What happens in the bedroom, stays in the bedroom…unless you open the door.

You tell me what to think.

We’re in the midst of a culture war over gay marriage, with some states passing amendments defining traditionally and others opening it up to gay and lesbian couples. California is still recovering from the Proposition 8 battle, and indeed, that case is still up on appeal.

Meanwhile, the polygamists decide to get in on the action. And not just any polygamists–reality show polygamists. If men can marry men, and women can marry women, why can’t men marry multiple women? We’re all consenting adults, right?

And, anyway, why is it any of your business?

Any surprise, then, that the complaint was filed in Salt Lake City?

Saying the country is at a “critical moment,” an attorney for the polygamous family who stars in the reality show “Sister Wives” argued Wednesday that American adults — including Kody Brown and his four wives — have a right to privacy in their intimate relationships.

“We can’t embrace privacy as a principle and pick and choose who can enjoy it,”said Jonathan Turley in a press conference outside Salt Lake City’s federal courthouse. “Now, this family doesn’t look like a lot of families in Utah, but it’s not your family. It’s their family.”

That’s right. Because there is a constitutional right to have a reality show about yourself and keep your privacy at the same time. It’s right there, somewhere in the penumbra between the 28th and 29th amendments to the federal constitution, I’m sure…

Which is exactly why the five Browns (no, not the pianists, who also happen to be from Utah) are living in an undisclosed location in Nevada, not in Utah. Apparently, they didn’t like the publicity that their reality television show had created. Especially when the show revealed their violation of the law.

The Brown Family

Attorney Jonathon Turley, who also represented various Members of Congress in their suit against the President for violations of the War Powers Act, filed suit on their behalf in federal court in Utah. He said on his blog that

We believe that this case represents the strongest factual and legal basis for a challenge to the criminalization of polygamy ever filed in the federal courts. We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs. This action seeks to protect one of the defining principles of this country, what Justice Louis Brandeis called ‘the right to be left alone.’

Geez, Turley. Where were you 1878 when the U.S. Supreme Court decided that the Constitution did not protect polygamy in Utah Territory (Reynolds v. United States), upholding the 1862 Morrill Anti-Bigamy Act that outlawed polygamy for the first time? Or in 1882 when it became a felony (rather than just grounds to lose the right to vote, hold office, or sit on a jury, like the Morrill had done)? Or 1887 when the federal government tried to dissolve an entire religion, seize its property, and take the vote away from Utah women (who from 1870 could vote in Utah, one of the first places in the contiguous 48 the vote was extended to women) because of it? This all to a people who had literally left the borders of the United States for the desert to be “left alone.”

But I digress. This isn’t supposed to be a history of Utah and the lack of “gentile” attorneys seeking to protect privacy rights of oppressed people during the later half of the 19th century. That’s all water under the bridge…

This is not about people who want to be left alone. This is about the Browns–who have actively sought attention by asking the world to watch them raise their family (or families? Not sure…) ON CABLE TELEVISION. The Browns were very much “left alone” until they put their life on display on TLC for THE WHOLE WORLD TO WATCH. Only then, as they were flagrantly displaying their “alternative” lifestyle to the world for a profit, did law enforcement look in to the matter.

What were they thinking? That no one would notice? Or care?

Forehead, meet Palm.

Again, we’re talking the “principle of privacy,” here, right? If you want to keep what’s in the bedroom, and who is in there, in the bedroom, then you best keep the bedroom door closed. If you open it, you better believe someone’s going to complain. Especially if you are breaking the law.

APROPOS: the complaint can be found here. It makes seven claims for relief (Due Process, Equal Protection, Free Exercise, Free Speech, Freedom of Association, Establishment of Religion, and on 42 U.S.C. § 1983).

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9 responses to “What happens in the bedroom, stays in the bedroom…unless you open the door.

  1. Roger Magnusen

    I happen to think that if gay people can get married, then why is polygamy not legal? I mean, if we are expanding the definition, let’s open it up completely, eh? If a group of people want a marriage relationship, hey, more power.

