Gay Polygamy in Utah!

December 20, 2013 | 27 comments
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mUX_twETB9XdG_75sgCSB3ABy now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional.

What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin!

Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be.

I. The Polygamy Case (Brown v. Buhman)

Last week judge Clark Waddoups, a George W. Bush appointee, issued a ruling in the Brown v. Buhman case. That case involved a lawsuit by Kody Brown, a practicing polygamist and reality-TV star, who challenged the cohabitation prong of the Utah statute.

By way of background: Utah has a highly unusual bigamy statute which doesn’t just ban multiple marriages, but also cohabitation by a married person. The statute is an artifact of the history of legal prosecution in early Utah. The original laws were ineffective because they required actual marriages. These were very hard to prove in criminal court. Mormon witnesses “forgot” the facts, refused to provide records, and so on. So finally, the government banned not just polygamy but also multiple cohabitation by a married person. The result was a quirky statute in which a defendant didn’t need multiple spouses — or any spouse at all! — to be found guilty of bigamy.

But it’s a law that was only ever enforced against Mormons. That is, if someone was just a ladies-man, a Hugh Hefner type married with three live-in girlfriends, they wouldn’t be prosecuted. But a Kody Brown — who has three women he calls wives, although they’re not legally married — could be prosecuted. (Actual prosecutions were rare for bigamy alone.)

In an interesting twist, the Brown v. Buhman court ruled on religious freedom grounds, not sexual autonomy grounds. The court did note that, under Lawrence v. Texas and related cases, courts have set out higher protection for individual relationship autonomy. Ultimately, though, the court’s ruling was based on the anti-Mormon intent and practice of the law in question. (For more about the background of the law and its practice, see this panel discussion.) As such, it was a limited ruling. The court struck down the ban on religiously-motivated cohabitation. However, the lawsuit did not challenge the ban on formal polygamy (more than one marriage license). And the ruling only decriminalizes the practice; it does not result in state-recognized legal relationships.

II. The Same-Sex Marriage Case (Kitchen)

The ruling in the same-sex marriage case was issued by Judge Shelby, a very new and very young Obama appointee. He’s was not a controversial appointee; sharply conservative senator Mike Lee said that Shelby would be an “outstanding judge.

The court opinion is fascinating for a number of reasons. For one, Judge Shelby quotes repeatedly from Justice Scalia’s dissents in gay-rights cases. Justice Scalia is known for invoking a parade-of-horribles argument in gay-rights cases: If the court recognizes this right, then gay people will be able to marry. The horror!

Judge Shelby takes Scalia at his word and cites these dissents approvingly. Yep, the door to gay marriage was opened up. Justice Scalia even said so! It’s a very satisfying bit of jujitsu for gay rights advocates.

Judge Shelby’s opinion engages in some complicated back-and-forth on the constitutional law claims. He suggests that plaintiffs would have a potential claim under sex discrimination (a basis which Judge Walker’s district court opinion also used). He also suggests that heightened scrutiny could apply, as could animus review; but he ultimately bases the ruling on the rational basis test. It’s an opinion quite similar in that regard to Judge Walker’s ruling in the Prop 8 litigation; and in its discussion of potential prongs, it’s also not unlike the polygamy ruling, although the legal specifics are very different.

I’ll write more on the specific constitutional law aspects of the ruling in a follow up.

In the mean while, the ruling has had an electrifying effect on Utah’s LGBT community, as individuals have married longtime partners.

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III. Thoughts and Reactions

A. The Inevitable Backlash

I’ll post a follow-up collecting and discussing reactions.

B. The red herring of “traditional marriage”

People opposed to the polygamy ruling as well as to gay-rights rulings in general often call themselves proponents of traditional marriage. There’s a real nomenclature problem there, though. This nomenclature problem is especially acute in Utah, which was settled by polygamist pioneers who were fleeing to the new territory in part to exercise their religious freedom and practice polygamy. (And if we’re looking further in the past, there’s a long tradition of polygamy in the Judeo-Christian tradition, dating back to Abraham, Jacob, Moses, and other patriarchs.)

Brown v. Buhman highlights the implausibility of calling this group, defenders of traditional marriage. Their vision of relationships is no more traditional than Kody Brown’s. As a matter of nomenclature, it probably makes sense simply to call them, “straight monogamy proponents.”

C. Religious Freedom

Religious freedom cuts in fascinating ways. It is a common theme invoked by opponents of gay-rights rulings. Yet the Brown v. Buhman court explicitly based its ruling on religious freedom. And in doing so, it undercut Reynolds v. United States, which is a horrible case for religious freedom.

