Pandora and Polygamy

[The Question]

I don't think it should. But I do think that's an extremely large 'if'.

 

[TJHairball]

But it's not discriminatory against a religion,

Yes, it is. Marriage practices are central to most religions.

only against a practice associated with one. Bigamy is illegal, but bigamy isn't practiced exclusively by a single religion, so I'm having a hard time seeing where the illegality of bigamy is aimed exclusively at a single religion.

You're having a hard time reading the history books.

Anglo-Saxon law is based on either theist or deist principles. The entirety of modern Western law is composed of relative expressions of religious principles. So are you proposing doing away with all law just because every law on the books more or less parallels a religious ideal?

No, I'm not.

Thank you for indirectly supporting my argument -- no such law exists, because the law isn't being used that way.

No such law exists, because it would be clearly discriminatory on the face of it, in the exact same fashion that laws against poly marriages are clearly discriminatory.

Yet all your arguments would apply to such a hypothetical absurd law. After all, there is more than one religion that celebrates a sabbath on some other day than Sunday. There are secular "sabbath-ish" observations, some of which occur regularly on Sunday. Etc etc etc.

Again, you're indirectly supporting my own argument here. In order to support a state religion, a law must be tailored explicitly and exclusively to favor one chosen religion. This simply is not the case.

"One chosen religion."

So, by this standard, teachers should be allowed to lead their students in a prayer to Jesus, since more than one religion recognizes Jesus as a prophetic figure. Again, your argument is against solid Court precedent.

I should think that kidnapping, conspiracy and murder neatly cover such events, just as you've noted, which makes human sacrifice de facto illegal.

As a purely incidental measure, measured in terms of other illegal activities involved in the practice.

The marriage laws have exactly one defining element - marriage. In no fashion are they definable independently from marriage.

Homicide is definable independently from human sacrifice, as are conspiracy and kidnapping - all laws derived independently from encounters with the practice of human sacrifice. Anti-bigamy laws are not.

There is also a compelling societal interest in specifically barring homicide and kidnapping - highly disruptive activities that violate rights explicit in documents upon which this nation was founded (e.g., DoI). Conflicts in such rights can perfectly legitimately result in the mitigation of the exercise of one (i.e., yelling "FIRE!" in a crowded theater is A-OK by freedom of speech.)

There is no such compelling interest, nor any conflicting fundamental rights in this case.

Likely they did have some scriptural bases for that activity, though absolutely not phrased that way.

Amaze me by digging it up.

We might have something to talk about, provided you can get around the problems above.

Doesn't it? How do you establish a state religion without specificity and exclusivity? Without specificity and exclusivity, you don't have a state religion. You may have a cultural commonality of religious thought, but that's not an official anything.

How specific does a state religion need to be to qualify as state establishment of some portion of religion?

Not very.

I'm having trouble buying that. I've never seen an atheist pray.

I have. Done deal.

I had always thought that it was thrown out on the grounds that it's pseudo-science.

"Yes, and."

Jones decried the “breathtaking inanity” of the Dover policy and accused several board members of lying to conceal their true motive, which he said was to promote religion.

A six-week trial over the issue yielded “overwhelming evidence” establishing that intelligent design “is a religious view, a mere re-labeling of creationism, and not a scientific theory,” said Jones, a Republican and a churchgoer appointed to the federal bench three years ago.

I.e., thrown out on the basis of (a) not being a scientific theory AND (b) being religious doctrine instead.

And intelligent design is about as generic (nondenominational) a creation myth as you can get.

Again, you're proving my own argument. The strength of the disestablishment clause counters, very effectively, the argument that traditional marriage is an exclusive or specific expression of religion.

The strength of the disestablishment clause is that freedom of religious practice is to be allowed, so far as it does not conflict with some other compelling interest.

They don't win out on either of those, I'm afraid. Not for court-recognized marriage, at any rate, because the official "benefits" of marriage, in things like tax benefits and insurance benefits, are a matter of public, not private, record. And free association doesn't guarantee those privileges, either.

TQ, the potentially sticky legal questions of freedom of association and privacy (often dismissed) do not come out of the question of whether or not poly marriages should receive legal benefits in full. (Privacy I'm echoing from someone else in this thread - in saying "could argue," I was not offering an argument.)

They come out of the illegalization of the lifestyle.

