— by Polydamas
We here at The Cassandra Times have long been in favor of a government of few specifically-defined duties and carefully limited powers. Some of the most unjustifiable abuses of power by a government are its legislation and enforcement of laws that are premised upon religious beliefs that are not universally shared by the populace it governs.
It should be undisputed that every person has the right to choose for himself or herself to follow certain religious beliefs and practices. What the religious believer cannot do is to force one’s religion down the throats of others on pain of death, violence, threats of violence or other punishment. Admittedly, in past millennia, death or threats of death and violence have been the precise modes of the transmission of all religions, both polytheistic religions such as Hinduism and monotheistic religions such as Judaism, Christianity, and Islam. Although every other religion ceased its old practices of proselytizing non-believers by force, Islam, which is the most dogmatic and reactionary of the monotheistic religions, continues to this day in offering infidels the choice of the Quran or the sword.
Although Muslim countries continue to the present time to enforce religious sharia laws, the enforcement of religious laws has fallen into disfavor in western countries over the past several centuries. The remaining vestiges in western countries of laws that enforce religious dogma can be found in statutory codes prohibiting so-called vice by consenting adults and the transaction of commercial activities on the Sabbath and other religious holidays.
A prime example is the religiously-based condemnation and outlawing of homosexuality. The condemnation is premised upon the Bible and the verse of Leviticus 18:22 which states “Do not lie with a man as one lies with a woman; it is an abomination.” Leviticus 20:13 prescribes death as punishment, stating “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.” The Biblical prohibition against homosexuality was subsequently adopted by Christianity and Islam.
As recently as 1986, in a case called Bowers v. Hardwick, the United States Supreme Court stated that “the Constitution did not confer a fundamental right to engage in homosexual sodomy.” The concurring opinion of Chief Justice Warren Burger concluded that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” The moral teaching that Justice Burger refers to is religious-based.
Ultimately, the dissenting opinion in Bowers v. Hardwick prevailed and proved to have signaled a quasi-libertarian turnaround in the Supreme Court’s rulings on privacy. It was written by Justice Harry Blackmun who correctly stated: “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
Subsequently, in 2003, the United States Supreme Court justly reversed its course in Lawrence v. Texas and struck down state laws criminalizing sodomy in Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia. In its decision enlarging individual liberty, the Supreme Court forcefully wrote the “statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”.
Interestingly, the dissenting opinion of Justice Antonin Scalia warned of the wide-reaching implication that the Supreme Court’s decision in Lawrence v. Texas endangered the validity of state laws based on morality, such as laws prohibiting bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. Precisely.
We here at The Cassandra Times are non-conformist libertarians of the “live and let live” persuasion, as was Robert Heinlein, the author with the greatest influence on our childhood and adolescence. In our opinion, all laws criminalizing the private acts of consenting adults are invalid if the acts were without force, fraud or threat of violence. Thus, all laws against bigamy, same-sex marriage, prostitution, masturbation, adultery, fornication, and obscenity, which are based upon religious belief, should be struck down as unconstitutional.
Notably, bestiality and adult incest require additional explanation. Bestiality should be illegal because the animal is not an adult human being, has not, and cannot give its consent to the act. Also, we have serious moral reservations about adult incest if the union will bring a child into the world with genetic defects. However, our reservations do not allow us to trump the participants’ freedom of choice. Their freedom of choice does not permit them to evade the consequences of their union, e.g., they must care for their child and cannot abdicate their responsibility to others or to the State.
Considerations of space do not permit a discussion of all of these morality-based laws. However, let us just examine laws against polygamy. Anti-polygamy laws stem from certain Christian morals described in St. Paul’s First Epistle 1 Corinthians 7 in which he stated that it is preferable for Christians to remain celibate, “It is good for a man not to touch a woman”. Marriage of one man to one woman was a grudging concession to avoid fornication. If people could not restrain themselves and remain celibate, then they should be allowed to marry as an alternative to burning in hell. “to avoid fornication, let every man have his own wife, and let every woman have her own husband”. Polygamy was simply religiously unacceptable and then became forbidden by force of law. Christian prohibition of polygamy also conformed to the Roman practice of monogamy.
The position of Christianity regarding polygamy contrasted sharply with Judaism in which polygamy was accepted. The Patriarchs, Abraham, Isaac, and Jacob and kings David and Solomon all had multiple wives. Judaism permits polygamy so long as all wives and their offspring are treated equitably. The same is true of Islam where a Muslim man is limited to four wives.
