The 91-page opinion issued by a federal judge in Utah on Friday invalidating Utah's statutory prohibition on polygamy is, not surprisingly, prompting a flurry of online commentary. Jonathan Turley, who brought the case on behalf of the polygamous family featured in Sister Wives, writes enthusiastically at his blog "[d]espite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country." He hails the framing of the challenge as based in privacy and calls the opinion "a major constitutional ruling in protection of individual rights." Gerard Magliocca at Concurring Opinions has a different view:
If you want to read a terrible judicial opinion. try to plow through Judge Clark Waddoups decision assessing the constitutionality of Utah’s law defining bigamy. The actual issue in the case is not trivial. Utah has a statute prohibiting polygamy that defines the practice to include a married person who knowingly cohabitates (in a sexual way) with another. In other words, you don’t have to be legally married to more than one person to be guilty of bigamy. That’s certainly odd and might be unconstitutional, though I’d want to think about that more carefully. But oh what a journey you must take to understand the Court’s conclusion. (And you thought The Hobbit movies were long and tedious). I would give you a summary, but some disasters just speak for themselves.
Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right
Eugene Volokh says he's no fan of the opinion, but agrees that the statute is unconstitutional. Buthe sees the statute as a violation of free speech, not privacy.
Take your pick of opinions on the opinion. Or choose several, if you'd like.
Photo: Mormon polygamists in prison at the Utah Penitentiary ca. 1889. Wikipedia