Utah to Decriminalize Polygamy?

[The Nehor]

31 minutes ago, Analytics said:

In my opinion, polygamy should be decriminalized. Live and let live.

However, I would argue that such relationships should work according to whatever arrangements the participants make, and shouldn't be defined as "marriage" under the law. Intrinsic parts of family law include there only being two people in a marriage, and that somebody can only enter into only one such relationship at a time.  For example, if somebody is ill and can't make their own medical decisions, his or her spouse gets to decide. If there are multiple spouses then what?

Everybody is allowed to choose their own life partner, but nobody can simultaneously choose more than one.

I would predict that is the way it will go.

Sounds good but children are involved which means when these relationships collapse the courts will have to get involved and you cannot form a legal contract exempting anyone from child support giving custody to someone without judicial approval.

[Calm]

1 hour ago, bluebell said:

I agree.  I foresee decriminalization but not legalization because it would be too messy to try to regulate, especially when it comes to health insurance, divorce laws, etc.

The  biggest problem will be the children, similar imo to same sex marriage where the determination of who are the parents isn’t automatically clear as in the case of bio parents (think of one parent claiming in a divorce full custody of the child as the bio parent where there is no biological connection with the other parent, even though the pregnancy and raising of the child was a mutual decision and seen at the time as shared parenthood). I remember seeing this issue arise when same sex marriage was decriminalized but not legal.  The nonbiological parent had no recourse to claim custody rights at the time. Now same sex marriage is legal, I am assuming that gives some sort of standing, but don’t remember reading about it so not sure. 

If polygamy remains not legal, a parent who was the main caregiver in a child’s life may have no legal standing to continue any relationship after a divorce if she was not the biomother.  Would courts allow for adoption by an additional mother or father if the relationship was not legal?  Would a contract requiring the child be seen as having two mothers as well as a father, for example, hold up in court, giving full rights to the nonbiomother or would there be automatic preference given to the bio parents? (The question arises for me because of problems with contracts with surrogate moms, they were not seen as removing biorights even when they were written as such in the past; laws were established that limited what rights could be contractually given up, I believe.)

Edited February 12, 2020 by Calm

[smac97]

Wow:

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Utah Senate committee unanimously approves bill to decriminalize polygamy

BY MORGAN GSTALTER - 02/12/20 12:46 PM EST

 

A bill that would effectively decriminalize polygamy among consenting adults in Utah was unanimously endorsed by a state Senate committee this week, sending the legislation to the full chamber for a vote, The Salt Lake City Tribune reported.

The Utah Senate Judiciary, Law Enforcement and Criminal Justice Committee pushed the bill through after hearing testimony from those who said current state law labels law-abiding citizens as criminals.
...
Current state law makes polygamy a felony punishable by up to five years in prison, with an additional 15 years possible if the defendant is also convicted of fraud, child abuse, sexual abuse, domestic abuse or human smuggling or trafficking.

Henderson’s law would make polygamy between consenting adults an infraction — a level below many traffic offenses that carries no jail time, The Tribune reported.

Those convicted could face fines up to $750 and community service and sentencing enhancements for those with additional charges would remain intact.

Opponents to Henderson’s bill, such as director of the Sound Choices Coalition Angela Kelly, argued the legislation would encourage people to live polygamist lifestyles, which she compared to organized crime and slavery, according to the Tribune.

“To bring it down to an infraction, you’re essentially saying this is an OK lifestyle,” Kelly said. “And it might be for 10 people, but we’re talking about society as a whole.”

Ora Barlow, who was raised in a polygamous community, said she has been thought of as property her entire life until the leaders of her church were prosecuted.

"The law is there for a reason,” Barlow said. “And it’s for people like me who feel trapped.”
...
Henderson argued that current law has created a culture that allows empowers abusers, such as Warren Jeffs, the infamous leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints, a denomination known for practicing plural marriage and dressing in historic clothing.

Yes, Ms. Kelly, we are "essentially saying {polygamy} is an okay lifestyle."  

If we as a society are okay with unmarried cohabitation and same-sex marriage, I don't see how we can criminalize consensual, non-fraudulent polygamy.

Thanks,

-Smac

[Analytics]

58 minutes ago, smac97 said:

Unless, of course, polygamy is a constitutional right.  In which case, legalization is necessary, and cannot be avoided just because it's logistically problematic.

Thanks,

-Smac

Of course. But I don't think there is a strong argument that it is Constitutional, and I don't think there will ever be a strong advocate to ever seriously try.

