I’m going to keep my notes this morning briefer than usual in order to leave John’s “Justice Ginsburg throws down the gauntlet” close to the top. John refers to the Supreme Court’s 2003 decision in Lawrence v. Texas, in which the Supreme Court found laws against homosexual sodomy unconstitutional. Why? Justice Kennedy thought it had something to do with “liberty of the person both in its spatial and more transcendent dimensions.” Does the jurisprudence of Justice Kennedy or Justice Ginsburg provide a basis on which to reject a constitutional right to polygamy?
The Republican Party was founded in oppositon to the “twin relics of barbarism — Polygamy, and Slavery.” Like homosexual sodomy, polygamy is of course another subject on which Justice Ginsburg could find much illumination in foreign law. When the issue first came before the Supreme court in Reynolds v. United States in 1878, it presented itself as a question of religious liberty — undoubtedly, in Justice Kennedy’s terms, “liberty of the person both in its spatial and more transcendent dimensions.” Yet the Court found that the religious liberty protected by the First Amendment did not protect polygamy grounded in religious doctrine. Under the First Amendment, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”
The issue may well confront the Court again. Indeed, Lawrence virtually invites it. The Court itself, however, has done much to erode the social consensus fostering laws prohibiting practices commonly recognized as inconsistent with republican government. In her Star Tribune column today, Katherine Kersten looks at the question of polygamy in the context of the debate over same-sex marriage: “Once same-sex marriage is OK, polygamy’s next.”
JOHN adds: At least one case has already been filed in federal court, alleging on the basis of Lawrence that there is a constitutional right to polygamy. More are sure to come.