Saturday, December 14, 2013
Sister Wives, Er...Cohabitants
Since I brought up polygamy quite recently, I read with interest US District Court Judge Cark Waddoups' ruling in a case involving some married-not-married folks featured on Sister Wives. Apparently the Utah law against cohabitation between a married person and another not their spouse is banned in Utah as part of the state's legal regime against polygamy.
So Waddoups starts with a decent capsule history, excerpted here:
Because the United States Supreme Court’s 1879 decision in Reynolds v. United States displays “the essence of Orientalism” through its explicit “distinction between Western superiority and Oriental inferiority,” this is a relevant interpretative framework for evaluating the “crusade” of nineteenth-century American society against Mormon polygamy and the merits of the Reynolds decision today.
Although the object of the decision was the Mormon Church, an institution virtually entirely comprised of white Americans and European immigrants, rather than the “Orient” or a people or institution geographically unique thereto, Reynolds invokes this framework because of the comparisons drawn by the Court between Mormons and non-European peoples and their practices, and the Court’s views of the nature of the social harm posed by Mormon practices. For the Reynolds Court, the comparison with non-European peoples and their practices is precisely what made the Mormons’ practice of polygamy problematic.
With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator16 in the saga of religious polygamy in Utah (and America). When the federal government targeted Mormon polygamy for elimination during the half century from the passage of the Morrill Anti-Bigamy Act of 1862 through the Congressional inquiry into the seating of Utah Senator Reed Smoot from 1904 to 1907, the “good order and morals of society” served as an acceptable basis for a legislature, it was believed, to identify “fundamental values” through a religious or other perceived ethical or moral consensus, enact criminal laws to force compliance with these values, and enforce those laws against a targeted group.
In fact, with the exception of targeting a specific group, this has remained true in various forms (depending on the particular right and constitutional provision at issue) until the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) created ambiguity about the status of such “morals legislation.” But the LDS Church was a victim of such majoritarian consensus concerning its practice of polygamy as a foundational and identifying tenet of religious faith...
Although the court doubts that Lawrence actually must be interpreted to signal the end of the era in which the “good order and morals of society” are a rational basis for majoritarian legislation, there is no question this was the prevailing view in the 1870s. And, in fact, the decades-long “war” by the United States against the LDS Church—beginning with the Republican Party’s 1856 platform of abolishing American chattel slavery and Mormon polygamy as the “twin relics of barbarism” and culminating, depending on how one views the historical episode, with either the Enabling Act in 1894 requiring that Utah ensure that “polygamist or plural marriages are forever prohibited” in Utah as a condition for joining the Union as a State, or the seating of Utah Senator Reed Smoot in 1907—was based on a majoritarian consensus that Mormons were indeed “subversive of good order” in their practice of polygamy.
But what exactly was the “social harm” identified by the Reynolds Court in the Mormon practice of polygamy that made the practice “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.” ... A decade later, the Supreme Court clarified the social harm further, explaining that Mormons were degrading the morals of the country through their religious practices, such as polygamy, which, the Supreme Court declared, constituted “a return to barbarism” and were “contrary to the spirit of Christianity.”
Then a discussion of the nature of this cohabitation:
The relationship at issue in this lawsuit, which the court has termed “religious cohabitation,” has been aptly described by then Chief Justice Durham of the Utah Supreme Court. Religious cohabitation occurs when “[t]hose who choose to live together without getting married enter into a personal relationship that resembles a marriage in its intimacy but claims no legal sanction.”
Those who choose to live in these relationships “intentionally place themselves outside the framework of rights and obligations that surrounds the marriage institution.” Id. A defining characteristic of such cohabitation as lived by Plaintiffs and those similarly situated is that, in choosing “to enter into a relationship that [they know] would not be legally recognized as marriage, [they use] religious terminology to describe the relationship,” and this terminology— “‘marriage’ and ‘husband and wife’—happens to coincide with the terminology used by the state to describe the legal status of married persons.” Id. Stated succinctly, Plaintiffs “appropriate the terminology of marriage, a revered social and legal institution, for [their] own religious purposes,” though not purporting “to have actually acquired the legal status of marriage.”
And some calling out of statutory bullshit:
Given the fact that all prosecutions under the Statute’s cohabitation prong (as opposed to straightforward bigamy with multiple marriage licenses) have been of those cohabiting for religious reasons underscores that, in practice, the law is not operationally neutral under Hialeah. The State’s argument reveals that the object of the Statute “is to infringe upon or restrict practices because of their religious motivation.” Hialeah, 508 U.S. at 533. This it may not do unless it is a narrowly tailored means of advancing a compelling state interest.
Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence. The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the Statute, “it is, of course, the state that has equated private sexual conduct with marriage.” (Pls.’ Opp. to Def.’s Mot. Summ. J. 25 [Dkt. No. 72].) That is, in the case of people who have not even claimed to be legally married—are not making any claim to legal recognition of their unions or the network of laws surrounding the institution of marriage—“[i]t is the state that is treating the relationship as a form of marriage and prosecuting on that basis.” (Id.) As such, this, in effect, criminalizes “the private consensual relations of adults.”
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage...
This court shares serious concerns about the potential for injury and harm in closed religious polygamist communities, but notes that each such crime can and should be prosecuted on its own independent basis under the Utah statutes specifically designated for those purposes, including “criminal laws punishing incest, rape, unlawful sexual conduct with a minor, and domestic and child abuse.”
There's a lot of other great background and reasoning in the 91-page decision. In short, the ban is unconstitutional. I rather tend to agree...
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