[smac97]

8 minutes ago, Analytics said:

Of course. But I don't think there is a strong argument that it is Constitutional, and I don't think there will ever be a strong advocate to ever seriously try.

Oh, I imagine Kody Brown and/or some others will give it a try.  It's not that hard.  Have the group go to a county clerk and ask for a marriage license authorizing all three to marry each other.  They will be turned down.  They file suit, lose at the trial court, appeal, lost at the state or federal appellate courts, appeal, and so on.  Eventually, I think someone will end up at SCOTUS.

I agree that there is not a strong argument for constitutionally-mandated recognition of polygamy.  But then, I thought the same about same-sex marriage.  

If anything, I'd say that polygamists have a better constitutional argument as compared to the same-sex folks.  

Thanks,

-Smac

Edited February 12, 2020 by smac97

[provoman]

43 minutes ago, Analytics said:

Of course. But I don't think there is a strong argument that it is Constitutional, and I don't think there will ever be a strong advocate to ever seriously try.

At the Federal level, Religious Freedom Restoration Act - which does not apply to the States, though some States have adopted similar statues. Utah has not enacted such a statute.

Edited February 12, 2020 by provoman

[Analytics]

1 hour ago, smac97 said:

On its own, "live and let live" is too broad and intractable a basis for decriminalization.

What do you mean? Are you really claiming that if the governor and the state legislature agree to decriminalize polygamy on a "live and let live basis", that they can't do so because that is too "broad and intractable"?

 

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So decriminalization, but not legalization?  Could you elaborate on that? 

I might be using the terms incorrectly. What I mean is to make it so it is not illegal, but also not recognized by the state.

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Do you think there is a constitutional right to same-sex marriage? 

Yes.

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If so, what is your position on a similar "right" to polygamy?

Yeah, well, we're well past that.  Male/female duality in a marriage was also "intrinsic" in the American legal treatment of marriage.  Until five justices on the Supreme Court decided it wasn't intrinsic after all.

No and no. "Male/female" duality was an arbitrary restriction, in the same way that "of the same race" was also arbitrary. Marriage laws are all based on there being two people in the partnership. If one spouse gets sick, the other (singular) is responsible for making medical decisions. If one spouse dies and there isn't a will, the other (singular) gets the money. Married filing jointly is only defined for two spouses in the tax code. According to how the laws function, it doesn't matter what the sexes are of the two people. But the laws don't make sense if the number of people in the partnership is something other than two. That is why sex is arbitrary, but number is not.

Arguments for same-sex marriage are along the lines of, "we want to marry the person who we choose and receive the same benefits that other people receive who marry the person who they choose."

That argument doesn't work for plural marriage, because plural marriage benefits are not defined. The closest would be something like, "We want to marry the multiple people whom we choose, and we want the way marriage laws function to be fundamentally restructured to accommodate people having multiple spouses."

Legalizing polygamy would have countless logistical nightmares because marriage is intrinsically a two-person affair. Legalizing same-sex marriage did not have countless logistical nightmares because marriage was only arbitrarily an opposite-sex thing. 

 

Edited February 12, 2020 by Analytics

[provoman]

39 minutes ago, smac97 said:

Oh, I imagine Kody Brown and/or some others will give it a try.  It's not that hard.  Have the group go to a county clerk and ask for a marriage license authorizing all three to marry each other.  They will be turned down.  They file suit, lose at the trial court, appeal, lost at the state or federal appellate courts, appeal, and so on.  Eventually, I think someone will end up at SCOTUS.

I agree that there is not a strong argument for constitutionally-mandated recognition of polygamy.  But then, I thought the same about same-sex marriage.  

If anything, I'd say that polygamists have a better constitutional argument as compared to the same-sex folks.  

Thanks,

-Smac

It appears the Constitutional basis in Overgefell was "right to marry", individual autonomy etc. I think it would be difficult to show that todays Constitutional standard for the right to marry and individual freedom do not apply to a individuals seeking legal plural marriage.

[smac97]

34 minutes ago, Analytics said:

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On its own, "live and let live" is too broad and intractable a basis for decriminalization.

What do you mean? Are you really claiming that if the governor and the state legislature agree to decriminalize polygamy on a "live and let live basis", that they can't do so because that is too "broad and intractable"?

I'm saying that "live and let live" is a bromide.  It doesn't mean much by itself.

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So decriminalization, but not legalization?  Could you elaborate on that? 

I might be using the terms incorrectly. What I mean is to make it so it is not illegal, but also not recognized by the state.

Got it. 

Decriminalization = "it is not illegal."  

"Not legalization" = "not recognized by the state."

