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Utah polygamy ruling — You can’t just jump off the slippery slope

Utah polygamy ruling — You can’t just jump off the slippery slope

Incestuous marriages next? No one can jump off the slippery slope.

We reported last December on how a Utah federal judge strikes down key part of anti-polygamy law:

Yes, this all was predicted long ago, and led to charges of fear mongering and false slippery slopes.

The legalization of polygamy followed logically from the legal arguments against one man-one woman, as was predicted not just by me, but also by Professor Martha Nussbaum, one of the leading legal advocates for gay marriage, “Polygamy would have to be permitted.”

And it’s coming true in a small step, as a federal court in Utah, while not holding that polygamists were entitled to state-sanctioned civil marriage, nonetheless struck portions of Utah’s anti-polygamy laws banning polygamous “cohabitation” and polygamous “purported” marriages.

Now the court has finalized it’s decision, as reported by The Salt Lake Tribune (h/t Instapundit):

In the final portion of his ruling Wednesday, Waddoups found the Utah County Attorney Jeff Buhman violated the Browns’ constitutional rights when he oversaw a 2010 investigation into whether the Brown family was committing bigamy. At the time the Browns lived in Lehi. They have since moved to Nevada. Buhman eventually decided not to file criminal charges, but Waddoups said the investigation stifled the Browns’ rights to free speech, religion and equal protection.

Waddoups ordered Utah to pay the Browns’ attorney fees as a result of that finding.

In court filings and oral arguments before Waddoups, attorneys for Utah have argued polygamy is inherently harmful to woman and children and the state had an interest in deterring it.

But why stop at polygamy? As long as consenting adults are involved, and they love each other, is it really a leap to incestuous marriages?

The argument has been made, as part of a presentation in 2009 (just before the rapid movement towards legalizing same-sex marriages), by Professor Martha Nussbaum, as we detailed in “Polygamy would have to be permitted”:

In the audio below, Nussbaum is questioned by a student whether he should be permitted to marry his parents, since there were valid estate and other tax reasons to do so.

Nussbaum then addressed several aspects of the slippery slope.  She rejected bestiality out of hand as lacking necessary consent.

Nussbaum stated, as to polygamy, there really was no justifiable state interest in banning the practice, particularly if past unequal gender roles were addressed by more modern polyamorous considerations:  “”Polygamy would have to be permitted.”

More inflamatory was her position on incest between siblings.  While willing to draw a bright line on parent-child incest because of the compelling state interest in fighting child abuse, Nussbaum nonetheless applied the deconstructive analysis to sibling incest and found the state interest to be marginal:

“But then when you get to brothers and sisters, well, you know, now we know so much about the genes, and we certain don’t forbid people with Tay-Sachs [garbled] to get married. So I feel that it’s just bad faith to forbid the brother and sister on these putative health grounds.  If one at one time states did think they had that interest, they don’t have that anymore.”

Crazy you say?

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Historically polygamy has been common in way more cultures than homosexual marriage. While homosexuality has existed in all cultures as far as I know it has never been officially recognized as the equivalent of hetrosexual or even polygamous marriages.

As for me…. I am looking at buying futures in attractive goats as a retirement investment.

    Ragspierre in reply to Anchovy. | August 28, 2014 at 4:42 pm

    …where a divorce is almost always coincident with a barbecue.

    Rare except in certain island cultures…

The incestual angle is an interesting one, but also goes to extents that most do not consider… incest between same-sex relatives (granted that is probably a pretty small set of people).

Living up in Washington the other year I voted against the legalization of same-sex marriage, not because I was against SSM, but because of the specific way they changed the law.

When expanding the definition of marriage they removed the most of the male/female parts to the following types of prohibited marriages, but still left the core in play:

(b) When the spouses are nearer of kin to each other than second cousins, whether of the whole or half blood computing by the rules of the civil law.

(2) It is unlawful for any person to marry his or her sibling, child, grandchild, aunt, uncle, niece, or nephew.

While a genetic argument is often made with regards to siblings marrying, Washington prohibits same-sex marriage of close relations or other couples where there is no chance of reproduction.

