The
Constitution Does Not Permit Polygamy or Same-Sex Marriage
MichNews.com,
March 18, 2005 (Extreme Conservative)
By Michael J. Gaynor
The San Francisco judge who ruled that prohibiting
same-sex marriages is irrational and invoked the California Constitution’s
equal protection clause to permit them is guilty of both judicial activism and
historical ignorance.
Had he studied the case law on polygamy, he might have
developed a greater appreciation for “the sanctity of marriage” and
avoided his grievous error.
The United States Supreme Court was unanimous.
The Constitution does not permit polygamy.
So the Court ruled in Reynolds v. United States, 98 U.S.
145.
In 1879.
George Reynolds had been convicted of bigamy in the then
territory of Utah.
The federal statute under which he was convicted stated:
“Every person having a husband or wife living, who
marries another, whether married or single, in a Territory, or other place
over which the United States have exclusive jurisdiction, is guilty of bigamy,
and shall be punished by a fine of not more than $500, and by imprisonment for
a term of not more than five years....”
The trial court declined to instruct the jury that if
they found that Reynolds had married in pursuance of and conformity with what
he believed at the time to be a religious duty, their verdict should be “not
guilty.”
Instead, the trial court instructed that if Reynolds,
under the influence of a religious belief that it was right, had
“deliberately married a second time, having a first wife living, the want of
consciousness of evil intent—the want of understanding on his part that he
was committing crime—did not excuse him, but the law inexorably, in such
cases, implies criminal intent.”
And added: “I think it not improper, in the discharge
of your duties in this case, that you should consider what are to be the
consequences to the innocent victims of this delusion. As this contest goes
on, they multiply, and there are pure-minded women and there are innocent
children,—innocent in a sense even beyond the degree of the innocence of
childhood itself. These are to be the sufferers; and as jurors fail to do
their duty, and as these cases come up in the Territory, just so do these
victims multiply and spread themselves over the lane.”
The jury found Reynolds guilty.
Reynolds was sentenced to imprisonment at hard labor for
a term of two years and fined $500.
The Supreme Court of the Territory affirmed.
And so did the United States Supreme Court.
Unanimously.
Reynolds’ religious belief or duty defense was
rejected, even though his sincerity was accepted:
“On the trial, [Reynolds] proved that at the time of
his alleged second marriage he was, and for many years before had been, a
member of the Church of Jesus Christ of Latter-Day Saints, commonly called the
Mormon Church, and a believer in its doctrines; that it was an accepted
doctrine of that church ‘that it was the duty of male members of said
church, circumstances permitting, to practise polygamy; . . . that this duty
was enjoined by different books which the members of said church believed to
be to divine origin, and among others the Holy Bible, and also that the
members of the church believed that the practice of polygamy was directly
enjoined upon the male members thereof by the Almighty God, in a revelation to
Joseph Smith, the founder and prophet of said church; that the failing or
refusing to practise polygamy by such male members of said church, when
circumstances would admit, would be punished, and that the penalty for such
failure and refusal would be damnation in the life to come.’ He also proved
‘that he had received permission from the recognized authorities in said
church to enter into polygamous marriage; . . . that Daniel H. Wells, one
having authority in said church to perform the marriage ceremony, married the
said defendant on or about the time the crime is alleged to have been
committed, to some woman by the name of Schofield, and that such marriage
ceremony was performed under and pursuant to the doctrines of said
church.’”
The Court of course acknowledged that the Constitution
prohibits Congress from prohibiting the free exercise of religion:
“Congress cannot pass a law for the government of the
Territories which shall prohibit the free exercise of religion. The first
amendment to the Constitution expressly forbids such legislation. Religious
freedom is guaranteed everywhere throughout the United States, so far as
congressional interference is concerned.”
Then the Court explained that the question presented to
it was “whether the law...under consideration comes within this
prohibition.”
That depended upon what “religion” meant.
WHEN THE FIRST AMENDMENT WAS ADOPTED!
The Court noted that the word “religion” is not
defined in the Constitution.
And then explained what activist judges should, but
don’t, do in deciding constitutional questions:
“We must...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.... “
So the Court carefully reviewed the relevant history:
“Before the adoption of the Constitution, attempts were
made in some of the colonies and States to legislate not only in respect to
the establishment of religion, but in respect to its doctrines and precepts as
well. The people were taxed, against their will, for the support of religion,
and sometimes for the support of particular sects to whose tenets they could
not and did not subscribe. Punishments were prescribed for a failure to attend
upon public worship, and sometimes for entertaining heretical opinions.
