Monday, January 10, 2011

Mormon Polygamy on Trial : Day 16 courtroom notes

Unofficial transcript - warning - there are likely many omissions and errors in the recording.

Jan 10, 2010 - Witte (pronounced like woody)

(commenced 10:03) Craig Cameron lawyer for AG Canada: seeks to qualify in marriage, history, family law and religious freedom.

Mr. Wickett from FLDS and BCCLA are not present.

John Witte Jr. -Received his education at Harvard. historical marriage, family law, religious freedom and legal history.

Currently professor of law at Emory law school. Emory law school has 50 faculty and 250 students. Emory is one of top 5 universities in US.

Witte co-founder of religion and law center at emory. teaches graduate courses in criminal law and family law. courses in comparitive religious liberty and the law.

Currently director of the religion and law center at Emory. The center specializes in the area of the religion and law. Issues of religion and human rights, sexuality, etc. Recently work on religion and the pursuit of happiness. Primarily focused on Abrahamic traditions but also attempting to include more information from eastern religions.

What approach does center take on its work. Seeks to be interdisciplinary, international and Inter-religious.

about 22 disciplines are represented.

Looks for comparison and flashpoints between various cultures and religions. Looking at aspects of individual freedom.

Attempt to give an open lectern to any voice that has a valid argument.

Center is non-partisan, non-aligned with any causes, etc...., The center itself is not associated with any individual causes but members can testify as experts in various cases.

Try to forgo any source of funding that expects pre-ordained results. Only want funding that allows for serious research into valid causes. Money will be sent back if benefactor expects results to move towards a specific outcome.

Editor or co-editor of several publication on law and religion. One is on marriage, religion and family. This series of publications is only on the issues of marriage, religion and society. Other publications are on religion and the state.

Received many awards and grants that led to projects under law and religion center. Some are joint venture projects with benefactor providing funds and emory providing scholarship.

Received funding from Pew foundation of 3.2 M$ in yr 2000 to do project on sex, marraige and family in the religions of the book and the other on children. Both projects were designed to sponsor a major interdisciplinary and inter-religious research effort to yeild 20 public forums, workshops, etc. and a major international conference. Out of project produced 32 volumes to date. the child project has same design and produced 24 volumes. each designed to look at the subject from ground up to look at how the tradtions of jewish, muslim and christian faiths compare to what is now known from modern sciences (pscych, sociology, etc).

religion culture and family- recently wrote a book on these issues - shifting models of marriage in the west from sacramental of medieval times, to culminating in the contract of marriage. overview. translated into 5 languages.

Written 180+ book chapters and publications. Tries to write 10 to 15 articles per year and a book per year.

Written extensively on religion, rights and liberties. Religious freedom questions under US constitutional law with comparison to other traditions.

Studies free exercise rights and whether a person’s freedom of thought, conscience and belief require exemptions under state law. recognizes both importance of and limitations to rights and exemptions. Looks at limitations on religious freedom claims that do harm to others and harms to democratic society.

Previous research is linked to the report on polygamy and monogamy in that this question is always present in the study of marriage history. Had not previously studied polygamy systematically.

qualfies as expert in legal history, religious freedom, religion and family law, diadic marriage law and the history of polygamy prohibitions.

Amicus : Professor Witte is not familiar with areas Canadian law. His expertise does not extend to Canadian legal history.

Primary duty is to assist the court and not be an advocate of any position.

testimony starts 10:40

Task included 4 things:

1. history of dyadic marriage in the west - starting at 5 or 6th century BCE in the west

2. look at treatment of polygamy in the west especially at law - why was polygamy specifically singled out against other sexual practices

look at the rise of impediments in the pre-contract phase as an impediment of subsequent engagement or marriage.

look at claims that have been made historically to engage in polygamy regardless of criminal prohibition of the same.

Report was structured in terms of chronology first - then identify major watershed periods where ideas where challenged and in transition.

More than 2500 yr tradition of treating marriage as dyadic relationship between man and woman.

started with rome in 6 Century BCE to 6C CE. Also unearthed biblical material and the early interpretation by church fathers from 2 to 6 century CE. looked at Catholic church justification where sources were taken from roman law.

looked at reformation era where common law was separated from canon law (post henry VIII - Witte reminds us that the English reformation was caused by a dispute over marriage sovereignty) and traces the emergence of prohibition against polygamy into criminal law in 1604.

