Politics

12.16.13

Was Rick Santorum Right About Polygamy After All?

The Republican was once savaged for suggesting polygamy could become legal if the Supreme Court killed anti-sodomy laws. Now a judge has ruled against Utah’s anti-polygamy statute.

A decade ago, Rick Santorum said polygamy, among other things, would be allowed if bans on sodomy were struck down by the Supreme Court.

“Sometimes I hate it when what I predict comes true,” the once and likely future Republican presidential candidate tweeted Sunday after a federal judge decriminalized polygamy in Utah.

Judge Clark Waddoups ruled late Friday that parts of the state’s law are unconstitutional, based on a Supreme Court ruling that legalized sodomy across the nation.

In 2003, referring to the landmark gay rights case Lawrence v. Texas before the Supreme Court, Santorum told the Associated Press:

“If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.”

Santorum’s slippery-slope logic used against gays—legalize their relations and you’ll see a parade of horribles—may not be legally sound, but it could remain politically powerful.

Analogizing homosexuality to bigamy, polygamy, incest, bestiality, and pedophilia made Santorum infamous. Syndicated columnist Dan Savage even campaigned to turn “santorum” into a byword for sexual waste as revenge.

But the Supreme Court eventually ruled that anti-sodomy laws were unconstitutional in Lawrence, and Judge Waddoups used that very ruling Friday to strike a blow against Utah’s anti-polygamy law.

So is Santorum vindicated? Will America become Big Love set in Sodom and Gomorrah?

Not quite. The Utah decision does not recognize, in Santorum’s words, a “right to polygamy.” The judge said the right to not be discriminated against under the First and Fourteenth amendments applies to the plaintiffs.

The family of Kody Brown, subject of the TLC reality show Sister Wives, says it is polygamist because it belongs to a fundamentalist Mormon church. The Browns sued Utah in 2011, arguing that the anti-polygamy law violated their right to privacy based on the Lawrence decision. Bigamy, or having multiple active marriage licenses, is a third-degree felony in Utah. Utah outlawed the practice, prevalent among Mormons, so Congress would accept it as a state in 1896. (The Church of Jesus Christ of Latter-day Saints banned polygamy in 1890.)

If Utah doesn’t prosecute an adulterer for sleeping with several women, the judge wrote, why should it prosecute a polygamist doing the same under one roof?

In other words, Utah polygamists can’t be discriminated against now, but they still can’t get married.

The difference might sound academic to the 83 percent of Americans who say polygamy is morally wrong. Santorum’s slippery-slope logic used against gays—legalize their relations and you’ll see a parade of horribles—may not be legally sound, but it could remain politically powerful. After all, even the swing voters who have come around to supporting same-sex marriage in states such as Iowa did not think they were signing up for legalized polygamy.