10th Circuit gay marriage ruling: relevance for poly case?

On Wednesday the federal 10th Circuit Court of Appeals, which includes Utah in its jurisdiction, upheld a Utah judge allowing gay marriage. This is the highest court yet to declare that same-sex marriage is a right. Other federal courts at this level are also considering the issue. Their decisions will pave the way for it to go to the Supreme Court for a nationwide ruling.

The decision was 2-1, by a three-judge panel (subset) of the full court. Here's their complete ruling.

This also happens to be the same federal appeals court that will hear any appeal of the Kody Brown family's polygamy/polyamory case.

Remember about that? Last December a Utah federal judge ruled for the Browns, saying that Utah's law against bigamy (merely living with another partner while married) was overly broad, and that while the state does not have to recognize multiple relationships as marriages, it cannot outlaw them. Here's my coverage of that ruling with links to more. The State of Utah has not yet appealed the Brown ruling; another part of that case is still pending.

After Wednesday's gay-marriage ruling, some buzz went around the polywebs that it might ease the way to recognition of multiple marriage, based on language such as this:

We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class membership of the individual exercising the right.

To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question

[A state] cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen’s decision

Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.

But to many others, that looked like a stretch.

Longtime legal observer In Finity (infinity_8p AT yahoo.com) read the whole ruling and posted this on the PolyLegal Yahoo group (reprinted with permission):

10th CCA OKs SSM, But Slams Polys

Poly activists will be keenly interested in this steaming load of bullshit from pages 44 and 45 of the ruling:

Utah’s ban on polygamy, for example, is justified by arguments against polygamy. See Utah Const. art. III (“[P]olygamous or plural marriages are forever prohibited.”); see also Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985) (concluding that “the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage” based on its “commitment to a system of domestic relations based exclusively upon the practice of monogamy” which is “inextricably woven into the fabric of our society” and “the bedrock upon which our culture is built” (quotation omitted)).

The 10th Circuit is basically saying that banning same-sex marriage is invidious discrimination and unconstitutional, but adding dicta (text that is not directly relevant to the ruling and thus isn't legally binding) that is dripping with prejudice against polys, hypocritically denying that the very same type of prejudice and bigotry is unconstitutional when those icky polys are the ones being discriminated against.

Despite this disrespectful dicta, it should be kept firmly in mind that tangential statements like this can be and often are reversed when the very same court has to face the issue directly. The 10th Circuit did not face the issue directly in Potter v. Murray City - that case did not raise equal protection and due process objections to a ban on poly marriage. And another 10th Circuit case, Bronson v. Swensen (500 F.3d 1099 (2007)), also failed to pursue due process and equal protection attacks against Utah's prohibition of poly marriage. Both cases relied instead on legally dubious attacks such as the right to free exercise of religion, which failed miserably. As of today there has been no competent, sophisticated attack against any legal prohibition of poly marriage in any U.S. federal court.

Today's 10th Circuit decision does mark an important milestone in the fight for same-sex marriage. This is one of the many important same-sex marriage decisions that will be of great interest to those poly activists preparing to competently attack the constitutionality of legal prohibitions against poly marriage. It's well worth reading!

I have to disagree with In Finity's hot response. Right after the section he quoted above, the court writes "Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class." It seems clear that the court was not denouncing polygamy/polyamory as such, but was describing past cases in which marriage was denied to certain classes based on actual arguments of harm given as justification. The court said that such precedents do not allow the banning of gay marriage, because in this case, the arguments for harm fail. The soundness of the arguments against polygamy and marriage or minors is not considered here, merely that the court had used such arguments to justify a ruling against a class.

Meanwhile, the Brown family's reality show Sister Wives just began its fifth season.

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Polyamorists claim spotlight in Mormon country

City Weekly (Salt Lake City, UT)


Salt Lake City is the capital of the Mormon Church (LDS), so it's no surprise that members of the Utah Polyamory Society say they're always having to explain that no, they're not about patriarchal religious polygamy. They even have to explain this at their annual Pride Day booth.

This week's City Weekly, Salt Lake City's alternative newspaper, presents a long cover story about polyamory and the UPS that ought to make their job a little easier from now on. The article was written by one of the society's own members.

Bigger Love: For Utah’s polyamorists, one romantic partner is not enough.

