# Rational basis for not recognizing polygamy **URL:** \ **Category:** Great Debates\ **Created:** [June 16, 2011, 8:52pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741 "2011-06-16T20:52:53Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 18, 2011, 8:21pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/121 "2011-06-18T20:21:30Z")
> [@Jimmy\_Chitwood](#): > > Second, it isn’t really true. Not everyone is on equal footing. We’ve already had plenty of historical lessons about the way inequality and discrimination work in practice. Opposition to anti-discrimination laws on the grounds that they afford special status is used as justification for an unequal status quo. If discrimination didn’t exist in unequal measure from one group to the next, “Equal Protection” wouldn’t even be a thing. There’s nothing “special” given to a black man by saying to a white man that the latter can’t own the former, or has to let him into his schools, and so on. You aren’t handing anything to a group that’s been discriminated against that wasn’t theirs to begin with, constitutionally speaking. Enforced equality isn’t a gift to the person who’s been subject to an inequality. I think this is important. Granting protection to homosexuals is not granting them special protection. EP law does not grant blacks special protection. The protection covers everyone. You cannot be discriminated against based on the color of your skin be it white, black or whatever. Saying you cannot discriminate based on sexual orientation does not grant special status to homosexual people. Such a law would protect both homosexual and heterosexual people. That the reality has been homosexuals have been the oppressed class and heterosexuals have not had a problem does not change that. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 18, 2011, 8:35pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/122 "2011-06-18T20:35:32Z")
> [@villa](#): > > No really, they don’t. What they do is say you as a restaurant owner can choose not to serve a black person, but not because they are black. A special right would be that you cannot choose not to serve a black person for a reason that you could refuse to serve someone else. It’s not a special right because it is also saying a person may not be refused service because they are not black. Just as the rules they were trying to prevent in Colorado would prevent discrimination against ALL people based on sexual orientation. Right. So that law sets up a special class: race. Me, you, the KKK member, or the Black Panther who owns a restaurant can’t refuse service based upon race. That is special treatment for all of the reasons I outlined in my above post. Again, I agree with the special treatment. We have evolved to where discrimination based upon race should be eliminated from society. But it still creates rights above and beyond all of the other things that the particular restaurant owner might refuse service because of. You might say that it applies to blacks and whites alike, heterosexuals and homosexuals alike, but so would every discrimination law. A protection against the status of pedophile would apply equally to pedophiles and non-pedophiles alike, just as the discredited anti-miscegenation laws applied equally to everyone marrying outside of his or her race. Is it your contention that since it prohibits discrimination equally, then there are no special rights? Then why is the converse simply not discrimination? > [@Villa](#): > > Again, you are making a massive error here. As I told you, being a homosexual could not be criminalized. A homosexual does not by his own admission engage in sodomy. Just as a nun may claim to be heterosexual, but does not by admitting heterosexuality, admit to engaging in sex. Unless you are maintaining that it is impossible for a homosexual to be celibate. I understand your point, but it is as thin as a razor. Sure there are some celibate homosexuals and heterosexuals, but if I told you that I was a homosexual, what kind of odds would you need for me to show that I wasn’t sticking a dick in a guy? [Quote=Villa] Again, you are missing the point. It is possible to argue, and I would agree, that Kennedy didn’t apply the test he claimed to be applying. But that doesn’t affect the test itself. [/QUOTE] Respectfully, you are missing the point. His “test” is not one at all. If you ignore all of the reasons and simply declare that the law is based upon animus, then all laws can be invalidated. e.g. You won’t sell liquor on Sundays. You are showing animus towards liquor drinkers who don’t go to church. Law is based upon animus and is invalid. Never mind any other reasons. I said “animus,” so I win. Neener, neener, neener. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 18, 2011, 8:40pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/123 "2011-06-18T20:40:32Z")
@Jimmy Chitwood. Slave owners are denied their right to be protected under the 13th amendment. Sure, they are evil and we don’t want slavery, but so what? Constitutions make value judgments along with moral and legal ones. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 8:50pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/124 "2011-06-18T20:50:28Z")
