The Republican Party was founded in the belief that it was “the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism — Polygamy, and Slavery,” as the party platform of 1856 put it. The slavery issue took a civil war to iron out, but Utah would not in fact be welcome in the Union until Mormons ditched their devotion to plural marriage. Polygamy is therefore a crime in Utah, as it is elsewhere in the United States.
Now comes Professor Jonathan Turley to the defense of polygamy. Professot Turley represents one Kody Brown, a man, and his four wives and 16 children — who, he notes in a New York Times op-ed column, are the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” Professor Turley is lead counsel in the recently filed lawsuit challenging the constitutionality of the Utah law criminalizing polygamy.
Seizing on Justice Kennedy’s Song of the Open Road approach to constitutional law, Professor Turley plaintively observes that they are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone.
Professor Turley teaches constitutional law, but he fails to note that there is a Supreme Court case that is on point. In Reynolds v. United States (1878), the Supreme Court upheld a federal territorial law criminalizing bigamy over a First Amendment free exercise claim. The federal law had become effective with President Lincoln’s signature in 1862. The congressional Republicans had followed through on the commitment made in the 1856 party platform.
Professor Turley relies for his argument on the logic of the Supreme Court’s 2003 decision overturning state sodomy laws in Lawrence v. Texas. Professor Turley has a point — indeed, some of us criticized the Lawrence decision on precisely that ground — though Justice Kennedy’s opinion waltzed away from the question of polygamy. And it didn’t even mention laws against bestiality and incest. Perhaps Professor Turley will undertake the glorious cause of extending Lawrence to them in another case.
Liberal constitutional jurisprudence has a post-modern absurdity to it. It led, for example, to the Ninth Circuit’s Newdow decision holding the recitation of the Pledge of Allegiance in public schools to be unconstitutional. By the same logic, the recitation of the crucial sentences of the Declaration of Independence referring to Nature’s God would be unconstitutional. You got a problem with that?
The Ninth Circuit decision holding the recitation of the Pledge to be unconstitutional under the Supreme Court’s various Establishment Clause cases was, in my view, absolutely correct. Indeed, the Newdow decision is a handy guide to the Supreme Court’s modern Establishment Clause jurisprudence. The problem is with the Supreme Court’s Establishment Clause jurisprudence.
I suppose it is fortunate that the Supreme Court occasionally avoids the logic of its own decisions. It declined to address the merits of the Ninth Circuit Pledge decision on grounds of standing. My guess is that it will avoid extending the logic of Lawrence to polygamy on some equally dodgy ground until such time as it rediscovers a sound footing.