July 12, 2011

Big Love

Seems perfectly reasonable to me.

And it is hard to disagree with Ann Althouse's point that decriminalizing polygamy would be a far more modest application of the Lawrence decision than applying it with regard to same-sex marriage. It should be less contentious, then, logically, but I doubt it will be.

The logic of prosecuting such polygamists is screwy anyway. It's not a matter of people being "really" married under any civil law, as I understand it. It's a matter of people going around saying "we're married." Well, you can say anything you want, can't you? I'm a tree. I'm a pineapple. My cat Matilda is from the planet X-188 and her front paws are the two true gods. I assume anyone trying to prosecute me for saying that stuff would find the First Amendment to be a substantial stumbling block. So how is that different from saying "hey, guess what, we're all married?"

If it is different, somehow, that is, if it's more than just the free speech issue that it seems to me to be, what about secular, non-Mormon alternative lifestyle polyamorous group living situations? Obviously, we don't interfere with them. Is it simply because they don't say "married"? And what if they say it and you don't hear them say it? Banning and prosecuting polygamists seems to violate a large handful of Constitutional principles as well as common sense.

I hope they win.

Posted by Dr. Frank at July 12, 2011 05:52 PM | TrackBack

Ive read this thing before in history that says marriage isnt marriage without romance. Then this chinese girl smacked my hands and punched me in the eyes my whole life. Marriage is not simple but to a boy and girl that are in love stealing a cookie in kindergarten says a lot...always sneaking out...its weird i dunno

Posted by: sheena at July 12, 2011 07:44 PM

people that dont tell people theyre married when they are usually dont realize they are someone found out i was married before we even figured it out and the girl down the road wont stop putting her toaster in my bath. On secondhand do you think romance gets depressing. When youre little and look at grown ups in love i dunno hard for me to comprehend the two people that i lived with were that girls parents and they kept stealing my vehicles and sending me to an insane asylum...they said they had a right to with the use if psalms. What i figure romance is not depressing though...anglican bibles can prove something like what cheaters do as unhealthy hehe hearts frank gotta head to an internet station to blog

Posted by: sheena at July 12, 2011 07:50 PM

All hail the Great Front Paws, and hail the prophet Frank!

Did they not scoop the litter most clumpy until they had rid the surface of the foul excretions of the evil Back Half of the great mother Cat? Did they not bat at the string whose Movements were provocative?

Let us now recite the acts of the True Gods, as told in the Old Testament of Kit Smart:
"For first he looks upon his forepaws to see if they are clean.
For secondly he kicks up behind to clear away there.
For thirdly he works it upon stretch with the forepaws extended.
For fourthly he sharpens his paws by wood.
For fifthly he washes himself.
For sixthly he rolls upon wash."
And may ye ALL roll upon wash of the cosmic mother, Matilda.

Oh, uh, good arguments too. I share the concern about women becoming trapped in abusive, dictatorial relationships, but that's quite clearly a broader issue. I keep thinking that states will eventually want an out, and that the creeping tide of tolerance will mean states will stop sanctioning "marriage" because their risk managers won't let them.

Posted by: marc w at July 13, 2011 07:00 AM

Who is married to whom is important for the government because it determines matters pertaining to responsibility for children and to the disposition of property. Who is and is not married ends up being legalistic as a matter of necessity. Adding polygamy to the mix will complicate matters. It is not just a matter of people being able to make any kind of personal choice they want. It has never been that.

Posted by: Lexington Green at July 13, 2011 06:13 PM

I hear ya, Lex, and I'd agree more readily if we were talking about actual legal marriage here. But as far as I can see, it's not legal. He's legally married to one person, and lives with other women he's not married to. For reasons of their own, they refer to these women as wives. Prosecuting them seems really loopy to me.

Now, I suppose you could make the slippery slope argument, e.g., that allowing them to refer to their cohabitation arrangement as a marriage even though it's actually not will only lead to demands for legal recognition. That may well be true, but whether to grant legal recognition to plural marriage (which I can't see ever happening) is a different question entirely than whether to prosecute people for alternative living arrangements.

You could certainly also make an argument that such living arrangements are not a good thing. But unless you're prepared to apply this standard across the board (that is, prosecute everyone with undesirable living arrangements, however you define it) I don't see how you can single out the Mormons and let the "leather families" or other alternative arrangements off the hook. Obviously, for better or worse, our society is not going to undertake living arrangement reform on this scale. And a good thing too. The state should stay out of it unless there's a really great reason to intervene.