I’ll write more on this in a follow-up; just highlighting the issue for now.

D. Ducking the issue

Duck Dynasty

How does this relate to Duck Dynasty? I’ll address that in a follow-up as well.

IV. Legal Analysis

A. The opinions are not connected.

As an initial matter, it’s important to note that these opinions are not connected. They are not connected in their legal conclusions. They involved very different plaintiffs making very different legal claims.

The Kitchen v. Herbert opinion relies on rational basis review, to arrive at a conclusion based on equal protection. The Brown v. Buhman opinion relies on the First Amendment, and its conclusion is based on religious discrimination. They don’t cite to each other. And they don’t rely on the same key underlying cases in their conclusions, either, because they arrive at very different conclusions.

In addition, the two opinions arrive at very different remedies. Kitchen v. Herbert strikes down a state law which prohibits recognition of same-sex marriage, with the conclusion that the state must recognize these as legal marriages. In contrast, Brown v. Buhman simply decriminalizes a type of religiously motivated cohabitation.

B. And yet, they reflect some common ground

While it’s easy to pooh-pooh the critics who see a coordinated attack on the meaning of marriage, I do think that the two opinions reflect some common themes. In particular, both of the courts recognize a shift in public views about regulation of sexual autonomy. Both also recognize shifting ideas about what should be considered rational. While they do not reflect a unified legal theory, both reflect a world of changing social norms.

As the Kitchen v. Herbert court notes, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

As previously marginalized groups push for broader recognition, they potentially help shift the boundaries of rational state action.

C. Sects with Ducks?

Do these opinions mean that, inevitably, laws against incest or bestiality will be struck down? (Cue scary music.)

Not really. Brown v. Buhman is the easiest to dismiss here. Remember, it was a ruling based on religious freedom. If a state passed a law or enforced it solely against one religious group — e.g., Episcopalians may not have relationships with animals, but everyone else can — then that law would probably run afoul of the court decision. Otherwise, it’s not an issue.

The Kitchen v. Herbert opinion is also unlikely to be extended in this direction. The court’s rational basis review probably would not apply to strike down laws against incest or bestiality. These are criminal laws; the case didn’t address criminal laws, and was focused only on marriage rights. Both of these are likely no-gos.

E. Gay Polygamy and the Future of Marriage

So, does this mean that a guy in Utah can now have not only two wives, but also two husbands?

It’s a fun and goofy idea. But the answer is, not really.

Remember, the polygamy ruling only invalidated the cohabitation prong of the statute, not the marriage prong. And it didn’t actually require state recognition of religious cohabitants as married. It simply removed the criminal penalty.

So, the effect is now that — if a man is married (to either a man or a woman) and he establishes additional cohabitating relationships (again, with either men or women or both), he and his cohabitating partners will not be subject to criminal prosecution and potential jail time for entering into those cohabitating relationships.

But it doesn’t mean that the state will recognize those relationships as marriages. They won’t. And if he does seek multiple marriage licenses, he can still be put in jail for that.

What does this say overall? I posted a picture from an article in The Advocate about gay polygamy. These decisions, in some ways, may reflect a view that families come in all different forms.

Of course, it’s entirely possible that they’ll be reversed on appeal. But for now, they’re a fascinating window into ideas about what marriage means, and what kinds of marriages the state should leave alone, or even recognize. I’ve tried to set out some of the basic issues here, but as you see, there’s a whole lot more to discuss. I’ll go into more depth on some of these issues in future posts.

(Cross-posted at Concurring Opinions.)

27 Responses to Gay Polygamy in Utah!

  1. Lorian on December 21, 2013 at 1:15 am

    So very happy for all the gay and lesbian couples getting married today.

  2. Russell Arben Fox on December 21, 2013 at 9:03 am
  3. Jettboy on December 21, 2013 at 9:50 am

    Hopefully Utah Mormons, if no one else, will become far less tolerant of gays and those who support them in the Church. They got their secular “freedom,” and can now lay in the bed they made. You call yourself gay? You have no business coming to church unless you repent and reject that you are one. Then you need to prove it by getting married and staying that way. Mormon gays and supporters think its going to be easier now. Nope. Its going to become much harder. You used to be a nuisance. Now you are a mortal enemy.

  4. Sam Brunson on December 21, 2013 at 11:17 am

    Jettboy, whence the “mortal enemy” language? That’s completely and totally outside even the broadest interpretation of Mormon thought. Viz,

    The experience of same-sex attraction is a complex reality for many people. The attraction itself is not a sin, but acting on it is. Even though individuals do not choose to have such attractions, they do choose how to respond to them. With love and understanding, the Church reaches out to all God’s children, including our gay and lesbian brothers and sisters.

