Carson Holloway

Justice Sotomayor and the path to polygamy

Carson Holloway
By Carson Holloway
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April 22, 2013 (PublicDiscourse) - Opponents of same-sex marriage resist it because it amounts to redefining marriage, but also because it will invite future redefinitions. If we embrace same-sex marriage, they argue, society will have surrendered any reasonable grounds on which to continue forbidding polygamy, for example.

In truth, proponents of same-sex marriage have never offered a very good response to this concern. This problem was highlighted at the Supreme Court last month in oral argument over California’s Proposition 8, the state constitutional amendment that defines marriage as a union of a man and a woman.

Surprisingly, the polygamy problem that same-sex marriage presents was raised by an Obama appointee, the liberal Justice Sonia Sotomayor. Sotomayor interrupted the presentation of anti-Prop 8 litigator Theodore Olson to pose the following question: If marriage is a fundamental right in the way proponents of same-sex marriage contend, “what state restrictions could ever exist,” for example, “with respect to the number of people . . . that could get married?”

In response, Olson tried to set up a clear distinction between same-sex marriage and polygamy, suggesting that the kinds of governmental interests that justify a prohibition of polygamy are irrelevant in the case of same-sex marriage.

The Court has said, he contended, that polygamy raises “questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody” and therefore “is an entirely different thing” than same-sex marriage. Moreover, Olson argued, when a “state prohibits polygamy, it’s prohibiting conduct,” but if “it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.”

Justice Sotomayor’s concerns about the possibility of a path from same-sex marriage to polygamy may arise from the fact that there is already a case in federal court challenging Utah’s anti-bigamy law as unconstitutional.  In any event, she should be just as concerned about this question after oral argument as she was before it, because none of Olson’s distinctions can reasonably justify a prohibition on polygamy if the Court finds a constitutional right to same-sex marriage. To see why, it’s first useful to note a crucial distinction that Olson overlooked, as well as the most famous Supreme Court case regarding polygamy, which he failed to mention.

Olson’s words to the Court suggest that the state somehow “forbids” same-sex marriage today just as it “forbids” polygamy. This is not true, as Adam MacLeod noted on Public Discourse earlier this week. Under current law and Supreme Court precedent, no state has constitutional authority to punish anyone for entering into a same-sex relationship. No state in fact “prohibits” same-sex marriage. If any persons wish to enter into such a relationship and call it a marriage, they are perfectly free to do so.

The real issue, the real complaint in the case that Olson represents, is that the state simply refuses to bestow on same-sex unions the same recognition that it gives to heterosexual marriages. In stark contrast, the law in many American jurisdictions not only refuses to recognize polygamous marriages; it actively punishes them. Enter into a same-sex marriage and the government will simply ignore you. Enter into a polygamous marriage and the law permits the government to prosecute you for a crime.

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Unlike the distinctions Olson raised, this one is real, and it positively undermines his assurance that we can have same-sex marriage while still banning polygamy. Common sense makes it hard to see how this could be done. In Olson’s view, the state may not officially prefer heterosexual marriage by a policy so mild that it does nothing other than to leave same-sex couples alone while declining to formally recognize their unions. By what reasoning, then, could it have a right to prefer some definition of marriage by actually punishing those who choose to disregard it?

Moreover, in his summary of what the Supreme Court has “said” about polygamy, Olson omitted to mention the single most famous case dealing with this question, Reynolds v. United States (1879). In that case the Court upheld the federal law forbidding polygamy in the territories of the United States, and declined to find that the free exercise clause immunizes those who practice it for religious reasons.

Most of the Court’s argument is dedicated to the original meaning of the Constitution’s religion clauses, but also noteworthy is its passing comment on the basis of the law in question, a basis that the Court at that time apparently found unquestionably legitimate: “Polygamy has always been odious among the northern and western nations of Europe . . . and from the earliest history of England polygamy has been treated as an offense against society.”

Reynolds has never been overturned and indeed has been cited as an authority by the modern Supreme Court. In it the Court tells us straightforwardly the basis of laws prohibiting polygamy: moral disapproval of the practice. This raises a serious problem for the defenders of same-sex marriage.