> [@jtgain](#): > > Right. So that law sets up a special class: race. Me, you, the KKK member, or the Black Panther who owns a restaurant can’t refuse service based upon race. That is special treatment for all of the reasons I outlined in my above post. Again, I agree with the special treatment. We have evolved to where discrimination based upon race should be eliminated from society. But it still creates rights above and beyond all of the other things that the particular restaurant owner might refuse service because of. > > You might say that it applies to blacks and whites alike, heterosexuals and homosexuals alike, but so would every discrimination law. A protection against the status of pedophile would apply equally to pedophiles and non-pedophiles alike, just as the discredited anti-miscegenation laws applied equally to everyone marrying outside of his or her race. Is it your contention that since it prohibits discrimination equally, then there are no special rights? Then why is the converse simply not discrimination? How is it a special right when EVERYONE gets it? EVERYONE is given the right not to be discriminated against based on race, or sexual orientation, or whatever. The law is by its very nature not setting up special classes, as it applies equally to all. (ADEA is interesting, by the way). So answer this - who in the restaurant example is afforded rights over and above anyone else? > [@jtgain](#): > > I understand your point, but it is as thin as a razor. Sure there are some celibate homosexuals and heterosexuals, but if I told you that I was a homosexual, what kind of odds would you need for me to show that I wasn’t sticking a dick in a guy? It is not thin as a razor. It’s fundamental. We don’t judge in criminal law based on what we think it is likely people are doing, but instead based on what we prove they do. Criminalizing homosexuality is criminalizing thoughts, and flies directly in the face of the constitution. That you seem unable to separate a homosexual as a human being from homosexual acts speaks volumes about your position on this issue. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [June 18, 2011, 8:55pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/125 "2011-06-18T20:55:07Z")
Race isn’t a class. Race is a classification that can be applied to every person to the same degree. Who is getting special treatment if we say there’s a rule that nobody can be discriminated against based on race? I don’t understand what your point is in the post directed at me. Slave owners isn’t a racial classification. If Will Smith tries to put my ass on a plantation, I’m calling in the feds. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 18, 2011, 9:02pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/126 "2011-06-18T21:02:47Z")
> [@jtgain](#): > > This is bad because judges are unelected and have life tenure. If your state legislature is acting irrationally, you have a much better mechanism for replacing them: the ballot box. If judges start acting irrationally, you are screwed. That’s why I feel that they shouldn’t take on legislative functions. Are you talking about SCOTUS judges? They are confirmed by the Senate and while they do have life tenure, I can’t figure out how you’d be able to separate them from ruling on legislative functions, eg, law. A handful of judges in my state weren’t retained for voting the way they did re: SSM. 😕 ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 18, 2011, 9:06pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/127 "2011-06-18T21:06:41Z")
> [@villa](#): > > It is not thin as a razor. It’s fundamental. We don’t judge in criminal law based on what we think it is likely people are doing, but instead based on what we prove they do. Criminalizing homosexuality is criminalizing thoughts, and flies directly in the face of the constitution. That you seem unable to separate a homosexual as a human being from homosexual acts speaks volumes about your position on this issue. So too, is criminalizing adultery and bigotry, eh? Or you just mean homosexuality, not the implications of? 😕 Is this thread permanently derailed from polygamy? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 9:10pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/128 "2011-06-18T21:10:46Z")
This makes no sense at all. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 18, 2011, 9:33pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/129 "2011-06-18T21:33:13Z")
> [@Jimmy\_Chitwood](#): > > Race isn’t a class. Race is a class in EP jurisprudence: > [@](#): > > All race-based classifications must be subjected to strict scrutiny, not intermediate scrutiny, as the Supreme Court held in [Adarand Constructors v. Peña, 515 U.S. 200 (1995)](http://en.wikipedia.org/wiki/Adarand_Constructors_v._Pe%C3%B1a), overruling [Metro Broadcasting, Inc. v. FCC (89-453), 497 U.S. 547 (1990)](http://en.wikipedia.org/wiki/Metro_Broadcasting,_Inc._v._FCC). The overruled case had briefly allowed the use of intermediate scrutiny to analyze the Equal Protection implications of race-based classifications in the narrow category of affirmative action programs established by the federal government in the broadcasting field. > > SOURCE: [Strict scrutiny - Wikipedia](http://en.wikipedia.org/wiki/Strict_scrutiny#Racial_discrimination) As noted though this does not grant any one group special rights. You cannot be discriminated against (as a legal matter) based on the color of your skin regardless what color your skin might be. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 9:37pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/130 "2011-06-18T21:37:24Z")
> [@Whack-a-Mole](#): > > Race is a class in EP. Except your quote talks of race based classifications. The point is that while an individual race is a class, race isn’t. Because everyone has a race (according to the law). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 9:41pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/131 "2011-06-18T21:41:54Z")
