November 21, 2006

"Consciously taking tactics from the gay-rights movement, polygamists have reframed their struggle..."

They speak in terms of freedom and individual choice -- not religion. Good move, considering the audience they are most likely to persuade.
The U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, ... aided polygamy's cause because it implied that the court disapproved of laws that reach into the bedroom.

Since then, liberal legal scholars, generally no friend of the polygamists' conservative-leaning politics, have championed decriminalization. One of them is Jonathan Turley, a law professor at George Washington University who has written two op-eds for USA Today calling for the legalization of bigamy -- and same-sex marriage.

"I find polygamy an offensive practice," said Turley, who has become something of a celebrity among polygamists in Utah. "But there is no way its practice among consenting adults should be a felony."

I think it's rather obvious that it shouldn't be a crime for adults to live together and call themselves married. As long as it's not about having more than one marriage treated as a marriage in the legal sense, forcing anyone to marry, defrauding someone, or having sex with minors, the government should leave people alone.

148 comments:

David E. Harkins said...

i've wondered about this all along--if it's arbitrary to say man and woman is ok but man and man/woman and woman isn't, how is it any less arbitrary to say 2 is ok but 3 (or 4, or 7) isn't?

Simon said...

That slippery slope just keeps getting slipperier, doesn't it?

That's the problem that I have with same-sex marriage. The objection isn't to same-sex marriage per se, because I basically agree with David Brooks that there is a reasonable case that gay marriage promotes traditional conservative social values. The problem is that once you cast aside the role of tradition in defining what marriage is, you can never get it back. There will be no principle to fall back upon, nothing to stand against further changes and re-definitions. I feel bad that homosexuals are being asked to pay the price for that, but life isn't fair, and the institution of marriage is too inherently valuable to risk being undone.

David E. Harkins said...

"the institution of marriage is too inherently valuable to risk being undone."

i think this is 5% true, 95% bulljive. yes, marriage is very nice and can produce stable families, but why should married people be treated differently (and better) in the eyes of the law? and i'm a happily married man, but i don't see how i'm part of "inherently valuable" club that makes me more worthy in the eyes of society or the law.

this is why i ultimately voted against the amendment, and where i think there's a legitimate 14th amendment claim--from unmarried people of all stripes. rather than let more people into the club, let's treat everyone--gay, straight, polygamists, single--equal in the eyes of the law. i'd love to see a proposed amendment that prohibits discrimination (positive or negative) on the basis of marital status.

Mortimer Brezny said...

Utah's law is very, very strict. It isn't a slippery slope to say Utah's law is a bridge too far but other bigamy laws are okay. An interpretation which Ann's comment permits.

Liam Colvin said...

"I think it's rather obvious that it shouldn't be a crime for adults to live together and call themselves married. As long as it's not about having more than one marriage treated as a marriage in the legal sense..."

Used to be, you didn't have to justify the concept of marriage as functional unit of western society. It was accepted that it was for rearing children, and married couples that didn't have children were looked upon with puzzlement or even mild suspicion.

Now we've advanced the notion of marriage to being a lifestyle choice and a civil right. You are clearly discriminating against them with your restriction of legal recognition. What are you afraid of?

I am puzzled by your other limitation: why would you limit marriage to people of the age of "consent"? Isn't that too an outmoded concept?

Please educate me...

Ann Althouse said...

I'm not talking about the equivalent of gay marriage here. This post is not about requiring the government to extend recognition to the marriage. Please address the topic of whether the government should prosecute people criminally for living together and calling what they are doing a marriage. Let's not repeat discussions we've already had many times. Don't trot out the usual gay-marriage-is-a-slippery slope arguments here. This is a new topic, so let's keep it focused.

Simon said...

Ann,
Okay, the argument for government enforcement is that failure to do so permits the taking root of a tendancy which might, in time, come to be perceived as normal or acceptable behavior.

Ann Althouse said...

Liam: Only the first marriage is a legal marriage. Beyond that, it is just people having sex with each other. That isn't the government's business usually, but it sure is if a child is involved. We could debate about what the age of consent should be, but polygamists don't get special privileges. I'm only talking about treating them the same and not discriminating against them because of what they say and believe about their relationship. Calling it marriage to a person below the age of consent is just another way to trick a child into doing what would be consensual in the case of an adult. The law says the child cannot consent, which makes it rape, a crime.

The issue of entering into a legal marriage with a very young person is a separate one, and I am not expressing an opinion on that other than to repeat that I think very young persons need to be protected from predatory adults. I believe the laws in this area involve the parents consenting to the marriage and that we're not talking here of changing the law to permit something that has been forbidden. This is an area of traditional law that one might want to change to be more protective of children.

Balfegor said...

I'm not talking about the equivalent of gay marriage here. This post is not about requiring the government to extend recognition to the marriage. Please address the topic of whether the government should prosecute people criminally for living together and calling what they are doing a marriage.

I don't know -- does anyone actually oppose decriminalising social (as opposed to legal) polygamy?

Strictly speaking, though, I think polygamists usually get prosecuted under the bigamy laws only when (a) they've got child brides, or (b) when they're actively claiming legal rights from all their marriages. No? I know the statutes are generally a lot broader than this, banning mere cohabitation, or even just "purporting" to marry another person. But all the cases I've heard of where it's been prosecuted have been really egregious, involving child marriages and tax fraud.

Liam Colvin said...

Well then, I'll frame it this way. Like gay marriage, it trivializes marriage as foundation of western soceity.

As it does so, it removes the stigma of not having children. Is some people this is what it takes to get them to cross over that fine line and get married and have kids. I'm not talking the Handmaiden's Tale here, I'm talking about people making decisions on their own.

Now, somehow, we've taken the idea of not having children as being just as valid a choice (choice mind you - I'm not talking stigmatizing those who can't conceive) as having children.

Allowing the dilution of a bedrock institution like marriage for vague highminded concepts like legalizing polygamy is at best silly and at worst irresponsible.

I am sure this will appear quite backward and 1950's but hey: that's why I'm a conservative.

Ann Althouse said...

Simon: "Okay, the argument for government enforcement is that failure to do so permits the taking root of a tendancy which might, in time, come to be perceived as normal or acceptable behavior."

That is one of the most illiberal things I've seen written in the comments to this blog.

Let me quote Thomas Jefferson:

"Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds, that Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain, by making it altogether insusceptible of restraint:... That the opinions of men are not the object of civil government, nor under its jurisdiction: That to suffer the civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty; because he being of course Judge of that tendency will make his own opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own: That it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order: And finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to errour, and has nothing to fear from the conflict, unless by human interposition, disarmed of her natural weapons, free argument and debate; errours ceasing to be dangerous when it is permitted freely to contract them."

That's utterly fundamental for Americans across the political spectrum (even if you opt out of the divine source).

Anonymous said...

Okay, Ann, in that case, well, there's not much to disagree with. Consenting adults ought to be able to do what they want to do in the privacy of their own homes, as long as no one else is harmed.

But I'm with Simon in that government does have a say should private behavior somehow spill into the public sector and cause harm. His example of the normalization of what is clearly deviant behavior - deviant in the sense that polygamy has already been tried in the past and judged unacceptable in promoting the general welfare - seems like justification enough for government intrusion.

Anonymous said...

I see no reason for limiting marriage to one and one anybody in a secular society. In a culture implementing Jewish and Christian values, you have a little more to stand on. But then there is that pesky Old Testament with Solomon and his myriad wives and concubines. While he may have been wise indeed, little Solomon was just plain greedy.

From the New Testament, church leaders were preferred to be the husband of one wife. But in a secular society, what can you say besides "we have always done it this way?"

And not only are polygamists taking this approach, pedophiles are seeking to normalize their illness.

Happy times?

Trey

JohnK said...

"I think it's rather obvious that it shouldn't be a crime for adults to live together and call themselves married."

The problem is that that polygamy invariably leads to child marriage and horrible misogyny. Look at it this way, how many adult women are going to agree to polygamy? Few if any. Polygamists get around this by taking child brides and forcing them into the lifestyle before they have an opportunity to make an informed choice. Look at any polygamist society and you will find child marriage.

Then of course there is the numbers problem. If you marry all of the young girls to old men, what do you do with the young men? The answer in many polygamist cults in the American West is to dump teenage boys in large cities and leave them to fend for themselves. The answer in the Arabian peninsula is to send the young men off to die in the Jihad in Iraq or Afghanistan.

Marriage is a wonderfully stabilizing influence on society and men in particular. When a man takes more than one wife, he deprives another man of the chance to marry and experience that stability. This is why polygamist societies are generally unstable, violent and misogynistic.

Basically polygamist, especially the Mormon variety in the west are scum of lowest order. They marry female children and abandon male children to four winds, all to support the disgusting sexual desires of a group of old perverts who want multiple wives replacing each one with a new 12 year old as she gets old. That is the reality of polygamy. It is not a victimless lifestyle choice like homosexuality. It is a disgusting immoral institution and the people who practice it need to ruthless oppressed by society. Yes, Ann, it should be a felony to be a polygamist.

Balfegor said...

RE: Liam Colvin:

Well then, I'll frame it this way. Like gay marriage, it trivializes marriage as foundation of western soceity.

As it does so, it removes the stigma of not having children. Is some people this is what it takes to get them to cross over that fine line and get married and have kids.

I'm sorry, wait . . . polygamy does this? Does this make sense to anyone else? One of the primary motivations behind polygamy, at least in the Chinese-cultural sphere, was procreation -- having lots and lots of children, so as to ensure your family didn't die out, and people would be around to carry on the family rites. If anything, in polygamous societies, the stigma of failing to reproduce seems to have been much, much greater than anything in the monogamous societies of Europe. Indeed, if anything, after the East Asian nations converted to legal monogamy (i.e. removed legal provisions for concubinage -- I think Hong Kong was the last, in this respect, only jettisoning the Qing Code sometime in the 60's), their birth rates have plummetted to sub-European levels.

Cedarford said...

Excellent! Muslims will love this! Harems, here they come! Now, if poligamy can be coupled with Muslim divorce laws where the woman basically gets nothing of property and only a modest stipend, we are in real man's paradise!

Thanks to the two gay guys that buggered one another in Texas, and O'Connor the vapid ditz of SCOTUS and her 4 amigos for starting this ball rolling.

It might spread past Muslims and Mormons into the latest Rich Man's fad. Why have one trophy wife when you can have 3-4?

And to the working poor population. If a woman is a government or university employee that gets great health benefits, why shouldn't she marry 16-20 men who are not in jobs that provide health care benefits, in return for whatever resources and connubial bliss they can give her. Or women. Or a mixture of men and women that can get that full or 80% covered medical and dental deal?

Next up after gay marriage and polygamy? Maybe beastiality.

I mean, if the sheep is evaluated by an animal behavior expert as consenting and enjoying it...what's the harm? Unlike gay anal sex, no chance of disease- spreading that costs the US taxpayer tens of billions from AIDs and other rectally transmitted afflictions.

knoxgirl said...

