstitutional, saying it will remove the threat of arrest for those families.
U.S. District Judge Clark Waddoups said in the decision handed down Friday that a provision in Utah law forbidding cohabitation with another person violated the First Amendment right of freedom of religion.
The ruling was a victory for Kody Brown and his four wives who star in the hit TLC reality show ‘‘Sister Wives’’ and other fundamentalist Mormons who believe polygamy brings exaltation in heaven.
This ruling doesn’t legalize polygamy, but if upheld it would decriminalize it. I have no doubt that is the correct ruling, whether due to religious freedom or individual liberty. In either case, I see no reason why any government can tell people with whom they can and cannot live. (Utah didn’t even stop at that rights violation: the state went so far as to say people couldn’t claim to be married to multiple people.) However, the question of legalization is a different one.
It’s hard to see a reason why one should care about the lifestyle choice of consenting adults. I don’t. It doesn’t affect anyone else in any way whatsoever. However, that doesn’t mean the government should necessarily go about endorsing contractual agreements that bestow various rights, privileges, and tax conditions.
The fundamental question concerning the legalization of same-sex marriage is one of equality: the government can’t invent/endorse a practice that it limits on the basis of an inherent human condition like race or sexual orientation – at least not since the 14th Amendment. That’s exactly what it has been doing (and in many states is still doing) by barring same-sex couples from marrying. With polygamy, however, that is not what’s happening. The basis for barring polygamous marriages is rooted, right or wrong, entirely in a moral stance which passes judgement on the preferences, not orientation, of individuals. Polygamous marriages and same-sex marriages are apples and oranges.
None of this – to this point – is to say one way or another whether or not I’m in favor of legalizing polygamous marriages. Up until now I’ve only discussed what it is. So with that said, let me state: I don’t think it should be legal. I have two primary reasons for my position.
First, I believe one of the most important rights bestowed upon couples who get married is one of spousal privilege where a spouse cannot be compelled to testify against another spouse in a court. Aside from the fact that any right which prevents the government from gaining any evidence against a person for any reason is a fundamentally good thing for freedom, spousal privilege is necessary to fostering healthy relationships. Allowing the government to force a spouse to turn on another spouse can only serve to prevent married couples from free discussion, thus weakening their marriages. This right is to marriages as the ecclesiastical privilege is to religious freedom. Just as forcing clergy to divulge information told to them by penitents would weaken a person’s ability to freely practice his religion, forcing a spouse to divulge information gained via marriage would weaken a couple’s marital bonds. Now, the reason I bring this up is that there is absolutely no circumstance in which I believe this right should be destroyed, yet that is exactly what would be necessary if polygamy was legalized. If any number of individuals could marry, there is nothing stopping a criminal enterprise from conducting a mass marriage, thus gaining spousal privilege for any number of thugs. This would be great for their freedom, but it would be very bad for everyone else’s safety. (In a weeks-old discussion from Facebook someone made the point that if just one person wanted a divorce, it would become necessary for all the other spouses to divulge all financial information, which no crime organization would want. I was asked if I really thought such people would expose themselves that way. The answer, of course, is yes. First, it’s a risk, to say the least, to divorce one’s self from a crime organization, whether in a symbolic sense or in this fictional legal world. Second, crime organizations aren’t exactly known for their well reconciled check books.)
Second, it’s hard to fathom how the tax code would cope with this change in law. A fundamental overhaul would be necessary, which could be done I suppose, but no doubt people would take advantage of it for the sake of saving a few bucks, no matter how careful the changes were. I know I would. This isn’t an insurmountable objection to polygamy (hence why it’s my second, not my first, point), but it’s definitely a huge issue.
At any rate, criminalizing polygamy is just making up a crime. And being against polygamy on moral grounds is some pretty weak sauce. However, simply due to a single, fundamental right bestowed upon married couples, I can’t possibly support legalized polygamous marriages. I imagine there are actually a host of rights to be considered here, but I see no need to go beyond just the one given its importance. We can’t get rid of it – that weakens marriage and individual freedom – and we can’t grant it to everyone – the exploitation would be insane – and we can’t grant it to one group of married couples while denying it to another – that’s no different from what we’re seeing now with the non-legalization of same-sex marriage. The only solution is to keep legal marriage defined to two individuals.