Judge: Two cheers for polygamy

First reality show, then reality?

Kody Brown and his four wives, stars in the hit TLC reality show Sister Wives, filed a lawsuit in July 2011 that claimed they were immune from any legal punishment for living as polygamists. On Friday, U.S. District Judge Clark Waddoups agreed. He ruled that a Utah law intended to discourage the creation of polygamous households violates the Brown clan’s constitutional rights.

The Utah Attorney General’s Office will probably appeal the ruling, but that’s not certain. Bigamy in the literal legal sense remains illegal: Utah residents still cannot acquire more than one marriage license, and the main Mormon denomination—The Church of Jesus Christ of Latter-day Saints—still says no to sex among three or more. But some so-called “fundamentalist” Mormon sects can now preside over polygamous “marriages” without legal consequences, and individuals can do what is right in their own eyes.

Anne Wilde, a Salt Lake City resident and co-founder of the pro-polygamy group Principle Voices, cheered the ruling, as did Libertas Institute president Connor Boyack and George Washington University professor Jonathan Turley. Turley has long argued that polygamists should piggyback on the U.S. Supreme Court’s 2003 Lawrence v. Texas case, which created a right to consensual sexual activity of any kind for adults.

The Lawrence case paved the way for same-sex marriage, but many of its advocates have mocked social conservative claims that such judicial imperialism would bring polygamy as well. I spent the 2004-05 academic year at Princeton and remember dinner with a distinguished professor who backed gay rights but opposed sexual trios, quartets, and so on. When I laughingly called him a “two-ist bigot” with an emotional attachment to two of any sex but a phobia about polygamy, he admitted his lack of a rational defense.

Turley wrote on his blog Friday, “The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns.” He praised “Waddoups, who showed remarkable principle and integrity in rendering this decision. This law has been challenged dozens of times in state and federal court over the many decades. It took singular courage to be the first court not only in this country but [in] any recorded decision to strike down the criminalization of polygamy.”

Courage, or arrogance? Social conservatives are right to look back at millennia of history and point out that marriage laws have reflected biological reality and made it likely that children would be raised by both a father and a mother, a social structure for birthing and growing children that no society has topped. But for those who prize their own reason over God’s wisdom, such an argument seems ready to bury: Yes, history is history, but why not create a brave new world?

Again, this ruling—even if upheld—does not establish legal polygamy: Judge Waddoups ruled that the issue in the Brown clan case was “religious cohabitation … a personal relationship that resembles marriage in its intimacy.” But this is a harbinger. Waddoups on Friday was a gravedigger. More court rulings will follow.

Listen to legal-affairs correspondent Mary Reichard discuss the federal judge’s ruling and how polygamy could play a role in the battle for redefining marriage on The World and Everything in It:

The Associated Press contributed to this report.