Well, I concede (grudgingly) that polygamy should be legal, but I sure as heck would never want it to be perceived as "normal" or "acceptable." Another example where shame should be put to good use.

Balfegor said...

Re: Cedarford:

It might spread past Muslims and Mormons into the latest Rich Man's fad. Why have one trophy wife when you can have 3-4?

They have, basically -- you just have to fire the current wife before you hire the new one.

And to the working poor population. If a woman is a government or university employee that gets great health benefits, why shouldn't she marry 16-20 men who are not in jobs that provide health care benefits, in return for whatever resources and connubial bliss they can give her. Or women. Or a mixture of men and women that can get that full or 80% covered medical and dental deal?

I don't think we're talking about legal recognition of polygamy, just legalisation of polygamy -- i.e. that polygamists will stop getting thrown in jail for carrying out ceremonial polygamous marriages; not that the government accords them all the benefits of monogamous marriages, extended to polygamous partners. There's a rather significant difference there.

Anonymous said...

What's wrong with "having more than one marriage treated as a marriage in the legal sense"? Do you have a moral objection? Or is it the complexity of the required modifications to various legal arrangements?

Simon said...

Balfegor,
"I don't know -- does anyone actually oppose decriminalising social (as opposed to legal) polygamy?"

Here, it is impossible to not talk about the slippery slope. First they will demand decriminalization and normalization -- that is, social acceptance of their practise (which is, by the way, inherently misogynist - although one will hear not a word from NOW about this, just as one hears not a word from NOW about gender apartheid in Islamic culture). Having attained it, they will then raise the claim, perfectly understandable in light of Lawrence, that they are discriminated against by being denied the legal benefits that will have by then have been conferred on gay marriages. And there will be no argument against it, because having already discarded the role of tradition in defining the marriage, by what logic can we possibly say "sorry, that tradition was different"? Every marriage -- every relationship -- is different. Every snowflake is unique, but it is still a snowflake. A raindrop may be a beautifully-formed raindrop, but it is not a snowflake. What these people want is to have the definition of a snowflake expanded to include raindrops - but doing so will open that status to any other form of precipitation - if raindrops, why not hailstones?

I find myself less and less able, lately, to justify having balked at the conclusions of Scalia's Lawrence dissent.

John said...

Given that half of marriages end in divorce, and that we see a parade of celebrities getting married and divorced in under a year, if anybody's undermining the institution, it's heterosexuals.

Doyle said...

Good move, considering the audience they are most likely to persuade.

[Barf]

Simon said...

Ann, if these laws are so fundamentally un-American, why have they existed as long as has the Republic? What was the premise for conditioning Utah's admission into the Union on the banning of polygamy other than moral revulsion towards bigamy? I doubt that it was the feminist argument against polygamy that carried the day, no matter how valid that may be - it was because at that time, we believed as a society that there are some activities that are so far beyond the pale, so utterly unacceptable, that it is acceptable for the community to enforce an affirmative rejection of those practices.

There are very few areas, I think, where I buy into what might be considered the cultural conservative stance, and I never like to disappoint you, but this is one area where a respect for tradition and a practical concern for the illimitable consequences counsels concern. I'd also note that I think other commenters are precisely right to bring up the issue of Islam. A community can and should defend itself against the encroachment of a hostile and alien sense of morality, and to the extent that I think the logic you're advancing would disarm us to do so, I can't agree with it. Tolerance, surely, has limits.

Liam Colvin said...

"Ah do love spirited verbal intercourse." - Foghorn Leghorn

Re: polygamy being a good way to reproduce - please refer to the comment that polygamy is damaging to women and children. I completely agree. Let's also remember that in the last, oh I don't know, say 1000 years, monogamy has pretty much been the norm, pretty much world wide. Concubinism aside, thank you. So lets make sure we note that the exception here does indeed prove the rule.

I grew up in Ann Arbor and saw the result of the "pioneers" in alternative relationships: broken kids and failed relationships. Tragedy and emontional damage.

Re: not recognizing and not punishing "informal" polygamy. Same difference. Still causes problems with the deritus of a faulty relationship. Even worse, there is no reason for particular psuedo-spouse to hang around. Thus emontional ties between children and - crikeys, how to phrase the farce: "parenting units"? - are broken and kids are screwed up.

We are missing the lessons of excessive liberalism (note the word "excessive") in Europe. Crashing birthrates, colonization by "guest workers". I am not a nativist. I just don't want my kid's kids to be a statistically insignificant minority in their own country.

VICTOR said...

"obvious" is right!

Icepick said...

Ann, I agree that child marriage and pedophilia are really separate issues to polygamy. However, I would point out that something you wrote in a comment can also be interpreted in another light.

Only the first marriage is a legal marriage. Beyond that, it is just people having sex with each other. That isn't the government's business usually, but it sure is if a child is involved.

Children are also the result of sex between consenting adults. Say a man has a legal bride, and takes another into his home. He calls her his wife in name, and the first wife accepts her as such, but no legal documents are filed. What of the children that come from this second liaison?

Beyond questions of social acceptance of bastardry (there is high social acceptance of this in the current era), there is the question of who has legal responsibilities for that child. Clearly the biological mother and father have responsibilities, but what about the first wife? She has acquiesced (or perhaps even encouraged) this arrangement. Perhaps over several years she will spend a good deal of time raising and/or supporting that child. When a (legal or extra-legal) divorce happens, who has responsibility for the child? Will the first wife be held legally accountable for supporting that child? Will she have visitation rights? It's not impossible to imagine a scenario where she might want custody of the child of her husband and his second wife, assuming that she’s the one leaving the relationship.

By this time the matter will end up in the courts, which will then have to settle the matter. The man's relationship with his second wife is virtually a common law marriage at this point. Granting this arrangement any kind of social acceptance will ultimately end up with these kinds of cases in the courts. Then it won’t be about the government leaving people alone, as the people won’t let the matter rest.

Simon said...

BTW, I think it's also important to note that when you're talking about the founding fathers' views on religious tolerance you have to consider the context of the time. You have to remember that they were dealing in a world where divisions between protestant sects were real, important and loomed large - but ultimately, people were quibbling over the fine details of a broader framework that ran the gamut from a vague deism through various forms of Christianity. And in fact, at that time, you're mainly talking about different protestant sects. So when they're talking about the toleration of different religions and their practices, they had in mind tolerating the diversity between allowing quakers and methodists and so on to worship God in the forms common to those sects; I really doubt that they had in mind the free licensing of Sharia law.

Is the language that the framers adopted bigger than the culture that adopted it? Yes, of course. But -- and since we're quoting Jefferson at each other -- recall that Jefferson also wrote that "[o]n every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Even if you don't believe that's the proper method to construe the Constitution, it is surely imperative to follow that guidance in understanding the scope of abstract and freestanding statements by individual framers.

Icepick said...

And for the record, although we have been focusing on polygyny, there's no reason we can't be referring to any other form of polygamy, such as polyandry or group marriage.

Personally, I don't think I've ever met anyone from a religious sect that wanted this type of arrangement, but I've know a few Heinlein fans through the years that thought that group marriage was a great idea. The drive for this sort of thing will come not just from religious extremist types, but also from various libertarian (and libertine) groups.

Simon said...

John said...
"Given that half of marriages end in divorce, and that we see a parade of celebrities getting married and divorced in under a year, if anybody's undermining the institution, it's heterosexuals."

I don't disagree. But, are you wiling to follow through on the conclusion that flows logically from that statement: to cut back on "quickie divorce" and "no fault" laws? I really doubt that there is much support for the former, and any at all for the latter.

CB said...

I agree with a lot of what simon wrote at 9:20. It's incredibly foolish to think that advocates of polygamy will stop at decriminalization. Everything in politics is a slippery slope; ignore that at your peril.
I think we may already be on the way to drastically altering our domestic relations law. Tax benefits will be the least of our worries: intestacy and joint tenancy--fundamental elements of Anglo-american law--will be thrown into uncertainty, along with child support and custody, etc.

Anonymous said...

On the pure physical questions, I don't see a very slippery slope here. Consenting adults can engage in whatever private behavior they want to. To me, that's a clear principle, with only one tricky aspect: whether people who are related should be permitted to be intimate.

As to the legal question, i.e., should polygamous marriage be allowed, the question should be just as easy, except for all the absurd regulatory aspects that have been imposed by the government over the years. So, one answer is to get the government out of all of this (e.g. no government licensing of marriage).

Internet Ronin said...

No slippery slope here, just a very dark and deep abyss. Pardon me, but I'm running late for my wedding to my mother.

Balfegor said...

Re: liam:

Let's also remember that in the last, oh I don't know, say 1000 years, monogamy has pretty much been the norm, pretty much world wide. Concubinism aside, thank you. So lets make sure we note that the exception here does indeed prove the rule.

Well, when you say, "monogamy," what do you mean? In a certain sense, because of the natural imbalance of a peaceful society in which rich/successful men have many wives, but the gender ratio at birth is approximately 1:1, you're going to have an average marital ratio of one man to one woman, counting the unmarried.

But for most of the past 1000 years, India, China, Korea, Japan, the various Islamic Caliphates, most of Southeast Asia, and most of Africa have all had legal systems of or closely resembling polygamy (i.e. the concubinage system in China, Korea, Japan, etc.) India, China, and the Caliphates alone make up more than half of the global population. It's only in the past 100 or 200 years, I think, that monogamy has become normative outside of Europe. I wouldn't necessarily say that polygamy was the "norm," in these countries or systems, because peasants couldn't afford multiple wives and an army of children, anyhow (I recall some asides on this point in the Jou Pu Tuan). But neither was monogamy the norm -- the system was simply polygamy, with a lot of people too poor to afford more than one wife.

Icepick said...

Balfegor wrote: I don't think we're talking about legal recognition of polygamy, just legalisation of polygamy -- i.e. that polygamists will stop getting thrown in jail for carrying out ceremonial polygamous marriages; not that the government accords them all the benefits of monogamous marriages, extended to polygamous partners. There's a rather significant difference there.

But what's to prevent these polygamous partners for suing for these rights afterwards, similar to the palimony cases in California?

chickenlittle said...

At a a crude level, marriage is a tax and benefit franchise open to those who play by certain rules. We have the rules for a reason as "unfair" as they may be.

For the sake of argument, what if an employer were compelled to enroll 3 dependent wives with children? What if the patriarch were granted lower taxes, in a society which will likely move in the direction of such breaks to the fertile? Morals aside, these acts have fiscal consequences, which impact business and transcations. For such reasons, I support government intervention in what constitutes a marriage.

CB said...

Icepick beat me to it at 9:40. That is exactly the sort of mess we should be prepared for. I don't know, maybe it will be a good thing (more billable hours for me!), but don't be surprised when it happens.

Mortimer Brezny said...

I know the statutes are generally a lot broader than this, banning mere cohabitation, or even just "purporting" to marry another person.

That is exactly why they should be struck down. The law -- as it is -- is too broad.

Simon,
Yes, these laws are old. They are old because hatred of Mormons is old and Utah couldn't enter the Union without agreeing to pass laws that discriminated against Mormons. That mistake should not be permitted to continualy stain us. In this case, the age of the laws only proves how out of step with American values they are.

