Saturday, October 2, 2010

Polygamy advocates in the U.S. have cause for hope

(published in the Marianas Variety (August 2010) as "Matrimonial Chaos)
Justice Vaughn Walker, in striking down California’s ban on gay marriage (Perry v. Schwarzenegger), has opened wide the doors for the much persecuted advocates of plural marriage. A little background:

In 1862, in a response to the Mormon practice of a man taking multiple wives, Congress passed the Morrill Anti-Bigamy Act. The law was largely unenforced. So 20 years later, Congress passed the Edmunds Anti-Polygamy Act (1882), which was enforced, and resulted in more than 1,300 men being sent to prison.

Women were initially seen as victims and were not prosecuted directly, but since the Act also abrogated “spousal privilege”, many were found "in contempt of court" and jailed for refusing to testify against their husbands.

The Edmunds Act not only made polygamy, which it called “unlawful cohabitation”, a felony but also revoked polygamists' right to vote, made them ineligible for jury service, and prohibited them from holding political office.

Five years later, Edmunds was at it again with the Edmunds-Tucker Act (1887) which further persecuted the Mormons. The Act disincorporated the Church, allowed the federal government to confiscate its property, disenfranchised women, and removed local control of school textbook choice...and this is only a partial list. (Talk about a persecuted minority!)

In 1892, Congress hammered another nail in the polygamous coffin with a federal anti-bigamy provision which excluded polygamists from immigration into the United States. It remains part of the current U.S. Immigration and Naturalization Code. (Wonder if they are enforcing this on Muslims?)

In 1878, the first challenge to the federal ban on plural marriage reached the Supreme Court in Reynolds v. United States. Reynolds, a Mormon, simply obeying the statutes of his religion and having two wives,  challenged the ban under the First Amendment clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

The Court responded by stating that the word “religion” was not defined in the Constitution and “must go elsewhere...to ascertain its meaning”.  The “elsewhere” that the Court settled on was a letter by Thomas Jefferson to the Danbury Baptist Association wherein Jefferson writes in reference to the Establishment Clause: “...that the legislative powers of the government reach actions only, and not opinions”.

In other words, the federal government cannot tell you what to think about religion (opinion) but they can tell you what you can and cannot do (actions), especially when, as the Court deduced, those actions which are “in violation of social duties or subversive of good order.” (This same letter, by the way, is where we find the troublesome reference to “separation of church and state”.)

The Court then baptized Jefferson’s letter (and in effect judicially amended the Constitution) with the following sentence: “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.” (As you can see, the Court’s argument can be reduced to “because Jefferson said so.”)

But the nasty business of defining “subversive of good order” was still left undone. In order to fill in the blanks, the Court resorted to a reasoning that today would be laughable (but still stands): “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.” Translation: Europe, the U.S., and White People are civilized. Black and Yellow people are heathens. Today, Reynolds remains the law of the land. (Reynolds went to jail for two years.)

But now the Walker decision has produced the first real opportunity in over a hundred years to reverse Reynolds and legalize polygamy. And if I was a polygamy advocate, I would piggy-back on the Perry case all the way to the Supreme Court. For if marriage is only a “union of equals” (Perry pg 113) then not only is gender no longer a limiting factor, but number as well. In other words, “Why only two?” After all, polygamous marriage has a far greater historical pedigree than does homosexual marriage. (Contrary to the Reynolds reference to Asians and Africans, polygamy was an essential feature of the Judaic tradition, a tradition this country claims as part of its foundation.)

The crazy thing is that we already allow a form of polygamy in our country. Quoting the header at Polygamy.com: “A man can have sex with as many women as he likes. But he can’t marry more than one. If we don’t have a good reason to discriminate, then we probably shouldn’t.” And of course men and women can marry as many partners as they want. They just have to do the paperwork.

In addition, while a man is sent to jail for making a legal commitment to the women he has sex with (if more than one), another man is free to disseminate his seed with abandon (with the state often picking up the tab to care for his progeny), so long has he doesn’t legally commit to any more than one.

But aside from polygamy, there are other considerations regarding legal obstacles to marriage the Walker decision has opened up such as: age requirements, consanguinity (blood relations), affinity (kinship by marriage), vaccination requirements, disease testing, physical exams, proof of sufficient mental capacity, waiting periods, impotency, and consummation laws (still valid in some states, e.g. Alabama).

Given Walker’s decision that “same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage...” (Page 113), there simply is no reason to prohibit marriages between brothers and sisters, mothers and sons, uncles and nieces (or nephews for that matter) one man and 10 women, 10 men and one woman, etc.

The fact that such a list of restrictions on marriage exist in law is a testament to the state’s foundational understanding and expectation of marriage: to produce and educate the next generation. If this is no longer the case, then none of the civil impediments to marriage have any foundation and either must be struck down or the civil institution of marriage eliminated altogether.

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