“This brought out a determined opposition. Amongst
others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was
widely circulated and signed, and in which he demonstrated ‘that religion,
or the duty we owe the Creator,’ was not within the cognizance of civil
government. At the next session the proposed bill was not only defeated, but
another, ‘for establishing religious freedom,’ drafted by Mr. Jefferson,
was passed. In the preamble of this act religious freedom is defined; and
after a recital ‘that to suffer the civil magistrate to intrude his powers
into the field of opinion, and to restrain the profession or propagation of
principles on supposition of their ill tendency, is a dangerous fallacy which
at once destroys all religious liberty,’ it is declared ‘that it is time
enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and good
order.’ In these two sentences is found the true distinction between what
properly belongs to the church and what to the State.
“In a little more than a year after the passage of this
statute the convention met which prepared the Constitution of the United
States. Of this convention Mr. Jefferson was not a member, he being then
absent as minister to France. As soon as he saw the draft of the Constitution
proposed for adoption, he, in a letter to a friend, expressed his
disappointment at the absence of an express declaration insuring the freedom
of religion (2 Jeff. Works, 355), but was willing to accept it as it was,
trusting that the good sense and honest intentions of the people would bring
about the necessary alterations. 1 Jeff. Works, 79. Five of the States, while
adopting the Constitution, proposed amendments. Three—New Hampshire, New
York, and Virginia—included in one form or another a declaration of
religious freedom in the changes they desired to have made, as did also North
Carolina, where the convention at first declined to ratify the Constitution
until the proposed amendments were acted upon. Accordingly, at the first
session of the first Congress the amendment now under consideration was
proposed with others by Mr. Madison. It met the views of the advocates of
religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an
address to him by a committee of the Danbury Baptist Association, took
occasion to say: ‘Believing with you that religion is a matter which lies
solely between man and his god; that he owes account to none other for his
faith or his worship; that the legislative powers of the government reach
actions only, and not opinions,—I contemplate with sovereign reverence that
act of the whole American people which declared that their legislature should
“make no law respecting an establishment of religion or prohibiting the free
exercise thereof,” thus building a wall of separation between church and
State.’ Coming as this does from an acknowledged leader of the advocates of
the measure, it may be accepted almost as an authoritative declaration of the
scope and effect of the amendment thus secured. Congress was deprived of all
legislative power over mere opinion, but was left free to reach actions which
were in violation of social duties or subversive of good order.”
Then the Court examined the historical attitude toward
polygamy:
“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 By the statute of 1 James I (c. 11), the offence,
if committed in England or Wales, was made punishable in the civil courts, and
the penalty was death. As this statute was limited in its operation to England
and Wales, it was at a very early period re-enacted, generally with some
modifications, in all the colonies. In connection with the case we are now
considering, it is a significant fact that on the 8th of December, 1788, after
the passage of the act establishing religious freedom, and after the
convention of Virginia had recommended as an amendment to the Constitution of
the United States the declaration in a bill of rights that ‘all men have an
equal, natural, and unalienable right to the free exercise of religion,
according to the dictates of conscience,’ the legislature of that State
substantially enacted the statute of James I., death penalty included,
because, as recited in the preamble, ‘it hath been doubted whether bigamy or
poligamy be punishable by the laws of this Commonwealth.’ 12 Hening’s
Stat. 691. From that day to this we think it may safely be said there never
has been a time in any State of the Union when polygamy has not been an
offence against society, cognizable by the civil courts and punishable with
more or less severity.”
And concluded:
“In the face of all this evidence, it is impossible to
believe that the constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of social life.
Marriage, while from its very nature a sacred obligation, is nevertheless, in
most civilized nations, a civil contract, and usually regulated by law. Upon
it society may be said to be built, and out of its fruits spring social
relations and social obligations and duties, with which government is
necessarily required to deal. In fact, according as monogamous or polygamous
marriages are allowed, do we find the principles on which the government of
the people, to a greater or less extent, rests. Professor Lieber says,
polygamy leads to the patriarchal principle, and which, when applied to large
communities, fetters the people in stationary despotism, while that principle
cannot long exist in connection with monogamy. Chancellor Kent observes that
this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An
exceptional colony of polygamists under an exceptional leadership may
sometimes exist for a time without appearing to disturb the social condition
of the people who surround it; but there cannot be a doubt that, unless
restricted by some form of constitution, it is within the legitimate scope of
the power of every civil government to determine whether polygamy or monogamy
shall be the law of social life under its dominion of marriage, just as they
were for testamentary causes and the settlement of the estate of Deceased
persons.
