[As with the last one, I added a bit after published and there were various posts on polygamy in the past. A basic thing here is that in law as in life all is not a clean whole, there are lines and hazy edges. Life is a bit horrible now, but that rule applies with most "horribles" of this sort. And, in the end, it isn't that horrible much of the time. It's rather interesting.]
There was always some wariness of giving the federal government broad power here in what ultimately was likely to go beyond the fear [exaggerated] of what was sometimes seen as "white slavery," namely taking women across state lines for the purpose of prostitution. Prostitution itself was seen as basically a state concern, one that might even be allowed in certain respects. Murphy wrote a split decision earlier holding that a couple who ran a prostitution business that merely went on vacation with women who worked there were not covered. A black boxer also got in trouble for taking his white girlfriend across state lines.
There even some dissenters to the breadth of federal action taken to deal with polygamy in the federal territories in the 19th Century. The breadth of the actions there popped up in Romer v. Evans, the first major gay rights case Justice Kennedy wrote. He noted, e.g., to the extent a person who lose the right to vote merely for advocating polygamy, that would not hold up today. A few justices even at the time held one action illegitimately invaded property rights. The big case back then held that a federal law against polygamy was constitutional, even though it burdened free exercise of religion. As Justice Douglas later said, to the degree it drew a line between belief and action, the Reynolds case did not hold up.
But, it wasn't really that absolute. It held that the Congress was "left free to reach actions which were in violation of social duties or subversive of good order." That is rather open-ended, perhaps, since "social duties" can mean a lot of things. Still, "subversive of good order" very well might be more limited. The opinion strongly spoke against the "odious" practice of polygamy and the opening dissent is something of a counter to all of that. Just how offensive, contra to some of the arguments in the opinion, it was to women at the time (and even today) was also challenged in by writings of the women involved themselves.
There was biblical practices of polygamy and it is allowed by various religions and nations today. The complexity of the matter, including if we still should to some degree uphold at least some forms of monogamy on equality grounds is apparent. As noted there, the common form tends to at least to some degree promote a patriarchal form of society, one men and multiple women. Perhaps, that is acceptable if we have a wide view of marriage, but it also can be a reason for the state not to recognize the marriages. As with incest, this does not mean it is ideal to criminalize. And, in Utah at least, there is a broad laissez faire going on. This is so even if technically even "purporting" to be married without getting a formal license would be illegal. Which has free speech and religious liberty problems at any rate.
The same sex marriages cases provided four basic "principles and traditions" involved in the right of marriage that equally applied. One involved a "couple" with a "bilateral loyalty." As we heard last time, same sex marriage from some led to the slippery slope brigade to come out and polygamy was often cited as the logical result. But, as with incest, there is nothing unique to same sex marriage that warrants this. As noted back in the 1940s, there were different forms of polygamy in place and was since ancient times. And, other than "group marriage" (left not spelled out but gather them too), each in some form involved men and women.
Sexual freedom in general in some fashion makes it less reasonable to include polygamy to some degree, especially if that just means some unofficial type of polyamory. But, if you only allow a limited form of sexual freedom a lot of other stuff also fall to the wayside. Thus, merely cohabitation might be a problem if it is mixed company, since there is an implication that would include sexual behavior. And, as I said last time, do we really want to criminalize or even civilly deny marriage rights to couples who have open marriages or threesomes?
The "complexity" link talks about both sides and there are valid reasons why a "bilateral" union is what a constitutional right to marriage entails in its fullest sense. There is a special nature to a one to one union both as a matter of sexual dynamics* (including concerns about patriarchy) but also functionally (though one person can be designated) for things like decision-making. Two people clearly have a different relationship generally than more than two as well in a variety of ways. Things like spousal immunity is a problem if you have four people. And, experience in communities with polygamy has shown to be troubling including dealing with shortage of males, large amounts of children, encouragement in some cases of child marriages etc.
As with incest, such things can be challenged, but then the problem tends to also be narrower. With incest, there is a general understanding that certain people with certain familial relationships should not have sex. This is not the case with many polygamous relationships, especially now that fornication is no longer a problem. Three people can set up a home and have a family relationship which has a sexual aspect. Again, perhaps, if somehow it is "purported" to be an official polygamous relationship of some sort this might violate some law. But, even that, is to my understanding not really a general concern except maybe Utah, which historically had a special difficulty with polygamy and had to go out of its way to make it clear that there was no official support. And, again, how much do they enforce that?
