I added a few comments on the importance given to the qualifications of religious officiant by various states as part of my discussion of religion, specifically marriage. The two-part article that was my immediate inspiration is due to be completed in a few days. I will provide a few more words on another topic, polygamy, which also was recently addressed again. A search on this blog provided multiple hits on the topic, which is an ongoing concern here and in Canada, including in litigation.
Marci Hamilton contributed to the latter case and wrote an article respecting the latter here, referencing another article (much less negative) by the same author of the two-part article cited above. Prof. Hamilton, who a past associate told me impressed her as a professor, has some conservative beliefs, but is a strong believer in the separation of church and state. She has also written passionately about the abuses of religious groups, who she believes have given too much discretion vis-a-vis other groups, in child abuse cases and in other cases (such as zoning issues).
Her article has a certain edge that bothers me, but regardless, I don't find her arguments too convincing. It is to be noted that the specific case addressed (which I talked about in the past) is not about the state recognizing multiple marriage licenses, but a couple being married and one partner (usually the man, but not always as noted by the literature of practice here and in Canada) cohabiting with others as well, particularly if s/he "purports" to be "married," including via a religious ceremony. This is done covertly enough times in non-religious cases (there were also historically Native American tribes deemed "polygamous") to be notable; it is in effect accepted especially if kept under the radar.
So, yes, certain types of "polygamous" relationships are being singled out. Reynolds underlines the selective nature of the attack. The opinion spoke of practices "odious among the northern and western nations of Europe," the changing nature of said "odious" practice suggested by the fact slavery and serfdom were accepted for much of the time cited. It is somewhat curious that an opinion in the age of coverture and women denied the right to vote was concerned about "patriarchal" results here. Quite a few think wives and husbands do not have the same roles today and it is troubling to be paternalistic about women who accept the result, particularly if you are selective about it.
To the degree there are abuses, does domestic abuse in some marriages mean marriage itself is bad? Some might make a somewhat more nuanced argument that as a whole the practice is too risky, but the harms often seem to arise from the criminalization. If the groups in question didn't feel a need to be overly secretive, given they are breaking the law, the abuses would be much less likely. For instance, there would be a bigger marriage pool and child abuse cases would be more easily handled. Some of the same things can be said about same sex marriage -- there official recognition sets forth certain reliance interests that strengthens the relationship, including societal recognition.
That also underlines that, contra Hamilton, "marriage" is not merely up to state definition. Same sex marriage should be protected, the alternative a sex discrimination approach to marriage. The allowance of those married to cohabit with others does not remove all limits, setting up marriage to the "whims" (a usual bit of disdain, more Scalia than her former boss, O'Connor, from the author) of those involved. In this very case, the people involved do not want separate marriage licenses, but the right to cohabit without being criminals. They very well might want official recognition as "married" to him, but the sister wives ("brothers" and "sisters" a common label in various groups, including gays/lesbians, the "incest" implication she takes from it a bit much) are not seeking this out here. Age and other limits are legitimate in place, regardless of opposition.
Prof. Hamilton ends with a requirement by the U.S. Congress that Utah ban polygamy before being given statehood. This suggests the special concern given by the state, various other states not having such strict polygamy statutes to the degree that cohabitation (a type of "common law" polygamous marriage, can we say?) is included. It is unclear to me if this more restrictive requirement was necessary to meet the original statehood condition. But, if a federal or state court decided for the plaintiffs here, it is likely that the holding would be that there was a constitutional flaw. If so, that would trump that "backstop" defense.
It is true that polygamy has been rejected over the years before and after the Mormon practice, but it has been handled in a somewhat selective way, particularly some of the more over the top things done (e.g., stripping voting rights for mere support of polygamous beliefs). The gender equality concerns have merit, but the overall matter is handled rather selectively when married couples are involved. And, there are some who would take part for which that wouldn't apply. Cohabitation alone is particularly dubious to target, marriage licenses still only given to two people in that situation. Criminalization also aggravates the problem.
Prof. Hamilton and others let their distaste of the beliefs interfere with a more neutral discussion of the issue, leading to some troubling results.*
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* For instance, many are not big fans of that couple who will now have a 20th child, 20 kids not really a great means to gender equality either, but who disputes their right to have them? Polygamy is not the only way to cause a mismatch of numbers for marriage purposes either -- some special requirement can be imagined where only a limited number of females would be acceptable, the classification dealt in a gender specific way. After all, was not the virginity requirement selectively applied over the years? Again, we don't disallow such practices. etc.
