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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‘It’s another boy!’: 4th video goes into heart of Planned Parenthood fetal body parts lab

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By Pete Baklinski

Urgent: Sign the petition demanding that Congress investigate and defund Planned Parenthood here

July 30, 2015 (LifeSiteNews) – Workers in a lab are seen sorting through body parts on a dish: a heart, stomach, kidney, and legs.

And then a medical assistant suddenly announces: "It's another boy!"

This is just a little of the macabre and heart-wrenching footage in the newest undercover video showing alleged harvesting and sale of body parts from aborted babies by Planned Parenthood, released Thursday morning.

The newest video also shows a Planned Parenthood medical director negotiating a fetal body parts deal while agreeing to prices for harvested parts, and suggesting ways to avoid legal consequences.

"For anyone with a conscience, the video's entire fetal organ scene is wrenching -- to the gut as well as the heart. It hearkens us back to the days of Joseph Mengele or Kermit Gosnell, who both coldly killed and dissected children without remorse," said Operation Rescue President Troy Newman, in a press release.

The video takes the viewer into Planned Parenthood of the Rocky Mountains, where Vice President and Medical Director Dr. Savita Ginde discusses with actors posing as representatives from a human biologics company a potential partnership to harvest fetal organs.

When one of the actors posing as a buyer asks the doctor if “compensation could be specific to the specimen?” Ginde agrees. As the camera travels to the abortion clinic’s pathological laboratory to reveal the aftermath of a real abortion of a baby boy, Ginde tells the buyer that the abortion clinic would rather receive payment per body part harvested, rather than a standard flat fee for the entire case.

“I think a per-item thing works a little better, just because we can see how much we can get out of it,” she is heard saying on the video.

Planned Parenthood hit national headlines last month after undercover videos released by the pro-life group Center for Medical Progress (CMP) showed top officials from the nation’s largest abortion provider discussing the sale of body parts harvested from babies aborted at their facilities. Those behind the undercover videos say that selling the body parts for profit is a violation of federal law.

Yesterday, the California Superior Court issued a narrow temporary restraining order preventing CMP from releasing further undercover video footage involving top-level staff of StemExpress, the company that purchases the body parts from Planned Parenthood. 

Project Lead David Daleiden is using the fourth video to call for an immediate ending to Planned Parenthood’s funding.

“Elected officials need to listen to the public outcry for an immediate moratorium on Planned Parenthood’s taxpayer funding while the 10 state investigations and 3 Congressional committees determine the full extent of Planned Parenthood’s sale of baby parts.”

“Planned Parenthood’s recent call for the NIH to convene an expert panel to ‘study’ fetal experimentation is absurd after suggestions from Planned Parenthood’s Dr. Ginde that ‘research’ can be used as a catch-all to cover-up baby parts sales. The biggest problem is bad actors like Planned Parenthood who hold themselves above the law in order to harvest and make money off of aborted fetal brains, hearts, and livers,” he said. 

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"It really stretches credibility to say that Bush or his people wouldn’t have known that the foundation pushes abortion and other population control efforts," said Stephen Phelan of HLI Andrew Cline / Shutterstock.com
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Jeb Bush was director of philanthropy that gave tens of millions to Planned Parenthood

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By Ben Johnson

Analysis

NEW YORK, July 30, 2015 (LifeSiteNews) - Until the eve of his presidential campaign, Jeb Bush was director of a philanthropy that gave tens of millions of dollars to Planned Parenthood and financed its advocacy of "unrestricted access to abortion" around the world. The charity also approved money to global abortion providers while he sat on its board.

In 2010, Jeb was named one of the founding directors of the Bloomberg Family Foundation, established as a tax-exempt foundation to advance the vision of former New York City Mayor Michael Bloomberg. He resigned from the board at the end of 2014 to prepare his presidential campaign.

While a Bush spokesman has responded to concerns by saying that Bush would not have voted on every initiative of the foundation, a pro-life leader told LifeSiteNews it "stretches credibility" that Bush was unaware of the foundation's pro-abortion work, given the centrality of such work to the foundation's mission, and its scope.

LifeSiteNews reached out to Bush for comment, but did not hear back by press time. 

$50 million to 'reproductive health' and Planned Parenthood

In March of 2014, the Bloomberg Philanthropies announced a $50 million undertaking to expand "reproductive health," including lobbying foreign nations to loosen restrictions on abortion.

Bloomberg announced a major partnership with Planned Parenthood-Global to train and equip abortion activists in pro-life countries.

"In 2014, we started supporting local nonprofit organizations in Burkina Faso, Senegal, Uganda, and Nicaragua to advocate for better policies in their countries that will expand access to comprehensive reproductive health services," the foundation stated. "These organizations will receive technical assistance from Planned Parenthood Federation of America – Global Division to help augment their capacity for effective advocacy." 

Planned Parenthood President Cecile Richards greeted the news by saying that "governments need to play a stronger role to ensure that all women have access to the health care they need" - including abortion - "no matter who they are, no matter where they live.”

