Waddoups finds it impossible to conceive that any rational person would think there could be harms from the creation of a visible public subculture of polygamy, regardless of whether the marriages are state-sanctioned. To him, such a claim is not just wrong, it is literally unintelligible: “The court agrees with [Utah supreme court] Chief Justice [Christine] Durham that ‘the state has an important interest in regulating marriage, but only insofar as marriage is understood as a legal status

Judge Clark Waddoups, in striking down Utah’s ban on “spiritual” polygamous marriages, noted that the Republican party was founded with the goal of eliminating the “twin relics of barbarism” — slavery and polygamy.

He didn’t mean it as a compliment to the GOP.

Judge Waddoups’s decision, issued last December, was finalized this week and now heads (presumably) to the Tenth Circuit. The right to enter legally recognized polygamous marriages is not on the table in this case, only whether states can criminalize those who live in what are termed “spiritually polygamous unions.”

Waddoups, appointed to the federal bench by George W. Bush in 2008, is clearly deeply hostile to laws that limit marriage to monogamous couples. Laws against polygamy are not just wrong, they are also racist, he writes in his ruling.

Why, he asks, did the United States oppose polygamy so fiercely that it hounded Utah Mormons into abandoning the practice as a condition of statehood? Using Edward Said’s work as a conceptual framework, Waddoups answers:

19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”

When he notes that the Republican party was founded in opposition to slavery and polygamy, he doesn’t see in that pairing the irony of his casting moral opposition to polygamy as racism.

Republicans of that era linked the two together, not because they were passionately committed to racism but because they saw in the American political regime a foundational and fundamental advance in human civilization, one whose historical roots were in Europe. (Why is it that even today, when Supreme Court justices wants to cite the opinions of foreign courts as morally informative, they cite European courts, not South American or African ones?)

In the 19th century, monogamy stood as the marriage system most consistent with economic progress, the rights of women, and a democratic form of government. That continues to hold true today.

But Judge Waddoups finds in this intellectual tradition only one thing: racism.

In an 1890 decision, the Supreme Court called polygamy “a return to barbarism” that was “contrary to the spirit of Christianity”: “Polygamy leads to the patriarchal principle,” which, “when applied to large communities, fetters the people in stationary despotism,” the Supreme Court argued.

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