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Do you think there is a constitutional right to same-sex marriage? 

Yes.

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If so, what is your position on a similar "right" to polygamy?

Yeah, well, we're well past that.  Male/female duality in a marriage was also "intrinsic" in the American legal treatment of marriage.  Until five justices on the Supreme Court decided it wasn't intrinsic after all.

No and no. "Male/female" duality was an arbitrary restriction,

Not so.  Marriage's relationship to procreation, to the next generation of taxpayers, was long the basis of the government's interest in regulating marriage.  Not arbitrary at all.

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in the same way that "of the same race" was also arbitrary.

Ah.  So why can't we say "The number of people who can be in a marital relationship with each other is an arbitrary restriction, the same way that 'of the same race' was also arbitrary"?

Anti-Miscegenation laws were fairly different.  In Loving v. Virginia, Justice Warren said that marriage was a one of the "basic civil rights of man" and that this right is "fundamental to our very existence and survival." See here. This may sound like picking a nit, but it is not, as "basic" and "fundamental," at least in this usage, are not synonymous. Further, it can be seen from the quote that Justice Warren is actually quoting someone else in his assertion. Here is the actual wording he is quoting, from the case Skinner v. Oklahoma, rendered by Justice Douglas:

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We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.

This original quote makes it clear that the reason marriage is "fundamental to our very existence and survival" (as Justice Warren said) is because of procreation. (The Skinner v. Oklahoma case had to do with the forced sterilization of "habitual criminals," not with marriage, per se.) To assert that the procreative aspect of marriage should not be considered when applying Justice Warren's paraphrase of Justice Douglas' statement which specifically cites marriage and procreation is a classic example of leaving out inconvenient facts and possibly twisting a statement to mean something it didn't originally mean.

Justice Warren also directs readers to the case of Maynard v. Hill (1888), which can be found here. That case talks about, among other things, how basic marriage is to society, even that it has "more to do with the morals and civilization of a people than any other institution." It also quotes the Supreme Court of Rhode Island (among others) which said that marriage "signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable."

As I see it, the "basic" and "fundamental" characterizations of marriage which Justice Warren had in mind pertained to a husband and wife, and included the promise, at least generally, of a procreative component. He could not see that limiting such marriages through anti-miscegenation laws was lawful, but it is--at least on the surface--a definite stretch to say that marriages between two people of the same sex, which precludes the potential of procreation that Justice Warren thought critical, would be considered either "basic" or "fundamental" by him.

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Marriage laws are all based on there being two people in the partnership.

Well, that's not quite complete.

Until recently, marriage had long been defined as the association of people based on the attributes of those people, including

• A) gender (a man and a woman),
• B) number (two people),
• C) age (the minimum age varies by jurisdiction a bit),
• D) mental capacity (the specific minimum requirements may vary a bit by jurisdiction),
• E) consent (no coerced marriages),
• F) consanguinity (no incest), and
• G) species (no human / non-human marriages).

The Supreme Court has knocked down one of these (gender), so it seems that some (all?) of the others are likewise susceptible to being constitutionally tossed out.  As I see it, the "age" and "mental capacity" and "consent" criteria can be tweaked a bit, but are otherwise probably not going anywhere (though not based on constitutional considerations).  But the others are probably susceptible to being tossed (as the first one, "gender," already has been).

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If one spouse gets sick, the other (singular) is responsible for making medical decisions.

Right.  But only because of the legal relationship that exists between the two.  So why can't more than two persons be in that marital relationship?

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If one spouse dies and there isn't a will, the other (singular) gets the money.

Well, that varies from state to state.  For example, Utah's intestacy statute provides for heirs other than the surviving spouse to receive a portion of the estate.

But again, so what?  Why couldn't "the other (surviving spouses) get the money"?

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Married filing jointly is only defined for two spouses in the tax code. 

Again, wo what?  Why couldn't "married filing jointly" be re-defined to accommodate three spouses?  Or four?

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According to how the laws function, it doesn't matter what the sexes are of the two people.

According to how the laws function as of 2013.  Prior to that, the sexes of the married couple matters quite a bit.

But now the sex of the partners doesn't matter.  So why can't we say that the number of the partners doesn't matter, either?

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But the laws don't make sense if the number of people in the partnership is something other than two. That is why sex is arbitrary, but number is not.

I don't understand.  You are presenting logistical problems, but they aren't insurmountable.

And in any case, so what?  There were logistical problems when same-sex marriages were legalized, but we sorted them out because a constitutional right was in play.

So if there is a constitutional right to polygamy, the logistical problems are not an impediment.

