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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Kim Davis refusing to issue marriage license to same-sex couple Frame from Times video
Mass Resistance

Kim Davis jailing only beginning of what is in store for America as revealed in June 27 “gay” magazine

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September 4, 2015 (Mass Resistance) --The judge told her that she’ll stay in jail until she’s willing to change her mind -- and go against her conscience and faith. He said that he’d review the situation in a week. The judge said that he jailed her because fining her  “would not bring about the desired result of compliance”.

There are approximately 125 county officials throughout Kentucky who can issue “gay marriage” licenses. But the judge was adamant that every county official must be forced to do it and that religious freedom cannot be allowed, despite the First Amendment.  “The idea of natural law superseding this court’s authority would be a dangerous precedent indeed,” he said.

See video of Kim Davis, turning away very angry same-sex couple demanding a marriage license.

In 2004, 75% of Kentucky voters passed a State Constitutional Amendment restricting marriage to one man and one woman. On Thursday, Sept. 3, County Clerk Kim Davis was sent to jail by U.S. District Judge David Bunning because she refuses to issue “gay marriage” licenses, a decision which she says is rooted in her strong Christian faith.
 

The post-“gay marriage” revolution

Most pro-family people didn’t see the chilling article that appeared in The Nation, a major left-wing magazine, the day before the U.S. Supreme Court “gay marriage” ruling came out. The article outlines where the LGBT movement is going after “gay marriage.”

The Nation article, “What’s Next for the LGBT Movement?”, quotes four high-profile LGBT activists who reveal that “gay marriage” was never their final goal. The LGBT movement will not be stopping to rest, they say. Their plan is to delegitimize and crush all opposition to their agenda everywhere in America – particularly in the churches -- no matter how small.

Some of the things the article outlines:

  • “Dis-establish marriage.”  “Gay marriage” was simply a stepping stone. Their actual goal is that there be no formal marriage rules at all. This means group marriages are next, then incestuous marriages, and later even marriages to minors. It would simply be up to the people directly involved to decide.
  • Pass strong LGBT “non-discrimination” laws across the US. These are the laws that force bakers to bake “gay marriage” cakes or face huge punishments. Such laws would also force schools to include LGBT indoctrination. Most states still do not have the onerous laws the LGBT movement demands. The activists refer to those states (mostly in the South and Midwest) as “zones without rights” in their propaganda.
  • Ban all “religious liberty” laws. They consider religious liberty to be a dangerous ploy to “undermine all civil rights laws” that must be stopped at all costs. All people must be forced to follow the LGBT agenda, with no exceptions.
  • Demonize pro-family conservatives and silence all dissent. They plan to direct “massive amounts of funds” to “expose and defeat the right wing” across America.
  • Push a radical political agenda. They plan to leverage their power to support Marxist economic policies, the right to “early term abortion,” and similar policies.


Starting to happen

Last month the Denver City Council moved to deny the Chick-fil-A restaurant chain permission to do business at the Denver Airport because the company’s president said he does not agree with “gay marriage.” One Council member labeled the president’s pro-marriage beliefs “discriminatory political rhetoric,” and must not be allowed to make profits from the city’s airport. (Chick-fil-A restaurants have never been accused of actually discriminating against anyone.)

The national homosexual group Human Rights Campaign is already raising millions of dollars to fight religious freedom laws around the country.

And of course, there’s the upswing of left-wing hate and demonization of religious people. The day after Kim Davis was jailed, the Boston Globe prominently published an op-ed article titled “Kim Davis follows the footsteps of George Wallace” which states, among other things, that “Davis is just the latest in a long, infernal line of fanatics to contort their so-called faith into an excuse for hatred and division.” The Left’s hatred of religious people is visceral, and now it’s coming to the forefront.
 

Lots of hypocrisy

The jailing of Kim Davis by Judge Bunning, like most of the Left’s actions, has more than a whiff of hypocrisy. When San Francisco Mayor Gavin Newsom began illegally ordering county clerks to issue “gay marriage” licenses in 2004, or in 2009 when California clerks (and the Governor) ignored the Prop 8 ruling against issuing “gay marriage” licenses, no judge intervened at all. 
 

Cowards and compromisers

It pains us to say it, but for decades the pro-family movement has been crippled from gaining ground by cowards and compromisers, from top to bottom. Don’t get us started on what led to the disastrous the Supreme Court “gay marriage” ruling.  And it continues with the Kim Davis issue.

While Kim Davis sits in jail, five of her six deputy clerks shamelessly have agreed to abide by the judge’s wishes and started issuing “gay marriage” licenses. (The one holdout is her son.) According to news reports, starting the very next day they were issuing them quite cheerfully, even shaking the hands of the newly “married” homosexual couples.

A disturbing number of pro-family and church leaders across the country have sided with the Federal Judge, saying that Kim Davis should go to jail for “not following the law.”  (Actually there is no “law” on the books – it is only a court ruling. Nor could the judge cite such a law.) 

