January 21, 2021

A Culture War Conundrum


Ah, here’s a tricky one.

According to a report by Daniella Silva of NBC News:

A federal judge has found key parts of Utah’s anti-polygamy law to be unconstitutional, ruling in favor of a polygamous family known for their reality television show.

While all 50 states across the nation have laws against bigamy, prohibiting people from having multiple marriage licenses, the law went further in Utah, finding a person guilty of bigamy when a married person “purports to marry another or cohabits with another person.”

But Judge Clark Waddoups of the U.S. District Court in Utah ruled late Friday that the “cohabitation” provision of the law was unconstitutional because it violated the First and Fourteenth Amendments to the Constitution, which guarantee freedom of religion and the right to due process. His 91-page ruling now criminalizes plural marriages only in the literal sense, through acquisition of multiple marriage licenses.

The decision follows years of litigation in a case brought forth by Kody Brown, a star of the TLC reality television show “The Sister Wives,” which chronicles the lives of Brown, his four wives and their 17 children. The Browns are members of the Apostolic United Brethren Church, a fundamentalist church that shares historical roots with Mormonism and believes that polygamy is a core religious practice.

Kody Brown made a statement, saying, “While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.”

The Principle Rights Coalition, a group with members from many of Utah’s polygamous churches and families, issued a statement praising the ruling:

For over 130 years, various state and federal statutes have targeted our deeply-held religious beliefs and family arrangements.  These statutes were enforced arbitrarily and, by their vague and overbroad definitions, they brought fear into the lives of many families, prompting thousands to seek isolation rather than face selective prosecution.  As Judge Waddoups observed in this case, convictions for unlawful cohabitation appear to have focused solely on Fundamentalist Mormons who were legally married to just one spouse.

…The impact of this decision is both immediate and yet to be realized.  As a coalition, we will continue to seek broader acceptance through education and service, building bridges between a maligned culture and the rest of society.  We remain committed to the right of all families to exist.

As might be expected, social conservatives lamented that this ruling indicates another slide down the “slippery slope” toward redefining marriage to mean anything people want it to mean. For example, CNN ran this quote:

This is what happens when marriage becomes about the emotional and sexual wants of adults, divorced from the needs of children for a mother and a father committed to each other for life,” said Russell Moore, of the Southern Baptist Convention. “Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children. Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing.

However, one commentator is of the opinion that his fellow conservatives are missing the point and missing an opportunity in this case. Napp Nazworth thinks that this ruling actually supports conservative values because it is, in reality, more about religious freedom than it is about the redefinition of marriage.

He notes that the judge did not strike down the right of the state to define marriage as it pertains to the issuance of marriage licenses. The judge also said there is no inherent right to polygamy. What he ruled unconstitutional was the part of the law that forbids cohabitation and “marriages” such as those that might be blessed in private religious ceremonies. The plaintiffs did not ask the state to endorse polygamy by issuing multiple marriage licenses; they only asked that they be free to live together according to the dictates of their religious beliefs. As Nazworth summarizes:

In other words, the judge makes clear that the state is not obligated to legally recognize a polygamist marriage, but if the fundamentalist Mormon Church, to which the defendants belong, want to recognize a polygamist marriage, which their beliefs encourage, they are free to do so.

Mr. Nazworth asserts that, by considering this decision a ruling about marriage, conservatives are contradicting their own arguments in other cases, such as the fight against the “birth control mandate” in the Affordable Care Act, where they insist upon the right not only to hold certain beliefs but also to practice them according to their religious convictions and traditions. This is inconsistent logic.

It appears that the issue of marriage is so important to its defenders that they are incorrectly viewing the Utah decision through that lens when they should be looking at it from the perspective of religious freedom, according to Nazworth’s reasoning. This case is not, in reality, about defining or redefining marriage but about having the liberty to practice one’s faith.

So, which will it be — guarding the traditional view of marriage? Or siding with the polygamists for religious freedom?

