December 14, 2013

"Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however..."

"... is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage."

Says federal judge Clark Waddoups in Brown v. Buhman, a case about the Utah anti-bigamy statute, which makes it a felony "when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." From the first time I noticed this issue, I've thought the answer was obvious. You can't punish people for the ideas they happen to have about why they are living in a household with multiple sexual partners. Call it a marriage or call it a sandwich. Imagine that God blesses your relationship or imagine that your kitty cats brought you together. It's no proper concern of the government's.

Now, if you want to legally register your marriage and qualify for various marriage-connected benefits and privileges, it's a different matter, and Judge Waddoups makes that clear. This case was not about that. It was about people who live together and perform private marriage rituals and call themselves married. Prosecuting these people, while other married people are left alone when they commit adultery, is criminalizing their speech and beliefs. If you understand the issue, I think you'll see this must be the answer.

This does not lay the groundwork for finding a right to marry multiple spouses any more than it compels the government to prosecute adulterers.

45 comments:

Marshal said...

This does not lay the groundwork for finding a right to marry multiple spouses anymore than it compels the government to prosecute adulterers.

The groundwork was already laid, and this does nothing to prevent it. Still unclear is the alleged miracle value of "1". Somehow the constitution mandates gay marriage - something which had never existed in the history of humanity - but we're to believe plural marriage is different.

In short, this doesn't "lay the groundwork" only because the elites who decide what our law means haven't yet decided it does. But the minute they do the constitution will miraculously say what those elites want it to mean. Just as when non-discrimination meant non-discrimination until the minute those elites decided non-descrimination meant discrimination.

Kirby Olson said...

Marriage has no definition if you remove it from its religious origins. And in order for it to be a state law, it can't have a religious legitimation.

Marriage falls into a no-man's land.

It seems if people wanted to have it happen a cat could marry a table. But the tax problems wouldn't be clear.

traditionalguy said...

I see you point. Adultery should be prosecuted.

Quayle said...

"It's no proper concern of the government's."

Well, I'm glad we finally got that all figured out.

I'll make it a point to tell my Great Uncle Angus, next time I happen to see him.

AustinRoth said...

As I said about another issue on a different board, there is no slipper slope to worry about when you are already there.

And we are already there. Now the only thing left is details.

And one wonders what the impact of this liberalization of the definition marriage will be when one of the multitude of planned lawsuits trying to establish "personhood rights" for various sentient animals finally and inevitability succeeds.

Edward Lunny said...

" Now, if you want to legally register your marriage and qualify for various marriage-connected benefits and privileges," This, I suspect, is ultimately what they want. I wonder how many of these particular arrangements subsist through the use of government benefits. Since marriage isn't possible, legally, could the single mothers qualify for government benefits ?

sunsong said...

It seems like only the libertarians truly advocate for freedom and liberty for all. The republicans and the democrats each want to use the force of government to control society. Each side, of course, says that whatever it is that they *believe* is better for the rest of us if we are forced to live by it.

We have had "traditional" marriage laws forever, we are told, but I don't see any evidence they have made society better. That's probably a big reason why that argument is losing support.

YoungHegelian said...

@EL,

I wonder how many of these particular arrangements subsist through the use of government benefits. Since marriage isn't possible, legally, could the single mothers qualify for government benefits ?

Government benefits are how the game is played. The polygamous wives all apply for benefits for themselves and their children, listed on the rolls as single mothers with children.

You don't think that most of these "fundamentalist Mormon" guys in the hinterlands of Utah or Arizona actually have jobs that allow them to support multiple families, do you? Without government benefits, these plural families couldn't exist at all.

There are also Muslim plural families that run the same scam, especially in Britain.

Say what bad things you want about the culture of polygamy in traditional Muslim societies, but at least if you couldn't afford more than one wife on your own without (since there were no government freebies), you only got one wife.

Jason said...

This calls for a nice, refreshing glass of Polygamy Porter!

Jason said...

Polygamy makes a ton more sense to me than same-sex marriages.

But then again, I'm old fashioned that way.

Oops! Goat-milking time!!!

Jason said...

sunsong: We have had "traditional" marriage laws forever, we are told, but I don't see any evidence they have made society better.

Were you born that stupid, sunsong? Or did you have to work at it?

Deirdre Mundy said...

Just like Lawrence didn't lay the groundwork for gay marriage?

chuckR said...

EL - many single mothers are married to Uncle Sam and their relations with the baby daddies have the whiff of adultery...
YH -"Say what bad things you want about the culture of polygamy in traditional Muslim societies, but at least if you couldn't afford more than one wife on your own without (since there were no government freebies), you only got one wife." Pretty much sums it up whether polygamy is sanctioned in a society or not - a self-limiting institution. OTOH, sanctioned or not, if you are wealthy, you can get away with it regardless. See for example H L Hunt.

Broomhandle said...

"call it a marriage or call it a sandwich..."

Exactly. Consenting adults. I'm to the right of Genghis Khan and I still can't figure out why we waste any time wrestling with this.

Bob Ellison said...

It would be wrong to make fun of a name like Judge Waddoups.

