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.