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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
Here are three Reason articles defending the practice. John Stossel has done the same here as well as in his book Myths, Lies, and Downright Stupidity. Penn & Teller defended polyamory in the “Family Values” episode of their Showtime series. See Ricochet’s own Richard Epstein defend it here.
Is that enough?
Are you under the impression that I’m defending this line of reasoning? You were the one who said you’re “deeply skeptical of policy recommendations whose success is dependent on altruism of people,” which I am pointing out is similar to progressive perspectives on economic matters.
I was when I first read your post. Upon reflection, your position seemed less clear.
FWIW (it that acronym acceptable under the Rico style guide?), I think the modern welfare state assumes altruism of the recipient, e.g., it assume they will exert effort to use welfare as a ladder to a better lifestyle, which a shrinking number seem to do. Therefore, they is very little in the way of safeguards (at least before 94 reform and after Obama ignored most of those reforms.)
To show that there are no Libertarians “in favor” of polygamy? Yes.
Did you read those links? Here’s the sole mention of polygamy from Epstein’s: “First, it excludes polygamous couples from receiving these marital benefits.”
If that’s your idea of “in favor” I suggest you spend some time with the dictionary. “Favor” is not the same thing as “defend” or “tolerate”.
Epstein says, “First, [DOMA] excludes polygamous couples from receiving these marital benefits. Second, it excludes gay couples. Both groups contribute to the funds that support these various government programs. Both should share in its benefits.” The word “polygamy” doesn’t appear in those last two sentences, but it’s clearly being referred to and validates my point.
If you want to be pedantic, then I guess you’re right, those examples aren’t libertarians telling people they should be involved in a polygamous relationship. However, you’ll notice there aren’t the usual caveats that it’s a terrible life choice like using heroin. My original comment should have read, “Libertarians are in favor of decriminalizing/legalizing polygamy.”
Cat III is right. It’s not as though CATO and therest are defending the polygamists right to speech. That would be form. They are defending the content of the speech. They support the proposition.