There is no originalist case for these laws. (And Scalia has admitted as such.)

Anonymous said...

David Harkins said:but i don't see how i'm part of "inherently valuable" club that makes me more worthy in the eyes of society or the law.

Just because you don't see it, David, doesn't mean that it's not true. Children raised in two-parent families fare better, across the board, than children who are not. It may seem insignificant, but the ripple effect is huge.

To the topic at hand: How is anyone surprised by polygamists adopting same-sex marriage advocates' tactics? Conservatives have been pointing out that slippery slope, and been derided for it, ever since same-sex marriage became an issue. It appears the slope is not just slippery but also steep and rather short.

Regarding polygamy itself, I can't believe any self-respecting woman would choose it for herself. HBO's Big Love did an excellent job of portraying how difficult life was for everyone involved, but most especially the women. Society as a whole should continue to stigmatize polygamy and ridicule anyone who advocates for it.

Balfegor said...

In this case, the age of the laws only proves how out of step with American values they are.

Uh, right. And that darn Constitution -- geez, 200 years if it's a day. So out of step with American values.

JohnK said...

"There is no originalist case for these laws"

Other than the fact that no founder would have ever agreed to legalize such things much less considered them a right. The laws had more to do than dislike of Mormons. Yes, people disliked Mormons, but the Mormon's practice of polygomy had a lot to do with that. It is not as if everyone was fine with polygomy and just turned against it because they hated Mormons. They hated the Mormons because they hated polygamy.

Mortimer Brezny said...

Strictly speaking, though, I think polygamists usually get prosecuted under the bigamy laws only when (a) they've got child brides, or (b) when they're actively claiming legal rights from all their marriages. No?

The answer is not recently. I read about some cases in Time magazine involving brides over the age of consent. And the second "marriages" were not legal marriages; it was just cohabitation and religious belief.

Basically, it's targeting people for consensual sex within a particular religious framework. If we're not going after consensual sex, then it seems we're just going after the religious framework.

Mortimer Brezny said...

Other than the fact that no founder would have ever agreed to legalize such things much less considered them a right.

Originalism is based on original public meaning, not the specific intentions of particular founders.


The laws had more to do than dislike of Mormons.

Actually, you disprove your own argument when you say "They hated the Mormons because they hated polygamy." The dislike targeted by the law was synonymous with their dislike of Mormonism. You have only proven my point.

Simon said...

Mortimer Brezny said...
"There is no originalist case for these laws. (And Scalia has admitted as such.)"

The originalist argument for these laws being Constitutionally valid -- which is not the same thing as a normative argument for their existence, on which subject originalism has nothing to say -- would probably be that if they existed at the time of ratification, it is hard to see how they can possibly be unconstitutional. I do not believe in an evolving Constitution; it's value is precisely that it stands still, that it is the rock to which the polity is anchored. The idea that a class of laws can be thought Constitutional for two hundred years and all-of-a-sudden not be relies on one of two premises: either you think the Constitution has changed, or you think that for two hundred years, nobody noticed.

I'd be interested to see the citation for where Scalia has said that, given that one of the overarching themes of his jurisprudence has been the use of tradition to impart meaning to ambiguous text.

Pogo said...

Harvard law Professor Charles Fried's new book Modern Liberty , contains achapter chapter entitled "Sex" in which he discusses this dilemma, focusing on freedom to choose thus:

"Liberty teaches us that [prostitution ] if that's what some people want to do, we may expose and mock them. And the government does not need to underwrite what they do by, for instance, licensing and certifying prostitution or even enforcing contracts for prostitution. But liberty tells us to stop short at making them criminals."

and later

"Punishing adult gays for the way they choose to have sex is a deep, obvious, and cruel offense against liberty - as the Supreme Court has only recently and belatedly recognized. Government must stay out of their lives, and it is a mark of free societies everywhere that that is what it does.

But on gay marriage he writes (and I think that all this applies equally well to polygamy):

"If government does not disadvantage gays for what they do in bed, I do not think liberty demands it go further and celebrate it. That too is a question of liberty. ...Gay marriage -unlike civil unions, which allow any two persons to make legal arrangements combining their property and other material rights- is a kind of civil blessing asked of the population as a whole, and though people may (and perhaps should) be willing to give that blessing to gays as well as straights, I balk at courts forcing them to do that. That is the difference between courts in the name of liberty protecting gays from prosecution and persecution no matter what the population feels about them, and requiring this extension of the institution of marriage."

Fried adds that that step should only be taken by the people's vote. Anyway, the argument is a sound one, and applies equally to polygamy.

Icepick said...

For the sake of argument, what if an employer were compelled to enroll 3 dependent wives with children?

Employers would simply stop offering health & welfare benefits at that point. (Here I speak with some authority, as I work in employee benefits fora large company.) There is no way a company would want to get on the hook like that.

The more interesting case would be on the retirement side. Anyone here ever work with QDRO's on pension benefits? If you have, you can imagine the kind of nightmare a group marriage would create. (CB, I didn't even outline a very difficult scenario. I've thought of much worse back in my actuarial days!) From a purely selfish perspective, this thing must be nipped in the bud NOW!

Mortimer Brezny said...

And that darn Constitution -- geez, 200 years if it's a day.

I think you missed the "in this case" part. I didn't say all old things are out of step with contemporary values. My point was that these laws were out of step with American values SINCE DAY ONE, and so the 200 year period is not proof of a venerable tradition of anti-polygamy. It's just long-standing discrimination.

I'm not a living constitutionalist.

Simon said...

To add to JohnK's point - note that despite this apparent hatred of mormons, nobody banned mormonism. Nobody put a stop to any aspect of mormon behavior other than bigamy. And in the case of bigamy, all that happened was that the free exercise clause was not construed to protect a class of persons from a generally-applicable law, and that is precisely the right approach. Mormonism has survived - thrived, even - without polygamy. So I think the idea that anyone was just "out to get" mormons is ridiculous.

Liam Colvin said...

I haven't read the book, but I endorse Prof. Charles Fried's comments.

Hear hear...

Fitz said...

"Since then, liberal legal scholars, generally no friend of the polygamists' conservative-leaning politics, have championed decriminalization.'

This neatly avoids the real issue and motives of this country’s “legal scholars” {read – legal elites ensconced in our most prestigious universities}

People like Turly are not just expressing some limited minority opinion…
And Ann’s de-criminalization, live & let live approach is a chimera also.

My Law School’s family law department was staffed exclusively by three lesbian polymorists.

If multiple family forms being privileged must include traditional polygamist sects & same-sex “marriage” is the entry gate then so be it.

All family forms are inherently equal.

AMERICAN LAW INSTITUTE PUBLISHES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION
http://www.ali.org/ali/pr051502.htm

LAW COMMISSION OF CANADA REPORT: BEYOND CONJUGALITY
http://www.cga.ct.gov/2002/rpt/2002-R-0172.htm


Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships
http://www.beyondmarriage.org/

They make no secret of it….

The want to De-privilege the Privileged (traditional marriage)
And privilege the de-Privileged (any thing but traditional marriage)

Internet Ronin said...

Thank you, Pogo, for bring that book to my attention! It sounds very interesting.

Balfegor said...

I think you missed the "in this case" part. I didn't say all old things are out of step with contemporary values. My point was that these laws were out of step with American values SINCE DAY ONE, and so the 200 year period is not proof of a venerable tradition of anti-polygamy. It's just long-standing discrimination.

That makes more sense. But what you said was:

In this case, the age of the laws only proves how out of step with American values they are.

You set up the formula "age of the laws" => PROVES => "how out of step with American values." It does no such thing -- if anything, the age of the laws and their long survival without being reversed by subsequent legislative enactments suggests, ceteris paribus that they are entirely compatible with American values.

This is why you first have to show:

My point was that these laws were out of step with American values SINCE DAY ONE,

as you state. You can't draw support for the proposition that these laws are un-American from the fact that Americans have tacitly approved these laws for the past 150 years.

CB said...

chickenlittle: what if an employer were compelled to enroll 3 dependent wives with children?

I think the employer would be glad to, since the employee would have to pay extra for each of them.

Of course, most polygamists would probably not be able to afford to insure their entire families, so we'll soon be debating whether states should compel employers to insure their employee's families (regardless of size) at a flat amount.

Icepick said...

Employers would simply stop offering health & welfare benefits at that point.

To amend my comment I should say that before employers stop offering H&W benefits, they will first jack the cost-share WAY up for more than one adult dependent, and probably greatly increase the cost-share for all children. This second point in particular will hurt everyone else pretty badly.

Balfegor said...

Re: CB:

Of course, most polygamists would probably not be able to afford to insure their entire families, so we'll soon be debating whether states should compel employers to insure their employee's families (regardless of size) at a flat amount.

Easy workaround -- have the husband and first-wife "adopt" all the other children consensually. That covers the children. And there probably won't be that many other wives/adult dependents. Still a bit of a squeeze, financially, but rather more manageable. Is that against the law?

Mortimer Brezny said...

if they existed at the time of ratification, it is hard to see how they can possibly be unconstitutional.

They didn't exist at the time of ratification. They were made a condition of Utah's entrance into the Union, specifically due to discriminatory religious bias. They post-date the First Amendment.

Goesh said...

Marriage ain't worth a sh** except for divorce lawyers who turn a pretty penny on it. The might of the Law extends protection to the unmarried via domestic violence statutes. I would bet a pretty penny warrantless arrests are enacted any number of times on behalf of female friends and relatives of the lady of the house when the lout of the house gets rough with them too, be they residing in the home or simply visiting at the time. Preemption is a slippery concept, not the nature of joining. We simply don't know what impact on future generations there will be having Lisa,Sue,Mary and Bill as Mom and Dad or for that matter, having Tom and Bill as Mom and Dad.

George said...

Now that this list of comments has grown long, I'd like to repost your original comment, Professor:

"I think it's rather obvious that it shouldn't be a crime for adults to live together and call themselves married. As long as it's not about having more than one marriage treated as a marriage in the legal sense, forcing anyone to marry, defrauding someone, or having sex with minors, the government should leave people alone."

I'd agree that multiple adults may live under the same roof and call themselves married. They may also call themselves turnips, raccoons, or paperclips. Words is words is words.

Then you write: "As long as it's not about having more than one marriage treated as a marriage in the legal sense..."

Wha--?

My presumption is that many of us read the NYT Magazine cover story on gaypluralmarriage-thingies. What those folks (straight or gay) are doing is a joke...being part-time parents, dropping in and out of multiple relationships. They're playing at parenthood and most likely to the detriment of children who can't comprehend what's going on.

Bottom line: When multiple adults are engaging in something they call mulitplesimultaneousmarriages, it can and probably does hurt children. Therefore, the government should be involved, possibly including removing children from such households.

Mortimer Brezny said...

You can't draw support for the proposition that these laws are un-American from the fact that Americans have tacitly approved these laws for the past 150 years.