While I am not keen on marrying my brother or my cousin, this does kind of weaken the argument of “everyone should have the right to marry who they love” argument… but instead (I think) rely on an ‘ewww’ factor… a similar feeling that many have long used with regards to SSM.

    Ragspierre in reply to dahat. | August 28, 2014 at 4:28 pm

    I see no valid argument for prohibiting non-reproductive closely related adult couples from “marrying”.

    The exact same rationale applies to them as applies to “gay marriage”.

    Likewise, there is no rational bar to “marrying” anybody or anybodies you’d care to marry, assuming adulthood.

    Of course, “marriage” has pretty much always meant what society understood it to mean just a decade ago…a union between A man and A woman, with the usual strictures.

      Mike45 in reply to Ragspierre. | August 29, 2014 at 4:21 pm

      Rags, I am a bit disappointed in you. You are repeating the party line: “Of course, ‘marriage’ has pretty much always meant what society understood it to mean just a decade ago…a union between A man and A woman, with the usual strictures.” But have you thought about this nonsense before you repeated it?

      For most of human history, “marriage” was NOT just between one man and one woman. I am not a Bible scholar, but I seem to recall that Abraham had children with both his wife Sarah and his “concubine”, Sarah’s handmaiden, Hagar. Wasn’t this a polygamous “marriage”? And isn’t Abraham’s role as one of the founders of our modern Western civilization pretty well established?

      King David had six wives and innumerable concubines.

      King Solomon had HUNDREDS of wives.

      “If a man has two wives, and he loves one but not the other, and both bear him sons but the firstborn is the son of the wife he does not love, …” Deuteronomy 21:15. So it looks like G_d approved of (or at least failed to condemn) polygamy.

      In Matthew, Chapter 22, Jesus talks about the law in which a man must marry his brother’s widow, and the situation in which a man thusly had seven wives. Jesus in no way condemned this practice.

      Muslim law allows a man to have up to four wives. Even today. But a woman is allowed only one husband.

      Although Buddhism does not favor polygamy, it was legal in Thailand, Burma, Tibet and Sri Lanka. I think they outlawed polygamy in the last few years.

      Hinduism does not forbid polygamy, although India outlawed the practice in relatively recent times — but not for Muslims living in India.

      Ancient Rome and Greece had polygamy. The Celts practiced it as well.

      Let’s not even get into Africa, both ancient and modern, where polygamy has been accepted in variousa reas and rejected in others.

      So, Rags, I contend that for most of human history, polygamy has been accepted, and that the one man-one woman model is relatively recent and limited!

      Sorry, but you touched upon a raw nerve, this assumption that one man-one woman is somehow the model throughout history.

        Ragspierre in reply to Mike45. | August 29, 2014 at 4:42 pm

        Well, you are just wrong. Sorry.

        Sure, there were Old Testament polygamists.

        But you are simply wrong wrt to a lot of your other ASSumptions.

        Hindus and Buddhists most assuredly DO practice monogamy. Exceptions prove the rule.

        Greeks and Romans likewise. Greeks MAY have been all kinds of twisted by our lights, but were monogamous.

        So were, by and large, American Indians, Polynesians, etc. and some more etc.

        Particularly in modern times, the norm all over the world has been A man and A wife.

        PaterNovem in reply to Mike45. | August 30, 2014 at 1:39 am

        The old testament practices were superseded by the new. Hence, the new covenant. As for the wife with seven husbands, I believe the scenario being given to Jesus was that the woman married one, he died, she marries the next, etc. As for the muslim 4 wives deal, well, if sharia based considerations creep into our civil society then God help us all. The other religions are what they are, at least they aren’t hell bent on cutting other people’s heads off.

        All that aside, perhaps the state should just get out of the marriage business. They seemed to have mucked it all up anyhow. At this point, poly-whatever really can’t be logically opposed if one takes the Judeo-Christian natural law out of the foundation of our society. Bill, Bob and Stan want to marry Mary, Beth, and Susie, (all at the same time) well, who are we to get in the way? I figure the divorce lawyers will be the big winners in the long run. But remove welfare from the mix so these poly-whatever families aren’t being supported by the rest of us. Yeah, that’ll happen…

    Ragspierre in reply to dahat. | August 28, 2014 at 4:31 pm

    Interestingly, an ungodly (heh!) number of marriages to first cousins occur in the Pakistani population of GB, resulting in a terrible number of congenital defects out of that population.

