Are Anti-Polygamy Laws Unconstitutional?

Not that I'd ever really thought about it much, but seeing as the laws on the books prohibiting polygamy are derived from religious-based origins, it would seem to me in the separation of church and state this would somehow be reflected not only in the Constitution, but in current law. And I know that's a bit of a bold statement, but think about it for a sec.

If a person's right to life, liberty and happiness, with freedom of speech AND freedom of religion is guaranteed, then how is a religious restriction constitutional when someone who might want to have more than one husband or wife is part of a religion in which that is a tradition?



And further, why does a lifestyle like that even need to be characterized as a religious issue?

Well, there is an interesting situation going on in Canada with this:

Melissa Leong, National Post; with files from CanWest News Service
Published: Friday, January 13, 2006

A new study commissioned by the federal government recommends that Canada legalize polygamy and change legislation to help women and children living in plural relationships.

The paper by three law professors at Queen's University in Kingston argues that a Charter challenge to Section 293 of the Criminal Code banning polygamy might be successful, said Beverley Baines, one of the authors of the report.

"The polygamy prohibition might be held as unconstitutional," Ms. Baines said in an interview last night. "The most likely Charter [of Rights and Freedoms] challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful would say polygamy is a religious tenet."

So is it really unconstitutional? Here's from one Utah group in the US:

Calling their lives blessed, more than a dozen children and young adults from polygamist families in Utah spoke at a rally, calling for a change in state laws and the right to live the life and religion they choose.

"Because of our beliefs, many of our people have been incarcerated and had their basic human rights stripped of them, namely life, liberty and the pursuit of happiness," said a 19-year-old identified only as Tyler. "I didn't come here today to ask for your permission to live my beliefs. I shouldn't have to."

Polygamy is banned in the Utah Constitution and is a felony offense. The rally was unusual because those who practice polygamy typically try to live under the radar.

And more from the previous article:

She said removing it from the Criminal Code will not force marriage laws to recognize it, but would only remove criminal sanctions.

The report -- commissioned by the Justice Department and Status of Women Canada and written by Ms. Baines, Bita Amani and Ms. Bailey -- also says the criminalization of polygamy does not address the harms that women in polygamous relationships face and suggests Canadian laws be changed to better serve women by providing them spousal support and inheritance rights.

Your thoughts? Just wanted to see if anyone cared to discuss it...

It's an interesting topic and one I've been thinking about lately because the Canadian Courts have enforced support in polygamous marriages, even though it is illegal.

When I stop and actually think about it, almost every objection I have with polygamous marriage could be addressed if it weren't illegal. The abuse of the welfare system (claiming as a single with dependant), inheritance laws, spousal and child support, the practice of marrying off the young girls (14-17) to old men and the smuggling between the US and Canada of the girls.

Polygamous marriage was something I used to have a problem with, but I'm starting to think that it would be more practical and in line with our Charter of Rights if it were made legal.

it would only be unconstitiutional if the right to have multi partners were restricted to men....
think about how society would function when a man has more than one wife, and also, where some of those wives have more than one husband....

it's effects on society would be totally different if it became an accepted practice on a large scale. we would devolve into what would be more similar to clans....it would be more difficult to track down the lineage of children, it would reallly stir up quite a few unhealthy emotions...like jealousy, in men and women.

and well, if they all decided to live together as one happy family......we'd need bigger houses, families would have much more spending power, and well, if some played it right, they could be a threat to the ruling elite!!

so, this is why polygamy isn't acceptable in countries that profess equality....
no one wants to accept the idea of extending the right equally..just to men.

posted by TrueAmerican

“ . . laws on the books prohibiting polygamy are derived from religious-based origins, it would seem to me in the separation of church and state this would somehow be reflected not only in the Constitution . . freedom of religion is guaranteed, then how is a religious restriction constitutional when someone who might want to have more than one husband or wife is part of a religion in which that is a tradition? Your thoughts? wanted to see if anyone cared to discuss it . . “ [Edited by Don W]

1) The State of Utah was required to include a ban on polygamy in its constitution before Utah would be admitted into the Union.

2) A recent case from the Northwest - Washington maybe - about a Native American who claimed smoking peyote was part of his religion, was denied.