Oh, hogwash. I don't buy "tacit support" arguments. That's just a sign that you've no evidence for your argument.

Icepick said...

I think the employer would be glad to, since the employee would have to pay extra for each of them.

I keep seeing comments like this here and there on the web. Unless the person being covered is not incurring any benefits charges, they will cost the employer more than they contribute. Most people in most years fit that criteria, but not always. And the healthy employess are merely subsidizing the unhealthy ones until their turn comes. H&W expenses cost companies, they don't supply additional revenue from employee contributions.

Zeb Quinn said...

Slippery slope or not, it's obvious that the social institution of marriage as we have traditionally known it is dead. Traditionalists, Christians, and others, have it hooked up to all manner of emergency life support, but it's over. It's dead.

That being the case, no, polygamists ought not be prosecuted. And why should they be? People have been living in all manner of alternative living arrangements for a few decades. It would be arbitrary to single out polygamy and say that one is outlawed.

When I say that traditional marriage is dead I'm saying that as a social institution, in the sociological sense, it's kaput. It's no longer the pillar it was. Traditionalists will continue to marry and have traditional heterosexual monogamous marriages and will raise their children that way, much to the consternation of others who believe that they are somehow being excluded. That consternation will grow to resentment, and at some future point they will seek to outlaw traditional heterosexual monogamous marriage on the basis of it being exclusionary, sexist, and homophobic. That's my prediction.

Mortimer Brezny said...

In this case, the age of the laws only proves how out of step with American values they are.

You set up the formula "age of the laws" => PROVES => "how out of step with American values."


No, I did not set up that formula. I said "in this case" -- meaning this is not a generalization. I also said "only proves" -- meaning it does not generally prove, but that in this particular case it can only prove. Meaning we have to examine the facts of this case, not resort to generalizable formulas. You reached the exact opposite conclusion of what I wrote because you ignored the phrases "in this case" and "only".

The only reason I used "American values are" is because the relationship in this case is constant. It is discrimination. Nothing has changed since the first day. I did not even use the word "contemporary" in the post you are mis-reading.

I hope you're not a lawyer.

Internet Ronin said...

Icepick: Good luck getting that message through to anyone. It's fascinating how many people who know little (bordering on absolutely nothing) about the subject of insurance think they are experts, as the comments here have already demonstrated.

Fitz said...

Zed (when you say)

"Slippery slope or not, it's obvious that the social institution of marriage as we have traditionally known it is dead."

I would agree with a slight modification.
Not - dead
But Rather being killed

JohnK said...

"Originalism is based on original public meaning, not the specific intentions of particular founders."

So what? No one at the time of the Constitution would have ever read the document to grant a right to gay marriage or polygamy. If they had, the document would have never passed.

As far as mormons go. Society has always objected to polygamy and never passed a document that supported it. As pointed out above, Mormanism went merrily on. People didn't hate Mormans, they hated polygamy. My point still stands, the anti-polygamy laws are well grounded in the history and intentions of the U.S. No one ever intended there to be a right for such and to create one now is simply inventing a right where one has never existed.

Mortimer Brezny said...

Nobody put a stop to any aspect of mormon behavior other than bigamy.

Except everyone at the time knew that polygamy was essential to Mormonism and banned its essential practice to kill the religion's spread. That is, it violated free exercise. If we banned Catholics from acepting communion wafers, that wouldn't be banning Catholicism, but it's pretty obvious that preventing Catholics from ritually absorbing the body of Christ vitiates the free exercise of their religion.

And to pretend otherwise is just nonsensical bigotry.

Mortimer Brezny said...

No one at the time of the Constitution would have ever read the document to grant a right to gay marriage or polygamy.

That point is irrelevant. These laws post-date the Constitution and Utah wasn't a state prior to its admission to the Union, i.e., the Constitution did not apply to it. The question is whether conditioning a state's acceptance to the Union on sacrificing free exercise rights of a number os its citizens conflicts with the American value enshrined in the First Amendment. Not whether George Mason was personally offended by the coercion.

Your analysis is just off.

Internet Ronin said...

Ok, Mortimer, you may be right. That said, it didn't stop it's spread, did it?) So what? That was then. This is now.

Mortimer Brezny said...

And keep gay marriage out of the polygamy argument. They aren't even close to the same. No one is talking about public recognition and federal tax subsidies.

Mortimer Brezny said...

That said, it didn't stop it's spread, did it?) So what? That was then. This is now.

That's nice, but the question was whether there's an originalist case for it, so simply saying now is now doesn't suffice. Your point is flat-out irrelevant on that score.

Furthermore, now it is beyond question that it is wrong to prosecute people for having consensual sex in the privacy of their own homes. And THINKING you are married to more than one person is not a criminal act. It's a religious belief. We don't throw people in jail for free exercise of their religion -- or their religious thoughts -- in the United States.

Should we jail all the atheists, too? When they have sex, they aren't partaking of the "mystery of one flesh"! They're just rutting!

Mortimer Brezny said...

No one ever intended there to be a right for such and to create one now is simply inventing a right where one has never existed.

Free exercise of religion is in the First Amendment. Why don't you try looking at the text of the Constitution?

JohnK said...

"The question is whether conditioning a state's acceptance to the Union on sacrificing free exercise rights of a number os its citizens conflicts with the American value enshrined in the First Amendment."


I suppose to that people who want to engage in human sacrifice as part of their religion also have their free expression curtailed as well. The question is who determines what is a legitimate religous practice, the people through elected officials or judges? The common practice and intent of the both the Constituion and the laws admitting Utah in the Union has always been that polygamy is not a protected religous expression. There is no right to it beyond people dreaming it wholecloth from nothing.

God, I hope you are not a lawyer.

As far as gay marriage, this has everything to do with gay marriage. By declaring a right to gay marriage where none existed before, the courts have stripped the people of the right to define marriage as they see fit. If gay marriage is a right, polygamy is a right no matter how odious and damaging it is.

Anonymous said...

So how pressing is this issue anyway? What proportion of the population is pressing for relief from anti-polygamist laws? Do all Mormons wish to practice it, or just a few?

Simon said...

Mortimer Brezny said...
They didn't exist at the time of ratification. They were made a condition of Utah's entrance into the Union, specifically due to discriminatory religious bias."

Whaa? Are you seriously arguing that bigamy laws - which were already entrenched in the common law at the time that America was first being settled, see E. Coke, 3d Part of The Institutes, Ch. 27; IV W. Blackstone Commentaries on the Laws of England, Ch. 13 - post-date the Constitution?

The conditions were placed on Utah's entry because Utah was dominated by a culture which violated a cultural norm proscribed at common law for centuries.

Internet Ronin said...

Ok, but is it a "religious belief" or is that just a fig leaf? (I don't pretend to have the answer to that question.)

JohnK said...

"Ok, but is it a "religious belief" or is that just a fig leaf? (I don't pretend to have the answer to that question.)"

It is a fig leaf. Mormons embraced polygamy because Joseph Smith was a horrible womanizer and was cheating on his wife with any number of women. When his wife discovered this and demanded a divorce, presto, Smith had another visit from an angel telling him how God wanted men to have multiple wives. It was all a crock.

Balfegor said...

Re: Mortimer:

I also said "only proves" -- meaning it does not generally prove, but that in this particular case it can only prove.

How so? No it can't. This is a kind of trivial point, but your analysis still makes no sense. The addition of "only" suggests no more than that the implication can only run one way -- "in this case" (age of laws => incompatible with values). How? You simply can't draw an implication running in that direction (i.e. un-American) especially given the facts of this case, which are that (a) the ban on polygamy is of long standing, and (b) the people have had a long time to reverse it if they thought it was a problem. As I explained, the inference runs, if anything in precisely the opposite direction. Long survival alongside longstanding values simply cannot imply a conflict between the two.

There can be such a conflict, certainly, but logically speaking, that long coexistence does not form any part of the basis for such a conclusion.

Mortimer Brezny said...

I suppose to that people who want to engage in human sacrifice as part of their religion also have their free expression curtailed as well. The question is who determines what is a legitimate religous practice, the people through elected officials or judges?

That's a nice straw-man, but let's deal with reality rather than straw-men that beg the question.

There are religions that sarcifice chickens. Do they get an exemption from public health codes? What about parents that want to prevent their children from receiving organ transplants? What about regulations that conflict with keeping food kosher? Should Jewish delis get exemptions? What about imbibing narcotic tea? These are all tough questions. But none of them are equivalent to human sacrifice, which is like making the argument that gay marriage leads to men screwing horses -- it's the silly slippery slope argument that any sensible person knows is irrelevant.

Human sacrifice is not analogous to thinking you are married.

We aren't talking about people claiming rights against the state, or legal benefits out of the federal coffers, or engaging in predatory sex (all general concerns we can legislate like prohibiting murder). We're just talking about two people living in one house and thinking of each other as husband and wife. The law makes that thought illegal.

And, actually, judges make the determination, by granting the exemptions. Who said that? Some wild-eyed liberal? No, Chief Justice Roberts, a Reagan conservative, writing for a unanimous court.

http://writ.news.findlaw.com/dorf/20060227.html

So drink up on your hallucinogenic tea, fellows. And dream about polygamy all you want. Despite what these bigots say.

Mortimer Brezny said...

How?

200 years of out-of-stepness.

The out-of-stepness cannot be corrected, because what was out-of-step was the conditioning of statehood on the adoption of the laws, not the existence of the laws themselves. I'm condemning the coercion.

Your response might be -- but Americans could have removed the laws. Yes, but most Americans didn't even know that Utah's statehood was conditioned on the adoption of such laws. Which vitiates your "tacit support" theory. Ignorance of historical fact is not "tacit support". Its just ignorance of historical fact.

See how I'm using "just" there? Kind of like "only"?

Mortimer Brezny said...

Whaa? Are you seriously arguing that bigamy laws - which were already entrenched in the common law at the time that America was first being settled,

That's an argument about bigamy laws in general. That is not an argument about the bigamy laws Utah adopted in order to obtain statehood in the United States.

My point -- if you scroll up to my first comment -- is that there is no slippery slope if you distinguish Utah's bigamy laws from other bigamy laws in the country.

Utah's bigamy laws go too far. You know, "in this case".

Balfegor said...

And re:

Oh, hogwash. I don't buy "tacit support" arguments. That's just a sign that you've no evidence for your argument.

As far as tacit support, the support actually isn't all that "tacit" -- if you look at this thread here, obviously there are people who think polygamy is utterly incompatible with American values, because, e.g. they think it subjugates women. And I'm pretty sure that if you asked the American people what they thought about polygamy, in an opinion poll, you'd get consistent majorities against it every year from the framing to the present; you might even get majorities saying it's flat-out un-American. Furthermore, the Utah statute I linked above was actually updated in 1997, indicating that people (at least in Utah) have revisited the question of the polygamy ban recently. So the actual facts are probably such that the support for the ban is not tacit -- but tacit support is all one can legitimately infer from a ban of long standing.

This doesn't mean that you can't argue the polygamy ban is nevertheless somehow incompatible with an abstracted form of "American values" that floats independent of the values Americans actually hold -- "American values" as implied by the Constitution or whatever. But that's a different matter.

