Wednesday, Dec 17, 2014
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Reiniers: Polygamist Utah was right all along


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Utah finally was admitted to the union as a state after a ban on the Mormon practice of polygamy, demanded by the federal government, was written into the new state's constitution in 1896. It would have been interesting if it had been admitted as a polygamous state - Utah then was a virtual theocracy ruled by elders - surrounded by a secular nation. In my view polygamy would have collapsed under its own weight as Utah modernized, but nevertheless Utahans were denied their constitutional rights as the price for admission to the union.

On Dec. 14, Utah U.S. District Court judge Clark Waddoups, a Bush 43 appointee, decriminalized polygamy in Brown vs. Burnham and struck down a state law interpreted to ban polygamy citing Lawrence vs. Texas, a 2003 U.S. Supreme Court case which struck down all state laws that prohibited sodomy. Specifically, the court ruled that the plaintiffs' First and Fourteenth amendment rights were violated (substantive due rights and the free exercise of religion). The ruling does not affect Utah's law banning bigamy in the literal sense of the term.

This is a complicated, carefully worded, 90-page decision which doesn't clearly establish a constitutional right to plural marriage, but follows the inexorable legal trend of ending traditional marriage and expanding rights of privacy.

Jonathan Turley, plaintiffs' counsel, made the point that homosexuals and polygamists have the "right to be left alone as consenting adults. There is no spectrum of private consensual relations. There is just a right of privacy that protects all people so long as they do not harm others."

The court observed that over the decades "we have witnessed a significant strengthening of numerous provisions of the Bill of Rights and a practical and morally defensible identification of "penumbral" [implied] rights of "privacy and repose.".The Supreme Court is less inclined to allow majoritarian coercion of unpopular and disliked minority groups when blatant racism . religious prejudice or constitutionally suspect motivation can be discovered behind such legislation."

"Constitutionally suspect motivation?" That's a tough call to make and at times pretentious for a court to overrule lawfully enacted legislation of a state reflecting the will of the majority of its citizens and the legislature. Legislatures in some European countries are reacting negatively to Islamic pressures on their traditional secular culture, e.g., France's ban on women in public being concealed in head-to-toe burkas being viewed as denigrating women's equal rights in a secular society as opposed to religious prejudice. This balancing act is far more of a challenge in the United States, which is a smorgasbord of ethnicities, races and religions.

When a court seeks to eviscerate the character of a monogamous culture of a civilized society, which has been the gold standard for centuries or even millennia - as in the case of Judeo-Christianity - it is more than troubling. It places an elected legislative body in a subservient role to the judiciary.

Many Americans think of polygamy in the context of a 19th century Mormon religious practice with domineering, wicked "prophets" lording over multiple wives and an army of mistreated kids. Not so. The balance has been tipped from married heterosexual, monogamous couples to any number of cohabiting people of any gender demanding the same rights. Plural marriages no longer will have any religious constraints. The right of privacy carries with it maximum individual autonomy.

This issue should be of more than passing interest to same-sex marriage advocates who distanced themselves from approving polygamy because they knew they were also making the legal case for polygamy, and they didn't want supporters of traditional marriage to connect those dots. But now anything goes with sexual cohabitation.

And as with legislation, court decisions too are rife with surprising or unintended consequences. What would be the attitude of a "conservative" monogamous gay spouse if his husband came home one night for dinner and announced he was taking on another wife? Or a cohabiting lesbian seeking the same privileges as a hetero male polygamist.

It would not be unreasonable to imagine an upper class male who fancies himself as a latter day oriental potentate to go shopping in Thailand for several wives, who will enter the United States on fiancÚ visas and ultimately become American citizens within several years.

The stability and longevity of a marriage to any one partner will be tested with multiple spouses. In the event of a failing plural marriage, children will create an interesting challenge for marriage counselors, the courts, and divorce and custody laws. This at a time when even the divorce rate of traditional marriages and/or the explosion of single parent families are social issues creating even more dependency on government welfare.

Regardless of one's sexual or religious persuasion, any thoughtful person knows that a cultural revolution has been underway since the counterculture years of the 1960s. The legalization of pot will surely go national and will probably expand to other drugs in a nation which has seen enough destruction from alcohol.

It would not come as a shock to this writer if the institution of marriage itself was held to be irrelevant in the near future by progressive jurists, since all forms of cohabitation are constitutionally protected. Legislators might as well repeal civil marriage laws. Why get married?

All this in a totally divided nation, with the progressive left pushing for even more big government, entitlements, open borders, and now libertarian "big love."

John Reiniers is a retired attorney and regular contributor who lives in Spring Hill.

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