- The Washington Times - Sunday, July 24, 2011

Reality-TV star Kody Brown and his “sister wives” may not intend to be an example of the “slippery slope” in the gay-marriage debate, but their new lawsuit against Utah’s anti-polygamy laws bolsters the argument that legalizing marriage for same-sex couples could open the door to recognition of other kinds of marriages.

Mr. Brown; his legal wife, Meri Brown; and “sister wives” Janelle Brown, Christine Brown and Robyn Sullivan, who appear with their 16 children on “Sister Wives” on TLC, want Utah’s anti-polygamy laws declared unconstitutional and unenforceable on their “plural family.”

The legal arguments their attorneys Jonathan Turley and Adam Alba are using are similar to those used in many gay-marriage lawsuits: The Browns are being illegally denied the rights to freedom of association, due process and equal protection, as well as the rights of adults to engage in “intimate conduct” without government intrusion.

Utah’s anti-polygamy laws have caused “personal injuries” to the Brown family and trample on “the right of consenting adults to create a family environment of their choosing,” Mr. Turley and Mr. Alba argued in their July 13 complaint at U.S. District Court in Utah.

The lawsuit, which names Utah Gov. Gary R. Herbert and other state officials as defendants, seeks relief for the Brown family, and, “by extension, thousands of unorthodox or non-traditional families in Utah.”

The Brown lawsuit does not mention the 1996 Defense of Marriage Act, which defines marriage, for federal purposes, as only the union of one man and one woman, thus denying federal benefits to same-sex couples. But at a recent Senate hearing on the merits of DOMA, two witnesses mentioned polygamy as a reason to retain the 1996 law.

Same-sex marriage advocates say that “a union between two men or two women is equal to that of one man and one woman,” Rep. Steve King, Iowa Republican, told the July 20 hearing before the Senate Judiciary Committee. “But these are the same arguments that could be used to promote marriage between fathers and daughters, mothers and sons, or even polygamous relationships,” Mr. King said.

The legal arguments for gay marriage “clearly threaten to pave the way for polygamous and other polyamorous unions,” testified Edward Whelan, president of the Ethics and Public Policy Center. If the male-female aspect of marriage can be “dismissed,” Mr. Whelan added, “surely the distinction between a marriage of two persons and a marriage of three or more is all the more arbitrary and irrational.”

Advocates for same-sex marriage typically dismiss the “slippery slope” argument.

The Human Rights Campaign, the nation’s largest gay-rights advocacy organization, says same-sex marriage will not lead to polygamy or a “free for all” for marriage benefits. “Granting same-sex couples the right to marry would in no way change the number of people who could enter into a marriage (or eliminate restrictions on the age or familial relationships of those who may marry),” the HRC says.

At the July 20 Senate committee hearing, the polygamy issue was not addressed by same-sex-marriage supporters. Instead, members of Congress and dozens of witnesses who called for a repeal of DOMA focused almost entirely on the law’s adverse impacts on same-sex couples.

Still, the “slippery slope” argument is not going away. In a recent blog, Catholic Archbishop Timothy Dolan said New York’s new gay-marriage law, which went into effect Sunday, is only the “latest dilution of the authentic understanding of marriage.”

A likely next step, the archbishop warned, “will be another redefinition to justify multiple partners and infidelity.”

In the Brown lawsuit, Mr. Turley and Mr. Alba said the Brown family, members of the Apostolic United Brethren faith, has committed no crime except to live together, “motivated by their sincere religious beliefs and love for one another.”

States cannot “criminalize consensual intimate relationships, including homosexual relationships, between unmarried adults,” the lawyers wrote, citing the 2003 U.S. Supreme Court decision in Lawrence v. Texas.

And yet Utah has a law that forbids a legally married person from “purport[ing] to marry another person or cohabit[ing] with another person,” the lawyers wrote.

With this and other anti-polygamy laws, Utah “criminalizes not just polygamous marriages, but also an array of plural intimate relationships and associations of consenting adults,” Mr. Turley and Mr. Alba wrote.

The Brown family’s “basic liberties and equal protection” are being violated, they added, asking the court to “preliminarily and permanently” block enforcement of Utah’s laws that ban and criminalize polygamy.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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