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.