As most Americans were thinking thoughts of Christmas cheer, a federal judge in Utah dropped a bomb on the institution of marriage, striking down the most crucial sections of the Utah statute outlawing polygamy. Last Friday, Judge Clark Waddoups of the United States District Court in Utah ruled that Utah’s anti-polygamy law is unconstitutional, violating the free exercise clause of the First Amendment as well as the guarantee of due process.
In one sense, the decision was almost inevitable, given the trajectory of both the culture and the federal courts. On the other hand, the sheer shock of the decision serves as an alarm: marriage is being utterly redefined before our eyes, and in the span of a single generation.
Judge Waddoups ruled that Utah’s law against consensual adult cohabitation among multiple partners violated the Constitution’s free exercise clause, but a main point was that opposition to polygamy did not advance a compelling state interest. In the background to that judgment was the argument asserted by Supreme Court Justice Anthony Kennedy to the effect that the only real opposition to any form of consensual sexual arrangement among adults would be religiously based, and thus unconstitutional.
Kennedy made that assertion in his majority opinion in the 2003 case of Lawrence v. Texas that struck down all state laws criminalizing homosexual behavior—and the Lawrence decision looms large over Judge Waddoups’s entire decision. In fact, he referred to a succession of court decisions that had vastly expanded the scope of sexual behaviors and noted: “To state the obvious, the intervening years have witnessed a significant strengthening of numerous provisions of the Bill of Rights.”
Yes, that is to state the obvious. Key to that line of legal reasoning is the declaration by Justice Kennedy in Lawrence that the U.S. Constitution recognizes “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” More than once, Kennedy had inserted a statement about the Constitution requiring acceptance of “liberty of the person both in its spatial and more transcendent dimensions.” Justice Antonin Scalia acerbically dismissed this argument as the “sweet mystery of life passage,” but the damage was done. Judge Waddoups was working within Kennedy’s structure of thought, and Utah’s law against polygamy was found to violate that zone of privacy.
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