Tuesday, January 14, 2014

Polygamy, Substantive Due Process and Free Exercise

by Mike Dorf

A story in last Thursday's NY Times discussed the federal district court ruling that invalidated the "cohabitation" provision of the Utah bigamy law in the "Sister Wives" case (Brown v. Buhman).  That ruling lit up the blawgosphere when it was handed down last month, and as I'm late to the party, I don't want to now repeat points that others have made.  Instead, I want to take this opportunity to distinguish the case from the contemporaneous litigation over Utah's same-sex marriage prohibition. Given the rough simultaneity of the two cases, the fact that both involve Utah, and, most importantly, the fact that opponents of same-sex marriage often invoke polygamy as a kind of reductio ad absurdum of permitting SSM, it is understandable that the cases would be linked in the public imagination.  But in fact the Brown district court ruling is based on a quite different set of considerations.

(1) Although the Brown plaintiffs sought both legal recognition for their polygamous marriage and invalidation of the ban on cohabitation, the district court only ruled in their favor with respect to cohabitation. To be sure, the plaintiffs are appealing the ruling with respect to recognition, but to my mind there are (at least) two factors that a court could invoke to find a right to legal recognition of SSM while rejecting a right to legal recognition of polygamous marriages. First, polygamous marriages create administrative complexities (about state benefits, etc.) that two-person same-sex marriages do not.  Second, and more fundamentally, laws denying a right to same-sex marriage reflect animus towards gay people, treating them as second-class citizens.  Although particular anti-polygamy laws may be rooted in prejudice (more about that below), they are not inherently discriminatory against a class of persons in quite the same way.  Sometimes people invoke a third distinction--that polygamous marriages are more likely to be coercive than other marriages--but I don't know that this factor should be given much weight in a case in which the marriage is not coercive. I have similar misgivings about distinguishing polygamy as necessarily sexist, because the distinction relies on a claim about false consciousness with which I'm not entirely comfortable.

(2) The Times story reports that the district court relied on Lawrence v. Texas, and quotes GW Law Professor Jonathan Turley saying "This is essentially the Lawrence v. Texas for plural marriages." Without more context, that's a little misleading. In Brown, the district court said that it was bound by 10th Circuit precedent holding that Lawrence did not establish a fundamental right to sexual intimacy, but nonetheless found that the cohabitation prohibition failed the Lawrence-inflected rational basis test that applies to intimate conduct.  So yes, there's a connection between the Brown ruling and one of the leading gay rights precedents, but it's a bit of a fuzzy one.

(3) That connection is rendered fuzzier by the fact that the district court relied, as an independent ground for invalidating the law, on the First Amendment's Free Exercise Clause. After an interesting discussion critiquing the "Orientalism" (citing Edward Said) in the 19th Century case of Reynolds v. U.S. (which upheld a polygamy prohibition notwithstanding the clear anti-Mormon bias that infected it), the district court in Brown went on to say that although the Utah cohabitation law is neutral on its face, in operation it is used to target religiously motivated polygamists.  Thus, the court concluded that it discriminates against religion in violation of Church of Lukumi v. Hialeah.

(4) As yet another basis for the holding, the district court relied on a caveat in the Supreme Court's opinion in Employment Division v. Smith: Although laws of general applicability that incidentally infringe religion do not trigger heightened scrutiny for that reason alone, "hybrid" rights that combine religions exercise with some other right do.  (For what it's worth, I've never found this "hybrid" rights category to make much sense; I thought Justice Scalia invented it in Smith so he could distinguish rather than overrule cases that went against him; but the lower courts, understandably, regard themselves as bound to apply the hybrid rights rule).  Here, the Brown opinion says that freedom of association, equal protection and a list of other rights combine with free exercise to trigger heightened scrutiny--which the cohabitation prohibition fails.

Whether the district court is affirmed or reversed on any or all of these grounds, it should be clear that the legal fate of same-sex marriage in Utah (and elsewhere) is not closely linked to the fate of polygmay.

24 comments:

Paul Scott said...

I think the ties are much closer. Why do opponents of SSM use the reductio ad absurdum argument? Because gays are no sufficiently an out-group in the way that polyamorous relationships are. People are morally frightened by polygamy in the way they used to be morally frightened by gay sex and SSM.

These days, however, being gay is open - largely - and almost everyone knows at least one and probably several openly gay people and couples.

Polygamy is appropriately cited by opponents of SSM because it actually is the next step down the chain from in-group to out-group in human sexual relationships.

Now, I think you are right to say the the fate of Brown is unrelated to the the fate of SSM, but I think that is only partially because of the reasons cited. It is true that in opposing polygamy, States will have completely neutral, non-biased reasons to espouse (even if, as is more likely, those reasons are just excuses). The administrative burden of dealing with polygamous marriages are greatly overstated.