    Look it up.

    Grand Old Partier in reply to dahat. | August 28, 2014 at 4:53 pm

    A judge in Australia has already ruled that because of abortion, incestuous marriage is no longer taboo. Coming to courtroom near you:

filiusdextris | August 28, 2014 at 3:53 pm

When you don’t presuppose God or the natural law into the fabric of our nation’s founding documents, including the Constitution, these are the logical fruits that you sow. In modern times, truth is relative based on the tyranny of the I (i.e., Personalism).

We won’t change as a nation until liberals also succeed in bankrupting our nation, and we have to start over after the anarchy that results. At the national level, I’m not sure which bankruptcy, moral or economic, is worse.

Henry Hawkins | August 28, 2014 at 4:27 pm

What’s all the fuss? I married my sister. Sure, folks were upset, and yes, a couple of our kids were born without elbows, but the benefit that makes it all worthwhile is that when you marry your sister you don’t get any in-laws.

“But why stop at polygamy? As long as consenting adults are involved, and they love each other, is it really a leap to incestuous marriages?”

Do we live in a free country in which people have a right to do that which does not harm to their fellows? Or do we live in a country in which society is able to use the government as a cudgel to enforce its norms and to maintain that which is “acceptable”?

Why is Utah the only state in the Union to have been admitted on the condition that its citizens surrender a portion of their religious beliefs? Congress probably had an inkling that if they didn’t make the banning of polygamy a condition of Utah’s acceptance to the Union that they would be powerless to do anything about it after the State had been admitted.

Lawyers are taught to claim “rights” and to search the Bill of Rights for something upon which to hang their arguments. Therefore, they rarely pose their challenges in proper terms (with the dog wagging the tail). The right of adults to marry whom they please (straight, gay, and poly) is not found in the Constitution, it is found in the lack of enumerated authority to discriminate against persons when they are doing nothing more than ordering their personal affairs in a mutually agreed-upon, and probably mutually advantageous, manner. Why should marriage be legally limited to two persons of the opposite sex? What authority does the state have to prevent other adults from entering into identical (or similar) contracts merely because of their gender or number?

Gay marriage to polygamy is not a “slippery slope.” It is a logical extension of the principles upon which gay marriage had to be recognized by the courts. It is happening now not because of some moral decline in our nation, but because society has changed to a point where people who were once marginalized and ostracized are now sufficiently comfortable in the society that they feel they are now able to stand up for their rights. They have always been here and have always had a desire for these freedoms, but they were not able to give voice to their desires. What you view as a moral stand to prevent these perversions of our institutions, I look at as an act of oppression to keep these people “in their places,” and that place is out of the mainstream and to keep their unions “unacceptable.”

Someone will doubtless claim that the laws are necessary “for the children” of marriage unions. To that, I have this to say:

Although marriage is often, and usually, associated with responsible procreation and effective parenting, not all of its purposes and advantages are directed towards these issues. Yet conservative legal analyses and moral/religious objections to alternate forms of marriage usually, if not always, come down to them. However, many married people today intentionally avoid having children, others are on their second or third marriage and their parenting time is behind them before they entered into their latest marriage, and so on. Why should these people (straight, gay, poly) have their marriages constrained by laws devised specifically for marriages that include children and parenting? If this is the legal norm, let’s just admit then that marriage licenses are actually licenses to procreate. Once that is admitted, it should be possible to separate “marriage” (as a contractual union between two or more persons) from “procreation and effective parenting,” and issue separate licenses for them, so that couples who do not want, can’t have, or are done with children aren’t limited by laws specifically directed at having and raising them. At that point, we should be able to get the government out of marriage licensing altogether, and to adopt a system of permitting/licensing directed exclusively at the subject in which the state has an interest – child rearing.