A problem can arise, I guess, if two of the people are married and we can run afoul with adultery laws. Just how much criminal adultery laws is still a thing, if it really ever was except in limited cases, is unclear. By one account, in 2019, it was still on the books in nineteen states. People in the military at times have gotten caught up in adultery rules too. Going back to that Bowers dissent, protecting marriage by penalizing violations was accepted as valid or at least different than criminalizing sodomy. But, granting consent here, it seems to me a violation of the right to privacy to second guess how a couple wishes to set up their marriage in that fashion.
So, the "horrible" here really amounts to a narrow instance of the state itself not recognizing polygamous marriages. Over the years, it did not even completely do that, such as dealing with property claims of spouses deemed to be in polygamous relationships. We can also imagine complexities of legal polygamous couples from abroad residing in the United States. There is also more so than for incest a religious concern here, particularly since some laws and actions have a clear animus against the Church of Latter Day Saints (Mormons). But, polygamy itself was generally banned over our history, so that argument only goes so far.
The path to equality for GLBTQ is significantly cultural acceptance, including in television and film (the "Will and Grace Effect"). Polygamy is has to some degree have had a bit of that as seen by Big Love (though that also pointed to its problems) and Sister Wives. We are not in a position where polygamy is widely practiced though even this limited respect had led to backlash and discussion on its problems. I have read some of this material but get the idea the problems really arise in closed societies. Thus, note the reference to "polygamous communities" as such. If single families, e.g., decide to be polygamous, it is not going to be a similar issue. And, again, the criminal law is a blunt instrument.
Polygamy tends to arise in societies because of the special needs of the people. Thus, a few cases of women led unions arise because of a shortage of men in the area in correction. Biblical polygamy in effect is a matter of a head patriarch in control of a group of people and thus might have more than one wife, especially if one wife is older or does not have children. One can imagine this arising in this country in some fashion and it does at least unofficially. A group relationship can also be more emotional and romantically based as well. Again, that happens.
As with incest, it is reasonable to protect monogamy as the baseline for marriage. The slippery slope is not as slippery as all that. Likewise, as with incest, a lot of things can be conceded as good policy or even worthy of actual constitutional protection. Adultery should not be a crime. It might in some cases be relevant for divorce or the like, but even there, no fault seems to be the norm. A couple might also by agreement make adultery problematic, but it also might agree to an open marriage. This should be protected as a broad area for people to establish intimate associations as they see fit. And, we can foresee various ways to provide benefits and obligations when a polygamous relationship is involved. After all, divorce and so forth already results in a variety of relationships there.
As of now, it is okay if we do not go all the way, requiring polygamy to be recognized as a form of marriage. Marriage as of now is still monogamous for a variety of reasons. There is some play in the joints there too. And, either way, it is not a "gay thing."
---
* Same sex marriage might be argued to be a sign that old views of sexual roles in marriage are open to question now, but my argument would be as a whole that there is nothing specific to them that opens the playing field there. The recognition that a partner can be same sex is part of a wider whole that also recognizes the diversity of sex roles generally. The stereotypical same sex couples even matched to some extent the dual roles (butch/femme) but that is again a stereotype. So, the gender roles of any marriage is a range though surely there are general tendencies. Each union makes a whole in different ways.
I said that two people together just seems to work but how that works is also a mixture of things that developed over the years. Marriage grew out of reproduction and division of roles but we don't live in nature these days and even there there were complexities. Polygamy in various societies shows that any appeal to "nature" or function will be complicated. Monogamy brings with it various things that seems to work -- hey, I'm not going to say a few paragraphs here filled in all the details -- enough to make it appropriate as the norm. But, even there, polygamy of various forms is still mixed in. Even snarky "whataboutism" works because people know there is a little bit of truth there, even if the expression is off.
And, since I'm extending my remarks, the problems of polygamy again is not just something that arises because we have sexual freedom of the modern sort. We have people who home school children, let's say, in ways that to be bluntly honest poisons their minds. But, we do allow that. We allow religion to teach hate, including to budding minds who have a weaker ability to reason and challenge. The problem was flagged in the Wisconsin v. Yoder case involving allowing the Amish to end school early. And, we have marriages where the wife is submissive and such in what seems to be unhealthy ways. These things are not new.
And, they exist without polygamy. I'm okay with allowing that too.