Mortimer Brezny said...

This doesn't mean that you can't argue the polygamy ban is nevertheless somehow incompatible with an abstracted form of "American values" that floats independent of

No, my argument is that Utah's bigamy laws violate the Equal Protection clause and the First Amendment and that other bigamy laws do not. My opinion is that you have no idea what you are talking about.

JohnK said...

"What about parents that want to prevent their children from receiving organ transplants? What about regulations that conflict with keeping food kosher? Should Jewish delis get exemptions? What about imbibing narcotic tea? These are all tough questions"

Those are all tough questions that are decided by the legislatures not the courts. That is the point.

Further, we are not outlawing the thought of polygamy, just its practice. Its practice does horrific things to the society and is ineveitably associated with child abuse, child marriage and abuse of women. Society has every right to do that. It is not a hallucination to see 15 year old kids on the streets of Pheonix because their evil parents dumped them there so they could marry their classmates.

Mortimer Brezny said...

I'm pretty sure that if you asked the American people what they thought about polygamy, in an opinion poll, you'd get consistent majorities against it every year from the framing to the present;

Again, let's not deal in hypothetical question-begging. We don't have any such polls. You're just making them up. Should we jail you for the thought?

And even if we had these non-existent polls that you're relying on, most people are ignorant of history, so your hypothetical polls would just reflect that ignorance. They wouldn't prove your case; and neither does begging the question with hypothetical polls that we can never take.

Mortimer Brezny said...

Those are all tough questions that are decided by the legislatures not the courts. That is the point.

No, these are all tough questions that are decided by the courts. I suggest you read this: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1084

It is utterly laughable for you to argue that the Free Exercise Clause is not justiciable in court.

Read a book.

Henry said...

People didn't hate Mormans, they hated polygamy.

Long before the Mormon practice of polygamy widely known they were driven out of places like Kirtland, Ohio and Independence, Missouri because they were a bunch of travelling Yankees practicing a weird religion. They upset the social and political balance whereever the settled.

In Utah, the number of polygamists was always small relative to the population of married men; there was no social rationale for it (there was no surplus of women, for example); and it appears to have undermined the insitutation of marriage not a whit -- Utah being one of the most Victorian of the Western states in the 19th century and one of the most socially conservative today.

I don't see polygamy as the beginning or ending of a slippery slope. It's an outlier, practiced by few, of no interest to most.

I propose that the end of patriarchy has done more to kill traditional marriage than any court ruling. I'd prefer that partriarchy stay defeated, myself, and let marriage be reinvented.

Mortimer Brezny said...

Its practice does horrific things to the society and is ineveitably associated with child abuse, child marriage and abuse of women. Society has every right to do that.

Blah, blah, blah. That's an argument for the kinds of bigamy laws in any state other than Utah.

I'm talking about UTAH's bigamy laws, which go further than any other bigamy laws in the United States.

And legislatures have limited enumerated powers. I don't see "oppressing religious minorities with overbroad laws" in the Constitution. But I do see this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Balfegor said...

And even if we had these non-existent polls that you're relying on, most people are ignorant of history,

Uh, so? The relevance of history here is what? As Americans, I'd imagine they have their own ideas on what their own American values are. It's not clear to me why those ideas would change on discovering (if they did not know already) that we required Utah to ban polygamy as a condition of admission to the Union.

Regarding the point that Utah's unusually broad bigamy law can be traced to the condition that Utah ban polygamy, for admission to the Union, it's worth noting that Utah was not the only state against which that condition was applied. The same condition was applied against Arizona, New Mexico, and Oklahoma. See here at the cite block for footnote 202.

Steven said...

I agree with Liam Colvin. Most of the comments here talk about marriage purely as a kind of lifestyle choice, and frame it in the language of civil rights. Few people are acknowledging that the reason for the state to favor heterosexual marriage between one man and one woman is that this is the best environment to raise children, and hence to perpetuate the society. The state has a perfectly valid interest in trying to ensure the perpetuation of the society.

Sometimes reading these forums makes me truly glad that our country is not run by intellectuals. And I say that as someone who has degrees from Harvard and MIT, and who lives in Manhattan.

Mortimer Brezny said...

It's not clear to me why those ideas would change on discovering (if they did not know already) that we required Utah to ban polygamy as a condition of admission to the Union.

It's not clear to me why their point of view wouldn't change -- that's the point. Any polls taken of people whose views might change because they were ignorant of what you were polling them about is not valid poll! ("Do you think Bush is doing a good job?" "No, he sucks!" "Do you know who Bush is?" "No. Who is he?") It also destroys your "update" in 1997 argument. There was no debate over whether conditioning Utah's statehood on anti-Mormon laws was correct. You're mischaracterizing legislative housekeeping into a sweeping plebiscite, which is about as false and hollow as your entire argument.

The same condition was applied against Arizona, New Mexico, and Oklahoma.

That doesn't make it right! The conditioning was equally wrong in those cases as well. But: I haven't seen any prosecutions under overbroad bigamy statutes coming out of Arizona, or New Mexico, or Oklahoma. I wouldn't support litigating the striking down of Arizona's, New Mexico's, or Oklahoma's bigamy statutes unless there were sketchy prosecutions as those that have been iniatiated in Utah.

And I certainly think Lawrence v. Texas could have been avoided if the Governor of Texas had simply issued a pardon.

Mortimer Brezny said...

Few people are acknowledging that the reason for the state to favor heterosexual marriage between one man and one woman is that this is the best environment to raise children, and hence to perpetuate the society. The state has a perfectly valid interest in trying to ensure the perpetuation of the society.

Yeah, I agree with that. But prosecuting someone for cohabitation is different than publicly recognizing their union, subsidizing it with tax dollars, and giving them all sorts of legal benefits. We're talking about the part in bold.

Balfegor said...

Oh! And -- and this I did not know until I just checked -- Arizona and New Mexico's constitutional provisions also ban co-habitation. Arizona's Constitutiona, Article 20, Sec. 2 reads:

Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state.

And New Mexico's Constitution, Article 21, Sec. 1 reads:

Perfect toleration of religious sentiment shall be secured, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship. Polygamous or plural marriages and polygamous cohabitation are forever prohibited.

Interesting. However, for Mortimer, even though the Constitutional provisions here are broad, the actual criminal statutes seem to be the standard bigamy statutes.

Actually, they may even be less broad than some other states -- I checked California too, and while the language of California's statute is standard, it also notes that the evidence of the plural marriages doesn't have to be in state records, or take the form of a certificate or anything -- the CA evidence code seems to open the door to things like family bibles and community reputation as evidence for the additional marriages.

Mortimer Brezny said...

Balfegor,

Do you actually read what I write?

I specifically say above that I have no problem with the existence of the statutes. I have a problem with the prosecution of the broadest elements of the statute.

Nor did I pass judgment on the breadth of New Mexico's, Oklahoma's, or Arizona's bigamy laws relative to Utah's or any other state's. I never said that all coerced states had bigamy laws of equal breadth. Or that they were prosecuted with equivalent vigor.

If "polygamous cohabitation" means (1) obtaining two marriage licenses and then living together, prosecute them. If it means just (2) living with two people you consider yourself married to, then the prosecution is invalid. I have no problem with using whatever relevant evidence in service of prosecuting (1).

Fritz said...

This conversation reminds me of laity advocating Catholic Priests being allowed to marry. Pure ignorance of the institution. The dumbing down of marriage by those that have never been married or are divorced is truly pathetic. A successful marriage is the ultimate achievement of the human experience and those that are not capable of such an achievement want to belittle its meaning. The divorce rate is no where near 50%, about 29% is more accurate, highest among the Flower Children and their worthless genX children. It's Christmas time of the year and we are going to celebrate that too!

Fitz said...

Hennry
“I propose that the end of patriarchy has done more to kill traditional marriage than any court ruling. I'd prefer that partriarchy stay defeated, myself, and let marriage be reinvented.”
Nice proposal- the “patriarchy” huh? (you really ought not listen to your professors their not to be trusted” )
I propose that marriage has been “reinvented” & the “patriarchy” completely destroyed.
Its called the black underclass – lets call it a matriarchy.

Mortimer Brezny said...

On the particular perniciousness of Utah's bigamy statute:

http://www.concurringopinions.com/archives/2006/09/the_accidental.html

(Noting that it is broader than California's.)

On the particular Utah prosecutions on vague "criminal" grounds, from Time Canada:

http://www.rickross.com/reference/polygamy/polygamy381.html

(Involving arrests and prosecutions in both Arizona and Utah.)

Mortimer Brezny said...

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=508&invol=520

On animal sacrifice and targeting religious minorities with generally applicable laws. There is discussion of polygamy here, too.

Balfegor said...

Do you actually read what I write?

Not for your past few posts, actually, I'm mostly ignoring you.

I never said that all coerced states had bigamy laws of equal breadth. Or that they were prosecuted with equivalent vigor.

No, but I thought that -- in the event you weren't aware of them -- this might be interesting to you, since you've been going on about our coercing these states into banning polygamy as a condition of joining as though it had some significance. I don't think it has, and additional grounds for that view are supplied by Arizona and New Mexico, both of which have constitutional provisions in somewhat broader terms than Utah (probably because they got statehood some 16 years later), but neither of which has Utah's broad statutory ban.

If "polygamous cohabitation" means (1) obtaining two marriage licenses and then living together, prosecute them. If it means just (2) living with two people you consider yourself married to, then the prosecution is invalid. I have no problem with using whatever relevant evidence in service of prosecuting (1).

California, just based on the statutes, seems to be more like (2) rather than one -- if marriage licenses were the issue, you'd think they'd require some proof that those licenses were ever sought. (Mere cohabitation is not sufficient, unlike Utah). Arizona and New Mexico, on the other hand, seem to have interpreted their constitutional provisions as satisfied by (1).

Anyhow, this suggests that the conditions laid on Utah's entering the Union, being less stringent than those laid on Arizona and New Mexico, would probably be adequately met by (1) too, if their legislators felt like loosening up their code.

Mortimer Brezny said...

No, but I thought that -- in the event you weren't aware of them -- this might be interesting to you, since you've been going on about our coercing these states into banning polygamy as a condition of joining as though it had some significance.

Yes, the question is whether that violates the First Amendment, which is a restriction on the exercise of federal power, e.g., setting unconstitutional conditions on the admittance to the Union.

California, just based on the statutes, seems to be more like (2) rather than one

But "just based on the statutes" was never my argument. (Nor do I trust your statutory construction skills.)

That is why I posted the Concurring Opinions post that specifically details what is wrong with Utah's statute when its outer fringe prosecuted and how it is broader, as a matter of law, than California's. You seem to recognize this point: "but neither of which has Utah's broad statutory ban."

But my problem isn't the "broad statutory ban," but that the prosecutions are unconstitutional.

That argument may in fact drift to Arizona also, if one looks to The Merry Wives, the article from Time Canada that I provided. But my problem with Arizona would, again, be the prosecutions -- or the part of the statute that makes such a prosecution possible. We'd have to look to how courts in that jurisdiction are interpreting the statutes.

