Monday, November 17, 2008

Mormons, Polygamy, and Prop-8

I would like to take a moment to comment on the connection between the gay marriage issue and Mormon polygamy that has appeared in the media recently. It has been claimed by some that since Mormons were once persecuted for a non-standard definition of marriage, it is ironic that they should be opposed to gay marriage. This is a red herring, and misses the point entirely. There is very little that is similar about these two situations.

It is true that Mormons practiced polygamy a hundred years ago. It is also true that they were unconstitutionally persecuted for their unusual religious beliefs concerning marriage. But the major difference is that Mormons were thrown in jail for their practice of plural marriage. Mormons have never suggested that gays should be thrown in jail. If California’s prop-8 had attempted to throw gays in jail, seize all their property, or to disenfranchise anyone who belonged to a church that performed gay marriages, then and only then would the comparison be justified.

Unlike the Mormons, gays in California can still perform religions ceremonies that they can call “marriage” without any danger of being thrown in jail. The Mormons simply wanted to be left alone to marry (in religious ceremonies) who they wanted. What the gay marriage advocates want is not what the Mormon polygamists wanted. The gay marriage advocates want to change the definition of marriage for everyone and to force the rest of society to recognize their “marriages.” Mormons did not demand societal approval or recognition of their practice.

Furthermore the Mormon polygamists had a good argument for why their practice was protected by the constitution. If a Mormon married one woman legally, and then had a religious ceremony before sleeping with a second woman, he was thrown in jail. If a non-Mormon married one woman legally, and then fooled around with another woman, no one seemed to care. This is as true today is it was back then. Today, if the other woman was the man's intern, then people seem happy to have him as the President of the United States. The only difference between the two is the religious ceremony. They were prosecuting one and not the other based on whether there was a religious ceremony beforehand. That means that they were throwing the Mormon polygamists in jail for the religious ceremony alone, and for no other reason. Yet the right of the Mormon to have the religious ceremony before having relations with the second “wife” should have been protected by the constitution of the United States. The problem was one of unequal prosecution under the law based on a religious ceremony. If the government equally prosecuted all instances of infidelity, then and only then would the government have had a truly constitutional stand to persecute the early Mormon polygamists.

There can be no doubt that the constitution should protect the rights of a group to perform a religious ceremony if they want to, and to call that ceremony a “marriage” if they want to. It is not nearly as clear if the constitution gives a small minority the right to redefine marriage for the rest of society. Whatever you believe on the Prop-8 issue there can be no real comparison to the Mormon polygamy persecutions of yesteryear.

17 comments:

Chris Monson said...

Very well-put, James. I could not have said it better, myself.

H.K.Bialik said...

So true. People often confuse the motives of polygamy with those of promiscuity. They assume that the motive behind polygamy is sexual, even though it's the natural man's way to be promiscuous, not polygamous. So yes, it's odd that polygamy is punished and not promiscuity. You'd think the social consequences of promiscuity would be a lot higher, too. Cheating on your spouse can lead to fatherless children, single mothers, and wider spread of disease. In a polygamous relationship, everyone's taken care of!

Pat said...

I agree with Chris, you put it well.

James Carroll said...

In response to H. K. Bialik, I should be clear that I am not advocating polygamy, I am just saying that the persecution of early Mormon polygamists was unconstitutional and that it is not similar to the current situation over gay marriage.

Not that you necessarily thought that I was, but I just thought I would clarify for those that follow.

H.K.Bialik said...

I didn't think you advocated polygamy, but clarification is always good.

I don't advocate polygamy, either.

Lunkwill said...

You make some interesting points, but you blow your credibility when you claim that there's nothing similar about the two situations.

They're very similar, although that doesn't make them equivalent or mean that mormons have to support it just because it's similar.

A brief poking around wikipedia yields the article on adultery, which links to this monograph, which in its first few pages suggests that prosecution for sexual immorality had a lot to do with how public the behavior was. That makes sense to me; in Amsterdam, for instance, marijuana is technically illegal outside the cafes, but it's not enforced. But make a big public matter about systematically breaking that law, and you may get the attention of the police.

So, I actually really hate it when society operates in a tolerated illegal fashion, precisely because it encourages selective enforcement. But it does weaken the argument that the prosecutions were wholly unconstitutional and infringing on religion; the religious part may have been incidental (from the law's standpoint) to a public flouting of the law.

