A Utah criminal law banning polygamy has been struck down by the Federal District Court for Utah. Eugene Volokh hasn’t had time really to dig into it, and neither have I (nor do I expect to). But Volokh’s summary shows conclusions that make perfect legal sense.
That’s not to say I approve of the decision. It’s to say that Federal Judges are pretty smart, and only occasionally (except for the Ninth Circuit U.S. Court of Appeals) come up with stuff that’s certifiably insane.
Nor is it to say “See, I told you so.” Not yet, anyway. The decision does not require Utah to issue marriage licenses to people who are already married to someone else. It doesn’t require that anybody recognize polygamous marriages. Those may be coming, but for now we’ve merely gotten a decision that says Utah can’t throw people in jail or fine them criminally for (1) bringing a third party into the marital bed or (2) for going through some sort of ceremony that stops short of purporting to create a legal marriage out of the ménage à trois. (I wish the Ethics and Religious Liberty Commission of the Southern Baptist Convention, had acknowledged that important truth in its press release, which read instead as if the court had done one or both of the things it didn’t do. I was hoping for better from Russell Moore.)
That all makes a certain sort of legal sense. (Orin Kerr and David Kopel vary on how much sense it makes.) I’ve defended the right of, say, Unitarian Universalists to celebrate same-sex unions so long as everybody recognizes that they’re not legal marriages. (Why shouldn’t they be legal marriages? I’m not going to rehash that.)
And we’ve got the notorious Mystery Passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” If life is meaningless with only four bare legs in a bed, or with only one bed under your roof where bare legs await, hey, who are we to deny any lusty fella his own definition of an adequate existence?
But it’s not a sign of strength, but of ultimate weakness, that the logic of law seems to be to carry every precedent to its most absurd extreme, step-by-little-step.
I think the line I’d like to draw is (1) letting the UU minister or ministress (or in Utah, the fundamentalist LDS clergy) bless any damn thing they wish (on the pretext by us as observers that they’re recognizing an undefined special friendship, not giving a sex license), while (2) maintaining some sort of criminal ban on adultery, or at least on open and notorious adultery (as would be true of polygamous unions lived out in the open, such as the Utah defendants who are doing the reality TV titillator Sister Wives).
My preferred line probably would prove odious to Justice Kennedy. I know that. I don’t care. I think he’s wrong on multiple levels, not least of which is his mendacious mantra that any opposition to the latest sexual revolution is motivated by a bare desire to harm someone.
Sometimes I may yield too much ground. I’ve undergone the bloodless lobotomy of law school, after all, and these issues are legally vexed. But I just cannot segue from “immoral” to “oughta be illegal” in part because I fear the “Christianist” Charybdis as well as the Sexual Revolutionist Scylla, especially in a culture where the prevailing Christian traditions are seriously skewed, schismatic and smugly incorrigible.
I didn’t know Indiana’s Catholic Bishops would weigh in, sort of, on Indiana’s HJR-6 Marriage Amendment, but they have. The news stories tend to be longer than the Statement.
And the Statement is infinitely more sensible and humane than the toxic exaggerations of Advance America.
If a statement Politifact rated as partially true could nonetheless be the “Lie of the Year,” perhaps Politifact needs to reconsider its standards for fact-checking.
Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives in San Francisco, where there is a vocal anti-circumcision movement. He emails his neighbor, a photographer, and asks him if he would photograph his son’s bris. The photographer responds, “Shlomo, no offense, but I think circumcision amounts to genital mutilation, and I can’t participate in that.” Next, he approaches his local organic/vegeterian caterer about catering the bris. The caterer says, “you know Shlomo, I’ve done brises in the past, but I’ve been reading some of the literature put out by the anti-circumcision people, and I think circumcisions cause unnecessary pain to baby boys. So I don’t do brises anymore.”
Shlomo files a complaint with San Francisco’s human rights commission, claiming that the photographer and the caterer are engaging in discrimination against him based on his Jewish ethnicity and religion.
So, how should the case come out? Be careful how you answer. It may ramify.
Christ states the nature of our faith quite clearly:
Then Jesus said to those Jews who believed Him, “If you abide in My word, you are My disciples indeed. And you shall know the truth, and the truth shall make you free.” (Joh 8:31-32)
We imagine this process to be in reverse. Our modern misunderstanding tells us that first, we will know the truth, then on the basis of that knowledge, we will abide in Christ’s word. But it is the “abiding,” the repeated doing of Christ’s commandments, that yields knowledge of the truth.
(Fr. Stephen Freeman, who also offers some tips on how to abide in Christ.)
I say this not as somebody who’s all that successful at it lately. I’m feeling a bit lately like Luke 8:7, 14 describe me.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Tipsy Teetotaler ن 