If your argument is that Arizona's, New Mexico's, and Oklahoma's bigamy laws target religious minorities enough to vitiate their free exercise and that Arizona's, New Mexico's, and Oklahoma's bigamy laws are less strict than Utah's, then I'm not sure why you even brought them up.

I already noted that Utah's statute is worse than any others, and you appear to be agreeing. To the extent that Arizona's, New Mexico's, and Oklahoma's statutes are prosecuted in a way that targets religious minorities, despite being less offensive than Utah's ban, I'm not sure how you can defend them in light of the two Supreme Court cases I provided, one dealing with animal sacrifice (violative of public health codes), the other dealing with narcotic tea (violative of criminal drugs laws).

And I already noted that Lawrence v. Texas could have been avoided if the Governor of Texas had pardoned the litigants, so it should be clear that I'm not crazy about striking down laws when reasonable exemptions can lawfully be made.

It would be an easy solution for prosecutors to exhibit prudence in the exercise of discretion. So long as prosecutors are prudent, I don't see how California's statute even comes close to being in my category (2): it looks like a basic relevance standard for evidence in proving category (1) in an area where common-law marriage still is on the books, i.e., it used to be the case that one could become a polygamist -- as a matter-of-law -- by mere cohabitation. That is no longer the case in jurisdictions where common-law marriage has been abolished and one must apply for a marriage license.

That might explain why "updating" would be necessary.

troutjacki said...

Ann:

Monogamy is an essential norm to create and/or maintain a civil society. Polygamy, which will be the most normal form of non-monogamous marriage, creates a class of rootless males like you see in Islamic society that promotes civil disorder and anarchy. It is not an accident the civil society arose in Rome and Greece where monogamy was the cultural norm enshrined in law.

The re-appearance of polygamy (and gay marriage) in modern western society appears to be consistent with the civil society only because we have 2500 years of social capital stored up. As we expend this capital we erode are cultural norms and civil society will break down in the United States as it is already breaking down in Europe. I am sure you have read about discarded male teenagers in the polygamous Mormon sub-culture in Utah. This is what happens when you allow polygamy.

The Libertarian impulse to recognize any human relationships as equal to the pre-existing social norm is an indicator that today’s Libertarians have little in common with the tradition of von Hayek and Friedman. It has more an outgrowth of the 1960s counterculture the Libertarianism that I grew up with. Despite their protestations, today’s lifestyle Libertarians care less about economic and political freedom then they do about drugs, sex and rock n’ roll. This itself if an indication that they take our political freedom and their economic success as a given.

Balfegor said...

Yes, the question is whether that violates the First Amendment, which is a restriction on the exercise of federal power, e.g., setting unconstitutional conditions on the admittance to the Union.

In this regard, then, the question of the unconstitutionality of the federal statutes governing their admission would be the same for all four (Utah, New Mexico, Arizona, Oklahoma), although I don't know who would have standing for that kind of claim. The state government?

But my problem isn't the "broad statutory ban," but that the prosecutions are unconstitutional.

This is a completely different issue from the above.

Mortimer Brezny said...

This is a completely different issue from the above.

No, it is not. It is the argument I have been making from the get-go. One bringing a lawsuit would claim Equal Protection and First Amendment bases. Anyone prosecuted under a given statute would have standing.

That is why Utah's, Arizona's, New Mexico's, and Oklahoma's statutes are not in the same position. I sincerely doubt any person would be prosecuted in all four jurisdictions at the same time.

So the following is outright false: the question of the unconstitutionality of the federal statutes governing their admission would be the same for all four (Utah, New Mexico, Arizona, Oklahoma),

You might get different judges and litigants might make different arguments and prosecutors might charge the defendants differently and the particular statutes might have subtly different histories.

It is not reducible to a general formula.

Balfegor said...

Re: Mortimer:

Anyone prosecuted under a given statute would have standing.

I don't follow. Make the standing argument with respect to the federal statute/exercise of congressional power issue for me -- I'm paying attention now.

Mortimer Brezny said...

I don't follow.

I know.

Mortimer Brezny said...

Go read Church of Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City of Hialeah and Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal and this:

http://www.scotusblog.com/movabletype/archives/Cert%20Petition%20Final.pdf

Then maybe, maybe we'll chat.

Have a nice day.

angela said...
This comment has been removed by a blog administrator.
Mortimer Brezny said...

Isn't this really just about free speech? Ann has carefully steered clear of government enforcement of polygamous marriage.

I certainly agree that the criminal prosecutions suppress free exercise. That's why First Amendment overbreadth doctrine also counts. No one here is talking about susidizing polygamy.

Fitz said...

Mortimer Brezny

I have read your posts..
It seems to me, that you are just arguing the Lawrence/Goodrich extended logic...to these statues.

Yes...that works
& that’s the problem.

Anonymous said...

1. Dismantle existing institutions.
2. ??????????????
3. Everything is swell.

Balfegor said...

Re: http://www.scotusblog.com/movabletype/archives/Cert%20Petition%20Final.pdf

I see the argument for standing now. I don't think the harm here flows from the federal statute, though, given that the implementation required under the federal statute (I'm going from the constitutional provisions Congress ultimately found acceptable -- I cannot find the enabling acts online -- and Utah's is narrower than the others) seems to have left plenty of scope for the states to devise their own means of prohibiting polygamy by statute.

Utah's statutory implementation is extremely broad, and apparently prosecuted in a fashion that targets particular religious forms of polygamy. Arizona's and New Mexicos' statutes are standard (although you say Arizona may apply it in a discriminatory fashion as well). At least on the level we're talking about in this thread (i.e. not banning multiple marriage licenses or criminalising multiple marriage licenses, but criminalising even multiple purported marriages/cohabitation), these harms don't seem to be traceable to the particular language of the constitutional provisions adopted to satisfy the enabling acts.

The blog post you link indicates the internal Utah history of attempting to stamp out polygamy, but whether this is reflected in detail in the act admitting Utah to the Union I don't know. It certainly isn't reflected in the particular constitutional language Utah adopted, so my guess is it's not the federal statute's fault, strictly speaking -- it's just that the US Congress kept on turning Utah's bid for statehood down until they got their internal affairs into the order Congress wanted.

Revenant said...

Yes, the question is whether that violates the First Amendment, which is a restriction on the exercise of federal power, e.g., setting unconstitutional conditions on the admittance to the Union.

The Constitution doesn't place any limits on what conditions Congress can set on allowing new states to enter the Union. Furthermore, the First Amendment is a right of the people, not of the states; there is nothing unconstitutional about the federal government requiring, or forbidding, certain speech by the state governments.

Balfegor said...

Furthermore, the First Amendment is a right of the people, not of the states; there is nothing unconstitutional about the federal government requiring, or forbidding, certain speech by the state governments.

I think his argument may be that the First Amendment actually goes "Congress shall make no law" and so on, up to establishments of religion and so forth. Congress's Utah Enabling Act requires Utah Constitution to adopt polygamy ban => Utah Constitution requires polygamy ban => Statutory polygamy ban => restriction of religious freedom. Ergo Congress's law has restricted religious freedom. Or perhaps it's a speech issue -- either way, the overall chain of responsibility would come out the same.

Or something to that effect.

Mortimer Brezny said...

The Constitution doesn't place any limits on what conditions Congress can set on allowing new states to enter the Union.

True. But the Constitution does set limits on the scope of federal power. The First Amendment is one such limit. Admitting states to the Union is an exercise of federal power.

Furthermore, the First Amendment is a right of the people, not of the states; there is nothing unconstitutional about the federal government requiring, or forbidding, certain speech by the state governments.

That's not as simple as you declare. The First Amendment says Congress. It doesn't limit the states. One could argue that the actual text of the First Amendment and the Tenth Amendment leaves states with the right to have their own state religion. Which is consistent with the history of states doing just that. In any event, your analysis is off -- if the right to free exercise by the people cannot be abridged by either state governments or Congress, then Congress certainly can't force a state legislature to pass a law that abridges the free exercise of its citizens.

Mortimer Brezny said...

I may be accepting Lawrence as law....but I am not arguing Goodridge.

Simon said...

Mortimer Brezny said...
"criminal prosecutions suppress free exercise. That's why First Amendment overbreadth doctrine also counts."

What does overbreadth have to do with free exercise? That doctrine, "an exception to [the] normal rule regarding the standards for facial challenges ... [wherein] [t]he showing that a law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep, suffices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression," has been created by the court "out of concern that the threat of enforcement of an overbroad law may deter or chill constitutionally protected speech–especially when the overbroad statute imposes criminal sanctions." Virginia v. Hicks 539 U.S. 113 (2003) (citations and internal quotation marks omitted). I realize that Salerno stated that the court "[has] not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment," but so far as I'm aware it hasn't been applied outside of the yet more limited context of first amendment free speech claims. Citations, please.

I'm still waiting on a citation for your 9:52 assertion as to what Scalia has and has not "admitted," BTW.

Mortimer Brezny said...

so far as I'm aware it hasn't been applied outside of the yet more limited context of first amendment free speech claims.

I don't have the citation for it, but there's a rather recent case involving polygamy that was made available on How Appealing that concerned the narrow issue (in the context of a child custody proceeding) of whether likelihood to engage in future advocacy (speech to the child) could be used as proof of intent to violate a polygamy law (which would be violated by free exercise), which would result in the loss of custody. So the clear split between free exercise and free speech that you claim isn't necessarily there in these kinds of cases.

Mortimer Brezny said...

I'm still waiting on a citation for your 9:52 assertion as to what Scalia has and has not "admitted," BTW.

I was referring to Scalia's comments re: Church of Babulu.

Simon said...

In other words, you have no precedent to offer where the Supreme Court has applied the overbreadth doctrine outside of the free speech area?

And -- you mean his concurrence in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)? How do they support the contention that Scalia has "admitted" that laws barring bigamy have no originalist defense?

Mortimer Brezny said...

In other words, you have no precedent to offer where the Supreme Court has applied the overbreadth doctrine outside of the free speech area?

I believe this is called moving the goal posts. The Supreme Court hears around 90 cases a year and the Courts of Appeal hears around 90,000, which means that most law and most precedent comes from Courts of Appeal. The case that I referred to from How Appealing was a Court of Appeal case. Your sharp division of free speech and free exercise in these kinds of cases makes no sense and has been rejected in appellate cases examining the factual contexts likely to arise involving these issues. Just admit you have no support whatsoever from any court for your conceptual argument and move on.

How do they support the contention that Scalia has "admitted" that laws barring bigamy have no originalist defense?

