By Michael Berry: In 2003, the United States Supreme Court issued the landmark decision of Lawrence v. Texas, in which it declared Texas’ anti-sodomy law unconstitutional. Homosexual rights advocates celebrated while those who support the traditional, Judeo-Christian view of the family lamented. United States Senator Rick Santorum famously—perhaps infamously—observed:
“If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.”
Senator Santorum’s critics ridiculed his comments as inflammatory rhetoric, homophobic, and a “parade of horribles.”
Recently, a federal judge ruled in favor of Kody Brown, of reality television show Sister Wives fame, and declared part of Utah’s anti-polygamy law unconstitutional. To be clear, Judge Clark Waddoups did not declare the actual crime of polygamy unconstitutional. As a condition of statehood, Utah banned the practice in 1896, and it remains a crime to hold multiple marriage licenses simultaneously. Instead, Judge Waddoups ruled that the part of the statute that bans cohabitation is unconstitutional because it violates Mr. Brown’s First Amendment rights.
Judge Waddoups is no fool. He issued his ruling on a Friday afternoon, less than two weeks before Christmas. In other words, he allowed the weekend media cycle of Heisman Trophy presentations and NFL drama to supersede his ruling. Accordingly, the story received relatively little media coverage. We did not see bands of polygamists dancing in the streets. In fact, Mr. Browns’ attorneys characterized the ruling as a “victory not for polygamy, but for privacy in America.” But that is precisely the problem.
Senator Santorum’s predictions may not have hit the bull’s-eye, but he was pretty close. More importantly, he demonstrated an understanding of the legal and logical implications of Lawrence.
Homosexuals obtained the legal right to sodomy because it’s private, consensual conduct between adults. Polygamists obtained the right to cohabit on the same basis—it’s private, consensual conduct between adults. It does not take much prescience to imagine an adulterer arguing that he has the right to adultery on the very same grounds. Indeed, President Obama’s “Safe Schools Czar,” Kevin Jennings, is an active homosexual activist and has publicly stated that rather than report an affair between a school boy and an older man, he encouraged the boy to use a condom. And down the slippery slope we go.
Perhaps it is no small irony that Judge Waddoups’ ruling came on Friday the 13th. His legal reasoning is downright scary. Judge Waddoups began his ruling with a historical analysis of anti-polygamy laws, ultimately concluding that they were predicated primarily on racism and “unthinkable as part of the legal analysis in a modern Supreme Court decision.” He went on to state that such “derisive societal views about race and ethnic origin . . . has no place . . . in the genuinely and intentionally racially and religiously pluralistic society . . . .”
What Judge Waddoups fails to recognize is that, despite a checkered past, prohibitions against polygamy continue to provide a societal benefit in ways that racist laws never could. There is a body of evidence demonstrating that the biblical model for the family is ideal. And there is mounting evidence that any alternatives fall short of that ideal. Unfortunately, however, Utah did not present any such compelling evidence. Nevertheless, the Bible makes very clear, particularly in the New Testament, that God’s plan for marriage is one man and one woman.
As Christians, we cannot afford to stand idly by as our nation slips down the slope, and eventually off the cliff. We have a responsibility to love those who sin, yet continuing to speak truth to power. The failure to do so may result in a forfeiture of our ability to publicly oppose sinful activity on religious grounds. In less than one generation, we have seen the pendulum swing from homosexuality characterized as deviant behavior to socially-acceptable. Now, it is joined by cohabitation. It may only be a matter of getting the right judges in the right places before we see the day when publicly criticizing homosexuality is the deviant behavior.
Michael Berry is an attorney for Liberty Institute, a nationwide religious liberty law firm dedicated to restoring religious liberty in America. Michael joined Liberty Institute in 2013 after seven years serving as a JAG officer in the United States Marine Corps. He is a 1999 graduate of Texas A&M University and a 2005 graduate of The Ohio State University School of Law
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