This week the Utah Supreme Court upheld the bigamy conviction of a polygamist but split over whether Lawrence v. Texas reaches beyond consensual sex between same-sex couples. The dissent, penned by Chief Justice Christine Durham, found that the bigamy laws unconstitutionally burden the “free exercise of religion and the privacy of the intimate, personal relationships between consenting adults.”

Durham’s dissent is persuasive, particularly since the “married” adults in question were not married through the state; only through a religious ceremony. The language of the Supreme Court’s Lawrence v. Texas decision affirmed the right to sexual privacy, finding that private homosexual conduct is encompassed within in. The right to privacy affirmed in Lawrence is more than “simply the right to engage in certain sexual conduct.” The Court made sure to note a “substantive dimension of fundamental significance” of the right to private, consensual sexual conduct. Why should this not apply to three consenting adults?

Chief Justice Durham did vote to uphold the husband’s conviction of unlawful sexual conduct with a minor, and she argued that the state should prosecute the other crimes that may arise from polygamy - welfare fraud, incest, child abuse, and domestic violence - but that given the Court’s ruling in Lawrence, polygamists have a constitutional right to sexual privacy.

Utah’s statutes may have declared polygamy harmful, but it is hard to see how people who enter a non-state-sanctioned relationship harm the state or the institution of monogamous marriage. I think this is partially why beloved Christian author C.S. Lewis wrote the following:

There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.

Utah’s polygamists should be free to create their own religious marriages, and evangelicals can and should construct their own as well. But when they do, the state should remain out of it and only concern itself with those that are state-sanctioned.

Of course this has a direct impact on gay marriage as well. The debate over gay marriage almost always involves some form of a slippery slope argument, typically by those opposed to it, and polygamy is often chief among them. If we allow gay marriage, the argument goes, what is stopping any type of marriage, such as one between three people?

Those advocating gay marriages or civil unions will usually argue such a result is ridiculous, unlikely, or both. Yet the conflict in Utah and the conflicting case law demonstrate it is a real possibility. An ancient federal case, Maynard v. Hill, 125 U.S. 190 (1888), offers this interesting language:

Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the poverty rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.

Although the opinion is well over a hundred years old, I think you’d find significant agreement with the sentiments behind it from most citizens today. I certainly agree with the Court’s view that marriage is “the most important relation in life, as having more to do with the morals and civilization of a people than any other institution.” But it is precisely for that reason that I feel the state should stay away from marriage and leave it to churches and social groups to create their own. And when they do, the disctinction should be sharp, clear, and free from state intervention.

Posted: 05|26|06 at 2:19 pm by Joshua Claybourn
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