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
85 thoughts on “Lessons from Roe in the Brown Polygamy Case”
Like the First Circuit did in Cook v. Gates , 528 F.3d 42 (1st Cir. 2008)?
Indeed, the state has an interest in promoting and encouraging procreation “within the socially recognized unit that is best situated for raising children.” Citizens for Equal Protection v. Bruning , 455 F.3d 859 at 871 (8th Cir. 2006) See also In Re Marriage of J.B. and H.B., 326 S.W.3d 654 at 675-677(Texas 5th Cir. Ct. of Appeal 2010) (holding that encouraging procreation within a househould headed by a monogamous heterosexual union was a legitimate state interest)
Your argument is based in the fallacy that anything about polygamy would be exclusive. The fact is that social acceptance of polygamy will sever the link between marriage, fidelity, and exclusiveness. It is wholly illogical where women in such unions to forsake all others if the man in the union (obviously) does not do the same. Acceptance of polygamy will also lead to acceptance of adultery, if fidelity and exclusiveness are torn from the foundation of the marital union.
Dredd, I understand, I really do. You think that Lawrence is the last word on privacy, just as, I don’t know, some folks thought Dred Scott v Sanford was the last word on human beings as private property. It took a civil war to “relitigate” that one. I doubt that it will require as much to revisit and define limitations on Lawrence, and balance privacy interests against community interests.
There is a trend in American history and jurisprudence to attempt to read our social course as one long march toward expanding individual liberties, and a necessary decrease in social and governmental control over private life. When the government has stepped up to, for example, create a progressive income tax, this is viewed by people like yourself as an aberration, or a step backward. Government funded schools, which inculcate an ideology of civic values are also viewed as a horrible intrusion by that crowd.
Progressives historically have had a different approach to community from yours. We have recognized that the state and the community have a proactive role to play in promoting values of openness, equality and justice. We have always recognized that there is a tension between the freedom of the individual to make individual choices and the need of the community to ensure that those choices do not result in harms to everyone. Progressives, unlike libertarians and anti-statists, believe in community, and work with the tension between individual rights and community rights.
The fact that you refuse to even acknowledge the harmed class of individuals created by a polygamous society and their moral standing in the discussion places you on the far-right of our discourse. This kind of absolutist thinking is growing in popularity, so you have lots of company. However, there is another path, one that balances community interests, particularly when there is a compelling and significant harm associated with private behaviors. That’s what I’m talking about here.
There are so many things to be amused about in this discussion, but I will return to the fact that even Islamic polygamy limits a man to three wives, balancing the freedom to form sexual/marital/reproductive relationships against the obvious harm that would result from unlimited wife taking by powerful men. Yet you and Mr. Turley are in the odious position of defending the rights of men like Mr. Jeffs of Colorado City who have taken by some reports 40 or 50 wives. By your logic of privacy and individual choice, even this arguably “insane” pattern, with massive harms to the “lost boys” of the community, must simply be understood and accepted as private choice. Unless you can articulate some reason to limit that kind of behavior, I think you are marking yourself as a personal liberty extremist who is not thinking very seriously about whether there are ever any reasonable limits on individual behavior.
Can you? Can you imagine any system or level of polygamy to which a society might object and act to dismantle, or are you truly so committed to personal liberty that even a powerful man who married hundreds of (consenting, free to leave at any time) women for his exclusive “reproductive activity”, ensuring that he alone would be the father of their children over their reproductive lifetimes, would simply be exercising his legitimate rights as a private person? I think your answer will be telling, either way.
You said: The “inequality” argument that you describe suggests that you are confused
Actually, Miles, it suggests humor.
I said that because the “inequality” argument you advanced is that polygamy somehow represents inequality to women. For humor’s sake I merely countered that tired argument with the fact that it is the man who is outnumbered.
Consenting adults is the issue you and some other miss up thread, or ignore because you can’t handle allowing adults to consent to something they want to consent to.
The state has a limited power when it comes to taking away a person’s freedom in the form of wanting and consenting to sexual freedom. Freedom to choose any number of things or reject any number of things.
When Lawrence v Texas was decided it held that the state cannot remove a consenting adult’s sexual consent with another consenting adult within the privacy of the home, specifically the bedroom.
When we think of polygamy we presume sexual conduct in the bedroom, which may not always be the case.
But lets assume for the sake of argument that all the women, and the one man, in the Brown case to consent to and engage in marital sex or “spiritual sex” as the may call it.
