The Polygamous Judge and the Future of "Privacy"

Under pressure from the Utah Supreme Court, which in turn was responding to an anti-polygamy group made up largely of women, Judge Walter Steed, who has three wives and no less than 32 children, has resigned. Steed is a member of one of a number of Mormon sects that rejected the deal by which the mainstream Mormons abandoned polygamy (polygyny, really, because a woman cannot take more than one husband at a time) in exchange for statehood.

Notable is the Utah Supreme Court’s careful distinction between the constitutional questions, which are very much alive, and the issue on which it ruled, a judge’s obligation to follow the law even if he disagrees with it: "In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective," the court said. "A judge ignores the clearly stated clearly stated criminal prohibitions of the law at his or her peril." "Civil disobedience carries consequences for a judge that may not be applicable to other citizens," the court said. When judicial officers violate or ignore laws, "the stability of our society is placed at undue risk."

Judge Steed did not abandon his belief that the practice of polygamy is constitutionally protected: "I am hopeful that the court will eventually consider the issue of polygamy as an aspect of personal privacy, marital rights and religious freedom," Steed said. "I am proud of my effort to bring the issue before the court and the people of Utah."

This story is more than a bit of Utahn exoticism. Opponents of gay marriage have long argued that there is no principled basis for saying that gays have a privacy-based right to marry, while sincere polygamists do not. Sen. Rick Santorum was pilloried for making just this point, as Stanley Kurtz points out. If in fact the basis for claim the Constitution prohibits the states from forbidding gays to marry if it allows the same privilege to mixed couples, is the doctrine that the state may not interfere in the liberty interest that consenting adults have in ordering their sexual and marital lives without state restraint, it is hard to see why only gays can benefit from such privacy claims. Such claims are being asserted on behalf of at least three groups: Polygamists, such as the good judge,who based their practice on pre-Admission Mormon doctrine. In many foreign non-Muslim countries, the sharia-based claim to a right to polygamy is now at least on the agenda. The more New Age-y “polyamorists” who advocate not only polygamy, but various forms of group marriage.

Although there is a loud and influential gay community that has promoted gay marriage, perhaps accounting for its prominence as a public issue, there are at least as good constitutional arguments in favor of polygamy. Unilike gay marriage, it furthers a public policy interest in favor of reproduction. Moreover, it is supported by religious texts that are meaningful to the supporters of the practice, unlike gay marriage, which must depend either upon a rejection of the dominant monotheistic traditions, or upon a tortured reading of their texts.

The question of whether any of these practices should be sanctioned as a result of democratic debate and legislation is a different one that whether the fads and fashions of a couple of decades should be enshrined in constitutional law. By starting with a weak theoretical basis (”penumbras” from the Bill of Rights as applied to the states under the Fourteenth Amendment), the groundwork was laid for the justices to impose the fads of Cambridge and Manhattan’s élites on the country by fiat, and claiming a constitutional mandate for doing so. What follows from this tortured reasoning is a doctrine that contains no principled basis for imposing practices even more repugnant to the values of the majority. The gradual extrapolation from these doctrines, created for the nonce to justify a desired result, will lead us no one knows where. Let us be thankful that no one (yet) has found in the Constitution a basis for giving a rat the same civil rights as a boy as PETA’s famous slogan would seem to urge.