By Jonathan Turley
Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.
For polygamists, it is simply a matter of unequal treatment under the law.
Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.
Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.
Religion defines the issue
The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.
However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”
Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.
Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.
Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.
Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.
The Green case
This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.
While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.
In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.
The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.
Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.
I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.
I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington Law School.
via USATODAY.com – Polygamy laws expose our own hypocrisy.
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