Ed Vitagliano

AFA Journal news editor

November 2011 – Kody Brown has four wives, 16 children and stepchildren, and a television reality show – TLC’s Sister Wives – showing all the drama unfolding in Utah.

Now he and his wives have something else: A lawsuit challenging the state’s law prohibiting polygamy.

Technically Brown is legally married only to one of the “wives,” while the other three are “sister wives” only in a spiritual sense. According to an article in the New York Times about the legal challenge, Brown and his female companions are members of the Apostolic United Brethren Church, a splinter sect of the Mormon Church.

Brown is not demanding in the lawsuit that Utah legalize polygamy, according to the Times, but merely telling the state to mind its own business when it comes to interpersonal relationships.

The heart of liberty?
Jonathan Turley, a law professor at George Washington University and the attorney representing Brown and his wives in the lawsuit, believes the polygamist has Supreme Court precedent on his side.

In Lawrence v. Texas (2003), the U.S. Supreme Court overturned state laws against homosexual sodomy. The ruling was a tremendous victory for the gay community, of course, but the rationale used by the majority in Lawrence was widely seen as setting the groundwork for much, much more.

The high court stated that the condemnation of homosexual sodomy had previously been “shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.”

That wasn’t good enough any more, the court said. The majority in our society could no longer use such “powerful voices” to “enforce these views on the whole society through operation of the criminal law.”

Citing a previous Supreme Court ruling – Planned Parenthood v. Casey (1992) – the court reiterated in Lawrence: “At the heart of liberty is the right to define one’s own concept of existence ….”

This view of liberty, the court said, meant that the constitution protected “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.” (Emphasis added.)

This concept, Turley insisted in an op-ed piece, was the key to freeing polygamists from the oppression of the one man, one woman model of marriage.

“We should fight for privacy as an inclusive concept, benefiting everyone in the same way,” he said. “Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith.”

A dagger aimed at the heart
When the Lawrence ruling was issued more than eight years ago, conservatives immediately saw the dangers inherent in the court’s reasoning. It was a dagger aimed at the heart of traditional marriage, a fact noted by Justice Antonin Scalia in his scathing Lawrence dissent.

“This effectively decrees the end of all morals legislation,” said Scalia, including laws prohibiting bigamy and, presumably, polygamy. Generally speaking, the crime of bigamy is when an individual is married simultaneously to more than one partner without the partners being aware of the multiple unions. Polygamy is when the multiple partners are aware and have given their consent.

Most people probably think the idea of legalizing polygamy is ludicrous and that it could never happen in this country. One recent poll found 92% of Americans opposed to the idea.

The fact is, however, the United States is a nation in transition. For the last 60 years America has been moving gradually away from a society based on a Judeo-Christian worldview to one built on secular humanism. As that process has unfolded, core assumptions about marriage, family and human sexuality have been challenged and rejected by leading opinion-makers in academe, Hollywood, Madison Avenue and the courts.

The traditional view of marriage in Western Civilization, for example, was clearly built on New Testament teachings. In passages such as Matthew 19:4-6, Jesus passed over the polygamist past of the Old Testament patriarchs and pointed to God’s original intent in creating Adam and Eve. Seeing that God originally paired them in a one man, one woman marriage union, Jesus taught, “The two shall become one flesh.”

The apostles continued this instruction in the early church, requiring that a church leader be “the husband of one wife” (1 Tim. 3:2, 12). This principle of monogamy extended beyond leadership, however. In 1 Corinthians 7:2, Paul says, “let each man have his own wife, and let each woman have her own husband.”

Early in church history, the Catholic Church repudiated polygamy. It states in its catechism, for example, that “polygamy is not in accord with the moral law.” This is because “the equal personal dignity of men and women” requires that, in marriage, the man and woman “give themselves with a love that is total and therefore unique and exclusive.”