Although anti-bigamy statutes vary from state to state, if I choose to associate closely with two women on a residential, sexual, and ultimately reproductive basis, with none of the usual tax benefits or legal recognition, I may still be prosecuted.

As a matter of practical concern, it is unlikely that I would be prosecuted, of course. However, it remains possible in some cases, should I do so, most notably in the state of Utah, of course.

 

[The Question]

So what it boils down to, then, is this -- bigamy is already practicable in pretty much every state other than Utah, excluding the financial benefits imbued by a state-recognized marriage -- which exclusion you seem to offer no strong objection to.

So don't do it in Utah.

 

[TJHairball]

So what it boils down to, then, is this -- bigamy is already practicable in pretty much every state other than Utah, excluding the financial benefits imbued by a state-recognized marriage -- which exclusion you seem to offer no strong objection to.

So don't do it in Utah.

No objection to the exclusion at the state level (based on freedom of association) of benefits. Federal laws barring polygamy are perhaps another matter.

However, while the laws are rarely enforced, a number of states have acts barring people from acting as married unless they truly are, namely in cohabiting (living together) - acts more sweeping than anti-bigamy legislation. Other states have laws on the books prohibiting fornication, i.e., sex between people who are not married.

On the basis of freedom of religion, though, I do find the exclusion highly objectionable. Note the distinction here; it is not that I find the exclusion of benefits non-objectionable, it is that I do not find the principle of freedom of association applicable to anything but the outright illegalization of bigamy.

I am not alone in suggesting that federal anti-bigamy statutes would not survive an honestly considered challenge in the Supreme Court. (So far as I know, the [rigorous] federal anti-bigamy statutes are still on the books.) I would like you to particularly note this quote from that article, which touches on something else I mentioned earlier:

the Supreme Court ruled that sincere religious belief can excuse compliance with otherwise valid general laws, unless the government can demonstrate that it has a "compelling interest" that cannot be achieved by granting religious exemptions.

 

[The Question]

the Supreme Court ruled that sincere religious belief can excuse compliance with otherwise valid general laws, unless the government can demonstrate that it has a "compelling interest" that cannot be achieved by granting religious exemptions.

Okay, well that's just a bad ruling, and a pretty fucked-up instance of SCOTUS "legislating from the bench", which is something that, ironically, fundamentalist religionists also complain of them doing.

 

[Ironclad]

I'm going to actually try to be serious for a moment.

One of the issues with gay marriage is that many laws have to be re-written. Maybe not in spirit, but in detail.

However, with this Polygamy the laws regarding things like community property, divorce, child custody, inheritance and probate, now get much more complex. There would have to be a tremendous retooling of state and federal property laws to cover ownership by a group. Instead of the neet, 50/50 ownership of things, community property may become a game of shares, marriage would have to become a Corporation with regard to property and how it is divided up.

There is some "meat" behind this concern, from what little I know, most of the poly Mormon families had trouble, not with the spouses competing for the husband's attention, but in dividing up assets between various women's children during times of inheritance of when an offspring left the house. The competition was in pushing a wife's children to the "head of the line" for property.

It would not be as simple as applying same-sex, two person marriages to current law, it's a minor re-wording to encompass same gender pronouns. Laws dealing with a legally sanctions Poly household would become much more complex, and those laws would cost time and legislative/court resources to write and refine.

Just something else to consider.

 

[TJHairball]

Ironclad... definitely. There are lots of details that need to be worked out.

Okay, well that's just a bad ruling, and a pretty fucked-up instance of SCOTUS "legislating from the bench", which is something that, ironically, fundamentalist religionists also complain of them doing.

A widely accepted reading of religious freedom (free exercise of religion), first used by the Court in 1962, that Congress attempted to expand upon in subsequent legislation. Remember, the First Amendment establishes separation of church and state as both the nonestablishment of state religion of any variety, and barring the government from regulating the free exercise of religion.

Some would suggest that the Supreme Court had been inconsistently applying the test in 1990, which gives the motivation for the 1993 Act. Not all of the expansions of the '93 Act survived subsequent cases intact; however, the Supreme Court has referred to the "compelling interest" standard reasonably frequently in the past 40 years.

The "compelling interest" standard and 1993 Act's explicit codification of this standard into law was the basis for the court's recent ruling on hoasca's use by a particular religious minority. We may note that, in that case, the government argued that it had a compelling interest, the UDV argued the government did not have a compelling interest.