They may cause additional expenses, but developing laws to cover them cannot be so overwhelming as compared, for example, to intestate inheritance absent a surviving spouse or, say, Obamacare. Our legislators are capable of addressing such monumental problems when they choose to do so.

In the end, SSM will succeed and polygamy will fail (for now) because polygamy is a sufficiently small minority that not enough people care about their relationships. The strong libertarian position here is clearly the morally correct one, but it will likely fail for a long time.

Jimmyd said...

"Although particular anti-polygamy laws may be rooted in prejudice...they are not inherently discriminatory against a class of persons in quite the same way."

LOL. That statement is an intellectual dodge. The fact is animus always has been and always will be in the eye of beholder. Wait until we get to bestiality. What kind of animus is that? I can already see it now: just like the Greeks had different words for love (agape, philia, etc.) and the Iniut have 23 different words for different types of snow, America's enduring historical legacy is that it is going to invent different words for different kinds of hate because hate is "not inherently discriminatory against a class of persons in quite the same way." Wonderful! (sarcasm).

More fundamentally, the idea that these legal rulings are anything other than proxies for political battles is farcical. It's like claiming the Civil War wasn't about slavery. The reason liberals have to come up with nonsense about "false consciousness" is not because they actually believe that. It's because conservatives have been baying for years about the slippery slope of sexual liberty and now the court in this case has given them Exhibit A. It doesn't even matter in the long-run whether the 10th Circuit or SCOTUS ultimately strikes down the law. The political damage is done because anytime a liberal scoffs at the slippery slope argument this case is going to be hauled out and its bones rattled. And we will see more posts like Mr. Dorf's, a ostrich burying his head in a vast sand dune of meaningless distinctions.


Michael C. Dorf said...

Both Paul (respectfully) and Jimmyd (not so much) misread me to say that I think polygamy prohibitions are justified. In my point (1), I described two distinctions that courts COULD draw between SSM and polygamy. I did not say that courts should uphold polygamy prohibitions. Indeed, well before SSM was a realistic possibility, I said in print that I thought polygamy prohibitions were difficult to justify. See the point labeled "Third" on pp 851-52 of my 1998 Virginia Law Review essay, "God and Man in the Yale Dormitories":
http://tinyurl.com/l79uzp6

egarber said...

"In Brown, the district court said that it was bound by 10th Circuit precedent holding that Lawrence did not establish a fundamental right to sexual intimacy,"

Is that a correct interpretation of Lawrence? Even though Kennedy doesn't mention strict scrutiny (IIRC), Lawrence clearly places substantive limits on the state, no?

egarber said...



I've always seen the difference this way:

But for innate orientation, same sex couples would have equal access to the civic institution that is marriage. You could even substitute gender for orientation.

Whatever the law should say about polygamy, how does one fill the same equation? "But for" what innate trait are polygamist denied the right?

egarber said...

*polygamists

Joe said...

I do think egarber hits to a core reason why same sex marriage (or interracial marriage) in a monogamous system can be separated from polygamy. Per the first comment, the 'most libertarian' approach may or may not be best, but there are reasonable lines drawn. I think as well there is a reasonable ground to legalize marijuana as compared to heroin.

The second comment ridicules the idea of 'animus' but it is a basic concept in law, so be even-handed about it. Don't just talk about "liberals."

It also would help if the person fully understands the nature of the ruling -- no legal recognition of polygamy etc. -- don't see much of a slippery slope. For instance, for years, people many places who got married to a same sex partner in church but could not get a license were allowed to say they were 'married.' Utah denied polygamous couples the right to do that.

As to the first, it is to be noted in Loving v. VA, the state put forth polygamy as possibly the "next step" too. It has been pointed out as some horrible for quite some time.

Polygamy is different from monogamy in various ways and the ways are more defensible than separating people by the sex (race, class, sexual orientation, etc.) of their partner. That, not mere numbers, is why SSM is succeeding.

I think polygamy might be recognized eventually. But, the next step, an ongoing one, might be protecting monogamous couples who are not married. Lawrence v. Texas et. al., e.g., allowed them to have sex, fornication laws in effect unconstitutional. Some places already give them various benefits. More will come.

Another possible expansion, though the numbers are small, are first cousins, who are already allowed to marry in various states.

Michael C. Dorf said...

Eric asks whether the 10th Circuit precedent cited by the district judge correctly reads Lawrence v. Texas to deny recognition to a fundamental right to sexual intimacy. The short answer is that it's unclear. I think Lawrence is best read to find such a fundamental right, using different language. However, other commentators and a fair number of lower court judges have instead read it as the 10th Circuit does.

It's worth noting that this is a trend in both the Court's substantive due process cases (Casey also doesn't say abortion is a fundamental right) and equal protection cases (Romer and Windsor sort of apply heightened scrutiny but use language closer to the rational basis test). What is most confusing about all of these cases is that they don't acknowledge, much less explain what they're doing.

