Is lawful polygamy next?

townhall.com ^ | 1/16/04 | Jeff Jacoby

[kattracks]

Three adults who want to live together as a husband and two wives asked a federal court this week to strike down Utah's ban on polygamy as a violation of their constitutional rights.
 
    The plaintiffs are G. Lee Cook and D. Cook, a married husband and wife, and J. Bronson, the woman who wants to join them in a "plural marriage."  According to the lawsuit filed on their behalf by the Utah Civil Rights & Liberties Foundation, the Cooks and Bronson share "sincere and deeply held religious beliefs" in polygamy as it was practiced in the early decades of the Mormon Church.  Acting on those beliefs, the three of them went on Dec. 22 to the Salt Lake County Clerk's Office, where Mr. Cook and Ms. Bronson applied for a marriage license.  But since Cook acknowledged that he was already married -- his wife was right there with him -- the license was refused.
 
    "The law makes it very clear that they can't be married to more than one person," the county clerk told the Salt Lake Tribune.  "We're here issuing licenses according to the law."  That law is written right into Utah's constitution, which declares: "Polygamous or plural marriages are forever prohibited."  And that, the plaintiffs argue, deprives them of their religious freedom and privacy rights under the Constitution.
 
    It's an open-and-shut case, of course.  They haven't got a prayer.
 
    Or have they?
 
    Last June, in Lawrence v. Texas, the US Supreme Court overturned a Texas anti-sodomy law on the grounds that the Constitution protects "an autonomy of self that includes freedom of . . . certain intimate conduct."  Five months later, guided in part by Lawrence, the Supreme Judicial Court of Massachusetts ruled that the age-old ban on same-sex marriage was "incompatible with the constitutional principles of respect for individual autonomy."  The essence of civil marriage, said the SJC in Goodridge v. Dept. of Public Health, is simply "the exclusive and permanent commitment of the married partners to one another."
 
    Well, if that, constitutionally speaking, is what makes a marriage -- the intimate union of permanently committed partners -- why shouldn't the trio in Utah be allowed to marry?  On what principled ground can they be denied the protections and benefits of matrimony?
 
    To be sure, Utah isn't Massachusetts and federal court isn't the SJC.  But logic is logic.  If judges in one jurisdiction can decide that the right to marry includes the right to change the very definition of marriage, judges in another jurisdiction can do the same thing.
 
    Some advocates argue that it is insulting to compare a homosexual person's wish for a same-sex spouse with a polygamist's wish for multiple spouses.  "Gay people are not asking for the right to marry anyone," writes Andrew Sullivan, a leading champion of same-sex marriage.  "We're asking for the right to marry someone.  Would-be polygamists already have a legal option: to marry a single other person."
 
    But of course gay people have always had exactly the same option.  They are free to marry someone of the opposite sex, and throughout history, countless homosexuals have done exactly that.  Nevertheless, Sullivan claims, for gays and lesbians, opposite-sex marriage "is no meaningful option at all."
 
    Isn't that exactly what the Utah plaintiffs would say about binary marriage?  According to a "doctrinal overview" they filed with the court, so-called fundamentalist Mormons regard plural marriage as "a doctrine revealed by God, obedience to which is necessary for their desired eternal exaltation."  A freakish notion?  Until very recently, that is what the vast majority of Americans thought about same-sex marriage, too.
 
    The implication of Lawrence and Goodridge is that the only people entitled to decide whether an intimate relationship is meaningful enough to deserve legal protection are the parties to that relationship themselves.  If other courts follow suit, the damage inflicted on marriage as we know it -- indeed, on the social order as we know it -- will be considerable.
 
    This is why the power to define marriage has always been vested in the political branches of government, not the courts.  The Massachusetts Constitution is explicit on the point.  Part 2, Chapter III, Article V: "All causes of marriage, divorce, and alimony . . . shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provisions."  As recently as 1999, the Supreme Judicial Court acknowledged that marriage was the Legislature's domain.  "We recognize a family may no longer be constituted simply of a wage-earning father, his dependent wife, and the couple's children," the SJC said in Connors v. City of Boston, but "adjustments in the legislation to reflect these new social and economic realities must come from the Legislature."
 
    The question for the Massachusetts Legislature is whether it will reclaim its authority to say what marriage means, or meekly submit to the high court's power play.  Lawmakers, too, take an oath to uphold the Constitution, and they have a duty to resist when judges overstep their bounds.  When they fail to do so, the fallout can spread far and wide.  The lawsuit filed Monday in Salt Lake City is just a taste of things to come.

©2003 Boston Globe

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[Torie]

Those that equate the judicial dynamic of gay marriage with that of polygamy, simply don't have a clue, for both prudential reasons, and because of the cultural perspective of the legal elite. It won't happen. Those that equate, simply don't want to debate the issue of gay marriage on the merits all too often. They want to deflect with bogeymen. JMO.

[goldstategop]

Why not? If a man has the right to marry a man or a woman has the right to marry a woman, surely there's no principled or rational objection to polygamous marriage. The SCOTUS has made it clear "morals" legislation involving private and intimate conduct doesn't have a leg to stand on. The only reason for prohibiting polygamy is opposition to Mormon fundamentalist beliefs. But that's just as indivious as being opposed to same sex marriage cause the sight of gays and lesbians getting married makes some people uncomfortable. After all its all about sex and its time to move on.

