Polygamy, the Constitution, and Reality TV

As a general rule, it is inadvisable to go on to a talk show or reality tv show to discuss your criminal activities. You might think this would be obvious advice, but you would be wrong.

Still, I was surprised to see that TLC was coming out with a new show called “Sister Wives,” which is essentially the reality show version of Big Love. Polygamy is of course illegal in Utah, where the series is filmed, as well as in all other U.S. jurisdictions. And, predictably, the police are now investigating the family for possible charges of bigamy and adultery.

Utah’s bigamy statute provides that

“[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”  Utah Code Ann. § 76-7-101 (2003).

Not to mention, just four years ago in 2006, the Supreme Court of Utah rejected a barrage of Constitutional and statutory challenges to the statute, in State v. Holm:

Holm argues that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation.   Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.  Second, Holm argues that his conviction under the bigamy statute was unconstitutional as applied in this case because it unduly infringes upon his right to practice his religion, as guaranteed by our state constitution.   Third, Holm argues that his conviction under the bigamy statute was unconstitutional under the federal constitution. …

We reject each of these arguments.

So why, then, did Kody Brown and his wives agree to go on the show on the first place?

The family does not seem to be an obvious bunch of dumbasses, which is generally my first guess when it comes to this sort of thing. However, while I would not rule that possibility out entirely, given the context of the show, I wonder if the family was motivated, at least in part, not in spite of the fact that there was a risk of prosecution, but because of it. Their stated reason for agreeing to star on Sister Wives is to raise awareness of the polygamous lifestyle, and it is not a far leap from there to wonder if perhaps they also hope to de-criminalize polygamy by bringing a favorable test case before the courts.

If so, that is a bold and risky move to make. Bigamy is a felony that is punishable by up to five years in prison, and so far, no court has ever found that laws criminalizing bigamy are not constitutionally enforceable.

Still, bigamy prosecutions are rare, and prosecutions of polygamous individuals are rarer still. And, apparently, all prior polygamy prosecutions have involved allegations of abuse or other improper activity. If the Brown family does end up facing prosecution, the case might very well end up being a constitutional landmark.

It turns out the GW Law professor Jonathan Turley has gotten involved in the case, and is lead counsel for the family. Turley’s take on the case is pretty much the same as my own:

The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

Whether it is based on First Amendment religious freedoms, or on freedom of association grounds, or (most likely) Lawrence-style due process protections, criminal prosecution of polygamy is likely not sustainable under the federal Constitution. I suspect that the current Supreme Court would have a very hard time finding prosecution of the Brown family to be permissible — even the faction that dissented in Lawrence might now be inclined to accept its precedential value, albeit grudgingly.

Besides, if there was ever the perfect defendant for testing the constitutionality of criminalizing polygamy, the Browns are it. I actually watched an episode of Sister Wives last night, and it was primarily remarkable for how utterly banal it was. If it wasn’t for the sub-plot involving Kody Brown taking a fourth wife, the show would be so lacking in material that it probably wouldn’t be able to exist. I mean this in the nicest way possible, but the family is super boring. In a lot of ways, it reminded me of another TLC show, 18 and Counting, about the infamous Duggars. While temporarily intriguing for the gawking factor, both shows very quickly devolve into utterly trivial depiction of average home life.

And Sister Wives, with its mere 1:4 adult-to-kid ratio, can’t even come close to matching the logistical ingenuity displayed by the Duggars, who face a more daunting 1:10 ratio. In fact, with their incredible feats of organization and their eerily unflagging cheeriness, the Duggars seem far more alien to mainstream American life than the Browns ever could.


How To Legalize Polygamous Marriage

Among those who favor marriage discrimination, one of the arguments commonly trotted out is that if we allow gay marriage, then there is no rationale for for opposing polygamy. This argument is almost too silly to be taken seriously, but one of the key differences it fails to acknowledge is that gay marriage is structurally and functionally identical to “straight marriage,” whereas the introduction of polygamous marriage would require the extensive adoption of legal structures currently unknown in the United States.

Now that coverture has been abolished, marriage is a gender-blind contractual arrangement, with one glaring exception: its entry requirements. Legally, the gender of any particular spouse has no relevance as to how marriage laws are administered — marriage is nothing more (legally speaking) than a specialized contract between two parties which confers on them a laundry list of legal privileges and obligations, as well as recognition as a specialized class under certain statutes, such as, for instance, the tax code or debt collection law.

Because of marriage’s gender neutrality, the recognition of gay marriage requires no change in the law, other than removing gender discrimination in regards to who has access to marriage contracts. Polygamy, on the other hand, is a helluva lot harder to implement. Unlike gay marriage, allowing polygamous marriage would require the creation of an entirely new form of marriage contract — or rather, it would require the creation of entirely new forms of marriage contracts.

While I consider the legalization of gay marriage to be of an extremely greater social, moral, and legal importance than is the question of polygamy, I do think polygamy should be permitted. Or, to put it in a more conservative manner: I am in favor of the deregulation of marriage. Although I am fairly neutral in regards to the idea of polygamy in general, I am a strong proponent of allowing people to structure their lives in whatever manner they believe best serves their own pursuit of life, liberty, happiness, etc. And for some people, that’s going to include non-traditional marriage forms.

Although politically speaking I think it is exceedingly unlikely that polygamy will ever be legalized in the U.S., other states, including Canada, are in fact grappling with these questions now. But what if we did want to make polygamy legal in the U.S.? What would it look like? What legal structures would be required to implement it? This post is intended as a sketch of what would be needed, in terms of legal structures, to create the institution of polygamous marriage:

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