ALso spent time working through enlightenment philosophers who looked at traditions vs natural law.

looked at the american story - how america perpetuates the history of western teachings on monogamy. also looks at history of those who sought religious exemption of criminal prohibitions against polygamy (mormons and also others).

Professor attempted to summarize to the very nub the concepts of monogamy and polygamy.

What were overall conclusions?

Western tradition has taught for 2500 yrs that marriage is a dyadic union between a man and a woman. in some jurisdictions, extended recently to same sex unions. consistently concluded that polygamy is not a valid union. after 9th century, polygamous unions became a serious capital offense - leading to execution in some cases. Thought that polygamy resulted in serious harms to women, children and society and could not be risked.

In fist section of the report, most important GrK and Roman period writings include a repeated core understanding of marriage that is then rationalized by philosophers - marriage is between man and woman - first by engagement contract and then by marriage contract. most often celebrated by party or celebrations. elaborate economic contracts are often between the engagement and the marriage. these contracts often survive past death or divorce. understood as a public and private institution that is consensual between the man and woman and also between the families. divorce requires a further contract and public acknowledgement.

The goods of marriage for the couple provides mutual friendship, support, love and mutual protection against wandering sexually. protection from assaults and also the only way to produce “legitimate children” and legal inheritances.

also thought to produce public goods because the household provides for the internal welfare and teaching for children. aristotle says man is a political animal but politics begins in the household.

roman marriage law began to formulate towards monogamy before the time of christianity - in the time of caeser augustus - and began to focus on crimes that undercut the goods that marriage provided to the community. singled out were adultery, incest and polygamy. these were un-natural ways of reproducing. Roman law created prohibition against polygamy among Jews, and north africans many yrs before christianity. initially, if parties were polygamous, they could not testify in court, hold military positions, hold political positions, etc. in 9th century, polygamy became a capital crime and was considered such until the 19th century. polygamy considered dangerous to society.

in what ways did greeks see dyadic marriage as useful for the state. saw dyadic structure as the only place were men and women could have equal offices and play equal roles to “complete each other” and to provide role models for children, etc. This balance creates children who can see how mercy and justice, equality and charity can be balanced. Aristotle saw this marriage as the first school of justice.

why are greek and roman thinkers relevant to today? Greeks and romans are forefathers and foremothers of our current democratic state. architects of western organized society. roman legal code is 1000 yrs old and deals with complex legal issues. Putting greek and roman law side by side shows that roman law incorporates concepts from greek philosophy. provides the source for church canon law and western law.

Prior to speaking to biblical foundations, explain to what extent the bible is in line with the greek and roman laws.

Bible is very consistent with greek traditions even though the hebrew bible was not influenced from the greek traditions. they developed independently but track similar teachings. preference towards monogamy are pre-biblical and pre-christian in origin.

the normative push of the biblical text is toward monogamy. starting in genesis, from 6 BCE, teachings are that 2 will become one flesh. Adam is incomplete without a woman. god creates a woman for adam and man becomes complete. therefore a man will leave mother and father and cleave unto his wife. Genesis 2:6 is echoed 6 times in the biblical text. overall, the biblical texts use a running metaphor of marriage as like the relationship between jahweh and his covenant people. It stresses the union of two - not 3 or 4 or 5.

IN new testament, marriage is used as a metaphor of the relationship between Christ and his church.

Problem is that there are about 12 stories of great biblical heroes who participate in polygamy. the church fathers, in his opinion, took the stories of woe within these great households as evidences of the harms from polygamy.

