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Jonathan Turley: Polygamy Case ‘A Victory For Morality’

Jonathan Turley, a well-regarded lawyer, legal scholar and professor of law at The George Washington School of Law, represented the Brown family of Utah in a recent court case in that state arguing for the family’s right to practice polygamous co-habitation. He joined us on our Dec. 23, 2013 show looking at a case that many see as the effective de-criminalization of polygamy.

Turley explained some basic legal definitions in the complicated case:

“People have been prosecuted under this since the 1950s…There is no cohabitation clause anymore, that was struck down, the court did what we suggested. Utah now has a conventional bigamy law…Many people are confusing bigamy with polygamy. Bigamy is having multiple marriage licenses. That’s a crime that is committed almost exclusively by people who hold themselves as monogamists. It is not a crime that is generally committed by polygamists who traditionally have one marriage license and the rest are spiritual marriages. So what Utah has now is it says that anybody, regardless of the structure of your family, with more than one license can be prosecuted. We have no problem with that. Polygamy is legal. In the same way that homosexual was decriminalized in Lawrence v. Texas. It is now legal to be plural in a family. Polygamy does not mean having multiple marriage licenses, it means having a plural family.”

Turley also cheered the recent ruling as a “victory for morality.”

“Reynolds in my view is one of the most infamous decisions the court has ever handed down. It was filled with rather racist and hateful statements directed against Mormons. The language the courts used was clearly to denounce what it considered to be an amoral practice that it associated with Africa and Asia. It’s an opinion that I recommend that people read, because it’s truly horrific.  It’s astonishing that it has never been overturned. In fact, it is the foundation for what are called morality laws. The most interesting aspect of Judge Waddoups’ opinion is it shows a clean break from our long history of morality laws that banned everything from fornication to adultery to cohabitation.  These are laws in which the majority simply criminalizes things they consider to be fundamentally immoral. This case represents part of a trend in which we’re moving away from those laws and in my view we’re a better nation for it. I happen to think that the Sister Wives’ case is a victory for morality in the sense that it lets every family follow its own faith and values so long as they don’t harm others. For me that’s a victory for morality, and it’s also a victory for privacy. In fact, I think this has a lot more to do with privacy than it does with polygamy.”

Turley further explained the fundamental differences between violation of privacy and legal proof of harm as the underpinnings to both 2003′s Lawrence v. Texas ruling and the current Sister Wives’ case.

“This law violates both the due process clause, which goes to Lawrence v. Texas, but he also ruled that it  violates the free free exercise of religion under the First Amendment. As to Lawrence, we argued that this case is really indistinguishable. There’s a difference between the criminalization of a consensual relationship and the recognition in terms of a marriage. This is very similar to Lawrence, and in the same way that before Lawrence, states could criminalize homosexual relationships. This did the same for people in polygamous unions or relationships. That’s the reason after Lawrence, homosexulaity could not be criminalized, it was legal and we still have the question of whether you want to recognize same-sex marriage. The same is true with polygamy, that it’s no longer criminalized, it is legal to have a polygamous family. We did not ask and we do not intend to ask for the legalization of multiple marriage licenses.

Although I support same-sex marriage, Lawrence does not dictate that states have to recognize same-sex marriage, this does not dictate that the states have to recognize plural marriage. These are two different issues in terms of criminalization  – one goes to the privacy of the home and the other goes to what a state is required to do under equal protection.”

What do you make of the Utah judge’s ruling that polygamous co-habitation should be legal? Do you see legal justifications but moral slippage? Is Turley right? Let us know in the comments below, or on Facebook, Tumblr and @OnPointRadio.

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  • keltcrusader

    So what happens when the non-married spiritual “wife” wants out of the arrangement? She has no legal standing like a legally married wife does regarding property ownership, child support, or alimony. Sounds like she will be up a creek.

    • cor508

      THis isn’t really the problem with polygamy as far as Mormon pracitce it. The trouble is that the “women” and I put it in quotes because in many a case they are as young as 12-13 and 14 years old have ZERO say in the matter. If 3 or more adults of sound mind who meat each other as adults wish to engage in such a relationship, more power to them. But the mormons, like all religions, endoctrinate their female children to believe that if they don’t do this they will be punished by the giant sky daddy in the sky. WIth that amount of influence how can anyone claim that these sheltered children who are mostly home schooled asn unexposed to the rest of the world or other choices can make anything resembling an independent choice, This ruling is nothing but the continued special pleeding enjoyed by those who suffer from the delusion known as religion.

  • Coastghost

    Certainly, this victory for Jonathan Turley need not be understood as “a victory for morality”: Turley’s latitudinarian legal vision undermines any coherent notion of any single “morality” anyway: Turley’s “victory”, such as it is, constitutes victory of only one morality or of only one segment of the entire spectrum of “morality” (in Turley’s case, the infraviolet or the ultrared, it’s hard to tell which). Not all jurists, not all ethicists would ever agree with Turley, no matter how broad or restrictive their views of legality or morality.
    If we’re to understand the ruling, a Utah marriage license will name only two parties: if multiple marriage licenses are not legally required, what legitimates ANY Utah marriage license? Or: how can a marriage license be issued for only two parties (presumably, the man and his first wife, or the one he cares to designate legally) but yield a “plural marriage”? how can any spouse party to a plural marriage fail to be named legally on a single marriage license?
    Legal sophistry of the first magnitude, I’ll give Turley and his Federal judge that much.

  • Emitr

    I don’t know Turley’s legal arguments, but it’s always seemed hypocritical to me that our society uses “consenting adult” rhetoric to justify everything but polygamy. “Keep out of other people’s bedrooms”.

  • Dave Holzman

    Two letters to the editor of the NYTimes on Turley’s views on polygamy, the first mine:

    Jonathan Turley implies that polygamy is a victimless crime. In fact, polygamy could have the same effect on society that selective abortion of girl fetuses has. In China, where selective abortion is rampant, researchers reported that the Chinese government was concerned “about the consequences of large numbers of excess men for social stability and security,” according to a 2009 Times article.

    And in a polygamous community of southern Utah, teenage boys were frequently banished on various pretexts, in a phenomenon that is undoubtedly partly driven by the mathematics of polygamy, according to a 2007 Times article.

    Lexington, Mass., July 21, 2011

    I respect Jonathan Turley, but he is way off base in defending polygamy as “the right to live your life according to your values and faith.”

    Polygamy amounts to female child abuse. Girls are “given” to men at a young age, generally with minimal education. The husbands don’t believe in family planning, of course, so the girls become pregnant early and often. The husband makes the decisions about the number of wives in the household, and about every other aspect of their lives.

    This is not “the right to live your life.” The men have rights, but not the girls. The girls are chattel. They are brainwashed, uneducated and mothers while in their teens. They have no choices and no rights — despite what the girls/women themselves recount.

    Deerfield, Ill., July 21, 2011

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