[ppaul]

Why not?
"You cannot legislate morality," right?!!

[claudiustg]

---Those that equate the judicial dynamic of gay marriage with that of polygamy, simply don't have a clue---

But from a legal standpoint if the law cannot limit the sex of those entering the marriage contract, on what basis should it then limit the number?

[Torie]

Because the law is about the moral precepts of those that fashion it first and foremost, in the wide swath of discretion over constitutional interpretation the courts have seized for themselves. Second, polygamy is about by and large the exploitation of men of women, who bring in a younger model when they get bored with the aging one, and by per force, imperiling the status and economic security and rights of the aging obsolescent model. And that isn't going to stand, ever, not in the USA, and certainly not in the elite legal community courts, who are not going to stand for the exploitation of women.

Gay marriage on the other hand is perceived, and I think by and large rightly, as an emotional and deep seated disgust of male gay behavior, particularly by men, and the rest of the argument is mostly window dressing for that primordial reaction. And that isn't going to sell in the circles to which I am referring.

That is about as candid an explanation as I can give. You might not like it, but it is spot on, just in my opinion of course.

[I_dmc]

or species, for that matter?

[tracer]

Probably on the basis of potential deleterious effects on children conceived and born within a polygamous family structure.....

[tortoise]

Is lawful polygamy next?

As long as they aren't a burden on me, I don't object. Consenting adults in heterosexual marriage is fine with me; the polygamy aspect has been a norm in most cultures, including European, until relatively recently. I have a hard time finding a moral objection if the i's are dotted and the t's are crossed.

[goldstategop]

Exactly. The point is any restriction is a purely arbitrary choice.

[Torie]

When it comes to Europe, particularly France, I think you are mixing up mistresses with multiple wives. Big difference.

[I_dmc]

According to some, in Mormon history, it was far less an issue of older men wanting to replace wives with newer, younger models, than it was the fact that it was perfectly legal to kill Mormons. Usually the men were the one's killed, leaving a large number of "wives" to be cared for. This was the original justification (from a pure standpoint of logic) because the birthrate was rather necessary to maintain. As this became less of an issue, other reasons for polygamy became more common. For those raised under the other reasons, it was not a universally pleasant experience.

[hosepipe]

What if, say , a man(bi-sexual).. wanted to marry a man -AND- a woman.. Is it polygamy or polyandry ?... We don't even have a word for that.. Opening pandoras box is foolish and its been opened.. Is there anything as dumb as a lawyer ?..

[Torie]

Ya, except that Brigham Young only came out of the closet on polygamy, and got militant about it, after the Mormans were relative safe and secure in Utah, and not being killed by gentiles (indeed, some of the killing was the other way around, but that is another story). Young's public announcement on the matter caused great dissention among the flock, and caused many to leave Zion over the issue. The defections in Northern England, in impoverished mill towns, where the Mormans had made massive inroads, were massive, and the inflow from that region to Zion and to Mormanism in general were largely staunced. Indeed prior to Young and his flock securing Zion, the whole thing was kept secret, and only practiced and sanctioned by the inner circle. At least, that is what I have read.

[ppaul]

...polygamy is about by and large the exploitation of men of women...

And why is that wrong, exactly?
Who says it's wrong, you?
And what if I say it's okay?
Upon what moral principle do you base your judgment?
If we cannot apply outdated Biblical morality in regards to "marriage", doesn't anything go?
I mean, let's be ideologically consistent here, shall we?

[Torie]

I was making a prudential argument about an issue that has traction for some, and perhaps not others. That is all.

[Gunslingr3]

Probably on the basis of potential deleterious effects on children conceived and born within a polygamous family structure.....

Deleterious in what respect? If there is a 'stay at home mom' and two working parents, seems like the family might be more secure. It's like Heinlein's ideas about the evolution of family structures are starting to emerge. There are biological considerations in pair-bonding, but how much of that is learned behaviour?

[ppaul]

I was making a prudential argument about an issue that has traction for some, and perhaps not others. That is all.

But you see where the arguments break down?
If there is no God from whom we ultimately derive our rights and laws, then there is no Supreme Lawgiver to whom we are accountable. Every man for himself. Power is the ultimate. Survival of the fittest. Hitler was on to something, eh? If there is no God, if our laws/judgments are ultimately based upon evolutionary materialism, then Nietzsche's superman is the highest good - Hitler was right after all.

[Torie]

The tendency in polygamous societies is for older men to snatch up women as soon as they are nubile, as their tertiary wives, and keep them barefoot, uneducated, and in the kitchen. Can you dig it?

[Torie]

A priori beliefs are essential, no doubt, and religion is helpful as a practical matter, since for many, getting it "right" on their own is simply too difficult. But religious tradition cannot be a strait jacket either. It is a balancing test, and a bit of a high wire act I agree, but fewer and fewer in the developed Western democracies accept religious tradition uncritically. They fuse it into their own judgments and life experiences. And that is the way it is, and I think it is largely, but obviously not totally, to the good.