The court said the Constitutional “freedom of religion” did not extend to allow a person to violate the general laws applicable to all citizens. Fini.



[edit on 8/20/2006 by donwhite]

Originally posted by Duzey
Polygamous marriage was something I used to have a problem with, but I'm starting to think that it would be more practical and in line with our Charter of Rights if it were made legal.

Or at least decriminalized. Of course, I suppose that's about as good as making it legal, for all intents and purposes. There are some people who seem to do well with it, and some of the benefits claimed in those articles were at first surprising. Cause I'd never really put much thought into the subject of polygamy specifically, until I caught this on the news.

On the other hand, 5 wives and 22 kids, all at once? Jeebus. I don't know what would wear me out worse- the sex or the sex.

Seems most married guys I know have their hands quite full with just one family.

Well from my view, someone who thinks the government is there for the sole purpose to protect natural rights, yes these laws are unconstitutional.

I do not support it, I would never engage in it but I support other peoples rights and government involvment in homes should only go so far.

If the marriage is between a man and a girl underage then it is illegal in all cases, the women should be atleast 17/18 regardless of "parental consent"

Just my $.02

[edit on 8/20/2006 by Rockpuck]

i personaly don't even know rightly where even religion gets the " one" wife thing. i havn't ever read about non-poligimus marriges in the bible. in fact i do see examples of poligimus marriges in it.

personaly for me i havn't even found one wife let onlone more than one.

Originally posted by dawnstar
it would only be unconstitiutional if the right to have multi partners were restricted to men....
think about how society would function when a man has more than one wife, and also, where some of those wives have more than one husband...

And we could also think about a self-contained group, outside of which there may be no other activity. But even in that case, it raises problems. Like how does the disciplining of children take place? And how are chores divided up? And how...lol, never mind. *smacks meeself*

We would devolve into what would be more similar to clans....

Devolve eh? Now that's curious. Doesn't it take a certain evolution from current sociological mindsets to even be considering such a thing? If we devolved, it musta been after that concept was invented. In a sense.

it would be more difficult to track down the lineage of children

Why? Hell, the lineage would be from clan Cavepond or something...

it would reallly stir up quite a few unhealthy emotions...like jealousy, in men and women.

Ahh, now we hit on the button. The button that raises a nuclear arsenal ready at the mere thoughts of such a thing. But for some people it seems these are not big issues. I wonder how they deal with it. Would be an interesting interview.

and well, if they all decided to live together as one happy family...

...we'd need bigger houses, families would have much more spending power, and well, if some played it right, they could be a threat to the ruling elite!!

Bigger houses? Hell, we could have whole subdivisions. Would be kinda cool though to see all the kids out playing on the street together, killer parties, and the neighbors all loving each other again.

so, this is why polygamy isn't acceptable in countries that profess equality....no one wants to accept the idea of extending the right equally..just to men.

That's a pretty heavy hitting comment, dawn. But I suppose that depends on the man, now don't it.

Well I believe it should be legal to a point.

I think there should be a maximum limit of five individuals married
to any one person.
And each person should only be allowed to have 3 kids at the
maximum.


Also, I don't believe the government has any business in the home,
apart from preventing physical and emotional/psychological abuse.

I don't think anything regulating marriage laws is unconstitutional, as it's not a constitutional right to get married. The laws don't really mention religion other than giving the right to execute marriage licences to religious clergy of all kinds, therefore doesn't discriminate based on religion.

[edit on 8/21/2006 by djohnsto77]

Originally posted by iori_komei
Well I believe it should be legal to a point.

I think there should be a maximum limit of five individuals married
to any one person.
And each person should only be allowed to have 3 kids at the
maximum.


Also, I don't believe the government has any business in the home,
apart from preventing physical and emotional/psychological abuse.

Yet you wish to limit how many children one can have? That sounds like alot of government invasion to me.

recognizing polygamous marriages would be unconstitutional unless the government also recognized the marriages between a women and many men. if we did that one, well, we might as well give up on the idea of marriage, especiallly considering the current state of affairs where all of this fornification and adultury is going on anyways without the marriage certificate. all those men out there who are screaming about their parental rights being obliterated so badly now should be cringing at this idea!! since, marriage to a faithful women is the only way that those parental rights can be secured....without spending an arm and a leg for genetic testing on every child she bears. for polygamy to be legal, men should be prepared to give up their parental rights to the children concieved by them and be willing to accept the responsibility for those children that aren't. because I'm telling ya, in this day and age, it won't take long for a group of women to go into the supreme court wanting the same priveledge and the court to consider it as only being fair and equal.