A number of the Court’s precedents defending a “right of privacy” have already strongly undermined the idea that the majority’s moral convictions are a sufficient basis for law. If the Court finds a right to same-sex marriage, it will practically dismantle the whole concept of morals legislation. But if moral preference for heterosexual marriage cannot be a reasonable basis on which to afford it a formal recognition denied to other unions, then how can moral disapproval be a reasonable ground on which to forbid and punish polygamy?

Let us turn now from the distinctions Olson overlooked to the ones he emphasized. In the first place, Olson contended that polygamy raises serious concerns about “exploitation,” “abuse,” and “patriarchy” that aren’t relevant to same-sex marriage. Presumably he was referring to the “abuse” and “exploitation” of the children and perhaps wives of plural marriages. Yet, under the constitutional theory of marriage Olson has tried to sell, none of these considerations would be sufficient to forbid polygamy. Olson insists that marriage is a fundamental right. Standard Supreme Court doctrine holds that fundamental rights can only be infringed to defend a “compelling state interest” and that the regulations made to protect that interest must be drawn as narrowly as possible.

Everyone would concede that prevention of abuse and exploitation of children and wives is a compelling state interest. On the other hand, nobody would contend that such abuse and exploitation is the very essence of polygamy. After all, abuse and exploitation can be found in monogamous marriages, too. The most one could say is that these problems are dangers to which polygamous unions are more or less prone. In any case, under the “fundamental rights” doctrine on which Olson relies, the least restrictive means to remedy such dangers would be to recur to already existing laws punishing such abuse and exploitation, rather than going so far as to ban polygamy altogether.

Olson may also have been hinting that the state could reasonably fear that abuse and exploitation of children is more likely to arise in families where the children are not related by blood to all of their parents. This is a reasonable concern, but it could be raised just as easily in relation to same-sex marriages, where at best, only one parent can be biologically related to each child.

Similar problems arise if we consider Olson’s invocation of “patriarchy” as a justification for forbidding polygamy. We might ask: What’s wrong with patriarchy?

The most straightforward answer to this question that Olson could muster is that patriarchy is morally offensive in a liberal, egalitarian society. But, as we have seen, the case for a right to same-sex marriage depends on the Court’s willingness to expel moral sentiments as a basis for law. Or is the Court to hold that the things that offend traditional moral sensibilities are impermissible as bases for law while the things that offend progressive moral sensibilities are fine? This would be to reduce constitutional jurisprudence to naked partisanship and ideology.

Be that as it may, there is no necessary connection between patriarchy and polygamy, at least under the constitutional and legal regime now prevailing. Under the modern interpretation of the equal protection clause, any “right” to enter plural marriages would be held equally by men and women. It would not be a patriarchal right of some men to have multiple wives, but a right of both men and women to have multiple spouses of their own choosing.

Moreover, given the ease of access to divorce, there would be no serious reason to fear that women who entered plural marriages would be unable to escape from them if they found them unsatisfactory. And again, if the creation of a “right” to polygamy opened a social space in which some patriarchal subordination of women could develop, this problem could be corrected by legal remedies falling far short of banning polygamy entirely.

Olson also suggested that a ban on polygamy is made reasonable by certain technical and legal challenges that it raises, challenges involving “taxes,” “inheritance,” and “child custody.” Again, the distinction here between same-sex marriage and polygamy is underwhelming. Because same-sex marriages are prone, like polygamous marriages, to have children who are not biologically related to all of their parents, they are also prone to complications involving inheritance and child custody.

Perhaps by referring to “taxes” Olson meant to suggest that polygamous unions have a potential to produce enormous families and thus to drain federal revenues by entitling single families to hitherto unheard of numbers of tax deductions and credits. This fear, however, assumes that the standard polygamous union will feature one husband with many wives. This may not turn out to be the case. At any rate, as noted before, if marriage is a fundamental right in the way Olson’s words suggest, such problems would have to be remedied by the least-restrictive means, and mere reform of the tax provisions is far less restrictive than an outright ban on such marriages. (For example, dividing spousal benefits by the number of spouses.)

Finally, Olson argues that laws forbidding polygamy target behavior, while laws refusing to recognize same-sex marriage prohibit the exercise of a right based on people’s status. This distinction is entirely spurious. If laws against polygamy can be understood as targeting behavior, the same can just as easily be said about laws defining marriage as a union of a man and a woman.