“In our opinion, the statute immediately under
consideration is within the legislative power of Congress. It is
constitutional and valid as prescribing a rule of action for all those
residing in the Territories, and in places over which the United States have
exclusive control. This being so, the only question which remains is, whether
those who make polygamy a part of their religion are excepted from the
operation of the statute. If they are, then those who do not make polygamy a
part of their religious belief may be found guilty and punished, while those
who do, must be acquitted and go free. This would be introducing a new element
into criminal law. Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifices were a necessary part of
religious worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of
her dead husband, would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
“So here, as a law of the organization of society under
the exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? The permit this would be to make the
professed doctrines of religious belief superior to the law of the land, and
in effect to permit every citizen to become a law unto himself. Government
could exist only in name under such circumstances.”
Reynolds’ objection to the trial court’s charge
insofar as it focused on the consequences of polygamy was unavailing as well:
“While every appeal by the court to the passions or the
prejudices of a jury should be promptly rebuked, and while it is the
imperative duty of a reviewing court to take care that wrong is not done in
this way, we see no just cause for complaint in this case. Congress, in 1862
(12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was
done because of the evil consequences that were supposed to flow from plural
marriages. All the court did was to call the attention of the jury to the
peculiar character of the crime for which the accused was on trial, and to
remind them of the duty they had to perform. There was no appeal to the
passions, no instigation of prejudice. Upon the showing made by the accused
himself, he was guilty of a violation of the law under which he had been
indicted: and the effort of the court seems to have been not to withdraw the
minds of the jury from the issue to be tried, but to bring them to it; not to
make them partial, but to keep them impartial.”
That San Francisco judge should have reflected on these
key words:
“Marriage, while from its very nature a sacred
obligation, is nevertheless, in most civilized nations, a civil contract, and
usually regulated by law. Upon it society may be said to be built, and out of
its fruits spring social relations and social obligations and duties, with
which government is necessarily required to deal.”
Society surely has a right to regulate marriage.
And “same-sex marriage” was not considered to be
marriage.
Rather, homosexuality was viewed as criminal by the
Founders and Framers.
Jefferson and the other Founders distinguished between
liberty and license and surely did not conceive of the pursuit of happiness as
an authorization for “gay marriage.”
Look at Jefferson’s writings on sodomy.
Such as Jefferson’s letter to Edmund Pendleton, written
on August 26, 1776.
“The fantastical idea of virtue and the public good
being a sufficient security to the state against the commission of
crimes...was never mine. It is only the sanguinary hue of our penal laws which
I meant to object to. Punishments I know are necessary, and I would provide
them strict and inflexible, but proportioned to the crime. Death might be
inflicted for murder and perhaps for treason, [but I] would take out of the
description of treason all crimes which are not such in their nature. Rape,
buggery, etc., punish by castration. All other crimes by working on high
roads, rivers, gallies, etc., a certain time proportioned to the offence...
Laws thus proportionate and mild should never be dispensed with. Let mercy be
the character of the lawgiver, but let the judge be a mere machine. The
mercies of the law will be dispensed equally and impartially to every
description of men; those of the judge or of the executive power will be the
eccentric impulses of whimsical, capricious designing man.” —Thomas
Jefferson to Edmund Pendleton, 1776. Papers 1:505 (Emphasis added.)
Three years later, Jefferson drafted a bill concerning
Virginia’s criminal law providing that the penalty for sodomy should be
castration. See Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A.
Lipscomb, ed. (Washington, Thomas Jefferson Memorial Association, 1904) Vol.
I, pp.226-27, from Jefferson’s “For Proportioning Crimes and
Punishments.”
The bill read: “Whosoever shall be guilty of rape,
polygamy, or sodomy with a man or woman, shall be punished; if a man, by
castration, a woman, by boring through the cartilage of her nose a hole of one
half inch in diameter at the least.” (Virginia Bill number 64; authored by
Jefferson; 18 June 1779)(Emphasis added.)
When the Constitution was ratified, a majority of the
states (New York, North Carolina, South Carolina, Connecticut, Virginia, Rhode
Island, Massachusetts and New Jersey) provided the death penalty for those who
committed sodomy. All states
prohibited it. [Except Georgia -Bob]
What IS irrational is finding that the Constitution
prohibits criminalizing behavior viewed as criminal by the people who drafted
and ratified the Constitution. [Like helping slaves escape -Bob]
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