From Reynolds To Lawrence To Brown v. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-sex Marriage

Abstract

In 2003 in Lawrence v. Texas (striking Texas' sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah's anti-bigamy statute was unconstitutional. To reach its conclusion, Brown v. Buhman believed it necessary to undertake a detailed review of the history of U.S. antipolygamy efforts. Like Brown v. Buhman this paper reviews the history of those antipolygamy efforts and current legal trends to conclude that Justice Scalia's prediction, at least as regarding marriage, is accurate. An analysis of the legal and historical underpinnings of antipolygamy laws suggest that those footings have weakened. If Justice Scalia and Brown v. Buhman were correct, they will soon fall. When they fall, polygamy will be constitutional.