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.