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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David Bereit of 40 Days for Life, on the right.
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All one fight: Why the leader of 40 Days for Life says he may become active in the fight for marriage

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By Dustin Siggins

WASHINGTON, D.C., April 27, 2015 (LifeSiteNews.com) – Just eight years ago, 40 Days for Life was founded as a pro-life Christian ministry. This year, it reached 252 cities in 19 countries.

Now, says founder and National Director David Bereit, he's discerning whether to expand his personal activism to marriage.

"The various moral issues we confront in our culture today are all intrinsically connected," Bereit told LifeSiteNews at Saturday's March for Marriage. “When you look at the various factors that lead to the breakdown of nations and civilizations, they are moral factors," Bereit said. "It's the devaluing of human life, it's the abandonment of religious belief and practice, it's immorality -- the increase thereof – and it's the breakdown of the family."

"They're all tied into this moving away from God, and America was founded as a nation with Christian principles and ideals that used to say 'In God We Trust.' And the further we've turned away from that, the more we have fallen,” he said. "I believe that with man, turning the tide in our culture is not possible, but with God, all things are possible."

Bereit stressed that his attendance at the March for Marriage, as well as his ongoing process of discernment, was representative only of his own circumstances -- not those of 40 Days for Life, which remains an abortion-focused ministry.

Bereit did not shy away from questions that are often raised about what President Barack Obama called America's “tragic” history.

"America was built on Judeo-Christians principles,“ he said. “There are still fallen people that make up our churches and our communities."

"The question is, will people of faith and conscience turn back to God and do their very best to align themselves with the principles that formed our nation and made our nation such a great place in history?"

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The third annual March for Marriage, which was organized by the National Organization for Marriage and exclusively livestreamed by LifeSiteNews, drew thousands of people, mostly minorities, just three days before what is being billed as the definitive U.S. Supreme Court hearing on the issue of same-sex "marriage."  

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‘Persecution plain and simple’:  Franklin Graham fundraises for Oregon bakers after GoFundMe shuts them down

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By Ben Johnson

BOONE, NC, April 27, 2015 (LifeSiteNews.com) – First, they were fined $135,000 for refusing to bake a wedding cake for a homosexual “marriage” ceremony. Then, a rival business owner convinced GoFundMe.com to stop Christian bakers Aaron and Melissa Klein from raising money to pay the fine on the grounds that, since their religious beliefs violate state law, they are common criminals.

Now, one of the nation's most well-known Christian ministers and philanthropists is coming to their aid.

An administrative law judge fined the Oregon bakers, proprietors of Sweet Cakes by Melissa, $135,000 to pay for the emotional suffering of Rachel and Laurel Bowman-Cryer – a lesbian couple who say they feel the Kleins “mentally raped” them.

The Kleins have since closed their Portland-area business and lost substantial income. After hearing of the fine on Friday, Melissa said the amount would financially crush them.

The family opened a GoFundMe page and, within hours, they collected more than $109,000.

Then Lisa Watson, the co-owner of Cupcake Jones in Portland, began lobbying the website to banish the couple's appeal.

“The amount of money they have raised in a matter of a few hours by thousands of anonymous cowards is disgusting,” Watson wrote on Facebook. She added that the website's “terms of service address hate speech, bigotry, criminal activity, and sexism among other things in their campaign.”

GoFundMe then suspended the Kleins' fundraising.

“While a different campaign was recently permitted for a pizzeria in Indiana, no laws were violated and the campaign remained live,” GoFundMe said in a statement. “However, the subjects of the 'Support Sweet Cakes By Melissa' campaign have been formally charged by local authorities and found to be in violation of Oregon state law concerning discriminatory acts. Accordingly, the campaign has been disabled.”

The day after the announcement Watson, who operates her business with husband Peter Shanky, posted a photo of her 2015 Equality Advocate Award “for outstanding leadership to advanced lived equality for all LGBTQ Oregonians.”