Such laws refuse to bestow official recognition on a certain behavior—entering into a same-sex relationship—in which the state believes it has no vital interest. Conversely, if laws defining marriage as a union of a man and a woman can be viewed as singling out a specific class of people—gays—then anti-polygamy laws can equally be presented in the same sinister light: They refuse the right to marry to people of a certain status—polys—those who desire to marry multiple people.

As these reflections suggest, there is very good reason indeed to believe that the declaration of a “right” to same-sex marriage will set us on the path to polygamy. To allay these concerns, the proponents of same-sex marriage sometimes respond that they are only seeking what married heterosexuals already have: access to marriage understood as a union of two people. But this reassurance utterly misses the point: All the arguments by which they seek that end can easily be turned to the purposes of those who might next seek polygamy.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press). This article reprinted with permission from The Public Discourse.

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Maine Supreme Court denies rapist contact with his daughter

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By Ben Johnson

A ruling from the Supreme Court of Maine denied a rapist any visitation rights to his child, refuting a prevalent claim from abortion activists that rape victims who keep their children will be tied to their abusers for life.

Richard Sullivan began raping his victim when she was 13 or 14 years old – and he was 60. She endured his abuse at least weekly.

Like many rapists, he “took steps to conceal his abuse,” in the words of the court ruling, written by Justice Donald Alexander. “Once, when she was sixteen, Sullivan arranged an abortion for Doe, without her parents' knowledge.” Maine has no parental consent requirement, according to Planned Parenthood.

Sullivan fathered a second child, a daughter, with the young woman in September 2007 when the victim was 20. In 2011, the young woman obtained a temporary protection order against Sullivan, who promptly sued for custody of his daughter.

In a 13-page decision in Sullivan v. Doe on August 28, the Maine Supreme Court upheld a lower court ruling that denied Sullivan all custody or contact with his child, cut off access to any of her records, and required him to pay $38,019 in back child support.

Sullivan is now facing five charges of sexual molestation in York County, Maine, for the molestation of the girl's mother.

The pro-life community welcomed the decision.

“Rapists don't deserve rights, innocent children and mothers do!” Monica Kelsey of Save the 1 told LifeSiteNews. “A woman who is raped deserves to be protected from her rapist at all costs, and if there is a child involved the child deserves protection, as well.”

“Women won't choose life for their child as often as they do now if they feel that they have to be associated with the rapist for another 18 years,” Kelsey, who was conceived in rape, warned.

Pro-abortion lobbyists often exploit this fear in their public attacks on the pro-life position. In 2012, Health Care for America Now (HCNA) blasted a “militant, absolutist Republican” position that would force women into “submitting to the rapist-father’s assertion of paternal rights regarding visitation, religion, education, health care and countless other issues...Welcome to the GOP’s shocking approach to women’s rights.”

Health Care for America Now (HCAN) is a national “grassroots” organization comprised of more than 1,000 left-wing activist groups – mostly labor unions and left-wing political organizations funded by billionaire George Soro. Its members include the Planned Parenthood Federation of America, the National Abortion Federation, Physicians for Reproductive Choice and Health, and the Religious Coalition for Reproductive Choice.

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Studies show approximately 70 percent of rape victims choose not to have an abortion.

“We as a society need to protect these women and children from further trauma, and these men need to be punished to the fullest extent of the law,” Kelsey told LifeSiteNews. 

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Janna Darnelle

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My husband divorced me for his gay lover - then took our children

Janna Darnelle
By Janna Darnelle

Every time a new state redefines marriage, the news is full of happy stories of gay and lesbian couples and their new families. But behind those big smiles and sunny photographs are other, more painful stories. These are left to secret, dark places. They are suppressed, and those who would tell them are silenced in the name of “marriage equality.”

But I refuse to be silent.

I represent one of those real life stories that are kept in the shadows. I have personally felt the pain and devastation wrought by the propaganda that destroys natural families.

The Divorce

In the fall of 2007, my husband of almost ten years told me that he was gay and that he wanted a divorce. In an instant, the world that I had known and loved—the life we had built together—was shattered.

I tried to convince him to stay, to stick it out and fight to save our marriage. But my voice, my desires, my needs—and those of our two young children—no longer mattered to him. We had become disposable, because he had embraced one tiny word that had become his entire identity. Being gay trumped commitment, vows, responsibility, faith, fatherhood, marriage, friendships, and community. All of this was thrown away for the sake of his new identity.

