Conservatives — most infamously, Rick Santorum — have long argued that marriage equality for same-sex couples would lead to a slippery slope of bigamy, polygamy, incest, adultery, and bestiality. They have also claimed in more recent years that marriage equality would infringe upon their so-called religious liberty to disapprove of and discriminate against homosexuality. On Friday, a federal judge overturned much of Utah’s law banning polygamy, but that decision would actually qualify as a victory for religious liberty and has very little to do with the gay community. Nevertheless, Santorum still boasted that his prediction came true, as did the Family Research Council, Focus on the Family, and the National Organization for Marriage.
The Utah case involved a suit filed by Kody Brown and his wives, Meri, Janelle, Christine, and Robyn, who are featured on the TLC documentary show Sister Wives. They argued that Utah’s anti-polygamy laws infringed upon their Mormon religious practice and their privacy, and District Court Judge Clark Waddoups, a George W. Bush appointee, agreed. But Waddoups’ decision leaves in place that it is illegal in Utah to be legally married to more than one person at the same time, which begs the question of what exactly he actually overturned.
Utah’s laws go far beyond limiting an individual to only one marriage license. As Waddoups recounted in his decision, the statute also prohibits “cohabitation,” referring to any situation in which a married person “purports to marry another person or cohabits with another person.” Even though Kody Brown only has a marriage license with one of his wives, the fact that he has a living arrangement that includes other individuals he refers to as wives — deemed “religious cohabitation” in the Mormon context of multiple marriages — was thus a violation of the law. Indeed, the law seems to punish those who claim multiple marriages even if those marriages exist only in a religious — not civil — context. This, Waddoups ruled, was not only an intrusion into their religious beliefs, but also a violation of their right to private consensual sexual behavior as guaranteed by the Supreme Court in the 2003 decision Lawrence v. Texas, which overturned the country’s so-called “sodomy laws” criminalizing same-sex relations:
Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence. The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the Statute, “it is, of course, the state that has equated private sexual conduct with marriage.” That is, in the case of people who have not even claimed to be legally married — are not making any claim to legal recognition of their unions or the network of laws surrounding the institution of marriage — “it is the state that is treating the relationship as a form of marriage and prosecuting on that basis.” As such, this, in effect, criminalizes “the private consensual relations of adults.”
In a sense, it’s true that a victory for gay rights led to this decision, but not because it was a victory for gay rights. The basic outcome of Lawrence is that the government cannot intrude on what happens in adults’ bedrooms so long as it’s consensual; it just so happens that the same principle can apply to the multiple marriages some Mormons have or that plenty of people from other faiths have practiced since the Old Testament.
But this victory for polygamy is not likely to even impact the LGBT community. Brown and his wives seemingly identify as heterosexual; the term “sister wives” specifically connotes that the wives do not have sexual relationships with each other. It is not people with same-sex orientations who are vying for polygamy.
More importantly, this case reinforces the distinction between legal marriage and religious marriage that is often lost in debates. The LGBT equality movement is not particularly interested in forcing any religious organization to bless same-sex marriages, but is focused on achieving equal protection under the law for same-sex families. Conversely, polygamists are not currently fighting for legal recognition, but for the right to freely practice their religious beliefs without facing criminal prosecution.
Though conservatives may try to continue demonizing the gay community by claiming polygamy is part of the slippery slope of same-sex marriage, polygamy is actually the result of the very “religious liberty” that they claim marriage equality infringes upon.