The Kleins hope the website will reconsider. “We have told GoFundMe that the money is simply going to be used to help our family, and there is no legitimate breach of their terms and conditions,” the Kleins wrote on Facebook.

That's when the Reverend Franklin Graham and his ministry Samaritan's Purse stepped in, allowing those who wish to alleviate the couple's suffering to donate on its website.

"The fund was created to help persecuted Christians in the U.S., including Aaron and Melissa Klein,” an employee at Samaritan's Purse told LifeSiteNews today. “It was only activated over the weekend and the organization has not yet announced any numbers. Currently, Samaritan's Purse is focused on the earthquake in Nepal and providing relief supplies to people impacted by the disaster.”

Graham praised the Kleins' steadfastness in the face of legal challenges. “They have taken a stand for the Word of God, and they should not have to stand alone,” the ministry's founder and president Franklin Graham said. “I believe that Christians across our nation will rally around Aaron and Melissa and their five children. Please pray for Aaron and Melissa, and pray for our nation. When our judges are punishing Christians for practicing what they believe, that’s persecution, plain and simple.”

“God bless Reverend Franklin Graham,” AFR Talk radio host Bryan Fischer said today. 

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The Kleins will still receive the money raised by GoFundMe, in addition to any supplemental funds raised by Graham's international charitable ministry.

Conservative author Dan Calabrese wrote that “Melissa's Sweet Cakes will not have to go into bankruptcy and the family won't personally be ruined. And what a disappointment that must be to the gay mafia, whose agenda is to intimidate all gay marriage opponents into not just silence but compliance, for fear of just such” an outcome.

Christians have risen to the challenge before. Memories Pizza raised more than $840,000 after the Indiana pizzeria was harassed into closing its doors for saying it would cater a same-sex “wedding.”

Calabrese warns that these victories may lead to more intense anti-Christian persecution.

“When put in an untenable position like this, Christians and others who support their right to operate their business as they see fit will come to their aid. So the gay mafia will take it up a notch, attempting to intimidate the fundraising organizations from cooperating with the effort,” he said.

If that fails, “Maybe they can persuade friendly Democrat lawmakers (or terrified Republicans) to legislate them out of business.”

Readers can donate to the Klein family here.

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Opposition to same-sex ‘marriage’ – a deeper love

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By John-Henry Westen

April 27, 2015 (CNSNews.com) -- Same-sex “marriage” – the legal recognition of same-sex relationships – is one of the most contentious issues in America. Laws, constitutional interpretation, and the future of religious liberty may well rest on what nine justices decide two months from now.

Many observers seem to believe that the Supreme Court will rule in favor of redefining marriage. And while many on all sides of the debate, especially those who are undecided, believe this will bring cultural peace, evidence around the world points in the exact opposite direction.

Rather than settle animosity and ease cultural tensions, the advent of same-sex “marriage” will lead to the repression of religious freedom and determination to root out dissent to the gay rights doctrine. At LifeSiteNews, we have watched this play out for nearly two decades in 17 countries around the world – and America is next.

A prime example is Canada. Same-sex “marriage” passed in 2005. Similar to European countries which have done so, there has been a relentless pursuit of the minds of children against the wishes of their parents. Schools, both public and private, were first mandated by law to have gay-straight alliance clubs under the auspices of anti-bullying. Then, sex-education, teaching the normalcy of homosexual sex, was given to children without parents being permitted to opt their children out of the classes.

We have arrived at this state of affairs because of the silence of Christian pulpits on sexual matters, and the concomitant shouting from every secular pulpit, screen and book. Even the current discussion around same-sex “marriage” in the United States reveals a grave reluctance to speak about the heart of the issue – homosexual sex. Rather, arguments are made about the goodness of natural marriage, about its benefit to children, and its unchangeable character.

From reporting on the subject every day for so many years, we knew that the struggle for same-sex “marriage” has very little to do with marriage. In fact, until just recently, gay activists didn’t even want to be “married” to each other. Most had no interest in the constraints that such a formalized union would entail in terms of exclusive partnership.