That is moving the goal posts as well. I never said "lacks an originalist defense," which could mean: Scalia is an originalist and Scalia disagrees and would offer a defense, therefore there could be an "originalist defense". But that's pure rhetoric and as hollow as your attempt to make Supreme Court precedent the only precedent with legal value. Scalia makes clear that if Babulu is right, there is no case against polygamy (and I can quote him directly from a recent talk he gave with Nadine Strossen -- who I generally disagree with, btw -- as saying, "Whelp, there goes your bigamy laws!"). I think Babulu (animal sacrifice) is right, and Espiritu (narcotic tea) -- a unanimous SCOTUS opinion, certainly does not dispel that notion. That's Scalia's logic right there: if Babulu is right, no viable argument against bigamy -- and I didn't see him dissent in Espiritu, either. And Scalia wrote Smith. So I don't know where you're getting the originalist defense from, because it hasn't been offered, save in Lawrence, and Lawrence, unfortunately, is law.

Henry said...

Fritz and Sippican:

3. Everything is swell.

Well, everything is never really swell, but I find it bizarre that we're arguing about the danger of gay marriage and de-criminalized polygamy at a time when per-capita divorce rates have been declining for two-decades and the out-of-wedlock birth rate have been static over the same time.

If you want to examine when traditional marriage took a hit, you have to cast you mind way back before the court cases that Balfegor, Brezny, and Simon are arguing about and look at the 1970s.

What happened? Women's liberation & no fault divorce. Both of these represent a sea-change in the cultural landscape. If you really believe the institution of marriage is in trouble, you have to deal with history, not gay marriage or some obscure cultists in Utah. To rephrase what I said before, I would prefer the Victorian zeitgeist remain history.

Pogo said...

Henry, your suggestion is asinine, akin to stating that since the patient has already been stabbed six times, what does it matter if we slit his throat now?

Encouraging a more rapid demise of marriage is certainly an argument, but it doesn't answer Sippican's point that such utopianism will most decidedly not be swell.

paul a'barge said...

whether the government should prosecute people criminally for living together and calling what they are doing a marriage

Children

If there are children involved in these living situations, the government has a duty and a mandate to throw the polygamists in jail. Pronto.

I don't know about anyone else, but I'm certainly voting for the state constitutional amendment to make that happen, and I'm certainly voting for the law enforcement executives to prosecute those laws.

If there are no children involved in the living arrangements, then hey ... rock on with your bad polygamist selves. But, in private, ok?

Joe said...

One of the curious things about all this is that the number of criminal prosecutions in Utah against polygamists in the past thirty years can be counted on one hand.

Every now and then Utah politicians rant about polygamy, but few do anything about it. (And the one who did, went after a mostly harmless fellow instead of the horrible clans that really are hurting people.)

The point is that anti-polygamy laws are completely inneffective. Furthermore, they have created a situation where you have massive welfware fraud. On top of all that, because polygamy is illegal, a plural "wife" has no legal rights. If society's concern about polygamy is the women and children, all the actual evidence (not emotional or theoretical) is that polygamy should be legalized.

Fitz said...

Hennry (writes) “Everything is swell.”

“Well, everything is never really swell, but I find it bizarre that we're arguing about the danger of gay marriage and de-criminalized polygamy at a time when per-capita divorce rates have been declining for two-decades and the out-of-wedlock birth rate have been static over the same time.
If you want to examine when traditional marriage took a hit, you have to cast you mind way back before the court cases that Balfegor, Brezny, and Simon are arguing about and look at the 1970s.
What happened? Women's liberation & no fault divorce. Both of these represent a sea-change in the cultural landscape. If you really believe the institution of marriage is in trouble, you have to deal with history, not gay marriage or some obscure cultists in Utah. To rephrase what I said before, I would prefer the Victorian zeitgeist remain history.”

Well part of you analysis is correct, however it leaves a lot out (as far as variables)
It does however prove 5 things.
#1. The institution of marriage is not invulnerable. (its susceptible to damage)
#2. Its breakdown has serious consequences for society.
#3. State manipulation has unexpected results.
#4. The cultural left are incapable of foreseeing them.
#5. The cultural right has foreseen them quite clearly.

I think a level of Victorian propriety to be preferable to the Marxist pervert zeitgeist. (myself)

Balfegor said...

Re: Henry

What happened? Women's liberation & no fault divorce. Both of these represent a sea-change in the cultural landscape. If you really believe the institution of marriage is in trouble, you have to deal with history, not gay marriage or some obscure cultists in Utah.

This is surely true, and I would not deny it -- this is generally my own opinion, in fact.

However, while gay marriage is and will always remain marginal (so few people are gay, after all), polygamy isn't necessarily so. As I indicated many posts above, my impression is that up until the last two centuries or so, polygamy was rather more widespread, as a system, than was monogamy. Indeed, my guess is that, if you place polygamy in open competition with monogamy, polygamy will come to assume great prominence, and perhaps even dominance -- not immediately (the sense of revulsion will endure for a time), but eventually, over generations. Rich men will have their many wives.

So while gay marriage and obscure cultists aren't really threats to traditional marriage, polygamy might be seen as posing a genuine cultural threat, moving us into a position such that we couldn't recapture the old monogamous equilibrium. I have more sympathy for polygamy than gay marriage (both because polygamy is a living tradition for many people and because polygamists get tossed in jail for it; neither is true of gay marriage post Lawrence), but my attitude is not usual on this issue, and I think concerns about a marriage in a society that accepts polygamy are perfectly legitimate.

Re: Joe:

The point is that anti-polygamy laws are completely inneffective.

Well, it's not that they're ineffective, so much as that they're not regularly enforced. But they are effective at suppressing polygamy. Further up, Mortimer links a blog post discussing the history of Utah's bigamy laws; that post suggests that at one point, Utah's enforcement (especially via the cohabitation prong) was applied all the time and highly successful at rooting out polygamy. Partly as a result of that past successful enforcement, the rate of polygamy in Utah -- while probably higher than the rest of the US -- does not seem to be particularly high. It's not 100% enforcement, certainly, but nothing ever is.

Eli Blake said...

Joe:

Granted, I live in Arizona. However our attorney General, Terry Goddard, together with some authorities in Utah, have gone after the ones that are really hurting people. Goddard is the guy who went after Warren Jeffs (the President of the FLDS church) and got him put on the ten most wanted list. And he had help with this from Utah authorities. Jeffs was recently captured and will stand trial in both states.

So no, don't claim there are no politicians with the balls to go after the big Kahuna, there are. And I'm proud to say that I just voted for Terry Goddard two weeks ago in his successful bid for a second term so he can continue to go after this (which you are right that no one had really in about fifty years.)

Revenant said...

In any event, your analysis is off -- if the right to free exercise by the people cannot be abridged by either state governments or Congress, then Congress certainly can't force a state legislature to pass a law that abridges the free exercise of its citizens

First of all, Utah wasn't a state when Congress placed that condition on it. Utah could relegalize polygamy today, if it wished to, without being kicked out of the union.

Secondly, Congress did not force Utah to do anything. It placed a condition on statehood. Utah could have shrugged and remained a non-state.

Finally, the First Amendment is not read as granting people the right to ignore secular law provided they can cook up a religious rationalization for ignoring it. Laws that restrict religious people's practice of their religion are generally only unconstitutional if the law has that restriction as its aim, which the ban on polygamy does not.

Simon said...

Mortimer Brezny said...
"I believe this is called moving the goal posts. The Supreme Court hears around 90 cases a year and the Courts of Appeal hears around 90,000, which means that most law and most precedent comes from Courts of Appeal."

Which is just another way of conceding that you have no precedent to offer where the Supreme Court has applied the overbreadth doctrine outside of the free speech area.

"Your sharp division of free speech and free exercise in these kinds of cases makes no sense and has been rejected in appellate cases examining the factual contexts likely to arise involving these issues."

My sharp division of free speech and free exercise is premised on the fact that the Supreme Court has sometimes allowed overbreadth challenges against laws impeding free speech and has never allowed overbreadth challenges against laws impeding free exercise - a point you have yet to offer a single citation to rebut.

If you have some precedent from the Courts of Appeals, feel free to cite it. But even if you come up with an actual citation, instead of an abstract reference to something you think you saw on How Appealing, you're going to have to manage a little better than a single case -- a recent one, at that! -- wherein at least two judges in one circuit have reached a conclusion that would seem to stand in derogation of sixty-five years of overbreadth being applied purely to free speech cases.

Balfegor said...

Re: Revenant

Secondly, Congress did not force Utah to do anything. It placed a condition on statehood. Utah could have shrugged and remained a non-state.

Well, yes, but if Utah were still just a US Territory, we'd probably have the Edmunds-Tucker Act of 1887, or a modern equivalent, in force. If the argument that a polygamy ban violates the First Amendment persuades a court, then whether Utah becomes or does not become a state is kind of beside the point, because analogous legislation will control within the territory called Utah anyhow. (leaving aside, for the moment, whether the Federal government can be held responsible for the particular broad legislation Utah ultimately adopted). Incidentally, the Supreme Court has addressed the constitutionality of that early ban with some rather . . . heated language:

But it is also stated in the findings of fact, and is a matter of public notoriety, that the religious and charitable uses intended to be subserved and promoted are the inculcation and spread of the doctrines and usages of the Mormon Church, or Church of Latte- Day Saints, one of the distinguishing features of which is the practice of polygamy,-a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. Notwithstanding the stringent laws which have been passed by congress,-notwithstanding all the efforts made to suppress this barbarous practice,-the sect or community composing the Church of Jesus Christ of Latter-Day Saints perseveres, in defiance of law, in preaching, upholding, promoting, and defending it. It is a matter of public notoriety that its emissaries are engaged in many countries in propagating this nefarious doctrine, and urging its converts to join the community in Utah. The existence of such a propaganda is a blot on our civilization. The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world.

. . .

One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by the civil authority. The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced. Davis Beason, 133 U.S. 333 , ante, 299.

I suspect we cannot rely on the authority of this particular precedent.

Fitz said...

Balfegor

"I suspect we cannot rely on the authority of this particular precedent."

Why not?
Seems spot on target.

Pogo said...

Dammit Fitz!

Balfegor said...

Well, Davis v. Beason (upholding law denying polygamists the right to vote, I think) is part of the precedent the Court cites for the propriety of banning polygamy and taking the property of the Mormon Church (for advocating polygamy). Davis v. Beason was cited approvingly by the Supreme Court as recently as 1993 in Church of Lukimi Babulu v. City of Hialeah:

To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland, 366 U.S., at 442 . See, e.g., Reynolds v. United States, 98 U.S. 145 (1879); Davis v. Beason, 133 U.S. 333 (1890).

But by the time of Romer v. Evans, the majority on the court are not so keen on Beason, although their discussion of the opinion is kind of circumspect (not so the dissent). I don't think it's been discussed since then, at least at the Supreme Court level. But the trend is probably not in its favour.

Revenant said...

"The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced."

I suspect we cannot rely on the authority of this particular precedent

I don't know about that. The section I quoted above (which you bolded) is consistent with the modern approach to first amendment law -- we do not, for example, allow pedophilia, even if a person says that God wants him to boink little kids. We do not allow theft, even by people whose religions teach them that personal possessions are meaningless. Etc, etc.

Anonymous said...

This discussion of course brings to mind the old saw about the punishment for having two wives- being sentenced to having two Mother-in-laws.

