Monday, January 16, 2006

Polygamy and gay marriage

Starting to do a little reading on this. There's now a few pretty good cases and papers in the hidden-section. (Click "Read..." to see more.)
  • Reynolds v. US, 98 U.S. 145 (1878) [early SC case outlawing polygamy.]
  • Meyer v. Nebraska, 262 U.S. 390 (1923) [statute outlawing teaching of foreign language overturned; lots of discussion of marriage]

  • Emens, "Monogamy's Law", 29 N.Y.U. Rev. L. & Soc. Change 277

  • Sunstein, "The Right to Marry", 26 Cardozo L. Rev. 2081 (2005)

Emens, "Monogamy's Law", 29 N.Y.U. Rev. L. & Soc. Change 277
See, e.g., Davis v. Beason, 133 U.S. 333 (1890) (rejecting a First Amendment habeas challenge to convictions for polygamists' attempt to register to vote and oath that they were not polygamists); Murphy v. Ramsey, 114 U.S. 15 (1885) (rejecting procedural challenges to the application of the Edmonds Act which denied polygamists the right to vote, even if they were only engaged in plural cohabitation); Reynolds v. United States, 98 U.S. 145 (1878) (affirming the criminal conviction of a Mormon for practicing polygamy and rejecting the argument that Congress's prohibition of polygamy violated the defendant's rights under the Free Exercise Clause); see also Potter v. Murray City, 760 F.2d 1065, 1069-70 (10th Cir. 1985) (rejecting a free exercise and privacy rights challenge to a police officer's termination for polygamy, on the grounds that Reynolds is still good law and that "protecting the monogamous marriage relationship" is a compelling state interest); cf. Romer v. Evans, 517 U.S. 620, 634 (1996) ("To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable." (citations omitted)); id. at 649-50 (Scalia, J., dissenting) (noting that "to the extent, if any, that [Davis] permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has, of course, been overruled by later cases. But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law." (citation omitted)). But see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 247 (1972) (Douglas, J., dissenting) (predicting that under the reasoning of the majority opinion "in time Reynolds will be overturned"); Keith E. Sealing, Polygamists out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause, 17 Ga. St. U. L. Rev. 691, 737-57 (2001) (arguing that laws forbidding polygamous marriage are unconstitutional under the Free Exercise Clause because marriage is a fundamental right and therefore religious polygamy is a hybrid situation requiring strict scrutiny under Department of Human Resources v. Smith, 494 U.S. 872, 881 (1990), or because current antipolygamy statutes and state constitutional provisions were enacted out of antipathy to a particular religion and substantially burden a central tenet of that religion while furthering no compelling governmental interest, under Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993)).


Sunstein, 26 Cardozo L. Rev. 2081 (2005)
"The task is to produce a conception of the scope of the right that lacks the arbitrariness of the minimal understanding and also the extreme breadth of the maximal one. I suggest that for courts, the best way to carry out that task is by reference not to the Due Process Clause, which is founded on tradition, but the Equal Protection Clause, which calls traditions into sharp doubt. The question is whether a state has an adequate justification, under the appropriate standard of review, to deny certain people access to the expressive and material benefits of marriage. The maximal understanding is certainly not compelled by equal protection principles, but the minimal understanding runs into serious difficulties, above all in the context of prohibitions on same-sex marriages. I contend that in principle, bans on same-sex marriage do run into real problems under the Equal Protection Clause, but that federal courts should be extremely reluctant to invalidate such bans for prudential reasons involving their limited role in the constitutional order. The issue of same-sex marriage is best handled through democratic arenas and at the state level (plausibly including decisions of state courts)."
Sunstein's "solution":
2. Relevant Differences: Bans v. Nonrecognition

Is there a difference, for constitutional purposes, among criminalizing a marriage, making it void, and making it voidable? In principle there should be. One reason that marriages are voidable is that there is a problem with consent; and if one of the parties complains that consent was absent, there is no constitutional problem with taking the complaint seriously. And if a state refuses to recognize certain marriages, it might be doing so because of its desire not to confer the economic benefits of marriages in circumstances in which such benefits are not justified. A state might believe, for example, that two-person marriages provide the only plausible justification for many or most of those benefits. If a state refuses to confer the economic benefits of marriage for this reason, but fails to criminalize purely private marriages, the issue is surely different from what it would be if a state imposed a criminal ban. I am not suggesting that criminal bans on polygamy are unconstitutional; 78 I am suggesting only that a refusal to license marriages is less intrusive than a criminal ban.

In many cases, a state might believe, not that those who participate in certain marriages should be subject to criminal sanctions, but that it does not want to confer expressive legitimacy on those marriages. It might believe, for example, that same-sex marriages do not deserve the same social approval as opposite-sex marriages; hence many people think that same-sex couples should be permitted to enter into civil unions but not into marriage. It would be possible to think that states have an adequate justification for rendering marriages void, but not for banning them, if performed by private organizations, religious or otherwise. A prohibition on private religious ceremonies allowing, for example, same-sex marriages, would raise serious questions under the Free Exercise Clause; and a ban on private ceremonies, even without a religious component, would raise questions of substantive due process.

To say this is not to say that existing criminal prohibitions are generally or even mostly invalid. In general, the ban on incestuous marriages could be defended by pointing to the risk of coercion and the danger to any children who would result. 79 But it is easy to imagine some cases in which any such defense would be weak - as, for example, where the would-be spouses are both adults and do not plan to have children. Perhaps bans on polygamy could be defended by pointing to [*2103] the risk of exploitation, especially of the women involved. 80 It is easy to imagine a claim that if polygamy is permitted, women will be subordinated as a result. But this claim might be contested, and in any case it is doubtful whether Loving and Zablocki should be read to require a careful judicial inquiry into that question. That doubt makes it necessary to turn to the question of the scope of the right to marry.
Not really sure where that leaves you. I personally think the exact same arguments that are applied in Lawrence v. Texas to gays almost certainly strike at prohibitions of polygamy. I find it odd, for one thing, that a lot of people who are in the business of trying to de-demonize gay marriage feel pretty comfortable knocking polyamory. Thomas Sowell has commented that identity politics usually leads to "mascotting", where groups are condescendingly treated as cuddly plush toys needing protection ("oh, you wouldn't want to club a baby gay person!"). It seems that the same mascotting can work in reverse: polygamists are treated as mascots, all right, but for the enemy team.

More to come...

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