Monday, June 05, 2006

POLYGAMY!?! HOLM Sweet HOLM . . . Sweet HOLM . . . Sweet HOLM

Let me give you another good reason to support President Bush's renewed call for a Marriage Amendment aimed at defining marriage as between one man and one woman. While the President is primarily aiming at undermining legal arguments in favor of same sex marriage, the Marriage Amendment would also undermine renewed legal arguments for polygamy.


You thought it was dead, didn't you? If you have any historical perspective, you probably thought that polygamy died in the late 1800s when (1) the U.S. Supreme Court ruled that polygamy was unconstitutional and (2) the ruling elders in the Church of the Latter-day Saints (Mormons) received new revelation that their previously held doctrine of polygamy was wrong, in order for the Territory of Utah to become a state.

Well, it turns out that polygamy never died, but rather went into hiding, upheld as solid doctrine by fundamentalist Mormons who did not believe that God changed His mind about allowing multiple wives! One of those fundamental Mormon groups came out of the closet in a May 16, 2006, decision by the Utah Supreme Court, "Utah v. Holm."


Rodney Holm, a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (Fundamentalist Mormons) was legally married to Suzie in 1986. Subsequent to that marriage, he participated in a religious marriage ceremony with Wendy. Subsequent to that, he participated in another religious marriage ceremony with Ruth, the sixteen-year-old sister of Suzie. Got all that?


Poor Rodney Holm! He couldn't catch a break.
• He was arrested and charged with bigamy and with unlawful sexual conduct with a sixteen- or seventeen-year old.
• One month before his trial was scheduled in 2003, the U.S. Supreme Court issued its infamous decision in "Lawrence v. Texas," which declared that it was unconstitutional for Texas to criminalize homosexual behavior. Why not argue, Mr. Holm's trial attorney cleverly deduced, that if criminalizing sexual behavior between consenting homosexuals was unconstitutional, then criminalizing sexual behavior in a consenting polygamous relationship was likewise unconstitutional.
• Mr. Holm also argued that since he did not obtain a state marriage license for both Wendy and Ruth, he really did not violate the bigamy statute.

Upon his conviction on both counts, Mr. Holm appealed. The Utah Supreme Court upheld the convictions, ruling that the state constitution specifically prohibits polygamy and that the federal constitution does not protect polygamy.


The Utah case would not even merit a blog posting except for the 37-page dissenting opinion by Chief Justice Christine M. Durham, who wrote that the "Lawrence v. Texas" decision has overturned settled law on matters of consensual sexual relationships between adults.
• "I do not agree that the state can constitutionally criminalize private religiously motivated consensual relationships between adults."
• Chief Justice Durham concluded that the First Amendment Free Exercise Clause is violated when the state criminalizes such a religiously based polygamous relationship.
• Chief Justice Durham lent credence to Mr. Holm's argument that the 1879 U.S. Supreme Court decision in "Reynolds v. U.S.", which held that polygamy was unconstitutional, was "nothing more than a hollow relic of bygone days of fear, prejudice, and Victorian morality." The chief justice noted that the "Reynolds" case was based upon a fear that the "practice of polygamy threatened American democracy." She concluded that those "same fears . . have since been discounted by many as grounded more in bias than in fact."
• Chief Justice Durham compared the social damage of polygamous marriages such as Mr. Holm's marriages to the social damage caused by an unmarried cohabitating couple or by a married man who had a mistress on the side. None of those relationship should be governed by the state since none "can plausibly be said to threaten marriage as a social or legal institution."


The legal arguments raised by Chief Justice Durham are based fully upon the Supreme Court rationale in "Lawrence." If the case is appealed to the Supreme Court, will that court hear the case? With the departure of Justice O'Connor and the arrival of Justices Roberts and Alito, would the Supreme Court shift to the right in favor of one man-one woman marriage, or would the freewheeling, liberal spirit of "Lawrence" be upheld?

A better solution to this continued attack on the sanctity of marriage is the Marriage Amendment. The founding fathers would never have dreamed that such an amendment would be necessary; likewise, thirty-three years ago, when my wife Jan and I were married, we would never have dreamed that such an amendment would be necessary. But it is necessary now. Support the Marriage Amendment by contacting your senator.


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