Category: Religion


Polygamy: Is the slope really slipping?

Matt Yglesias thinks so. Quoting a NYT piece, he suggests that the slope is slipping — that legalized gay marriage is leading to . . . um, what?

Well, apparently it’s leading to some broader acceptance of the idea of polygamy between consenting adults. Is that really slope slippage?

Yglesias notes the article’s discussion of broader social acceptance for polygamy. In addition, as a number of articles and court cases have pointed out, anti-polygamy laws are not currently enforced for stand-alone violations. In this regard, they currently look a lot like the (now invalid) anti-sodomy laws, which were also, in recent decades, not typically enforced for stand-alone violations but as added offenses in other prosecutions. (See, e.g., Christoper Leslie’s Standing in the Way of Equality, 2001 Wisconsin Law Review 29 (2001).)

However, there are important areas in which the slope is definitely _not_ slipping. In particular, polygamy rights advocates have failed, so far, in attempts to decriminalize polygamy or to secure marriage rights. Recent cases include the 10th Circuit’s dismissal of Bronson v. Swensen (polygamists seeking a marriage license), and the Utah Supreme Court’s holding in State v. Holm (upholding criminal statute, post-Lawrence).

Public opinion may be changing, slowly. Enforcement has certainly changed in recent years. But for the moment, in important places, the slope isn’t slipping at all.

Lilla on “The Great Separation”

Mark Lilla made an impression on me when he made the following point about intellectuals’ discomfort with “ultimate questions:”

It is not that anyone thinks that incivility, promiscuity, drug use, and irresponsibility are good things. But we have become embarrassed to criticize them unless we can couch our objections in the legalist terms of rights, the therapeutic language of self-realization, or the economic jargon of efficiency.

Lilla’s forthcoming book “The Stillborn God: Religion, Politics and the Modern West” is excerpted in the NYT Mag this week. He traces the intellectual history of western conceptions of tolerance and freedom of conscience, exploring the historical contingency of commitments most of us take as second nature.

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Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]


More on Quasi-Official Policies of Not Prosecuting Polygamists

From a fascinating Reuters article:

The attorneys general of Utah and Arizona said in separate interviews they had no intention of prosecuting polygamists unless they commit other crimes such as taking underage brides — a practice authorities said was rampant in a Utah-Arizona border community run by Warren Jeffs before his arrest in August.

“We are not going to go out there and persecute people for their beliefs,” said Arizona Attorney General Terry Goddard.

Adds Utah Attorney General Mark Shurtleff: “We determined six or seven years ago that there was no way we could prosecute 10,000 polygamists and put the kids into foster care. There’s no way that we have the money or the resources to do that.”

I can see why pragmatic considerations would weigh against broad criminal enforcement here. It kinda sounds like the widespread pre-Lawrence environment of mostly non-prosecution of stand-alone violation of anti-sodomy laws. I wonder if that’s a sign of the eventual fate of criminal bigamy laws . . .


Tribal Scholarship

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts and Mormon legal history. Earlier this week, I presented my research to a faculty workshop at William & Mary. (I’ve also put up a copy of my preliminary research on SSRN.) In addition to ordinary trepidation of the untenured presenting research before the future members of the tenure committee, I had an extra level of anxiety as I presented my paper.

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Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper — “Three Generations of Mormon Legal History: A Historiographic Introduction” — is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.


The Secularist Argument for Establishment

unitarian.jpgThose who worry about the Religious Right or who fall over themselves in support of faith-based initiatives ought to consider that the last formally established churches in America were . . . the Unitarians. After Justice Lemuel Shaw’s decision in Stebins v. Jennings, which transferred state-owned churches from Congregationalists to Unitarians, they were functionally the state church of Massachusetts until disestablishment.

Now when people wring their hands about the coming theocracy or call believers to the ramparts to defend America from the forces of godlessness, I doubt that they have in mind an army of Unitarians marching into the breach. Religious stereotypes are dangerous things to deal in, but I can’t divorce Unitarianism in my mind from a vision of well-educated, exquisitely tolerant and liberal Volvo drivers who assiduously contribute to PBS and NPR. In short, it seems to me that progressives have very little to fear from a Unitarian theocracy.

There is a point here that is lost in many of our discussion of church and state. Good eighteenth-century pagans like Hume and Gibbon were supporters of establishment precisely because they saw it as an important way of moderating religious impulses. They wanted well-behaved and tolerant citizens, and they saw the enemies as dissenters like Methodists whose enthusiasm they regarded as unseemly and socially dangerous. England has an established church, as do a number of other northern European countries, yet we do not think of the UK or Europe as being hotbeds of theocracy. (Although to be sure, the treatment of religious minorities by some European states leaves something to be desired from an American point of view.) In short, Hume and Gibbon seem to have been right: establishment had a moderating influence on religion. Indeed, one might even push the argument farther, and argue that establishment was the hand maiden to secularism. Iceland, Finland, Denmark, Sweden, most of the cantons of Switzerland, and Norway all have formally established churches. Yet this is hardly a catalog of the planet’s most religious societies.

In American politics establishment is not a position that anyone can openly avow, and as a result the arguments in its defense have largely slipped out of our political and legal discussions. Somewhat, ironically, however, the argument for establishment should have greater appeal to the enemies of the Religious Right than to its supporters. Indeed, I suspect that in their heart-of-hearts many a glum surveyor of religious politics in America today would prefer a bit of state-sponsored Unitarianism to George W. Bush.


Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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Law, Revelation, and the Power of Interpretation

MormonsInJail.jpgI realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)

His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:

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