Isn’t that a fine pickle?

They say politics makes strange bedfellows.

Wouldn’t it be something if standing for religious freedom should lead the defenders of traditional marriage to crawl into the sack with Kody Brown and his sister wives?


  1. I…I…

    I give up. Let me off here. I’ll walk the rest of the way home.

  2. They are not asking to be legally married, but only to be allowed to call themselves married according to their own personal definition. The judge basically argued: if adultery is legal in Utah, then polygamy without a marriage license is just another form of adultery, so there’s no way it can be illegal. And he’s right.

    The issue as it may relate to most readers here is simply the loss of any semblance of meaning to the word “marriage”, other than the narrowest of dry legal/property rights terminology.
    That battle was lost in substance decades ago, long before it was lost in definition.

    • James the Mad says

      “That battle was lost in substance decades ago, long before it was lost in definition.”

      Exactly. “We” lost the battle for “traditional marriage” 40 years ago, when we rolled over on no-fault divorce. That’s the point at which marriage was reduced to nothing more than a contract between two people who, at least in theory, love each other.

    • That is a simple one. North Dakota law does not recognise gay marriage. So, the fact that he is married to another man has no legal effect on his ability to marry a woman. The way to stop that happening would be for North Dakota to recognise his marriage to a man, and then apply the standard laws against bigamy.

      • Richard Hershberger says

        Note also that this isn’t a real case. The North Dakota Attorney General chose to address a hypothetical situation. Why did he do this? Well, he got his name in the paper. If that isn’t sufficient explanation, then it is his little contribution to rousing the the culture war faithful.

  3. Hmm…not sure I agree with what Mr. Nazworth is trying to argue. Supporting Bad Cause A because it helps Good Cause B is an “ends justifies the means” approach and really dangerous. There are lots of ways to support religious freedom that don’t entail supporting things we don’t agree with, such as polygamy.

    • But surely the whole POINT of religious freedom is “things you don’t agree with”. If it was only things you agree with, how is it freedom?

      • Richard Hershberger says

        Many people think that religious freedom means that no one has the right to tell you whether you should be Baptist or you should go to a non-denominational church.

        • Well, yes. For instance there is Bryan Fischer who believes that religious freedom only applies to Christians, because apparently the people who wrote the constitution were idiots who didn’t know what words mean!

        • Marcus Johnson says

          Well, people should definitely have the right to tell me whether or not I should be Baptist or non-denominational. However, that person should not be acting as a government agent, and I shouldn’t risk losing federal benefits because of my decision to go to a Baptist or non-denom church.

  4. Patrick Kyle says

    The only stricture put on the practice of polygamy in the Scriptures is that the New Testament states that a Pastor should only have one wife. Elsewhere in the OT, multiple wives are permitted. Probably it’s not the ideal, nor does it appear wise, especially in this culture, but God apparently allowed it.

    • That’s a “biblical” problem that “traditional marriage” folks completely ignore.

      • Headless Unicorn Guy says

        We’ve been waiting for the Christian Patriarchy types to go public with the “Plural Marriage” bandwagon. (After all, it’s BIBLICAL(TM)! And would have made things so much easier for Doug Phillips-Esquire…)

      • Also, some state should declare that it will not recognize “second” marriages for divorcees, but give them some lesser form of recognition. They would get, not a “marriage” license” (because that would violate the religious freedom of Jesus-fearing folk), but a “remarriage” license.

    • And perhaps implicitly in Matthew 19:5 – “…and the two shall become one flesh.” Referring to the same passage, divorce was also allowed in the OT but apparently wasn’t really cool with God after all.

      • Exactly, Steve H. I am so sick of Christians who buy into the culture talking points about polygamy. As if, God sanctioned it or something. I f you read and dare I say understand your entire Bible, this was never God’s intention. He allowed and still allows all manner of sin. How do you not understand that both of these things are true simultaneously?