Even the National Review has published an article saying “[R]eligious-liberty protections cannot act as a bar to gay couples: If the law permits a U.S. citizen to get a license, there must be a way for the gay couple to access it, with their dignity intact."
Wonderful. What a lame movement we're in!
 

What can good people do?

We can certainly see what’s coming up. It’s a hardcore take-no-prisoners approach. We must react accordingly. What most of our movement has tried hasn’t worked and isn’t going to work.

MassResistance believes that their whole program must be confronted. Using what resources we have, we believe in taking the offensive. This means challenging that movement everywhere we can. First and foremost means not holding back on telling the unabashed truth, no matter what the consequences. (For example, most conservatives are squeamish about talking about the well-documented medical and psychological destructiveness of homosexual behavior.)

The LGBT movement wins when we become afraid to confront them. 

This article was originally published on the website of Mass Resistance and is re-published with permission.

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Obama and Hillary support Christian clerk’s arrest over gay ‘marriage’

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ROWAN COUNTY, KY, September 4, 2015 (LifeSiteNews) -- The front runner for the Democratic presidential nomination believes that Kim Davis deserved to be jailed.

Shortly following Kim Davis' arrest on Thursday afternoon, Hillary Clinton retweeted a story about Davis' arrest for refusing to issue marriage licenses to homosexual couples, saying all elected officials "should be held to their duty to uphold the law - end of story."

The White House seconded that assessment. The punishment - jail time, rather than a fine - was "appropriate," White House spokesman Josh Earnest said during his daily press briefing on Thursday.

The Obama administration spokesperson went on to say that "the principle of the rule of law is central to our democracy."

Calls to imprison Christians who refuse to participate in same-sex "marriage" have intensified on the Left since the late June Supreme Court decision that imposed same-sex "marriage" on the nation.

As Davis was taken out of the federal court room to her jail cell, gay activists yelled, "Love won! Love won!"

Shortly after her arrest, opinion writer E.J. Montini wrote that Davis "was found in contempt of court and sent to jail. Good."

Their position could hardly contrast more sharply with those of some Republican presidential contenders.

Mike Huckabee is holding a #ImWithKim rally in Kentucky on Tuesday to support Davis, who remains in jail today.

Sen. Ted Cruz has said the arrest - which was ordered by a Republican-appointed federal judge - constituted "judicial tyranny."

Not all Republicans agree, though. Chris Christie said that he would demand that clerks participate in the public recognition of same-sex "marriage" regardless of their religious convictions. Lindsey Graham and Carly Fiorina have had similar sentiments.

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Ted Cruz: Kim Davis’ arrest is ‘tyranny’ intended to drive Christians from office

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ROWAN COUNTY, KY, September 4, 2015 (LifeSiteNews) - The arrest of Kim Davis has sent shock waves throughout the nation - and a clear message: Christians have no place in the public square, according to Sen. Ted Cruz.

When the deeply religious clerk was hauled off to jail Thursday afternoon, "judicial lawlessness crossed into judicial tyranny," Cruz said.

Same-sex "marriage" was imposed on the nation by a 5-4 Supreme Court judgment authored by Justice Anthony Kennedy. The arrest of Kim Davis on "contempt of court" charges was ordered by U.S. District Court Judge David Bunning, a George W. Bush appointment who is the son of former moderate Republican senator and baseball great Jim Bunning of Kentucky.

"Those who are persecuting Kim Davis believe that Christians should not serve in public office," Cruz said.

His analysis is shared by former Sen. Rick Santorum. He warned, "More and more people of faith will face the penalties Ms. Davis is now encountering if we do not make the necessary accommodations so people can not just worship but live out their faith in their lives."

Santorum called for passing the First Amendment Defense Act to prevent scenes of clerks being arrested, florists being fined, and bakers being forced out of business.

"This is wrong. This is not America," said Cruz, who recently hosted a Rally for Religious Liberty that featured many of those whose businesses have suffered for following their faith on the issue of sexuality. "I stand with Kim Davis. Unequivocally."

"I stand with every American that the Obama administration is trying to force to choose between honoring his or her faith or complying with a lawless court opinion," Cruz said. “I call upon every believer, every Constitutionalist, every lover of liberty to stand with Kim Davis."

Former Arkansas Gov. Mike Huckabee will literally do that, as he hosts an #ImWithKim rally in Kentucky on Tuesday to support Davis.

Cruz joins other Republican presidential candidates who support the Kentucky Christian clerk.

"I think it's absurd to put someone in jail for exercising their religious liberty," Sen. Paul, R-KY, told CNN on Thursday afternoon. "I think it's a real mistake to be doing this."

Sen. Marco Rubio of Florida agreed, “There should be a way to protect the religious freedom and conscience rights of individuals working in the office.”

However, other candidates disagreed. Chris Christie said on Fox News Sunday that laws should be enforced against Christians who decline to participate in gay "marriages."

Sen. Lindsey Graham and Carly Fiorina similarly agree Davis should have issued the marriage licenses, regardless of her faith.

Democratic presidential candidate Hillary Clinton tweeted that laws should be enforced, as she shared a story of Davis' arrest on Twitter.

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