I have to agree with DSYoung on this one, although I personally doubt that this question will be taken by the Supreme Court. Unless the U.S. Court of Appeals (10th?) is crazy enough to ignore the 19th century cases, there’s no way the Big Court will want to touch the issue today.
And Monty, thanks for the defense. I didn’t think KellyM was being rude to me personally, but I could obviously see how Mormons could be rightfully offended by some of her remarks.
I saw a story on this guy on MSNBC over the holiday weekend. I looked up this thread, but still have some thoughts needing answers.
First, the issue comes up about the nature of the polygamy in the cases like Tom Green’s (Greene?) One argument for why it is wrong is based on the notion that the lifestyle itself promotes misogyny and male dominance, and is a form of child abuse in itself by the attitudes that it instills in young girls about their worth vs. boys and their worth. It is worth noting that this parallels attitudes about other religions and cultures that have similar attitudes toward women, notably fundamentalist Islam like the Taliban. Hmm, making that comparison, it sort of begs the question. Is it, in fact, unhealthy? Is that something that should be an issue for the government?
Second, assuming the mindset above is wrong, does that necessarily mean that all forms of polygamy and polyandry are subject to the same inherent flaw? Note that monogamous relationships that treat women as less than equal are equally guilty of oppression. The basis for the oppression in this case seems to be a cultural/religious attitude about the roles and responsibilities of men vs. women in their society. Is that necessarily an outgrowth of polygamy itself or is the polygamy just a reflection of that attitude, and is it impossible to have consenting polygamy or polyandry that does not rely on and foster a sense of unequal status and worth?
Third, the specifics of this case reflect a general trend within this community. In Tom Green’s case, he currently has 5 wives all under the age of 30 (or at least at the time the news story was filmed). There are, in fact, two pairs of sisters. Also, he has previously been married to a couple other women who have since divorced him. They both happen to be mothers of his current wives, and consented to his marriages of their daughters. No, those daughters weren’t his daughters, but were from previous marriages, so there’s no incest. Both of the mothers have since left that lifestyle. Is there something inherently wrong with this tight interleaving, or is this merely a cultural hangover?
Putting aside the issue of whether a federal ban on polygamy exists, conceptually it is impossible to argue that bans on polygamy in the United States were imposed to strike a blow against Mormon practice. Very simply, polygamy wasn’t legal anywhere in the United States prior to the founding of the Mormon church.
The federal ban on polygamy was clearly and unarguably enacted to balk the practices of Utahn Mormons. Prior to the Congressional act which made polygamy a statutory offense, polygamy was an offense only under the common law of England (which at that time governed in the states where not abrogated by the Constitution or by other statutory law). The act which enacted this statutory ban so clearly sets forth the intent of Congress to punish them upstart Utahns and their immoral ways that only a fool would argue otherwise. See this thread, specifically my post on the first page, which cites to federal court documents and quotes the act of Congress in question. (By the way, the “certain acts” which Congress annulled in that act was the act of the Utahn territorial legislature abrogating the common law prohibition on polygamy.)
One must also question the motives of Congress in forcing Utah to accept a limitation on its right to make its own laws (Utah may never adopt legislation making polygamy legal, on pain of losing Statehood).
This has been argued to death already, in several threads. Why are you resurrecting this thread now?
KellyM, I resurrected the thread. I saw a story on the topic and it got me thinking. I did a search and it pulled up this thread, and it didn’t resolve all my questions. Thus I posted. However, thank you for linking the other thread. It answered most of my questions, I guess.
You missed my point, KellyM. Polygamy was banned in the United States under the common law (of the United States, btw, but that’s hair-splitting), prior to and without regard for the practicism of Mormonism. And, of course, the common law is the law.
What that means is that bans of polygamy of general applicability and accordingly would pass the Employment Division v. Smith test. Granted, a good legal team would have a field day with the legislative history you describe and may very well get the law overturned as unconstitutional (there’s a question - DSYoung, minty do laws passed for an improper purpose, but otherwise valid, pass consitutional muster?). But, and this is the crucial point, Congress could then turn around and enact the exact same law the next day. Provided they don’t mention the word “Mormon” in the legislative history, that new law would be constitutional.
Personally, Kelly I agree that the ban on polygamy is ludicrous. My only point is that a law banning polygamy would survive First Amendment review.