Of course, such a proposition will raise howls about “freedom” and “liberty.” This is understandable, and, from some, hypocritical. Anybody objected to such a scheme who also believes government should play a role in preventing “alternative” marriages, esp. “for the children,” doesn’t have a leg to stand on in opposition to the licensing of parenthood, because that’s essentially what the government is doing now, so long as it structures its marriage laws around having and raising children, and forcing into conformation all consenting adults whether or not their unions will have anything to do with children.

Most people would probably agree, that for various and very good reasons, licensing procreation is out of the question. But if government can’t license people before they are permitted to procreate (i.e., a system of regulation directed narrowly by and towards the state’s interest in protecting “the children”), why should it be able to do so indirectly, while it dictates directly to consenting adults how they can, and cannot, arrange their own personal affairs with respect to one another (even when children are not involved)? Surely, when the state dictates to consenting adults how they can and can’t arrange their personal affairs by invoking its interest in “the children,” what is it doing but interfering with that which should be beyond its authority (how adults arrange their personal affairs) in order to regulate indirectly that which is admitted is impossible (licensing procreation) to regulate directly?

    Ragspierre in reply to DaveGinOly. | August 28, 2014 at 5:23 pm

    See, this ^^^ is why radical libertarians can’t have nice things…

    like credibility and elective office.

    You are correct that the only grounds that we have to refute this is on religous and moral grounds. The same applies to drug use, suicide, and a host of other objectionable behaviors that only affect individuals, but are immoral. Apart from acceptance of absolute truth (defined good and evil) we are somewhere on the slippery slope and we aren’t going up…

Not just polygamy…

In Lawrence v. Texas,, the High Court struck down social hygiene laws under Bowers v. Connecticut to make homosexual relations, including same-sex marriage, legal. The same decision that makes same-sex marriage legal also makes bigamy legal.

As Justice Scalia said in his dissent in Lawrence: “Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,”. The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,”. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”

If laws against homosexuality are invalid under the Constitution, then so are laws against polygamy and adult incest and prostitution. In their headlong rush to make same-sex marriage legal, liberals put us on a path toward making prostitution legal.

Next time a liberal talks about same-sex marriage, be sure to point out the Supreme Court decision that makes it possible, then point out the side-effects of striking down social hygiene laws, and add that prostitution is legal is many western countries. In a group situation, some liberals will support the idea, causing others to attack with full force. It’s great fun.

RE: “You can’t just jump off the slippery slope”
Sure you can. What is needed to fix this mess is the “Liberal Magic Hat” Supreme Court test: the Constitution means what we say it means, even if new rights magically appear and words on paper magically disappear. Why are laws against homosexuality invalid but laws against prostitution perfectly valid? Because we say so.

Nussbaum is taking a very libertarian view. The only possible reasons not to allow something are functional ones, in this case medical. Morality is assumed to be non functional and irrational and therefore unworthy of consideration.

This is a perfectly reasonable, modern, thoughtful and deeply destructive way of approaching things.

Midwest Rhino | August 28, 2014 at 6:23 pm

So when a man has three wives, do they all share his Medicare that he earned, if they didn’t earn enough to merit it on their own? Can he divorce one wife in California, and she would only get a quarter share?

A strong two opposite sex parent family deserves some tax credit for their kids. The state has interest in promoting such proven solid societal foundation. And other kids merit some support.

But when an older couple gets married largely for the purpose of partaking in each others earned benefits, before and especially after death, that seems wrong. They didn’t earn it, but can claim a million over 25 years, from a teacher pension for example, if the teacher dies, just because they got married. Taxpayers fund that bonanza.

Removing some of those financial perks for gay or straight marriages of childless convenience, might help. But I guess there are no moral grounds now, it is all about “fairness”. Children will in time be on the table, or in Polanski’s hot tub.

    When we reach that point it won’t matter. Our private healthcare system will have collapsed (thank Obamacare) and the only solution presented by our leaders will be single-payer, followed by exorbitant tax rates in the name of “fairness” and “correcting the income inequality crisis”. It will be “from each according to his ability and to each according to his need”. Of course, the homosexual polyamorus welfare queens will have the greatest need.

