Here Comes Polygamy: Utah Federal Judge Strikes Down Much of the Prohibition against Polygamy

This Utah Judge cited Lawrence v Texas, the US Supreme Court opinion wherein Justice Kennedy made that bizarre statement - at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

The precedent established in the Windsor opinion left no room for any limitation on what can constitute a marriage under its rationale. The US Supreme Court had no authority to redefine marriage. It acted beyond its proper constitutional role and contrary to the Natural Moral Law which transcends religions, culture, and time. It unleashed a whirlwind. On December 13, 2013, a Federal District Court Judge named Clark Waddoups struck down the guts of the State law which outlaws polygamy in Utah. In a 91 page decision in a case style Brown v. Buhman, he held that the Statute was "facially unconstitutional" because it included a prohibition against those who cohabit.

SALT LAKE CITY, UT (Catholic Online) - In a July 15, 2013 article in the American Prospect, Boston College Law Professor Kent Greenfield told a truth many Cultural Revolutionaries behind the movement to change the definition of marriage had long denied. The article was entitled The Slippery Slope to Polygamy and Incest and can be read here.  

The Law Professor began with this assessment: It's been a few weeks since the victories in the marriage cases at the Supreme Court, and maybe it's time for the political left to own up to something. You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages?

They're right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don't want to go there, we need to come up with distinctions that we have not yet articulated well.

He supported the radical restructuring of the definition of marriage affirmed in the US Supreme Court's Windsor decision. He also supported using the power of the State to enforce a moral and legal equivalency between homosexual and lesbian partnerships and marriage between a man and a woman. 

However, Greenfield acknowledged: The arguments supporters of same-sex marriage have made in court do not sufficiently distinguish marriage for lesbians and gay men from other possible claimants to the marriage right. If marriage is about the ability to define one's own family, what's the argument against allowing brothers and sisters (or first cousins) to wed?

If liberty protects, as Kennedy wrote ten years ago in Lawrence v. Texas, the case striking down Texas's anti-sodomy law, the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," why can't people in polyamorous relationships claim that right as well? If it's wrong to exclude groups because of prejudice, are we sure the uneasiness most of us feel about those who love more than one, or love one of their own, shouldn't count as prejudice?

That activist Law professor then addressed arguments he suggested might prevent the ultimate outcome of that Supreme Court precedent opening the door to polygamy, incestuous marriages and other such relationships of choice. That danger was unleashed by the judicial manufacture of a new counterfeit right to marry bestowed upon lesbians and homosexuals by the US Supreme Court. 

He suggested the arguments be developed by the homosexual equivalency activists on the left in order to attempt to distinguish homosexual and lesbian 'marriages' from these other couplings. In short, he tried to lay the legal ground for preventing the opening to polygamy and incestuous marriages.

His assertions included what he called 'ickiness', the potential injury to children and the argument that incestuous relationships and polygamy are coercive and a matter of choice - not genetically programmed as he apparently believes homosexuality and lesbianism are.

However, Greenfield left no doubt that he saw the weakness of his arguments. He doubted their effectiveness in holding back the ultimate effect unleashed by the Windsor opinion and the activist strategy to compel every State to recognize same sex marriage.

He concluded with this stark opinion: If these distinctions do not hold water, we have two options. We can continue to search for differences that make sense as a matter of constitutional principle. Or we can fess up. We can admit our arguments in favor of marriage equality inexorably lead us to a broader battle in favor of allowing people to define their marriages, and their families, by their own lights.

People who defended marriage against the Homosexual Equivalency movement prior to Justice Kennedy's  Supreme Court Windsor opinion were accused of being alarmist, or even homophobic. However, what I found so interesting was that one of the architects of the Cultural Revolution acknowledged they were giving an accurate assessment.

In Windsor Justice Kennedy unleashed a whirlwind. It now threatens the common good of our society. It was tragic that a Catholic Jurist paved the way to legal, social, moral and cultural anarchy. However, he long ago tipped his hand as a relativist in his opinions in Planned Parenthood v Casey and Lawrence v Texas by opining that at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

That now often quoted Gnostic, esoteric statement was and is metaphysical nonsense. However, at least some of the Justices of the Supreme Court now agree with him. They act like the new alchemists of our age, believing they are able to change the structure of reality with the stroke of their judicial pens.

They no longer even pretend to rely on precedent, let alone the existence of a Natural Moral Law. They simply decide the law is what they say it is, following the path of the legal positivists. They are wrong, even if they currently wield a lot of temporal power.

