President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, "marriage" is now nothing more than a union between any two consenting adults.
So, then, what is the President's position on polygamy? Is it "evolving," as well? If so, why is the number, "two" sacred?
If "consent" between "adults" is the key, what's wrong with consentual polygamy?
I have recently opined, indicating that "marriage" is a "fundamental right" of the American people and, that while not specifically enumerated in the Bill of Rights, that it is protected by the Ninth Amendment. In my earlier discussion, I defined marriage as a consentual union between one man and one woman. I used that definition because that is what people who came to live in the United States prior to the enactment of our Constitution in 1788 understood marriage to be. I now suggest, for reasons explained below, the right to marry -- between a man and a woman -- is also protected by the First Amendment which guarantees the "free exercise" of religion.
But what about people who have religious beliefs that polygamous unions are mandated by their religion? Do they have a right to practice polygamy in the United States, given the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion?"
There was a time in the late 19th century when the Mormons believed that polygamy was mandated by their religion. They argued that the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion" guaranteed that right.
That was the question answered by the U. S. Supreme Court decision in Reynolds v. U. S. (1878). In that case, George Reynolds, a Mormon, was found guilty under a federal statute which prohibited bigamy in the Utah Territory. On appeal to the Supreme Court, he raised the question: "Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?
As you read the excerpts from the Supreme Court's opinion below, notice the importance that the court attaches -- for First Amendment purposes -- to the fact while monogamous marriages were recognized throughout the European countries from which the colonists came, and that polygamy was not. The Reynolds court, therefore, concluded that polygamy was not part of the religious freedom that the First Amendment protected.
"The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.
The precise point of the inquiry is, 'what is the religious freedom which has been guaranteed?'
"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void ... and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical ... courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil, the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage ...."
The Reynolds court, not withstanding that polygamy was a consentual relationship between adults, denied polygamy 1st Amendment protection. So not withstanding the President's "affirmation," where does that leave "same-sex" marriage constitutionally? I raise that question because at the time our Bill of Rights was adopted, as in the case of polygamy, nobody in America seriously claimed that same-sex couples had a right to "marry."
Posted Online: May 17, 2012, 3:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
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