    [Source.] So, just to keep the record straight, the Church does not view gays and lesbians as either (a) nuisances, or (b) enemies. Rather, they are our brothers and sisters, to whom we have a duty to love and invite to join us.

  5. Peter LLC on December 21, 2013 at 11:36 am

    Thank you, Sam, for that charitable response to Jettboy’s unfortunate and misguided remarks.

  6. Lorian on December 21, 2013 at 12:27 pm

    Well-said, Sam Brunson. Thank you.

  7. Wilfried on December 21, 2013 at 12:48 pm

    I wondered if Jettboy was being satirical. If not, this is the kind of language “from the U.S.” that inspires and justifies some African nations to apply the death penalty to gays and lesbians. The very same day that judge Shelby declared the ban on same-sex marriage unconstitutional in Utah, the parliament in Uganda approved a law that punishes homosexual acts by 14 years to life in prison. All in the name of Christian morality.

  8. Julie M. Smith on December 21, 2013 at 12:57 pm

    Nice, Sam. Thank you.

    I’d add that the LDS Church clearly was not thinking of the LGBTQ community as “a mortal enemy” but rather as a minority group in need of and deserving of specific legal protections when they went to bat for their housing and employment rights:

    http://www.deseretnews.com/article/705343621/Mormon-church-supports-Salt-Lake-Citys-protections-for-gay-rights.html?pg=all

  9. Jettboy on December 21, 2013 at 1:11 pm

    I am completely and unapologetically serious. As for the Africa law, one of the few courageous stances in the world toward these deviants. My response to the LDS Church on this issue; it needs to stand by God’s laws and not government’s. The scriptures make it clear that homosexual behavior is an abomination. It should be an excommunicable offense for more than just “acting on” the urges, save you get married to the opposite sex as a show of good faith (and as Mormon theology requires for Exaltation).

  10. jennifer rueban on December 21, 2013 at 1:28 pm

    #9 only place I have ever heard those kind of words on this issue from any LDS person was a 90 year old women raised in the deep rural areas of Idaho by a parents from a white trash background in a conversation over 40 years ago. Decided your response must be a sarcastic put on designed to rattle your fellow readers.

  11. Jettboy on December 21, 2013 at 1:34 pm

    One more time, its not sarcastic. Its serious.

  12. Jettboy on December 21, 2013 at 1:39 pm

    Oh and what is wrong with poor white women? Are you racist or something . If this Church is going to spiritually survive, it needs old white trash viewpoints again. Too much of pagan secularism has spilled into the religion..

  13. Nick Literski on December 21, 2013 at 1:57 pm

    I always used to take Jettboy seriously, but the manner in which he’s significantly “amped up” his comments in this discussion and another on the topic lead me to one of two conclusions:

    (1) He’s actually a truly rabid liberal, bent on trying to make conservatives look freakish; or,
    (2) He’s a closet case, experiencing sheer terror as he loses one more of the reasons that have kept him from coming out.

    If it’s #1, then shame on him. If it’s #2, then he should just take some deep breaths, be easier on himself, and know that there’s hope. After all, I once made extreme anti-gay comments in order to hide my own orientation too. In fact, the legal recognition of marriage equality was once a major fear of mine, because I knew it would cause me to have to deal with my own internal conflict.

  14. Lorian on December 21, 2013 at 1:58 pm

    I’ve had this conversation with Jettboy before, and have concluded that he is either a troll, or someone who is deeply mired in self-hatred for his own feelings of attraction to the same sex. In any case, he seems incapable of hearing any thoughts besides his own, so I’m not sure it will help to converse with him. The only reason I respond to his posts is so that others who might have heard ideas like his before can hear the rational and correct answers to those hateful ideas. For that, Jettboy makes an excellent foil for discussion.

  15. Brad Kramer on December 21, 2013 at 2:11 pm

    I just feel obligated to publicly ensure that no outsider would confuse his mouth-frothing, hate-filled bile with anything that an actual disciple of Christ would recognize as an expression of faith. I actually think that a person’s tolerance of Jettboy’s unchristian filthisa pretty decent litmus test for their own commitment to the Christ. Sometimes discipleship means calling a whited sepulchre a whited sepulchre, a willfully unrepentant sinner a willfully unrepentant sinner, a parasite on the body of Christ a parasite on the body of Christ.

