Submitted by Mark Esposito, Guest Blogger
Rarely do I disagree with our host, but on the Brown polygamy case we do. And not so much on the merits of the case as on the timing of it. I’ve said before I would decriminalize the practice of polygamy and regulate it much as we do other human relationships where there exists real risk of overreaching or exploitation. I think this approach serves the interests of the important right of privacy and protects the vulnerable.
Where we differ is on the timing of the claim. Professor Turley seeks to make the issue about privacy and proceeds now to protect that right. We all know that we live in the present and cannot always wait for the perfect time. However, I think in seeking societal change, when the case is argued might be as important as what is argued. To a large degree Professor’s Turley’s haste is correct. The Brown case involves pressing issues of great importance to the litigants. Also, as been pointed out before, there are many forms of psuedo-polygamy which both the law and society ignores–serial philandering and open marriages, to name just two — and which can only be described as tacit approval of their non-criminality. I think we ignore them based upon crude notions of “it’s none of our business,” or “if it works for them, that’s ok.” However, where this rationale breaks down is when we are asked to put a societal imprimatur on a practice that is overwhelmingly disapproved.
We tolerate quite well many activities we find distasteful. Hate speech is the most obvious one, but there are many others from ill-designed and inefficient social welfare policies to taxing policies that are regressive. We do so because we see a higher purpose in the toleration and we see them as necessary evils to the fulfilment of more important goals such as free speech, providing minimum financial support to the poor, or job creation. We are not however called upon to endorse hate, or waste, or lining the pockets of the rich. Government doesn’t ask us to do that.
However, in this case the court as the interpreter of law and hence social policy, will be called upon to place an official stamp of approval on the concept of multiple adult sexual partners within a family unit. I think very few of us would contend that such an approval would be benign. Aside from the practice’s most famous proponents being regarded as little more than a cult by a many Americans, the major obstacle is the affront to prevailing notions of morality. Obviously, this consideration cannot stand front and center to the court, but it is not unimportant. Courts have occasionally reversed years of institutionally mandated moral sentiments with cases like Roe v. Wade. However, while most religious institutions were (and are) adamantly opposed to legalized abortions, the public has never been as uncompromisingly against the practice as has been portrayed.
A New York Times poll in 2007 found abortion sentiments substantially similar to attitudes held 1989 when the questions were first asked:
Since the question was first asked in 1989, less than a quarter of those surveyed have called for an end to abortion. But the split between those who want it without restriction ,and those who would like to see more restrictions, has vacillated throughout the years. Currently, 41 percent of those surveyed called for more stringent limits, 34 percent said it should be available without restriction, and 23 percent preferred that it not be permitted at all.
Even in 1973, when Roe was decided, Americans acceptance of legalized abortions had risen over the preceding eight years from 41% to 68% under six specified circumstances. (Abortion Attitudes: 1965 – 1980, Granberg, D, Family Planning Perspectives). Justices deciding the Roe case thus were armed with an established public sentiment overwhelmingly in favor of legalized abortion in certain circumstances.
How then does polygamy fair in the court of public opinion. A 2009 US News and World Report poll found an overwhelming 91% of Americans found polygamy morally wrong. While it is true that more (92%) found infidelity within a monogamous relationship more repugnant, the point seems well-established that the public is not yet interested in considering this lifestyle as “normal.” Recent polls about Mitt Romney make the same point in reference to his religion:
When asked to describe their impression of the Mormon religion in a single word, somewhat more (27%) offer a negative word than a positive one (23%); 19% give a neutral descriptor. The most common negative word expressed is “polygamy,” including “bigamy” or some other reference to plural marriage
(Pew Poll, 2007).
How then should one frame the issue of the case? Professor Turley does so in terms of privacy, which has a popular appeal. A 2006 Zogby poll on the issue made these expected findings:
The survey of 13,456 likely voters finds Americans largely unwilling to surrender civil liberties – even if it’s to prevent terrorists from carrying out attacks – a significant departure from their views in the months immediately after the 9/11 terror attacks. Even routine security measures, like random searches of bags, purses, and other packages, were opposed by half (50%) of respondents in the survey. Other measures fared worse. Just 37% would be willing to allow random searches of their cars – a dramatic drop in support compared to a survey conducted by Zogby International in December, 2001. Support for regular roadblocks to facilitate such searches was even lower, with just one-third of voters (33%) in favor. Four years ago, 59% backed such measures.
My own feeling however is that this is a strategy fraught with problems. Is the public to accept that this particularly controversial expression of privacy is divorced from or more compelling than prevailing notions of morality, especially when that expression is so diametrically opposed by the public? Do judges’ attitudes on the propriety of the practice, differ markedly from the public’s at large? Will judges overturn existing law based on notions of privacy when its expression is so inimical to the public’s will?
