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Polygamy and the Future of Religious Liberty Print E-mail
By Gerald Russello   
Saturday, 18 January 2014

Legal scholar Ed Whelan has recently offered a characteristically astute analysis of the Utah bigamy case, Brown v. Buhman, in which a federal court in Utah has struck down the state’s prohibition on “cohabitation.” The reason? It violates the First Amendment rights of religiously motivated polygamists, who live together in “plural” marriages, even if only one such marriage recognized by the state. 

The opinion, as Whelan notes, is not well written; any ruling that uses Edward Said’s Orientalism as an interpretive framework should be suspect at the outset, and the opinion does not improve with its prodigious length.  Whelan contends that the court’s holding that Utah enforces the anti-bigamy law in a discriminatory fashion against religious polygamists is not supported, and even if true would not itself justify the overturning of the law in its entirety.  The case is far from over: Utah’s attorney general has stated he will appeal.

The actual merits of the opinion – about whether the Utah statute is unconstitutional – are less immediately interesting than their implications for religious liberty.

For instance, compare Brown to the cases surrounding the HHS contraceptive mandate.  The HHS mandate is a dangerous step in the secularization of our political culture, and its defeat will be of lasting importance to our constitutional heritage. But cases such as Brown are far trickier, and go to the heart of how the United States understands itself. 

Religious liberty – in the sense that every person has the right to seek the divine and cannot be deprived of that right by the state – is a core Christian principle, which has inspired people across the centuries, from the first Christian martyr, St. Stephen, to more recent ones, such as the German theologian Dietrich Bonhoeffer. 

In the Catholic tradition, however, certain things are also clear, among them that polygamy is contrary to the Church’s understanding of marriage.  In that sense, then, it does not matter whether polygamy is religiously inspired. Within the American constitutional tradition, however – and consistent with the Church’s understanding of the human person and the rights of conscience – it may be possible to defend the religious practice of polygamy against state prohibition, just as HHS opponents (and I am one) fight against the state’s encroachments.

Doing so does not necessarily argue that polygamy is consistent with Church teaching, only that the state cannot enforce a secular view of family life that encroaches on religiously motivated marriage decisions. This approach combines good constitutional law and federalist principles with a kind of American tolerance for ways of seeking God that secularists wish to crush.

But it is not that simple. These arguments presuppose a common baseline in the Western tradition; this is how we are able to discuss such concepts as “federalism” and “religious liberty” at all.  That tradition is the very specific religious one of Christianity, including its understanding of the family and political society. 


        The Browns of Brown v. Buhman

It is a fantasy of nineteenth-century separationists that the American constitutional order is not grounded in Christian understandings of politics, law, and institutions such as the family.  Despite ingenious efforts by thinkers such as John Rawls and Ronald Dworkin, a purely abstract “liberal” defense of constitutionalism has gained almost no popular traction. 

Because of this, cases like Brown present a challenge. Secularists will jump on such cases to further nontraditional family arrangements, whether religious or not; indeed, the media push has already begun. Secularists like nontraditional family arrangements, not because they care about religious liberty, but because doing so attacks traditional family structure of whatever kind.  The commonsense American tradition of pluralism and its constitutional order will be undermined. 

Do people concerned about religious liberty support the Brown family out of solidarity because the next time the state comes (as it surely will), it will come after them?  Or do they draw the line at practices that are not within the main Christian tradition? 

This was the approach taken when Utah wished to join the Union in the nineteenth century, after much struggle and violence.  In defending religious liberty at all costs, is there a chance we will lose it, because it is the very tradition that protects religious liberty will be undermined?  The need for such consideration is pressing, as these cases will only increase as demographic and religious changes intensify.    

Towards that end, we might initially turn to tradition.  The traditional understanding of marriage, religious belief, and family in the United States fell under what legal scholar Bruce Frohnen has called a “broadly biblical but not evangelically Christian” understanding.  Within that tradition, for example, the Supreme Court presumably would not allow freedom of religion to those who practice human sacrifice (even if, let us suppose, those victims were somehow “willing”); the story of Abraham and Isaac shows, within our own tradition, the wrongness of human sacrifice.  The secularist view would simply replace our lived tradition with the assertion of an individual “right,” which is a recipe for social disorder.

