Warning: Polygamy Will Be Legal in 2004, Incest by 2009
And now for a little prophecy.
In 2004 the U.S. Supreme Court will hear a case that challenges the existing laws against polygamy in Utah — let's call it Green v. Utah.
Citing its decisions in Planned Parenthood of Southeastern Pa. v. Casey (1992) and Lawrence et al v. Texas (2003), the court will strike down Utah's statutes against polygamous unions.
Within five years the Supreme Court (again citing Casey and Lawrence) will also strike down all laws banning homosexual marriage, prostitution, pedophilia, pornography and bestiality as unconstitutional.
What is the cause of this dismal prophecy?
Not long after the court decided its landmark pro-homosexual Lawrence et al v. Texas (2003), Utah polyga-mist Tom Green geared up to challenge the Utah law citing Lawrence as precedent — correctly I should add.
Green was convicted in 2001 of violating Utah's bigamy laws — four times over, since he claimed five wives — and he is now bent on reversing the decision and clearing his name. As Green's attorney John Bucher argued, Green's polygamy “doesn't bother anyone, [and with] no compelling state interest in what you do in your own home with consenting adults, you should be allowed to do so.”
A little background. While the Mormon Church banned polygamy more than a century ago (in a deal to grant Utah statehood), there are an estimated 30,000 such polygamous unions in the West. A rather significant class, to say the least.
But, happily for Green et al, the days of anti-polygamist discrimination are numbered, and Green and his attorney correctly view Lawrence as the judicial ax fit to fell what they consider to be an egregious violation of the constitutional rights of polygamists in all 50 states.
Well, in Lawrence, the court jettisoned, in one fell swoop, the Judeo-Christian moral tradition and the legal tradition of stare decisis (rule by precedent) by which that moral tradition has had its life in the judicial interpretation of law. It did so in the name of affirming homosexuality by federal judicial fiat, specifically rejecting its own recent precedent in Bowers v. Hardwick (1986).
But as polygamist Green rightly notes, the reasoning of the majority in Lawrence (led by Catholic Justice Anthony Kennedy) spells the end of all legal restrictions in regard to sexuality and marriage. In Bowers the court argued that “decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.” Thus, states could indeed legislate against homosexual acts, whether public or private.
In Lawrence, less than 20 years later, the court suddenly found that this moral tradition was inconsequential and hence nonbinding as a mode of interpreting law.
Instead, Kennedy led the court in presenting a newly minted judicial coin, the emergent awareness doctrine: “In all events we think that our laws and traditions in the past half-century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Emergent awareness, so the argument goes, trumps “Judeo-Christian moral and ethical standards.”
And so the court discovered that homosexual acts fall under Fourteenth-Amendment protection, which guarantees that no state shall “deprive any person of life, liberty or property without due process of law.”
From homosexuality to polygamy? What possible connection could exist? Witness the slide, friends. First of all, as with the moral prohibition against homosexuality, the legal origin of anti-polygamy laws is almost exclusively Christian and hence ripe for dismissal as irrelevant via the emergent awareness doctrine.
Second, in affirming homosexuality in Lawrence, the court held up, as a kind of judicial principle for interpreting the word “liberty” in the Fourteenth Amendment, the infamous assertion that “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.”
This statement, as Kennedy reminds us in Lawrence, refers directly to the “constitutional protection [afforded] to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.” Well, what could be more personal and hence protected than the right of six people, one man and five women, to be married by common consent?
To make the point, allow me to present the words of Kennedy in Lawrence. As a little game, see if you can see any reason to exclude polygamy. “When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.
“The Bowers’ court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this court's obligation is to define the liberty of all, not to mandate its own moral code.”
Doesn't criminalizing polygamy subject polygamists to discrimination? And again, powerful voices condemning polygamy are no concern of the court, whose only obligation is not the mandating of morality but defining the liberty of all, including polygamists.
In overturning Bowers, Kennedy asserted that the dissent in Bowers by Justice John Paul Stevens has now been given life in Lawrence. “[T]he fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; … [I]ndividual decisions by married persons concerning the intimacies of their physical relationship … are a form of ‘liberty’ protected by the due process clause of the Fourteenth Amendment.” Prepare for the return of polygamy.
As for the other half of my prophecy, listen to the scathing words of dissenting Justice Antonin Scalia:
“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.”
Benjamin Wiker writes from Steubenville, Ohio.
- January 4-10, 2004