Marriage - and the family and society founded upon it - have been inscribed by the Divine Architect into the order of creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family. Family is the first vital cell of society; the first church, first school, first hospital, first economy, first government and first mediating institution of our social order.

Marriage as existing solely between one man and one woman was not an idea manufactured by the Christian Church. It precedes Christianity. Though affirmed, fulfilled, and elevated by Christian teaching, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Moral Law, written on the human heart and discernible through the exercise of reason. The future of a free and healthy society passes through marriage and the family.

This claim of the existence of such a Natural Moral Law is the ground upon which every great civilization has been built. It is the source of every authentic human and civil rights movement. This Natural Moral Law gives us the norms we need to build truly human and humane societies and govern ourselves. It should inform our positive law or we become lawless and devolve into anarchy. That is the path we have sadly decided to walk in a Nation which has lost its moral compass.

The precedent established in the Windsor opinion left no room for any limitation on what can constitute a marriage under its rationale. The US Supreme Court had no authority to redefine marriage. It acted beyond its proper constitutional role and contrary to the Natural Moral Law which transcends religions, culture, and time. It unleashed a whirlwind.

On December 13, 2013, a Federal District Court Judge named Clark Waddoups struck down the guts of the State law which outlaws polygamy in Utah. In a 91 page decision in a case style Brown v. Buhman, he held that the Statute was "facially unconstitutional" because it included a prohibition against those who cohabit.

He ruled that the law was a violation of the Free Exercise Clause of the First Amendment to the United States Constitution" and had no "rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. You can read the memorandum of opinion here.

Though the Judge allegedly left intact the prohibition against obtaining State marriage licenses for official plural marriages, he ruled that the State cannot interfere with polygamous sexual partnerships which do not seek such licenses but still operate as plural marriages in the State.

This Utah Judge cited Lawrence v Texas, the US Supreme Court opinion wherein Justice Kennedy made that bizarre statement, at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

This lawsuit was brought by Kody Brown of the TLC channel's series "Sister Wives" and four of his actual sister wives. He was represented by Law Professor Jonathan Turley, the J.B. and Maurice Shapiro Professor of Public Interest Law at George Washington Law School in Washington, DC of George Washington University.

I wrote about the case in July of 2011 in Here Come the Polygamists: Jonathan Turley Defends 'Sister Wives' in Utah Turley is a "talking head", a kind of legal "go to" guy for a media obsessed with lawyers, litigation and celebrity. He has an opinion about anything even remotely legal these days - and no lack of media bully pulpits from which he can opine about his views. In addition to the mainstream media, he has a blog On that blog he announced on Tuesday, July 12, 2011:

I will be traveling to Salt Lake City today to file (on Wednesday) a challenge to the Utah statute criminalizing bigamy and cohabitation. The lawsuit will be filed on behalf of my clients, the Brown family. The Browns are featured in the TLC program Sister Wives as an openly polygamous family. The lawsuit will be filed in federal court in Salt Lake City on Wednesday and we will be available for questions at 1 p.m. outside of the courthouse. The Plaintiffs are Kody Brown, Christine Brown, Janelle Brown, Meri Brown, and Robyn Sullivan.

As in past cases, I will have to be circumspect in what I say after the filing of this action. However, we are honored to represent the Brown family in this historic challenge," said Professor Turley. "We believe that this case represents the strongest factual and legal basis for a challenge to the criminalization of polygamy ever filed in the federal courts. We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs.

This action seeks to protect one of the defining principles of this country, what Justice Louis Brandeis called 'the right to be left alone.' In that sense, it is a challenge designed to benefit not just polygamists but all citizens who wish to live their lives according to their own values - even if those values run counter to those of the majority in the state.

This case will be appealed to the U.S. Court of Appeals for the Tenth Circuit in Denver. However, given the drivel purporting to be legal precedent emanating from the Supreme Court of the United States these days, it will be hard to hold back the deluge.

There is another side to this unfortunate turn of events.

Though cloaked in a veneer of a concern for religious freedom, the legal precedent which these cases have set in motion is overtly anti-Christian. Experience and history have both shown us that when the government redefined marriage to grant a legal equivalency to same-sex couples, that same government will soon enforce their edict with the police power of the State. They will show little tolerance for those who cannot and will not comply.

This is bringing about a collision with the religious freedom and conscience rights of classical, creedal Christians - Orthodox, Catholic, Evangelical and Protestant. Once the definition of marriage became malleable, it was only a matter of time. Though we should do all we can to slow the slide of our National Moral Descent, we need to realize that the long term hope for changing our culture will require conversion of hearts and a rebuilding of the foundations of authentic freedom.

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