Bloomberg clarified how the partnership would work while receiving Planned Parenthood's Global Citizen Award at its annual gala last March 27.

"We'll Push for Less Restrictive Abortion Laws"

"I am happy to say our major partner in this project will be Planned Parenthood - Global," Bloomberg said. "In some countries, our funding will help advocates work towards better sexual health policies for teens and better access to contraceptives. In others, we'll help push for less restrictive abortion laws and more government funding for high-quality, accessible services."

Such advocacy was "necessary," he continued, because "there are plenty of outside interest groups funding the other side of these issues, and we cannot let them go unanswered."

"This is a fight to women control their own destinies," Bloomberg said. "And let me tell you: We are in it to help them win it, and we're gonna stay in it until they do."

"Together we can succeed," he concluded. "Thank you for this award. God bless."

As head of a foundation with $5.4 billion in assets, which awards more than $200 million a year, the three-term mayor of New York has put his money where his mouth is.

Funding Global Abortion Providers

One aspect of his philanthropy's overall health initiative is to underwrite  "reproductive health services in the most remote areas of" Tanzania. Although all grants say they are intended "to reduce maternal deaths," alongside the CDC and the World Lung Foundation, Bloomberg Philanthropies has funded two abortion providers.

In 2013, Bloomberg Philanthropies approved a  a grant of $1,818,000 for EngenderHealth, and another $250,000 for Marie Stopes International - Tanzania.

"EngenderHealth works to ensure reproductive rights of Tanzanian women and their families by integrating family planning with HIV and comprehensive abortion care services," the group states on its website. EngenderHealth has been discovered promoting the use of manual vacuum aspiration (MVA), a common abortion method, as "post-abortion care" in Africa, including in Tanzania.

The group also touts the fact that its expansion to all 26 regions of the country "has also contributed to an increase in uptake of long-acting and reversible methods," especially Implanon. Long-Acting Reversible Contraceptives (LARCs) work both by preventing conception and by "alterations in the endometrium," which can cause an early abortion by preventing implantation.

Marie Stopes is known as a global abortion provider. MSI states that it only provides "post-abortion care" in Tanzania, where abortion is legal only to save the life of the mother.

But Marie Stopes officials have admitted that the group performs illegal abortions. 

"We do illegal abortions all over the world," Paul Cornellison, the director of Marie Stopes International in South Africa, said during a Marie Stopes International conference in 2007 in London - remarks that were caught on film. "There's various options, you know, once we open a center there...if we can just get our foot in the door." 

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In other nations, Bloomberg has supported advocates of unlimited, universal abortion-on-demand.

"Abortion services should be made free...for all women and girls"

Bloomberg Philanthropies underwrites political advocacy in African and Central American nations whose laws reflect the pro-life outlook of its citizens. The International Planned Parenthood Federation (IPPF) offers a glimpse into what international abortion lobbyists demand.

Between 2012 and 2014, IPPF wrote a 32-page case study on the Senegalese legal landscape, entitled Over-Protected and Under-Served. While numerous participants told researchers that abortion is "easy" to obtain and “lots of young people are having clandestine abortions,” IPPF focused on promoting "safe" abortion -- while making clear that such laws were only one components of its overall mission. 

"Advocacy efforts should focus on realizing the ultimate goal of unrestricted access to abortion services, and protection of this right under the law. Abortion services should be made free, safe, accessible and confidential for all women and girls," the report states.

The abortion industry signaled it rejects incremental aims to achieve the eventual recognition of abortion as a human right. "Anything other than full decriminalization will often lead to abortion remaining inaccessible to all but a very small number of women," the report says.

The task of pressuring government officials will fall to local activists in the nations targeted by Bloomberg because, in the words of Kelly Henning, the head of the public health program at Bloomberg Philanthropies, "We want this effort to be sustainable." 

If the effort fails, it will not be for lack of resources. In a separate component of its reproductive health plan, Bloomberg partnered with the Bill and Melinda Gates Foundation to enact Family Planning 2020's global reproductive and population goals.

Is Jeb "Ultimately Accountable"?

The association with Bloomberg conflicts with Jeb's record as a two-term pro-life governor of Florida who enacted parental consent laws, allowed the regulation of abortion facilities, did not allow state funds to be used for abortion counseling, and created the state's "Choose Life" license plate.

As one of more than a dozen directors - which include such distinguished names as former Sens. Sam Nunn and David Boren, currently Sen. Cory Booker, and former Bush-43 officials Elaine Chao and Hank Paulson - what responsibility does the former Florida governor bear?

The issue bubbled up in April, giving his yet-unannounced campaign an opportunity to respond.

“Governor Bush was honored to serve on the board of Bloomberg Philanthropies, which does a lot of good work across the world,” Bush spokeswoman Kristy Campbell told the Tampa Bay Times. "As a board member, Governor Bush did not vote on or approve individual projects or programs."