By Jim Catano

The house looks typical enough — an attractive split-level in an established Salt Lake County neighborhood — but the family living here is far from conventional. While Utahns are familiar with polygamy, another form of “non-monogamy” is both more commonly practiced and lesser known. We’re about to visit the household of the Smiths/Joneses (not their real names) — two wives, two kids and two husbands....

...Utah’s polyamorists come in all sexual orientations — straight, same-sex, bisexual — and their sexual practices span the spectrum: one-on-one or “vanilla” (probably the majority), group, kink. The Smiths/Joneses form what’s known in the poly community as a “quad” — two couples with each individual able to share some sexual intimacy with any of the others....

The Smith/Jones quad is also “open,” meaning partners can have additional outside lovers, if desired. Other polyamorists practice “polyfidelity,” where sexual intimacy occurs exclusively within the group. Others may be “fluid bonded” — using condoms or other safer sex practices [only] with outsiders.

...How did they vault the cultural fence and become polyamorists? Celine reports, “I was raised pagan, so being strange was never a big deal, but my big problem when I was young was that I fell in love with all my friends.”

...One reason they formed an extended household was simple practicality and green economics. Liz explains, “My ideal is living in a communal situation. It’s wasteful for two people to live in an isolated box and try to raise children.”... Joe adds, “We now have more buying power.”

...“We all have different things we specialize in and different ways of doing things we all respect,” Celine says, and points to a set of 20 cards that make up a homemade mobile hanging from the ceiling, each card containing one of the jointly drafted family values and their child-rearing philosophy. She explains that “in parenting situations, we defer to the birth parent for the most part, but anyone has input and can take control of a situation with a child.”

...The Smiths/Joneses drafted documents with an attorney for the transfer of property and guardianship in the event of a death, since they want the children to stay in the home they’ve created rather than be placed with extended family. They report, however, that it was tough to find willing legal professionals.

One who does assist society’s fringe types is Midvale attorney Andrew McCullough, who believes polyamorists enjoy broad protections stemming from the 2003 Supreme Court decision Lawrence v. Texas. “It basically tells government to stay out of our bedrooms,” says McCullough, who opines that if kids aren’t subjected to behavior any more salacious than what they’d see in the typical home, “it shouldn’t matter how many ‘parents’ they have.”

For peer support, the Smiths/Joneses are involved with the Utah Polyamory Society, which maintains a Listserv at groups.yahoo.com/group/UtahPolyamorySociety/ for more than 500 subscribers. The society holds meetings twice a month and occasional socials for 10 to 100 attendees, geared to Utahns seeking encouragement and advice in creating successful polyamorous unions.

...My own polyamorous journey began seven years ago....

...Vanessa is open about her bisexuality, but Anna is leery of too much exposure and public displays of affection with others. She’s not shy, however, about listing the benefits she’s accrued on her polyamorous journey: “Coming into who I really am while breaking out of what my parents and my bishop thought I should be, and doing what moves me, has been awesome. I love loving how I love. I love being how I am. I think I’m one of the luckiest women in the world, and I’m surrounded by intelligent, spiritual, loving people.”

All are hopeful that society will continue to become more accepting of unconventional lifestyles. Jake philosophizes, “I think the day will come when everybody will be living their dreams full-on, all the time, and without reservation.”...

Read the whole article (June 1, 2011). It profiles a number of other people and their experiences, including an awful one. One sidebar lists "resources for exploring the polyamory path" (including Polyamory in the News!), and another discusses the anthropological basis of poly, drawing on Sex at Dawn.

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P. S: Why do so many gentiles still think of polygamy when they think of Mormonism, more than 120 years after the LDS church left polygamy behind? In 1890 the church officially renounced its doctrine that a Mormon man needs three wives to please God and get top treatment in the afterlife, and outlawed the practice, in what amounted to a deal to get the federal government to accept Utah as a state.

Part of the reason the church hasn't been able to shake the polygamy tag is that it abandoned polygamy only in this life. Three wives remain the expectation for good Mormon men in the afterlife. Even though the church doesn't publicize this, indications of it may show.

Then there are the breakaway Mormon sects, with a few tens of thousands of followers, who hold to the original doctrine of "celestial marriage." They claim, with some justification, that they're the real Mormons and the mainstream LDS church is the breakaway, because its leaders abandoned God's revelation for secular gain.

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