Lawrence did not limit itself to homosexual sex. It specifically addressed “consenting adult” sex within the privacy of the home.
The blow-hards in the Lawrence dissent said the decision would allow animal sex, etc., but scientists have found out that animals are not human adults, so the dissent in that case, like some on this thread fail to stick to the case, bloviating dicta about irrelevant matters, slavery included.
If the state cannot forbid, by criminal statute, consenting adults to engage in sexual acts in the bedroom of their home, then what is it about this case that the state can forbid?
Can the state forbid “spiritual marriage”, whatever that is? Face it, we are dealing with ancient religious taboo, which is no place for the state.
Each day Americans engage in pre-marital sex with multiple partners, multiple partner sex outside of marriage while married, and post-marital sex with multiple parties. None of that is the province of the state to regulate with criminal statutes so long as it involves adults and the adults involved consent to it.
So lets mature, let’s let another taboo that ties our knickers in knots go down the road, so we can concentrate on the things the state should be doing … like spending our money correctly.
Neither is there evidence that polygyny holds any significant attraction for men and women.
Elin Woods certainly was not attracted to the notion of polygyny.
Under polygamy, every woman is available for marriage.
You are probably right!
They certainly weren’t ready by 1861 either. And if you will recall slavery ended by Presidential Proclamation during the midst of a civil war. No court decision just the work of one man reading future public sentiment–not the one existing at the time of the issuance. That’s what makes Lincoln the finest President we’ve had: the ability and courage to seize the opportunity to shape public opinion in the right way. Leadership so classically defined.
I truly have no clue who would get most wimmins!
Rafflaw, That might be the case in a few states today!
Well said Mespo. I suppose if you took a poll on slavery in Alabama in 1850 the public would not be “ready” to do the right thing.
“That being, most Americans are complete ignoramuses (including the author of the thread). Thus, it is but stupidity for one (including Bryer) to base anything on the shifting and ever evasive standards of decency and morality.”
We dimwitted Americans certainly would defer to your personal standards of decency and morality rather than our pitiful attempts at reaching a consensus on this complex (to us , only, of course) topic. One silly question though: How does calling us ignoramuses and confusing an article on the descriptive aspects of this issue with one on the normative ones fit into your philosophy, oh, Solon?
We fools anxiously await your precious instruction!
what is name of evelist man first name real name!!!
prolly quick! cuz hes lovely lol,,,,,,,,,,,,ive seen lost boys long ago!
Lost boys. Th law should take care of their needs as the law is set up to take care of any other child that is abandoned if they have not reached the age of majority.
Further, have you considered that legitimizing polygamy might actually limit, by virtue of the ‘lost boys’ impulse being acted upon, the spread and long term health of Mormonism? Might this not make Mormonism a self-limiting religion? If a substantial number of the young men are run off with each passing generation at some point the church will no longer grow or be able to attract converts once the situation becomes common knowledge. They might go the way of the Shakers. Maybe it’s a win-win.
Shakers from Wikipedia:
“The Shakers built more than twenty settlements that attracted at least 20,000 converts over the next century. Strict believers in celibacy, Shakers acquired their members through conversion, indenturing children, and adoption of orphans. Some children, such as Isaac Newton Youngs, came to the Shakers when their parents joined, then grew up to become faithful members as adults.
Many, however, did not remain Shakers. Turnover was high; the group reached maximum size of about 6,000 full members in 1840, but as of December 2009 had only three members left. Only a few of the original Shaker buildings are still in use today.”
(The Lost Boys is an excellent vampire movie/comedy BTW.)
Maggie, LUIS MIGUEL 🙂 I think that’s a concern of some here, there’s Luis, and then there are those that aren’t, who’s going to get the most wimmens?
Your post proves but one thing:
“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).”
That being, most Americans are complete ignoramuses (including the author of the thread). Thus, it is but stupidity for one (including Bryer) to base anything on the shifting and ever evasive standards of decency and morality. As such, Espositos logic requires the espousal that Jim Crow laws weren’t inherently bad, but only bad because public opinion had turned. I daresay if a bench followed this judicial philosophy, Esposito would be the first one to cry foul when the public’s sentiment was deemed to reverse civil rights on women, blacks, or gays.
Casey, Interesting case. I’m not familiar with the details beyond what you report, but I’d suggest that the level and vigor of enforcement is never a given – it’s a policy decision. Unfortunately that decision is taken in an environment that has somewhat lost sight of the harms of polygamy, and been persuaded by the free association and privacy arguments.
