Carson Holloway

Justice Sotomayor and the path to polygamy

Carson Holloway
By Carson Holloway
Image

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.

Click "like" if you support true marriage.

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.


Advertisement
Featured Image
Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." Shutterstock
Dustin Siggins Dustin Siggins Follow Dustin

‘Sick and twisted’: Down’s advocates, pro-life leaders slam Richard Dawkins’ abortion remarks

Dustin Siggins Dustin Siggins Follow Dustin
By Dustin Siggins

Advocates on behalf of individuals with Down syndrome, as well as pro-life leaders, are slamming famed atheist Richard Dawkin’s statements made on Twitter earlier today that parents have a moral responsibility to abort babies diagnosed in utero with Down’s.

During a shocking Twitter rant, Dawkins responded to questioners saying that it was "civilised" to abort Down Syndrome babies, and that it would be "immoral" to choose not to abort babies diagnosed with the condition.

He said that his goal is to "reduce suffering wherever you can," indicating that unborn children cannot suffer, and that unborn children don't "have human feelings."

In addition to being scientifically challenged - unborn children can feel both pain and emotions - Dawkins' comments drew criticism for his callousness towards children with disabilities.  

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus"

“It's sick and twisted for anyone to advocate for the killing of children with disabilities,” Live Action President Lila Rose told LifeSiteNews. “Dawkins's ignorant comments serve only to further stigmatize people with Down syndrome.

“While many people with Down syndrome, their families, and advocacy groups are fighting discrimination on a daily basis, Dawkins calls for their murder before they are even born,” she said. “Those with Down syndrome are human beings, with innate human dignity, and they, along with the whole human family, deserve our respect and protection.”

Carol Boys, chief executive of the Down's Syndrome Association, told MailOnline that, contrary to Dawkins’ assertion, “People with Down’s syndrome can and do live full and rewarding lives, they also make a valuable contribution to our society.”

A spokesperson for the UK disabilities charity Scope lamented that during the “difficult and confusing time” when parents find out they are expecting a child with disabilities, they often experience “negative attitudes.”

“What parents really need at this time is sensitive and thorough advice and information,” the spokesperson said.

Charlotte Lozier Institute president Chuck Donovan agreed with Rose’s assessment. "Advocates of abortion for those 'weaker' than others, or of less physical or intellectual dexterity, should remember that each of us is 'lesser' in some or most respects," he said.

According to Donovan, "we deliver a death sentence on all of humanity by such cruel logic."

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus" he said.

One family who has a child with Down syndrome said Dawkins was far from the mark when he suggested that aborting babies with Down syndrome is a good way to eliminate suffering.

Jan Lucas, whose son Kevin has Down syndrome, said that far from suffering, Kevin has brought enormous joy to the family, and "is so loving. He just has a million hugs."

She described how Kevin was asked to be an honorary deacon at the hurch they attend in New Jersey, “because he is so encouraging to everyone. At church, he asks people how their families are, says he'll pray for them, and follows up to let them know that he has been praying for them."

It's not just strangers for whom Kevin prays. "My husband and I were separated for a time, and Kevin kept asking people to pray for his dad," said Jan. "They didn't believe that Kevin's prayers would be answered. Kevin didn't lose hope, and asking people, and our marriage now is better than ever before. We attribute it to Kevin's prayers, and how he drew on the prayers of everyone."

"I don't know what we'd do without him," said Jan.

Speaking with LifeSiteNews, Kevin said that his favorite things to do are "spending time with my family, and keeping God in prayer." He said that he "always knows God," which helps him to "always keep praying for my friends."

"I love my church," said Kevin.

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child.

Despite this, it is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 


Advertisement
Featured Image
Asked about Iraq on his return flight from South Korea, Francis replied that 'it is legitimate to halt the unjust aggressor.' Shutterstock
Steve Weatherbe

,

Pope Francis: steps must be taken to halt ‘unjust aggressor’ in Iraq

Steve Weatherbe
By

Pope Francis and his emissary to Iraq’s persecuted non-Muslim minorities, Cardinal Fernando Filoni, have both called on the United Nations to act in concert to protect Iraqis Christian and Yazidi minorities from the radical Islamic forces of ISIS.

Asked about Iraq on his return flight from South Korea, Francis replied that “it is legitimate to halt the unjust aggressor.”

He added, however, that “halt” does not mean to “bomb” and lamented “how many times with the excuse of halting the unjust aggressor…have powerful nations taken possession of peoples and waged a war of conquest!”