My own personal feeling is that judges will not. My experience is that despite popular belief of rampant judicial activism, most judges tend to avoid being out front in matters of social consciousness. Rather, they prefer to defer to the legislatures to allow any groundswell of popular support to filter into the political process. As the polling history of Roe shows, some laws are ripe for change in the minds of both judges and the public. And some, in the words of Jefferson (as he considered changing the insidious but long-standing Virginia prohibition on slaves testifying against whites), involve so radical a proposition that “ the public mind would not yet bear the proposition.”
This does not mean that the fight is not worth making, nor that a streak of enlightenment might not shine on the jurists as they deliberate the cause. Nor does it mean that courts should be guided by currently existing prejudices in the face of genuine constitutional extensions of rights. It simply means that some judges do try to read the minds of the public even as they divine the law. If Roe is any guide, Brown may be more bellwether than instrument of social change.
~Mark Esposito, Guest Blogger
“That “public opinion” is a tough mule to coax. It’s got its own pace.” (mespo)
That’s me and you don’t want me on that jury.
Besides, I’m busy. I found Smith’s (the folk magician Mormon founder) treasure hunting wand and dug up some golden tablets which the trolls are preventing me from showing you all. I guess it’s a privacy issue.
HE WOULD HAVE TO BE LUIS MIGUEL,,HE COULD BE POOR IN A TRAILER HAVE A CONSTRUCTION JOB COME HOME HAVE A BEER BATHE LOOK LIKE LUIS MIGUEL OR JOHN HAMM THE wimmins can have rich old men with bad breath soft chest!!! i dont care what anyone does but if i have to share he better be luis miguel!!1 lol
Oy. Spelling corrections. I think you can read through them but….
“… monogamy is the original solution to such inequality, and imperfect as it is now, why would we want to abandon that framework of reproductive/marital equality SO that a few men can enjoy great success at the expense of many others?”
“…you don’t care about the men. You have to simply say, “some men deserve to marry and reproduce, and to hell with the rest of them… they should have been born more handsome, better connected and wealthier…. THEIR problem is not our problem.”
“If there was ANY evidence that an equal number of one WOMAN/many men and one man/many women polygamous families would be formed, I would drop my objection to polygamy in a heartbeat, because the problem of surplus man and their stunted and destroyed lives would not be an issue.”
etc.
Surplus men everywhere thank you for your understanding.
FIRST WIFE ONLY GETTING FOOD HAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
Dave R, If you look at the previous comments here on this blog (from me and a few others) you will find that the lost boys (young men really) problem is considered too embarrassing to mention by most other people. However, I urge you not to let it go, because it cuts to the core problem with polygamy, and to the reason the state has a compelling interest in establishing and enforcing monogamy rules.
For those unfamiliar with the hundreds of young men who are driven out in one established polygamous society, google the subject at the NY Times or view this movie: http://www.youtube.com/watch?v=4UKes1CZygs&feature=player_embedded
Advocates of polygamy will again and again return to the privacy claims, the free association claims, and the religious freedom claims, attempting to focus only on the polygamous family unit itself, which can be portrayed as merely one choice among many. As long as the discussion of polygamy remains on polygamous families and their needs and wants, the advocates of polygamy (and they are that, although they deny it ) are winning and will win. After all, who can argue with the right of people to privately make choices?
The answer of course is that private choices have public consequences, and they can be severe. As a result these allegedly private choices are definitely a matter of public policy concern. They become more severe when those allegedly private choices move from a fringe matter (a few ostracized families in the West) to a social norm.
The effect of Mr. Turley’s advocacy (which is nominally on behalf of privacy) will be precisely to enable a fringe pattern of family formation, polygamy, (which has documentable ill effects on the lives of “lost boys”) to become more normative. As the surplus of young men grows, the social disaster for our society will mount. Young men, unable to find spouses and with no hope for reproduction, will make choices that are violent and disruptive. (This is not simply an apocalyptic fantasy, but has been demonstrated in various sociological and historical studies.)
If there was ANY evidence that an equal number of one women/many men and one man/many women polygamous families would be formed, I would drop my objection to polygamy in a heartbeat, because the problem of surplus man and their stunted and destroyed lives would not be an issue. There is however no evidence that polyandry holds any significant attraction for women and men. We can hardly legitimize polygamy in the hope that it might.
Rather, the legitimization (and ultimate legalization and recognition) of polygamy (polygyny, one man, many women) will lead to an explosion in the number of such families, paralleling the growth in other forms of inequality. Once that genie is out of the battle, how are you going to ever get back to monogamy. And how will those shut out men ever (short of war, rape, kidnapping and a life of risk taking and adventure) ever find marriage, reproduction or intimacy with the opposite sex?)