YoungHegelian said...

@Bob Ellison,

Do you think he would hold you in contempt of court if you greeted him in the morning with a hearty "Dude, Waddoups?"

Mark Nielsen said...

What about visitation rights in hospitals and inheritance law? Those things helped make the compelling case (with me anyway) that a legal status for gay domestic partnerships should be created. And what about addressing the indignity of having the government refuse to recognize a family's commitment? Isn't this a human rights issue?

jimbino said...

No, it's most like a harem.

A Utah man could marry a cute foreigner of 18, divorce her after 10 years, continue to live and breed with her, and marry another cute foreigner at 18, and so on for 5 wives in series.

He would work, of course, leaving his harem at home to care for him and the 50 children.

All the wives, though never having worked for wages, will still be entitled to share in his SS and Medicare benefits when they are old.

Indeed, each concubine, after divorce, will be entitled to gummint benefits accorded to other single mothers.

So the gummint welfare system will have showered foodstamps, EITC, Medicaid, subsidized Obamacare, SS and Medicare benefits on all the wives, ex-wives and all their children.

It's a great time to be Mormon!

Basil said...

This is exactly the mode of thinking that is destroying civilization. When one refuses to recognize the value to civilization of the nuclear family, the rest is managing the decline until such time as common sense returns.

The answer to the marriage is between one woman and one man is to simply state that this is what thousands of years of trial and error has determined is the best relationship to raise children and to keep the barbarians from the gate.

The professor fully supports the redefinition of normal, without regard to the easily foreseeable consequences, all to avoid being called a bigot by those who actively seek the elimination of the normal family structure.

Why is hard to understand.

mccullough said...

It's very difficult to prove selective enforcement of the law based on a protected characteristic. The judge is saying that the part of the law being struck down was motivated by religious discrimination. If that's true, then selective enforcement of a neutral law doesn't come into play and is irrelevant. The judge seems to have confused the two issues. Also, by relying on Lawrence he's also saying that spouse approved adultery cannot be prosecuted. This opinion is a bit of a hodgepodge.

n.n said...
This comment has been removed by the author.
n.n said...

The reason to not normalize polygamy, is that it precludes biological diversity. The reason to tolerate polygamy, is that it, like homosexual behavior, while practiced by a minority, does not pose an imminent threat to the viability of a society or humanity. However, the argument against normalization is invalidated with the introduction of sperm and egg donors. It is further invalidated with the normalization of abortion, which can be used to terminate any freakish or unwanted reproductions.

Whether it is progressive morality or technological developments, we live in interesting times.

Carl said...

Good work, judge! We still need to clear away some legal underbrush to accommodate the future in which, after having destroyed the beta male who makes possible monogamy, we will evolve back to the tribal primate days in which each alpha had his harem.

I'm definitely looking forward to ten or twelve women competing to be among the three or four in my "marriage." I've got to limit the number, though, to get any work done. You fellas who can handle a dozen or two -- I take my hat off, that's stamina.

hombre said...

"Whether it is progressive morality or technological developments, we live in interesting times."

There is no "progressive morality." It is moral relativism and as changeable as the sands beneath the wind.

PB Reader said...

I think the ground was laid and this is just another step in the process. Ultimately you have to ask yourself, "What's special about two?" If you eliminate the basic biological basis for the union of one man and one woman, to allow two people of the same sex to marry and ban more than three or more would seem to be discriminatory.

n.n said...

hombre:

Progressive is an unqualified term to describe monotonic change. It does not inherently represent a positive or negative quality. The people who advocate for moral relativism describe it as progressive morality. It's actually a selective morality, which fluctuates with context.

Deirdre Mundy said...

Maybe we can let states experiment. Some can legalize gay marriage. Some can legalize polygamy. Some can legalize both. Some can legalize neither. Then we can observe the effects on society and use that to make a national policy.

Sort of like what we should have done with healthcare reform...

Ann Althouse said...

Please recognize that the issue here is not the legalization of polygamous marriage. It's the decriminalization of sex.

Ann Althouse said...

If the state were willing to prosecute adulterers, it could begin to make an argument for prosecuting these religious plural families.

But it isn't.

Ann Althouse said...

Prosecuting these people is like prosecuting only gay people for sodomy. It's not like the gay marriage question. It's like criminalization of sodomy only when it is between persons of the same sex.

jimbino said...

The fact is that cohabitation, partnership, civil unions and marriage only burden society on account of the tax, SS and Medicare benefits accorded them by the gummint.

Breeding, however, is a different matter altogether: all those babies make for expensive delivery, childcare, headstarts, public mis-education, global warming and so on.

Instead of regulating the combinations of heteros and homos, the gummint ought to focus on sterilizing or imprisoning the breeders.

mccullough said...

There doesn't seem to be any evidence of selective enforcement. Adultery isn't the type of crime police go out investigating on their own. The people here are on TV calling attention to themselves.

The Supreme Court has discussed the high burden to show selective enforcement of the laws. This judge ignores that.

Gahrie said...

We have had "traditional" marriage laws forever, we are told, but I don't see any evidence they have made society better.

