I have not read much about the Pastrix, and I don’t expect to. That’s an expression of priorities, not of hostility.
But Rod Dreher writes for a living, not avocationally, and reads voraciously. So he read her expecting to find “liberal Protestantism’s flavor-of-the-month,” yet wound up liking her, and finding her something more than that. Maybe she’s not enduring, but he found her likable for “her heart, her voice, and her ragged humanity.”
I don’t think I can summarize Dreher adequately, and his is not a long piece, so do read it.
I write mostly do endorse his observations about the surprising affinities between radicals of the right and the left, the “traditionalists” (as Dreher and I are or are trying to become) and the “radicals” of a left/liberal/progressive stripe.
The more mainstream “conservatives” and “liberals” fight like cats and dogs because they don’t recognize their own affinities, which deep down inside are shallow, as they are trying to “be effective in the world” (I’d say “make a name for themselves”) more than to “live the truth.”
Prof. Friedman visits the Utah polygamy decision at the trial court level, which certainly will be appealed to the 10th Circuit:
Plaintiffs, the polygamous family featured on the TLC reality series “Sister Wives,” sued seeking a declaratory judgment that Utah’s ban on plural marriage is unconstitutional. (See prior posting.) Plaintiffs are members of a religious group that believes polygamy is a core religious practice. Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights. Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test. Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs’ rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness.
Let’s take that apart.
Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights.
I doubt this under Employment Division v. Smith (about which, more momentarily).
Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test.
Employment Division v. Smith frankly, reversed Wisconsin v. Yoder, a landmark religious freedom case, Justice Scalia’s denials of doing that notwithstanding. The outcry after Smith led to very bipartisan adoption of the Religious Freedom Restoration Act (RFRA), which sought to restore the Yoder standard by statute. But RFRA has been declared unconstitutional as applied to the States; it only binds the Federal government. Thus Utah is presumptively free, under Employment Division v. Smith, to bar cohabitation while married to someone else so long as they do so across the board, no exceptions. If there are exceptions for anyone, fundamentalist Mormon religious convictions are entitled to at least as broad an exception.
But the judge says the law is primarily used to target religious co-habitation. I doubt that’s true in any relevant sense. First, the law doesn’t have any exceptions that leave religious co-habitation singularly exposed:
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
Second, although it may be primarily polygamist Mormons that are prosecuted, that’s a matter of prosecutorial discretion and it will almost always be the case that prosecutors select the most open and notorious cases for prosecution. (By way of analogy, before sodomy laws were stricken down, it tended to be gay men who publicly solicited sexual encounters who got prosecuted.)
Third, nothing I’ve seen about the opinion suggests that this Utah law was parallel to the ordinance in Hialeah Florida that sought to ban animal sacrifice by the Afro-Cuban religion, Santeria. Everybody knew that’s what Hialeah was doing, and they made their objective even clearer by carving out from the ban on ritual animal sacrifice behavior that would characterize a kosher butchery rather than a Santeria temple.
If the statute doesn’t really target religiously motivated polygamy, that I don’t think that the strict scrutiny standard applies.
Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs’ rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness.
This is the basis of the judge’s decision that most worries me. Taking some of the claptrap of prior Supreme Court opinions at face value, it may very well be that the statute falls on this basis, but I don’t think it should fall on either of the other two bases.
Mine remains a sort of seat-of-the-pants response. I began reading the judge’s decision and was put off by the length of it (91 pages), not wanting to consume an entire Sunday afternoon on trying to tease out every nuance.
I’m also aware that the reality TV stars who brought this lawsuit “lawyered up” quite extensively, getting a big-name law school prof, Jonathan Turley, whereas the state of Utah put up a surprisingly weak defense (can’t recall or find where I read that). That could have influenced the outcome, and it’s one reason why it’s important to remember that the primary effect of a lawsuit is to resolve the dispute between the parties to the lawsuit, not to make a precedent applicable to everyone else, since it would be a darned shame to make a precedent so broad when one of the litigants to the case giving rise to the precedent was poorly represented. Maybe Utah thought it had a lay-down hand.
It’s no big deal to me if the five plaintiffs in this case get a free ride for polygamy from now on. But should it become the law – throughout the 10th circuit, let alone throughout the land – that criminal laws against polygamy are powerless against the claim of religious motivation, that would be a very big deal indeed.
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Before I sign off on this opinion for the day, let me mention one more thing:
I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23). More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point. It’s definitely different.
(Orin Kerr) My immediate thought on reading this was that the judge had taken lessons in clumsy misdirection from Justice Harry Blackmun in Roe v. Wade, who took an extended ramble through history, only to screech to a halt, pronounce that the court didn’t need to decide what it was tacitly deciding, and say that emanations from penumbrae were potent enough to legalize abortion over 50 state legislatures’ contrary judgment. John Hart Ely’s response, in The Wages of Crying Wolf, boiled it down:
It is nevertheless a very bad decision … It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
Actually, the polygamy court seems to have done a more workmanlike job than that, but long long digressions, admittedly irrelevant, don’t inspire confidence.
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Rod Dreher may have a better sense than I of how this will play in people’s minds.
Enough with my many words. Let’s experience a little music (accompanied by very apt words of someone else).
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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 