Things To Act
Friday, March 26, 2004
 
Invoking an Anti-First Amendment Legacy to 'Defend' 'Marriage'
It seems I constantly feel like those rushing to defend positions similar to mine often do more harm than good, particularly in the case of marriage. Now The Weekly Standard prints a Maggie Gallagher piece invoking the legacy of Edmunds-Tucker to justify an anti-SSM position. Not bright. Highlights include:

"How long is it before some Islamic leader gets the message that America is not serious about enforcing its marriage norms?"

About negative 40 years?

More fundamentally, "leaving it to the states" will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it--about preferring husbands and wives who can become fathers and mothers. It will further the process of persuading Americans that we don't need a shared marriage culture.

The problem with this argument is that we have already lost the 'shared marriage culture.' Trying to reenshrine it in law by force thus strikes many people, even among those who mourn the loss of the shared culture, as a staggeringly bad idea. Laws rarely change hearts and minds--people, and social institutions, do. As long as anti-SSM advocates try to portray the issue as preserving the status quo, their arguments will fail, because the status quo is not some mythical 'shared marriage culture,' but a much messier, more complex, situation.

Once Gallagher gets to LDS-related issues, though, her argument goes from vacuous to either incoherent or offensive.

"The lengths to which Congress went strike us now as extreme. But without decisive federal intervention, America today would have polygamy in some states and not in others."

Sorry, but a preemptive non-apology doesn't get you off the hook that easily. If the lengths Congress went to were "extreme," then we shouldn't be celebrating them. And if a national definition of marriage is so important to you that you're willing to throw the Constitution out the window to get it, then you should be willing to say so. This disingenuity is distressing--it's somewhat akin to saying 'while shooting abortion doctors is extreme, it does help curtail the practice,' or 'while suicide bombers are extreme, they do call attention to fundamental injustices...' Such moral reasoning disqualifies one from being taken seriously. If the means were unjustifiable, don't pass over the injustice in celebrating the ends. And if you think the means were justifiable, don't be surprised if decent people decline to support your cause.

"In 1862, Congress passed the Morrill Act criminalizing bigamy. Under that law, no married person could "marry any other person, whether single or married, in a Territory of the United States," under penalty of a $500 fine or five years in prison. In 1874, responding to the difficulty of getting convictions in regions where people supported polygamy, Congress passed the Poland Act, transferring plural marriage cases from Mormon-controlled probate courts to the federal system. In 1882, Congress passed the Edmunds Act, which vacated the government in the Utah territory, created a five-man commission to oversee elections, and forbade any polygamist, past or present, to vote. By 1887, half the prison population in Utah territory were people charged with polygamy. That year, Congress passed the Edmunds-Tucker Act, which, partly to facilitate polygamy convictions, allowed wives to testify against husbands in court. By 1890, the Church of the Latter Day Saints threw in the towel, advising its members "to refrain from contracting any marriages forbidden by the law of the land.""

Glossed over in this charming history is the ex post facto nature of the laws passed, the unconstitutional seizure of private property, the mass disenfranchisement of innocent citizens, and the deliberate attempts to 'disestablish' religion and criminalize belief (not just action). And pious appeals to the Supreme Court don't help--within a decade of Reynolds, the Court handed down Plessy. Fundamentally, if you approvingly invoke the legacy of those who put my elderly great-great-grandfather in prison for refusing to divorce his wife and abandon his children, you've blown your chance to earn my respect.

Oh, and memo to all non-LDS writers. If you can't even do enough homework to get the name of the Church right, you demonstrate either appalling incompetence or appalling lack of respect--neither one of which will get you very far.

Leaving the definition of marriage to the states will amount to a repudiation of Congress's judgment in the 19th century that polygamous marriage is unacceptable in our national, common culture.

Sounds like a convincing argument to me to do it. Regardless of what you think of polygamy now, "Congress's judgment in the 19th century" was shameful.

Also weighing in on this article are Nate Oman and the Volokh Conspiracy.

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