It's interesting to consider what would have happened had society not persecuted the early church for polygamy. Let's say the church was starting up in California in 2008, and that polygamy is treated just as same-sex marriage is now. The church would certainly experience a lot less legal trauma, but it's not hard for me to imagine that members might move out of state, get divorced or die and be annoyed when the state doesn't respect their religious-only ceremonies.

In fact, just as bialik points out, one of the classic arguments that polygamy is innocuous is that polygamous marriages are caring, committed family arrangements, and thus a big step up from fornication. So it's easy for me to imagine church members making arguments that their polygamous marriages should be afforded the same legal status as monogamous ones.

And that's precisely how same-sex marriage advocates frame that part of their argument.

So yes, there are fascinating and significant differences, and I'm glad you pointed them out. But by making your original thesis that they're /totally unrelated/, you make it trivial to discard your position. That doesn't particularly bother me; just pointing it out from a logical argument perspective.

The way I visualize this debate is to consider if I were the county officer assigned to issuing marriage certificates. An old, obviously infertile couple comes in, with no intent of living together or sharing finances, and at the same time, a cohabitating, finance-sharing, child-raising same sex couple walks in, and also, a man with his current and prospective second wife. Who do I give certificates to? Well, if the I care a lot about the traditional notion of what marriage entails, then maybe I don't give any of them certificates.

But the first couple is certainly going to squawk, since any other county in the country would give them a certificate. So they get one, and now the other two are looking at me expectantly. They meet the traditional definition of child-raising, committed, cohabitating, finance-sharing people. I check the books; well, the polygamous couple is probably out since polygamy is actually specifically illegal in most places, but until recently, I think it may actually have been unspecified that marriage required both sexes.

So from that perspective, polygamy and same sex marriage look very similar indeed, with respect to traditional definitions. So I personally think the "traditional definition" argument is pretty poor.

That said, I don't see why allowing the particular border case of same sex marriage is a civil right. Actually, I'd like to get the state entirely out of the business of defining things like marriage and giving special tax and legal status to them.

So, to me the argument should focus on the specific aspects of the legal preconditions for marriage, and not blanket claims that "it's not traditional!" or "it's my natural right!". *Why* is gender critical (or utterly irrelevant) to the definition, as opposed to fertility, cohabitation, finance and child-rearing (which don't seem to be a factor nowadays)? (Or do you believe that those are also critical, and would support disbanding marriages which don't meet those other traditional criteria?)

Cecilotta said...

Thanks for this post James, it's an interesting perspective and one I hadn't really thought of.

From my nerdy political science perspective the polygamy ban was equally unconstitutional because it was on a federal level (and still is, in fact). Marriage is one of those things that is supposed to be regulated by the states, which is why gay marriage is now not legal in California but still legal in Massachusetts. So there was really no basis for the law anyhow. Of course that just makes it even more obvious (in case we needed any more evidence) that the law was really created as an excuse to break up the church.

Polygamy is a very intersting case study as related to these newer developments precisely because it sounds so similar, but is really much different when one delves under the surface a little. The fact that pretty much everyone accepts the polygamy ban also tells us that we do, in fact, accept the idea that society can regulate marriage, much as many try to claim differently.

James Carroll said...

Lunkwill,

Thank you for the well thought out response. So, as I understand your arguments:

Point 1 I used Hyperbole, which “blows” my credibility.
Point 2 Prosecution of polygamists was based on how “public” the crime was, rather than on discrimination against a specific religious group for a religious ceremony.
Point 3 A hypothetical scenario that Mormon Polygamists might eventually have wanted public recognition for polygamy instead of just wanting to be left alone.
Point 4 The arguments for polygamy and same sex marriages both revolve around the idea that they are “loving committed relationships” that are better than fornication, and so should be recognized.

Let’s take each one in turn.

Point 1 I used hyperbole, which “blows” my credibility.

Clearly you are correct; I am prone to use hyperbole in my arguments. I have edited my post to reflect your suggestion in this regard. When I said that there is NO comparison, I meant no comparison besides the obvious one that they both involve marriage. I also believe that your point 4 is a significant similarity that I had overlooked. The arguments for both do indeed involve the idea that they are committed loving relationships, and therefore better than the non-married fornication relationships. Those two similarities should be admitted. Another similarity might be that these involve marriage definitions that the majority of society currently believes to be immoral.

