A Utah man, using the recent Supreme Court sodomy ruling as a precedent, says his freedom of religion was violated when the state refused him a 2nd marriage license.
Two Wives, No Waiting
Full Version: Is Polygamy the same as Sodomy (legally speaking)?
It's not the same logically because one has to do with state sanctioning and the other has to do with state non-interferance. When the state sanctions a marriage, it then provides state protections of that relationship (shared property, certain tax benefits, etc.). When the state doesn't arrest you for having consensual sex, it isn't providing you with other resources to encourage further acts. The state has no interest in stopping or compelling you to commit sodomy. Arguably, however, the state has an interest in sanctioning marriages and providing to them the above-mentioned benefits.
This parallel is starting to make me pissy, because the two are NOT the same.
Forgive me for going a little off topic here, but the idea here is that we are born with every right imaginable. As a society, however, in order to ensure safety and equality, we forgoe the "right" to rape, pillage, murder, steal, etc. So, the state interferes with certain activities by proving that it has a compelling reason to stop it. The perfect example of this is anti-trust regulations. The state is knowingly infringing upon the free-market right of a huge corporation having a monopoly, because it is in the state's interest to do so. Sometimes the state encourages behavior by providing insentives. Thus, tax breaks for charitable donations. There is no Constituional right protecting the wealth of those who give to charity, but the state wishes to encourage charitable donations, and so it excuses such donations from being taxed. Such is the category of marriage, which is (essentially) the state providing encouragement for a two-parent-with-child(ren) household. That family unit is best for the economy, it has a certain moral pluses to it, etc., etc. So, the state sanctions a relationship to encourage the growth of that family unit. Lawrence v. Texas simply says that there is no compelling reason for the state interfere with consenting adults doing something privately in their own home AND that most sodomy laws are used to prosecute gays, and therefore violate equal-protection. There is NOTHING in that decision about marriage.
[ January 13, 2004, 04:40 AM: Message edited by: araanib ]
This parallel is starting to make me pissy, because the two are NOT the same.
Forgive me for going a little off topic here, but the idea here is that we are born with every right imaginable. As a society, however, in order to ensure safety and equality, we forgoe the "right" to rape, pillage, murder, steal, etc. So, the state interferes with certain activities by proving that it has a compelling reason to stop it. The perfect example of this is anti-trust regulations. The state is knowingly infringing upon the free-market right of a huge corporation having a monopoly, because it is in the state's interest to do so. Sometimes the state encourages behavior by providing insentives. Thus, tax breaks for charitable donations. There is no Constituional right protecting the wealth of those who give to charity, but the state wishes to encourage charitable donations, and so it excuses such donations from being taxed. Such is the category of marriage, which is (essentially) the state providing encouragement for a two-parent-with-child(ren) household. That family unit is best for the economy, it has a certain moral pluses to it, etc., etc. So, the state sanctions a relationship to encourage the growth of that family unit. Lawrence v. Texas simply says that there is no compelling reason for the state interfere with consenting adults doing something privately in their own home AND that most sodomy laws are used to prosecute gays, and therefore violate equal-protection. There is NOTHING in that decision about marriage.
[ January 13, 2004, 04:40 AM: Message edited by: araanib ]
Araanib, I agree wholeheartedly with your analysis of the distinction. However, one small point--Lawrence v. Texas was only decided on substantive due process grounds ("privacy"), and not on equal protection grounds. Justice O'Connor's concurrence was based on equal protection, but the 5-justice majority only decided on the privacy grounds. They did so specifically because the privacy analysis grants even more protection on this issue than an equal protection analysis would.
Just a small point, but the law is all about small points. wink
[ January 13, 2004, 05:31 AM: Message edited by: KeyWest Guy ]
Just a small point, but the law is all about small points. wink
[ January 13, 2004, 05:31 AM: Message edited by: KeyWest Guy ]
Word. I just figured since Sandra Day mentioned it (even in a concurring opinion), that I would be remiss in not mentioning it.
[ January 13, 2004, 09:00 AM: Message edited by: araanib ]
[ January 13, 2004, 09:00 AM: Message edited by: araanib ]
... picking myself up from floor, clutching chest Fred Sanford-style, still shocked that KWG posted something without ranting about the Gators...
I haven't seen the complaint (can't get into PACER at the moment), so I don't know what grounds the complaint cites other than the Free Exercise clause of the First Amendment.
Regardless of whether the case proceeds under SDP, equal protection, or something else, the state is going to be able to make a strong state-interest argument with regard to the impact of polygamous families on scarce public resources. In Under the Banner of Heaven, Jon Krakauer examined in some detail the fact that plural wives often seek and obtain welfare and other public assistance to support their families, while claiming to be "single mothers." One northwestern Arizona county known for its popularity with polygamists was cited as having an incredibly disproportionate welfare burden. In fact, welfare rolls have been used to catch polygamists (although convictions of the crime of polygamy have been difficult to obtain).
This will be an interesting case to watch. Since foes of Lawrence could make no such claim that gays impacted public funds in the same way, I don't think that it will succeed, but it's certainly giving Ricki Santorum (that's Latin for "a$$hole") an opportunity to say "I told you so."
gj
p.s. KWG, there may be hope for you yet. wink
I haven't seen the complaint (can't get into PACER at the moment), so I don't know what grounds the complaint cites other than the Free Exercise clause of the First Amendment.
Regardless of whether the case proceeds under SDP, equal protection, or something else, the state is going to be able to make a strong state-interest argument with regard to the impact of polygamous families on scarce public resources. In Under the Banner of Heaven, Jon Krakauer examined in some detail the fact that plural wives often seek and obtain welfare and other public assistance to support their families, while claiming to be "single mothers." One northwestern Arizona county known for its popularity with polygamists was cited as having an incredibly disproportionate welfare burden. In fact, welfare rolls have been used to catch polygamists (although convictions of the crime of polygamy have been difficult to obtain).
This will be an interesting case to watch. Since foes of Lawrence could make no such claim that gays impacted public funds in the same way, I don't think that it will succeed, but it's certainly giving Ricki Santorum (that's Latin for "a$$hole") an opportunity to say "I told you so."
gj
p.s. KWG, there may be hope for you yet. wink
Sodomy = non-PIV (penis in vagina) sex. Don't forget, straight people engage in it as well.
Polygamy = where either spouse may have more than one mate at the same time.
Your question asks to compare two unrelated concepts.
Non-PIV sex is legal. Polygamy is not legal.
In America, a wannabe polygamist can marry his first choice for a wife. (He just can't marry again while he is still married).
As a gay male, I CAN'T marry my first choice!
That's how I see it!
Polygamy = where either spouse may have more than one mate at the same time.
Your question asks to compare two unrelated concepts.
Non-PIV sex is legal. Polygamy is not legal.
In America, a wannabe polygamist can marry his first choice for a wife. (He just can't marry again while he is still married).
As a gay male, I CAN'T marry my first choice!
That's how I see it!
QUOTE
GatorJamie:
KWG, there may be hope for you yet. wink
Sorry to disappoint GJ. KWG, there may be hope for you yet. wink
5 on the Gay-tors, 5 on the 'Noles!
Go Canes!
How's that?
wink
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