As many of you know, I am lead counsel in the Sister Wives case challenging the constitutionality of Utah’s statute criminalizing plural or polygamous marriage. I also served as legal expert in the challenge to a similar law in Canada. The court has now ruled in that case and upheld the law in the decision below. While I strongly disagree with both the legal and factual conclusions of the Court, it is a decision that is worth reading. The decision can now be appealed to the higher courts in Canada.
Because this matter is likely to stay in litigation and given the Court’s discussion of my testimony, I must be circumspect in what I say about the decision. However, the Court adopts arguments from the government that, in my view, are based on sweeping stereotypes and generalities of people who engage in plural relations. It largely ignores that polygyny is only one form of polygamy and that there are a great variety of different forms of polygamous relationships, as discussed in my testimony.
The Court simply ignores that plural families can be entirely consensual and non-harmful, as evidence by the Brown family. Just as conventional families can have child or spousal abuse, it is wrong to criminalize all families because some are abusive.
The Court openly embraces the government’s invitation to generalize: “Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.”
The Court dismisses arguments, as discussed in my recent New York Times column, that this is about privacy not polygamy.
Some of the findings are breathtaking and, in my view, unfounded in actual studies, including the statement that “the statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties.” I have never seen such a nexus established in any existing study.
Despite my disagreement with the Court and the government’s experts, the opinion is well-written and comprehensive. It clearly reflects the view of many who hold intense religious and political opposition to these families in Canada and around the world. The decision does not directly affect the case in Utah, since it is a foreign ruling. The trial court in Utah has scheduled the hearing on standing for December 16th in Salt Lake City.
My congratulations to the government legal team and its experts. I also want to express my admiration for the fine legal counsel challenging this law, including George K. Macintosh, Q.C. Ludmila B. Herbst, and Tim A. Dickson. They were brilliant in their presentation of the case and advocacy for these families.
The matter is Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588.
Here is the decision: Canadian decision
“Since the equal rights amendment did NOT pass, it is NOT reasonable to apply that to sex.”
The “equal protection” requirement applies to all.
There need not be a constitutional amendment that says blond people should be denied government benefits over red heads before such a law is struck down under it.
The amendment had two purposes: expressive of a principle (like the Bill of Rights — the feds didn’t necessarily have the right to prohibit free exercise before the 1A was passed) and to firmly apply strict scrutiny to sexual classifications, since the issue was open to dispute. See also,the 16A, which legitimized income tax laws that were in question because of a heavily disputed 5-4 Supreme Court ruling. Strict scrutiny is still not totally applied to sex classifications today.
“If that were the case, the 19th amendment was not needed then.”
Doesn’t work for your purposes since clearly the 14A applies to race, but they still ratified the 15A, because voting rights were treated differently. Once the 19A was passed, and women were given an equal role in governing, other unequal laws by sex did become much less reasonable.
“There is no constitutional law referring to sexual discrimination at all, and absent any Federal law allowing for same sex marriage, it is well beyond reasonable to make up law.”
The 14A references “equal protection,” not some specific type of equal protection. The second section suggests somewhat that as applied to voting, a different rule can be set up for certain groups (including felons). That’s it. There is no “race only” constitutional provision on EP.
Ultimately, laws are what the people will have, and constitute a different universe from morality. Legality and morality may seem to overlap at times and in part, and in those circumstances where they do overlap, enforcement is at its easiest, and punishment is at its hardest.
The issue here, to my mind, is under what conditions will the majority punish, make illegal, actions that they, that majority, find offensive to their parents.
It is sometimes praiseworthy to be guided by morality as a check against the legal system, or the culture, and sometimes not praiseworthy. These issues help one to set priorities; to think; something people do reluctantly.
The lines that the culture traditionally drew around sex are gradually being erased, in part by capitalism, and I feel that it is unlikely that the legal system will continue to try to re-construct them.
“the statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties.”
And all this time, I thought the decrease in political and civil liberties was due to a perpetual state of war.
I have to admit that one statement is from outer space. Are you sure the judge was sober and not on drugs?
Loving overruled a long accepted ban on interracial marriages. “Marriage” was deemed in many states to not include interracial marriages. This was deemed invidious discrimination. As with other cases, it is quite reasonable to apply the same principle to invidious SEX discrimination.
The “right to marry” is held to be a “liberty” interest under the Due Process Clause. In Griswold v. Connecticut, three justices also noted it is protected by the 9A. It also can be seen as a “privilege and immunity” of citizenship.
It is harder to find polygamous marriages protected, that is, getting state marriage licenses for each person, since unlike a race or sex classification, this is a classification by number. OTOH, in the US case cited, they don’t want the state to recognize each marriage. They want to live together and be marriage pursuant to their religious beliefs. Merely doing this is deemed illegal. If they merely lived together ala a commune and had sex with each other etc., that would be okay. This seems silly.
Since the equal rights amendment did NOT pass, it is NOT reasonable to apply that to sex. If that were the case, the 19th amendment was not needed then. There is no constitutional law refering to sexual discrimination at all, and absent any Federal law allowing for same sex marriage, it is well beyond reasonable to make up law.
ARE,
Where in the Constitution is the Right to marry stated?
I cannot speak to Canadian law, but in the US the Loving decision which stated that marriage is a right refered to marriage ONLY as one man one woman, not man/man or woman/woman and many for one man. To then extrapolate the word marriage to mean all those other variants is more than absurd since the same SCOTUS left intact laws that banned sodomy and other homosexual acts. While that decision affirmed marriage as a right, it did not strike down bans against father/daughter, brother/sister, underage marriage, etc.. So I find it hard to see how any court could rule that same sex or polygamous marriage is legal. I see no problem with a state such as New York enacting laws to permit such things, but I do find it hard to swallow the rationalizations used to get around the laws that exist.
One man, one woman…hmmmmm….did you say…we still have the right to consent…I though the government has taken that right away….oh yeah….its not specifically spelled out for Scalia….so it does not exist….just like marriage…if the states did not regulate it would the federal government then step in….