A gentleman in Utah who apparently enjoys the experience of marriage wishes to marry again. No big deal you say, that happens a lot.
But this gentleman wishes to marry Wife #2 while still married to Wife #1.
The State of Utah refused to cooperate, having outlawed plural simultaneous marriage long ago, in accord with the 1878 Reynolds case (excerpt below), courtesy of Prof. Douglas Linder's lovely Con-Law site. Whether you visit his site via Reynolds or not, be sure to note his Con-Law discussion of laws burdening religiously-motivated behavior under the First Amendment, here.
Serial polygamy, recognized in all 50 states, remains legal.
This means one wife at a time, gentlemen, with the prior marriage sundered by death or dissolution of the marital contractual bond by divorce or annulment.
You know what they say about remarriage, don't you? The triumph of hope over experience.
And the main prerequisite for divorce? Marriage.
Why is serial polygamy legal and simultaneous polygamy not?
This a good Con-Law question, and it appears to be coming up, as the gentleman in question, I hesitate to use the term "Marryin' Sam," sued in U.S. District Court, relying on Lawrence v. Texas (2003), the new Liberty case whose facts arise out of a Texas anti-sodomy statute that was held unconstitutional. The language of the decision, however, speaks more broadly to a greater liberty of the bedroom and another zone of personal privacy into which government has no legitimate business intruding, such as inside ones head, the mind and 'heart,' the right to think about, consider, discuss silently or aloud, and to view reading or graphic material (but not to possess kiddie porn, as a matter of traffic control).
The U.S. District Court dismissed the Utah man's lawsuit, making this interesting distinction:
Lawrence frees the man to have sexual relations with another adult who will consent. But the State of Utah controls whom it will allow to marry under its laws, and plural marriage is not one of them.
So, the man can legally invite the woman to live with him and his other wife, or wives, if they live under the same roof, and share his bed, on a rotating basis no doubt, but he cannot marry her.
It seems he can legally do in practice what he cannot do legally in theory. He can have all the near-wives he can attract and support. It's just that only marriage to the first will be recognized by the State of Utah.
Does polygamy lead to (other) criminal activity such as spousal or child abuse, referring to an underage spouse or other person? I don't know what the data looks like, although I've seen claims to the effect that this does happen with some frequency.
I'm not sure this is a rational, substantial, or compelling state reason to prohibit plural marriage, considering that there are more narrowly tailored means of prohibiting those crimes, such as by making them crimes, which they are, and enforcing those more specific laws.
My guess, however, is that the majority of the country will be so opposed to simultaneous plural marriage as a matter of custom, belief, and tradition in Western society for so long that the Court will find reason aplenty to strike down a new attempt to legalize polygamy now.
From what I see in the news, polygamy remains in practice in some rural areas despite condemnation by civil and religious authorities. I have seen alarming reports that women are isolated and virtually coerced into entering plural marriage, such as by becoming pregnant at an early age, sometimes below the legal age of consent. Helpless to leave to find an education and unable to become self-supporting because of motherhood, youth, and lack of money, indoctrination, and other suasion, forceful or not, the woman is compelled to accept her lot as a plural wife. I cannot see the Court legalizing, blessing, or bowing to this apparent reality, nor would I urge it to do so.
When should conventional morality, history, and tradition play a deciding role?
Why don't I leave that heavy question for you to ponder, now that I've managed to get you this far. :)
Here's the news account of the Salt Lake Tribune.
And here's another from DeseretNews.com, stating the gentleman's reading of why Lawrence applies.
This obituary from the NY Times of Owen Allred, 91, the leader of a polygamous sect, provides a window into a different world. With lots of wives, expect lots of children. The interesting advice from the voice of experience is that it's not a good idea to have more than eight kids running around the home at one time. Okay, why don't we all try to remember that.
An excerpt from Reynolds, supra, which I've separated into paragraphs and highlighted in places:
In our opinion, the [bigamy] statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control.
This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the [bigamy] statute.
If they are, then those who do not make polygamy a part of their religious belief [i.e. non-Mormons] may be found guilty and punished, while those [Mormons} who do, must be acquitted and go free.
This would be introducing a new element into criminal law. [So?]
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?
Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? [The practice of suttee in India]
***
Today I think we would expect a fuller exploration of reasons why polygamy must be outlawed.
There's something curiously lacking from the above, which as near as I can tell, is the operative portion of the opinion of the Court in Reynolds.
In Reynolds (1878), Reynolds is a Mormon believer and practicer of polygamy, the practice of having two or more wives simultaneously, not, as we do in a far more civilized manner, serially.
He was convicted of bigamy and sentenced to two years at hard labor.
His appeal maintains that he had no evil intent (mens rea), that his act was excused by his bona fide religious belief. He asserts his freedom of religion. Today we would throw in the claim that decisions on whom to marry and how many are a personal liberty protected by substantive due process (liberty, 14th and 5th Amendments), an area in which the state (government or territory) has no business regulating. The question is whether, under the recent Lawrence decision, supra, he has a point. Are there private areas into which government may not intrude? Whose decision controls, the neighbors, the government, or the individuals most concerned? What about the children? Are they harmed by the network of adult relationships among adults and among children, or are they nurtured, under polygamy? Would it make a difference whether all under the polygamous family live under the same roof, or in separate quarters?
