It isn't obvious to me that celibate religious orders are necessarily "socially dysfunctional".


Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton Hall University School of Law
One Newark Center
Newark, NJ  07102
973-642-8478 (work)
201-259-0896 (cell)
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Selected articles and drafts available at http://ssrn.com/author=1268697

Somebody has to plant the seed so that sanity can happen on this earth. -- Chogyam Trungpa, Rinpoche



From: conlawprof-bounces@list... [mailto:conlawprof-bounces@list...] On Behalf Of Finkelman, Paul <paul.finkelman@alba...>
Sent: Wednesday, July 13, 2011 12:46 AM
To: hamilton02@aol....; rs@robe...; Eric.M.Freedman@hofs...
Cc: conlawprof-bounces@list...; conlawprof@list...
Subject: RE: Challenge to Utah polygamy law

________________________________

I think Marci is probably correct (I don't know the literature all that well) that polygamy is generally dysfunctional and oppresses women.  But arguing that the anti-polygamy laws are right because most places have them is hardly a strong position. Most places prohibit same-sex marriage, but fortunately a few places do not and more places are likely to allow it.  Just because everyone does it, does not make it right.

I do think Marci is wrong about the history surrounding Reynolds.  That case came out of a 30 year attack on the Mormons at the federal level and led to a massive persecution of thousands of LDS members, including the wives who the anti-LDS prosecutors thought were victims.  The details set out in Edwin Firmage and Colin Mangrum's book Zion in the Courts are pretty chilling.  In that very find book, with very careful scholarship, the authors show descibe federal officials dragging women from their beds in the middle of the night in anti-polygamy raids, disrupting families, seizing property, and ultimately the US Gov. taking all the assets of the LDS church.  It also led to a decision, Davis v Beason, in which  the Supreme Court upheld a prosecution for "belief" in polygamy.  These cases are disgraceful, even if one believes that polygamy is wrong as a matter of social policy.

Accepting Marci's policy arguments on why polygamy does not work, does not necessarily lead to the conclusion that it should be prohibited. One could imagine enforcing laws against minors marrying and still allow adults to engage in polygamy.  Since most people will not practice it, it seems unlikely that it would lead (at least in the US) to large numbers of men being unable to find a woman to marry.   Given the huge number of men in jail or who die at a young age, one might even turn Marci's argument on its head, and argue that polygamy is the only way for some women to marry.

Marci's social policy arguments also of course run head on with free exercise arguments.  I can think of lots of religious practices that are socially dysfunctional -- celibate religious orders come to mind in this context -- but that does not mean I would favor criminalizing them for consenting adults.

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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman@alba...<mailto:paul.finkelman@alba...>
www.paulfinkelman.com<http://www.paulfinkelman.com>
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________________________________
From: conlawprof-bounces@list... [conlawprof-bounces@list...] on behalf of hamilton02@aol.... [hamilton02@aol....]
Sent: Tuesday, July 12, 2011 10:30 PM
To: rs@robe...; Eric.M.Freedman@hofs...
Cc: conlawprof@list...; conlawprof-bounces@list...
Subject: Re: Challenge to Utah polygamy law
Thanks to Robert for sharing my previous findlaw columns on the subject.  I represented Tapestry (formerly polygamous wives against polygamy) in the Holm case and stand by my earlier analyses of anti-Utah's polygamy laws.  I completely disagree with Marty that the Holm dissent had the better of the argument.  The well over 120 cases that have upheld the anti-polygamy cases have the better of the argument constitutionally and public policy wise.

This particular case has interesting elements, though:

Coiuld someone clarify the religious beliefs of this particular family that would give them standing to challenge the polygamy laws based on religious persecution?

For anyone who persists in believing that Reynolds somehow upheld a law targeting the LDS--The polygamy laws applicable to Utah were simply following the anti-polygamy laws in place in every state.  US polygamy laws did not start with the LDS at all.

Just so we all stay with the facts--a prosecution of this family was made necessary by this family's decision to put its illegal practices on public display for money, as part of a reality show.  If a DA turned on the TV and there was an ad for a marijuana dealer flaunting his "business," the DA, who might have put marijuana dealers behind heroin dealers in terms of priorities, would be be forced to prosecute. ( If I were the family, I'd be suing the lawyers who gave the green light for the show, not Utah.)  In any event, prosecution of a criminal who has decided to make his or her crimes the focal point of a heavily publicized TV show is not the same as prosecution of an ordinary lawbreaker.  That is a distinction that differentiates this case from every other polygamy prosecution,and justifes the prosecutorial choice to "single out" this family if there is any argument for singling out.

Actually, there is no such thing as "serial polygamy"   When a single spouse divorces a single spouse, they are freed from each other and can then move onto the next co-equal relationship.  Polygamy binds a disproportionate number of women to a single man at the same moment.

Polygamy has been on the decline worldwide because it is an inherently dysfunctional system that requires multiple women to be co-equal to a single man, the abandonment of a certain number of boys to eliminate competition for women, and resort to younger and younger women.  It is also economically impossible to maintain, which is why the polygamous subcultures in the US rely heavily on welfare (and feature undereducated women and children).  State legislatures have tremendous resources to justify the ban.  (Note that they do not have the same factual bases to
refuse same-sex marriage--the two phenomena are not remotely on the same public policy base.)

Marci