However, these superficial similarities are overshadowed by the primary differences between the situations. The most fundamental difference is that one law is about not recognizing the marriage relationships while the other is about criminalizing the marriage relationships. This is such a significant difference that it overshadows any and all superficial similarities.

Point 2 Prosecution of polygamists was based on how “public” the crime was, rather than on discrimination against a specific religious group for a religious ceremony.

When I talked to Senator Bennett about this very point he used the same argument to justify the Tom Green (a modern polygamist) prosecution. I don’t buy it any better now than I did then. Let me explain why. If it really was about how public the offense was, we would be prosecuting the LA. Lakers for their post game orgies, or Bill Clinton for fooling around with his intern in the Oval Office, and then committing felony perjury in a criminal case to cover it up. Instead of throwing him in jail for perjury as should have been done, the nation just wanted him to “apologize.” It is hard to imagine more public case. Clearly the issue isn’t that Tom Green was public while Bill Clinton was discrete. The difference was that Tom Green had performed a religious “marriage” rite before sleeping with the other women, while Bill Clinton did not perform any religious rite. Therefore Tom Green (and by extension the early Mormon polygamists) were being prosecuted unconstitutionally FOR the religious ceremony alone.

Point 3 A hypothetical scenario that Mormon Polygamists might eventually have wanted public recognition for polygamy instead of just wanting to be left alone.

I wasn’t talking about what might have happened, but about what did happen. If we grant the theoretical scenario, assuming that the Mormon polygamists had demanded recognition for their marriages, I believe that the constitution did not grant them the right to have demanded such recognition. If society wanted to give it to them, that is one thing, but they didn’t have a right to demand it any more than the gay-marriage people do. Whether society should choose to grant the rite would depend on society’s estimation of the morality of the union. Since the majority of society still seems to believe that polygamy and gay-marriage is immoral, I believe that they should not be forced to recognize either union until such time as that changes. Which again focuses us on the central point, Prop-8 is about recognition, while early Mormon Polygamy is about criminalization. One is constitutional and the other un-constitutional.

Point 4 has been dealt with above.

Lunkwill said...

Thanks for the thoughtful response. I agree with you regarding point 1 that being lynched is an order of magnitude worse than being denied a tax break. I think proponents of both sides of this issue have really overblown the consequences; prop 8 doesn't say "let's jail all the homosexuals", and defeating it doesn't mean "let's make everyone gay". So it's definitely not on the scale seen in the early church.

I'm not really convinced by your rebuttal to point 2; afaict, Tom wasn't merely marrying adult women. I haven't studied it much, but wp claims he was actually divorcing them and collecting welfare on their behalf, plus sleeping with a 13 year old. So I think it's plausible that he might have been charged for the behavior regardless of whether he performed a ceremony first. Note that I'm disputing whether it (and the early church behavior) was on purely religious grounds. You were proving that it's not merely about how public the behavior was, which I concede. So the truth is probably in the middle somewhere. I'm pretty sure there are plenty of modern polygamists who don't get prosecuted, just as the Lakers don't.

On point 3, I agree. It's not obvious to me that either the polygamy or same-sex marriage should automatically be admitted to the definition.

James Carroll said...

Yes, one of Tom's wives was a 13 year old, and they charged him with rape. I have no problem with that charge. I say, if they do stuff like that throw them in jail. Although you must admit, it was a little strange, since she is now an adult, and happily married and in love with Tom... they should have done it sooner while she was still a child, cuz it is weird to have an adult rape victim as the primary witness for the defendant who supposedly raped her. I met her once (on accident), and we talked about this briefly, and she argued: "why is it that they are punishing me by taking away my husband for something he supposedly did to me years ago, that I don't want to press charges over. If I was too young to consent back then, I am not too young now, and I choose not to press charges. I don't want my husband taken away." I think that you must admit that she has something of a point, but I told her that I thought that it was about precedent. We don't want to allow child marriages, and I think that there is good reason for that. So we can't let Tom get away with it even if his wife doesn't want to press charges, and even if it happened years ago in order to prevent the sort of things that we are now seeing among the FLDS.