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Arguments for same-sex marriage are along the lines of, "we want to marry the person who we choose and receive the same benefits that other people receive who marry the people who they choose."

And arguments for polygamous marriage are along the lines of, "we want to marry the persons whom we choose and receive the same benefits that other people receive who marry the people who they choose."

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That argument doesn't work for plural marriage, because plural marriage benefits are not defined.

So define them.  That's a logistical problem, that's all.

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The closest would be something like, "We want to marry the multiple people whom we choose, and we want the way marriage laws function to be fundamentally restructured to accommodate people having multiple spouses."

Yes.  Just like we "fundamentally restructured" marriage laws "to accommodate people having {a same-sex spouse}."

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Legalizing polygamy would have countless logistical nightmares because marriage is intrinsically a two-person affair.

So what?  Since when are logistical difficulties a basis to deny someone constitutional rights?

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Legalizing same-sex marriage did not have countless logistical nightmares because marriage was only arbitrarily an opposite-sex thing. 

I invite you to give this matter some thought.  Nobody, and I mean nobody, every argued that same-sex marriage should be legalized because the logistics were relatively easy to sort out.  The argument was that same-sex marriage was a constitutional right.  Logistical difficulties were not a primary concern.

So it may end up being re: polygamy.  If there is a constitutional right to it, then that settles the question.  Sorting out the logistics is a downstream consideration.

Thanks,

-Smac

Edited February 12, 2020 by smac97

[smac97]

5 minutes ago, provoman said:

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Oh, I imagine Kody Brown and/or some others will give it a try.  It's not that hard.  Have the group go to a county clerk and ask for a marriage license authorizing all three to marry each other.  They will be turned down.  They file suit, lose at the trial court, appeal, lost at the state or federal appellate courts, appeal, and so on.  Eventually, I think someone will end up at SCOTUS.

I agree that there is not a strong argument for constitutionally-mandated recognition of polygamy.  But then, I thought the same about same-sex marriage.  

If anything, I'd say that polygamists have a better constitutional argument as compared to the same-sex folks.  

It appears the Constitutional basis in Overgefell was "right to marry", individual autonomy etc. I think it would be difficult to show that todays Constitutional standard for the right to marry and individual freedom do not apply to a individuals seeking legal plural marriage.

I agree.  The government's interest in regulating marriage was previously predicated on marriage's relationship with procreation, with the continued existence of our country through the begetting of the next generation of taxpayers, farmers, soldiers, doctors, teachers, parents, etc.

Polygamy plainly hews far close to that governmental interest than same-sex marriage.  A child born to a same-sex couple is a biological impossibility.  In contrast, a child born to a polygamous family is a standard and expected thing.

Thanks,

-Smac

[Analytics]

30 minutes ago, smac97 said:

I'm saying that "live and let live" is a bromide.  It doesn't mean much by itself.

The Utah State Legislature has passed laws for worse reasons.

30 minutes ago, smac97 said:

Not so.  Marriage's relationship to procreation, to the next generation of taxpayers, was long the basis of the government's interest in regulating marriage. 

Its relationship to procreation and to the next generation of taxpayers are two different things. For example, the state values stable families with adopted children just as much as families with naturally born children. So these two concepts should be separated. If procreation was an essential element, people who couldn't procreate due to age or disability wouldn't be allowed to married, and marriages that didn't produce children would be broken up.

30 minutes ago, smac97 said:

I don't understand.  You are presenting logistical problems, but they aren't insurmountable.

And in any case, so what?  There were logistical problems when same-sex marriages were legalized, but we sorted them out because a constitutional right was in play.

So if there is a constitutional right to polygamy, the logistical problems are not an impediment.

Same-sex marriage had logistical problems like changing forms from "husband/wife" to "spouse." That is radically different and far easier than the problems of reworking family law to deal for multi-person matrimonies.

My argument is that under strict scrutiny, the government could not justify prohibiting same-sex marriage, but could justify prohibiting plural marriage; functionally, plural marriage is a radical, nonsensical redefinition of marriage in our modern society in a way that same-sex marriage was not. Such things matter when determining whether a law passes strict scrutiny.

In any case, I don't have a horse in this race and really don't care. If you are right and plural marriage, marriage to animals, etc. all become legalized (i.e. recognized by the state), I invite you to brag about how right you proved to be.

[Amulek]

I don't see the Supreme Court recognizing a right to polygamous marriage without much broader political or popular support than currently exists.

And, to be honest, I don't see polygamy being seen much more favorably (in either sphere) any time soon. 

 

Edited February 12, 2020 by Amulek