We must recognize, then, that polygyny, like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears. It is equally true that the beliefs and mores of the dominant culture of the contemporary world condemn the practice as immoral and substitute monogamy in its place. To those beliefs and mores I subscribe, but that does not alter the fact that polygyny is a form of marriage built upon a set of social and moral principles. It must be recognized and treated as such.Justice Murphy, who by some accounts might have been gay, was the most liberal of FDR's appointments to the Supreme Court. Along with Justice Rutledge (who John Paul Stevens clerked for), unfortunately, he died after being on the Court for only around a decade. The issue in this 1946 case was the reach of a federal "white slavery" law that criminalized taking women across state lines for immoral purposes. He alone substantively dissented (two justices also dissented, but basically without opinion; a third said it was up to Congress to clarify what he admitted was a bad situation) to argue that right or wrong as social policy, women transported to be in polygamous relationships did not fit into that category as a basic rule.
There was always some wariness of giving the federal government broad power here in what ultimately was likely to go beyond the fear [exaggerated] of what was sometimes seen as "white slavery," namely taking women across state lines for the purpose of prostitution. Prostitution itself was seen as basically a state concern, one that might even be allowed in certain respects. Murphy wrote a split decision earlier holding that a couple who ran a prostitution business that merely went on vacation with women who worked there were not covered. A black boxer also got in trouble for taking his white girlfriend across state lines.
There even some dissenters to the breadth of federal action taken to deal with polygamy in the federal territories in the 19th Century. The breadth of the actions there popped up in Romer v. Evans, the first major gay rights case Justice Kennedy wrote. He noted, e.g., to the extent a person who lose the right to vote merely for advocating polygamy, that would not hold up today. A few justices even at the time held one action illegitimately invaded property rights. The big case back then held that a federal law against polygamy was constitutional, even though it burdened free exercise of religion. As Justice Douglas later said, to the degree it drew a line between belief and action, the Reynolds case did not hold up.
But, it wasn't really that absolute. It held that the Congress was "left free to reach actions which were in violation of social duties or subversive of good order." That is rather open-ended, perhaps, since "social duties" can mean a lot of things. Still, "subversive of good order" very well might be more limited. The opinion strongly spoke against the "odious" practice of polygamy and the opening dissent is something of a counter to all of that. Just how offensive, contra to some of the arguments in the opinion, it was to women at the time (and even today) was also challenged in by writings of the women involved themselves.
There was biblical practices of polygamy and it is allowed by various religions and nations today. The complexity of the matter, including if we still should to some degree uphold at least some forms of monogamy on equality grounds is apparent. As noted there, the common form tends to at least to some degree promote a patriarchal form of society, one men and multiple women. Perhaps, that is acceptable if we have a wide view of marriage, but it also can be a reason for the state not to recognize the marriages. As with incest, this does not mean it is ideal to criminalize. And, in Utah at least, there is a broad laissez faire going on. This is so even if technically even "purporting" to be married without getting a formal license would be illegal. Which has free speech and religious liberty problems at any rate.
The same sex marriages cases provided four basic "principles and traditions" involved in the right of marriage that equally applied. One involved a "couple" with a "bilateral loyalty." As we heard last time, same sex marriage from some led to the slippery slope brigade to come out and polygamy was often cited as the logical result. But, as with incest, there is nothing unique to same sex marriage that warrants this. As noted back in the 1940s, there were different forms of polygamy in place and was since ancient times. And, other than "group marriage" (left not spelled out but gather them too), each in some form involved men and women.
Sexual freedom in general in some fashion makes it less reasonable to include polygamy to some degree, especially if that just means some unofficial type of polyamory. But, if you only allow a limited form of sexual freedom a lot of other stuff also fall to the wayside. Thus, merely cohabitation might be a problem if it is mixed company, since there is an implication that would include sexual behavior. And, as I said last time, do we really want to criminalize or even civilly deny marriage rights to couples who have open marriages or threesomes?
The "complexity" link talks about both sides and there are valid reasons why a "bilateral" union is what a constitutional right to marriage entails in its fullest sense. There is a special nature to a one to one union both as a matter of sexual dynamics* (including concerns about patriarchy) but also functionally (though one person can be designated) for things like decision-making. Two people clearly have a different relationship generally than more than two as well in a variety of ways. Things like spousal immunity is a problem if you have four people. And, experience in communities with polygamy has shown to be troubling including dealing with shortage of males, large amounts of children, encouragement in some cases of child marriages etc.
As with incest, such things can be challenged, but then the problem tends to also be narrower. With incest, there is a general understanding that certain people with certain familial relationships should not have sex. This is not the case with many polygamous relationships, especially now that fornication is no longer a problem. Three people can set up a home and have a family relationship which has a sexual aspect. Again, perhaps, if somehow it is "purported" to be an official polygamous relationship of some sort this might violate some law. But, even that, is to my understanding not really a general concern except maybe Utah, which historically had a special difficulty with polygamy and had to go out of its way to make it clear that there was no official support. And, again, how much do they enforce that?
