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Really, Cato? Nothing Better To Do?
Like prosecutors, activists should employ discretion, giving some thought to the best allocation of their talents, efforts, and scarce resources. If you’re a national, libertarian think tank operating in 2015 America, you’ve no shortage of causes worthy of your attention.
That’s why I’m a little confounded — not a lot, a little — that the Cato Institute filed an amicus brief in federal court on behalf of the polygamous family featured on TLC’s Sister Wives. The show documents the life of a polygamist family, including patriarch Kody Brown, his four wives, and their 17 children.
Before 2013, a person was guilty of bigamy in Utah when,
knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
This was overturned in Federal Court, so the Browns are now free to live together and do whatever happens on Sister Wives to their hearts’ content, provided they don’t call it marriage. However, on the second page of the brief, CATO’s legal team Ilya Shapiro and Eugene Volokh argue,
Utah defines criminal bigamy, Utah Code Ann. § 76-7-101 (West 2014), to include saying “I do” in a wedding ceremony, or saying “that’s my wife” about someone one lives with, even when everyone knows that the marriage is not legally recognized. See infra Part I.A. The Utah Supreme Court has expressly stated that the statutory prohibition on “purport[ing] to marry” more than one person applies even when one is not “claiming any legal recognition of the marital relationship.” State v. Holm, 137 P.3d 726, 736 (Utah 2006). Indeed, Holm found that the prohibition was violated simply by “religious solemnization,” id. at 732—which involves nothing but speech and expressive conduct.
Utah’s bigamy statute thus criminally punishes speech: the difference between permissible conduct (e.g., promising to love someone other than one’s spouse) and forbidden conduct (e.g., using a ceremony to promise to love someone other than one’s spouse) consists simply of what a participant in the conduct says. Moreover, this speech does not fall within any First Amendment exception, such as for fraud or conspiracy. Indeed, the statute criminalizes speech that creates and maintains intimate associations between consenting adults, and communicates freely chosen religious and moral values. The bigamy statute thus restricts protected and valuable speech because of its content, and is therefore presumptively unconstitutional.
On the merits, the argument strikes me as nearly unassailable, provided the Browns don’t actually make any claims upon legal recognition or commit fraud. Civil marriage is not the be-all-end-all of marriage, and if one guy and four women want to live together and call each other spouses without demanding the state legitimize it, hey, it’s a free country, or pretty close. And there’s always a good case to be made for clearing the brush as far as possible around political speech to ensure that it’s easy to defend.
Still, this strikes me a waste of time for a case of dubious worth. The Browns are only potentially in trouble — albeit quite a bit; the bigamy laws are felonies in Utah — because they star in a reality show about doing something that is uniquely illegal in the state of their residence*. Also, I’m on the record as thinking polygamy isn’t worthy of state sanction and should be legally discouraged. Moreover, Americans are still reeling from an unpleasant and dynamic period of unpopular judicial rulings regarding marriage. Giving society a chance to catch its breath and evaluate this subject calmly would do everyone a lot of good.
As for the Browns, they might want to consider lobbying the legislature to amend the law — or barring that — moving to any of the 49 states where they can speak freely about this.
Sure, five adults and 17 kids are a lot to move, but it helps to have a reality show, right?
* Correction: Member Mike H. rightly points out that the Browns relocated to Nevada in 2011 in order to escape prosecution under Utah’s laws.
Published in Culture, Law, Marriage
Unless they moved back, the Browns have been living in Nevada for years where they are much more accepted. They were driven out of Utah by potential prosecution.
Bigamy needs to be illegal when fraudulent, for example when a man is leading a double life with two wives in separate households who don’t know about one another. When all are in the same household and everybody knows and consents, live and let live. The state is under no obligation to recognize any marriage after the first, but subsequent religious ceremonies should be unrestricted under the First Amendment. Criminalizing this behavior does not make any sense.
I don’t know what’s in their minds, but it strikes me as at least remotely possible that this is a sort of civil disobedience case: pointing up the foolishness of the Supremes’ same sex marriage ruling by pushing a logical extension of that ruling promptly to an extreme. “Where, Supremes, is your limiting principle in your ruling?”
Eric Hines
Utah was allowed to become a state only on the condition that polygamy would never be legal there. It would be ironic if polygamy became legal in every state but Utah. Anyway, agreed. This is a very odd place for Cato to be throwing its weight around.
Why? What gives the state the right to say the double life if fraudulent. Of course they are under obligation to recognize 2nd and 3rd and 4th marriages. They are now under the obligation to recognize every arrangement.
I doubt this could be legally enforced.
Cato is advocating for License, not Liberty in this situation.
I’m willing to bet that this barrier is going to come crashing down if it ever reaches the Supreme Court level at this point. See Obergefell.
Some slopes are, in fact, slippery.
To be clear, Cato is not lobbying for any legal recognition of polygamy. The suit is against a Utah law that makes it illegal to refer to someone other than your legal wife as your wife under any circumstances.
The Mr. Brown is legally married to one of his wives, but not the others. To my knowledge, he has not sought legal recognition of these other marriages and the case does not concern them. It’s a strictly a freedom of speech claim.
Maybe you didn’t read the Obergefell decision
I’m inclined to take these people seriously. They think this is worth fighting for, as opposed to serious things. One would have to have a high opinion of CATO to be troubled. You suggest, they might want to consider what America is going through & show some respect, if I understand your appeals to prudence & discretion. Maybe they have considered things & have no respect for prudence & discretion.
Have they said whether they are advocating for polygamy?–I mean, for expanding the legal rules, so there is even more equality when it comes to possible ways of thinking about marriage…
Americans have this kind of live & let live attitude about more & more things that concern sex–as opposed to all the stuff where gov’t decides. I would not bet libertarians like CATO or any other group are going to be fighting against this softening that makes it almost impossible even to think about freedom seriously, much less figure out where to fight & how…
I think the state has a right and interest in protecting the innocent parties who believe they are in (or entering into) a monogamous marriage. Finding out about “the other woman” (or family) after the fact is devastating. Some may differ (some would like to get the state out of the business of recognizing marriages altogether), but I think it’s a legitimate concern for the state to get involved in. There is a world of difference between leading a double life and entering into an “extended family” arrangement where everybody is willing.
As far as the state being under the obligation to recognize every arrangement, no, not yet. Obergefell may soon be used to justify polygamous marriages, but it hasn’t happened yet. It will only happen if enough people want it. Right now there is no polygamy activist organization with anything like the power of the gay activist lobby.
What’s the argument that it should be legally discouraged? And, given the First Amendment, please state it without referring to religious tradition…
Volokh is one the leading First Amendment scholars in the country. Why is it odd that he should take on an interesting case like this?
He explains his rationale here:
Link added to the OP. It’s also here.
I did. I think it’s a bad decision. Brown may well want legal recognition for his polygamous marries — something I would oppose — but that’s not what’s at issue in this suit.
I know you think it’s a bad decision, but I was pointing out that given the Obergefell decision, the first amendment right to call a women your wife even if you already call someone else your wife is closely related to the newly-discovered constitutional right to “express [your] identity” that created the inalienable right to gay marriage.
They are the same thing.
Klaatu
Some slopes are, in fact, slippery.
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Well said. Why the irrational hate speech now against bigamists, Tom?
And the courts have ruled it hate speech, as well as irrational.
Because there are so many fires to be put out right now. Why waste his time on this issue? It hardly seems like the most pressing cause. Go fight for religious freedom and free speech on campus for heck’s sake. Plenty of work to be done there. This smacks of trying to get attention by defending a cause that gets clicks.
And so the libertarians will be moved over the wall through the appearance of a great fight — some pushing, some pulling, some building, some breaking, all while the whole brawling crowd works its way toward polygamy as right and good and mere opposition an irrational and hateful expression of immoral bigotry. But wait, there’s more.
But by all means, get caught up in the individual fat lips and busted heads.
I find Merina’s point about Utah’s statehood kind of fascinating, in light of our recent discussions about whether states should be allowed to secede. It sort of sounds as though, technically, if we got to the point where the Supreme Court forced polygamy on the states, Utah would then be positively required to secede.
How interesting would it be if it was revealed to some LDS prophet that polygamy was always good and righteous and finally God’s will is allowed in America?
Not that I think it’s probable, but wow, that would be an interesting story.
Why are you surprised? This is the natural outcome of legalizing SSM. I thought it might wait a couple of years, but I guess everyone wants to jump the gun and be the first. I would have thought ACLU would have driven it, but Cato is Libertarian, and so live and let live. Brave new world. Get me off it.
Very efficient of you. It seems your argument boils down to “the State should promote monogamy because it’s good for the State.” You don’t offer much in the way of evidence for most of your claims about the superiority of monogamy. Historically, monogamy is a bit of an outlier, so to state it’s nevertheless superior should require a pretty decent argument.
I’ll also note that the traditional definition of polygamy often included serial monogamy: divorce and re-marriage, do you think we should allow divorce still?
I think hounding the Mormons out of the US because of their polygamy was one of the worst violations of the First Amendment in our history…
I think it’s the logical outcome of the First Amendment. SSM was not required for a debate about polygamy, you’ve got your history backwards.
“Eternal vigilance is the price of liberty.”
I’d hardly call defending liberty a waste of time…
How so? And why was polygamy off the table in the past with the first amendment, even to the point where Utah had to over turn mormon sanctioned polygamy?
Putting it slightly differently, I’d say that promoting monogamy is in society’s interests and — for a host of reasons — I think civil marriage is a simple, unobtrusive, and useful means of doing so.
This is controversial?
Unless your defining serial monogamy as a form of polygamy — which strikes me highly dubious — I don’t see how that could argue that’s the case.
I don’t see why promoting childless monogamy (eg, most gay marriages) is more in society’s interests than a stable polygamous family living together helping raise the children in the broader family?
The reason we have laws giving subsidies to marriages is not to “promote” monogamy but to help create a stable place to raise our country’s future citizens (those barbarians that invade our society every generation).
You assume polygamous marriages can’t be stable for no real reason other than you don’t like them.
I was going to write a post responding to your lengthy post, but there wasn’t much more to write other than that last sentence.
Because — especially among heterosexuals — 1) monogamous relationships tend to be more stable than polygamous ones and 2) to the extent polygamous marriage catches on, they lead to single men unable to find a spouse, which is genuinely considered a recipe for social disaster.
I agree that arrangements such as line marriages do not suffer from this problem, which is why I don’t find them troubling.