There is no way to support policies that will lead to an increase in polygamous family formation without declaring, in effect, that you don’t care about the men. You have to simply say, “some men deserve to marry and reproduce, and to hell with the rest of them… they should have been born more handsome, better connected and wealthier…. there problem is not our problem.”
Well you can say that, but monogamy is the original solution to such inequality, and imperfect as it is now, why would we want to abandon that framework of reproductive/marital equality to that a few men can enjoy great success at the expense of many others?
I plead in the name of equality, but also in the name of mercy and love, for the interests of the men who polygamy locks out of marriage and reproduction.
Mark,
Please no police!!
rafflaw:
LOL. I’m sending SWAT!
That “public opinion” is a tough mule to coax. It’s got its own pace.
Mark,
I kidnapped her and forced her to agree to cohabit with me! 🙂
I understand the argument, but sometimes we need to force the public and the courts to follow the Constitution now, rather than wait.
Rafflaw:
Totally agree as to the normative but I cannot ignore the descriptive. I just point out that the history of positive social movements suggests that change occurs first in the hearts of people and then in their minds. Maybe a naive belief based on mere personal experience, but when you chose your spouse (and she chose you) did you make a cost-benefit analysis or did you both react to genuine human emotions?
The first wife looks like all she is getting is food……..
The lost boys is from Peter Pan isn’t it??
Mark, thanks for the link to the Gallup Poll story. I think the public acceptance issue should not be an issue if legal or constitutional rights are being dealt with as you suggest in your article. Just because some might think it is unseemly, should not prevent others from utilizing their constitutional rights.
Gene H:
I think framing the issue in terms of privacy tends to make the public roll their eyes. If the Browns really wanted privacy would they bring the suit so publiclly in the first place when their freedom is not really in any jeopardy. It’s cogntive dissonance to many. I think the best way to frame the issue is to call it what it is– the right to be treated like anyone else in choices of life partners among consenting adults. It certainly worked for Gay Americans. I always have believed that all great social changes are decided first in the court of public opinion and then in the law courts.
Good post, Mespo.
Rafflaw:
Great point. I think the move towards expanding egal rights for gay Americans coincides with public acceptance of the practice. The polling seems to support this view and gives cover to judges and legislatures to do the right thing.
Note this article from 2001 discussing a Gallup Poll on the topic:
http://www.glapn.org/sodomylaws/usa/usnews32.htm
Interesting article Mark. Is the polygamy anymore or less a civil rights issue as gay marriage is?
One of the ramifications of polygamy that has nothing to do with privacy or consenting adults or any of the things that have been mentioned so far is the phenomenon of the “lost boys” (http://www.childbrides.org/boys.html). Just as female children are unwanted in China, male children are unwanted in polygamous Mormon communities, since they are merely competing for future wives with the few males who get to be married. This is an outcome that deserves to be considered in any discussion of the societal benefits and costs of polygamy.
Mark,
Like Anon. Yours, I’m having a hard time seeing your objection but my difficulty is your framing objection. A popular message always plays better to an audience as they are predisposed to like it. The persuasive fulcrum rests on clearly showing a link between privacy and the practice sufficient enough to overcome any public sentiment against the practice. Is it an easy sell? It depends on the audience, but probably not. However, I can see the practical advantage of framing the argument in publicly popular terms over another route. The end result may indeed be bellweather. The outcome is so heavily contingent upon audience reception to an argument based in clearly conflicting public sentiment. As a tactical matter I fail to see how using popular appeal in selecting how the argument is framed as a negative. At worst the prevailing sentiment for privacy and against polygamy cancel each other out, but I think in any other framing of the issue at this time prevailing sentiment against polygamy is only a negative with no counter-positive offset.
So Mark,
What say you about the timing between Plessy and Brown?
Was the timing right or was it further proof that mankind has not evolved an inch from the slime that spawned him?
Good article by the way. Love it when judicial realism is fighting for my interest. 😉
Im laffin me old cuban butt off!!! hahahahaha
Mark,
Interestingly one Saturday morning I was listening to NPR and the topic was abortions and the percentage of voters that it pulled….apparently it is right about 10% and most of the contenders are shying away from that issue:
http://www.npr.org/2011/06/23/137350265/gop-hopefuls-divided-over-anti-abortion-pledge
As I have stated before I wrote a paper in Law School about women and rights taken away once the territory’s entered the union…..Utah gave up the right of (white) women to vote…under the 13, 14 and 15th Amendments all persons (EXCEPT WHITE WOMEN) had the right to vote…now whether they could exercise that right was a different story….Also, one thing that I found interesting is that they could practice polygamy while they were a part of the Mexican Territory….After the Treaty of Guadalupe this became an issue, troops were sent to settle the matter, but the War atween the State came about and ready commands were pulled to fight that skirmish….
Why is the timing so bad….