Slippery slope on the “Sister Wives” case? Not really

Earlier this month a federal judge struck down parts of Utah law, distinctive to that state, that had made it unlawful for persons to cohabitate in what they consider polygamous relations. Various traditionalist conservatives immediately began saying “I told you so”: this new development was really just a logical next step down the slippery slope, and the legal advance of gay marriage has now begun to usher in polygamy, exactly as they predicted. A column by Jeff Jacoby in the Boston Globe conveniently summarizes the argument. Since I disputed this very question two months ago in these columns in an exchange with Mona Charen, I am happy to weigh in.

Unfortunately, Jacoby does not give readers a very precise account of the Utah cohabitation ruling. Judge Clarke Waddoups didn’t accord legal recognition to polygamous relationships as marriages — indeed, he made it a point that he was doing nothing of the sort. Nor did he cite Perry or Windsor. The effect of his ruling, so far as I have been able to tell, is to put Utah on the same general footing as other states as regards legal treatment of households like Kody Brown’s: they won’t face arrest or other legal sanctions for cohabiting with each other, but at the same time no legal recognition will be accorded to their marriages (beyond that of the first wife).

It’s true that the new opinion does cite Lawrence v. Texas, which struck down laws against gay sexual relations, and it would be fair to say that there is something of a logical connection (or “slippery slope”) between Justice Anthony Kennedy’s broad language in Lawrence, recognized at the time as capacious, and tougher judicial scrutiny of other laws that (like the Texas statute in Lawrence) criminalize nonmarital private adult sexual activity. But that’s not the same issue as legal recognition of polygamous marriages. If decriminalizing plural cohabitation — which happened a long time ago in most of the country, Utah aside– necessitated such recognition, wouldn’t we have seen some state slide down that slope by now?

Incidentally, Judge Waddoups actually relied in some of his reasoning (through complications I will not spell out here) on principles of religious freedom as explicated in earlier pro-religious-liberty decisions. I hope we aren’t being asked to worry about a slippery slope on that too.

P.S. I should have noted that this topic was aired in the comments section of a Steve Miller post above; see Tom Scharbach’s informative first comment in particular.

6 Comments for “Slippery slope on the “Sister Wives” case? Not really”

  1. posted by Tom Scharbach on

    To my mind, Jeff Jacoby and other social conservatives of like mind are engaging in sleight-of-hand tricks when they make statements like this:

    The judge’s ruling still leaves plural marriage technically illegal in Utah, but only “in the literal sense” of having two or more marriage licenses. Otherwse, polygamy has now been effectively decriminalized in Utah — a state admitted to the union on the condition that it forever ban the practice of polygamy.

    “Technically illegal”? “Only in a literal sense”?

    Jacoby and other like-minded social conservatives have spent years of effort and millions of dollars supposedly defending the “sanctity of [civil law] marriage” against gays and lesbians. Now, when it is convenient for them to stir up fear and loathing about the “slippery slope”, social conservatives flat-out misrepresent the nature and extent of the Utah case and dismiss civil law marriage as a mere technicality.

    This is not misunderstanding or misreading of the case. This is not a situation where “Jacoby does not give readers a very precise account of the Utah cohabitation ruling.” This is a text book example of the way in which anti-equality social conservatives, without shame, breed disrespect for the law and the Constitution (“activist judges”), misrepresent facts (turning a cohabitation case into a “polygamy” case), and engage in intellectual shape-shifting (the law is a “technicality”) in order to further the anti-marriage agenda.

    • posted by Mike in Houston on

      Peel back the layers behind each lie and you get to their real agenda: erasing gay people altogether.

      The slippery slope is really on their side – and can be directly seen in their international work in Africa, Russia, Jamaica, etc. – returning the US to the days when it was okay to beat up fags, arrest and imprison people for gay sex and ultimately eliminating LGBT people.

    • posted by John D on

      Or in other words, people in Salt Lake City may now do something that has always been legal in Boston, where Jacoby works.

  2. posted by Shadow Chaser on

    Remember the penalty for having more than one spouse is having more than one mother-in-law!

  3. posted by Tom Scharbach on

    Fox News has entered the “Polygamy Eats Marriage” game, with what is quite possibly the stupidist and most deceptive article I’ve seen so far on the subject. Next year, on to man on duck marriage as Fox News slides down the slippery slope from chicanery to irrationality.

  4. posted by Mike in Houston on

    Thank you Walter for an actual post versus a diatribe against HRC or GLAAD (which Stephen has a personal history and animus).

    In the mean time, we’re hearing from the usual suspects that all of this is part of the slippery slope that means bakeries have to make cakes and commercial photographers have to take bookings…

    Or, what Jeremy Hooper said:

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