Tuesday, August 9, 2011
The new polygamy case
Last month Jonathan Turley filed a complaint challenging Utah's criminalization of polygamy. I hadn't even heard about it until a reporter called to ask about it, but now that I've had to give it some thought, I find it an extremely interesting and challenging case. Turley is not challenging the exclusion of polygamy from the state's definition of marriage; he's simply challenging its criminalization. Not surprisingly, he relies heavily on Lawrence v. Texas, and there is something to be said for this argument -- just as the state cannot intrude on the privacy of two individuals' intimate same-sex sexual relationship, so (Turley says) is the state forbidden from intruding on the privacy of multiple adults' intimate plural sexual relationships. The potential distinction lies in Turley's characterization of "plural families" as "private conduct between consenting adults." I agree that, if a group of adults decided to engage in multiple sexual relationships within the group in the privacy of their home(s), the state would have a hard time prosecuting them in the wake of Lawrence. But Utah is only threatening to prosecute adults who are living openly (and very publicly, given the television reality show, "Sister Wives," that is based on the lives of Turley's clients) as a polygamous family in fact, if not in law. Crucially (in my view), they are also raising children within that polygamous family. When we're talking about raising children, we're not talking about strictly private conduct and we're not under Lawrence. That doesn't settle the matter, though. Three lingering questions:
1) Assuming that the state portrays its interest in criminalizing the conduct as relating to the well-being of children, who bears the burden of proof to show the link between polygamous families and children's well-being? Does the state have to come forward with empirical evidence to support its interest, or is enough to say, "We believe that there is a plausible basis for enshrining in law the importance of having parents equally committed to each child within the family?" In the SSM context, it appears that courts are becoming more inclined to give the states the burden of proof, and I'm not sure if Utah would be able to produce evidence to satisfy the burden here. Of course, it's very difficult to come up with empirical evidence justifying a prohibition unless the prohibition is lifted.
2) Should advocates of parental rights be concerned if the state is permitted to criminalize parental conduct based on assertions of children's well-being absent demonstrable evidence? Assuming that straight moral condemnation is taken off the table by Lawrence, if courts interpret children's well-being loosely, could that create problems down the road for families who rear their children based on other sorts of counter-cultural norms?
3) Though Turley claims to have no interest in challenging the marriage laws, if he wins this suit, will there be a state interest sufficient to justify polygamists' exclusion from state-recognized marriage? Of course there is a conceptual difference between throwing someone in jail for their relationships and giving their relationships official recognition, but is there an articulable difference in the state's interests in this context? We've seen Lawrence invoked in some SSM cases (as Scalia predicted); if there is no good reason for the state to criminalize polygamy, is there any good reason for the state not to recognize polygamy?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/08/the-new-polygamy-case.html
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I think the criminalization question breaks down into 3 aspects: sex, communal living, and potential fraud on 3rd parties. Only the last is a valid basis for criminalization, probably. Any harm to children has to be covered under specific child abuse or neglect laws, with the specific harm at issue as a factual predicate.
1. Sex - Under Lawrence, there seems little basis for criminalizing any sex among consenting adults, whether open marriages, swinging, a regular Saturday night orgy club, and so on. A long-term sexual relationship can be any combination of numbers and genders, I'd think. What is the difference between Hugh Hefner's live-in harem and Utah's polygamists, at least on the sex part?
Perhaps Lawrence still leaves room to criminalize adultery, in the name of protecting the "one state-recognized marriage," but maybe not. If it can be done, it would have to cover everyone, not just the polygamists, and it also seems that the polygamists could avoid the law by not putting any marriage on the books with the State.
2. Communal living - Is there any basis for banning multifamily living that is not accompanied by a public acknowledgment of certain sexual arrangements? I doubt it, and it's not uncommon. It's even a long-term staple of sitcoms, with varying combinations of moms, dads, couples, and their kids sharing a home.
I don't think you can outlaw 3 moms sharing a home with their several kids, or 3 dads, or 2 dads and a mom married to one or neither of the dads. Could you?
Then, if any of them add a sexual relationship to the mix, does that combination trigger a per se state interest against the entire arrangement? If the sitcom Kate and Allie moms added a third mom, and 2 of the 3 slept together, so? Which part is then the problem, the sex or the communal living, or can two "rights" make a wrong when mixed?
There may be issues about which parents control which children, but that's no different from other tangled family relationships, and the state may mediate custody disputes later, or schools need to know who speaks for a child, etc. But that does not call for banning the arrangement to begin with.
The state has 2 valid interests, re 3rd parties and children:
3. Third parties - Perhaps, if the wives hold themselves out as "legal wives," someone could be defrauded by implicitly accepting a principal-agent relationship, and allowing purchases on "his" credit, or some other reliance. But I doubt that can justify an all-out ban, but only a ban that covers those who claim multiple legal marriages.
4. Harm to children - I don't think there's a definable harm to children, from the sex side or the communal living side, that justifies a categorical ban. After all, exposing a kid to a revolving-door of boyfriends/girlfriends might be harmful, but could you pass an advance ban on more than 6 partners per year? Per week?
If the orgy's in front of the kids, you could prosecute at some point, whether for abuse, contributing to delinquency, whatever. But again, I don't see a way to pre-define the offending arrangement.
The most interesting point, to me, is the intersection between the "old-style" polygamists, who are tagged by some as "ultra-conservative," and the many "new style" arrangements that are welcomed by some, or condemned by others, as too "liberal." Take the patriarch out of the house, and it's a cliche 1970s feminist communal paradise. On the sex part, it's Hefner meets Joseph Smith. So any attempt to regulate the "Mormons" (as they self-identify) runs into equal protection problems, or even free exercise problems, if we don't equally go after the Hefners, or interrogate multi-family homes about their sex lives. (Did Kate sleep with Allie? What about the Full House guys? And so on.)
Finally, on your separate question about legal recognition, the strongest argument for limiting marriage to two in number, regardless of gender, is the state's simple administrative need to have one spouse for pensions, social security, intestate inheritance, and so on.