He also cautioned that no single nation could determine the right measures. Any intervention must be multilateral and preferably by the United Nations, he said.

Meanwhile, Cardinal Foloni, who is visiting Iraq on behalf of Pope Francis, issued a joint statement this week with Chaldean Catholic Patriarch Louis Raphael I Sako and the Iraqi bishops that urged the international community to “liberate the villages and other places that have been occupied as soon as possible and with a permanent result.”

The statement also urged efforts to “assure that there is international protection for these villages and so to encourage these families to go back to their homes and to continue to live a normal life in security and peace.”

Archbishop Giorgio Lingua, the Vatican nuncio to Iraq, was also asked by Vatican Radio earlier this month about the U.S. airstrikes in Iraq.

“This is something that had to be done, otherwise [the Islamic State] could not be stopped,” the archbishop said. 

Although Pope Francis’ own remarks about an intervention in the war-torn country were carefully guarded, Catholic commentator Robert Spencer, author of such bestselling exposes of Islam as “The Truth About Muhammad: Founder of the World's Most Intolerant Religion,” told LifeSiteNews he believes the pope was clearly calling for an “armed intervention, though a very limited one.”  

“Only a fool would think there is another way to stop an ‘unjust aggressor,’” he said.

Spencer expressed concerns that both Francis and Pope John Paul II before him have both referred to Islam a “religion of peace,” which Spencer says is “completely false.” However, he suggested that Francis’ remarks calling for action in Iraq are a sign of a more realistic attitude towards Islam.   

On this, Spencer would likely have the support of Amel Nona, the Chaldean Catholic archbishop of Mosul, who issued a letter last week warning the West in stark terms about the encroaching threat of Islam.

“Our sufferings today are the prelude of those you, Europeans and Western Christians, will also suffer,” Nona warned. “Your liberal and democratic principles are worth nothing here.

“You must consider again our reality in the Middle East, because you are welcoming in your countries an ever growing number of Muslims. Also you are in danger. You must take strong and courageous decisions, even at the cost of contradicting your principles,” he said

“You think all men are equal, but that is not true: Islam does not say that all men are equal. Your values are not their values. If you do not understand this soon enough, you will become the victims of the enemy you have welcomed in your home.”


Advertisement
Featured Image
'Apparently I'm a horrid monster for recommending WHAT ACTUALLY HAPPENS to the great majority of Down Syndrome fetuses,' said Dawkins. 'They are aborted.' Shutterstock
Dustin Siggins Dustin Siggins Follow Dustin

Richard Dawkins: it’s ‘immoral’ NOT to abort babies with Down syndrome

Dustin Siggins Dustin Siggins Follow Dustin
By Dustin Siggins

In a bizarre rant on Twitter earlier today, atheist Richard Dawkins wrote that choosing not to abort a child with Down Syndrome would be "immoral."

The conversation started when Dawkins tweeted that "Ireland is a civilised country except in this 1 area." The area was abortion, which until last year was illegal in all cases.

A Twitter user then asked Dawkins if "994 human beings with Down's Syndrome [having been] deliberately killed before birth in England and Wales in 2012" was "civilised."

Dawkins replied "yes, it is very civilised. These are fetuses, diagnosed before they have human feelings."

Later, Dawkins said that "the question is not ‘is it 'human'?’ but ‘can it SUFFER?’"

In perhaps the most shocking moment, one Twitter user wrote that he or she "honestly [doesn't] know what I would do if I were pregnant with a kid with Down Syndrome. Real ethical dilemma."

Dawkins advised the writer to "abort it and try again. It would be immoral to bring it into the world if you have the choice."

According to Dawkins, the issue of who should be born comes down to a calculation based upon possible suffering. "Yes. Suffering should be avoided. [The abortion] cause[s] no suffering. Reduce suffering wherever you can."

Later, however, he said that people on the autism spectrum "have a great deal to contribute, Maybe even an enhanced ability in some respects. [Down Syndrome] not enhanced."

When Dawkins received some blowback from Twitter followers, he replied: "Apparently I'm a horrid monster for recommending WHAT ACTUALLY HAPPENS to the great majority of Down Syndrome fetuses. They are aborted."

It is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome said they were "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child. 

A number of Dawkins' statements in the Twitter thread about fetal development are at odds with scientific realities. For example, it is well-established that 20 weeks into a pregnancy, unborn children can feel pain. Likewise, unborn children have emotional reactions to external stimuli -- such as a mother's stress levels -- months before being born. 

Click "like" if you are PRO-LIFE!


Advertisement

Customize your experience.

Login with Facebook