My favorite TV show, “Big Love,” is back on the air for a new season.
If you’re not familiar with the show, it’s a family drama about a man in Utah, his three wives, and their assorted children. A frequently-used device to drive the plot is their ever-present fear of criminal prosecution for polygamy.
My hope is that the man does get prosecuted for polygamy, and the show’s producers hire me (at a lucrative rate, of course) to craft a constitutional defense for him.
In the landmark case of Reynolds v. U.S., 98 U.S. 145 (1878), the U.S. Supreme Court held that the criminalization of polygamy did not violate the Free Exercise rights of those who believe that God wants them to have lots of wives.
I’m not interested in challenging that precedent, though. I want to make the argument that it violates the Equal Protection Clause because fornication is no longer illegal.
In 1878, every state in the union prohibited fornication, among other sexual acts. But that is no longer the case. And with the repeal of every other law governing sex between consenting adults, the bans on polygamy have lost whatever rational basis once existed to support them.
Suppose that I have a really good weekend and fornicate with three different women. The law can’t touch me; Wisconsin’s criminal prohibition on fornication was repealed in 1983, and it would be held to violate the right to privacy even if it was still on the books.
Now suppose my luck turns, and all three women get pregnant. The law still can’t touch me; fornication causing fertilization is a fundamental liberty.
All the law can do is drag me to court, order me to pay support, and then, if I don’t pay, and the failure is intentional, they can prosecute me for failure to pay child support. But what I did to get in this position in the first place is all constitutionally protected.
Now suppose, I do what the nice man on the TV show does — I marry all these women, buy three adjacent houses with one wife installed in each, and support them all, financially and emotionally.
If I do that, I’m guilty of violating Wisconsin’s bigamy statute, sec. 944.05, a Class I felony.
I cannot understand how a legal distinction this absurd could possibly survive an equal protection challenge, even under the most pro-government rational basis review.
Some of you may remember the Wisconsin Supreme Court case, State v. Oakley, 629 N.W.2d 200 (2001). Oakley fathered nine children with four different women, and supported none of them. Convicted of failure to pay support, the judge ordered that, as a condition of probation, he father no more children unless he shows ability to support them, and that he is supporting the ones he already has.
A four-three majority of the court held the condition of probation was constitutional. A concurrence by Justice Bablitch remarked, “Here is a man who has shown himself time and again to be totally and completely irresponsible. He lives only for himself and the moment with no regard to the consequences of his actions and taking no responsibility for them.” Oakley, at par. 33.
Justice Sykes agreed with this assessment of Oakley personally, yet wrote in dissent, “this condition of probation is an overly broad encumbrance on Oakley’s right to procreate, and therefore cannot stand.”
Unquestioned in any of the opinions the case produced is that fathering nine children with four single women is itself a fundamental right. But, fathering nine children with four wives is a felony.
No rational basis can possibly exist for a rule which says, whatever Oakley’s moral shortcomings, in the eyes of the law, Oakley is less culpable than the nice man on the TV.