In the same way that Lawrence v. Texas stands for the proposition that what sexual acts two consenting adults, belonging to any or both genders, do in the privacy of their bed is not any of the business of the State, the State has no business regulating marriage. Earlier in the 20th century, states had laws prohibiting miscegenation, namely marriage, cohabitation or interbreeding between members of different races. Now, states cannot dictate or disallow one’s free choice of spouse.
The question here is what business does the State have of not permitting a adult man to marry as many adult wives as he wants or an adult woman to marry any number of adult men that she wants? None. So long as all adult spouses freely consent to the marriage, there is no rational and reasonable justification for preventing them from doing so. The law does not prohibit having sex with multiple sexual partners at the same time.
Further, the financial aspects of marriage among multiple spouses is not any different than a business partnership. Learned professionals, like certified public accountants, attorneys, architects, engineers, and the like, have practiced their professions as partners for centuries and their business was governed by written partnership agreements. Correspondingly, if several people wish to all be married together, let them enter into a written partnership agreement that would be like a prenuptial agreement between several spouses. Courts of law throughout the world already have many centuries of experience in litigating breaches of contract. This experience can be productively used to decide the respective rights of the parties even better than family law.
The opinion piece below by Emory University law professor Mark Goldfeder is a modest attempt to defend polygamy (http://cnn.it/1cQgNxW). Unfortunately, his piece asks government to legalize polygamy in order to regulate it against abuses. This is the wrong approach. Our Constitution does not permit free speech under the First Amendment in order to regulate the abuses of defamation. Rather, our right to free speech is a natural right inherent in our nature as human beings, which is recognized in the Constitution, but is not granted by the Constitution. That some people will choose to use free speech to foment violence, armed revolution, or falsely shout “Fire!” in a crowded theater is no reason to detract from the natural rights of others.
For the same reason, the overall institution of marriage between an adult man and an adult woman is not jeopardized by the incidents of spousal abuse. Government does not recognize marriage in order to extirpate spousal abuse. Marriage existed when human beings lived in small tribes long before any government existed. It, too, is a natural right inherent in human beings. Just because marriage may be recognized by the State does not mean that it is a gift or a privilege granted by the State.
Professor Goldfeder complains that Studies show that polygamy “tends to create abusive relationships antithetical to family values. Co-wives who lose favor are pushed aside for new and often younger rivals; left to fend for themselves and their children with dwindling resources and support, they are exploited by emotionally detached husbands.” His prescription is for a paternalistic government to step in and to recognize polygamy in order to regulate it.
Interestingly enough, the same faulty arguments can be made against traditional marriage with equal validity. There are plenty of marriages and divorces that are centered around abusive relationships. The same weak argument of “co-wives who lose favor are pushed aside for new and often younger rivals” is equally applicable to traditional marriage in which older wives who lose favor are divorced and replaced with new and often younger second wives. The same women in a polygamous marriage who are “left to fend for themselves and their children with dwindling resources and support” are equally left to fend for themselves and their children after a divorce.
In order to appear to appease women by promising them government protection against abuses of polygamous marriages, Professor Goldfeder ignores that polygamy may be a solution, albeit an imperfect one, for the ills of divorce. Under the current traditional marriage model, a man who is married to an older wife who no longer has interest in sex is forced to divorce her and to remarry. The single household is then divided and each of the divorced spouses must live separately in two houses and shuttle the children common to that union between their parents’ separate houses.
In a polygamous marriage, the solution is by addition and not by division and divisiveness. A new wife is added to the marriage and lives in the same household. The old wife may even be thankful to the new wife for taking care of the carnal aspects of the marriage so long as she can watch television and read in peace, secure in the knowledge that she will continue to live in the house and enjoy greater financial stability than in a divorce. The children of a polygamous marriage enjoy living in the same large household with both mother and father present and additional children as playmates.
In conclusion, we here at The Cassandra Times do not have any personal experience with homosexuality, polygamy, same-sex marriage, adult incest, prostitution, adultery, or bestiality, and do not advocate their legalization in order to benefit ourselves personally or to rationalize and legalize these vices in order to partake in them. Rather, we fervently believe in the maximum practical individual liberty for people to make their own choices in life even if they differ from what what we would choose for ourselves. Another person’s choice of ice cream flavor in no way threatens our own choice and we all benefit from a well-stocked ice cream parlor in which many different flavors are offered for purchase.