However, the leaders among the activists convinced the movement that they must attain marriage as a societal stamp of approval to homosexual behavior. And, frankly, they have largely succeeded.

Today, in many of the nations where same-sex “marriage” is law, opposition to it is seen as akin to racism. It is seen falsely as an animosity against someone for who they are—an unwillingness to recognize the human dignity of a class of persons due to an immutable characteristic.

However, that false perception is due to a purposeful agenda to conflate animosity against homosexual sex acts with animosity against persons who experience same-sex attraction. The ancient Christian teaching to “love the sinner and hate the sin” is an impermissible distinction in the minds of some. It is, however, the key to understanding the majority of the opposition to same-sex “marriage.”

The plain truth of the matter is that opposition to same-sex “marriage” is rooted not in hatred and bigotry, but just the opposite – in love. Like parents who do not allow children to behave dangerously without lovingly correcting them, opponents of same-sex relationships are hoping to save people with same-sex attractions from severe physical, psychological, and spiritual harm.

Just as, out of love and concern for their children’s welfare, parents must correct and discipline, despite the protests they may get in return, any true believer in marriage, natural law and science must lovingly correct their fellow man.

In other nations, the perception that opposition to same-sex “marriage” is based upon bigotry has led to laws that violate religious liberty, parental rights and freedom of speech. This is why those who oppose same-sex “marriage” must present their reasoning as based on love and concern for the welfare of those in homosexual relationships, in addition to concerns for children and society itself. And there is ample evidence on which to base that concern in the numerous studies showing the grave harm of homosexual sex to both body and psyche.

When I’ve spoken of these findings at conferences around the world, some have questioned if the researchers who showed these harms weren’t themselves biased by anti-gay sentiment. And so I’ve taken to carrying with me on my phone the quotes of the late Canadian gay activist Gens Hellquist, whose testimony proves the harms of gay sex better than any study ever could.

Speaking a year after the passage of same-sex “marriage” into law, Hellquist was seeking more healthcare dollars for the LGBT community. "We have one of the poorest health statuses in this country,” he said. “Health issues affecting queer Canadians include lower life expectancy than the average Canadian, suicide, higher rates of substance abuse, depression, inadequate access to care and HIV/AIDS."

"There are all kinds of health issues that are endemic to our community,” he added. “We have higher rates of anal cancer in the gay male community, lesbians have higher rates of breast cancer.”

He concluded: “Now that we can get married everyone assumes that we don't have any issues any more. A lot of the deaths that occur in our community are hidden, we don't see them. Those of us who are working on the front lines see them and I'm tired of watching my community die."

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Pastors and preachers must take up this call to speak the truth in love, for without this approach, the public will be led to believe that those opposed to same-sex “marriage” are indeed haters needing to be stopped with the force of law. Love is the most powerful force in any argument, and gay “marriage” pushers have used it very effectively. As Hilary Clinton tweeted as she fought religious freedom laws in Indiana: “We shouldn't discriminate against ppl bc of who they love #LGBT”

The truth is that those who oppose same-sex “marriage” are showing a deeper love, as any parent does when instilling difficult discipline. We have enough love and concern for those with same-sex attraction to warn them not to engage in behaviors proven to be very harmful. We won’t encourage people to enter into such harmful behaviors by redefining marriage to encourage it, nor will we allow our children to be indoctrinated into regarding it as a healthy and safe alternative lifestyle.

We have failed so far to get this message of love out to the public. I will not be surprised if the Supreme Court approves of same-sex “marriage” – and I will be even less surprised to see a subsequent  crackdown on religious freedom, as already seen in states like California and Colorado.

Pope Benedict XVI predicted it a decade ago. Observing the international trends, the then-Cardinal said “very soon it will not be possible to state that homosexuality, as the Catholic Church teaches, is an objective disorder in the structuring of human existence.”

Reprinted with permission from CNS News

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