The Marriage Waterslide?
Conservatives are saying “I told you so” with regard to a ruling in Utah permitting aspects of polygamy – though not the actual holding of simultaneous marital entanglements – to go unpunished. From Rod Dreher:
It will be interesting to see over the coming days what legal analysts make of the ruling, which came down on Friday afternoon, catching everyone off guard. It seems from my reading that the ruling is fairly limited, and only prevents the state from regulating whether or not people live together in polygamous relationships. It does not make polygamy legal in the sense that it compels the state to recognize polygamous relationships as marriages. Still, it seems to me that an important line has been crossed, because if this ruling stands on appeal, it will have established that it’s none of the state’s business how people choose to organize their private sexual lives, even when children are involved. I am not as confident as the
That’s not a completely unfair assessment. More fair than some that I’ve seen. I’d argue, though, that the inability of the state to go in and determine was already in the works before the same-sex marriage debate. It all goes back to Lawrence vs Texas, which as Dreher concedes is the only court case cited in this opinion.
Dreher, as well as many other commentators (including liberals) are treating the actual marriage part of the ruling as a technicality. I sort of understand why the conservatives are doing this – though to the extent that they do they miss the point – but it’s odd to see others do the same. Because the technicality? That’s the piece of paper. That’s important. That’s what the whole SSM debate is about. Ever since Lawrence v Texas, gay people been allowed to organize their domestic life how they choose to and have sex with whomever they choose. While there were conservative grumblings over that ruling at the time, it was pretty quickly forgotten. That’s not where the battlefield is. The battlefield is over that piece of paper and the concomitant benefits of it. That “technicality” is the issue. It’s what marriage equality advocates are fighting for. It’s what opponents are fighting against.
If conservatives want to go back and argue against consenting adults being able to live together and have sex together without state approval, that does not strike me as a really winning strategy. The amount of state action required to enforce this law is itself enough to put me on the other side of the debate, even though I oppose polygamous marriage about as much as they do. It all goes back to that word: marriage.
Contra Dreher, the “important line” was crossed years ago. This is, at most, a validation of that line and not really a movement of it. It merely brings Utah’s anti-polygamy laws in line with the rest of the country’s (or most of it, anyway). Utah’s laws here were not unusually permissive. The stereotypes about the LDS Church nodding and winking at polygamy are entirely wrong. Due to its history with it – and the state’s – they have the zeal of former sinners. And in its zeal, Utah went too far. The courts (belatedly) walked it back. That’s pretty much all.