Court Cites Past Racism to Argue Polygamy Ban Unconstitutional

Court Cites Past Racism to Argue Polygamy Ban Unconstitutional

A Utah district court ruled in favor of a polygamous family this past Friday. Oddly, the ruling relied heavily on arguing that a reason the United States outlawed bigamy was a distaste for practices of Eastern cultures–despite the Mormon Church being native to the United States.

The case, Brown v. Buhman (full legal opinion here), resolves a series of claims and counterclaims between the Brown family–stars of the reality show Sister Wives–and the state of Utah. As a District Court case that also resolves who rightfully belongs in the suit and why it should move forward logistically (and never mind the bizarre aside about Edward Said), following the legal procedure and getting to the real meat of this decision can be complicated for the layman. The trick is to follow what precedent the plaintiffs cite, and how seriously the court takes each.

The Browns argue that because of their prominence as reality TV celebrities, their living arrangement has been especially vulnerable to government intrusion. They claim they should be allowed to practice polygamy on a number of First Amendment grounds (free speech, free association, free exercise of religion), which allows them to also sue under the statute that creates a civil remedy for someone whose constitutional rights have been violated by the state (42 U.S.C. §1983). They also claim that they have not been given equal protection as a protected minority under the law and that the state has violated their due process.

The state did not address these concerns in responding to the suit and, according to the court, provided no admissible evidence of the “social harms” of polygamy. 

This in some ways left the court to figure out their argument for themselves, hence the bizarre emphasis on Said’s “Orientalism” used to make the fundamental claim that the United States waged a “war” against the Church of Jesus Christ of Latter-Day Saints, one in which banning polygamy played a prominent role. The court argues, essentially, that racism was behind the banning of polygamy: “the social harm was introducing a practice perceived to be characteristic of non-European people–or non-white races–into white American society.” 

In other words: banning polygamy was a way to get deviant white people to start “acting” white. The court goes on to cite a previous case upholding polygamy bans as a prevention of a “return to barbarism,” and condemns such “derisive societal views about race and ethnic origin.”

The accusations of racism form a major part of the beginning of the opinion, but the court ultimately incorporates them into a bigger legal argument. Because religious groups are protected under the Due Process Clause, the state has to have a rational basis on which to curb their freedom. The basis the court cites is that the state is racist, as noted above. Because the ban on multiple legal marriages regulates behavior that is actually sanctioned legally, polygamy, narrowly defined, remains illegal.

The key to the case is that the Browns are seeking only the legality of their living situation, not of all of their marriages. The facts of the case note that they do not have multiple marriage licenses–only one male/female couple is legally married–and that Utah has especially strict polygamy laws because of its history as a Mormon state (Washington required these laws to allow Utah into the Union). In exact terms, the “strictness” of the law comes from its ban on “cohabitation,” not just marriage. This is the provision the court has found unconstitutional.

The lawyers defending the Browns appear to see the case as something greater than a step forward for the freedom of fundamentalists to marry, however. The Browns’ attorney, Jonathan Turley, called the case a “victory not for polygamy but privacy in America.” It is an issue, the argument goes, that affects everyone’s right to live how they choose and with whoever they choose. It is another front in the fight against big government, as Turley’s affidavit argues.

This type of argument–which also rears its head slightly in the case with the citations to Lawrence v. Texas, the case that overturned all sodomy bans–will make the case lend itself to the “slippery slope” argument against same-sex marriage. Some will argue, the legalization of same-sex marriage indicates we are already seeing a move towards accepting polygamy. And, yes, Lawrence plays a prominent role in the argument in favor of unofficial polygamy: American adults have a right to do whatever they want to each other consensually in the privacy of their own bedrooms. 

But even then, the court finds that “religious cohabitation does not qualify for heightened scrutiny under the substantive due process” (in other words, religious cohabitation is not as worthy a behavior of protection as sodomy). That argument obscures the true absurdity of this decision, however: the fact that it essentially argues that opposing polygamy is racist, even if all parties involved are white.


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