On Dec. 23, I debated George Washington Law Prof. Jonathan Turley on NPR’s “On Point” regarding his court fight to legalize polygamy. This is a bigger issue for American society than it may seem at first, since it ultimately reflects two different views on the meaning of the U.S. Constitution and what it means to live in a free society.
As Breitbart News previously reported, on Dec. 13 Judge Clark Waddoup in Utah declared that the U.S. Constitution includes a right to marry more than one person at a time (i.e., polygamy) in Brown v. Buhman. Therefore, Utah’s law limiting marriage to two persons is invalid. One week later, another Utah federal judge declared a right to same-sex marriage and labeled all traditional-marriage laws “irrational.”
Waddoup’s opinion also goes beyond “traditional” polygamy of one man with multiple women, which is technically called polygyny. His ruling would also encompass polyandry (one woman with multiple men, almost unheard of in America, but found in some places in the Far East), and polyamory, which involves multiple men and women, usually in bisexual relationships and pushed by certain groups in the country.
There’s even a sexually graphic reality show on Showtime about this lifestyle choice, titled (unsurprisingly) “Polyamory.” And it undercuts arguments for gay marriage (which Turley also supports), since many polyamorists are physically attracted both to people of the same sex and the opposite sex and refuse to confine themselves to a sexual and relationship commitment with only one other person.
Turley said during the interview that this should be a state-by-state issue, but that contradicts his core argument that this is a right in the U.S. Constitution. Since the Constitution is the Supreme Law of the Land, if something is a fundamental right in the Constitution, then no lawmakers–state or federal–can deny people that right.
An NPR reporter on the show introducing the topic tried to minimize this case, assuring listeners, “Nothing has changed,” beyond the fact that polygamists can no longer be put in jail in Utah. That, too, is not true, especially the additional assurance that this does not lead to a right for official recognition of polygamous marriages.
Two things have changed. First, courts cannot enforce contracts that are against public policy. Part of this rule is that if a contract involves anything illegal, then courts are to consider it invalid. If polygamy is a crime, then a polygamous family cannot openly and deliberately mimic by contract most of the benefits of marriage, such as power of attorney for medical and legal issues, child custody, property rights, and inheritance through trusts, wills, and other estate-planning methods.
By striking down laws making polygamy a crime, all of those matters can now be guaranteed through private contract. Polygamists can essentially obtain most marriage benefits without official recognition or a marriage license. This was an almost complete victory for polygamists, in that there are only a few benefits they cannot get without a marriage license, such as state and federal welfare benefits and legal protections in court proceedings.
The second thing that has changed is this is designed to normalize polygamy. When the Supreme Court declared a right to homosexual sodomy in 2003 in Lawrence v. Texas, legal commentators and courts started citing this new right as the basis for additional rights. Many locales started teaching homosexuality in schools, and government nondiscrimination policies added sexual lifestyles and behaviors as protected classes alongside race and nationality.
It all became completely normalized. Shortly after that, courts started citing all of these items as the basis for declaring a right to homosexual marriage, which is now legal in 18 states (many through judicial fiat by courts citing these newly-declared rights, not the will of the voters).
Turley said during our interview that his court victory will lead to polygamists becoming “more incorporated, more visible” in American society. That is how Lawrence led to gay marriage in parts of the country. Brown can follow the same course.
He also promoted this as the latest case involving the right to privacy. The problem is that there is no right to privacy in the Constitution. The Supreme Court invented one out of thin air in its 1965 case Griswold v. Connecticut, a case involving contraception. Griswold was the precedent the Court then cited when it declared a constitutional right to abortion in 1973 in Roe v. Wade. And it has been cited in similar judicial activist decisions since then, including Lawrence in 2003.
The primary reason America has a written Constitution is to ensure limited government, not vague formulations of freedom, privacy, or equality. The Constitution limits government in the specific powers it gives government and also in those few rights that it declares so fundamental that the American people are not even allowed to vote on them.
Only the American people can choose to shut down democracy on an issue, and only through engaging in an extremely rigorous democratic process to amend the Constitution. Federal judges–who are unelected and unaccountable–have no legitimate power to declare rights out of thin air and thereby eradicate laws that the voters have approved and tell those Americans they cannot vote on any new laws on the topic.
Turley also claimed that this is a “victory for morality.” That redefinition of “morality” is every bit as stunning as the redefinition of marriage. His clients are a man and his four wives and seventeen children, who live as a family unit. He calls “morality” people’s freedom to live however they wish.
But “morality” is not doing what you want; it’s doing what you should. That defintion presupposes all sorts of social values judgments, designating some things “right” and other things “wrong.” Every aspect of criminal law and many other aspects of public policy involve the American people’s elected legislators and executives making these values judgments.
People who say no one should make such judgments don’t actually mean it, as few people deny that it’s proper to make laws regarding many issues, such as assault, theft, child endangerment, and fraud. Instead, some people disagree on where the line should be drawn and what topics should be addressed.
It is one thing to say that you do not think anyone should make moral judgments in public policy, though again no one really means that. It’s nothing short of Orwellian to say that it’s morally right and praiseworthy to redefine marriage to include everything, from homosexuality, to (in this case) one man with four wives and seventeen children, to ten adults in joint bisexual relationships with unclear lines of custody to the children they are creating and rights to the property they are acquiring. It is instead a recipe for social chaos and the abolition of any firm definition of the word “family” in American law and culture.
It is equally absurd to say that the Framers of the U.S. Constitution intended this chaos as a fundamental right, alongside the freedom of speech and the right to bear arms. For thousands of years, marriage laws have reflected the scientific reality that every child has a biological mother and father, and they seek to bind those two adults together for the protection and nurturing of any children the sexual union of that man and woman generate. Those laws commit those two opposite-sex adults to support each other and raise their children and condemn either of them reproducing children with anyone outside that monogamous relationship.
The moral judgment of American law and all of Western Civilization is that encouraging that union is vitally important to society. The Constitution does not create a right that demands fundamental protection of any form of marriage beyond this natural and historically-grounded concept.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.