QUOTE(entspeak @ Apr 28 2005, 08:42 PM)
QUOTE(Jack22 @ Apr 28 2005, 07:32 PM)
But as my reasoning points out, polyamory is not illegal, and yet, polygamous marriage is illegal.
You are quite right, I apologize for the misunderstanding. However, cases involving polygamy (primarily coming out of Utah) illustrate that the State's interest relates not to discouraging polyamorous behavior, but to:
Now, we're getting somewhere.
But, before analyzing the case you cited, I'd like to point out that it merely itemizes the reasons why
the state does not want to encourage polyamorous behavior as a basis for marriage-- it does not deny
the fact that the state has the power to deny marriage privileges based on behavioral considerations relating to polyamory-- in fact, it proves that states do have this power by specifically itemizing some of the concerns with polyamory that make it an undesirable basis for marriage in the state.
Furthermore, as I pointed out in the other thread, polygamy (polyamorous marriage) is a practice that was at one point considered a valid form of marriage under a portion of US legal tradition-- as a result, there had to be a compelling case against polyamory as a basis for marriage in order to strike the practice down in Utah. In contrast, same-sex marriage is fundamentally different in that the US legal tradition prior to 2001 has never considered same-sex marriage valid, so before overturning a body of law that has been consistently construed in opposition of same-sex marriage, the state must prove a compelling interest in favor
of awarding marriage privileges on the basis of homosexuality-- otherwise, in order for the rule of law to prevail, the consistent status quo
must be upheld.
But even though the burden of proof in this case is clearly not on my side of the debate, I believe a case can be made against behaviors associated with homosexuality that is at least as strong as this case's claims of behaviors typically associated with polyamory that make polygamy and undesirable form of marriage.
From Utah v. Green, (2004):
The State of Utah's interest in regulating marriage has resulted in a network of laws, many of which are premised upon the concept of monogamy. Potter, 760 F.2d at 1070 n.8 (citing several such laws).
Under US legal tradition, monogamy with respect to marriage has been consistently applied to imply heterosexual monogamy, therefore, there is no difference in US law between the word monogamy and the phrase "heterosexual monogamy," so the wording of this statement does not leave room for condoning homosexual monogamy merely by the use of the term "monogamy."
In Potter, the Tenth Circuit found this network itself to evidence a "compelling" state interest in prohibiting bigamous associations. Id. at 1070 ("[T]he State of Utah beyond the declaration of policy and public interest implicit in the prohibition of polygamy under criminal sanction,
Here we have the smoking gun that proves my case-- a "declaration of policy and public interest implicit in the prohibition of polygamy" (polyamorous marriage) "under criminal sanction." The case declares polygamy is
implicitly criminal, but the reasoning also goes beyond being implicitly criminal
as described in the next clause.
has established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.").
Here again, US legal tradition has consistently interpreted law such that "monogamy" and "heterosexual monogamy" are interchangeable terms and not to be construed as "homosexual monogamy."
The fact that the state has "stablished a vast and convoluted network of other laws clearly establishing its compelling state interest" does not negate the first point, that polygamous marriage is implicitly criminal, but as I have stated earlier, it was necessary in Utah to prove a compelling state interest against the legal tradition of polyamorous marriage, whereas it is now necessary for the state to prove a compelling interest in favor of homosexuality in order to overturn the existing legal tradition, partially proven by this very case, that heterosexual monogamy is so much more preferable than other forms so as to preclude them implicitly.
Beyond the State's interest in regulating marriage as an important social unit, or in maintaining its network of laws,
...again going "beyond," meaning that the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" is completely valid, and then going farther...
Utah's bigamy statute serves additional legitimate government ends.
Here, the word "additional legitimate government ends" clearly refers to the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" as a "legitimate end."
Specifically, prohibiting bigamy implicates the State's interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.
The activities here also apply to homosexuality-- the attempt to get "government benefits associated with marital status" and "marriage fraud" that the state doesn't want polyamorous marriages to posess would also apply to homosexual marriages if the state did not want to encourage homosexual, polyamorous and heterosexual marriage equally.
.. that which came before was important, but with regard to the particular case of Utah v. Green
, what follows is even more important...
Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support. See Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 239-45 (2001).(14)
Here, we have a laundy list of what any polyamorist would consider overt bigotry against polyamory-- but since you cited and quoted the case, you are thus allowing into evidence a similar laundry list of what many homosexuals would consider overt bigotry-- the close relationship between homosexuality and AIDs, the high rates of homosexuality among pedophiles ("statutory rape" from the above clause), sexual assault (particularly in prisons), etc. Each of these is accompanied by as much, if not more, statistical evidence as the laundry list against the "polyamory community."
Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.").
It could be argued, admittedly weakly, that the fear of litigation with respect to denying benefits to people in the proverbial "homosexual community" generates a similar chilling effect on the ability of others to defend themselves against what the first clause called "marriage fraud" or benefits on par with marriage even without being married, as well as our laundry list of "bigotry" from the previous clause. Furthermore, with resepect to this clause the "in-the-closet" phenomenon could be considered to apply equally to homosexuality and polygamy.
All of the foregoing interests are legitimate, if not compelling, interests of the State,
.. Here, "All" means "All"-- this entire passage we have been discussing, not just the previous paragraph...
and Utah's bigamy statute is rationally related to the furthering of those interests. We therefore hold that Utah's bigamy statute does not violate the Free Exercise Clause of the First Amendment of the United States Constitution.
And thus, if this ruling is valid, then a state prohibition of same sex marriage also "does not violate the Free Exercise Clause of the First Amendment of the United States Constitution."
Now, on to Entspeak's interpretation...
So the State's compelling interest in making polygamy illegal (and not only that... criminal -- in most states bigamy, and therefore polygamy, is a felony) has not been discourage polyamorous behavior (such an interest is not mentioned in contemporary judicial analysis of the constitutionality of polygamy laws), but to serve other compelling interests. So your argument falls apart.
I believe my analysis of the case you presented clearly invalidates your conclusion. The law you cited in itself very clearly stated its intent was to "discourage polyamorous behavior" and thus, "such an interest" is "mentioned in contemporary judicial analysis of the constitutionality of polygamy laws" (Entspeak's wording), as well as
"to serve other compelling interests."
Likewise, the State would have to show a compelling interest in excluding same-sex couples. It obviously isn't for the same State interests that polygamy is illegal. So, what is it?
As I reasoned at the beginning of this post, it was necessary to argue a compelling interest against polygamy because at one time it had been allowable under a portion of US legal tradition-- because the US legal tradition clearly opposes the idea that homosexual relationships are a legal basis for marriage, the burden of proof shifts, and without providing an unassailable case that homosexual relationships should be encouraged on par with heterosexual relationships, then there is no basis in law to overturn a consistent body of legal tradition.
Also by US legal tradition, when the burden of proof shifts to prove a positive in order to overturn prior legal tradition, the appropriate forum of proof also shifts from the judicial branch to the legislative branch-- if legislative branch becomes convinced that a consistent body of legal tradition is wrong, the legislative branch can pass a new law to correct the problem-- and so long as it doesn't violate higher laws, then the issue has been resolved in the appropriate forum. Therefore, the appropriate forum for attempting to overturn consistent legal tradition against same-sex marriage is the State legislature or constitution.edited to fix some grammar