I mean, come on... one women, with five husbands, all bringing in a paycheck. a women can only have so many kids, soo, there won't be the 20 or 30 kids to support, and well, there's the five paychecks that can be used to support the fewer kids.....just the financial prospects are awesome!!!

I hate to ask, but what about inbreeding? In one documentary I saw about polygamous marriages, the husband would marry his own daughter or his niece in some of the cases. They all have to be members of the same church, do they not?

And where would they find partners that are not part of the "family" but of the same religion?

If they are all "related to one another" it could only lead to one thing...it seems.

[edit on 21-8-2006 by ceci2006]

posted by ceci2006

I hate to ask, but what about inbreeding? They all have to be members of the same church, do they not? If they are all "related to one another" it could only lead to one thing . . it seems. [Edited by Don W]

Recalls to mind an old saying in the mountains of Appalachia, “incest is best.” This is one of those taboos that almost all peoples have. For obvious reasons. As in you can’t have 2 women in a kitchen. I believe incest is forbidden in the Hebrew Bible. Those of you with access to a concordance can verify that back to us. Legal incest would be a form of child abuse, it would legitimize the exploitation of the young and immature. It does not have a saving feature that comes quick to my mind. Other than satisfying patriarchal lust.

It would be interesting to investigate this social phenomenon in the aftermath of WW1, in France, Germany, England and Russia. All of those states lost a sizable share of their young men of marrying age - one-third - which must have put some pressures on the women “left behind” as Tim LeHay would put it. How did the Europeans cope with this shortage of manpower? Or is it “men?”

posted by djohnsto77
I don't think regulating marriage laws is unconstitutional, as it's not a constitutional right to get married. The laws don't really mention religion - therefore doesn't discriminate based on religion. [Edited by Don W]

Our constitutional rights change. They can come and go. Just ask AG Gonzales. What you thought you had yesterday can be taken away today. It is security that drives it. It’s all about security. You didn’t know that did you? Well, now you do. There is only one right, security, and there is only one person who can determine that, the president. Now you know what “commander in chief” means. Hmm?

Actually, that crapola aside, the Roe v. Wade case is a good one to review. That case was decided mostly on the right to privacy. The right to be left alone. By that, the court said it meant a government could not interfere with any right, defined or not, unless there was a compelling state interest. The idea of a constitutional right to privacy was bolstered by reading the first 10 amendments - Bill of Rights - and No. 14, Section 1. Each of those amendments restricts the power of both the Federal and states governments to abridge or deny the rights of the individual person. Surely all those rights can be summarized as embodying a right to privacy? See Note 1.

I prefer to think that since the Federal government is one of delegated powers, then by not mentioning marriage it is not a subject for Federal attention by Congress. The Federal courts OTOH, have the obligation to assure that states do not interfere with Federal citizenship rights, as defined in the 14th Amendment. This gives Federal courts jurisdiction where the Congress does not have any. Easy, eh?

Amd. 14, Sct.1: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” See Note 2.


Note 1. The second underlying reason behind Roe was the Constitution did not apply to a fetus. Re-read Section 1 of the 14th Amendment and you will see it refers only to citizens and persons. A fetus is not covered until it is born alive, then it is a person - or citizen - and is covered by the US Con. A misunderstanding of this provision led people into the debate over when does life begin? Wrong question. The right question was when does personhood begin.

Note 2. Observe the first sentence makes an exception to the class of persons who are to be citizens. “All persons born or naturalized in the United States and subject to the jurisdiction thereof . . “ This exception denies citizenship to children born of foreign ambassadors and their staff, who are not “subject to the jurisdiction” of the United States.



[edit on 8/21/2006 by donwhite]

I'm only going to talk about Canadian law and constitutionality, because that's what I know.