I’m going to start with your second question first. No, there is no “inherent flaw” in polygamy (which includes both polyandry [multiple husbands] and polygyny [multiple wives], as well as marriages with multiples of both sexes [no specific name for that as far as I know]) that necessitates or fosters oppression, unequal status, abuse, misogyny/misandry (yeah, I know, it’s not really a word), etc., etc., etc.
This is a fact. There are many, many polyamorous relationships which do not involve any of that sort of thing. Ergo, there is no “inherent flaw” in polygamy that is responsible.
I would agree with you that these problems are a result of cultural influences (often, but not always, religiously based). Those sorts of problems exist in many monogamous marriages, but monogamy is not generally considered to have an “inherent flaw” which causes such situations. The concept that polygamy causes abuse and oppression is nothing more nor less than a myth.
Personally, I think that attitudes and cultures that devalue anyone based on gender and other such factors are unhealthy and wrong. I think such attitudes harm not only the individuals who are oppressed, but also harm the indivuals who “benefit”, and the society itself.
I agree with KellyM that making polygamy illegal is not only harmful to our society (as well as to many individuals who are criminalized for perfectly moral, ethical, non-harmful behavior), but also actually increases abuse and oppression in those cases where the prevailing culture/religion is prone to such. And criminalizing a non-harmful practice also allows the rest of society to use that practice as a scapegoat, rather than addressing the underlying, real problems.
P.S. For those who can’t be bothered to follow the link - KellyM is correct. The requirement for Utah to ban polygamy prior to allowing statehood, as well as a more general prohibition nationwide at the same time, is well documented. In fact, it’s explained right here in the official state archives. Or do you think that it’s sheer coincidence that all of the cases cited by minty green happened between the date that Utah first asked to be a state (1849) and the date of statehood (1894)? The prevailing attitudes and uproar about polygamy and the Mormons is also well and widely documented. No religious bias involved. snort Geez, people, I learned about alla this in my high school history class. What rocks have y’all been under?
A resounding “maybe.” The case to look to, of course, is Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). There, the Court looked at the record and found all kinds of indications that the city council had an anti-Santeria motive for passing new restrictions on the slaughter of animals. That invoked “strict scrutiny,” which as any Con Law student knows means the law is doomed. The city asserted that health and animal welfare concerns were its legitimate interest, but that failed because the Court decided the statute was not reasonably tailored to achieve those ends. But the opinion seems to leave open the possibility that a more broadly-applicable statute would be valid–one that does achieve the asserted state interests without singling out the religious group that inspired the law.
If polygamy were a new issue, KellyM is correct that the anti-Mormon intent that seems to be in the legislative history would cause serious problems for any 19th century federal ban on polygamy. (But as I noted above, I can find no evidence whatsoever that a federal polygamy statute exists today, so it’s a moot question.) However, this is emphatically not a new issue. The Court has already held in the 1879 Reynolds case that the polygamy ban promoted legitimate state interests (e.g., fighting patricarchy and promoting democracy) and was valid against a free exercise challenge. Yeah, it seems like flimsy reasoning if you read the case today, but it couldn’t be much clearer in establishing that the state may ban polygamy without violating the First Amendment. I doubt the current Supreme Court would have even a single vote for overturning Reynolds and the other 19th century polygamy cases.
Just curious, redtail23 . . . do you have any opinion on my argument from the previous page that while individual polygamous relationships do no harm, having entire communities founded on Tom Green-style polygamy might indeed be a very bad thing?
Indeed, this is a pretty accurate summation of the situation. Most commentators believe that Reynolds is bad law (read the case sometime, it’s just loaded with content that most people today would consider embarrassing and wholly inappropriate for a Supreme Court opinion) and that if the question was faced anew with current Free Exercise and due process jurisprudence, the law would fall. But Reynolds, for good or ill, is law, and the Supreme Court is not going to revisit it (despite being asked to do so on a few occasions). So, yes, not a single vote to overturn, but if you brought the question anew without the legacy of Reynolds, I’d bet it would be a close vote.
It’s an interesting thought experiment to speculate how an anti-polygamy statute would fare today if those 19th century cases didn’t exist, KellyM. I tend to think that a ban on polygamy would still be constitutional if the law was generally applicable–not narrowly tailored so as to affect only a particular religious group–and the legislative history did not reveal an explicit anti-Mormon intent. Without those two key facts, the Santeria case would almost certainly have been resolved in the same way as Employment Division v. Smith.
**
Hey, wait a minute. You lawyer-types are always asking trick questions, don’t think I don’t catch on. Sweetie, I almost always have an opinion, just sometimes I’m smart enough to keep my mouth closed.
