century and a half ago, Mormons made national headlines by claiming a First Amendment right to practice polygamy, despite criminal laws against it. In four cases from 1879 to 1890, the United States Supreme Court firmly rejected their claim, and threatened to dissolve the Mormon church if they persisted. Part of the Court’s argument was historical: the common law has always defined marriage as monogamous, and to change those rules “would be a return to barbarism.” Part of the argument was prudential: religious liberty can never become a license to violate general criminal laws “lest chaos ensue.” And part of the argument was sociological: monogamous marriage “is the cornerstone of civilization,” and it cannot be moved without upending our whole culture. These old cases are still the law of the land, and most Mormons renounced polygamy after 1890.
The question of religious polygamy is back in the headlines ”“ this time involving a fundamentalist Mormon group on a Texas ranch that has retained the church’s traditional polygamist practices. Many of the legal questions raised since this group was raided are easy. Under-aged and coerced marriages, statutory rape, and child abuse are all serious crimes. Those adults on the ranch who have committed these crimes, or intentionally aided and abetted them, are going to jail. They have no claim of religious freedom that will excuse them, and no claim of privacy that will protect them. Dealing with the children, ensuring proper procedures, and sorting out the evidence are all practically messy and emotionally trying questions, but not legally hard.
The harder legal question is whether criminalizing polygamy is still constitutional. Texas and every other state still have these laws on these books. Can these criminal laws withstand a challenge that they violate an individual’s constitutional rights to private liberty, equal protection, and religious liberty? In the nineteenth century, none of these rights claims was available. Now they protect every adult’s rights to consensual sex, marriage, procreation, contraception, cohabitation, sodomy, and more. May a state prohibit polygamists from these same rights, particularly if they are inspired by authentic religious convictions? What rationales for criminalizing polygamy are so compelling that they can overcome these strong constitutional objections?
I enjoy sightings, but I’m a bit disappointed. There are good economic and social reasons to oppose polygamy, which he alludes to. Monogamy fosters social peace by democratizing (or equalizing) sexual partners. It gives more power to women.
Unfortunately, once we decide the “market” can’t be regulated, its a slippery slope….
[blockquote] For nearly two millennia, the Western tradition has included polygamy among the crimes that are inherently wrong – not just because polygamy is unbiblical or unsavory, but also because it routinizes patriarchy, jeopardizes consent, fractures fidelity, divides loyalty, dilutes devotion, fosters inequity, promotes rivalry, foments lust, condones adultery, confuses children, and more. [/blockquote]
Yeah? And? So does the serial monogamy we practice in this country. And as long is divorce is legal, cheap, and not a stigma, that’s what we’re comparing. Not polygamy and monogamy, but structured polygamy versus unofficial, unstructured polygamy and serial monogamy.
Emory U has gone downhill if this is the best they have to offer. This article does not even come close to a compelling argument for maintaining legal prohibitions against polygamy in our current culture.
And we’ll have to go back up aways on that slippery slope before we have a leg to stand on…
Let us suppose polygamy is challenged on civil rights grounds and it wins its case. Will this not mean that homosexual marriage becomes a shoo-in? An obviousness? Or would America be so repulsed by such a ruling that it would produce a backlash that would re-criminalize polygamy and permanently cripple ssm at the same time? Initially, I would have said that the former wold be the result, America having gone so far down Decadence Mews. But a second thought favors the latter, because there is a faint resistence being built against American excesses that will grow stronger and stronger as we grow into harder and harder economic times. What do you think? Is this too simple-minded? Larry
From California Justice Marvin Baxter’s dissent in the case that overturned California Proposition 22 (which passed 61% to 39%):
[blockquote] The bans on incestuous and polygamous marriages are ancient and deep-rooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.
That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?
-Slip Opinion (dissent) at 17.
[/blockquote]
In point of truth, once the bright-line definition of marriage (marriage = one man + one woman) has been erased (as courts are currently doing), there is no logical reason for not allowing polygamous, incestuous or other perverse “unions.” As Justice Scalia noted, the U.S. Supreme Court’s “famed sweet-mystery-of-life passage” (“ ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ â€) it becomes “…the passage that ate the rule of law.” [Scalia, dissent, Lawrence v. Texas, 539 U.S. 558 (2003)]
$, Indeed. In fact the logic of the arguments being used to normalize homosexual marrage fully support polygamy or any other arrangement people can come up with. And how can the state say “No” without being arbitrary? What we have done is elevate all behavior into a fundamental right.