For those who argued that the Supreme Court decision striking down the stupid sodomy laws with Lawrence v. Texas would not lead to challenges for gay marriage and polygamy, Jonathan Turley's column today defending polygamist Tom Green should disabuse us of that illusion:

Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.

If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Turley launches into a defense of libertarianism regarding polygamy that at once decries the religious objections to it and then offers religious solutions to such sticky issues as property rights on dissolution. It's a rambling, sometimes self-contradictory amicus brief encouraging the Supreme Court to nullify 200 years of legal thought in America on marriage, much the same as challenges for gay marriage have done. And they all can be traced back to the foolhardy decision by the present Supreme Court to elevate personal choice between consenting adults to the same level as protection against unreasonable search and seizure, an equation never dreamed of by the founders.

I'll lay my cards on the table. I don't see anything particularly wrong with gay marriage, as long as a majority of voters approve it. I also think that the Texas sodomy laws were about as stupid as you could have found in any penal code. [Insert Beavis laugh at "penal code".] However, the Court used a sledgehammer when a flyswatter would have prevailed, and the consequences of their decision has led -- logically -- to the appeal of all anti-polygamy statutes. If in fact the Court applies the same thinking to polygamy as it did to the sodomy statutes, then they have no choice but to free Green and declare all anti-polygamy statutes null and void.

Perhaps that is the Libertarian stance. Maybe that's for the public good, although I highly doubt it. But the court once again has set itself in a position where its own precedent requires it to legislate, a usurpation of their Constitutional authority just as much as Lawrence was.

Not everything that transpires between consenting adults is legal or should be legal, let alone given Constitutional protection. But that's where the SCOTUS has left us. They should take the opportunity to reverse their precedent and acknowledge the error they made in Lawrence, before Constitutionally guaranteed prostitution and adult incest come next.

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