Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Sister Wives, Polygamy, and Cohabitation
Julia K. Stronks
By Julia K. Stronks
January 24, 2014
Last December, a federal judge in Utah ruled that some state laws regulating living arrangements violate the Due Process and First Amendment clauses of the Constitution. This case caused conservatives to reiterate their ongoing concern that once same-sex marriage became legal, the barrier against polygamy would be the next to fall. While the Utah decision focused on how laws are enforced and not on polygamy, those concerned with how government supports marriage are right to note that the conversation is not over. No matter what our own tradition teaches about marriage, we have more thinking to do about the role of government, the granting of a marriage license, and legal prohibitions on behavior.
In Brown v Buhman, the family highlighted in the reality show Sister Wives filed a complaint with the federal court saying that the bigamy laws of Utah violated the Constitution. Kody Brown is legally married to one woman but he has a “spiritual marriage” with a number of other women. State prosecutors were investigating the family for possible criminal prosecution for bigamy so the Browns took the preemptive step of asking the federal courts to declare the Utah bigamy law unconstitutional.
Judge Clark Waddoups, a conservative appointed by George W. Bush, found that there was no fundamental right to polygamy. However, he pointed out that though legislators were allowed to limit plural marriage, they were not allowed to pass laws that targeted a particular religious belief. In criminalizing bigamy, Utah had said “[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013). Judge Waddoups said that this law was “facially neutral” in that it did not target a religion but there were problems in the way it had been enforced. The part of the law that relates to cohabitation was found to be non-neutral in its application because the state of Utah had an explicit policy of “selective prosecution.” The cohabitation phrase had been used to criminally charge only religious “cohabitors.” The wide variety of non-religious cohabitors were never prosecuted. So, Judge Waddoups found the cohabitation clause unconstitutional, but the rest of the bigamy law survived.
The Brown case foreshadows issues that will come before the courts in the future. One question is whether plural unions should be criminalized. Another is whether these unions might ever be recognized as marriage. All of us have an instinctive answer to these questions, but we need to think through why we believe what we believe.
One argument rejecting these unions as marriage is captured by the Center for Public Justice’s guidelines on marriage, homosexuality, and family. “Public law does not create marriage or the family, which originate outside the political bond. But the law should recognize these two institutions and may, for purposes of public health and social wellbeing, support and regulate them.” For legal purposes, marriage is a “life-long covenant between a man and a woman that includes and legitimately bounds sexual intercourse (coitus).” Because homosexual unions do not meet this definition, they are not to be considered marriages; in like manner, plural arrangements are not marriage.
But not all Christians agree with this approach. Some will say that a country filled with people of different worldviews and faith perspectives will have different understandings of marriage. CPJ’s biblical understanding is held by many, but a significant number of others think of marriage as a contract. Where there is a plurality of understandings of the nature of marriage, these Christians argue that government should treat the different understandings similarly or stay out of regulating marriage altogether. Christians who take this approach need to take their analysis of plural unions a step further to consider what these unions contribute and what sort of harm they might perpetrate.
For many of us, plural unions evoke images of young girls being forced to marry older men. Polygamy has been associated with poverty and truncated education for females, and the United Nations Human Rights committee has recommended that the practice be abolished as it is a violation of women’s rights. But we actually do not know much about the impact of different sorts of plural arrangements that have existed worldwide. Historically, multiple marriages were accepted by Jews and Muslims. Polygamy was common in the Old Testament and is only briefly touched on in the New Testament. Definitions can be complicated but some ethnographic studies suggest that fewer than 20 percent of world societies are monogamous. Moreover, as the show Sister Wives has demonstrated to the surprise of almost everyone, there are times when a plural family can be a stable, healthy environment for children.
Brown v Buhman hinted at legal challenges that are on the horizon. As we consider how government should engage with different institutions, we must also carefully evaluate evidence of harm in a fallen but redeemed creation.
- Julia K. Stronks has practiced law and has a Ph.D. in political science. She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”