Jewish World Review Jan. 16, 2004 / 22 Teves, 5764

Jeff Jacoby

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Is lawful polygamy next? | Three adults who want to live together as a husband and two wives asked a federal court this week to strike down Utah's ban on polygamy as a violation of their constitutional rights.

The plaintiffs are G. Lee Cook and D. Cook, a married husband and wife, and J. Bronson, the woman who wants to join them in a "plural marriage." According to the lawsuit filed on their behalf by the Utah Civil Rights & Liberties Foundation, the Cooks and Bronson share "sincere and deeply held religious beliefs" in polygamy as it was practiced in the early decades of the Mormon Church. Acting on those beliefs, the three of them went on Dec. 22 to the Salt Lake County Clerk's Office, where Mr. Cook and Ms. Bronson applied for a marriage license. But since Cook acknowledged that he was already married — his wife was right there with him — the license was refused.

"The law makes it very clear that they can't be married to more than one person," the county clerk told the Salt Lake Tribune. "We're here issuing licenses according to the law." That law is written right into Utah's constitution, which declares: "Polygamous or plural marriages are forever prohibited." And that, the plaintiffs argue, deprives them of their religious freedom and privacy rights under the Constitution.

It's an open-and-shut case, of course. They haven't got a prayer.

Or have they?

Last June, in Lawrence v. Texas, the US Supreme Court overturned a Texas anti-sodomy law on the grounds that the Constitution protects "an autonomy of self that includes freedom of . . . certain intimate conduct." Five months later, guided in part by Lawrence, the Supreme Judicial Court of Massachusetts ruled that the age-old ban on same-sex marriage was "incompatible with the constitutional principles of respect for individual autonomy." The essence of civil marriage, said the SJC in Goodridge v. Dept. of Public Health, is simply "the exclusive and permanent commitment of the married partners to one another."

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Well, if that, constitutionally speaking, is what makes a marriage — the intimate union of permanently committed partners — why shouldn't the trio in Utah be allowed to marry? On what principled ground can they be denied the protections and benefits of matrimony?

To be sure, Utah isn't Massachusetts and federal court isn't the SJC. But logic is logic. If judges in one jurisdiction can decide that the right to marry includes the right to change the very definition of marriage, judges in another jurisdiction can do the same thing.

Some advocates argue that it is insulting to compare a homosexual person's wish for a same-sex spouse with a polygamist's wish for multiple spouses. "Gay people are not asking for the right to marry anyone," writes Andrew Sullivan, a leading champion of same-sex marriage. "We're asking for the right to marry someone. Would-be polygamists already have a legal option: to marry a single other person."

But of course gay people have always had exactly the same option. They are free to marry someone of the opposite sex, and throughout history, countless homosexuals have done exactly that. Nevertheless, Sullivan claims, for gays and lesbians, opposite-sex marriage "is no meaningful option at all."

Isn't that exactly what the Utah plaintiffs would say about binary marriage? According to a "doctrinal overview" they filed with the court, so-called fundamentalist Mormons regard plural marriage as "a doctrine revealed by God, obedience to which is necessary for their desired eternal exaltation." A freakish notion? Until very recently, that is what the vast majority of Americans thought about same-sex marriage, too.

The implication of Lawrence and Goodridge is that the only people entitled to decide whether an intimate relationship is meaningful enough to deserve legal protection are the parties to that relationship themselves. If other courts follow suit, the damage inflicted on marriage as we know it — indeed, on the social order as we know it — will be considerable.

This is why the power to define marriage has always been vested in the political branches of government, not the courts. The Massachusetts Constitution is explicit on the point. Part 2, Chapter III, Article V: "All causes of marriage, divorce, and alimony . . . shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provisions." As recently as 1999, the Supreme Judicial Court acknowledged that marriage was the Legislature's domain. "We recognize a family may no longer be constituted simply of a wage-earning father, his dependent wife, and the couple's children," the SJC said in Connors v. City of Boston, but "adjustments in the legislation to reflect these new social and economic realities must come from the Legislature."

The question for the Massachusetts Legislature is whether it will reclaim its authority to say what marriage means, or meekly submit to the high court's power play. Lawmakers, too, take an oath to uphold the Constitution, and they have a duty to resist when judges overstep their bounds. When they fail to do so, the fallout can spread far and wide. The lawsuit filed Monday in Salt Lake City is just a taste of things to come.

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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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