"Was Santorum Right About Polygamy?" asked a teaser headline on the Daily Beast's website this morning. "The Republican was once savaged for suggesting polygamy could become legal if the Supreme Court killed anti-sodomy laws. Now a judge has ruled against Utah's anti-polygamy statute," noted the teaser caption.
In the story itself, Daily Beast staffer Justin Miller answered the question in the negative, but did note that the court ruling in question did draw from the Supreme Court sodomy law case Lawrence v. Texas and that there's a strong political validation to the slippery slope argument from developments like these (emphases mine):
Analogizing homosexuality to bigamy, polygamy, incest, bestiality, and pedophilia made Santorum infamous. Syndicated columnist Dan Savage even campaigned to turn “santorum” into a byword for sexual waste as revenge.
But the Supreme Court eventually ruled that anti-sodomy laws were unconstitutional in Lawrence, and Judge Waddoups used that very ruling Friday to strike a blow against Utah’s anti-polygamy law.
So is Santorum vindicated? Will America become Big Love set in Sodom and Gomorrah?
Not quite. The Utah decision does not recognize, in Santorum’s words, a “right to polygamy.” The judge said the right to not be discriminated against under the First and Fourteenth amendments applies to the plaintiffs.
The family of Kody Brown, subject of the TLC reality show Sister Wives, says it is polygamist because it belongs to a fundamentalist Mormon church. The Browns sued Utah in 2011, arguing that the anti-polygamy law violated their right to privacy based on the Lawrence decision. Bigamy, or having multiple active marriage licenses, is a third-degree felony in Utah. Utah outlawed the practice, prevalent among Mormons, so Congress would accept it as a state in 1896. (The Church of Jesus Christ of Latter-day Saints banned polygamy in 1890.)
If Utah doesn’t prosecute an adulterer for sleeping with several women, the judge wrote, why should it prosecute a polygamist doing the same under one roof?
In other words, Utah polygamists can’t be discriminated against now, but they still can’t get married.
The difference might sound academic to the 83 percent of Americans who say polygamy is morally wrong. Santorum’s slippery-slope logic used against gays—legalize their relations and you’ll see a parade of horribles—may not be legally sound, but it could remain politically powerful. After all, even the swing voters who have come around to supporting same-sex marriage in states such as Iowa did not think they were signing up for legalized polygamy.
Of course, federal and state judges are largely removed from electoral considerations, so it's not all that ludicrous to see a judicial snowballing effect where, over the course of a few years and a few court rulings, a court could issue a ruling finding a right to polygamous marital unions. The Daily Beast may not wish to recognize that, but even they can't deny that the courts being used as an end-run around the will of the people does present the possibility that proponents of polygamy will be emboldened moving forward to push their agenda first through the courts of law and then the court of public opinion.