Although Bush and Bloomberg "disagree on several policy issues, both share a passion for improving education in America," she added - a reference to their mutual embrace of the Common Core curriculum and other policies.  

A spokeswoman for Bloomberg Philanthropies, Meghan Womack, confirmed to the newspaper that directors do not sign off on every project.

But to what extent was Bush active in the issue?

According to nonprofit norms, directors carry deep responsibility for the organizations they help lead. "Regardless of what board members are called, they are in essence the trustees in the literal and legal sense of the term," the National Center for Nonprofit Boards wrote on the responsibilities of board members. "No matter how the organization is structured or the degree of authority delegated to staff, committees, or affiliates, the board and therefore the individual trustees are ultimately accountable."

Bloomberg Philanthropies noted in a press release, "The directors will serve in an advisory and oversight capacity." Bush earned $37,100 in compensation for his nearly five years of service.

"Bush’s people are probably right that as a board member he did not vote on every project," Stephen Phelan, the director of mission communications at Human Life International, told LifeSiteNews. "But Bloomberg has been so open about his foundation’s goals for so long that it really stretches credibility to say that Bush or his people wouldn’t have known that the foundation pushes abortion and other population control efforts."

Bloomberg clarified his goals while accepting his Planned Parenthood award last year. "You can't fight every battle," he said. "The things that are high on my priority list are sensible gun laws...I obviously care about a woman's right to choose...Nobody's a bigger supporter of gay rights." He added that "we need a good immigration bill" that provides amnesty for an estimated 11 million illegal immigrants, "so we can continue our economy."

Bloomberg has described abortion as a "fundamental human right, elevating it to a make-or-break position. "On this issue, you’re either with us or against us.” He once cited abortion among his reasons for endorsing Barack Obama in 2012. 

Despite their differences on abortion policy, the billionaire has had no reservations supporting Jeb Bush's candidacy - even before there was one.

Last spring, he called Jeb and Hillary Clinton "two quality” candidates and "the only two who know how to make the trains run."

He also showered compliments upon Bush while introducing him to the New York State Republican Party convention in 2010. 

“I couldn’t agree more with this guy,” he said of Jeb. “If there’s anyone I would want on my side waging all those important battles and helping provide the government Americans deserve, it is our next speaker."

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Planned Parenthood says ‘extremists’ brought down website: critics say possible ‘PR stunt’

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By John Jalsevac

Updated 07/30/15 at 1:57 EST

July 30, 2015 (LifeSiteNews) - At the same time as a fourth video exposing Planned Parenthood's practice of harvesting and selling aborted baby body parts was released Thursday morning, visitors who attempted to access Planned Parenthood's website were greeted with a message saying, "Our site is not available due to an attack by extremists."

The page announcing the attack stated that "200,000 people a day are now being blocked from information and care by this attack," and directed visitors who wanted to find out more to Planned Parenthood Action Fund's Facebook page. 

At that Facebook page, the abortion giant states that the attack is a "new low" by anti-abortion extremists, and asks for donations to help them "fight back." 

However, some are raising questions about the purported attack, pointing out that a look under the hood shows that content from the site appears to be loading without a problem from Planned Parenthood's web server, while they have categorized the "site down" message as a "campaign."

At The Federalist, Sean Davis points out that the splash page also directs users to another page at ppaction.org where they can write their "story" about where they "stand" on Planned Parenthood, in the process of which Planned Parenthood collects their personal information.

"That’s right," says Davis. "Even though ppaction.org redirects to a page saying the site was hacked, the domain still house (sic) a perfectly functional URL and page that are being actively used to help build Planned Parenthood’s fundraising list."

Some hours after the original message was put up, Planned Parenthood changed the message to say simply that the website was "undergoing maintenance."

However, in comments to CNN Wednesday, Dawn Laguens, Planned Parenthood’s executive vice president, said that the website was originally brought down briefly on Wednesday by a distributed denial of service attack. “Although our websites were back online shortly after the attack, in order to ensure that we are fully protected, we’ve made the decision to take our website offline for a day,” she said, according to Jezebel.

The alleged attack comes days after Planned Parenthood had issued a statement claiming that "extremists" opposed to their agenda, "have called on the world’s most sophisticated hackers to assist them in breaching our systems and threatening the privacy and safety of our staff members."

At that time LifeSiteNews spoke with cybersecurity experts who said the attack appeared to be legitimate, but that it was not as sophisticated as Planned Parenthood claimed, given the outdated version of the abortion behemoth’s webserver.

The abortion giant has been reeling in recent weeks from a series of undercover videos, which appear to show high level Planned Parenthood staff negotiating to profit from the sale of body parts harvested from aborted babies. The videos have also shown the staff describing how they alter the abortion procedure to procure the best specimens possible.

No one has claimed responsibility for the attack. 

"Planned Parenthood says it’s been hacked by 'extremists,' but a review of the publicly available evidence suggests that the only things being hacked at Planned Parenthood right now are perfectly healthy and viable unborn babies," said Davis.

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