December 14, 2013

The Words We Use for the Stuff We Do

I noted this case a ways back (here and here) and now the decision is in, the court reaching, as far as I can tell, the conclusion that always seemed the obvious one to me:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Essentially the statute was being applied in such a way as to punish people for their vocabulary when they chose to refer amongst themselves to cohabiting females as “wives” rather than some other term like “lovers” or “girlfriends” or, I don’t know, “concubines,” etc. But of course you can’t criminalize the words people have in their heads and say to each other while they engage in perfectly legal conduct. It’s a spectacularly nutty notion.

Ann Althouse:

Call it a marriage or call it a sandwich. Imagine that God blesses your relationship or imagine that your kitty cats brought you together. It's no proper concern of the government's.
If you’re ideologically mad enough at Mormons and other traditional religionists of that sort to think it’s a good idea to crack down on them anyway — and I know people who think this — imagine the state doing the same to “poly” households, “leather families,” “friends with benefits,” et al. It’s no different. People can call anything a marriage if they like. There’s this lady who “married” the Eiffel Tower, I’ve heard. I've even been known to refer to girlfriends as “honey” even though they're not, so far as I have been able to determine, actually made of bee vomit. Sue me. No, don't.

ADDED: Orin Kerr read the actual opinion and says its reasoning is screwy; David Kopel disagrees, mostly. The bit quoted above seems clear enough to me, but there are evidently abstruse issues in the background, owing to the complex (and I'm sure fascinating) history of the suppression of polygamy in Utah and the legal storms kicked up along the way. I'm surprised that so many of the lawyers and lawyer-ish types over at Volokh's place believe that bigamy, per se, can result from imaginary as well as legal second marriages. I'm sure they know what they're talking about, and it won't be the first time that lawyerly opinion flies in the face of common sense (as determined by me, obviously.)

The notion that pretending to do something is as much a crime as actually doing it still seems profoundly loopy to me, particularly when you restrict your prosecution of the imaginary crime to a single minority. Everyone else gets to play house as much as they want. Why shouldn't they?

Posted by Dr. Frank at December 14, 2013 06:56 PM