  16. Sam Brunson on December 21, 2013 at 2:19 pm

    Okay, I think we’ve given Jettboy and his tangent plenty of attention and response. Whatever his opinions, they clearly (a) do not represent the Church, and (b) do not respond in any substantive way to Kaimi’s post. Heck, they don’t even mention ducks. So let’s move back to gay polygamy in Utah (or whatever it was that Kaimi originally said).

  17. Brad Kramer on December 21, 2013 at 2:19 pm

    And Nick, your comment is actually a little but helpful for me in this regard. It makes me cautiously optimistic that Jettboy might one day repent and become a decent human being by coming out of the closet and embracing the nature with which God blessed him.

  18. Brad Kramer on December 21, 2013 at 2:21 pm

    True story: my wife and I once hot tubbed with gay polygamists in Utah.

  19. Aaron B on December 21, 2013 at 2:47 pm

    Jettboy,

    1. I was recently called as a High Councilman in my stake. (Yes, me. Really).

    2. In my new calling, I have been specifically tasked by my SP with LGBT Outreach. I am to focus on helping make my stake a friendlier and safer environment for Mormon gays and lesbians, including those who might come to church with their partners.

    3. I am giving a high councilman’s talk this Sunday, in what is probably the “gayest” of the wards in my stake. My talk will focus on (1) Jesus; and (2) how to navigate and deal with doctrinal disagreements in our Zion community.

    Just thought you’d like to know.

    Aaron B

  20. palerobber on December 21, 2013 at 3:09 pm

    regarding “traditional marriage”, note this passage from the state’s motion to stay the Amendment 3 ruling…

    For over one hundred years Utah has adhered to a definition of marriage as the union of a man and a woman […]

    100 years? i thought it was thousands of — oh, wait, i get it.

  21. palerobber on December 21, 2013 at 3:13 pm

    regarding “religious freedom”, note this passage from Judge Shelby’s ruling…

    If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so. […] By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.

  22. Jettboy on December 21, 2013 at 4:28 pm

    “You must be a closet gay” is always the response to those who truly don’t believe people are absolutely disgusted with gays and lesbians. I guess it makes them feel better about themselves to believe that about other people who strongly disagree with them, but oh well. Like I have said before, you can pretend I have not “come out” all you want, but that doesn’t make it any less true that I am a very married straight person who just plain doesn’t like gays. Period.

  23. Nick Literski on December 21, 2013 at 5:14 pm

    Of course, #23 is exactly how we’d expect a deeply-closeted gay man to respond to the other comments. Funny how it’s the most loudly anti-gay politicians, the ones who vote against every proposal that could in any way benefit GLBT people, who end up getting caught eventually in an embarrassing airport encounter, or leaving a gay bar while travelling far away from home, or hiring a male prostitute. Yeah, those men who “are absolutely disgusted with gays and lesbians” are an interesting bunch. Just Google “plethismograph” and “homophobic men” sometime, and you’ll see just how interesting they are!

    I was “very married” for a few days short of 18 years. I fathered 5 beautiful children. I know many gay men who did the same. In fact, we actually joke about how being married to a woman and having kids proves that someone is heterosexual!

    But remember, folks. Jettboy “just plain doesn’t like gays.” After all, I’ve seen pictures of him, and he’s a real “man’s man,” ultra macho and manly! (cough) Yeah, I remember when I resented gay men too—and I know exactly where that resentment came from.

  24. Brad Kramer on December 21, 2013 at 5:16 pm

    Whether you’re a self-loathing closet case or just a hateful small fraction of a man who is married to a profoundly unfortunate woman, none of it changes the fact that believing the Ugandan anti-gay legislation is morally courageous makes you an embarrassment to the Christ whose name you so hollowly profess and defile.

  25. Lorian on December 21, 2013 at 5:26 pm

    Yeah, applauding the Ugandan law is sinking to a pretty despicable level of hatefulness.

  26. Algernon on December 21, 2013 at 6:05 pm

    Even though I avidly follow this blog, I rarely comment. Once in a while, though, someone says so inspiring, insightful, or funny that I can’t keep quiet. On the other hand, occasionally someone expresses opinions that are so antithetical to Christ’s message of love and peace that remaining silent is also impossible. Take Jettboy, for instance. From one who has gone on record for years as proudly espousing racist beliefs, it should come as no surprise that he also promotes homophobic intolerance. If consistency is an unqualified virtue, let it not be said he’s a virtue-less man. In other words, when you’re a jett, you’re a jett all the way.

  27. Algernon on December 21, 2013 at 6:11 pm

    One other thing: as morally vacuous as his comments tend to be, I think we should refrain from attacking him directly. Let it be enough to dismiss his positions as the sweet dreams of an impure-minded boy.