A Recent Utah Case Asks:
Is a Prohibition on Polygamy Constitutional?

This January, a married couple in Utah -- identified in court papers as G. Lee Cook and D. Cook -- asked Salt Lake County clerks to issue them a license to marry a third person -- a woman identified in court papers as J. Bronson. When the clerks denied their request, they sought out the services of a civil rights attorney, and sued.

The three claim that for them, polygamy is a matter not only of choice, but of religious belief. Accordingly, they assert that their constitutional right to free exercise of religion has been violated.

Separately, the three also assert that their due process/privacy rights have been violated. In support of their contention, they cite the Supreme Court's groundbreaking June 2003 ruling in Lawrence v. Texas, which struck down a law criminalizing gay sodomy.

Justice Scalia as much as predicted challenges like this one in his dissent to Lawrence. Trotting out a parade of horribles, he forecast that after Lawrence, other laws that regulated private conduct would also be vulnerable -- such as those against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity . . . .".

Was Scalia right? After Lawrence, must Utah bless this three-party marriage?

The answer is: Not necessarily.

In 1879, in Reynolds v. United States, the Supreme Court addressed whether the federal law that prohibited polygamy in the territories was constitutional under the Free Exercise Clause. A polygamous Mormon challenged the law, saying that his religious belief mandated polygamy and therefore, the law as applied to him was unconstitutional, for it violated his right to the free exercise of his beliefs. But the Court rejected the challenge, holding that an individual's religious beliefs are no defense to the application of a general law to religious conduct.

Over a century later, in 1990, the Court reaffirmed the very same principle. In Employment Division v. Smith, it held that an individual's claim that religious belief compelled him to use peyote, did not prevent the state from denying him unemployment benefits on the ground that he had engaged in illegal drug use, just as it would any other drug law violator.

Thus, anti-polygamy laws remain on the books. But the prohibition against polygamous unions is often honored in the breach. For example, there are polygamous unions in Arizona, Nevada, and Utah, among fundamentalist Mormons. And the laws against polygamy are rarely enforced -- and then only in particularly troubling cases, such as when a minor is involved. Otherwise, while the unions are not blessed by the State, they are often, perhaps too often, left alone.

Based on longstanding Supreme Court precedent, it seems quite clear that a Free Exercise challenge posed by the Utah three will be rejected. But what about their due process/privacy challenge?

To see how much Lawrence v. Texas helps -- or does not help -- the case of the Utah three, it's necessary to take a close look at that decision itself.

In that case, the Court held that there is a federal right of constitutional privacy that prohibits the state from banning homosexual sex. But it made clear that the right belonged to all adults. Even if the Texas law had been simply an anti-sodomy law, applying to homosexuals and heterosexuals, alike, it would still have been unconstitutional. (Justice O'Connor made clear in her concurrence, however, that the actual law's discrimination against homosexuals also provided a separate reason to strike it down.)

Accordingly, Lawrence did not limit the reach of its pronouncements to homosexual persons alone. Instead, Lawrence cited an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." (Emphasis added.) The fatal aspect of the Texas law, the Court explained was that it sought to "control a personal relationship that . . . is within the liberty of persons to choose without being punished." Adults, the Court added, have the right to "choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." Ultimately, it faulted the criminal anti-sodomy statute for its "intrusion into the personal and private life of the individual."

The Court in Lawrence also made clear that where sexual morality is concerned, majority rule is not the constitutional rule. It stated, quoting from Justice Stevens's dissent to Bowers v. Hardwick that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

The principle at work in Lawrence was Justice Brandeis's theory of the "right to be let alone," a principle that is embedded in American society. In the end, the opinion turns on that right, and that right alone.

Lawrence was a broad, important decision. But it's important to remember that it was not a decision about the very public institution of marriage, but rather private, sexual acts.

Granted, the Supreme Judicial Court of Massachusetts recently drew upon Lawrence in a case about marriage, but it emphasized equality, not privacy rights. In Goodridge v. Dep't of Health, it famously held that, under the Massachusetts Constitution, homosexual persons have an equal right to marriage and the benefits of marriage. It was concerned, for example, that gay persons were being relegated to "second class citizen" status because they lacked access to marriage. Thus, its logic arguably resonated most strongly with Justice O'Connor's concurrence in Lawrence, which raised equality concerns, not with the privacy reasoning of Lawrence.

In these uncharted social and legal waters, it's foolish to make predictions as to which of these arguments, and parallels, will seem most persuasive to the courts -- and so I won't even try.

But I do want to raise an important point that is often raised as a policy, but not a constitutional, issue in these debates: The issue of federalism. This is not just a policy issue, of whether one is pro- or anti-states' rights. It is a constitutional issue, about what the Constitution's federalism requires.

Lawrence was implicitly a federalism case. It asked the Court to either impose a single federal rule prohibiting anti-sodomy laws, or let the states regulate in the field private sexuality on a state-by-state basis.

There was an argument, derived from history and tradition, for deferring to the states on this issue: Traditionally, morals, public health, and private relations have been the purview of the states. The Court, however, identified a constitutional right that transcended the relevant state criminal laws: the right to sexual privacy. It chose the right to be let alone over the states' rights to dictate social and moral arrangements.

Now, in the Utah case, another, broader federalism issue has been raised: Does the federal Constitution define the parameters of marriage, or is this issue to be left to the states? Again, tradition and history argue for leaving this issue -- traditionally within the states' purview -- for the states to decide. This time, the countervailing right to be let alone is not nearly as strong, because the state is not only governing what happens in the bedroom but also the parameters of a very public institution that serves as one of the building blocks of society. The public ramifications of marriage delineation are huge, and are best left to state legislatures, which may debate, deliberate, and experiment to find what works best.

After all, it is states, not the federal government, that grant marriage licenses, and it is state -- not federal -- courts that adjudicate family law issues, including issues relating to marriage, separation, divorce, and the like. Not every state will decide the same way: Remember, Goodridge was a decision of a state court interpreting a state Constitution. And so was Baker v. State, the Vermont decision that approved civil unions (but not gay marriage). And in the end, that's a good thing -- because the States within our Union are very different, and each should have the prerogative to define itself differently from the others. That is part of what freedom is about.

In this case, respecting federalism is not only constitutional, but also the surer route to the larger public good. By placing the issue in the hands of state legislatures, the Court would foster the public debate that is so crucial on these issues and permit the experimentation that can bring us all closer to the good society sooner rather than later.

Of course, traditionalists see no reason to have a debate on gay or any other form of marriage. For them, there is only one model. Obviously, though, there are significant segments of the society who believe that their model is equally valuable and whose arguments are worth hearing. And compromises on the gay marriage issue may be struck: Civil unions are one option. Another option is for a state to recognize gay marriages licensed elsewhere, but not license them itself. Given the abuses of women and children that seem endemic in polygamous marriages, such compromises are less likely, but it harms no one to let the debate occur. Indeed, it is time the cloak of secrecy that shrouds the rarely examined practices of existing polygamists be removed so that the public good can be adequately determined.

Even if most or even all state legislatures eventually decided to stick with the traditional model, the public debate -- and its attendant examination of the virtues and shortcomings of current marriage models -- will benefit us all. That is the crucial role of federalism: It permits the states to experiment with social arrangements, to learn from each other's failures, and then to emulate each other's successes.