Jimmyd said...

Has any court held that homosexuality is "innate"?

egarber said...
This comment has been removed by the author.
egarber said...

<<Has any court held that homosexuality is "innate"?

No less so than any court has ever found heterosexual love and attraction innate.

Jimmyd said...

5106 286989623942585 13@egarber

That proves too much. If neither heterosexuality nor homosexuality has ever been held by a court to be innate then how can the innateness of sexuality serve as any kind of legal dividing line on the slippery slope of sexual liberty?

egarber said...
This comment has been removed by the author.
egarber said...

jimmyd,

I understand that question, and I think it's one reason some folks prefer making it a gender distinction, since orientation itself is a more complex thing.

But to the point, I don't think a court needs to formally find innateness as a scientific matter to create an equal protection context -- i.e., there is no reason as a matter of law to define heterosexual love differently than homosexual love. They are both "innately" a variety of the same intimate thing. Therefore, there's no government interest in keeping one out of a given civic institution.

With polygamy, it's not the nature of the attraction that's in question; it's whether the government has an interest in curtailing the particular civic arrangement (for whatever reason).

Jimmyd said...

In my view that approach is disingenuous. Both historically and practically civic arrangements are proxies for sexual arrangements. Indeed, this has been one of the major points of SSM advocates in the debate of "civil unions" vs "marriage".

Technically, a 30 year old male could marry a 10 year old female and that merely be a "civic arrangement." Indeed, if my information is correct that is in fact the practice in some parts of the world where "child brides" exist--that there is a formal civic ceremony when the child is young but there is an unspoken understanding that sexual activity does not take place until the child is "of age".

That approach has never been the accepted cultural or legal practice in the USA. What was culturally offensive to its opponents about Loving wasn't just that black people could marry white people--it was the implicit acknowledgment that interracial sex was acceptable.

So to pretend that a ban on polygamy is just a ban on a "civic arrangement" and not a ban on a sexual arrangement is a non-starter for me.

Joe said...

There has been court opinions that determined that sexual orientation is "immutable" both using a strict definition and using a somewhat looser test that determines something is so basic, so hard to change that it is immutable for legal purposes.

The recent Ohio SSM recognition opinion is an example of such recognition. It for instance quotes an opinion from 1989:

"“[S]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them”

http://www.buzzfeed.com/chrisgeidner/federal-judge-says-ohio-must-recognize-same-sex-couples-out

Sexual orientation is "innate" (inborn, natural). I am innately attracted to the opposite sex. Is this really hard? That is, when it doesn't involve homosexuality?

Something doesn't have to be 'innate' to be protected though. Equal protection applies to non-innate things too. So, that only goes so far anyhow.

As to Loving, sex was involved there obviously, but it was part of an overall concern about separating the races. That wasn't just about sex. The civic arrangements / sex arrangements argument is too narrow for me. Civic arrangements are set up for a range of reasons.

Jimmyd said...

@Joe. Yes, I am aware of that case, however, the statement you quote from that opinion is not a holding, it is dicta.

Joe said...

JimmyD, the "statement" is merely a citation in a section in the Ohio case that determined that sexual orientation warrants heightened scrutiny. It did this by examining the four criteria used, including immutability, and finding it is met here.

It is unclear to me why the section is simply dicta. And, even if it was, what would that matter to this conversation? The judge showed no implication that if the case relied on that, it would not stand as holding. Not that I would say it was not w/o more.

Per your question about a "court," other courts such as Kerrigan v. Commissioner of Public Health (CT SSM case, which itself cited other courts) did the same thing -- they held that heightened scrutiny is required based on the criteria -- including immutability -- being met.

To the degree a broader definition of 'immutable' is at issue, Windsor v. U.S. (1st Circuit) also "held" that intermediate scrutiny for sexual orientation is warranted by examining the criteria met & one that was met was "distinguishing" feature of special importance comparing it to alienage.

How "polygamy" would be a similar "characteristic" is unclear. It at least seems different enough to reasonably differentiate. But, regardless, there have been "courts" that "held" sexual orientation warrants special protection in part because of the "immutability" of it. That is in some fashion "innateness."

Evin Terna said...

It's because conservatives have been baying for years about the slippery slope of sexual liberty and now the court in this case has given them Exhibit A. It doesn't even matter in the long-run whether the 10th Circuit or SCOTUS ultimately strikes down the law.

Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

That statement is an intellectual dodge. The fact is animus always has been and always will be in the eye of beholder. Wait until we get to bestiality. What kind of animus is that? I can already see it now: just like the Greeks had different words for love (agape, philia, etc.) and the Iniut have 23 different words for different types of snow, America's enduring historical legacy is that it is going to invent different words for different kinds of hate because hate is "not inherently discriminatory against a class of persons in quite the same way." Wonderful! (sarcasm).http://lol.mmo18.com/ | fifa14.mmo18.com

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