After all, I did write the following in December 2010 after a Columbia University professor (and Palin-bashing Huffington Post contributor) was arrested on a charge of incest with his twenty-four year old daughter:
The attitude toward laws prohibiting incest expressed by the "consenting adults" crowd within the Columbia community are the blueprint for an off-ramp of the Rubicon Bridge expressway designed by David Boies, Theodore Olson, and anti-Proposition 8 activists who believe same-sex marriage is a right guaranteed by the U.S. Constitution. The bedrock of their Federal case for having the California Constitution's sole definition of marriage as one man-one woman struck down is to have unelected jurists determine whether there are sufficient reasons to prohibit additional forms of marriage. On that particular docket is their support of same-sex marriage within two parties, but their position as advocates of such unions sets the table for future challenges to the idea that marriage ought to be limited to just two individuals, be they straight, gay, or bisexual. In short: If their California victory currently being appealed should be confirmed by the U.S. Supreme Court, all future challenges to America's longstanding marital norms won't be based on the question "Why expand marriage rights?" but "Why should marriage rights NOT be extended?"
The Times editorial today entitled "A Gay-Wedding (sic) Crasher" addresses high-profile D.C. law professor Jonathan Turley's advocacy of the right of reality TV star Kody Brown of Sister Wives to flout the anti-bigamy statutes of Utah, where he lives with his legal wife and three of her sisters as a family (they are pictured below). The rescinding of the practice of plural marriage by the Church of Jesus Christ of Latter-Day Saints (bka Mormons) -- whose devotees then and now make up the majority of the population -- was the condition under which Congress permitted the territory into the union as the 45th state. At present, one-man, one-woman definition of marriage is part of Utah's state constitution.
|Kody Brown & his harem of sisters. (Bryant Livingston/AP)|
Jonathan Turley is probably not the most popular man right now with supporters of same-sex marriage. The George Washington University law professor has filed a suit challenging the constitutionality of Utah's anti-polygamy laws — and his argument is based on a landmark 2003 Supreme Court gay rights decision. That's not good news in the view of most gay rights supporters, who don't want their cause linked to that of polygamists any more than they want to see parallels drawn with people who engage in incest, bestiality and other taboo sexual practices.Re-read that last paragraph, and then, re-read what I wrote in my December 2010 piece "Ivy League Incest: The Beginning of a Slide Down a New Slippery Slope?" again:
The Utah case involves Kody Brown, his legal wife, Meri Brown, and three other "sister wives." It's not actually about marriage, and it doesn't challenge the right of the state to refuse to issue wedding licenses to polygamous families. The Browns are in court because they fear they will be prosecuted.
The 2003 gay rights case, Lawrence vs. Texas, was also a criminal matter unrelated to same-sex marriage. The court overturned the conviction of two men found to have violated a state law against same-sex sodomy. But in reaching that conclusion, Justice Anthony M. Kennedy offered a paean to intimate relationships defined by sexuality that easily can be transferred to the context of same-sex marriage, and potentially to polygamous marriages as well:
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the [Constitution's] due process clause gives them the full right to engage in their conduct without intervention of the government."
Kennedy emphasized in Lawrence that same-sex marriage wasn't before the court. Similarly, in an interview with the New York Times, Turley suggested that decriminalizing polygamy will not inevitably lead to a movement for polygamous marriage. But language addressed to one issue often surfaces in cases dealing with others. When Massachusetts' highest court decided to strike down the state's limitation of marriage to heterosexual couples, it cited the Lawrence opinion.
So is polygamy about to receive the same legal status that same-sex marriage now has in several states? Not in the near term. For one thing, the U.S. Supreme Court has not recognized same-sex marriage, a prerequisite, some think, for acceptance of polygamous marriage. Meanwhile, the federal court in Utah, in parallel with Lawrence, may rule simply that the Browns and other polygamous families are immune to prosecution but can't have their multiple "spiritual marriages" blessed by the law.
But, like Lawrence, a ruling sympathetic to unconventional sexual behavior could plant the seeds of a future campaign for full marriage equality. In that case, governments would have to prove that it's rational to limit marriage to two individuals, homosexual or heterosexual. That might seem obvious, but so, at one time, did the argument that marriage should be confined to opposite-sex couples.
On that particular docket is their support of same-sex marriage within two parties, but their position as advocates of such unions sets the table for future challenges to the idea that marriage ought to be limited to just two individuals, be they straight, gay, or bisexual. In short: If their California victory currently being appealed should be confirmed by the U.S. Supreme Court, all future challenges to America's longstanding marital norms won't be based on the question "Why expand marriage rights?" but "Why should marriage rights NOT be extended?"I still remember as if it was yesterday the argument I had with my parents in May 1993, when the Hawaii Supreme Court revived the dismissed first suits against the state for its refusal to marry persons of the same sex. My mother in particular was certain that such madness would be stopped long before it could reach the U.S. Supreme Court. Here's what the L.A. Times had to say about the situation at the time:
We all know how things turned out over the next eighteen years, don't we?
Carl M. Varady, an American Civil Liberties Union attorney involved in the Hawaii case, predicted that the state would have a tough time meeting the Supreme Court's criteria for upholding the gay marriage prohibition.
"The argument we've pushed in this case was the one the court ultimately bought," Varady said, comparing laws against same-sex marriage to state bans on interracial marriage that eventually were struck down in the United States.
"These are really the miscegenation cases of the '90s," he said. "The same type of religious and natural-law arguments were put forth against interracial marriage."