Polyamory, the Right to Privacy, and Religious Freedom

Last week, a federal District Court judge in Utah struck down a law used to prosecute members of polyamorous relationships. Predictably, some conservatives immediately brought up the slippery slope to legalized adult incest and legal "teen sex cults." However, the decision is a very rational and straightforward application of core principles of the right to privacy and religious freedom.

It is crucial to understand, first of all, that Judge Clark Waddoups's decision in Brown v. Buhman did not "legalize bigamy." The lawsuit was brought by the reality television star Kody Brown, who lives in a polyamorous relationship with four women but is only legally married to one. Brown did not even contest Utah's limitation of marriage to couples, and Judge Waddoups deferred to a Supreme Court precedent dating back to the 19th century holding that bans on bigamy are constitutional. Rather, the decision concerns an unusual, extraordinarily broad provision of Utah law under which "[a] person is guilty of bigamy" if "the person purports to marry another person or cohabits with another person."

The problems with this statutory language under the right to privacy most recently re-established in Lawrence v. Texas should be obvious. On its face, the law would prohibit not only informal consensual polyamorous relationships—problematic in itself—but any kind of intimate cohabitation between unmarried partners. Based on Lawrence's recognition of the fundamental right consenting adults have to engage in same-sex relations, it is very hard to argue that this section of the Utah statute doesn't violate the right to privacy guaranteed by the 14th Amendment.

Defending the statute, the state of Utah made an argument essentially similar to the argument made by former Virginia Attorney General (and failed gubernatorial candidate) Ken Cuccinelli in defense of his application of Virginia's patently unconstitutional band on "sodomy." As Judge Waddoups put it, Utah argued that " much of the Statute’s usefulness, apparently, lies in the State’s perception that it can potentially simply charge religious polygamists under the Statute when it has insufficient evidence of other crimes." But like Cuccinelli's attempt to prosecute a man guilty of creepy—but not actually illegal—sexual solicitation of much younger women under a broad-based sodomy prohibition, this stated application is inconsistent not only with the right to privacy, but the rule of law. The right recognized by Lawrence does not forbid Utah from denying multiple simultaneous marriage licenses to the same individual, banning nonconsenual sex, or banning sex between adults and children. If someone in a polyamorous relationship is guilty of any of these offenses, they can be prosecuted under specific statutes banning bigamy, sexual assault, and/or statutory rape. If Utah does not have sufficient evidence to prosecute someone of these specific offenses, they have no business punishing them under a broader statute. Allowing a law like this to remain on the books has the same problems as allowing rarely enforced laws banning sodomy on the books: it's an invitation to prosecutorial abuse inconsistent with the fundamental protections of the 14th Amendment.

In this context, the selective enforcement of a broad law potentially infringes on another right as well: the right to the free exercise of religion guaranteed by the 14th Amendment. Relying in part on the precedents upholding bans on bigamy, the Supreme Court held in 1990 that generally applicable regulations of conduct do not violate the First Amendment even if they burden minority religious practice. The Utah statute, as Judge Waddoups observes, is neutral and therefore does not violate the free-exercise clause on its face.

But that's not the whole story. The Supreme Court subsequently ruled in the 1993 case Church of Lukumi Babalu Aye v. City of Hialeah that a formally neutral law can violate the 1st Amendment if it is intentionally targeted against religious groups or selectively applied against a religious minority. As Judge Waddoups observes, Utah has all but conceded that it is applying the broad language of the statute selectively against an unpopular religious minority. Even under a narrow construction of the free-exercise clause, it's hard to see how this can be constitutional.

Even if we assume that states have the right to limit formal marriage licenses to one set of partners, the state's ability to interfere in the consensual relationships of consenting adults is heavily restricted by the constitutional right to privacy. Whether or not one approves with Kody Brown's moral choices, Judge Waddoups's defense of his rights to privacy and religious freedom is brave and persuasive.

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