Or we might turn to social-science research. There might be resources to consult as to whether some family structures are more consistent with human flourishing than others. This would be contestable, of course, and might differ in certain circumstances over different times, places, and communities, but it could provide a basis for discussion. However, given the ideological nature of much social science (as Helen Rittelmeyer recently pointed out in an essay for First Things), proving any position may be a difficult hurdle to overcome. 

Drawing on these resources would not necessarily entail the overthrow of our common Christian heritage, but would allow pluralism to flourish where it could.  What seems to be happening instead is a new consensus, in which a common Christian culture is being replaced by some mixture of consumerism and a watered-down sentimentalism, with a strong secular tint based on individual rights and hostility to faith and tradition. 

This is not good for religious freedom or our constitutional heritage, whether or not Brown is upheld.

Gerald J. Russello is Editor of the University Bookman (www.kirkcenter.org)
 
 
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Comments (7)Add Comment
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written by Jack,CT, January 18, 2014
You Make a Great Statement of Truth,thx for
a Great Read!
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written by Michael Paterson-Seymour, January 18, 2014
When citizens of one country, say Algeria, enter into a marriage there that is actually or potentially polygamous and then come to settle in, say, France, where marriage is strictly monogamous, the courts have had to ask themselves whether the relationship between a man and the ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Code Civil, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them.

The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country

No jurist has suggested there is an easy answer to this and legislators have been reluctant to intervene.
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written by Sue, January 18, 2014
The State has a conflict of interest when it involves itself in the begetting of children. Therefore, it needs to stay out of affirming any relationship that does not, within itself, beget the children. Children deserve a relationship to the natural couple that begot them, or adoption by a couple who, by their male-female constitution, stand-in for that same natural family. If neither is available to the child from the get-go, let his current living arrangement be dubbed "an orphanage", not a family.
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written by Rich in MN, January 18, 2014
As someone untrained in law, I am so profoundly grateful to Mr. Russello and the many other jurists on TCT and elsewhere who wrestle with these thorny legal issues and explain their dynamics. In his magnum opus, "Family and Civilization," the 20th Century Sociologist Carle Zimmerman charted what he identified as the "life cycle" of any given civilization. The final stage (before collapse) is "Atomism," in which we neither agree on the rules nor agree even on a methodology for determining the rules. We become our own gods, divided by our own capriciousness and short-sightedness, where such-and-such a rule "could not possibly be applicable to ME." Just watching how many people run red lights these days suggests to me how disconcertingly close we are to "the Matrix" breaking down. And then all that will be left in the world will be raw judicial power, those who wield it and those who are subject to it. Thank you, thank you, thank you, for your diligent efforts to ward off this fate.
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written by Athanasius, January 18, 2014
It seems to me that what we are seeing is that a society that is constructed on the idea of absolute religious freedom cannot function because many "religious" beliefs are 1) contradictory to each other, and 2) contrary to common sense.

For example, polygamy is contrary to common sense, but it is claimed as a religious right. Muslims claim the right to subjugate other religious believers, while these other believers claim the right to be free. You eventually get a situation of might makes right.

A way out of this is to argue that we need a system of "ordered liberty", whereby no person is forced to believe, but there is an overall morality that still governs the populace. This morality should accommodate religious freedom but should have a limiting principle based on a reasonable standard. I suggest the Ten Commandments as a reasonable standard, as it has a long Judeo-Christian heritage and, quite frankly, it works.

The "consenting adult" standard that we are moving towards does not work because people are fallible and will give in to bad habits. There is nothing wrong with having a society of "grown-ups" who know that they should limit their sexual and material appetites without having the government become the nanny for all.
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written by DeGaulle, January 18, 2014
Athanasius, what you say about the government becoming 'nanny for all' may be prescient. It was GKC who said, and I paraphrase, that if mankind abandoned living by the Ten Commandments it would instead become governed by the ten thousand commandments. Eventually marriage entities (it defies imagination what they will consist of) may require fourth level education to qualify with chilling implications for eugenic consequences.
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written by Howard, January 19, 2014
Your argument is a thoroughly unconvincing mess. This is inevitable for any argument that tries to maximize what is good while simultaneously holding certain imperfections as sacrosanct and unquestionable. In particular, you set aside the idea that a secular government should not favor one religion over another. That is really an awkward and unstable compromise; it is contrary to Catholic tradition, and almost certainly to Catholic Tradition, which is not surprising since it means we must treat falsehoods on equal footing with truths -- PERMANENTLY, not just until we can identify which are false and which (if any) are true.

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