United States District Court judge Clarke Waddoups got a lot of people’s attention yesterday by striking down a portion of the Utah anti-polygamy ordinance as unconstitutional.

Readers who get their news by skimming the headlines aren’t going to get this one, because what happened requires ten seconds of careful reading.

The court left the part of the law intact that says you can only be legally married — with a license — to one person at a time. If you’re already married, obtaining any subsequent license is still illegal. Waddoups’ ruling doesn’t change that. So why the handwringing and the cries of “Gomorrah”?

Utah Code Ann. § 76-7-101(1) (2013) reads:

“A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

It’s only the second part, the phrase I bolded, that the District Court found unconstitutional. And with good reason: Mormon or not, it’s none of the government’s business who individuals choose to live with.

The case is Brown v. Buhman, and Waddoups’ 91-page ruling is here.

TL;DR: Polygamy — the kind theoretically sanctioned by the government, with marriage licenses — is still against the law.

David Kopel, writing for law professor’s Eugene Volokh‘s blog, breaks it down:

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X [is] guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

Jazz Shaw on the conservative blog Hot Air also has a surprisingly level-headed, no-hysteria take:

The court didn’t strike down rules against actual polygamy — the practice of being licensed and married to more than one spouse — but rather laws prohibiting one from saying they are married to additional people. You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.

But not everyone gets it. For culture warriors who’ve been battling gay marriage, yesterday’s ruling is like manna from heaven — a perfect opportunity to advance their slippery-slope argument and to crow “I told you so.”

Consider Stephen Bainbridge, who, his UCLA law credentials notwithstanding, took to Twitter to inform the world the sky is falling:

Robert Bork was right. We are Slouching Towards Gomorrah. http://t.co/2iKwuALTBB — Stephen Bainbridge (@ProfBainbridge) December 14, 2013

… and who wrote on his blog:

You have got to be fraking kidding me. … Next stop on the slippery slope express, I assume, will be consensual adult incest marriages.

At least Bainbridge didn’t debase himself with the “now-pedophiles-will-be-marrying-toddlers” argument. For that, we turn to the American Family Association’s Bryan Fischer:

Polygamy has been legalized by a federal judge. Next: incest or pedophilia. The descent into the moral abyss continues. — Bryan Fischer (@BryanJFischer) December 14, 2013

Et cetera. I’d propose a drinking game (one shot for every upcoming spiteful comment on the inevitability of marriage between man and penguin, woman and goat, etc.), but I’m afraid we’d all die of alcohol poisoning.

Blogger Eric Ethington put his finger on the main issue:

The struggle for same-sex marriage has only been, and will continue to only be about one thing: equality — that joyful little word that fills our hearts and keeps us pushing. It’s about leveling the playing field and being able to say without any doubt that no other human being in our country has rights that we do not. We were born Gay, or Lesbian, or Bisexual, or Trans*, and we will always be so. We have every bit the same right to marry the person we fall in love with that our neighbors have. Polygamy? It’s not an innate characteristic, it’s a choice. The struggle for polygamy is not about equality, but about privacy. It’s a fight to keep government away from the choices of consenting adults. It’s an important distinction to make.

And an important discussion to have. Fischer, Bainbridge, et al are invited to take part — as soon as they stop trying to use the limited, sensible polygamy ruling to whip their constituents into another moral panic.