Marci Hamilton contributed to the latter case and wrote an article respecting the latter here, referencing another article (much less negative) by the same author of the two-part article cited above. Prof. Hamilton, who a past associate told me impressed her as a professor, has some conservative beliefs, but is a strong believer in the separation of church and state. She has also written passionately about the abuses of religious groups, who she believes have given too much discretion vis-a-vis other groups, in child abuse cases and in other cases (such as zoning issues).
Her article has a certain edge that bothers me, but regardless, I don't find her arguments too convincing. It is to be noted that the specific case addressed (which I talked about in the past) is not about the state recognizing multiple marriage licenses, but a couple being married and one partner (usually the man, but not always as noted by the literature of practice here and in Canada) cohabiting with others as well, particularly if s/he "purports" to be "married," including via a religious ceremony. This is done covertly enough times in non-religious cases (there were also historically Native American tribes deemed "polygamous") to be notable; it is in effect accepted especially if kept under the radar.
So, yes, certain types of "polygamous" relationships are being singled out. Reynolds underlines the selective nature of the attack. The opinion spoke of practices "odious among the northern and western nations of Europe," the changing nature of said "odious" practice suggested by the fact slavery and serfdom were accepted for much of the time cited. It is somewhat curious that an opinion in the age of coverture and women denied the right to vote was concerned about "patriarchal" results here. Quite a few think wives and husbands do not have the same roles today and it is troubling to be paternalistic about women who accept the result, particularly if you are selective about it.
To the degree there are abuses, does domestic abuse in some marriages mean marriage itself is bad? Some might make a somewhat more nuanced argument that as a whole the practice is too risky, but the harms often seem to arise from the criminalization. If the groups in question didn't feel a need to be overly secretive, given they are breaking the law, the abuses would be much less likely. For instance, there would be a bigger marriage pool and child abuse cases would be more easily handled. Some of the same things can be said about same sex marriage -- there official recognition sets forth certain reliance interests that strengthens the relationship, including societal recognition.
That also underlines that, contra Hamilton, "marriage" is not merely up to state definition. Same sex marriage should be protected, the alternative a sex discrimination approach to marriage. The allowance of those married to cohabit with others does not remove all limits, setting up marriage to the "whims" (a usual bit of disdain, more Scalia than her former boss, O'Connor, from the author) of those involved. In this very case, the people involved do not want separate marriage licenses, but the right to cohabit without being criminals. They very well might want official recognition as "married" to him, but the sister wives ("brothers" and "sisters" a common label in various groups, including gays/lesbians, the "incest" implication she takes from it a bit much) are not seeking this out here. Age and other limits are legitimate in place, regardless of opposition.
Prof. Hamilton ends with a requirement by the U.S. Congress that Utah ban polygamy before being given statehood. This suggests the special concern given by the state, various other states not having such strict polygamy statutes to the degree that cohabitation (a type of "common law" polygamous marriage, can we say?) is included. It is unclear to me if this more restrictive requirement was necessary to meet the original statehood condition. But, if a federal or state court decided for the plaintiffs here, it is likely that the holding would be that there was a constitutional flaw. If so, that would trump that "backstop" defense.
It is true that polygamy has been rejected over the years before and after the Mormon practice, but it has been handled in a somewhat selective way, particularly some of the more over the top things done (e.g., stripping voting rights for mere support of polygamous beliefs). The gender equality concerns have merit, but the overall matter is handled rather selectively when married couples are involved. And, there are some who would take part for which that wouldn't apply. Cohabitation alone is particularly dubious to target, marriage licenses still only given to two people in that situation. Criminalization also aggravates the problem.
Prof. Hamilton and others let their distaste of the beliefs interfere with a more neutral discussion of the issue, leading to some troubling results.*
---
* For instance, many are not big fans of that couple who will now have a 20th child, 20 kids not really a great means to gender equality either, but who disputes their right to have them? Polygamy is not the only way to cause a mismatch of numbers for marriage purposes either -- some special requirement can be imagined where only a limited number of females would be acceptable, the classification dealt in a gender specific way. After all, was not the virginity requirement selectively applied over the years? Again, we don't disallow such practices. etc.