Try as I might to save our marriage, there was no stopping my husband. Our divorce was not settled in mediation or with lawyers. No, it went all the way to trial. My husband wanted primary custody of our children. His entire case can be summed up in one sentence: “I am gay, and I deserve my rights.” It worked: the judge gave him practically everything he wanted. At one point, he even told my husband, “If you had asked for more, I would have given it to you.”

I truly believe that judge was legislating from the bench, disregarding the facts of our particular case and simply using us—using our children— to help influence future cases. In our society, LGBT citizens are seen as marginalized victims who must be protected at all costs, even if it means stripping rights from others. By ignoring the injustice committed against me and my children, the judge seemed to think that he was correcting a larger injustice.

My husband had left us for his gay lover. They make more money than I do. There are two of them and only one of me. Even so, the judge believed that they were the victims. No matter what I said or did, I didn’t have a chance of saving our children from being bounced around like so many pieces of luggage.

A New Same-Sex Family—Built On the Ruins of Mine

My ex-husband and his partner went on to marry. Their first ceremony took place before our state redefined marriage. After it created same-sex marriage, they chose to have a repeat performance. In both cases, my children were forced—against my will and theirs—to participate. At the second ceremony, which included more than twenty couples, local news stations and papers were there to document the first gay weddings officiated in our state. USA Today did a photo journal shoot on my ex and his partner, my children, and even the grandparents. I was not notified that this was taking place, nor was I given a voice to object to our children being used as props to promote same-sex marriage in the media.

At the time of the first ceremony, the marriage was not recognized by our state, our nation, or our church. And my ex-husband’s new marriage, like the majority of male-male relationships, is an “open,” non-exclusive relationship. This sends a clear message to our children: what you feel trumps all laws, promises, and higher authorities. You can do whatever you want, whenever you want—and it doesn’t matter who you hurt along the way.

After our children’s pictures were publicized, a flood of comments and posts appeared. Commenters exclaimed at how beautiful this gay family was and congratulated my ex-husband and his new partner on the family that they “created.” But there is a significant person missing from those pictures: the mother and abandoned wife. That “gay family” could not exist without me.

There is not one gay family that exists in this world that was created naturally.

Every same-sex family can only exist by manipulating nature. Behind the happy façade of many families headed by same-sex couples, we see relationships that are built from brokenness. They represent covenants broken, love abandoned, and responsibilities crushed. They are built on betrayal, lies, and deep wounds.

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This is also true of same-sex couples who use assisted reproductive technologies such as surrogacy or sperm donation to have children. Such processes exploit men and women for their reproductive potential, treat children as products to be bought and sold, and purposely deny children a relationship with one or both of their biological parents. Wholeness and balance cannot be found in such families, because something is always missing. am missing. But I am real, and I represent hundreds upon thousands of spouses who have been betrayed and rejected.

If my husband had chosen to stay, I know that things wouldn’t have been easy. But that is what marriage is about: making a vow and choosing to live it out, day after day. In sickness and in health, in good times and in bad, spouses must choose to put the other person first, loving them even when it’s hard.

A good marriage doesn’t only depend on sexual desire, which can come and go and is often out of our control. It depends on choosing to love, honor, and be faithful to one person, forsaking all others. It is common for spouses to be attracted to other people—usually of the opposite sex, but sometimes of the same sex. Spouses who value their marriage do not act on those impulses. For those who find themselves attracted to people of the same sex, staying faithful to their opposite-sex spouse isn’t a betrayal of their true identity. Rather, it’s a decision not to let themselves be ruled by their passions. It shows depth and strength of character when such people remain true to their vows, consciously striving to remember, honor, and revive the love they had for their spouses when they first married.

My Children Deserve Better

Our two young children were willfully and intentionally thrust into a world of strife and combative beliefs, lifestyles, and values, all in the name of “gay rights.” Their father moved into his new partner’s condo, which is in a complex inhabited by sixteen gay men. One of the men has a 19-year-old male prostitute who comes to service him. Another man, who functions as the father figure of this community, is in his late sixties and has a boyfriend in his twenties. My children are brought to gay parties where they are the only children and where only alcoholic beverages are served. They are taken to transgender baseball games, gay rights fundraisers, and LGBT film festivals.