My problem isn't with charges for such crimes as rape, or with his criminal non-support charge, or any of those sorts of charges leveled against Tom Green. The only problem I have was that they charged him with bigamy. I am only concerned with that. And mostly, it isn't about Tom or modern polygamists at all, but about the persecutions placed on the early Mormon Polygamists. That is what I have a problem with, and I only have a problem with modern polygamist prosecutions if they repeat the unconstitutional actions of the past. Prophets of the past said that the Mormon polygamist prosecutions were unconstitutional, and if they were unconstitutional then, I assume that they are unconstitutional now.

I may religiously disagree with the modern polygamists, but I believe that we should defend the religious liberties of even those with whom we disagree.

But I have been lead off topic, since the main point is that there is a substantial difference between the polygamist issue and the gay-marriage issue. I believe that one has a constitutional argument while the other does not.

David Carroll said...

James,
I found this blog today and enjoyed reading through your post and the comments. Your arguments are well constructed and I have to check twice to make sure you were not actually my brother, who is also capable of such deep thought and well composed oration.

I recently had an online discussion with friends of mine on this topic, some of which had their marriages invalidated. They used the argument that because we were persecuted over our religious beliefs, we shouldn't be persecuting others for theirs. I appreciated your analysis of the two. Just a couple points I would like to add.

1. Tom Green was not prosecuted for bigamy, only for the charge of child rape. They were unaware of the union until they looked into his past to see what they might be able to charge him with. They found they could not charge him with bigamy, so they found a law they could prove he broke. Kind of like how they arrested Al Capone for tax fraud.

2. Prop 8 doesn't take away any legal rights from gays except the right to call a gay couple married. They still have civil unions. They still get the state tax break, and they never got the federal tax break because of the Defense of Marriage act, which Obama is still opposed to.

3. The real key here is that use of this argument to say we should be quiet is to say we should have no voice at all because ours was taken away once. This argument would make us a victim now because we were a victim then. If we cannot speak up on this issue because we lost on an issue which on the surface looks similar, we would be allowing others to define where the line is drawn. We have a right to defend marriage. The early Saints didn't march on Washington or paint graffiti on the walls of the courthouse, did they?
The action of the opponents of Prop 8 have shown their own intolerance while they accuse us of the same. I have little doubt this issue will make it to the Supreme Court of the United States. We may be voting on a Federal Constitutional Amendment soon to replace the Defense of Marriage Act whether or not the Supreme Court rules against Prop 8, just so the next case won't have a leg to stand on.

David Carroll

James Carroll said...

David, I wonder how we are related.

Actually, Tom Green was convicted of four counts of bigamy, one count of criminal non-support, and one count of child rape (See Wikipedia article).

Teameaka said...

WOW Interesting comments, and topic.

Curt said...

Eventually, Gay Marriage will be a normal part of society and it will be looked on like all other civil rights issues that preceded it. It will argueably open up the door to make Polygamy legal. What will the LDS Church do then? D&C 132 is still considered scripture and doctrine. The question will inevitebly be asked, "now that polygamy is legal, will the Lord expect it's members to live it?" The Church will have another cliche' answer though to cover it's tracks. The Lord commanded the practice to be stopped and until he tells us otherwise Polygamy will not be practiced by any mainstream member of the church. LDS Inc. is so predictable!

James Carroll said...

It's not hard to predict a doctrinal certainty. The revelation beginning polygamy is scripture, and so is the revelation stopping it. It will require another to re-start it.

David Carroll said...

I would like to point out that polygamy as an eternal principle has NOT ended. My first wife passed away and I took a second. I have two wives. I am a church member in good standing practicing polygamy.

But you are referring to a different PART of the eternal principle, that being multiple living wives. Even when multiple living wives is practiced, there are strict guidelines for its use. And even when the law allows it, the church has not always done so, such as in the days of Jacob, the brother of Nephi. The Nephites were told specifically at that time to have only one wife. The practice MUST be sanctioned by the current church leadership. If and When the Leadership allows it to come back, polygamy will still not be an option for EVERYONE in the church, only those who are worthy of it, as dictated by the church Leadership.

David

James Carroll said...

Yes, that is what I meant, thank you for clarifying.