A problem can arise, I guess, if two of the people are married and we can run afoul with adultery laws. Just how much criminal adultery laws is still a thing, if it really ever was except in limited cases, is unclear. By one account, in 2019, it was still on the books in nineteen states. People in the military at times have gotten caught up in adultery rules too. Going back to that Bowers dissent, protecting marriage by penalizing violations was accepted as valid or at least different than criminalizing sodomy. But, granting consent here, it seems to me a violation of the right to privacy to second guess how a couple wishes to set up their marriage in that fashion.
So, the "horrible" here really amounts to a narrow instance of the state itself not recognizing polygamous marriages. Over the years, it did not even completely do that, such as dealing with property claims of spouses deemed to be in polygamous relationships. We can also imagine complexities of legal polygamous couples from abroad residing in the United States. There is also more so than for incest a religious concern here, particularly since some laws and actions have a clear animus against the Church of Latter Day Saints (Mormons). But, polygamy itself was generally banned over our history, so that argument only goes so far.
The path to equality for GLBTQ is significantly cultural acceptance, including in television and film (the "Will and Grace Effect"). Polygamy is has to some degree have had a bit of that as seen by Big Love (though that also pointed to its problems) and Sister Wives. We are not in a position where polygamy is widely practiced though even this limited respect had led to backlash and discussion on its problems. I have read some of this material but get the idea the problems really arise in closed societies. Thus, note the reference to "polygamous communities" as such. If single families, e.g., decide to be polygamous, it is not going to be a similar issue. And, again, the criminal law is a blunt instrument.
Polygamy tends to arise in societies because of the special needs of the people. Thus, a few cases of women led unions arise because of a shortage of men in the area in correction. Biblical polygamy in effect is a matter of a head patriarch in control of a group of people and thus might have more than one wife, especially if one wife is older or does not have children. One can imagine this arising in this country in some fashion and it does at least unofficially. A group relationship can also be more emotional and romantically based as well. Again, that happens.
As with incest, it is reasonable to protect monogamy as the baseline for marriage. The slippery slope is not as slippery as all that. Likewise, as with incest, a lot of things can be conceded as good policy or even worthy of actual constitutional protection. Adultery should not be a crime. It might in some cases be relevant for divorce or the like, but even there, no fault seems to be the norm. A couple might also by agreement make adultery problematic, but it also might agree to an open marriage. This should be protected as a broad area for people to establish intimate associations as they see fit. And, we can foresee various ways to provide benefits and obligations when a polygamous relationship is involved. After all, divorce and so forth already results in a variety of relationships there.
As of now, it is okay if we do not go all the way, requiring polygamy to be recognized as a form of marriage. Marriage as of now is still monogamous for a variety of reasons. There is some play in the joints there too. And, either way, it is not a "gay thing."
---
* Same sex marriage might be argued to be a sign that old views of sexual roles in marriage are open to question now, but my argument would be as a whole that there is nothing specific to them that opens the playing field there. The recognition that a partner can be same sex is part of a wider whole that also recognizes the diversity of sex roles generally. The stereotypical same sex couples even matched to some extent the dual roles (butch/femme) but that is again a stereotype. So, the gender roles of any marriage is a range though surely there are general tendencies. Each union makes a whole in different ways.
I said that two people together just seems to work but how that works is also a mixture of things that developed over the years. Marriage grew out of reproduction and division of roles but we don't live in nature these days and even there there were complexities. Polygamy in various societies shows that any appeal to "nature" or function will be complicated. Monogamy brings with it various things that seems to work -- hey, I'm not going to say a few paragraphs here filled in all the details -- enough to make it appropriate as the norm. But, even there, polygamy of various forms is still mixed in. Even snarky "whataboutism" works because people know there is a little bit of truth there, even if the expression is off.
And, since I'm extending my remarks, the problems of polygamy again is not just something that arises because we have sexual freedom of the modern sort. We have people who home school children, let's say, in ways that to be bluntly honest poisons their minds. But, we do allow that. We allow religion to teach hate, including to budding minds who have a weaker ability to reason and challenge. The problem was flagged in the Wisconsin v. Yoder case involving allowing the Amish to end school early. And, we have marriages where the wife is submissive and such in what seems to be unhealthy ways. These things are not new.
And, they exist without polygamy. I'm okay with allowing that too.
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