Analysis: Conservatives Missing Opportunity to Defend Religious Freedom in Utah Polygamy Case

In reaction to Friday's ruling by a federal judge that parts of Utah's anti-polygamy law are unconstitutional, most conservatives, social conservatives in particular, have claimed that the ruling confirms the slippery slope arguments they made about the legalization of gay marriage. These conservatives are missing an opportunity, though, to praise the ruling for its defense of religious freedom.

When marriage can be redefined, as it has with same-sex marriage laws, to be based upon love or affection rather than a public good (such as the societal benefits that come from having children raised by both a mom and a dad), this opens the opportunity for other types of unions to be recognized as marriage, such as polygamy or polyamory. Social conservatives have long made this argument, and some have said that the Utah polygamy ruling demonstrates that they were correct.

"The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy," Jonathan Tobin wrote for Commentary.

Similarly, Russell Moore, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission (ERLC), said, "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. ... Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing."

There will certainly be cases in which social conservatives can say, "see, we were right all along." This, however, is not one of them. Here is why: In his ruling for Brown vs. Buhman, Judge Clark Waddoups, who was appointed by President George W. Bush, upheld the right of the state to define marriage as it pertains to state marriage licenses, and he specifically wrote that there is no "fundamental right" to polygamy. Instead, he struck down the part of the law that made "cohabitation" and private religious ceremonies illegal.

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. Indeed, the defendants, the Brown family from TLC's "Sister Wives," were not even asking for the state to recognize their marriage. Rather, they were simply asking for the freedom to live according to the dictates of their religious sect.

While social conservatives have a broad range of concerns, there are three issues that remain at the core of their public policy advocacy: religious freedom, life and marriage. This polygamy case is being viewed through the marriage lens, but it should be viewed through the religious freedom lens. In misunderstanding this case, social conservatives are missing an opportunity to defend freedom of conscience, a freedom they have been touting for the past couple of years in relation to the Obama administration's birth control mandate.

In social conservative arguments regarding gay marriage as the slippery slope to other sorts of arrangements not normally considered marriage, Justice Antonin Scalia's dissent in Lawrence vs. Texas is often cited. Rod Dreher quoted it at length in a Monday article for The American Conservative called, "Why the Polygamy Slope is Slippery."

The fact that Waddoups cited the majority in Lawrence in part of his reasoning seemed, to some, justification that his ruling was, indeed, on that slippery slope that Scalia warned about. Part of his discussion of Lawrence, though, dealt with how Lawrence does not apply to the case. Plus, he spent more time (a lot more time) writing about the religious freedom issues in the case than about Lawrence.

There is much irony in how this case relates historically to religious freedom cases in the United States.

In 1878, the U.S. Supreme Court ruled in Reynolds vs. U.S. that a federal law against bigamy was constitutional. The case was brought by George Reynolds, secretary to Mormon Church President Brigham Young. (The Fundamentalist Mormon Church is a breakaway sect from the Mormon Church, which later rejected the practice of polygamy and was renamed the Church of Jesus Christ of Latter-day Saints.)

The law against bigamy does not violate the Free Exercise Clause of the U.S. Constitution, the Supreme Court ruled, because the Free Exercise Clause only protects religious belief, it does not protect religious practice. This reasoning is today thoroughly rejected by social conservatives. (In his ruling, Waddoups referred to the reasoning in Reynolds as "morally repugnant.")

In social conservative arguments against the birth control mandate, a complaint often heard is that the Obama administration's religious exemption suggests that only religious belief is protected, not religious practice. The exemption only covers groups that engage in private religious activities. Groups that put their faith into practice by, for instance, providing educational services or serving the poor, are not protected. This is wrong, social conservatives have argued, because the First Amendment protects not just religious belief, but religious practice.

Waddoups' ruling, therefore, should have been praised by religious conservatives for recognizing that the First Amendment protects not only religious belief, but religious practice. The Browns should be free to not only believe that polygamy is proper, but to put that belief into practice.

In his recent Leland Award Lecture for the ERLC, Robert P. George, McCormick Professor of Jurisprudence at Princeton University, said that "religious freedom means the right to ponder life's origins, meaning and purpose; to explore the deepest questions about human nature, dignity, and destiny; to decide what is to be believed and not to be believed; and, within the limits of justice for all, to comply with what one conscientiously judges to be one's religious obligations - openly, peacefully, and without fear."

By entering into a polygamous marriage, the Browns are doing what they conscientiously judge to be their religious obligation. Their case, therefore, is a religious freedom issue, not a definition of marriage issue.

In an October panel discussion on religious freedom, Moore argued that Christians need to stand up for the religious freedom of all, not just themselves.

"One of the mistakes people made in the past is this kind of majoritarian understanding, maintaining our own rights without diligently fighting for religious liberty for all persons," he said.

Moore himself, though, is missing an opportunity to fight for the religious liberty of the Brown's by viewing their case through the lens of marriage, rather than the lens of religious freedom.

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