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Sunday, May 18, 2008

Why Not Polygamy?

“Polygamy is the next civil rights battle,” boldly declares the Web site Pro-Polygamy.com. Could this seriously be a “new” front in the war against traditional (biblical) marriage? (Polygamy is almost as old as traditional marriage.) Polygamy is in the headlines again with the recent raid of the 1,700 acre FLDS (Fundamentalist Latter Day Saints) compound in Texas. This is the same FLDS sect associated with the convicted Warren Jeffs, who is reportedly their “prophet and spiritual leader.”

Jeffs made the headlines in 2006 when he was placed on the FBI’s Ten Most Wanted List. He had unlawfully fled prosecution in Utah on charges that he had forced illegal marriages between his male followers and underage females. He was captured in August 2006 and convicted of two counts of rape as an accomplice in September of 2007.

Regardless of whether polygamy as a civil rights battle gains any real traction, I think it will be fascinating to watch the reaction of the country in the matter. For instance, it will be interesting to see if the city of San Francisco will rush to marry polygamists. After all, the California Supreme Court, in a lawsuit brought by gay marriage supporters, recently struck down that state’s one-man, one-woman marriage law.

“It's about human dignity. It's about human rights. It's about time in California,” San Francisco Mayor Gavin Newsom proclaimed to a roaring crowd at City Hall after the ruling was issued. He added that, “As California goes, so goes the rest of the nation. It's inevitable. This door's wide open now. It's going to happen, whether you like it or not.” Mayor Newsom’s cheerleading was, of course, in reference to gay marriage. I wonder if he shares the same sentiments when it comes to polygamy.

Which state court will be the first to grant polygamists their “equal rights” under the Constitution? Will those supporting gay marriage hurry to defend polygamy as well? The ACLU already has. “We have defended the right for individuals to engage in polygamy,” ACLU president Nadine Strossen stated in January of 2005.

Many would note that, of course, polygamists have a more significant legal hurdle to overcome than gays. Having been in the public eye of our nation for more than a century, there are laws in all 50 states against it. In many states it’s a felony. However, laws can be changed, or at least overturned by the courts, which is, after all, the favorite method of those who don’t want to bother with legislatures and voters. Why bother with trying to win over a majority of the people when all you need is a handful of judges to give you what you want?

If you think it far fetched that polygamy could gain serious support anytime soon, consider the following: According to the Associated Press, as recently as 1960 every state had an anti-sodomy law, which essentially made homosexual activity illegal. By 2003, 37 states had their statutes repealed by legislatures or blocked by the courts. In November of 2003 the Supreme Court, in a 6 to 3 ruling, overturned theTexas sodomy law, and therefore invalidated similar laws in the 12 states that still had them on their books. The Texas ruling is significant, because it opened the door for challenges to laws that govern other “private” behavior.

The Texas ruling particularly emboldened polygamists. Six months after the ruling, a man and two women sought to overturn Utah’s ban on polygamy. They claimed that their constitutional rights to religious expression, intimate expression, and privacy had been violated. Their lawyer revealed that the basis of his legal argument to overturn Utah's anti-polygamy law was the Texas decision. A judge halted their challenge, but how long will it be before a judge will “interpret” the U.S. Constitution in such a manner that would force states to recognize polygamous relationships, or at least declare that polygamy should not be criminal behavior?

Pro-Polygamy.com sees the Texas ruling as a powerful precedent supporting their position. They are not alone. Along with seeing the Texas decision as important to their cause, the Web site, TruthBearer.org, adds that, “Polygamy is in the Bible. Polygamy is found throughout history. These facts prove that marriage's definition includes plural marriage.”

The U.S. Supreme Court, in an 1878 ruling, declared that polygamy is not protected by the First Amendment. That ruling has had many challenges but has yet to be overturned. The U.S. Circuit Court of Appeals, specifically the 10th Circuit, has as recently as 1985 and 2002 upheld the 1878 ruling. However, before the Texas sodomy laws were overturned in 2003, as recently as 1986 Georgia’s sodomy law was upheld by the U.S. Supreme Court in Bowers v. Hardwick. (Georgia’s law was overturned in 1998 by its state Supreme Court.) Justice Kennedy, in writing for the majority in the Texas ruling, concluded that the 1986 Georgia decision “was not correct when it was decided, and it is not correct today.” How long before similar “progressive” thinking gives legal protection to polygamy?

In his dissent of the Texas ruling Justice Scalia wrote, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' (the 1986 Georgia decision) validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”

By overturning Bowers in the 2003 Texas ruling Scalia adds that, “The Court embraces… the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” He concluded that, “This effectively decrees the end of all morals legislation.” In other words, morality is now dead, as far as the courts are concerned, and this is the reason that polygamists, gay marriage supporters, and so on, are encouraged.

Copyright 2008, Trevor Grant Thomas
At the Intersection of Politics, Science, Faith, and Reason.
Trevor and his wife Michelle are the authors of: Debt Free Living in a Debt Filled World

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