Um, you’re conflating issues again.
Yes, I think that having large, oppressive, charismatically-based (e.g., Jim Jones, David Koresh, Sun Myung Moon) communities ain’t so hot, no matter what type of marriage they practice. But absent actual, demonstrable harm (that is, more harm than “I don’t like the way you raise your kids”) to children or unconsenting adults, I don’t think they should be banned. Do you?
I also think that having large, gender-oppressive, religiously-based communities (e.g., Amish, Mennonite, Identity Christian, and many others) is harmful to many of their members, especially the children - and the fact that those communities generally require monogamy is totally irrelevant. The children, especially girls, reared in those communities have no more chance of escaping than do the kids in whatever situations you’ve seen. But given that pesky first Amendment, I don’t think I’d call for their banning either. Would you?
I’m not off-hand familiar with the communities you’ve mentioned, so I can’t speak to them. But last I knew there were still a few large communes around (left over from the 60s/70s) - marriage practices in those communities vary widely, to say the least, and polyamory is quite acceptable. I’ve talked to people who were reared in those communes, including some who didn’t like the life and left when they reached adulthood. Never heard of any drastic problems due to ‘socially acceptable polygamy’.
There are also a few large group marriages around (15-20 adults - not entire villages ;)) that have been accepted into their local communities. They do not create particularly oppressive, patriarchal families; their children are not deprived nor molested nor harmed.
So yes, I agree with your statement on this page that (paraphrase) having communities based on pseudo-Mormon polygamy could certainly be (and often is) a Very Bad Thing. Polygamy in those situations can, along with MANY, MANY OTHER cultural factors, perpetuate a harmful system. However, I object to your statement on the previous page that the practice of polygamy, in and of itself without those other cultural factors, causes or fosters such harm. And I unconditionally oppose your idea (previous page) that legalizing polygamy will cause serious social problems. Is the condemnation of polygamy merely reflexive and unthinking? Nope, it’s merely the result of biased thinking based upon unsupported premises.
Questions for you:
What “serious social problems often result” directly and solely from polygamy? Do you have any evidence whatsoever to support this? Can you show me any ‘harmful’ polygamous communities that are NOT religiously based?
Polygamy is currently illegal. Has that fact stopped any of the harmful practices in the communities of which you speak? Can you show any reason why decriminalizing polygamy would increase harm in those communities? Do you have any evidence to support the idea that making polygamy legal would create more of these oppressive communities?
Should all polygamous individuals, including those who enter and maintain such relationships freely, knowingly and without coercion (physical, mental or fiscal) be criminalized because a few whackos also happen to be polygamous? If yes, then don’t you agree that all religious individuals, even those who have harmed no one, should be prevented from practicing their religion because, after all, some religions cause harm and suffering to their adherents?
Let me repeat: Oppressive, patriarchal religions and cultures create oppressive, patriarchal marriages, whether polygamous or monogamous. The fault lies NOT in the marriage pattern, but in the culture/religion.
[and further let me say BLESS YOU PREVIEW!! Gads, you should never see such a mess as I had here to start with. :))
I don’t mean to hijack a very interesting thread, and when I get time, I’ll try to do more thorough research, but, in Illinois (not Utah) Green would have a defense to the sexual assault charges precisely because the victims were his wives. In Illinois:,
Basically, this section allows for sexual relationships with minors, IF they are married. I’ll try to find out the law in Utah, but, were this in Illinois, Green wouldn’t have been charged for the sexual assaults. That’s one of the main reasons the stinking pedophile married these girls in the first place, not cause he loved them, but to protect himself legally while he was assaulting them. I think the argument that: Well, get him on the sexual assault charges, doesn’t hold much weight in this type of case.
Hamlet: Looks to me like that defense only works if the victim is a “spouse.” That wouldn’t help Tom Green or other polygamists who took a minor for an extra wife, since the purported marriage would be a nullity. There is no legal recognition for a purported marriage that takes place while one of the parties is still married to another person.
redtail23: First off, you’re attributing statements to me that I never made. Specifically:
Seeing as how polygamy has been a crime in concept only for the last half century, I doubt very much that legalizing it now would “cause serious social problems” any greater than already exist in those AZ/UT/ID polygamist communities. And I certainly did not say that polygamy alone causes much harm. But as you seem to agree, there are problems peculiar to polygamy when it is manifests itself as a mandate from god and becomes standard practice within a community. Say what you want about the Amish, but I don’t think they have many problems with child brides and fathers supporting dozens of children via welfare.