That being said, some very interesting reading here. I had never given thought to the basis for a ban on polygamy (it was always just an accepted social wrong), but the one thing this discussion has brought to light is that we need to re-examine our social mores (as a culture) on the odd occasion to either include or continue to exclude certain behaviors, such as same sex or polygamous marriages. Just ‘because’ is no longer a valid reason to determine anything is immoral anymore, is it?

It is the socially unacceptable part of the equation that interests me, although the law part is fascinating as well.

Assuming no legal barriers, would there still be a social problem with polygamy? I suppose we all remember the hoopla over Mary Kay Letourneau and the incident with the teacher/motorcycle model (whose name escapes me {but not her figure}) from Florida a few years ago, and the response of some folks, as compared to the lynch mobs more commonly associated with the more probable male adult/ teenage girl scenario. Would we have the same response to a man with three wives as we would to a woman with three husbands?

Or would it depend more on how tastefully things were done? One wife in each of the three bedrooms of the doublewide: Jerry Springer fodder. One husband in each wing of the manse: to each his own?

The societal problems seem to be attached more to the patrician societies, yet with our level of sexual equality don’t we have as much chance of a female bigamist as a male, provided each was legal. That should balance out the pairings and keep the rootless young males to a minimum- especially if they are all cabana boys, right?

Would the fact that women could now create their own harems (herums?) remove some of the social obstacles?

Seven Machos said...

Mortimer -- How is Utah violating the federal constitution by doing anything that Utah does?

downtownlad said...

This is a great topic Ann. I'd like to turn this subject around on people. If they are arguing that is perfectly ok to put polygamists in jail for getting married (even though the state does not recognize that marriage) than they are also saying that it is perfectly acceptable to imprison gay people who choose to live together and consider themselves married (even though the state does not recognize that marriage).

So now we know the truth. They want to round up gay people and throw them in jail.

Fitz said...

Downtown

Exactly, adopting same-sex "marriage" makes it very difficult to justify prosecuting polygamy. (just as you infer)

See how the twine starts to unravel?

downtownlad said...

Fitz - I have absolutely no clue what you're talking about.

I don't favor prosecuting polygamy.

Anonymous said...

Unfortunately my (downtown) lad, I don’t think you know what you are talking about either.

The non-sequitur between the jailing of bigamists, who are breaking the law, as well as polygamist, who have the intent to break the law, to the jailing of homosexuals who may or may not be breaking the law, depending on the jurisdiction, is specious.

Other than your post, I haven’t seen a word about the possible jailing of gays, and I specifically remember a post from our gracious host particularly asking us to confine the remarks to the multi-partner marriage issue, and to leave (for once) same sex marriage out of the equation.

Yep; I was right- you have no idea what your talking about.

Joe said...

Eli Blake,

Warren Jeffs was not arrested, and will not be prosecuted for polygamy, but for a combination of things including sexual assault of a minor and accomplice to rape.

The first prosecution of a polygamist based on violation of polygamy laws since the 1950s was Tom Green in 2001 and was, frankly, an expensive joke. (I believe charges were filed against a woman in 2002 for aiding in a polygamist marriage, but I have heard nothing of this since.)

As for historical prosecutions. Going back in history, you find that the Short Creek raid in 1953 was a political disaster.

Before that, there were prosecutions, but they were actually very inneffective and, for the record, none of my polygamous ancestors (of which there were several, none of which hid their marital status) were even remotely bothered, let alone arrested. If anything, the prosecutions/persecutions served only to convince the devoted of the rightness of their ways.

I stand by my original statement that prosecution of polygamy itself has proven to be inneffective and a gargantuan waste of time and money. I also firmly believe that legalizing polygamy will help those abused by it to bring charges. (I have no problem not calling it marriage; I've long advocated that the state get out of the "marriage" business and simply be in the civil union business. I suspect few would actually take advantage, largely for fear of now being held accountable, but also since they don't seen the state as valid player, a large part of the problem in these fundamentalist communities.)

chickenlittle said...

Ann Althouse said:

"I think it's rather obvious that it shouldn't be a crime for adults to live together and call themselves married. As long as it's not about..."


I think you have artifically decoupled the subject matter of the orginal article. Just a few lines in we learn that polygamist have begun to focus on the desire to live "in freedom". Freedom from what? legal prosecution? OK we agree, that's out. But what about freedom from persecution, or freedom from ridicule, or freedom from shame? Somehow, I just don't believe the matter stops so neatly, like the sentence does in your quote above. Some of us just anticipate the concerted consequences. Perhaps you believe in such stepwise legal deconstructions. But that would be just a belief, would it not?

Bruce Hayden said...

A couple of quick points about Mormons and polygamy.

First, members of the Church of Jesus Christ of the Later Day Saints, which is the typical definition of Mormonism, are some of the more opposed people in this country to polygamy - since their prophet conveniently had a revelation that it was no longer acceptable.

Part of the problem is that Mormonism is run essentially run through prophesy. So, the official church prophet had a revelation against polygamy. But in order to maintain it, others had contrary revelations and left the church, founding their own.

But since the legitimacy of the prophets and their prophesies is central to the theological justification for the church, those accepting a different set of prophets and prophesies are apostates. And this is why Mormons who have polygamists in their family trees quite happily prosecute polygamists - not directly because of the polygamy, but rather because of their apostacy.

As probably noted, the Army spent some time in what became Utah trying to flush out the polygamists, in, I believe, the 1880s. They would put them in jail, if found, which was apparently not that easy, with the community helping the polygamists. Apparently, there was quite a lot of strife during this time between the federal govt. and much of the Mormon Church.

Next, part of the antipathy towards Mormons has to do with the fact that they are quasi-Christain. Again, like the apostacy above, this was really more fundamental than just the polygamy. They apparently accept the Old and New Testiments (and I have never heard as much Christmas music as I heard in SLC), but then have added the Book of Mormon of what happened after the Resurection. Indeed, my understanding is that to this day the Roman Catholic church accepts Protestant baptisms, but not Mormon ones. So, they consider themselves Christian, but many (other) Christians do not.

Finally, the way that many polygamists get around the polygamy laws is that the man legally divorces his previous wife in order to marry the next one. So, legally, he is only married to the last one. But, of course, they are all living together, as man and multiple wives. Which is where the bigamy laws come in - the men continue to have sex with the previous wives, even after divorcing them.

Henry said...

Henry, your suggestion is asinine, akin to stating that since the patient has already been stabbed six times, what does it matter if we slit his throat now?

Gay marriage affects the institution of marriage. Decriminalizing polygamy tangentially affects the institution of marriage.

The cultural and legal changes in the 1970s affected actual married people. No fault divorce meant that miserable couples suddenly had an easy way to separate. The move of women into the workforce and development of two-career families directly affected how married people managed their lives and related to each other.

I do not believe that impacting the institution of marriage is remotely comparable to impacting actual married people.

I'm in agreement with Joe about the appropriate way to extend the marriage franchise to same-sex couples (civil unions for all; religious ceremonies for those that want them). I'm in agreement with Simon about the role of the judiciary in making this happen (it shouldn't). I agree that marriage is often good, divorce mostly bad and uniquely destructive to children.

But I still haven't seen any evidence to buttress the idea that extending the marriage franchise will actually harm it, or that the legal-like fantasies of polygamists are anything other than fantasies. I'm simply very suspicious of arguments that devolve to a call to panic.

Pogo said...

Re: "I'm simply very suspicious of arguments that devolve to a call to panic."

Not panic; concern, and resolve. And you won't be aware of 'sufficient' evidence to convince you until it becomes impossible to revert to the status quo ante.

And frankly I am not impressed by those who demand more evidence. Blind to what's right in front of them, they are too easily duped by this sort of cultural three card monte.

And since there are no do overs once essential institutions are dismantled, I'll have to rely on folks with functional early warning systems.

Henry said...

Not "sufficient" evidence, P. You have no evidence to support your concern and resolve.

Here are divorce and marriage rates by state. Unfortunately it only goes up to 2002, but it will only take a few more years for us to see if gay marriage has ruined marriage in Massachusetts.

Pogo said...

Re: "You have no evidence to support your concern and resolve."

For Pete's sake, Henry, I'm not going to repost what's been written a hundred times before. In any event, for people like you, no evidence will ever prove gay marriage responsible for anything at all. It's a nice arrangement, being irrefutable.

But I don't have to play by rules meant for science. "Society" and its construction/destruction are not capable of being defined thus. Your demand for proof is evidence of ignorance to that end.

A phrase like " it will only take a few more years for us to see if gay marriage has ruined marriage in Massachusetts" exposes a narrow and credulous mind, incapable of seeing. It's therefore a bogus discussion, like arguing whether there are or aren't eternal truths. Can't be proven, and you'll read the historical record to fit your theory (i.e. ignoring Western Civilization entirley).

So declare victory, take your ball, and go home already.

Fitz said...

Hennry (writes)
“But I still haven't seen any evidence to buttress the idea that extending the marriage franchise will actually harm it, or that the legal-like fantasies of polygamists are anything other than fantasies. I'm simply very suspicious of arguments that devolve to a call to panic.”
Since you seem incapable of reading up thread, I’ll repeat my original post. I can add scads of “evidence” from Canada as well. Suffice to say the lines between the two are weaker than the lines between traditional marriage & ssm. Add the constant strivings of powerful intellectual and legal elites. Set game match.
(look into those links Henry- these are VERY powerful people and organizations)
"Since then, liberal legal scholars, generally no friend of the polygamists' conservative-leaning politics, have championed decriminalization.'

This neatly avoids the real issue and motives of this country’s “legal scholars” {read – legal elites ensconced in our most prestigious universities}

People like Turly are not just expressing some limited minority opinion…
And Ann’s de-criminalization, live & let live approach is a chimera also.

My Law School’s family law department was staffed exclusively by three lesbian polymorists.

If multiple family forms being privileged must include traditional polygamist sects & same-sex “marriage” is the entry gate then so be it.

All family forms are inherently equal.

AMERICAN LAW INSTITUTE PUBLISHES PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION
http://www.ali.org/ali/pr051502.htm

LAW COMMISSION OF CANADA REPORT: BEYOND CONJUGALITY
http://www.cga.ct.gov/2002/rpt/2002-R-0172.htm


Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships
http://www.beyondmarriage.org/

They make no secret of it….

The want to De-privilege the Privileged (traditional marriage)
And privilege the de-Privileged (any thing but traditional marriage)

knoxgirl said...

So now we know the truth. They want to round up gay people and throw them in jail.

It's all about meeeeeeeeeeeeeeee

Revenant said...

If they are arguing that is perfectly ok to put polygamists in jail for getting married (even though the state does not recognize that marriage) than they are also saying that it is perfectly acceptable to imprison gay people who choose to live together and consider themselves married (even though the state does not recognize that marriage).

I'm not sure how that follows. Polygamy is illegal, even when the marriages aren't legally recognized. Gay marriage is not. Wanting people locked up for violating the laws against polygamy does not imply that you want two guys married through an unofficial ceremony to be sent to prison.