Friday, June 26, 2015

Lead Attorney In Utah's Sister Wives Case Finds Solace In Today's Gay Marriage Ruling

Chief Justice John Roberts' warning in his dissenting opinion that today's Supreme Court decision mandating all states recognize and issue gay marriage licenses as a fundamental constitutional right is opening the door to similar recognition for plural marriages, and that point has resonated with a prominent constitutional lawyer advancing the rights of such persons to be free from criminal sanction. George Washington University law professor Jonathan Turley is the attorney in the so-called "Sisters Wives" case out of Utah in which he is seeking to strike down Utah's law making plural cohabitation arrangements unlawful.

In a sense, Turley observes that the case is closely analogous to the Lawrence v. Kansas case in which the Supreme Court paved the way for today's historic ruling in Obergefell v. Hodges. The Lawrence case struck down state sodomy laws as unconstitutional because of their use to punish the sexual activities of gays. Here's the passage in Chief Justice Roberts' opinion in which Turley finds solace for his "Sisters Wives" case:
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14- 4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
Turley's case is currently pending before a 10th Circuit Court of Appeals panel in Denver. He says he now fully expects to amplify today's decision in his upcoming argument. Although most people think of Mormons when they think of plural marriages, the largest religious group that practices plural marriage is the Islamic faith, which is rapidly growing in numbers in this country. It seems only a matter of time before persons who practice faiths recognizing plural marriages begin advocating the legal recognition of them. Will the ACLU stand behind them the way they have gays in their successful quest to achieve the constitutional right to marry?


LamLawIndy said...

The CJ IS correct in his analysis: if the states cannot define marriage as between one man plus one woman, then there is no reason to believe that the states can restrict it to two people.

Eric Morris said...

Anything that undermines government rule is good in my book, even if it takes some government on government battles.

Anonymous said...

One religion doesn't consider or tolerate same sex marriage as sharia-compliant. Under such fooling, er ruling, which population will grow in number so as to dominate & ultimately destroy the other? It could never happen here right, because we're "us" & therefore too "smart" for that- right?