To make that clearer. Race is a characteristic upon which EP classes are drawn. Race is not in itself a class under EP. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 18, 2011, 9:44pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/132 "2011-06-18T21:44:09Z")
> [@villa](#): > > How is it a special right when EVERYONE gets it? EVERYONE is given the right not to be discriminated against based on race, or sexual orientation, or whatever. The law is by its very nature not setting up special classes, as it applies equally to all. (ADEA is interesting, by the way). > > So answer this - who in the restaurant example is afforded rights over and above anyone else? It depends on how broadly you look at it. Laws against miscegenation apply equally to blacks and whites. EVERYONE is treated the same! > [@Villa](#): > > It is not thin as a razor. It’s fundamental. We don’t judge in criminal law based on what we think it is likely people are doing, but instead based on what we prove they do. Criminalizing homosexuality is criminalizing thoughts, and flies directly in the face of the constitution. That you seem unable to separate a homosexual as a human being from homosexual acts speaks volumes about your position on this issue. I’m not saying that you can criminalize thoughts. What I am saying is that you can surely say “No protection in law for people who identify with a group whose purpose is to commit criminal acts.” And, again, with respect, don’t try to tell me how I think about people, homosexual or otherwise. This is a debate thread about a current issue. Your statement makes no sense. It’s like lecturing someone to don’t assume that someone who identifies as a baseball fan is someone who likes baseball. Sure, he might not play baseball, attend games, or have watched one on TV recently, but is it not fair to make the connection between baseball fan and baseball? As I said above, if you can criminalize the act, you can refuse to give protection to those who identify with the act. Of course you can’t criminalize homosexuality anymore than you could criminalize thoughts of pedophilia. But if you had a workplace and an applicant told you that he dreamed day and night about fucking 8 year olds, but he never actually did it, would you expect a lecture about how there is a difference between the pedophile as a human versus acts of pedophilia? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 18, 2011, 9:47pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/133 "2011-06-18T21:47:03Z")
> [@CitizenPained](#): > > Are you talking about SCOTUS judges? They are confirmed by the Senate and while they do have life tenure, I can’t figure out how you’d be able to separate them from ruling on legislative functions, eg, law. > > A handful of judges in my state weren’t retained for voting the way they did re: SSM. 😕 True. I was talking about federal judges. Still, judges should rule on constitutionality of legislative functions, not this “rational basis” nonsense that is a function of a democratically elected body. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 18, 2011, 10:09pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/134 "2011-06-18T22:09:07Z")
> [@villa](#): > > To make that clearer. Race is a characteristic upon which EP classes are drawn. Race is not in itself a class under EP. Err…not sure I follow. Sounds like a distinction without a difference. My cite seems to make it clear that the courts address race issues in EP under Strict Scrutiny. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 10:13pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/135 "2011-06-18T22:13:23Z")
> [@jtgain](#): > > Still, judges should rule on constitutionality of legislative functions, not this “rational basis” nonsense that is a function of a democratically elected body. I always love this whine. [QUOTE=The Fourteenth Amendment to the United States Constitution] No state shall … deny to any person within its jurisdiction the equal protection of the laws. [/QUOTE] Apparently ruling on the constitutionality of a law under this is not now ruling on the constitutionality of legislative functions, despite it being, you know, ruling on a legislative function (such as passing a law) based on the constitution of the United States. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 18, 2011, 10:17pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/136 "2011-06-18T22:17:37Z")
> [@villa](#): > > I always love this whine. > Apparently ruling on the constitutionality of a law under this is not now ruling on the constitutionality of legislative functions, despite it being, you know, ruling on a legislative function (such as passing a law) based on the constitution of the United States. Agreed. Not to mention the country was setup to have a balance of power. The Executive, the Legislative and the Judicial branches. Checks and balances and all that jazz. What each does is pretty clearly spelled out. It is the JOB of the Judicial branch to make the kinds of rulings **jtgain** is upset about. In short he is mad that they are doing their job as spelled out in the Constitution. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 18, 2011, 10:30pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/137 "2011-06-18T22:30:35Z")