Norms eroding
That we used to order our society based – either directly or indirectly – on God’s laws is made abundantly clear by older Supreme Court rulings. In the last quarter of the 19th century three court cases came before the high court challenging laws against polygamy. In all three we clearly see the imprint of Christian thinking in the rulings. In Reynolds v. U.S. (1878), the Supreme Court called marriage “a sacred obligation,” thus keying in on the religious nature of marriage as an institution, while also noting its civil aspects.

The court also addressed the nature and definition of marriage in Murphy v. Ramsey (1885), stating that the individual states of our Union are established “on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.”

Finally, in Davis v. Beason (1890), the court stated: “And on this point there can be no serious discussion or difference of opinion. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries;” and the court also noted “the general consent of the Christian world in modern times” as sufficient grounds for keeping polygamy illegal.

However, this worldview is quickly unraveling. In an interview with National Review following the legalization of homosexual marriage by the New York legislature this past summer, Dr. Robert George, McCormick Professor of Jurisprudence at Princeton University, said we are losing “the norms of monogamy, exclusivity, and the pledge of permanence” that have structured and helped define marriage in our law and culture.

“[M]any people’s understanding of, and authentic commitment to, these [traditional] norms has already eroded substantially since the 1960s under the pressure of sexual-revolution ideology. They will now erode further,” George said.

Endless arguments
As in the debate over same sex marriage, every argument against the legalization of polygamy brings a well-reasoned response. For example, some critics assert that polygamy tends to oppress women in a patriarchal environment.

Not so, argued New York Times columnist John Tierney in 2006, as he reviewed – and defended – HBO’s new show Big Love. The drama, which ran for five years on the cable network, was the story of a fictional and polygamous Mormon family in modern-day Utah.

“[M]any wives have willingly chosen [polygamy], like the three women on Big Love, who have married a successful businessman,” he said, stressing the importance of allowing such women the freedom to do as they please.

“What about the children?” conservatives fire back. Children will suffer from the emotional chaos of multiple parents – with the added danger of even more damage should polygamous families be splintered by divorce.

Again, Tierney shrugs off the argument with a counter blow of his own. “Critics say children would be better off growing up in a home with a full-time father, but a part-time one is better than what’s in many homes today,” he said. “The father in Big Love is more like Ward Cleaver than today’s alpha males who’ve dumped a series of wives and families.”

The pace of this back-and-forth debate will no doubt pick up steam as the battle over the legalization of polygamy intensifies, just as it has over that battle’s precursor: the fight over same sex marriage. Proponents of polygamy may even choose to follow the game plan designed by homosexual activists.

Thus we can expect attempts to appeal to sympathy, as polygamous partners are brought forth, stating. “We are just like the rest of you – we work hard, raise our families, and pay our taxes.” The general public will hear cries like, “Why won’t society just allow us to love whomever we choose?”

A ‘counter-cultural’ church
As with the culture war battles over homosexual marriage, however, these types of skirmishes are really beside the point. It makes no difference what statistics prove or what talking heads claim in the latest ABC News feature story.

What matters is what God has said in His Word. The disregard for that fountainhead of personal wellbeing and social blessing – included in the decisions of our highest judicial body – is a sign that we as a people are drifting further and further from secure moorings.

Polygamy is not God’s best for individuals or societies. In America, however, it’s becoming harder and harder to convince people to care about what God thinks.

Nevertheless, we should continue trying. After the state of New York legalized same sex marriage, Timothy Dolan, Archbishop of New York for the Roman Catholic Church, blogged concerning the battle fought by those on the side of traditional marriage. “[T]he Church is ‘counter-cultural,’ like Jesus, often at odds with what passes as chic, enlightened, and progressive,” the archbishop wrote, adding, “We have been bloodied, and bruised, and, yes, for the moment, we have been defeated. But, we’re used to that. So was the Founder of our Church.”

To surrender in that fight, or to shrink away from the fight to begin with, is “a dereliction of duty,” according to Dolan.

It may seem like a hopeless fight, but with the very fate of traditional marriage perhaps hanging in the balance, it is certainly worth a few bloodied noses.