If Supreme Court Lets States Define Marriage, Could Legalized Polygamy Make A Comeback?

The Supreme Court may allow states to decide individually on the legality of same-sex marriage. So if Washington were to defer to the states in defining marriage, could legalized polygamy make a comeback? Robert Siegel talks to Jonathan Turley, law professor at The George Washington University and lead counsel for the Brown family, featured on the TLC show Sister Wives.

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ROBERT SIEGEL, HOST:

This week, we heard two days of arguments at the Supreme Court over same-sex marriage. Yesterday, the court heard Edith Windsor's challenge to DOMA, the Defense of Marriage Act. It defines marriage as a union between one man and one woman.

I wondered, aside from the man and woman part, what about the one and one part? Polygamy was practiced by the Mormons. Lawyer Paul Clement, in his defense of DOMA, said this yesterday - although first, we'll hear Justice Scalia sneezing.

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PAUL CLEMENT: If you look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular programs, it's also intervened in other areas, including in-state prerogatives. I mean, there's a reason that four state constitutions include a prohibition on polygamy. It's because the federal Congress insisted on them.

SIEGEL: Polygamy is still practiced in Africa and the Middle East, and there are immigrants here from societies that accept it. If Washington were to defer to the states in defining marriage, could legalized polygamy make a comeback? Well, Jonathan Turley is a law professor at George Washington University. Welcome to the program.

JONATHAN TURLEY: Thank you.

SIEGEL: And let's set out first, you are representing clients who are seeking to overturn a Utah law that effectively, bans polygamy.

TURLEY: That's correct. What the Brown family is doing is, they're challenging a law that criminalizes cohabitation, which is the law that governs plural families, including polygamists. And it is that law that says that even if you don't have multiple marriage licenses, if you simply live with someone - or multiple partners, you can be criminally charged.

SIEGEL: The Browns are known to some folks from television.

TURLEY: That's right. The Browns are the cast for a reality show called the "Sister Wives," who have a single husband and multiple wives. They are all consenting adults. They've been investigated for years; and the state agrees that there's no child abuse, no spousal abuse. What you have are people that prefer to live this way. This is a bona fide practice that goes back to the earliest days in multiple religions, including the Jewish, Protestant faiths as well as the Islamic faith. Many of the Old Testament figures were polygamists - some of the ones that are most revered by both Christians and Jews.

SIEGEL: But of course, that's - that could be an argument for slavery as well; that the people in the Old Testament held slaves. I mean, we can't judge by the mores of Abraham, Isaac and Jacob.

TURLEY: Well, the point is that it puts it in to sharp relief. It is a bona fide and long-standing religious belief.

SIEGEL: Is there anything germane in either of the arguments, either of the day's cases and same-sex marriage that relates to your case?

TURLEY: Really, what this case reflects is where the gay and lesbian community was almost exactly 10 years ago, before the ruling in Lawrence v. Texas. That was the ruling where the Supreme Court said you could not criminalize homosexuality. The polygamists are a decade behind that. And when we talk about polygamists, you have to remember that cohabitation statutes really apply to a vast array of plural families that are often ignored.

SIEGEL: Can you accept, though, a clear line that says same-sex marriage means equal access to a fundamental right; polygamy is about something completely different, and it might very often be in violation of the rights of, say, the women.

TURLEY: Well, it can be, but so can monogamy. I mean, I can show you a vast array of cases involving conventional marriage where women are abused; children are abused as well. And critics, they want this to be this image of compound polygamists wearing prairie dresses and living in isolation. That's not how most plural families live. Most are like the Brown family. They're very modern. The women believe in divorce. They live in cities. They have jobs. But they are treated as felons.

SIEGEL: I asked another court-watcher about the possible impact of same-sex marriage - at the court - on polygamy. And he said look, history has not shone kindly on polygamists. You say that the polygamists today are where the same-sex marriage was 10, 20 years ago. But is the answer here more simply that gay marriage expresses contemporary mores; polygamy doesn't?

TURLEY: Well, I think that there's something that but - and quite frankly, it's wrong. You cannot defend a new civil liberty by denying it to others. I think that there is a grander, more magnificent trend that you can see in the law, and that is this right to be left alone. People have a right to establish their families as long as they don't harm others.

SIEGEL: Professor Turley, thank you very much for talking with us.

TURLEY: It's my great pleasure.

SIEGEL: Jonathan Turley is a professor of law at the George Washington University in Washington, D.C.

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