- The Washington Times - Sunday, March 20, 2011

The outlook for polygamy hasn’t been this good since Abraham took Keturah as his third wife.

Plural marriage remains illegal, but it’s undergoing an image upgrade as a result of television shows like HBO’s “Big Love” and TLC’s “Sister Wives.” More significantly, it’s getting a legal boost from a strange bedfellow: the success of same-sex marriage.

Gay-rights advocates cringe whenever the connection is made between same-sex and plural marriage, but more than a few legal analysts say the recent gains posted by gay marriage in the courts and state legislatures cannot help but bolster the case for legalized polygamy.

The federal government and most states define marriage as an institution between one man and one woman. If marriage is redefined to include two people of the same sex, the argument goes, then it can be redefined to include more than two people.

Critics reject the polygamy comparison, arguing that marriage’s definition as a union of two people remains inviolable. They also dismiss the specter of legalized polygamy as a scare tactic used by the traditional-marriage camp to chill public support for same-sex marriage.

Claiming much deeper roots in human society than gay marriage, plural marriage has been practiced for centuries in nations and cultures across the globe and has ties to both Christianity and Islam. Same-sex marriage is a recent phenomenon confined to the secular West.

“Unlike same-sex marriage, which has no historical roots and is a new frontier — you can’t say the same thing about polygamy,” said Austin Nimocks, attorney for the conservative Alliance Defense Fund, which opposes same-sex marriage. “There’s a cultural underpinning and support for plural marriage, so one could say the case is actually stronger for plural marriage.”

Wayne McCormack, dean of the University of Utah law school, predicted a pro-polygamy legal challenge based on recent court decisions in favor of same-sex marriage is all but inevitable. Five states and the District of Columbia now recognize gay marriage.

“I don’t have any doubt we’ll see it,” said Mr. McCormack. “It’s going to play out after same-sex marriage is resolved, but we’re going to get new cases.”

He pointed to a case now before a Canadian judge testing the national ban on polygamy. British Columbia Chief Justice Robert Bauman is expected to rule later this year on whether anti-polygamy laws violate Canada’s constitution. Canada legalized same-sex marriage in 2005.

“What the Canadian court is looking at is whether restrictions against polygamy are a denial of personal liberty,” said Mr. McCormack. “They’re using the same arguments that we see used here to support gay marriage.”

If U.S. courts do eventually legalize plural marriage, there’s an excellent chance that the attorney for the plaintiffs will be Brian Barnard. A Utah-based religious-freedom lawyer, Mr. Barnard has been challenging anti-polygamy laws for decades.

“We haven’t been successful, but we think the times are a-coming,” said Mr. Barnard, who serves as legal director for the Utah Civil Rights and Liberties Foundation.

At the same time, he said, it won’t just happen automatically if and when gay marriage becomes the law of the land. Unlike Canadian courts, which can take up constitutional questions without being presented with a case, the pro-polygamy side will need a case, and so far that’s been the problem.

Mr. Barnard thought his side had a solid argument in 1979, when the notorious Erval LeBaron wanted visits from his multiple wives while serving a murder sentence in Utah state prison. The prison refused, and the lawsuit was filed. Then LeBaron died of a heart attack, rendering the case moot.

Eight years ago, Mr. Barnard brought a case on behalf of a man and woman who were denied a marriage license because he was already married. The 10th U.S. Circuit Court of Appeals rejected their claim.

“The court said ‘No, there’s not sufficient legal harm there,’” said Mr. Barnard.”We didn’t have legal standing. What we need is the attorney general of the state of Utah to prosecute consenting adults. And the attorney general will not do that.”

Indeed, if there’s one person blocking the court-ordered legalization of plural marriage, it’s Utah Attorney General Mark Shurtleff. While Mr. Shurtleff has aggressively pursued polygamists involved in so-called “spiritual marriages” with underage girls, he has left alone adults who freely enter into polygamist unions.

While that’s good for Utah’s adult polygamist community, it’s bad for lawyers like Mr. Barnard who need more in the way of government persecution to make their case. His best bet is that the next attorney general will be more gung-ho in his pursuit of adult polygamists.

The Utah Constitution bans polygamy, the result of a deal struck at statehood between the state’s Mormon leadership and federal authorities. The Church of Jesus Christ of Latter-day Saints ended its endorsement of polygamy as the result of a revelation in 1896, but as many as 50,000 Utahans continue to engage in the practice.

“We may get another attorney general in the near future who says, ‘Full steam ahead, we’re going to prosecute,’” said Mr. Barnard. “There’s a good chance that if it gets to the [state] Supreme Court, they’re going to overturn it.”

He noted that Utah Chief Justice Christine Durham came out against the state’s polygamy ban in a 2007 dissenting opinion in a case involving Rodney Holm, who was convicted of bigamy and unlawful sex with a minor after marrying his wife’s 16-year-old sister. In her dissent, Mrs. Durham said the law violated the decision in Lawrence v. Texas, which prohibited government interference in relationships between consenting adults.

Why have U.S. proponents of same-sex marriage been so much more successful in making their case than their pro-plural marriage counterparts have been? One answer is marketing: The gay-rights community has made huge inroads in swaying public opinion through an extensive and sophisticated media campaign, while the polygamist community has remained intensely private.

That may be due in part to the law. Homosexual relationships aren’t illegal, while polygamist relationships are. Polygamists also tend to be concentrated in three states — Utah, Arizona and Idaho — while homosexuals have a nationwide presence.

“There hasn’t been the social outcry against polygamy laws that there has been with same-sex marriage,” said Mr. Barnard. “The polygamy community doesn’t have that clout. They’re still outcasts, still afraid of the news media, of the scorn. They can’t go to the Utah legislature and say, ‘Please legalize this.’ And there’s not that much interest in any other state.”

Television shows like “Big Love” have raised the practice’s profile, but those programs also have their drawbacks.

'Sister Wives' shows that polygamy is rather boring,” said Mr. Barnard. “And yeah, I think both those shows are pulling Utah polygamy more in the mainstream. But 'Big Love' also shows the rural crazies.”