Two of those stories are famous and have been repeated by lawyers up to the 20th century. First is the story of Jacob who wanted to marry Rachel but was tricked and given Leah first. he was then in an incestuous relationship and and polygamous relationship. leah fertile and rachel not. leah lords this over rachel. concubines are then given to jacob to further the conflict. Then gives example of judah who has sex with his daughter in law. reuben has sex with his mother in law. there is sex, intrigue, slavery, violence associated with this story (*I’m pretty sure that this is a fairly good representation of what Witte said - however, there are a few mistakes in the story* for example, the first polygamist mentioned was a son of Adam, not Jacob. He also didn’t mention Abraham himself as the prototype patriarch polygamist, It is also difficult to say how Jacob marrying two sisters constituted incest - however, Isaac was told to marry his first cousin - and there was considerable incest (on the cousin level) in the early Jewish genealogies*)

the second example is from the story of king david. david’s psalms still very popular. david is polygamous and is inflamed in his passions. notwithstanding all his wifes and concubines, he falls for bathsheba. takes bathsheba during mestration - against torah. then david has bathsheba;s husband - uriah - killed. eventually leads to rape, incest, in david’s family and eventually leads to civil war. these stories can be seen as cautionary tales as to how polygamy leads to serious harms - perhaps ultimately violence and civil war.

10:35: the notion that polygamy is a cause of many harms has been seen as the valid reason to prohibit polygamy for more than 15 hundred yrs. Calvin also used these harms as a reference against polygamy.

Taking an argument from 13th century thomas aquinas - weaving philosophical insights with his own observations, makes an argument in a apologetic text against jews and other non-christians. First notes that humans produce fragile, dependent offspring that are dependent for long periods of time on parents support. Second, notes that humans do not have a “rutting season” with a following season of calm unlike other animals. Third, argues that human males must be induced to care for their offspring. females bond to their child naturally through pregnancy and nursing. men can be induced to care children only if they are convinced that they are his own offspring. If there was a unknown helpless child abandoned on the road, a woman would naturally pick it up and care for it but 99 men out of 100 would simply walk by and abandon the child (Witte seems to be paraphrasing something from Aquinas)because of these 3 facts of human sexual nature, humans have produced a system of pair bonding. aquinas allows that same investment and certainty can occur in polgyamous household. however, from natural justice, children are harmed because they do not have enough opportunity to bond with their fathers. their fathers have a long series of children. It also violates the rights of the wife because it violates the womans rights to mutuality and leaves her in a perpetual state of competition with other wives. this become the anchor argument of the enlightenment. the arguments becomes that hte child has the right to be raised by the natural parents that gave it birth, The woman has the natural right to her husband and not to be relegated to the position of slave in her household.

how did the enlightenment thinking differ from christian thinking?

beginning with john locke and others - enlightenment is post christian and sometimes anti christian. seeking by design to create a new school of thought. their arguments are now formed on philosophical grounds and not theological grounds. They seek to develop a philosophcial argumet based on natural law, philosophy, natural justice, etc. Many of them have rejected christianity as a working idium of thought. many were also working on a principle of human rights, etc. they use a differnent methodology but come to the same conclusions that polygamy is a cause of harm to women, children and society.

Justice bauman - does this invariably refer to polygyny rather than other forms of polygamy.

W; yes - they did not have these linguistic refinements available. whether using bigamy or polygamy, were assuming multiple wives for one husband.

Christianity recognized that marriage was monogamous and that is was an institution that had economical, social and sacramental aspects. Christian marraige was greco-roman marraige with a twist - because it had a push towards greater equality for women. in conrinthians, paul states that each has a right to the body of the other. in ephesian, it states that each one has an obligation to care for the body of the other.

Major enlightenment thinkers on the topic of polygamy and why they are significant for our western tradition. to take out a few who speak with authority on common law. First, henry Home - a lord of the scottish high court and a philosopher - offered several critical opinions in family law, marriage and sexuality - that were also on a-religious grounds. Why is polygamy a dangerous institution? gives a list of harms caused by polygyamy - it is bad for children because they do not have resources at their disposal. 25 children produced from 5 men gives more resources than 25 children by 1 man. Polygamy is a patriarchal fraud that renders women as indentured slaves who are in perpetual competition with the other wives. one wife is singled out as favourite and this leads to jealosy, competeition and eventually violence. It is bad for men, because it inflames a mans passion - ineviteably, if a man is allowed to have 2 wives, he will always want to take on a 3rd and 4th and 5th wife. Then the women will retailite by sleeping with other men and this will bring illegitamate children into the household.

