According to a New York Times article today, Kody Brown, star of the reality TV show "Sister Wives," is heading to court to challenge the Utah law against polygamy. He has four wives and 16 children and stepchildren.
According to the Times, "[l]aw enforcement officials in the Browns' home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy." The Browns are expected to file suit tomorrow.
To be clear, the Times noted that "Mr. Brown has a civil marriage with only one of his wives; the rest are 'sister wives,' not formally wedded."
I think Mr. Brown has as much of a right to his relationships, as do his wives, as same-sex couples, or people who have multiple sex partners. Since when is it a crime to live together with your sex partners? Well, it is in Utah.
The Times also revealed that the lawsuit builds on the 2003 United States Supreme Court decision, Lawrence v. Texas. In that case, the Court struck down state sodomy laws as unconstitutional, saying that such laws are unconstitutional intrusions on the intimate conduct of consenting adults. "It will ask the federal courts to tell states that they cannot punish polygamists for their own 'intimate conduct' so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses."
Of course, marriage equality advocates were quick to denounce the connection.
The Times article quotes Jennifer Pizer, a UCLA law professor and director of the Williams Institute. "Such arguments, often referred to as the "parade of horribles," are logically flawed," she said. This is because same-sex couples are seeking merely to participate in the existing system of family law for married couples, but "you'd have to restructure the family law system in a pretty fundamental way" to recognize polygamy.
But wait, what is the difference between "polygamy," and Mr. Brown having a girlfriend or four? He's not married to them. Men have girlfriends galore, fathering children all over the place, and they're not put in jail.
When one looks at the nitty-gritty of the Lawrence decision, one must acknowledge that it specifically ruled that a law regulating intimate sexual conduct between consenting adults is not justified by an appeal to generalized "morality."
As I argued in a 2009 law review article in the Touro Journal of Race, Gender and Ethnicity, the Lawrence opinion negated the relationship between the Texas statute and the state interest in moral protection asserted in the specific case of homosexuality. The Court used a historical argument to show that homosexual conduct is not widely considered immoral, demonstrating that there no relationship between anti-sodomy laws and the asserted state interests in morality. Thus, the Court concluded that there was no rational basis for the contention that anti-sodomy laws promote morality.
Is there more of a rational basis for showing that banning Mr. Brown's girlfriends -- "sister wives" as he calls them -- promotes morality?
I understand that marriage equality advocates want to distance themselves as much as possible from the argument that marriage equality leads to broadening rights for other forms of sex and relationships that may be unpalatable politically to many Americans.
But I'm no marriage equality advocate. I'm happy that marriage equality is here in many places in the U.S., and I hope that we have more of that. We need less of the government in our bedrooms and in our pants. But I honestly don't get the argument that Mr. Brown's arrangements can be criminalized by the state based on some vague assertions of "morality," while at the same time holding up Lawrence v. Texas as a shining beacon of fundamental freedoms. Frankly, as I argued in my law review article, Lawrence v. Texas must also necessarily free transgender and transsexual people from the laws that discriminate based on gender identity, denying the fundamental freedom of gender autonomy.
Freedom is freedom, no?