What about the claim of religious freedom for the individual, Mr. Reynolds? The guarantee protects individuals, as all constitutional protections, such as equal protection, are claimable by an individual when violated.
The court simply observes that since it assumes government can prohibit human sacrifice and suttee in the name of religion, it can prevent polygamy.
Hmmm...
Those involve killing people.
Polygamy it different. It involves living and creating more life, albeit in a form of relationship different from the societal norm.
Homosexual relationships were "different from the societal norm" until Lawrence, 2003.
The LGBT (Lesbian, Gay, Bisexual, Transgender) community has fought for respect and recognition, and in Lawrence won a giant step toward that goal. It has not yet achieved recognition of gay-marriage as marriage, although some associated legal rights either have been won or are in litigation, such as the right to adopt and not to have held against one ones gender orientation in custody proceedings.
If living in this society as an LGBT person no longer tears the social fabric, as the Reynolds court seems to be concerned with, how does polygamy tear it?
If Lawrence (2003) (liberty) is a Statue of Liberty case, like Brown v. Board (1954) (equality), as I think Justice Kennedy intended by stressing the liberty (due process) basis by so many repetitions of the word 'liberty' (Justice O'Connor concurred in the decision, stressing the equality basis, not liberty), the Court will have to re-explain its position the next time a Reynolds case comes up, if it wishes the same result. Utah, I believe, occasionally prosecutes for polygamy, thus making it seemingly inevitable that there may be another appeal someday.
Why doesn't the First Amendment's Freedom of Religion (Free Exercise or non-Establishment prongs) protect a person like Mr. Reynolds, who is not killing people, but, as he would argue, affirming life in all its glorious forms?
Here's what the Court says. Maybe you can figure out the justification for state regulation better than I can:
[W]hat is the religious freedom which has been guaranteed....
Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions.
This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. In the preamble of this act religious freedom is defined;
and after a recital "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," it is declared "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."
In these two sentences is found the true distinction between what properly belongs to the church and what to the State.....
At the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: "Believing with you that religion is a matter which lies solely between man and his god; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State."
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.
Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an ofence against society....
From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.
Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.
Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.
In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests.
An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
***
I think we're going around in circles. Polygamy is bad because we don't like it. We didn't like LGBTs very much for a long time either. Or blacks and other minorities, especially Chinese and Japanese, in America. We had to learn over time this was so wrong. We're still learning.
Polygamy is subversive of good order. The rest of the folks are going to get upset and riot. I don't see anti-polygamy riots occurring in Utah and elsewhere in the Southwest where there are reports of the practice persisting in numbers greater than a few.
I've read strong criticisms of the practice, and of other law violations, but those are capable of being prosecuted independently.
Analogize to membership in a gang. In California, one is punished additionally if one is charged and proved to be a gang member. It is a condition of probation in gang cases that the defendant not associate with other gang members or to be present at or near certain locations frequented by gangs. This is to deter gang violence.
Is this the rationale for outlawing polygamy? The act of associating promotes other, ancillary crimes, such as the abuse of wives or children? Perhaps.
What about the notion that unless polygamy is outlawed, the greater society surrounding its practitioners may become disorderly in reaction.
This is a form of the heckler's veto, the notion that if you say something unpopular or controversial, thus causing your audience to take to violence trying to shut you or each other up, the police should shut you up, despite your freedom of speech, instead of quelling the disturbance.
Maybe the police need to do both, at the moment. But under Brandenburg, you have the right to speak until the danger becomes too great, i.e. is imminent.
Imminent is a relative term that exists along a sliding scale of risk, danger, and fear of the roof falling in here and now. As near as I can tell, this is the rule of Brandenburg. Freedom vs. actual danger here, now. Not speculative. And not giving in to hecklers, although they often succeed unlawfully.
In North Beach, San Francisco, recently a woman who opened an art store to sell paintings, and who brought her kids to work, was bullied by an apparent neighbor who objected to the art she was selling. One painting depicted the now iconic figure at Abu Ghraib, Baghdad, where a prisoner had been made to stand on a podium in a dark hooded cloak, arms stretched down to the side, wired to something bad. The neighbor threatened and finally beat the woman up, forcing her to close shop permanently. That was a victory for the heckler's veto over freedom of expression.
The police would have arrested the bully, not the woman displaying the painting, had they "on-viewed" the situation, i.e. witnessed it.
I don't expect the Court to grant cert on polygamy any time soon. Why open this can of worms when there does not seem to be any broad consensus in favor of polygamy either for its merits or as a matter of the free exercise of religion. If there's one thing to be learned from studying Con-Law and the Court, the latter does not wish to forge ahead, where angels fear to tread, ahead of the crowd.
As a legal and moral leader, the Court is one of the most careful followers around.
Get the divorce.
***
3/07/o5
Hold yer horses, not so fast. Don't get that divorce just yet...
This just in.
Just because a judge in Utah has three wives and over 30 kids among'em doesn't mean he isn't a good judge does it?
Not according to his supporters, and judges are fortunate to have any supporters at all, much supporters of 3 wives and 30+ kids. Here's the article...