  5. This case has nothing to do with religious freedom. Quite frankly, if it is illegal to live with and have a relationship with one person when you are in fact legally married to another, there would be a lot of people in trouble.

    • Richard Hershberger says

      Actually, adultery is technically illegal in many jurisdictions. In the Maryland criminal code, for example:

      § 10-501. Adultery

      (a) Prohibited. — A person may not commit adultery.

      (b) Penalty. — A person who violates this section is guilty of a misdemeanor and on conviction shall be fined $ 10.

      There are a couple of tip offs that this isn’t mean seriously. First is how trivial the punishment is. A $10 fine might have been significant when it was first instituted, but it hasn’t been kept up to date. Second, there is no definition of “adultery”. I broke out the old law dictionary and find that the default definition is voluntary sex by a married person with someone other than the offender’s spouse. But in some jurisdictions only a woman can commit adultery: husband straying doesn’t meet the definition. In some other jurisdictions both parties to the act are committing adultery, even if one of them is unmarried. Note that it is not adultery if neither party is married, because adultery is a crime against marriage. That is even the name of the subtitle it is in, along with bigamy, in the Maryland code. The exception is open and notorious adultery, a/k/a shacking up, which is a crime against marriage by virtue of falsely simulating it. So what is the definition of “adultery” in Maryland law? Heck if I know. It is probably buried in case law somewhere, but if this statute were meant seriously they would have included the definition in it.

      What does this mean in practice? Not much. It is rarely enforced. It can come into play in the context of divorce proceedings, but I don’t know how common this is. I also have my doubts that the law would withstand a court challenge, for much the same reasons the Utah law didn’t.

      • Again, the difference in this case is that the laws were specifically targeted against those who practice plural marriage. Since Utah already has a law prohibiting bigamy (issuing more than one legal marriage license), these laws were intended to give grounds for prosecuting those who were cohabiting or communities that hold ceremonies blessing plural marriages.

        • Richard Hershberger says

          True, but it looks to me like the religious practice of plural marriage would probably fall within the Maryland statute, and a Utah couple shacking up for non-religious reasons would fall within the Utah statute. I haven’t read the ruling (and don’t intend to), but it seems to be overturning the Utah statute for everybody, not merely those religiously motivated. Unless I am wrong about that, statutes such as Maryland’s seem analogous, even if the intend is different. Jon was right in his comment about the secular implications of the Utah law. He just didn’t realize that many other states have laws that also apply, even if they are widely ignored.

  6. That Other Jean says

    So the judge ruled that, in Utah, it’s perfectly fine for a legally married couple to live–and presumably have sexual relationships with–other people, to whom they are not legally married? Isn’t that true in many states already? Same-sex marriages are still banned in Utah, so doesn’t this ruling affirm that only male/female marriages are legal, but it’s OK for a man to live with his wife and . . .concubines? What’s more Biblical than that?

    • The point in this case is that in Utah, these laws were specifically targeted toward communities that practice plural marriage.

      • That Other Jean says

        True enough. Regardless of the original intent, though, such laws must also have applied to non-religious living arrangements. I admit, I was mostly snarking on the fact that the ruling limits legal marriages to one man and one woman, and leaves whatever other persons are involved (in Utah’s plural marriages, women; in non-Mormon marriages, perhaps not) with the status of concubines. A very Biblical lifestyle, that.

  7. Ruling is not surprising. This is really about separating religous marriage from getting a government license. They are now two different things. This transition has been happening for years, and with recent rulings on same sex marriage and this ruling, the transition is almost complete.

    I think this is a good thing, I wish pastors would stop signing government licenses.

  8. This is a legal issue. I was always taught that the fullest expression of our freedom was to allow people with whom we disagree the most (i.e. Nazi march in Skokie, IL) the right to practice that freedom. As our society becomes more pluralistic, this will be a bigger challenge for everyone.

  9. Who wants multiple wives? I can’t keep up with the one I’ve got! (ta-da-dum on the snare drum)

  10. This shouldn’t be our fight. My preference is for the state to get out of the marriage business altogether and only recognize civil unions. We would never stand for the state telling us who ought to be clergy or who ought to be baptized. So neither should we want the state telling us whose union should be recognized by God. Leave these things to the church.

    And what’s best for ‘the children’ is moot since cohabitation is not illegal.

  11. “Vanity of vanities,” saith the Preacher: “vanity of vanities, all is vanity.” (Ecclesiastes 1.2)

  12. David Cornwell says

    This is a uniquely American problem in a couple of ways. And they are problems not anticipated by the “founders.” When they made possible religious freedom through the First Amendment, they were anticipating our country continuing down the same roads already being constructed. Most religious people in the original colonies were Christian in one way or another, belonging to a traditional body of faith, albeit very diverse for this new country. Some came here to escape the problems created by the established religion of their home country.

    For the most part they shared a common core of values. They believed in God, prayer, family, and the shared interests of community. What the founders, in my opinion, did not anticipate was the founding of a new uniquely American religion. However out of the sky, sort of, here in America, the Mormon Church was born after a slightly strange man was visited by God who gave him instructions for life, order, and doctrine. These beliefs were a significant departure from anything that America had known in the beginning. Yet they created a problem difficult to deal with because of the First Amendment. Wow, an American religion.

    Another problem is that in many ways this new religion is an endorsement of American values. It stresses hard work, family, capitalism, and conservative, mostly Republican values. So it was born in America and thrives in an American culture of “live and let live.”

    In my opinion there is not much we can do about it. It is part and parcel of “us.” The policies nurtured in the ideals of “enlightenment” have another side to them, which in the end can bring about as much darkness as light.

    • Richard Hershberger says

      You are reading too much into the establishment clause. It was a pragmatic accommodation to divergent states’ interests. Individual states could and did have established sects. While they might be happy about their sect being established by the federal government, they would be extremely unhappy about some else’s favored sect being established. The potential for trouble was obvious; the solution was mutual disarmament. They certainly knew that this could have broader implications. There were several Jewish communities in America by then, and Islam also entered into the discussion. So on the one hand this wasn’t intended as a broad statement of liberties. On the other hand, they didn’t assume that mainstream Christianity was the only possibility.

      • David Cornwell says

        I agree. I know it was a pragmatic compromise. And probably the only way the country could logically go. But it did and does hold elements of future trouble. I didn’t mean “mainstream” in the sense we know today. But it would have been impossible to foresee all the possible consequences. I’m not so sure they would have been tolerant of polygamous relationships.

        But that’s why we have courts and lawyers I suppose.

        I don’t have any suggestions as to what they might have done otherwise.

  13. Headless Unicorn Guy says

    In any case, it’s the next Urgent Cause for Mobilization now that this year’s War on Christmas is about to become yesterday’s Urgent Cause. “March! March! March! Mobilize! Mobilize! Mobilize! Culture War! Culture War! Culture War! Scripture! Scripture! Scripture!”

  14. I just don’t understand. People should be allowed to do what they want. Marriage as an institution is dead anyway. As long as it makes them happy then they should get to do it. God would want them to be happy anyway…

    sarcasm off…

    We only have ourselves to blame. We will sit here and pick this apart, each side finding the nugget that backs their position. Once upon a time the community, with some moral sense determined what was right and wrong for the community based on a code of standards.

    That code of standards is now laughed at or seen as intolerant. Any moral standards is looked at as narrow-mindedness.

    I have become an observer, watching as we go step-by-step into chaos. All the one-off-behaviors in society will become mainstream, because our mantra has become “everyone has a right to be happy”. Not looking to debate, only stating what is. And for those who think I have jumped on the slipper slope bandwagon… check back with me in five years when the marker has moved.

    Progress… sigh….

    • I second this.

    • You are witnessing a community (the US of A) determining what is right and wrong for the community based on a moral standard (namely, consent) right here and now. Consent is actually an extremely well thought out and nuanced tool for determining the ethical nature of sexual relationships. The fact that it draws different conclusions of acceptability from your standard does not in any way render it moot as a moral standard, and I assure you that many people who disagree with your standard will defend this one tooth and nail against all comers. Why, specifically, do you find consent to be inadequate, and at what point in time would you argue that we had the correct standard?

      • Consent is very important, but it is not the only important factor. People can easily consent to highly destructive behaviors.

        • Such as Hinduism? Surely that is destructive…

        • I completely agree, Miguel, and now we are getting closer to the heart of the matter. What obligation do we have to forcibly prevent people from doing themselves harm, and how far do we go to achieve this? Even more specifically–how do we handle a situation in which one party fears a type of harm that the other party may not even believe exists? I don’t pretend to know the answer to that question, but I think it is a better starting point.

    • Headless Unicorn Guy says

      I just don’t understand. People should be allowed to do what they want. Marriage as an institution is dead anyway. As long as it makes them happy then they should get to do it. God would want them to be happy anyway…

      At which point, why not just implant an electrode in the pleasure center and turn on the current?

  15. Speaking of culture war…


    I imagine this will get some traction on Saturday Ramblings.

  16. As a nation and in most churches we have sanctioned serial polygamy and polyandry (i.e., marriage/divorce/remarriage/…) for some time now. And now comes sanctioned parallel polygamy (sans marriage licence, for now, at least). Soon to come (if not here already): parallel polyandry and multi-partner/multi-sex marriages (sans licence, at first, but w/license eventually for tax, estate, and child responsibility). What’s next, “Bedtime for Bonzo”?

  17. The more I think about this issue the more interesting it gets. It truly is a conundrum. There seems to be a number of different questions one needs to navigate through.

    -Should I support a position I don’t agree with for the sake of religious freedom?
    -Should I support an illegal activity for the sake of religious freedom?
    -Is it hypocritical to do either of those?
    -What happens if a person says that his religious beliefs are that he have sex with 14-year-old girls? Do I defend his religious right to believe such a thing even as I send him to jail?

    Maybe the real issue is this: should we be defending religious freedom? I know it’s a core tenet of our country, but maybe “religious freedom” is the wrong battle for a Christian to fight. Fighting for religious freedom – and if we’re honest about it, it won’t just be CHRISTIAN religious freedom – puts us in a precarious position of having to defend people and beliefs counter to our own and we’ll find ourselves with very strange bedfellows.

  18. For Christians, “natural law” is not the end-all of ethical discussions, but when society become intolerant of it, it is quite sad to see the church so complicit. It blows my mind to see culture warring Christians expressing so much moral outrage over these kind of issues and then turn around and nod approvingly at heretical prosperity teachers saying that God wants you to be happy/have a purposeful life/bless you. If your church doesn’t hold a theology that starts and ends with the cross, you have no ideological high ground to condemn a society which seeks its own happiness/personal fulfillment as the highest good.

    • David Cornwell says

      The prosperity preachers are much like Joseph Smith in some ways. God speaks to them personally and they hear what they want to hear. In the United States we make up religion, even Christianity as as we go. Every church, each individual preacher has his/her own private line to God.

      • Perhaps, just maybe, they had it right in the 16th century when the Lutheran reformers said, “God does not want to deal with us in any other way than through the spoken Word and the Sacraments. Whatever is praised as from the Spirit – without the Word and Sacraments – is the devil himself.”

  19. I’m against states giving out marriage licences at all.

    Hell, there’s not even a driving test.

    I don’t get how some third party marries a couple or any other grouping of folks. Legally speaking people should be able to make whatever contracts they want with anyone they want. The government should force them to honor them.

    Not romantic enough for ya?

    Then your probably not ready for marriage yet.

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