I don’t understand why I can’t marry my cat, he’s always giving me kisses and demanding I pet him suggestively.
We’re cohabitating right now and I’m paying his doctor bills, food, water and other expenses.
He should at least be a deduction on my taxes.

This is no coincidence, considering how Islamophilic liberals in general, and Obama in particular, are. Both polygamy and first-cousin marriage are very common in Muslim-dominated countries, and where Muslim sensibilities conflict non-Muslim sensibilities must naturally give way. I know this particular case isn’t about Islam per se, but the link is clear.

The slippery slope is not progressive morality per se, which is an incremental problem of corruption; but is the near-term creation of moral hazards through selective (i.e. unprincipled) exclusion. Anyone who supports normalization of homosexual behavior, not tolerance of homosexual orientation, cannot offer a logical objection against other loving and not so loving arrangements and associations. Anyone who is “pro-choice” (i.e. elective abortion for money, sex, ego, and convenience) cannot logically object to a diverse set of dysfunctional and unproductive behaviors. In fact, “pro-choice” does not even acknowledge the rights of human life when it is uniquely defenseless and incapable of expressing its will. And then there are the “single” mothers through sperm banks, morally ambiguous “rent-a-wombs”, and “marriages” in multiplicity (e.g. “friends with benefits”), where a father is often ambiguous.

We live in interesting times. I imagine that many, and perhaps most, people would prefer to delegate reconciliation of the moral hazards to their progeny.

“attorneys for Utah have argued polygamy is inherently harmful to woman and children”
How? At the time the Mormon Church was founded it was actually BETTER for women. At that time the Church required a man to show he could support each wife and any children. Added wives meant the household tasks were divided. It meant risk of pregnancy and childbirth(dangerous at the time) were lowered. The hard work that made pregnancy so dangerous could be done by the wife not pregnant.
Several wives would also be better able to keep track of the younger children.
Polygamy was one of the reasons for persecuting Mormons. Not on a moral basis, but many women realized the advantages it had at the time. Especially the requirement of being able to support the wives and children.

    Ragspierre in reply to genes. | August 28, 2014 at 7:58 pm

    A good bit of what you said I think is correct.


    IIRC LDS men did not take a fancy to a well-turned ankle; they were “called” into a polygamous relationship. Many times subsequent wives were widows.

    But the practice was most assuredly opposed on moral grounds, and led to a more savage “othering” than the LDS people had experience even prior to that.

    I had a book of political cartoons through the years regarding the LDS people, and they were vicious.

    “A Study In Scarlet” was one of the first long Holmes stories…maybe the first. It was savagely anti-Mormon, but it did reflect the concepts of the times.

    n.n in reply to genes. | August 28, 2014 at 8:32 pm

    Actually, there was a moral basis to objection of polygamous relationships. Christian religion (i.e. moral philosophy) defines marriage to be between one man and one woman. That standard was established by the principle philosopher, God, not human traditions. Both the Torah and Bible record the historical consequences and objections to polygamy.

    That said, there is a logical argument for and against polygamy. However, the arguments for polygamy can be countered in a community of relatives (e.g. tribe) and peers (e.g. Hamish). So, while polygamy may have practical aspects, it is an immoral arrangements for Christians. Perhaps that’s where objections to the Christian-derived Mormon religion arose.

Sure they can. The fact is that the “slippery slope” does not matter for a large minority of men and women. Simply put: they don’t care. They don’t care about effects of selective exclusion. They don’t care about denigrating individual dignity. They don’t care about devaluing human life. They don’t care about creation of moral hazards. They don’t care about anything but their own interests. This is why Democrats are able to maintain a diverse coalition of diametrically opposed interests. Well, they do care, but not sufficiently to betray the coalition. And when they do, there is always the executive action, judicial decrees, or litigation to overcome democratic dissent.

It is just a matter of time before polygamy is legal again in Utah and in the United States. Gay marriage is suddenly becoming legal everywhere, and these polygamist groups are getting more bold, more outspoken, and eventually will get what they want. It may not be this year, or the next, but it will happen. This country just isn’t what it used to be.

As far as Utah is concerned, I know of several polygamist families that don’t live that far away from me. They just aren’t “legally” married. Everyone knows about them, but it doesn’t matter if you agree or disagree with how they are living, they will do it anyway. Same with gay marriage.