The best way to oppose polygamy post facto, when it is discovered, may be different from the best way to oppose it before people form such relationships.
Post facto there are issues of child support to consider, and the reality that people have made commitments to each other. Society may wish to disadvantage men or women who form polygamous marriages, or it may wish to enact other punishments, and these could certainly be justified and fairly administered. There is no obligation to treat polygamous families like any other, when the fact of their formation and maintenance has already created the harm, a harm that cannot really be undone. At the same time draconian punishments are seldom useful either.
The place to do the real work of opposing polygamous inequality is prior to the formation of such relationships and families, through schools, education, and, to some extent, the promise of future prosecutorial vigilance. Economic sanctions may also play a deterrent role. Essentially, the full ethical commitment of a society to all of its members, including the men potentially discarded by polygamy, must be evidenced. This requires building social solidarity. It requires a commitment to making most men in society potentially desirable partners to most women, primarily by ensuring that they have a role in the economic system, also known as a “job” or a “career.” It requires, therefore, a commitment to a progressive full employment society that values all of its members, and enables all of its male members to become desirable spouses to someone.
A lot of good things happen when a society organizes to make monogamy possible.
Conversely, when a society moves toward polygamy, more and more men become less and less important, more discardable, more marginal. Why invest in them, or create an economy that has jobs for all of them, if we can meet the needs of half or two thirds of the men, and all of the women, in a polygamously organized system?
In Canada, here is a recent court case where a family court judge in the province of Alberta discovers that a man and woman have been in a polygamous relationship and he states “From the evidence of Ms. N. I accept that Mr. T. was engaging in a factual if not legal form of polygamy.”
Basically, a married man and unmarried woman claimed they had a simultaneous common law marriage. The interesting part is that polygamy is a Criminal Code offense in Canada, yet this judge did not inform police of his discovery! In fact, by “recognizing” a polygamous relationship, the judge himself “authorized” polygamy, which is also a criminal offense in Canada. WOW, doesn’t a legal authority (judge) have to inform the police of a criminal occurrence in Canada?
DONT BE Messin with old maggs she be sassicapricorn!!1
Comparison of the right to privacy in sex between consulting adults with polygamy would mischaracterize the nature of the polygamy issue, and shift the analysis to a completely irrelevant ground… one I’m sure you’d prefer.
The polygamy issue is a question of political order, like slavery. But slavery, like child abuse or spousal abuse, is all about the harm within the relationship, and polygamy is different.
There is one analogy. Should a person be allowed (voluntarily, privately) to sell himself/herself into slavery? After all, who (besides one of the parties to the agreement) are harmed? And if the master is a kind one, perhaps nobody is harmed? Nonsense. It is understood that allowing for the possibility of human ownership has policy and social effects that extend far beyond the master/slave relationship, to the market and to the political society in which we live. No right of freedom of association trumps the prohibition on slavery.
Well, to an even greater degree the harms of polygamy are primarily outside of the relationship. The class of harmed individuals is young (at first… they will grow up of course), male and regarded with general suspicion anyway. This is the class of harmed individuals with which we have a compelling interest in protecting.
The “inequality” argument that you describe suggests that you are confused. The fact that one man is outnumbered by many women in a marriage is not the inequality at issue.
The inequality involves the men who are shut out of marriage, denied the opportunity to reproduce or to ever have an intimate relationship with a member of the opposite sex. Their equal prospects (and yes, “right”) are denied by polygamy.
By the way Arizona, Idaho, New Mexico, Oklahoma and Utah all hold that polygamy is “forever prohibited” in their constitutions, and these constitutions passed political muster on admission to the Union. (See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, Section 4; N. M. Const., Art. XXI, Section 1; Okla. Const., Art. I, Section 2; Utah Const., Art. III, Section 1. )
Now obviously, these constitutional provisions are under attack, but of course they should not be. Perhaps they should be held up as exemplars, upholding equality of marriage opportunity for all men.
Let’s also acknowledge that some of the worst (most right wing, most unreasonable) Supreme Court justices have used the polygamy issue to oppose rights for homosexuals (Scalia, for example). I completely reject that use of the issue. Opposition to polygamy has tended to come from the right. It should come from the left. Indeed it might be one of those areas where left and right should be able to agree.
Comments are closed.