Federal bigamy and anti-polygamy laws

[Scarecrow]

After considering a recent ruling by a Federal Judge that the Federal DOMA (Defense of Marriage Act) was unconstitutional because it interfered with States rights to define marriage; I started wondering about the Constitutionality of the Federal bigamy and anti-polygamy laws.

It seems obvious to me that the Federal bigamy and anti-polygamy laws dictate to States that they have to follow specific religious doctrinal guidelines when it comes to defining marriage. Clearly the Federal Government was never granted the powers to enact, much less enforce such laws governing marriage, by the Constitution. In fact the bigamy and anti-polygamy laws seem to contradict the spirit of the Constitution which grants the free practice of religion. If marriage isn’t a religious institution then I don’t know what is.

 

[welltan]

Makes sense to me. Why the federal gov. or even states want to be in the marriage business is against the ideas of liberty. From native Americans and into colonial times, marriage was without so much legal entanglement or definition. The government does not need to define marriage as being between one man and one woman. One man and one woman need to define their own relationship. This can be said also for a plural home. People define their own friendships, their own partnerships, define who their favorite sport's team is, decide how much money to donate to different causes, pick their own theology and make decisions about their eternal state. If the government tries to state that marriage is between one man and one woman, the man will still define his own relationship with an additional woman as a collection of other terms such as an affair, live-in, girl-friend, and so on. If the government can define marriage as between one man and one woman they can decide that one man and one woman do not have an approved marriage just as easily as opposing one man and the second. If the government controls the numbers involving marriage then they can decide how many children are yours or you can have and and how to prevent or take control if your family numbers break the rules. The government may decide what percentage of population may be allowed over the age of 70 or 80.

 

[Dr. K.R. Allen]

Great points on both accounts.

The issue I think will on its own eventually make it to the highest level courts. Not that Christians should try and push for that because they should not (see 1 Cor. 6). We do not need the weapons of the sword to promote any Christian faith view but would only like to have the sword to protect people of faith views as they share their faith.

But several legal scholars have said that the anti-polygyny laws would probably not hold up in the court of law today if it were reviewed. The earlier laws against polygyny were basically aimed to suppress a religion by another religion that did not like the religion that supported multiple wives for men. Thus, the actual case law and legislative laws themselves were based on unconstitutional grounds, or at least it seems.

Legal scholar Stephanie Forbes wrote a good article about this. It can be accessed here. http://www.houstonlawreview.org/archive ... forbes.pdf

Her final view was that legally there remains no justifiable reason as to why marriage should be defined as some traditionalists have. I'll quote her conclusion here below (but I urge people in general to read the whole aritcle as it is very helpful).

Dr. K.R. Allen

Stephanie Forbes: Why Just Have One?
The purpose of the American Revolution was to gain freedom
from English control and the tenets of the Church of England.
The colonists did not want to have an official religion and wanted
religion and government to be entirely separate. However, the
existing anti-polygamy laws are an example of a departure from
this proposition.The Mormon people were clearly coerced by the U.S.
Government to abandon one of their religious beliefs—
polygamy.The legislators responsible for passing anti-polygamy
legislation clearly felt threatened by the Mormon
Church and were vehemently opposed to the practice of
polygamy.This legislation would not survive a modern day
Establishment Clause analysis. In effect, such legislation is
“[o]fficial action that targets religious conduct for distinctive
treatment.”The decision reached by the Supreme Court in Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah is particularly
instructive for determining whether a statute is neutral on its
face or in its application.The anti-polygamy laws, when
evaluated under the same analysis used in Lukumi, are clearly
not neutral and were passed directly in response to the Mormon
Church’s public announcement of its intent to practice
polygamy.The U.S. Government interfered with the Mormon
Church by passing numerous anti-polygamy laws, none of which had a secular purpose. The comments by the legislators duringthe congressional debates evidenced their preference for
Christianity over the Mormon faith. This is the exact type of
legislative action that led the Court in Lukumi to strike down the
ordinances as non-neutral and therefore unconstitutional. It is evident from the discussion above that if a religiously motivated law has lost much of its religious “flavor” over time
and has evolved to have a secular purpose, it will survive a
constitutional challenge.However, unlike the Sunday closing
laws, the anti-polygamy laws have yet to experience such an
evolution.Polygamists are not harming society and are trying to live
their lives according to their religious beliefs. While there are
abuses that occur in polygamous relationships, those same
abuses occur in monogamous relationships as well.
There are bad seeds in every aspect of American society, and an entire
religious belief should not be suppressed simply because of a few
bad actors. Mainstream society has recently begun to respect many
unorthodox and alternative lifestyles. Some states have extended
legal rights to homosexuals, unmarried cohabitants, and single
mothers. The line between acceptable and unacceptable
behavior is incredibly blurred. If the anti-polygamy laws are
upheld, the government should be prepared to review the legality
of other alternative lifestyles. There is no secular purpose for
continuing to outlaw polygamy. The United States was founded
on religious freedom and the freedom from interference with
religion. Polygamists should finally be able to fully realize this
freedom.

 

[rubicon]

If marriage isn’t a religious institution then I don’t know what is.

A definition of marriage is required at a legal level.
There are tax laws, divorce laws, and many others that require it to be defined right now.
Maybe someday that will change.
A temporary fix until then may be to seperate the religious and legal aspects.
I'm sure there are other threads on here regarding this.

 

[Shimon]

If the state (in the form of any government) can and did take prayer out of schools claiming it to be a violation of the principle of separation of church and state, it can be only a matter of time before any laws restricting the freedom of American citizens to practice the religious beliefs without state interference are ruled unconstitutional by the courts. Of course that assumes that those same courts have actually read the constitution. But then, the constitutional provisions in this regard were intended to prevent a theocracy or the imposition of a state religion. Our forefathers largely came from a European background that had endured centuries of religious warfare - from the crusades, to the Muslim and Turkish invasions of Europe to the wars between the Catholic and the Protestant states of the 16th and 17th centuries. They did not want the heritage for their new republic. So many have claimed the Name, but He will say in the end, "I know you not."

As believers, we must depend on our best understanding of His Word - not the vagaries of a state that will always try and impose its own agenda.


Dave

 

[Heretic2most]

My personal view on the matter of Federal Laws & marriage is that they need to get out of the business of defining what marriage is one way or another. Marriage is a religious matter and the extent to which the Federal Government has any part in it should be limited to the filing of documentation that verifies an actual marriage exists for the purpose of determining the individuals' right to file Federal Income Taxes as married, separated, etc....

 

[Scarecrow]

“A definition of marriage is required at a legal level.”

I beg to differ. Mary and Joseph went to “be registered”. The government does need to keep records for demographic and taxation purposes, but that does not entitle them to define what is and what is not a marriage. If the government wishes to track individual contracted marriages so be it, but marriage is first and foremost a religious institution and should be defined and regulated based on the religion of the individuals. If two individuals do not have a religious doctrine to follow then the state should regulate their contract as a civil union.