Go back and look at the state of our society fifty years ago before we started destroying marriage and compare it to society today.

Deirdre Mundy said...

Decriminalizing is the first step to legalization. If they're not doing anything *wrong*, why shouldn't they have the full protection of the laws?

For instance, what if a child in a plural marriage gets hurt? Shouldn't whichever mom is present have the right to make medical decisions and accompany him to the hospital?

What about death taxes? If a wealthy bigamist dies, why can't ALL of his wives inherit tax-free? After all, they've been sharing the house and responsibilities all those years, and they all assisted in BUILDING his wealth!

What if plural wives want to visit each other in then hospital? What about plural divorce? Don't they deserve the same legal protection that dyadic couples receive?

They pay taxes, so why are you denying them the full protection of the marriage laws! Their committed relationships DESERVE legal recognition. Any feelings to the contrary are just plain old bigotry!

Richard Dolan said...

The constitutional issues may have obvious answers, but the practical issues don't. It's all well and good to note that a holding protecting informal polygamous marriages from prosecution doesn't mandate civil recognition of such marriages, or even preclude prosecution if they are not singled out irrationally. But the reality is that, freed from any practical threat of prosecution, polygamous relationships will force changes in how families generally are treated in the law -- across the board, wherever the law interacts with families.

Reality trumps legal theory every time, and that almost always results in an improvement in the law.

Kirk Parker said...

YoungHegalian,

"Say what bad things you want about the culture of polygamy in traditional Muslim societies, but at least if you couldn't afford more than one wife on your own without (since there were no government freebies), you only got one wife. "

One of our (Western, single-woman) colleagues was always being hit on by the few Arabs in our neighboring town (early 80's in southern Sudan.) One day she was in one of the bigger shops in town when this guy suggested, yet again, that our colleague marry him. She turned to the shopkeeper--known and liked by everyone--and said, in everyone's hearing, "Why doesn't [shopkeeper] ever ask me to marry him?"

"Madame", the shopkeeper replied, in somewhat broken English, "Two wives--[in our local town]. Two wives [in] Khartoum [the capital--in other words he's already maxed out in Islamic terms]. Very expensive!"

Kirk Parker said...

Carl wins at 2:09pm!

Or maybe not... he glosses over the fact that all* his fellow-males will be gunning (pun intended) to be one of the guys that a dozen babes will by vying for, instead of one of the ones to whom they say, "What? With you? Get real!"

----------------------------
*OK, I suppose that should say "many of" rather than "all". Same difference, there's still a huge number against the one him, trying to knock him off his perch.

sunsong said...

Go back and look at the state of our society fifty years ago before we started destroying marriage and compare it to society today.

Big Barf Alert - lol
Surely you jest :-)

Women aren't going back. And don't forget, women will want to marry more than one man, as well :-)

My mom used to say she would like one husband who was a good lover, one who was a wonderful handy-man, one who was a loving father, one who made loads of money, one who liked to travel and dance, go to the theater and have fun, one who was fascinating to talk to...I think there were more :-)

Kirk Parker said...

Sunsong,

"Used to say", as in this was a common theme when you were growing up?

That explains a lot.

eric said...

It absolutely does not lay the groundwork for Polygamous relationships.

Homosexual "marriage" already did that.

eric said...

"Please recognize that the issue here is not the legalization of polygamous marriage. It's the decriminalization of sex."

Call it the decriminalization of sex, or the decriminalization of cats, or the decriminalization of polygamous marriage.

A rose is still a rose no matter what you call it, Professor.

eric said...

"The offense of cohabiting with more than one woman, created by § 3 of the Act of Congress of March 22, 1882, ch. 47, 22 Stat. 31, in regard to polygamy in the Territory of Utah, is committed by a man who lives in the same house with two women, and eats at their respective tables one-third of his time, or thereabouts, and holds them out to the world, by his language or conduct, or both, as his wives, and it is not necessary to the commission of the offense that he and the two women, or either of them, should occupy the same bed or sleep in the same room or that he should have sexual intercourse with either of them."

From the link provided by Quayle.

Jeff Teal said...

It is really going to be a nice place to live when the non selected males start deciding that the selected males need to go away permanently.And will the wives get any choice in that?

Joe said...

As Eric implied (perhaps) it is the fight against polygamy that laid the groundwork for same sex marriage.

In order to prosecute polygamists for bigamy, the federal and Utah government reinvented marriage to a very loose common-law definition. The problem being that this definition implies that homosexuals who see their relationship as more than sex and having any spiritual aspect to it, are defacto married.

The "law" of unintended consequences strikes again.

scott england said...

most people in america are not particularly religious, even though they may claim a religious sect. There are also many atheists and agnostics. all of these people still get married. certain animals, including hominids have been engaging in lifelong monogamous commitments way before religion was invented. If you ignored that FACT and stated that marriage originated as a religious matter, it no longer is since the majority of new marriages in the US are by non religious folks. If marriage is a religious matter, it would be unconstitutional for the gocernment to make any law for or against it. Please, let us not be blind in this matter.