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Editor’s note: Mark Goldfeder is a senior fellow at the Center for the Study of Law and Religion at Emory University, senior lecturer at Emory Law School and adjunct professor of law at Georgia State University College of Law.
(CNN) — Polygamy is back in the headlines.
Last week, a federal judge in Utah struck down part of the state’s anti-polygamy law as unconstitutional, although he kept the ban on possessing more than one marriage license at a time. Fans of the “Sister Wives” reality TV stars, who filed the suit, are rejoicing in the news.
At the other end of the spectrum, TLC debuted its newest docuseries, “Breaking the Faith,” which tells the dark story of women and children trying to escape from the practice.
Another lawsuit filed by the Department of Justice alleges that polygamous clans are secretly running the show in Utah and Arizona townships, manipulating the political process from behind the scenes. And in Texas, the Attorney General’s Office is inching closer to seizing a massive polygamous ranch.
Across the country, angry citizens are calling for the government to follow its own laws and crack down on polygamy.Meanwhile, celebrities like Akon and various news outlets encourage people of all ages to reconsider plural marriage.
What competing narratives about polygamy in America reveal is that whether or not a white-washed, clean-cut version of plural marriage could in theory legally exist, in practice it does not, and what states like Utah, Arizona and Texas actually have is an unregulated, dangerous and harmful situation, where the strong prey upon the weak and helpless.
The time has come to address this discrepancy. When the Supreme Court struck down the federal Defense of Marriage Act in U.S. v. Windsor in June, opening the door to federal recognition of same-sex marriage, it also set the stage for a discussion of plural marriage.
DOMA defined marriage as “a legal union between one man and one woman as husband and wife.” While DOMA obviously prohibited same-sex marriage (by requiring that a marital unit consist of a man and a woman), it also enshrined the prohibition against polygamy, by requiring that such a union be between only one man and one woman.
Even before Windsor the Supreme Court had declared morals-based legislation invalid, renewing interest in polygamy. But in calling DOMA definitions unconstitutionally restrictive, the court, perhaps unwittingly, also struck down the federal numerical limitation in a marriage, immediately re-opening the possibility of plural marriage at the state level. Activists have taken note, and are only getting louder.
But despite the strength of any legal arguments, and the voices of a few, plural marriage is still a crime, and public opinion remains strongly in favor of the ban.
Studies show that it tends to create abusive relationships antithetical to family values. Co-wives who lose favor are pushed aside for new and often younger rivals; left to fend for themselves and their children with dwindling resources and support, they are exploited by emotionally detached husbands.
Advocates say the harms are not intrinsic to the practice; they do not support underage or coercive relationships. They challenge us to crack down on abuses in general, irrespective of marital model.
Polygamy might not be inherently evil, which is why we need purposeful debates. But unlike traditional marriage, it has never been effectively regulated and so people, especially women and children, have suffered. The real beauty of last summer’s ruling is that it not only opened the door for polygamy, it also established a framework.
Same-sex relationships that were only decriminalized in earlier cases were finally given legal recognition in Windsor. If there is to be a change in status quo — if we as a nation decide that polygamy cannot or should not be illegal — then going straight from criminalization to full recognition is both the correct legal answer and necessary to assuage public fears.
Decriminalizing polygamy would only make abuses even harder to catch. But following Windsor’s lead and allowing these relationships to be recognized could instead bring them into the light.
Recognition would enable law enforcement to crack down on abuse; allow an independent civil authority — a town clerk or justice of the peace — to express concerns about and even refuse to approve an inappropriate marriage. It would help prosecutors overcome the evidentiary hurdles inherent in prosecuting related crimes. Unlike decriminalization, legalizing and regulating polygamy cuts to the heart of policy concerns.
Morals-based legislation has been unconstitutional since 2003’s Lawrence v. Texas, and so we cannot just continue ignoring the polygamists’ clamor for acceptance. But the practical policy solution — awarding those formerly banned relationships rights, and with those rights accompanying duties and responsibilities, which will be monitored — was only handed down last summer.
A clean-cut version of American polygamy does not currently exist, but under Windsor, perhaps, we could actually build it.