Next is david hume - who is anti-christian - says that not one reed of christianity should stand unless it is backed up by other reasons. However strongly supports monogamy and condemns polygamy. it inevitably leads to a bad education for children. Humes was awre of polygamy because of knowledge of the british colonies. Humes states that the man will go to great lengths to confine, isolate and render their wives unattractive to other men to keep them under control.

William haly from cambridge gives a utilitarian justification - on the harms of polygamy - produces competition between the wives, corrupts the natural affection of the husbands, degrades women because they become simply instruments of pleasure for the males. the community gains nothing - while the man gains more children, each woman only has the same number of children as if each one had a single husband. if each women were divided into a single family, each woman would have more resources and children would have better care, support and inheretences.

Jeremy bentham says in regard to polygamy in general, it is not of the least service to mankind. not to either sexes the one that is abused or the one that is abused. the children do not have the same benefit of the attention of their parents. it is also bad for men because their passions are inflamed and once they have an additional wife, they will always desire more. Men’s desires, once unleashed, will not be tamed.

If we want to respect rights, dignity, etc. it is critical to support monogamy and criminalize polygamy.

These enlightentment arguments find their way into commonlaw writings about polygamy. This leaves monogamy as law and polygamy as crime.

Common law draws on a variety of sources including Anglo Saxon laws until the 7th century. after 1066, confirmation of saxon laws with additional of norma laws which came from roman laws. these laws are complemented by a body of canon law from the caltholic church. All of these systems prohibited polygamy. Two complementary systems from the 12th to the 16th century supported the ban on polygamy. after henry the VIII, whose break from the catholic church was related to marraige jurisdicion, marriage became the juristiction of the state alone. Since 1600s, there is a very firm capital crime prohibition against polygamy. When a man held more than one wife- whether bigamy or polygamy - , he could be convicted of a capital crime and put to death. The english common law prohibitions, from 1604 king james courts, were carried into the american colonies. after 1776, when english authority was cast aside, each state independently adopted criminal prohibtions against polygamy or bigamy. Jefferson instituted a comprehensive marraige law that included polygamy as a capital crime.

Regarding rights, responsibilities and obligations of marriage under common law - in 19th century efforts were made to describe marriage in terms that did not include theological canon law. Marriage becomes a status - this is more than a simple contract. Common law jurists go back to same formulations as roman law. Marriage is the union between a man and a woman presumably for life. triggers a set of natural rights and duties. man has duties to wife, wife has duties to husband that are over and above all other relationships. Parents have duties to children. these duties remain after death or divorce. presumption that spouses are required to care for each other first, and their loved ones. Marriage is a status that once acquired it cannot be removed. it is entered into by consent, but once entered into, it’s responsibilities are not negotiable.

Expanding on notion as both a private and public institution- this is an ancient teaching. It depends upon a contract, depends on mutual consent between the parties, private in these respects. However, also public responsiblity in terms of pro-creation, nurture and education for civil life for children, negotiated means of controlling distribution of wealth. This is celebrated by public announcements so that the public could weigh in on the validity of the unions. It is also a warning to all others against sexual advanced by others. society is invested in marriage - involves husband and wife, parents of partners, governments, religious institutions.. Divorce is also regulated - it is a public instition and it is a public decision on whether a marriage is dissolved. this is absolutely essential to society. these laws are essential - we might be inclined towards pair bonding and care for children but we are “wobbly” in these commitments. We need the stability of state law to insure we behave in the way that we should and do not simply follow our natural proviliclivities.

Lock saw this as part of the classic liberal understanding of a liberal society. Marriage is fundamental to the nation state. It performs a layer between the individual and the State. If marriage is not nurtured by the state, you lose the nurture of children, you lose the caring of husband and wife, you lose the means of conveying inheritance and property.

Court reconvenes at 2:02

Mr. Cameron: Can professor Witte comment on what the term conjugal union meant during in the formation of the common law.

Justice Bauman - is this necessary - I asked about the definition of polygamy.

Amicus - this would have been helpful earlier but not possibly now

Justice Bauman - can I get this information from the Brandize brief? - continue-

Cameron: Going back to the formation on the common law, polygamy and bigamy prohibitions go back to the 19th century -

Witte - No - it goes back to the 7th century. then it was continued up until the 19th century where we left off before lunch.