Forget gay marriage and polygamy. There are many different possible “relationship configurations.”

If, for example, a group of six men and eight women all want to be married to each other, what’s to stop them? If the one-man-one-woman relationship can’t be privileged over the same-sex or polygamist relationships, then the same-sex and polygamist relationships can’t be privileged over any other relationship. In other words, eventually any number of men and women will have to be allowed to marry. One man two women, two men one woman, two men two women, three men five women — the number of each gender won’t matter.

I may be missing something, but as far as I can tell there’s nothing in the logic of same-sex marriage and polygamy that would preclude group marriages of any number of persons.

It may be just a matter of time until all of this is taken to such absurd extremes that marriage itself dilutes into the ether. (I’ve written on this subject so please forgive the pontificating.)

We need to define what we really mean by “marriage” before we can identify and address the problem. Originally and historically, “marriage” referred to the ceremony (church or state) or other process (common law) by which a man and a woman otherwise unrelated declared themselves to be “family”. The ceremony or process, along with the church’s or landed government’s rules about who could marry, thereafter enabled the state (sovereign, government) to recognize this new “family” for one reason: to determine the legitimacy of its offspring for the purpose of determining who properly inherited lands and titles — the stuff that was important to the sovereign.

Over the years, primogeniture has been done away with, and feudal governments and kingdoms ditto. Modern governments have passed various laws changing what constitutes marriage, and both benefitting and burdening married couples (e.g. various and sundry tax benefits, testimonial privileges, requirements of support, etc.)

These trappings are not the “marriage” but are artificial accutrements, added either to bolster families’ stability or to assure familial responsibilities (such as providing for dependent spouses and children). The number of these artificial trappings of “marriage” has burgeoned in the last century, and these actually are what is at stake now in the demands for “marriage equality”. After all, people can partner up and live with pretty much whoever they want to, and also enter into contracts, adopt children, name their heirs, and so forth. But what they might not get are the artificial government-bestowed trappings. In large part it’s almost all about government giveaways, i.e. financial, i.e. yet another entitlement demand.

What we may need to look at is that this is the outcome from the damage that we already have done to the social institution itself, e.g. no-fault divorce (no-responsibility marriage), destruction of legitimacy by granting unwed parents various rights and responsibilities (child support, welfare), etc. On a case by case basis, where it’s not individuals with irrational romanticism wanting to play extreme transvestite house, it’s really all about money. Ideologically, it’s about (progressives, feminists, etc. stated goals) of deliberately wanting to destroy the social institution, the family being the first building block, or governmental unit if you will in that hated “patriarchy.”

Because of how the issues have been mis-framed, incest and polygamy may not be the only thing coming down the slippery slope: single people already are complaining about the government-bestowed trappings favoring some people without a compelling basis for doing so, and claiming discrimination.

‘“But then when you get to brothers and sisters, well, you know, now we know so much about the genes, and we certain don’t forbid people with Tay-Sachs [garbled] to get married.”
That’s right. Just because it’s a bad idea, doesn’t make it taboo. But taboos that exist for a reason. See Freud.

Chesterson’s Wall or Fence.

If you’ve never heard of it, here’s a good introduction.

Eventually I expect to see a lawsuit by a same sex couple who are related and wish to marry each other. The Massachusetts law specifically excluded relatives from marrying so as to make the law easier for legislators to justify. Other states followed this model.

“See, we’re just like anyone else, we don’t believe in incest”.

But why? There’s no chance of a same sex couple conceiving an inbred child, which is the reason for denying marriage to closely related heterosexual partners. It may take couple of generations to get to this “anything goes” stage but we’re probably headed there.

Under the auspices of the current political tide (same-sex marriage being legalized) what’s to prevent a son from marrying his mother in order to receive her benefits when she dies (or his father, for that matter)?
Wasn’t this one of the main arguments FOR same-sex marriages? That partners would gain spousal benefits, hospital visits, etc?
Say Mom had a nice pension and I didn’t feel like saving for retirement. Marrying her would solve that, right?