Both of my children face identity issues, just like other children. Yet there are certain deep and unique problems that they will face as a direct result of my former husband’s actions. My son is now a maturing teen, and he is very interested in girls. But how will he learn how to deal with that interest when he is surrounded by men who seek sexual gratification from other men? How will he learn to treat girls with care and respect when his father has rejected them and devalues them? How will he embrace his developing masculinity without seeing his father live out authentic manhood by treating his wife and family with love, honoring his marriage vows even when it's hard?

My daughter suffers too. She needs a dad who will encourage her to embrace her femininity and beauty, but these qualities are parodied and distorted in her father's world. Her dad wears make-up and sex bondage straps for Halloween. She is often exposed to men dressing as women. The walls in his condo are adorned with large framed pictures of women in provocative positions. What is my little girl to believe about her own femininity and beauty? Her father should be protecting her sexuality. Instead, he is warping it.

Without the guidance of both their mother and their father, how can my children navigate their developing identities and sexuality? I ache to see my children struggle, desperately trying to make sense of their world.

My children and I have suffered great losses because of my former husband’s decision to identify as a gay man and throw away his life with us. Time is revealing the depth of those wounds, but I will not allow them to destroy me and my children. I refuse to lose my faith and hope. I believe so much more passionately in the power of the marriage covenant between one man and one woman today than when I was married. There is another way for those with same-sex attractions. Destruction is not the only option—it cannot be. Our children deserve far better from us.

This type of devastation should never happen to another spouse or child. Please, I plead with you: defend marriage as being between one man and one woman. We must stand for marriage—and for the precious lives that marriage creates.

Janna Darnelle is a mother, writer, and an advocate for upholding marriage between one man and one woman. She mentors others whose families have been impacted by homosexuality.

Reprinted with permission from the Public Discourse.

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Stevie Nicks confirms she wrote hit song about baby she aborted with Don Henley

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By Ben Johnson

Stevie Nicks is no stranger to rumours. She finally confirmed longstanding conjecture that she wrote one of her best-known songs partly about the child she conceived with Eagles frontman Don Henley, then aborted.

Henley said more than 20 years ago that the Fleetwood Mac song Sara, which hit number 7 on the Billboard charts in 1979, was about the baby they never saw.

“I believe, to the best of my knowledge, [that Nicks] became pregnant by me. And she named the kid Sara, and she had an abortion – and then wrote the song of the same name to the spirit of the aborted baby,” he told GQ magazine in 1991. "I was building my house at the time, and there’s a line in the song that says, ‘And when you build your house, call me.'”

In a special interview with Billboard magazine on Friday, Nicks said their baby inspired many of the song's lyrics.

“Had I married Don and had that baby, and had she been a girl, I would have named her Sara,” she said. But Nicks said the song – which was originally 16 minutes long and included nine verses cut from the album – also dealt with Mick Fleetwood's wife, Sara, and other aspects of the band's disintegrating relationships.

The revelation sheds light on the song's lyrics:

Wait a minute, baby
Stay with me awhile
Said you'd give me light
But you never told me about the fire...

Sara, you're the poet in my heart
Never change, never stop
And now it's gone
They say it doesn't matter what for
When you build your house, call me…

All I ever wanted was to know
That you were dreaming
There's a heartbeat
No, it never really died
You never really died

Four years after the song's release, she said, “Sara was my favorite, for that kind of song. Sara was, and is, the love of my life.”

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Nicks and Henley's torrid two-year affair had been no secret, and the subsequent abortion had been well-known. According to Eagles biographer Marc Eliot, Nicks “was deeply upset about what she considered his fast and easy consent to her decision. Nicks took it as Henley's way of saying he wasn't interested in any type of serious long-term commitment.”

But Nicks had never acknowledged that the song was dedicated to her child until last week, 35 years after its release. The closest she had come was a statement in 1979 that “If I ever have a little girl, I will name her Sara. It's a very special name to me.”

Nicks never had children, something she blamed on her cocaine addiction.

Sara cast a shadow over her life for years to come. When she entered the Betty Ford Center in 1986 – doctors said she had come dangerously close to a brain hemorrhage – she used the name “Sara Anderson” and commemorated the experience in the song Welcome to the Room...Sara for Fleetwood Mac's last album, 1987's Tango in the Night.

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