KevinSim wrote:Let me just say that if there's a relationship between black people being able to vote and the speed limit on state roads being 85 miles an hour, I definitely don't know what that relationship is. On the other hand, I had already posted the relationship between making it legal for gay couples to marry and making it legal for polygamous triples to marry. Darth J either didn't notice that or chose to ignore it.
No, you didn't. The issue that currently exists in real life before the U.S. Supreme Court in
Hollingsworth v. Perry is whether gay people are constitutionally entitled to legal recognition of their marriages under the equal protection clause of the 14th Amendment. Nobody is arguing that the number of people involved in a marriage raises an equal protection issue. The Brown family members, who are currently litigating the "polygamy" (actually polyamory) issue in Utah are not seeking legal recognition of plural marriage.
Just to make it absolutely clear for him, I am not saying that there is any connection at all between the First Amendment and the Fourteenth Amendment, that were used to support legalizing polygamy and legalizing gay marriage, respectively.
Thus negating your statement on page 4 of this thread, "I said that if you can justify legalizing marriage for gay couples then there's no way you can fairly prohibit legalizing it for polygamous triples."
Rather, I'm saying that there is a very definite connection between the arguments used to fight against the two suggested legalizations.
I am aware that you are saying this. The problem isn't that I don't understand you. The problem is that you are completely wrong.
I just got done reading the website at "http://en.wikipedia.org/wiki/Reynolds_v._United_States". The decision of the Supreme Court was that someone cannot use the First Amendment to claim the right to take some action that her/his religion requires her/him to do if there exists a law prohibiting that action.
No, that's not an accurate assessment of
Reynolds, and that's not the status of Free Exercise jurisprudence now. A statute does not violate the Free Exercise clause if it involves neutral principles of generally applicable law.
So everything hinges on that law; everything depends on whether the law should remain, or whether it should be repealed.
What???
The website says the court observed that the law against polygamy had existed in one form or another "since the times of King James I of England." I think it's fair to say that the law in its original form was a result of the Victorian value system that prevailed at the time. Darth J, do you disagree with that?
Yes, I do disagree with that. I disagree with it because it is wrong. The
Reynolds court noted that there are secular reasons to reject a Free Exercise defense to polygamy that are not based solely on religion or on whatever it is you mean by "Victorian morality." In fact, the Reynolds court distinguished between the religious aspects of marriage and the civil (secular) aspects. (Note to anyone reading this: the following wall of text is necessary because it is what the U.S. Supreme Court actually said in
Reynolds v. U.S.) Here is where they explained separation of church and state, and articulated the secular basis for prohibiting polygamy:
Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say:
"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties."
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.
By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period reenacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that, on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691. From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.My point is that the Victorian value system that prompted the prohibition of polygamy in James' day, just as certainly prohibited homosexual behavior of any kind, and very possibly was a precursor to the sodomy laws many American states had on their books
I am aware that this is your point. I have no problem understanding what you think your point is. But your point is based on mistaken assumptions.
until the Supreme Court struck them down, a year or two back.
More than a year or two back.If we can't count on Victorian ethics to give a sound moral judgement on the question of homosexuality, why should we allow it to make a sound moral judgement on the question of polygamy?
We
don't count on Victorian ethics as to whether polygamy should be legally recognized. But legal recognition is not the same thing as decriminalization. You know, kind of like what has already been discussed in this thread.
To push forward laws legalizing gay marriage is to reject Victorian ethics; having rejected Victorian ethics, why in the world should we retain other laws based on Victorian ethics unless there's some other good reason separate from Victorian ethics to keep them in force?
There are rational bases for not legally recognizing polygamy that are not based on whatever you mean by "Victorian ethics." I personally don't care whether a state government wants to legally recognize a menage-a-trois marriage, but whether you personally agree with something isn't the issue. Among the many problems in your reasoning is that you continue to confuse a constitutional right to legal status with a political position to change how many people can participate in marriage. That's why there is my remark about black people voting if the speed limit is 85. Your "gay marriage, therefore three-way marriage" is the same kind of non sequitur. I'm not misunderstanding what you are saying. The problem isn't that your words don't make sense, it's that your conclusions don't follow your premises, and your premises are wrong, anyway.
That is the connection between legalizing gay marriage and legalizing marriage of polygamous triples. It has nothing to do with the sections of the Constitution their adherents used to try to justify them; it has everything to do with the Victorian-based laws that were in existence that opposed those legalizations.
No, it doesn't. Here is just one example of why you could argue for same-sex marriage but not legally recognized polygamy: divorce. Nothing about a divorce between two people would change if the two people are of the same sex. Their sex has nothing to do with dividing up the marital estate (debts and assets). But a marriage between three people is going to be problematic, especially if you are in an equitable distribution state (like Utah is). Why should one spouse who is leaving this arrangement be presumptively entitled to 1/3 of the marital assets when there are two other people who are still remaining in a marriage? How do you make that fair? Do you treat the whole arrangement as one gestalt marriage, or as three different marriages (husband-wife, husband-other wife, wife-wife)? What do you do about divorcing on the grounds of adultery if, say, a man is married to two women, and the two women decide to have sex with each other, but it was the man's understanding going into this marriage that the two wives would only have sex with him?
Those are secular legal problems that a state government could rationally wish to avoid, which have nothing to do with religion or whatever "Victorian ethics" are.
Mktavish wrote:And on the polls , that's fine , but we all know ofcourse those can be skewed to say what ever you want. I'm talking about how much of the worlds governing powers over how much of the world demographically does grant a license for gay marriage.
That's true. And even if the media is right and a majority of adults in the US do favor gay marriage, that doesn't necessarily mean a majority of
actual people who will vote favor gay marriage.
So?
Currently, even with a newly re-elected president who favors gay marriage, there's practically no chance whatsoever that the Republican-controlled House will repeal the Defense of Marriage Act.
Funny how so many of our religious right Republican friends insist that defining marriage should be left up to the states
unless we're talking about DOMA.
It's an open question whether US voters will elect a future congress that manages to make gay marriage legal nationwide.
Congress has no power to make any marriage of any kind legal nationwide.
Of course the Supreme Court is a whole different matter; with the delightfully unpredictable John Roberts in charge of it, it could legalize gay and lesbian marriage next month!
Whatever you mean by John Roberts being delightfully unpredicatable, the Supreme Court does not "legalize" gay marriage, and a victory for the respondents in
Hollingsworth v. Perry will not "legalize" gay marriage. It would simply mean that once a state government creates the legal parameters of marriage, it has to give equal protection of law to all persons within that state, and cannot discriminate against a class of people unless there is a rational basis for doing so. Thus far, none of the petitioners or amici have offered a rational basis that actually exists in law (e.g., the childless geriatric marriage of Dallin H. Oaks sort of belies Kirton McConkie's assertion in its amicus brief that marriage as a legal relationship is about having and raising children).
