Dec 26, 2003  |  By: JOE CREA  | COMMENTS     

Mark Henkel, a “constitutional conservative” and polygamy advocate, said two recent gay rights victories should pave the way to decriminalizing polygamy laws. He claims the U.S. Supreme Court decision overturning state sodomy laws and a Massachusetts case that some say will legalize gay marriage in the Bay State should help polygamists.

“The government does not have the authority to be in the marriage business in the first place,” said Henkel, founder of TruthBearer.org, a Web site devoted to the decriminalization of polygamy.

Some social conservatives have argued that both decisions, particularly Lawrence vs. Texas, which found state sodomy laws unconstitutional, will send the nation down a “slippery slope” toward the legalization of polygamy and “other societal ills.”

Sen. Rick Santorum (R-Pa.) stirred up the debate in April, ahead of the Supreme Court ruling, when he said sex between two men was not constitutionally protected and was harmful to society.

“If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything,” Santorum said. “Does that undermine the fabric of our society? I would argue yes, it does.”

Utah polygamists Tom Green and Rodney Holm are currently challenging their convictions for having multiple wives based in part on the Supreme Court’s sodomy ruling. Holm’s attorney is arguing that there must be some other rational basis to ban certain behavior other than sheer moral disapproval.

Legal scholars say that while it is possible the bigamy charges against both men could be dropped as a result of Lawrence vs. Texas, their other convictions would likely remain. Green was found guilty in a separate case of child rape because his first wife was 13 when they first married and began having sex.

Holm, a former Utah police officer, was also convicted on two counts of unlawful sex with a minor.

“Yes, I think [Lawrence vs. Texas] would give a lawyer a foothold to argue such a case,” said Art Spitzer, a lawyer at the American Civil Liberties Union. “The general framework of that case, that states can’t make it a crime to engage in private consensual intimate relationships, is a strong argument.”

‘Slippery slope’
Henkel criticized his “fellow conservatives” for spearheading the “slippery slope argument,” noting that it was conservatives who “started the supposed ball rolling by involving government in marriage in the first place.”

“Marriage in this country is not defined as the union of one man and one woman,” Henkel said. “Marriage in this country is the union of three: one man, one woman and the government. Any valid Christian should be concerned about this because from the conservative Christian paradigm, that’s an abomination itself.”

Quoting biblical passages supportive of polygamy, noting that Moses had two wives and that no one in the Bible was “ever married by government,” Henkel says that “Christian polygamy,” which his group supports, has garnered steam after the recent gay legal victories.

Christian polygamy, Henkel says, is a relatively new movement, based strictly upon the Old and New Testament. He describes it as a “benevolent” form of polygamy, in which a husband might take two wives to help support them financially.

Polygamy lacks support
Despite Henkel and Spitzer’s assertions that the recent gay legal victories will be a powerful tool in court, some experts say that both decisions are unlikely to lead to the overturning of polygamy laws.

“That [slippery slope argument] is just an incendiary device by the right wing,” said Sarah Barringer Gordon, a professor of law and history at the University of Pennsylvania. “States have a significant interest in marriage and the defense of marriage, especially in Utah, which does not want either same-sex or polygamous marriage.”

Tom Green, a Mormon polygamist serving a sentence for bigamy in Utah, has argued his conviction should be overturned based on the Lawrence vs. Texas decision.

Gordon noted that there is not enough “broad, political support” for polygamy and that many of the legal battles over polygamy occurred in the 19th century.

Gordon said that conventional Mormon polygamy, based heavily on religious command, was debated in the middle to late 19th century and abandoned in 1890 when “lawmakers and the courts made it clear that the government, rather than local religious groups, would set the terms and boundaries of marriage.”

Opposing the FMA
Henkel also voiced his opposition ...