> [@jtgain](#): > > It depends on how broadly you look at it. Laws against miscegenation apply equally to blacks and whites. EVERYONE is treated the same! Interestingly enough, you are wrong. If you look at the text of the law struck in _Loving_, you will find [the following:](http://en.wikisource.org/wiki/Racial_Integrity_Act_of_1924) > [@](#): > > It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this act, the term “white person” shall apply only to the person who has no trace whatsoever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act. I believe some anti-miscegenation laws did treat people equally, but this one certainly didn’t. So, even if we have a “neutral” anti-miscegenation law, what then. Well, there are different ways of looking at a law. A law can be facially discriminatory, or it can have discriminatory effects. “No black person may vote” is an example of the first. “No descendant of slaves may vote” is an example of the second. “No person who cannot pass a literacy test may vote, unless their grandfather could also vote” was also an example of the second. > [@jtgain](#): > > I’m not saying that you can criminalize thoughts. What I am saying is that you can surely say “No protection in law for people who identify with a group whose purpose is to commit criminal acts.” > > And, again, with respect, don’t try to tell me how I think about people, homosexual or otherwise. This is a debate thread about a current issue. Your statement makes no sense. It’s like lecturing someone to don’t assume that someone who identifies as a baseball fan is someone who likes baseball. Sure, he might not play baseball, attend games, or have watched one on TV recently, but is it not fair to make the connection between baseball fan and baseball? > > As I said above, if you can criminalize the act, you can refuse to give protection to those who identify with the act. Of course you can’t criminalize homosexuality anymore than you could criminalize thoughts of pedophilia. > > But if you had a workplace and an applicant told you that he dreamed day and night about fucking 8 year olds, but he never actually did it, would you expect a lecture about how there is a difference between the pedophile as a human versus acts of pedophilia? I don’t need to tell you or anyone how you think about gay people. You are doing a damn good job of that yourself. Is there a difference between a pedophile and a child abuser? Absolutely. But remember, it was **you** who seemed to think it relevant that because Colorado could criminalize sodomy, it could pass a law banning anti-discrimination laws protecting homosexuals. It doesn’t. That child abuse can be criminalized doesn’t impact whether a law could be passed banning anti-discrimination laws protecting pedophiles. The government cannot criminalize pedophilia or homosexuality. The government could pass anti-discrimination laws protecting pedophiles. There’s nothing requiring them to at all, though. But none of this has anything to do with whether child abuse is legal or illegal. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 19, 2011, 1:44am UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/138 "2011-06-19T01:44:18Z")
> [@Whack-a-Mole](#): > > It is the JOB of the Judicial branch to make the kinds of rulings **jtgain** is upset about. > > In short he is mad that they are doing their job as spelled out in the Constitution. Not true. When it comes to a suspect classification, then they should step up. But they, by their own words, state that sexual orientation is not such a class. If you will read up, you will see that I only disagree with the Court passing judgment on whether a law is “rational” or not. THAT is the job of a legislature, not a court. **Villa**.I’d like to continue this, but I think that it is getting too personal. I’m trying to have a reasoned discussion, but you keep impugning motives to me that aren’t there. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 19, 2011, 2:13am UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/139 "2011-06-19T02:13:18Z")
> [@jtgain](#): > > Not true. When it comes to a suspect classification, then they should step up. But they, by their own words, state that sexual orientation is not such a class. > > If you will read up, you will see that I only disagree with the Court passing judgment on whether a law is “rational” or not. THAT is the job of a legislature, not a court. > > **Villa**.I’d like to continue this, but I think that it is getting too personal. I’m trying to have a reasoned discussion, but you keep impugning motives to me that aren’t there. Marbury v. Madison means they can decide if any law is constitutional. If they want rationality to be one of the tests, it can be. The end. And, yes, when people choose to interpret the constitution one way over another, it very often has to do with their own biases on how things should be. You have not clearly articulated why one thing is acceptable but another is not. Oh, and if anyone cares about the original topic: legality usually follows morality. If polygamy gets accepted, as society trending towards, the necessary legal changes will be made. There is no coherent moral argument that homosexuality is acceptable but polygamy is not. Both pass the “consenting adults” test that the Western modern consensus morality seems to be based upon. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 19, 2011, 3:02pm UTC](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741/140 "2011-06-19T15:02:03Z")
> [@BigT](#): > > There is no coherent moral argument that homosexuality is acceptable but polygamy is not. Sure there is. Sexual attraction is an innate characteristic. Polygamy is not. Polygamy is a personal philosophy that people choose or not choose. [Previous page](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741.md?page=6) [Next page](https://boards.straightdope.com/t/rational-basis-for-not-recognizing-polygamy/585741.md?page=8)