On Jul 13, 2011, at 2:24 AM, Marty Lederman wrote:
> Marci adds an important point: "Polygamy binds a disproportionate number of women to a single man at the same moment." It is this sense of "bindingness," I suspect, that is at the heart of most of what troubles us about these cases. But as far as I know, the women are not "bound" to the men in any legal sense under Utah law -- a woman could leave the relationship tomorrow, and there could be no breach of contract claim, or any divorce consequences. (RIght?)
> What binds the women with any real force is the fact that there will be consequences within the church if one of the wives were to abandon the relationship.
> That's hardly trivial -- such religious consequences obviously have a profound effect on behavior, as they do for many of us when we make decisions about marriage, childrearing, etc.
> Nevertheless, for the state to attach criminal culpability to the fact of such religious consequences is certainly singling out religion for specific sanction, which should thereby trigger the sort of heightened scrutiny we see in Lukumi.
> Perhaps this is the rare sanction against religion that should survive such scrutiny -- perhaps Utah, for example, should be able to forbid the church itself from attaching any religious consequences to the fact of the multiple religious marriages. (Would such a law be materially different from this one?)
> But it appears to me that that is where our legal attention should be -- on the question of what special showing a state must make in order to take the extraordinary step of singling out the conferral of a religious status for condemnation and criminal penalty.
This comes close to defining a "cult," an organization having an ideology which, typically, inculcates its doctrine to novices and perpetuates it among members by (a) isolating them (to keep them ignorant of competing voices and to avoid dissidence), and (b) by brooking no dissent, on pain of excommunication, shunning, disfellowship, and worse. Of course this almost describes boot camp in the Marines or seminary among some religious groups regarded as mainstream.
Who should be punished in the case of an antisocial cult?
The man, the woman, the organization, or some combination of the three?
Decades ago some young people would run off to join various cults and their parents would 'kidnap' them out of it, or try, only to find themselves prosecuted criminally in some instances, not always successfully. Feelings ran high.
I seem to recall the Branch Davidians of Waco, Texas, and the U.S. A-G sending in the tanks, killing not only the adults, but the children, as well, in the resulting fire. Add the A-G to the list of potential culprits. She thought child abuse was occurring. Great crimes are committed in the name of protecting children.
People who follow charismatic leaders such as David Koresh (of the Waco group) thinking them to be the Messiah seem to be at particular risk of things going fatally haywire; see James Jones; Jonestown, Guiana; and drinking the Kool-ade.
Yet other groups think their leader the Messiah and risk only disappointment when this turns out not to be the case.
Then there are the end of the world folks...
Are there certain beliefs which are the hallmark of the need for governmental intervention to protect followers by clamping down or disbanding the organization?
There may well be if the lessons of Waco and Jonestown are not to be lost. The shootout at the airport in Guiana that killed the investigating Congressman Leo McCarthy (?) and severely wounded his aide, Jackie Speier, now a California senator or assemblywoman, illustrate the significance of the problem of dealing with certain organizations.
I'm not sure that we do it well.
See U.S. v. Dennis (1951) re the Smith Act ban on membership in CPUSA, the right of association, expression, and advocacy of certain ideas believed to be criminal, not overlooking Brandenburg (1969).