    • Right…but why are reality show television stars claiming a right to privacy? Turley’s not even claiming he wants to end the illegality of polygamy–just the enforcement of it. That’s what legislatures are for.

  2. I don’t think the question of whether this family has sought to publicize their lifestyle has any bearing on their claim. It’s not about privacy in that sense.

    This case does take an interesting approach to the issue, but I think it will ultimately fail. The question with regards to the permissibility of laws banning polygamy has always been whether the conduct is socially harmful to the extent that it can be proscribed.

    Here, Turley is arguing, it seems to me, that there is some difference between polygamous marriages (think bigamy, which, by not challenging he seems to accept to legitimacy of proscribing) and polygamous open sexual relationships. I don’t think there’s any substantive difference at all. The harm that justifies the proscription of bigamy clearly isn’t the official state recognition of multiple marriages; it’s the harm that society believes (rightly, in my opinion) is inflicted on children and the sister spouses. That doesn’t change just because their is only one official wife. And Turley knows it. He knows that if he can make it unconstitutional to criminalize polygamy official recognition of polygamous marriage will almost certainly follow — because (as we’re seeing now with gay marriage) it is very hard to argue that additional harm results from official recognition once the conduct itself have been (even somewhat) legitimized.

    So ultimately, I think this is where society sits:

    There is a (slowly) emerging consensus that gay marriage does not result in societal harm sufficient to justify the denial of equal protection, even under rational basis review. But polygamy is still considered very harmful, likely because of its association with forced child marriages. Turley and his Sister Wives clients are going to have to defeat that perception before they prevail.

    • Curt, there’s no doubt that you are right. But I’m not talking about or evaluating the legality or the veracity of their claim. I’m assaulting their common sense. I find it disingenuous to argue “leave me alone” while hosting a reality show on television.

      • I suppose. Though I suspect they were fully aware that they might be prosecuted when they took the gig. Ultimately, I don’t think they’re saying “watch us on TV but leave us alone,” so much as they are saying, “let me and everyone like me do X.” In fact, I think it’s clear that they *don’t* want to be left alone at all. I guess what I was trying to say is the right to privacy is not really about privacy at all. It’s about being able to do what you want with whom you want. These women are just using the awkward language that the Supreme Court has given them (and maybe abusing that language just a little bit).

        I think it really emphasizes just how well thought out the case law is :) Best and brightest, and all that . . . .

    • RE: emerging consensus. I have an associate who once worked in a treatment facility for adolescent girls (mostly, those from extremely wealthy families of the type that arrived on private jets). During one discussion about polygamy (how that comes up, I do not know), she made a comment to the idea that “If consent adults can participate in gay marriage, why not allow polygamous marriage in consenting relationships between adults?” And, much to everyone’s surprise, the girl who self identified as a lesbian ran crying from the room because she had, in her eyes, just been compared to polygamists.

      Everyone wants tolerance for themselves, but is slow to give it to others. Two thousand years on, we still can live the golden rule.

  3. Daniel

    I’m sorry to say this but you misunderstand Lawrence if you think that suddenly declaring yourself to be such (polygamist with other adults, gay & lesbian with other adults) in public automatically removes your protection against the state criminalizing your private sexual and romantic relations among consenting adults. It does no such thing and to interpret it as such mean that being openly gay would result in arrests for Utah’s sodomy statute.

    Lawrence did not strike down just the same sex-only bans in the 4 states that prohibited it (TX, OK, KS, AR) or just made the “sodomy” and “crimes against nature” laws that generally applied inapplicable to gays & lesbians, while leaving the laws still applicable to opposite gender relations. It put in a zone of liberty around the idea that the government has no right to criminalize the sexual and romantic relationships between consenting adults.

    See Martin v. Ziherl for an example of this.

    Utah’s excuses are simply flat out wrong and in conflict with Lawrence. To say otherwise would expose gays & lesbians to prosecuting for being on a reality show. That is ridiculous.

    • Protection of the state has nothing to do with my argument, Gray. I’m talking common sense. If these people wanted to be left alone, they should act like they want to be left alone. They have not.

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