More on bigamy and polygamy

[Bricker]

This thread: Polygamists are not a “class” for the purposes of Fourteenth Amendment EP analysis contained this basic argument:

Of course, this is incorrect. Polygamists are a class.

Incorrect. They are not a class. By definition, polygamists are people who are married to more than one person at the same time. Since this is not legl in the US, then polygamists don’t exist in the US at all, protcted or not. Every citizen of the US is a non-polygamist. There are no subclasses of non-poylgamists being discriminated against.

They don’t exist at all, and it’s not necessary for a class to be stipulated as “protected” to find that they are not getting equal [iprotection
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Nope. Polygamists don’t exist in the US. We are a nation of 100% non-polygamists. Laws against polygamy do not draw distinctions between sub-classes of non-polygamists, so there isn’t any discrimation. No class of “polygamists” exists in the US, because polygamy does not exist in the US.

Rather than revive that thread, I’ll start this one to point out that someone might have been inspired by those arguments – something similar was tried in court recently:

Cole married Tammy Taylor in 1995. Without first divorcing Taylor, Cole went through a marriage ceremony with Donna Vincent in 2005.
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Cole argues it is “legally impossible” for him to be convicted of bigamy under Code § 18.2-362 . . . With respect to bigamy, Code § 18.2-362 makes it a criminal offense for any “married” person to “marry another person” in the Commonwealth. Because bigamous marriages are legally void, Cole reasons, he did not “marry another person” when he married his second wife. . . . Under Cole’s construct, therefore, Code § 18.2-362 is simply a legislative oxymoron - an attempt to criminalize something (bigamous marriage) that does not legally exist. Neither he nor anyone else can be prosecuted under it.

In a development that no one could have foreseen, the court rejected this idea:

In other words, the validity of the second marriage does not affect the question. It is the appearing to contract a second marriage, and the going through the ceremony which constitutes the crime of bigamy, otherwise it could never exist in the ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other.

[Giles]

First, on the argument about who can be a class, I would think that the group of people who have committed a particular crime can be a class – though one without much protection.

And, on the definition of bigamy, I’d have thought that the crime would be attempting to marry or purporting to marry, or going through a marriage ceremony, when already married to another person, since it’s clear that you can’t actually marry a second person. So it looks like poor legislative drafting to me, though the court used a bit of common sense in giving the statute a reasonable non-empty meaning.

[Omar_Little]

Are we debating bigomy/polygamy or legal definitions?

[Polycarp]

@Omar_Little

Are we debating bigomy/polygamy or legal definitions?

Yes.

As an observation connected with mens rea, though, Bricker, let me note that the states of mind contemplated in bigamy and the two common forms of polygamy are quite different.

The essence of the crime of bigamy is to contract a second putative marriage in which the spouses to which the bigamist is apparently married are unaware of each other’s existence, at least as being in a spousal relationship with their own spouse. That is, Howard, married to Jane, obfuscates the existence of that marriage in order to induce Mary to contract marriage with him. Mary and Jane may be unaware of each other’s existence, and are certainly not cognizant of the fact that the other is preszumptively married to Howard.

In FundaMormon[sup]1[/sup] paqtriarchal polygamy, an essential element is coercion, especially to young girls and to women pressured by a community mindset, into a role of subservience to an older, dominant male in a relationship where one male is the supposed spouse of multiple co-wives over whom he is dominant.

In contrast, the key element of polyamorous polygamy is a free-consent relationship among more than one man and more than one woman to enter into a set of spousal relationships in which all participants are married[sup]2[/sup], by individual contract if not at law, to some or all of the other participants in the polyamorous polygamous relationship array.

1. I am coining this term to reference the pseudo-Mormon splinter fundamentalist sects which continue to practice patriarchal polygamy, and duly request the board’s resident Mormons to recognize that most Dopers draw that distinction in the same way that they see the difference between Fred Phelps and, say, Rowan Williams or Billy Graham.
2. I am using “married” here, and elsewhere in this post, tp mean the action and resultant state of contracting a spousal relationship, considered as a contractual action between to people held out to the community as such – the common law definition. For reasons akin to those given in the quote referenced in the OP, whether the state has licensed such a contract as a legal marriage is irrelevant – the point of the question of their illegality is indeed that it has not.

[Procrustus]

can there be a class of people who want to be polygamist?

[Captain_Amazing]

@Procrustus

can there be a class of people who want to be polygamist?

There’s a class of people for everything.

[Jonathan_Chance]

I dunno…I might actually be tempted to buy that argument in sort of a ‘there’s no such thing as an unsuccessful revolution’ sort of way.

Even if we accepted that I could see wife mark 2 as being able to sue for misrepresentation, at least. If we define marriage as a binding contract I think there would be a reasonable assumption on her part that the other person in the marriage is legally entitled to enter it.

Then again I’ve always been uneasy with bigamy and anti-polygamy laws. They smack (to me at least) of laws that exist not to promote equality but to define a limit on equality and for the convenience of the state. And to my way of thinking the state exists for MY convenience (and my fellow citizens convenience). I do not exist for the convenience of the state.

[waterj2]

Without reading through that whole thread, was anyone other than Diogenes the Cynic advocating the view that you quoted in this OP?

[UltraVires]

@Giles

So it looks like poor legislative drafting to me, though the court used a bit of common sense in giving the statute a reasonable non-empty meaning.

It looks like that to me as well. If you took it literally, a man in Virginia could live with 30 women, call them all his wives, demand that they all be included at no additional charge on health insurance benefits, etc. and claim that he is not violating the law because he never actually “married” them or had a ceremony. God said that they had always been husband and wife or some such nonsense.

Or he could say that he married all 30 simultaneously therefore he never “marr[ied] another person” while a “married man.”