Prior to the Mormons - all of the states after the revolutionary war had to decide if they would adopt the pre-revolutionary laws. They all adopted prohibitions against bigamy universally until the mormons.

These bigamy laws were commonly used when one party to a marriage abandoned their spouse and went to another state. Or they were used when one party went overseas abandoning their spouse. If they were found-out, they were prosecuted and sent back.

Couples who lived together without legal marriage were charged with fornication, adultery or prostitution. Common-law marriages became a defense to these charges when couples were charged with these offenses would claim that they thought their previous marriage was dissolved - spouse died for example - and they had been living together as if married in this belief.

Congress passed anti-polygamy laws because they had jusistiction over the territories that were not yet states. After the Mormons announced their practice and preaching of polygamy, they determined that a law was required over the territories that was consistent with the laws that were over the states.

Can you comment on the rhetoric in the anti-polygamy laws?

There was ugly rhetoric on both sides of the debate. One must be aware of the context of the day. This was during the civil war, it was during the women’s property movement, this was during slavery, this was during the time when the native americans were being “reservated”. Many of the laws of the day used ugly rhetoric of this nature.

Concerns were related to the exploitation of women, the priviliging of the rich men over men who did not have capital, exploitation of women in the household - favoring of some and discrimination against others. concerns about coercion of the young, especially young women, and exposing children to violence and stresses in the household.

In speaking to common-law prohibitions on polygamy and the mormon challenge. Because of the distinctive placement of mormons in the 19th century, congress put in place its own laws for polygamy. when these laws were resisted, additional laws were put into place. in 1887, congress passed a law after armed conflict between mormon officials and federal marshalls, additional laws were put into place that confiscated the property of the mormon church until polygamy was abolished. after 1886, the mormon prophet, wilford woodruff received a new revelation that prohibited polygamy. After this, a small group of fundamentalist mormons have broken away from the main church and continued to practice polygamy. (*I know I did not get all of Witte’s own words recorded properly transcription, but it should be noted that he made several objective and verifiable factual errors in his narrative on the history Mormon polygamy - this is consistent with some of his later confusion on the subject. For anyone interested in his level of misunderstanding, the official transcript should be out in a few days.*).

Relating to the Green case (1980?s), a fundamentalist mormon was married to 9 wives, two of them under the age of consent. Some of the girls were under the age of 13. Green attempted to use the claim that the polygamy law violated his constitutional right to religious freedom. The Utah supreme court decision stated that whoever violated the anti-polygamy statute for religious or for secular reasons is liable for prosecution. The polygamy law serves the state’s rights to protect the vulnerable - in this case women and children. The religious freedom objection is not sufficient to balance the prevailing harms.

Judge Bauman comments that it is interesting that the Utah supreme court took such a short time to look at this item that we are taking months to discuss.

Witte: there are 4 sets of harms that are consistently identified with polygamy.
1)harms against women
-vulnerable women - orphans, etc are subject to stat. rape. arranged marriage, etc
-commodification of women - women are sold into marriage, women fathered into polygamous homes
-isolation of women - confining them to their homes, confining to small communities, women are bound in their homes - sometimes physically and sometimes through impoverishing them into bondage in the homes
-enslavement of some women and deification of other - jealously, scheming, etc
-objectification of women - they become vessels of procreation without the long term meaningful relationships
-impoverishment of women - women are not given opportunity or incentive to bring in their own resource. the spreading of one pot over too many women and children. Problems with legacy - post death provision is inadequate because the estate must be divided between many heirs.
-polygamy betrays fundamental ideals of companionship, women are unequal to each other and to their husbands. in modern language, polygamy offends the dignity of women

harms against children
Vulnerable to the years of discord and violence in the marital home. this is due to the inevitable violence and jealousy, intrigue and strife in the homes. Like in king davids household, these patterns frequently repeat
-harm to the development of democratic citizenship abilities. A child with a mother who is oppressed or virtually enslaved cannot develop these skills
-economic harms because of smaller child support
-harms the natural rights of the child

harms against men
One harm is often repeated is that richer, older men take multiple wives even if they are inferior in integrity or moral qualities, etc.
-polygamy causes the austracism of younger men
induces in them a false appetite in patriarchy, becoming a law unto themselves
-polygamy inflames the lusts of men - he is never satisfied with a second wife, he will always want more
-deprives a man of the bond of fellowship of mutual love. a man and woman should find their “other half”. refers to greek ideals (he does not go so far as to call soul mates - but this is certainly the context). Men in plyg rlationships are precluded from this benefit they are degraded because they can not find their other “half”.