There is a reason polygamous marriage hasn't been prosecuted for decades and decades and that's because if anyone is ever charged with it, they will challenge it on the basis of freedom of religion. And they just might win. This is why:

The main reason polygamy is illegal in Canada is because it is in the US. Polygamy laws were enacted in direct response to the Mormons in Utah and the idea that we should outlaw it before they all move to Canada. The law was written exclusively for a specific religious group, and that's discrimination.

The main argument the government of Canada could make with some chance of success is that of gender equality ie: that polygamous marriage is, by nature, detrimental to women. This is the only argument that could be made on a purely secular basis.

Even that could pose a problem for the government because they aren't really supposed to make up new reason for laws when the old reason is found to be in violation of our Charter of Rights. They can do it, but there is a series of legal requirements that must be proven first. We call it the Oakes test and it comes from the case of Her Majesty the Queen vs. Oakes. It's mainly used to judge 'reasonable limitations' of our Charter Rights.

1)Sufficient Importance
The government must show that its objective is sufficiently important to warrant a violation of a right or freedom

2)Proportionality
The government must prove that the violation of the right or freedom is proportionate to its objective. In showing proportionality, the government must prove the following:

a)Rational Connection
The violation must be rationally connected to the objective (it must be necessary to achieve the government’s objective)

b) Minimal Impairment
The violation must minimally impair the right or freedom (the government did not go overboard in achieving its objective)

c)Detriments versus Benefits
The detriments of the violation must not outweigh its benefits (the solution must not be worse than the problem)

www.mapleleafweb.com...

Also, our marriage laws do not recognize polygamous marriage, so it is kind of unnecessary to criminalize plural unions. Especially if we aren't going to prosecute anyone for it.

Ceci,

From what I understand, there is inter-marriage between the various polygamous communities. We have a bit of a problem on the US-Canadian border with underage females being smuggled across for the purposes of polygamy.

I would think that the gene pool is still pretty limited though.

posted by Duzey

Canadian law and constitutionality . . The main reason polygamy is illegal in Canada is because it is in the US. Our polygamy laws were enacted . . we should outlaw it before [polygamist] move to Canada. The main argument in Canada is that polygamous marriage is by nature detrimental to women . . in violation of our Charter of Rights . . in HM the Queen vs. Oakes . . judges 'reasonable limitations' of our Charter Rights . . underage females are smuggled across the US Canada border for the purpose of polygamy. I would think that the gene pool is limited though. [Edited by Don W]

Inheritance. Under English common law of primogeniture, the first born (and surviving) son inherited all the father’s property. Even to the exclusion of the mother and wife. There was a small limitation, the twin rights of dower and curtsey. Dower meant at first the wife got back her dowery. Curtsey was the male equivalent of the female’s dowery. This bare minimum was expanded to include a life estate in the house in which the parties lived. So an ungrateful son could not put his mother out into the cold.

You’ve all heard the story how the legitimacy of the king’s children was so important that there were women appointed to observe the sexual relations between the new queen and the king. And the concomitant observations when the new queen had been represented to be a virgin, on the morning following, to examine the bedding for blood. And sometimes, when the new queen had one of the staff on her side, the chambermaid would secret a small vial of blood just in case.

Incest defeats this important legal concept. One more reason why it is not a good idea.



[edit on 8/21/2006 by donwhite]

Originally posted by Rockpuck

Originally posted by iori_komei
Well I believe it should be legal to a point.
Also, I don't believe the government has any business in the home,
apart from preventing physical and emotional/psychological abuse.

Yet you wish to limit how many children one can have? That sounds like alot of government invasion to me.

Ok, I should have said they have no place in the bedroom.

Ans, if they really wanted to, they could say having ten children
is a kind of abuse to both the parents and the children.
So there ya go.

Originally posted by donwhite
Incest defeats this important legal concept. One more reason why it is not a good idea.

Incest is illegal and therefore really has no bearing on whether polygamy is unconstitutional or not in Canada. The Marriage Act has a whole list of people you are not allowed to marry.

That argument doesn't apply, at least in my country.

PS. I don't think your edit accurately reflects my original post.

[edit on 21-8-2006 by Duzey]

posted by Duzey

That argument doesn't apply, at least in my country. PS. I don't think your edit accurately reflects my original post.

My excuse? Haste makes waste. And mistakes. Sorry about that.

No problem.

If there is anyone on this board who claims to never have made an error, they are lying.

And that's Ms. Duzey to you.