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Wednesday, April 6, 2011
Anti-Polygamy Law in America
Daniel Dubose Ray wrote “Questioning the Reynolds Decision: A Modern Examination of the Constitutionality of Polygamy.” Follow the link to read it or download it. Ray argues that Americans having the polygamous freedom to marry would be an improvement.
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2 comments:
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This paper is of interest to legal theorists. It does have some minor technical flaws (easily correctable), but its grand weakness is that it ignores all practical factors. These practical factors fall into two main categories: the hypothesized "Freedom Of Marriage Act" and the proposed "Liberty test".
ReplyDeleteThe hypothesized FOMA has all the realism of a well-documented proposal by Christopher Columbus to the Queen asserting that if the Queen simply provided him with a nuclear-powered aircraft carrier, then he would successfully claim the entire world as the Queen's territory. Polygamy was found to be opposed by a 92% super-majority in the United States in Gallup's 2005 annual "Values and Beliefs" survey, and by 90% in the very same survey for 2010 (http://www.gallup.com/poll/137357/Four-Moral-Issues-Sharply-Divide-Americans.aspx). Passing an Act or an Amendment (despite that level of opposition) would require an entirely unavailable magnitude of political technology.
The proposed "Liberty test" similarly assumes its way past enormous practical roadblocks. It basically attempts to declare that Millian thought shall be used in all Establishment Clause and Free Exercise Clause cases. The proposition that this will receive the support of a Supreme Court majority (as it would have to in order to be adopted) is the equivalent of an assumption that the Supreme Court is dominated by a liberal majority consisting entirely of Thurgood Marshalls - and that assumption is simply unrealistic. See "Is Incest Next" by Brett McDonnell at http://ssrn.com/abstract=442520 - "The paper identifies three basic approaches to identifying liberty interests, all with some support in the Court’s history. The “conservative Burkean” approach recognizes a right only if it can be clearly shown that the our society has specifically and widely acknowledged the right for a long time. The “Millian” approach forbids the state from regulating behavior which directly affects only those who engage in it and does not harm anyone else. The “liberal Burkean” approach looks to our history and is unwilling to impose a simple general harm principle, but is willing to allow that over time we may come to recognize new sorts of interests that should be protected. The paper argues that the Court has taken a Goldilocks position: conservative Burkeanism is too restrictive, Millianism is too expansive, and liberal Burkeanism is just right.".
Such fanciful thinking makes for an enjoyable pipe dream, but it does little to advance "Full Marriage Equality". Just as the Queen would have told Columbus to find a cheaper and more practical way to accomplish his mission, FME activists must find a cheaper and more practical model to accomplish their goal.
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ReplyDeleteThat model has already been developed and proven, and it has absolutely nothing to do with the Religion clauses. It is the Loving v. Virginia model, which attacks on the basis of the Due Process Clause and the Equal Protection Clause ("Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival." - Loving v. Virginia (388 U.S. 1 (1967}). The Loving case launched its attack in a very hostile political environment and on a ACLU-funded shoestring budget, and it achieved the total destruction of all American miscegenation laws ("when the U.S. Supreme Court decided Loving v. Virginia (1967), striking down state interracial marriage prohibitions, 72 percent of Americans opposed marriages between people of different races, and 48 percent thought it should be a crime" - from Page 169 of America's Struggle For Same-Sex Marriage (Daniel R. Pinello, http://www.cambridge.org/9780521848565)).
The Loving v. Virginia model has already been used to great effect by the same-sex marriage movement. The Goodridge decision from the Massachusetts Supreme Court followed in the footsteps of Loving v. Virginia, and in addition to its economically efficient and legally comprehensive victory it also produced the transformative political effects which are typically the result of a pro-freedom Supreme Court ruling on an access to marriage issue.
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Excerpt from page 182 of "America's struggle for same-sex marriage" by Daniel R. Pinello (http://www.cambridge.org/9780521848565):
The Positive Effects of Goodridge
As chapter 3 reveals, the political impact of Goodridge at home in Massachusetts was titanic. The decisions radically changed the political and social landscape in the Commonwealth and fundamentally transformed the procedural dynamic in the legislature. While the Massachusetts gay and lesbian community would have been lucky to receive just domestic-partner health insurance benefits statewide before Goodridge, full civil unions with all the rights and responsibilities of marriage instantly became the political fallback position after the ruling.
Moreover, in just fifteen months, the composition of the two-hundred-seat General Court shifted to produce a net gain of eight votes favoring same-sex marriage, a remarkable statistic in light of the legislative incumbency effect. Yet the alteration in votes on the Travaglini-Lees Amendment was far more dramatic: from 105 in favor and 92 opposed in March 2004 to 157 opposed and just 37 in favor eighteen months later. Even though some of that change represented strategic switches by conservative legislators, the number of solid votes in favor of same-sex marriage increased by at least 23, and perhaps as much as 34, in the second ConCon.
What is more, a major new state interest group, MassEquality, whose sole purpose was to protect the Goodridge achievement, sprang up virtually overnight, raising more than two million dollars in less than a year in a state of 6.4 million residents.
Thus, a more comprehensive political transformation over a cutting-edge social issue in such a short time is hard to imagine.
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