4) harms against society
forms of violence, stat rape, sex assault, assault, are consequence of polygamy in society
polygamy has a second harm because it produces impoverished women, lacking opportunity to leave home, in post divorce or death women cannot cope independently. Men leave modest legacy and have limited resources for alimony and child support and this leaves women and children as a burden on society. Society often has to pay through welfare, etc.

Cross-examination: Only from Amicus (starts at 2:40)

On page 11 of report: paragraph 29 speaks of prohibition of polygamy - in 1604, parliament declared polygamy a capitol crime punishable by secular courts alone. To identify these laws- (hands out copies of the act of 1604) is this the law that you are speaking of?

W: yes - i believe it is.

A; Hands out the 1828 version of the law - is this the version you are speaking of

W: yes - i believe it is

A: a further consolidation was made in 1861 (hands out copies)
W: it is the same law

A: Law is repealed by the 1925 and 1967 legal provisions

W: for the 1925 repeal, it is my understanding that this only removed the statutory punishments. I don’t know what happened in the 1967 revisions.

A: Would France and the laws of France be considered the western legal tradition?
W: yes, france would be considered in this tradition

A: Would Belgium, france, luxemborgh be considered western
W: yes - all western european countries are part of this tradition. prior to the protestant reformation, they were all subject to canon law. After this period, i focused on england only. I do not claim to be able to speak about the divergence of laws of the continent.

A: In the laws of the continent, the definition is that one cannot enter into a marriage prior to the dissolution of the first.
W: yes, this would be a violation in the pre-contract phase of a marriage. It is a secular equivalent of the polygamy law.

A: are you familiar with the case of Hyde and Hyde in england. - you reference it in your report.
W: This is a case of where a mormon case trickled into an english court.

A: Are you familiar with this case?
W: I have not read the case recently. I did not cite the case elsewhere.

A: To summarize the opinion of the case, from the probate and divorce of England, the case involved a mormon couple married in Utah. Husband left the faith and went back to england. His wife did not. In england, he attempted to dissolve the marriage in an english court so he could re-marry. the english court did not recognize the husband’s case. The marriage was not considered valid because it was contracted in a state where polygamy was considered legal. The decision stated that the court only dealt with Christian marriage.

W; argued that something had to be wrong - polygamy was always against the law in the US territories. Witte challenged the amicus lawyer that something was wrong - confused or in error. Amicus stated that he was just reading from the decision. Witte objected again.

Finally Justice Bauman intervened that the English Hyde v Hyde case was from 1856. Witte accepted this and did not comment further.

A: marriage is more than a contract - it also creates a specialized status in all christian nations. it is of common acceptance on a universal basis and in christendom it is considered as being between one man and one woman. Would you consider this to be the standard statement on the definition of marriage until recently in canada?

W: Do not have ability to speak on laws of canada. however, this is identical to language used in a US supreme court case. this is kind of language is frequently used.

A: did you not testify on a supreme court case in ontario on same-sex marriage?
W: yes

A: going to court transcript - “when i refer to the west.... it is my understanding that these laws go back to canon law. when i refer to canon law, i am referring to christian law... divided into RC and protestant .... canon law dominated western legal understanding ... “ are these statements true?

W yes

A: In the 2005 transcript from the Supreme court of Canada case on same-sex marriage, you described the legal roots of marriage, development of marriage in christian tradition, early christian thought on marriage , explained how 19th century american law was influenced by protestant views of marriage. is this not what you are doing here?

