{"id":7303,"date":"2014-02-11T13:06:48","date_gmt":"2014-02-11T18:06:48","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=7303"},"modified":"2014-02-11T13:06:48","modified_gmt":"2014-02-11T18:06:48","slug":"which-slippery-slope","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/which-slippery-slope\/","title":{"rendered":"Which Slippery Slope?"},"content":{"rendered":"

\"slope\"<\/a><\/p>\n

Justice Scalia is (in)famous for his view that when the Court struck down Texas\u2019 criminal sodomy statute in Lawrence v. Texas<\/i><\/a>, it undermined bans on \u201cbigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.\u201d To some, this slippery slope argument is coming true in a federal district court in Utah in the case Brown v. Buhman<\/i><\/a>. The Browns<\/a>, the plural family from the reality television show “Sister Wives<\/a>,” sued to invalidate Utah’s criminal bigamy statute<\/a>, which finds a person guilty of a felony 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.” \u00a0\u00a0This past December, Judge Waddoups struck the words “or cohabits with another person” from this statute\u00a0as unconstitutional under the First and Fourteenth Amendments.<\/p>\n

Immediately, Rick Santorum tweeted<\/a>, \u201cI hate it when I\u2019m right.\u201d Ken Klukowski of the Family Resource Council and Liberty University law school characterized<\/a> the ruling as holding that \u201cthe legal reasoning of same-sex marriage means that laws against polygamy are likewise unconstitutional,\u201d and said this decision \u201cgives credence to . . . slippery slope arguments.\u201d The State of Nevada tried to raise the same specter in its short-lived defense<\/a>\u00a0of its gay marriage ban\u00a0before the Ninth Circuit, noting<\/a>\u00a0Brown v. Buhman<\/i> plaintiffs among \u201cothers already in queue to press their own sincere desires for recognition, for respect and dignity,\u201d and using that to argue that the Ninth Circuit should uphold Nevada’s gay marriage ban. Even such well-known figures as Princeton Professor Robert George (who has been a visiting professor at Harvard Law School for the past two falls) responded with the ominous warning<\/a> that the court \u201chas taken the first step towards giving polygamy (and, one must assume, polyamory) its Lawrence v. Texas<\/em>. From there, we all know the script.\u201d<\/p>\n

I must be reading a different opinion from those who are concerned about a Fourteenth Amendment-gone-wild. Contrary to Professor Klukowski\u2019s claims, the court explicitly upheld the portion of the Utah statute criminalizing polygamy, finding itself bound by the 1870 U.S. Supreme Court case, Reynolds v. United States<\/a><\/i> addressing the question. While it is true Judge Waddoups criticized the 1870 case, his concern was that the Reynolds Court faulted polygamy as \u201cintroducing a practice perceived to be characteristic of non-European races\u2014or non-white races\u2014into white American society.\u201d Judge Waddoups thought that the Court\u2019s reliance on calling polygamy \u201ccontrary to the spirit of Christianity\u201d to justify its illegality as \u201cunthinkable as part of the legal analysis of the modern Supreme Court given the significant (and appropriate) development . . . of the protections afforded to religious minorities.\u201d<\/p>\n

The critics of Brown<\/i>, however, focus on drawing nonexistent corollaries with legal challenges under the Fourteenth Amendment by LGBTQ individuals. They neglect to mention that the court did not even mention gay marriage or even cite last year\u2019s Supreme Court gay marriage decision<\/a>. Indeed, the court explicitly rejected a Fourteenth Amendment \u201cfundamental right\u201d to freedom from prosecution for polygamy under Lawrence. Only after it struck down the portion of the statute forbidding a married individual from cohabitating with a person to whom they were not married as invalid discrimination against religious minorities per the First Amendment, did the court address a Fourteenth Amendment concern. Still upholding the general polygamy ban, the court found no rational basis to \u201cspecifically formulate[] a general policy not to prosecute religiously motivated polygamy, though when it has proceeded anyway, it has invariably been against religiously cohabiting individuals, usually in cases in which the defendant has been convicted of the \u2018collateral crime\u2019 that the state has found correlated with polygamy, such as, \u2018incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse\u2019 at issue anyway.\u201d<\/p>\n

However, the very champions of religious liberties when discussing Christian exemptions to contraception<\/a> and marriage<\/a> seem outraged by an opinion that uses religious liberty reasoning to exempt a religious minority from what the Supreme Court itself has characterized as a Christian practice. Perhaps they simply could not set aside their script in which gay marriage leads to polygamy which leads to bestiality and didn\u2019t bother to read the 91-page opinion. However, it is also possible they are realizing that any slippery slope may not be confined to the Fourteenth Amendment. The Reynolds Court itself expressed a concern about the First Amendment being used as a license for people to become a \u201claw unto themselves.\u201d Passing by the irony that this language is itself drawn from Romans 2:14<\/a>, perhaps they are realizing that if we grant Christians special exemptions to ignore marriage laws under the First Amendment, how long until others, in the words of Nevada, \u201cqueue to press their own sincere desires for recognition, for respect and dignity?\u201d Religious exemptions may begin with Evangelical Protestants and Catholics, but Brown shows that the polygamists may even get them, too. Soon, perhaps, corporations will be considered religious, and then why not just grant religious rights to fish<\/a> and stones<\/a>?<\/p>\n

To the degree religious liberties advocates find offensive the comparison of polygamists, corporations, and fish in the First Amendment context, many LGBTQ individuals find similarly offensive the comparison of gay marriage, polygamy, and bestiality in the Fourteenth Amendment context. It seems that the question of slippery slopes is really just a quest for a limiting principle. If Utah appeals<\/a>, I hope that the Tenth Circuit, will see the issue as just that, and not confute the issues as much as the first wave of commentators of Brown v. Buhman<\/i>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Scalia is (in)famous for his view that when the Court struck down Texas\u2019 criminal sodomy statute in Lawrence v. 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