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The floodgates open: columnist promotes polygamy
October 25, 2004
By R. Albert Mohler Jr., President, Southern Seminary

Readers of USA Today Oct. 4 must have been shocked to read Jonathan Turley's article promoting the legalization of polygamy. Then again, it is becoming harder and harder to shock the American people.

In any event, the article serves to prove the point that acceptance of homosexual "marriage" will open the floodgates to the normalization of any and all sexual relationships.

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington Law School, is a well-known legal scholar. Indeed, he is one of America's foremost constitutional specialists, whose face became familiar to most Americans through media coverage of the Clinton sex scandals and the former president's impeachment trial. Turley offers a voice of professorial reason, and he has not been closely identified with social activism. Nevertheless, in his USA Today article, he presents a forceful case for the legalization of polygamy.

In the background is a case out of Utah which may lead the U.S. Supreme Court to review the right of states to criminalize polygamy. The plaintiff in that case, Tom Green, is a Utah polygamist who has been convicted in Utah, but has now appealed to the Supreme Court, citing the court's 2003 Lawrence v. Texas decision which struck down laws criminalizing sodomy.

As Turley comments, "If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law."

As Turley sees it, laws against polygamy run counter to the logic of the Constitution and lack credibility in today's context of sexual revolution.

"Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners," Turley argues. "Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners 'as a spouse,' we jail them."

The professor's logic makes sense if we accept his premise that citizens have "a recognized constitutional right" to engage in any form of consensual sex with any number of partners, without respect to gender. As he sees it, criminalizing polygamy is nothing more than a form of national hypocrisy.

Since no existing laws criminalize the sexual behavior, the criminalization is directed only at those who would solemnize their sexual relationships by claiming the institution of marriage. As Turley and polygamists see it, "it is simply a matter of unequal treatment under the law."

Beyond all this, Turley sees religious liberty as an underlying issue.

"The difference between a polygamist and a follower of an 'alternative lifestyle' is often religion," he explains.

That religion, in this case, is Mormonism. The Mormon practice of polygamy was controversial from the start, and opposition to polygamy was in part what drove the Mormons to the Utah territory in 1847. Mormon leader Brigham Young, later governor of the Utah territory, taught that Mormons would put their salvation at risk by refusing to accept polygamy.

Turley does not advocate polygamy, insisting that he detests the very concept.

"Yet if we yield our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites," he urges. "For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens."

But does the criminalization of polygamy violate the Constitution's free exercise clause? In its 1878 decision, the Supreme Court ruled that it did not. As evidence, the court cited the state of Virginia's adoption of a law criminalizing polygamy after it had passed an act establishing religious freedom and after the state's constitutional convention had sought an amendment to the Constitution of the United States stipulating that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience." Only after adopting these safeguards to religious liberty did Virginia adopt the statute first set down by King James I of England, making polygamy a criminal offense punishable by death.

When Turley dismisses this argument, he is laying the groundwork for arguments to be put before the Court citing religious liberty as the justification for decriminalizing polygamy. In reality, however, laws against polygamy are more likely to be struck down on other grounds the very grounds used to promote same-sex "marriage."

As Stanley Kurtz noted in a seminal article first published in the Aug. 4-11, 2003 edition of The Weekly Standard, "Among the likeliest effects of gay marriage is to take us down a slippery slope to legalized polygamy and 'polyamory' (group marriage). Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female."

Kurtz is indisputably correct in this assessment. If marriage is not culturally understood and legally defined as a relationship between a man and a woman, it can and will mean anything. Those who claim that marriage can be redefined to allow same-sex relationships without destroying the institution itself are lying to themselves and to the public.

Jonathan Turley's article serves as a signal of where the debate over marriage is going. Once again, the courts stand at the center of this cultural conflict. All this goes to show once again that we will either define marriage for the courts, or the courts will define marriage for us. Can there be any doubt where this is headed?

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