W; yes

A: is not the western christian tradition informed by roman and greek law together with enlightenment philosophies.
W: yes

A: Quoting something by Witte that goes something like “ neither my scholarship or this document is a theological definition. however, it is necessary to examine religion and law considering the overwhelming influence of religion on marriage law.” is that true
W: yes

A: regarding the halperin case (same sex marraige case in ontario from 2005) - from the decision Witte gave the history of the framework of marriage in north america and the west - he sets marriage as the framework for procreation and being between two sexes.That is only reference to Witte’s work in the decision - do you know of any others.

W: no - i have not read the decision

A; from the decision, on page 22 - uses the reference from the Hyde v Hyde case. discusses how “this came at a time when the society was homogenous in shared christian values. this is no longer the case”. This is part of the decision of the supreme court of canada in the same-sex marriage case.

W: have you spoken about polygamy the past. given a radio interview with a ? adrea ??lucene?

A; not academically - but once

a; goes to emory law website information -
w; i have not seen this

a; is this your webpage?
w; yes - i will accept it is

a; quotes reference stating how polygamy is not legal but it may be in the future.
w; i have not seen this - not being evasive - just haven’t seen it

a; you will see that this is a 2008 Q and A interview - Q: you have been following the case about the raid in texas. do any of the legal issues there concern polygamy? will there be any charges on the basis of polygamy “ A: (from Witte) i doubt it - however, i suspect that the charges will largely be on abuse of women, underage marriage, child abuse, etc. Does this sound familiar?

w: yes - I could have said that

a; reading from Witte’s document “there has long been documentation of 30000 mormon fundamentalist and now there are muslim communities as well. rarely are these laws prosecuted because of the constitutional freedom of religion questions that it will undoubtedly raise. “ (or something like that...) Did you say that?
w: generally agrees it is possible

a; reading from interview “the rational used to be from a biblical basis ... it is harder to press that case today given the first amendment prohibition against the promotion of religion.” Did you say this?
w:yes - or at least it sounds familiar.

a: regarding reynolds decision - and considering other marriage laws in the USA - Were not inter-racial marriages illegal in many states?
b: yes

a; misagenation law struck down in 1886 and reynolds case from 1879. was not adultery also on the criminal code? and fornication on the criminal statute books? but you do not speak to these issues in your report

w: i do speak about adultery because of harms caused to women and children. there are also harms caused by no-fault divorce. these harms are very similar to those caused by polygamy.

a sodomy was also illegal in most states?
w; yes until lawrence case in texas

a; from texas of statute, laws against sodomy were deemed unconstitutional because it violated other statutes. in the lawrence case, the majority held that - from the Baur’s case - that because a state’s governing majority has held something is morally wrong does not mean that it should be illegal. Justice Scalia dissented - “the texas statutes seeks to further? or express? the moral values of the texas majority” from majority decision states “no legitimate state interest should violate freedom of the individual in these matters .. end of moral laws... “

A: did you cite the lawrence case.

w; no - sodomy is now considered to be a victimless crime, polygamy has victims - the women and the children. the victims are women, children, men and the state. it is now understood that same sex couples receive many of the same goods as heterosexual couples. it is still a dyadic marriage. with new forms of reproductive technology - children can even be born to same sex couples. putting sodomy aside, which some consider immoral - or morally repugnant.

moral repugnance is a legal term - mala in se - something bad and in and of itself - something grossly unnatural. Now the umbrella term for something like polygamy - or incest or bestiality. these things are the cause of over-riding harms.

a: turning to same sex marriage debates - in halperin case - and appreciate it has shifted - AG canada was, at that time, seeking to uphold the traditional definition of marriage as between one man and one woman - Canada now embraces same sex marriage. in the usa, this debate rages on. Is this true.

w; yes this is changing state by state. 38 states now have prohibitions against same-sex marriage.

a; from a online article by witte - do you accept it is your article? \
w; yes

a; quoting from Witte’s article; “states have reduced marraige to a individual sexual contract between individuals. states have allowed parties to define their own status and obligations. criminal prosecutations for adultery, fornication, etc. have long ceased. Many states are hard pressed to resist the next logical step to same sex marriage. Is this true?

w; yes -

w; as social science literature has demonstrated, today's easy-in and easy out form of marriage (from no-fault divorce, lump sum payments, etc) has led to the feminization of poverty.


No comments: