Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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
As I’ve written before, the purpose you describe here is clearly the most important function marriage performs, but I disagree that it is the sin qua non of marriage’s social utility.
For example, marriage doesn’t only expand family to new generations, but tends to strengthen obligations to existing ones. I know people closely who would very likely have been driven to depression had it not been for her husband’s assistance in taking care of her abusive mother when she was dying. This sort of thing is tremendously important and marriage is one of the primary means of encouraging that sort of action. “She’s your mother-in-law” has rhetorical and moral force vastly superior to “She’s your girlfriend’s mother.”
This assumes the only (or predominant) version of polygamous marriage is polygyny. I see no reason to make that assumption when discussing the legal and societal implications of legalizing polygamy.
The question here is which is more important to society. You said earlier
Implicitly, you are arguing that promoting monogamy is more important than raising children. If we weaken what you describe as the most important function marriage performs, how is that in society’s interest?
Fair point that I’m conflating polygyny and polygamy, though I think that would be the overwhelming majority of polygamous relationships. To my knowledge, polyandry has never been more than an occasional curiosity.
No, I’m saying that monogamy is overwhelmingly conducive toward the raising of children.
If we’re talking about SSM here, then we disagree that extending civil marriage to include gay and lesbian couples weakens child-raising.
Until about a decade ago, gay marriage had never been more than an occasional curiosity.
Polygyny works within the traditional definition of marriage because the paternity of any children is known with certainty. Once you strip marriage of any fundamental connection with children, I see no reason why polyandry wouldn’t become as common as polgyny.
Because we shot the Mormons who clung to polygamy, or took their property.
Yes. We disagree on the impact on fundamentally changing the definition of the most important organization in human history. You think changing will have no unintended negative consequences, just the positive ones you desire. I think it is very likely to have serious unintended consequences, some of which will be negative and I think the negative consequences will impact have a far greater impact on children.
The bigger problem is, I don’t think the negative consequences are entirely unintended.
Not since the Roman Emperors started to take that position… Noted fans of individual rights that they were…
BTW, promoting monogamy is one thing, punishing those who do other things is why we have a First Amendment…
Polygamy is a sign of wealth, in some cultures.
Some people would argue raising children is overwhelmingly conducive to monogamy.
I confess I’ve never understood this argument. The overwhelming majority of marriages will continue to serve their function as conduits for child-rearing. A few more free-riders, in the sense of not participating in the institution’s most important function, will do no harm.
A bolt-action .22’s impracticality as a weapon in no way undermines the ability of other firearms to perform the 2nd amendment’s essential primary functions.
You haven’t really tried to understand it, have you?
It’s not a difficult concept. When marriage becomes about gratifying the selfish urges of the adults involved, it will become less stable, not more stable and it will be the children that pay the consequences.
But you seem to be unwilling to acknowledge that anything bad can result from a policy you support.
So I gather. ;)
You’re presuming that childless marriages — gay or straight — are inherently selfish.
Again, to take the most obvious example, is being obligated to help care for one’s elderly or sickly in-laws about merely “gratifying adult urges”?
I’ve no doubt there will be some negative effects that directly* stem from SSM. For instance, I think there’s benefit toward encouraging bisexuals to pursue heterosexual relationships. I’ve also moral qualms about gay third-party reproduction, largely for the same reasons I have problems with single people doing the same.
I do, however, think these problems will be relatively mild, and certainly not as dire as many SoCons fear, and that they will be counterbalanced by (mild) tangible benefits.
* The indirect harm to religious liberty is serious, but stems more from our society’s mistaken ideas about public accommodations.
Tom, are you really concerned that people will stop reproducing without the State nudging them along?
No, quite the opposite.
Libertarians have supported polygamy for a long time. There’s nothing surprising about this. Obergefell has nothing to do with it. Cato’s position would be the same had SCOTUS ruled the other way. Why shouldn’t they stand up for their principles? The argument that there are more important issues cuts both ways. Surely, there are more pressing issues than a baker being forced to bake a gay wedding cake.
It’s hard to tell what you’re replying to…
But I saw this this morning and found it interesting:
Japan, along with most Western-influenced societies, has abandoned polygamy and are currently in the midst of population collapses. The areas with the highest birthrates are those that still allow polygamy.
Cause and effect?
Woah. “Supported polygamy” and “Think we should follow the First Amendment” are two very different things, although they might lead to the same result in this case.
The nations with the highest birthrates tend to also have the highest rates of infant mortality. Cause and effect?
Pretty clearly yes…
Actually, I’m a psychological egoist, so I assume everyone is selfish. What’s more, I believe marriages with consanguineous children are even more selfish than childless marriages because they fill a deep evolutionary desire to pass along our genes. The beauty of both capitalism and marriages with consanguineous children is that people pursuing their selfish interests creates positive externalities.
I’m DEEPLY skeptical of policy recommendations whose success is dependent on altruism of people (as yours does) and I continue to be surprised that anyone calling themselves a conservative would endorse altruism as an avenue for success of public policy. Your view of marriage appears to start with an assumption of altruism among its participants and hopes that altruism will result in positive externalities such as children. I think that is entirely the wrong way to approach marriage.
Making marriage about the adults instead of children minimizes the likelihood of both monogamy and a positive environment to raise future citizens.
Libertarians are in favor of both. Either way, Cato’s actions are unsurprising.
Proponents of the welfare state think it’s crazy to leave the fate of the poor up to the altruism of private citizens.
Which is the cause and which the effect, Tuck?
So, the altruism of the politicians and bureaucrats in government is a more reliable mechanism to improve the lot of the poor?
Please show me an example of a Libertarian who’s “in favor” of polygamy.
Are you sneaking up on a point here? I’m the impatient type.
Yeah, they’d rather leave them to the neglect of bureaucrats…