Utah polygamists have filed a lawsuit against the state of Utah for refusing to issue a marriage license for G. Lee Cook to marry “J. Bronson” on the basis that he already had one wife. The first attempt to have their case heard was turned down by a federal judge, but on 9-25-06 the 10th U.S. District Court of Appeals accepted it.

The Cook’s attorney, Brian Barnard, is arguing that the ban on polygamy is unconstitutional because it targets a specific religion—Mormonism—and it prohibits the free expression of personal religious beliefs.

Regarding the former, the law is neutral in this regard. No one in this country—Mormon or not—can marry more than one person. Regarding the latter, I quote Barnard:

“The sincere and deeply held religious beliefs of J. Bronson, D. Cook and G. Lee Cook are that the doctrine of plural marriage, i.e., a man having more than one wife, is ordained of God and is to be encouraged and practiced.”

 

“Utah’s criminalization of religious polygamy, even if the crime is rarely prosecuted, brands plaintiffs as criminals and sanctions public and private discrimination based on plaintiffs’ religious based choice of marital relationship.”

 

In the first statement Barnard is assuming that because the practice is rooted in religious belief it cannot be properly legislated against according to the First Amendment. But this proves too much. Such a principle would turn the free exercise clause into silly putty, requiring us to give legal sanction to any practice someone labels as religious. What if a religion existed (or was invented) in which molesting children was commanded by their gods? Would we have to allow that practice based on the First Amendment? Of course not! The free-exercise clause has limitations. Just what those limits are, unfortunately, is not so clear cut. One thing is clear: societies govern the range of behaviors they will promote, accept, and tolerate, and those they will prohibit. The grounds for determining which are which is our moral intuitions and persuasions. The means is the voting booth.

As a democratic nation, the collective moral judgments of the voting majority will be enshrined into law (unless you live in CA where the legislature doesn’t care what the people want, and most people are so consumed with their plastic lives that they don’t realize or care what their representatives are doing in Sacramento!). Why should the collective moral judgment of the majority be set aside to make room for a religious behavior that the majority of the citizens find immoral? If a democratic nation cannot pass laws prohibiting immoral behavior when the practitioners of those behaviors claim it is religious, then we do not have a democracy. The majority would be subject to the minority, required to allow any religious practice no matter how much it goes against our moral sensibilities, and how damaging it may be to society. That cannot be. In the same way we can prohibit “religious” child molestation without violating the First Amendment on the grounds that it is morally wrong, we can prohibit religious polygamy on moral grounds as well.

His second statement is not much better. Of course those who break the law are criminals, and will be branded as such! Is he really suggesting that we change the law so his clients can avoid being viewed and treated as criminals? What if bank robbers argued this way: “The criminalization of theft brands bank robbers as criminals, and sanctions public and private discrimination based on our choice of employment. To avoid this distasteful situation, we propose theft be made legal.”

Of particular interest is the legal justification he offers for overturning the current ban on polygamy. Referring to a 2003 case in which the Supreme Court overturned Texas’s anti-sodomy laws (Lawrence v. Texas) Barnard wrote, “The [Supreme Court] found no compelling state interest in criminalizing homosexual sodomy based on a long history of states and/or a majority of society finding the practice immoral. Similarly, the state of Utah can offer no compelling justification for criminalizing polygamy.”

Two things should be noted. First, many social conservatives predicted that liberals would use the Lawrence decision as legal ammunition to challenge other deviant sexual-social behaviors such as same-sex marriage and polygamy. They were right. I wouldn’t be surprised if Barnard appeals to Goodrich v. Department of Public Health as well: the MA Supreme Court decision legalizing same-sex marriage in MA. The reasoning employed in that case to legalize same-sex marriage is equally applicable to polygamy.

Second, the statement is rationally ridiculous. Barnard is arguing that the will of the majority, and the moral objections of fellow citizens should not be a factor when determining the legality of polygamy. Excuse me?! Since when does the will of the majority not count in a democracy? That may have been the reasoning of the Supreme Court in Lawrence, but that does not mean their reasoning was sound. In fact, their reasoning was quite asinine.

Since when are moral considerations irrelevant to law-making? Law is a moral enterprise on its face. Every law either promotes a good or prohibits an evil (bad). If morals cannot inform the law concerning marriage, then what does? If the majority of the citizenry cannot determine how they want to define marriage, then who should? I have to assume that the answer to these questions is the will of the immoral minority.

It’s not surprising when you dismiss democratic majority rule and morals legislations from the equation that there no longer remains a compelling justification for criminalizing polygamy. Why? Because they are the most compelling reasons! Dismissing them a priori only begs the question. I would like to know what compelling reasons there are to dismiss these compelling reasons as illegitimate to the question? I have no compelling reason to think the will of the majority and the moral position of the citizenry of this country should be excluded from the legal process. In fact, if we do so we destroy the democratic process.