Gay Rights and Polygamy

By Potts, Monica | The American Prospect, September 2011 | Go to article overview

Gay Rights and Polygamy


Potts, Monica, The American Prospect


Last year, at the end of the first season of Sister Wives, a reality show about a polygamist family in Utah, Kody Brown took a fourth wife, Robyn. Rain threatened to cancel the religious ceremony. Meri, Brown's first wife and the only one to whom he is legally married, commented on the gloomy sky, "That's how my heart felt." Before then, Brown, a 43-year-old ad salesman, his three wives, and their 13 children had achieved an equilibrium of sorts. Robyn and her three kids threw this off balance, but welcoming Robyn was a nonnegotiable duty for the other women. "At that time, it really establishes itself as a patriarchal relationship," says Felice Batlan, a professor at the Chicago-Kent College of Law and a fan of the show.

Bringing in a new wife did more than disrupt the family's peace. It made the Browns the target of a criminal investigation under the anti-bigamy law that Utah had to adopt in order to enter the union. As far as the state is concerned, Meri is Brown's only wife, but the law defines a bigamist as a married individual who "purports to marry another person or cohabitates with another person." The state doesn't often prosecute families unless it finds evidence of another crime, like child abuse or statutory rape, but the Browns fled to Nevada after the first season ended.

Last month, they sued Utah, arguing that the anti-bigamy law is unconstitutional under the First Amendment and Lawrence v. Texas, the 2003 Supreme Court case that struck down anti-sodomy laws used to prosecute gay men. Brown isn't asking for the state to recognize all his marriages. He's arguing that being prosecuted for his spiritual marriages violates his freedom of religion and that, under Lawrence, the state can't prosecute consenting adults for their sex lives.

Brown's ease is a nightmare for liberals and conservatives alike. Lawrence was a groundbreaking decision that established gay rights and provided momentum for the campaign to legalize gay marriage. Liberals fear that by basing his case on Lawrence, Brown gives fodder to conservatives who argued that gay marriage would open the door to polygamy. Conservatives fear that striking down criminal laws against calling someone a spiritual wife would not only lead to recognition of polygamy but would also endanger anti-gay statutes that limit marriage to a man and a woman.

Unlike many other industrialized countries, the United States doesn't clearly separate the civil and religious institutions of marriage.

On one hand, the state empowers clergy when they perform ceremonies. On the other, because the state recognizes and promotes marriage, it has to ensure equal access. These two interests can be in conflict, which is why the right has argued that gay marriage is a restriction on religious freedom. …

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