The Loadstone Rock: the Role of Harm in the Criminalization of Plural Unions

• Citation: Vol. 64 No. 6
• Publication year: 2015

The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions

Jonathan Turley

THE LOADSTONE ROCK: THE ROLE OF HARM IN THE CRIMINALIZATION OF PLURAL UNIONS

Jonathan Turley^*

ABSTRACT

In this Article, Professor Turley explores the concept of social harm in the context of two recent cases in the United States and Canada over the criminalization of polygamy. The cases not only resulted in sharply divergent conclusions in striking down and upholding such laws respectively, but they offered strikingly different views of the concept of harm in the regulation of private consensual relations. Professor Turley draws comparisons with the debate over morality laws between figures like Lord Patrick Devlin and H.L.A. Hart in the last century. Professor Turley argues that the legal moralism of figures like Devlin have returned in a different form as a type of "compulsive liberalism" that seeks limitations on speech and consensual conduct to combat sexism and other social ills. The alternative, advocated in this Article, is the adoption of a Millian approach to harm that requires a more concrete form of injury or harm to justify individual choice. In what he calls the "Loadstone Rock" of constitutional analysis, the definition of harm continues to dictate the outcome of the conflict between individual choice and social mores.

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Introduction............................................................................................1907

I. A Tale of Two Cases: The Bountiful and Brown Litigation . 1912

A. The Bountiful Litigation .......................................................... 1914
B. The Brown Litigation .............................................................. 1922

II. Compulsive Liberalism and the Harm Principle.....................1929

A. John Stuart Mill and the Harm Principle ................................ 1930
B. Social Harm and the Rise of Compulsive Liberalism .............. 1933

III. The Harm Principle Applied to Plural Unions........................1942

A. Harm as a Protection of Public Values ................................... 1943

1. Professor Marci Hamilton and Harm Under U.S. Law..... 1945
2. The Cook Testimony and Harm Under International Law 1954

B. Harm As a Limiting Principle To Protect Individual Choice .. 1960

Conclusion................................................................................................1972

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It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way . . . .¹

Introduction

The recent federal decision² to strike down the criminalization of polygamous relationships in Utah was met with a mix of rejoicing and rage. What was an emancipating decision for thousands of plural families was denounced as the final descent into a moral abyss by others.³ Indeed, former Senator Rick Santorum⁴ and Associate Justice Antonin Scalia⁵ had previously warned that the decriminalization of homosexual relations would lead to a parade of horribles, including the decriminalization of polygamy. The relatively straightforward claims in Brown v. Buhman were overshadowed by such predictions of social and legal disintegration should we succeed.⁶ Underlying these statements is a more fundamental question about the basis for

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morality legislation in the United States.⁷ This question is made all the more interesting by the inapposite result reached by the Canadian Supreme Court in Reference re: Section 293 of the Criminal Code of Canada just a couple years earlier in a case out of Bountiful, British Columbia (hereinafter the Bountiful case or Bountiful).⁸ That case involved a cohabitation law that was upheld based on the presumption of harm, inherent in plural families, to women and children as well as to the institution of marriage generally. As lead counsel in Brown v. Buhman and one of the experts heard in the Bountiful case, the difference was striking. In one case, privacy prevailed; in the other, it was morality that shaped the outcome. It is a tale of two cases that rivals Dickens, and, for privacy advocates, these cases were truly the best and the worst of times.⁹

The Brown and Bountiful cases not only focus attention on the widely practiced tradition of polygamy around the world but also the notion of harm underlying criminal provisions. The sharply divergent approach to harm was the most salient difference in the analysis under the two cases. Canada has long followed a modus vivendi approach to liberalism that embraces diversity of opinions and values in a pluralistic society.¹⁰ However, that approach was shown to be limited in the context of plural relationships in the Bountiful case. Across the border, the United States District Court in Salt Lake City reached the diametrically opposite result with a strikingly similar statute to the one in British Columbia. Much of the difference is due to the question of harm and how it is addressed within the context of morality laws.

This Article will not address the question of whether there is a general right for consensual adults to live in a plural relationship. Cohabitation is a core privacy right that is normally protected between consenting adults.¹¹ Few people continue to argue that society has a right to regulate consensual sexual relations between adults, and it is quite common for people to have multiple

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sexual partners today.¹² Indeed, from 1960 to 2006, the number of nonmarital cohabitants grew by more than 1,000%.¹³ Moreover, this Article will not explore whether polygamy is clearly a bona fide religious practice. polygamy is an ancient religious-based practice that continues to be followed by millions around the world. Many polygamists follow the practice out of secular or personal reasons distinct from religious traditions.¹⁴ Given the historical, religious, and social foundation for plural relationships, courts like the one in the Bountiful decision have upheld criminalization based largely on the assumption of harm. These courts often assert that polygamy is inherently harmful on the basis of little more than anecdotal evidence or value-driven opinions. Indeed, the courts rarely consider the full array of polygamous relationships and focus not just on polygyny but the most extreme forms of polygyny.

The question of harm has long been at the heart of philosophical theories that attempt to define when a state may legitimately curtail or criminalize the conduct of its citizens. The most famous of such theories is the "Harm Principle" by John Stuart Mill, who believed that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."¹⁵ Mill's harm principle is a foundation for many modern rights from privacy to association to speech. It is a particularly penetrating standard because it forces society to move beyond generalized notions of immorality or social harm to isolate specific harms caused by proscribed conduct. It posits that the burden rests with the

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government not just to balance rights against harm but also to establish the specific harm posed by the proscribed conduct. The scope of that harm for Mill is necessarily confined to actual as opposed to spiritual or moral harm. Otherwise, any law could be justified on a claim that the law codifies or protects morality. There is unquestionably a moral or normative element to many crimes like murder or rape. However, these crimes involve physical harm committed without consent.¹⁶ This Article focuses on consensual acts and relations of adults. These polygamists do not view themselves as harmed, but their relationships are being deemed harmful because they run against majoritarian values and sentiments.

In case after case, courts return to the question of harm: harm in interracial marriage,¹⁷ harm in same sex marriage,¹⁸ harm in plural marriage. While the first two claims were ultimately rejected, harm remains the magnetic focal point for modern analysis. It functions much like what Dickens called "The Loadstone Rock" in A Tale of Two Cities—the rock upon which inevitably all cases must break.¹⁹ It draws all analysis to the question of what is the harm of a consensual union that would justify criminal sanctions. While the criminalization of different forms of marriage—whether interracial, plural, or homosexual—was once based on open majoritarian moral judgments, modern cases and scholarship have tended to emphasize social harm. Modern jurisprudence—and sensibility—eschews direct moral dictates. This can create a thin veneer for what are really moral dictates. Normative or moral claims underlying criminal sanctions are sometimes justified on loose claims of social harm, such as the effect of certain acts in degrading or marginalizing particular groups. This nexus between social harm and criminal sanctions is placed into sharp relief when courts seek to satisfy tests for the constitutionality of the underlying laws. In the United States, the harm analysis is unavoidable,

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regardless of the test applied, from strict scrutiny to intermediate scrutiny to rational basis standards. While the burden differs significantly, they all inevitably arrive at the Loadstone Rock of harm. Even the mere demand of a rational basis requires some nexus to a concrete harm—a linkage that was found missing in Brown. Moreover, a Millian view of harm suggests a broader use of "rational basis with bite," which is often cited in animus jurisprudence in areas like equal protection.²⁰ If "the hallmark of animus jurisprudence is its focus on actual legislative motive,"²¹ the...