In Utah, it seems to me, this kind of prosecution is at least partly a function of LDS public relations -- they think polygamy is bad for the brand. That's an inappropriate use of state power per se, it seems to me.

Anyway, that's how it looks from where I sit.

Posted by: Dr. Frank at July 13, 2011 06:36 PM

"...which I can't see ever happening..." Disagree, probably. If you establish gay marriage as a right, by Courts finding a Constitutional right to it, any consensual arrangement between adults will end up being a right. If you do it democratically, like they did in New York, it can be limited. One of many reasons to do things slowly, incrementally, and democratically. You lay a foundation for what society can handle, and you don't create open-ended change beyond what people want or are seeking.

Posted by: Lexington Green at July 13, 2011 11:46 PM

I agree with the last two sentences, certainly.

As for the first bit, I guess it gets the heart of the matter and I guess we disagree? It seems to me any consensual arrangement between adults should be, and *is*, a right. Certainly, that is how I read the Lawrence decision, and what's more that is an assumption in accordance with which our civil society broadly conducts itself. If a state were to pass laws limiting the conduct reflecting this assumption, say, forbidding unmarried co-habiting, or multiple partners, open marriages, recriminalizing adultery, forbidding gays to live together, etc., it would put itself at odds with the mores and customs of (almost) its entire populace, at least as to the principle involved.

Polygamy-like households (which are not actually polygamous barring fraudulent multiple licenses, as it's a legal impossibility) in which a married couple live with several other women and call them wives, is a bit more exotic, but it seems like the same principle, to me. The Utah law being applied in this case, which bars households that "look polygamous" (if I have that right) and is capriciously and selectively enforced seems to me to be obviously irrational if not actually unconstitutional. An identical household could avoid culpability simply by using a different word than "marriage" and "wives" to describe it. Even if it's an arrangement that is broadly disapproved of, criminal prosecution of a citizen on the basis of semantics and a vague sense of inappropriateness seems way out of line to me.

That said, I don't see how the right (to arrange your domestic affairs as you choose without interference by the government, barring other illegal activity) has anything to do with legal status. Shoehorning plural marriage into the current "binary" system would, as you say, cause untold complications and require an overhaul of far more than just marriage license requirements. That's why I don't really expect it to happen. But I don't see how throwing this guy and his family in jail, or not, has any bearing on that.

Posted by: Dr. Frank at July 14, 2011 12:29 AM

".. any consensual arrangement between adults should be, and *is*, a right." I don't think so. States have always regulated these relationships, and other personal matters. They do so less often now, or don't enforce existing rules, but there is no right in the Constitution to do whatever you want in this regard. To determine that something is a right is a huge step. It is a step we have not taken for all kinds of conduct which we allow or tolerate. I agree that this particular case does not make any sense. Prosecutors have a lot of discretion. They often abuse it. That is why have elections to throw them out and get new ones. Problem is, they often accurately gauge the public mood, and do things that you or I disagree with, but that are popular. Such is democracy.

Posted by: Lexington Green at July 14, 2011 03:33 PM

Interesting. Am I wrong in thinking that Lawrence vs. Texas effectively does construe freedom as to "intimate conduct" between consenting adults as a Constitutional right?

It seems to me that if a state tried to outlaw homosexuality, or to impose criminal penalties on pre-marital sex or unmarried cohabiting or gay households or something of that kind, it'd get struck down pretty quick on that basis. My contention is that the sort of polygamy being prosecuted here is no different.

The Constitution aside, it seems to me that there can be effective "rights" by custom and culture and common tradition. The idea that consenting adults have the right to intimate relations with whomever they choose is deep and broad in our society; nearly the entire populace, along with most of its cultural and legal institutions, conducts itself on the unquestioned assumption that this is the case. (There are religious institutions that disagree, but they are at odds with the overwhelming, effective social consensus.) If a state criminalized non-marital sex, for instance, it would tear this country apart.

Posted by: Dr. Frank at July 14, 2011 04:31 PM

To clarify that last bit: if a state merely passed such a law it would be derided, mocked, and ignored by the nearly 100% of the population who are, or had ever been, in violation of it; the tearing apart would happen if they actually launched a crackdown on dating couples. And if such a law were actually to achieve state control of dating and romantic relationships, the resulting society would be utterly unrecognizable.

Obviously, that's absurd and would never happen. But it seems to me the absurdity extends to the notion of state control over any intimate relationships between consenting adults, and I don't see how you'd square singling out particular dating or domestic configurations with equal protection when it comes to criminal prosecution.

Posted by: Dr. Frank at July 14, 2011 07:20 PM