Hey, I don’t care who you marry. Knock yourself out. But as I just said, social pressures associated with polygamous communities lead to undesirable social pressures. If you have to have multiple wives, and the sex ratio is more or less 1:1, the pressure is on to take wives as soon as possible and to force them into dependent and subservient roles.
In name only. Outside of Tom Green, nobody has been prosecuted for it in many decades.
Gee, maybe if they enforced the law . . .
Screw that. I want to decrease the harm in those communities by enforcing the law.
Not unless the widespread practice of polygamy is causing the kind of social problems I described on the last page. If that is happening, then it makes sense to attack the practice that’s causing the problem. You can’t dictate religious belief, but you can criminalize behavior without running afoul of the 1st Amendment.
OK, so your premise is that marrying minors in order to have sex with them is OK (when legal), as long as you dump them completely when you want a new one? Or is your premise that, if law is badly conceived or badly written or otherwise surmountable, then we should just go after the offenders willy-nilly, because after all, they should go to jail for something? (Or were you just making a comment and I’m getting a tad over-involved? :)) Actually, Utah law is apparently different, or at least I’ve heard rumor that they are going to prosecute him on some sort of charge for marrying a 13 year old.
I think that any statutes preventing prosecution of spouse for sexual abuse are totally horrific. We (finally!) got ours thrown out here a few years back. Sorry you live somewhere that’s so Neanderthal. Perhaps, however, energy would be better directed toward the real problem (i.e., statutes that protect abusive spouses from sexual assault charges) rather than towards side issues such as polygamy.
Under normal circumstances, to the best of my knowledge, common-law marriages CAN NOT exist in the presence of a certified(?*) marriage. In other words, if PersonA is married to PersonB and also lives with PersonC under whatever conditions your local statues require for common-law marriage, the common-law marriage is NONEXISTENT for all legal purposes. PersonA and PersonC have no legal marital rights because the common-law marriage does not exist.
Conveniently enough, however, common-law marriage evidently does co-exist with a certified(?*) marriage, if AND ONLY IF the state wants to prosecute PersonA for bigamy.
Sorry, but this is total, unadulterated BS.
(*I can’t remember what you actually call the dern thing.)
Minty, I think you’re overlooking that redtail isn’t talking about polygynous communities exclusively.
He’s talking about polygamous communities, which could include me and one of each, me and two other women, me and two men, or any variation thereof.
And he’s also not talking about a situation where one must have multiple partners. He appears (from where I sit) to be talking about having the option to take multiple spousi if that is what one wants and one has others who are amenable to this situation.
He seems to be asking where the harm is in that situation.
[sub]Or, I could be talking through my hat. If I had a hat.[/sub]
I recognize that, dogsbody. But he also appears to be arguing that because polygamy/-gyny/-whatever doesn’t necessarily cause the problems associated with it in communities where it is religiously mandated, it is unreasonable to criminalize it. I disagree. I believe that because polygamy does have undesirable social effects in those AZ/UT/ID communities where it is most often practiced, it is quite reasonable for the state to make it illegal and to enforce the law when appropriate.
But - unless I’ve misread something in this thread - in those communities you’re talking about there is a religious basis for the polygyny, correct? And it is exclusively polygynous, not polygamous?
And why is this any different from a monogamous marriage (as someone else brought up) where abuses happen because one spouse or the other believes “God(dess) meant marriage to be this way”? Should we then also outlaw monogamous marriage to prevent this from happening?
That’s close, but not quite right. Rather, it’s that you commit bigamy by marrying a person while still married to another. In Utah and the dozen or so other states that recognize common law marriage, it’s just that you have an option of how you marry somebody: either get a marriage license and a preacher or take the three steps necessary for a common law marriage (exchange of promises to wed, cohabitation, and holding forth as being married). So if a bigamist divorces a wife to dissolve a civil marriage, but subsequently fulfills the three criteria for a common law marriage, they’re married and he can be charged for marrying another woman.
In either event, there is no legal marriage after the first one. But by taking the legal steps otherwise necessary to marry the other person, you’ve committed the actus reus for bigamy.
Yep. But you can still tag a religious practice as long as the law is of general applicability.
Because monagomous marriage does not produce the social/demograpic pressures to marry children, etc., that I keep brining up. Polygamous marriage, at least as it is practiced in those religious communities that I’m complaining about, does exactly that.
Sweetie, I almost always have an opinion, just sometimes I’m smart enough to keep my mouth closed. 
