p. 188, Note 5 Prof. Irwin Altman also wrote about his empirical study of modern
polygamists in Husbands and Wives in Contemporary Polygamy, 8 J. L. & Fam. Stud.
389 (2006). The general conclusions of the research include:
First, plural family life is complex, often stressful, and requires a unique
balancing of husband-wife dyadic relationships with communal relationships
among wives. Almost every facet involves challenges of coping simultaneously
with the twin issues of how to manage each husband-wife dyadic marriage in the
context of trying to achieve a reasonable set of communal relationships between
wives. This dialectic tension appears in every phase of their lives--from the
process of deciding to bring a new wife into a family, to courtship and the entry of
a new wife into a family, to managing money, celebrating holidays and family
occasions, to the rotation of husbands among their wives, managing homes, and
the like.
Working through the dyadic-communal dialectic is all the more
challenging because, as noted earlier, many participants are converts and have
had little prior experience with plural family life. And the fundamentalist culture
itself has not developed firm norms about how to live in plural families. As a
result, plural family members often struggle to find their way, develop family
specific solutions, and experiment as they attempt to develop a viable lifestyle that
is compatible with their religious values.
Second, some families cope successfully with the dyadic-communal; others
do not. Some relationships within families are positive; others are not. And plural
families change in how they cope with their circumstances as their lives move into
new stages. Thus they are as varied in their day-to-day lives as monogamous
families, although they face some unique and different challenges.
Third, plural families and fundamentalist groups are here to stay. They
are growing by virtue of internal birth rate and by conversions. They hold firmly
to their religious beliefs, desire to be “understood” by the world, and are likely to
hold to their views and lifestyles into the foreseeable future, despite societal
rejection and prosecutions for plural marriages and other crimes.
The capstone theme of our research is that contemporary polygamous
families and their participants display a great variety of profiles in managing
their day-to-day lives and interpersonal relationships. They vary considerably in
how successful they are in their relationships, exhibit diversity in their coping
mechanisms and lifestyles, and continually struggle to maintain viable
relationships between husband and wives and between wives. In this respect, they
are similar to monogamous families who also do not exhibit complete uniformity
in lifestyle.
Yet many critics of polygamous family relationships portray or think about
them as identical in certain qualities, especially negative ones. This pattern of
stereotyping was evident in nineteenth century writings and legal opinions, as
shown by Talbot (2006) in this symposium. Thus, nineteenth century observers
described polygamy among Mormons as despotic, akin to “uncivilized” Asiatic
and African cultures, abusive to women and children, contrary to Christianity,
barbaric, and a form of prostitution, to name a few depictions (Talbot, 2006).
Some of these and other stereotypes and caricatures are still used today, with
polygamous men labeled as selfish, controlling, and exploitive of women.
Common perceptions of polygamist communities are that all or many young girls
marry old men; that women in plural families are hateful and jealous of one
another, with no recourse to leaving bad marriages; and that young boys are
being thrown out of communities in large numbers. As with many stereotypes,
such qualities are applied to whole populations, are often exaggerations, and are
based on a limited numbers of cases. Yet these stereotypes serve to simplify and
distort perceptions of others, often of those with whom we have had limited
contacts. Such stereotypes are common in portraying ethnic and national groups,
and are rampant in times of conflict and war when describing one's enemy.
Although our research confirms individual cases consistent with negative
stereotypes in contemporary plural families, the major theme of our findings is
that diversity and variation of differences abound in plural family life, and that
traditional stereotypes do not apply across the board. In much the same way that
one can readily accept the idea that monogamous relationships in contemporary
society vary widely in their qualities, so it is that our data reveal the same pattern
in polygamous families.
Id. at 391-93.
The new TV series, Big Love, http://www.hbo.com/biglove/, is a fictionalized
account of modern polygamous life.
p. 189, Note 6 Shayna M. Sigman, Everything Lawyers Know About Polygamy is Wrong,
16 Cornell J. L. & Pol’y 101 (2006), reviews the history of the nineteenth century
Mormon experiment with polygamy, efforts to enforcement anti-polygamy laws in Utah
during the 1950s and the practice of polygamy in that state today, as well as the various
theories about why polygamy is practiced. Her analysis includes two potential harms that
are not included in classic discussions – the danger that young girls will be forced into
polygamous marriages by their families and that adolescent boys and young men will be
forced out of the communities and left essentially homeless because they are “surplus.”
The boys are excommunicated on flimsy grounds, and their families are prohibited from
contacting them, with the result that they are cut off from all financial and emotional
support. Id. at 178-184.
Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter
Day Saints, the group living in Hilldale and Colorado City, was charged with rape for
allegedly helping to arrange a forced marriage between a 19-year-old male member of
the group to his 14-year-old cousin. AP, Polygamist Accused in Illegal Marriages (NY
Times, Nov. 20, 2006). News stories about the trial are collected at http://warren-jeffsnews.newslib.com/.
p. 192, Notes and Questions following State v. Sharon H A couple who had been fatherin-law and daughter-in-law to each other before they both divorced were prevented from
marrying by the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of
Relationship) Act 1986. In the European Court of Human Rights they challenged the
law, claiming that it violated their rights under Article 12 of the European Convention for
the Protection of Human Rights. The court held that the Marriage Act aimed to prevent
sexual rivalry between parents and children and to prevent harm to any minor children
who might be adversely affected by such relationships. However, since neither the
behavior of engaging in such relationships or cohabitating with a child was criminalized,
the court held that the Marriage Act did not have a rational relationship to its stated
objective. Ruth Gaffney-Rhys, The Law Relating to Affinity After B and L v UK, Family
Law, 955-57 (2005).
p. 206, Notes and Questions following Goodridge Under Massachusetts law, a proposed
amendment to the state constitution must be approved by the legislature in two
consecutive sessions before it can be put on the ballot for a statewide vote. In June 2007
the Massachusetts legislature defeated a proposed constitutional amendment that would
ban same-sex marriage, making it impossible for the issue to appear on the ballot in
November 2008. The next election at which the topic could be on the ballot will be in
2012. Frank Phillips, Legislators Vote to Defeat Same-Sex Marriage Ban, Boston Globe,
June 14, 2007.
Massachusetts enacted the Uniform Marriage Evasion Act in 1913, including a provision
that prohibits parties who reside in another state and intend to live there from entering
into a marriage in Massachusetts if they could not enter into the marriage in their home
state. In Cote-Whitacre v. Dep’t of Pub. Health, 844 N.E.2d 623 (Mass. 2006),
nonresident same-sex couples and municipal clerks claimed that the statute violates the
due process and equal protection clauses of the Massachusetts constitution and the
privileges and immunities clause of the federal constitution. The trial court denied
plaintiffs’ motions for preliminary injunctions, the Massachusetts Supreme Judicial Court
affirmed in a one-paragraph unsigned opinion. The members of the majority wrote three
separate opinions, and one justice dissented, relying on Goodridge. The members of the
majority agreed that the law serves the state’s interest in protecting the marital
relationship and the integrity of its laws, as well as comity among the states. The justices
disagreed about how to determine whether a state, in fact, bars same sex marriages.
State appellate courts in New York, Washington, New Jersey, and Indiana have rejected
claims that denying same-sex couples access to marriage violates their state constitutions,
and litigation is pending before the Cherokee Nation’s high court regarding the validity
of a same-sex marriage entered into before the tribal council enacted (not retroactive)
legislation limiting marriage to opposite-sex couples.
In Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), the New York Court of
Appeals held that limiting marriage to opposite-sex couples does not violate the due
process and equal protection clauses of the state constitution. Using a minimum rational
basis test, the court held that the restriction was sufficiently closely related to two state
goals related to promoting children’s interests. The court said:
First, the Legislature could rationally decide that, for the welfare of children, it is
more important to promote stability, and to avoid instability, in opposite-sex than
in same-sex relationships. Heterosexual intercourse has a natural tendency to lead
to the birth of children; homosexual intercourse does not. Despite the advances of
science, it remains true that the vast majority of children are born as a result of a
sexual relationship between a man and a woman, and the Legislature could find
that this will continue to be true. The Legislature could also find that such
relationships are all too often casual or temporary. It could find that an important
function of marriage is to create more stability and permanence in the
relationships that cause children to be born. It thus could choose to offer an
inducement-in the form of marriage and its attendant benefits-to opposite-sex
couples who make a solemn, long-term commitment to each other.
The Legislature could find that this rationale for marriage does not apply
with comparable force to same-sex couples. These couples can become parents by
adoption, or by artificial insemination or other technological marvels, but they do
not become parents as a result of accident or impulse. The Legislature could find
that unstable relationships between people of the opposite sex present a greater
danger that children will be born into or grow up in unstable homes than is the
case with same-sex couples, and thus that promoting stability in opposite-sex
relationships will help children more. This is one reason why the Legislature
could rationally offer the benefits of marriage to opposite-sex couples only.
There is a second reason: The Legislature could rationally believe that it is
better, other things being equal, for children to grow up with both a mother and a
father. Intuition and experience suggest that a child benefits from having before
his or her eyes, every day, living models of what both a man and a woman are
like. It is obvious that there are exceptions to this general rule-some children who
never know their fathers, or their mothers, do far better than some who grow up
with parents of both sexes-but the Legislature could find that the general rule will
usually hold.
Plaintiffs, and amici supporting them, argue that the proposition asserted is
simply untrue: that a home with two parents of different sexes has no advantage,
from the point of view of raising children, over a home with two parents of the
same sex. Perhaps they are right, but the Legislature could rationally think
otherwise.
To support their argument, plaintiffs and amici supporting them refer to
social science literature reporting studies of same-sex parents and their children.
Some opponents of same-sex marriage criticize these studies, but we need not
consider the criticism, for the studies on their face do not establish beyond doubt
that children fare equally well in same-sex and opposite-sex households. What
they show, at most, is that rather limited observation has detected no marked
differences. More definitive results could hardly be expected, for until recently
few children have been raised in same-sex households, and there has not been
enough time to study the long-term results of such child-rearing.
Plaintiffs seem to assume that they have demonstrated the irrationality of
the view that opposite-sex marriages offer advantages to children by showing
there is no scientific evidence to support it. Even assuming no such evidence
exists, this reasoning is flawed. In the absence of conclusive scientific evidence,
the Legislature could rationally proceed on the common-sense premise that
children will do best with a mother and father in the home. And a legislature
proceeding on that premise could rationally decide to offer a special inducement,
the legal recognition of marriage, to encourage the formation of opposite-sex
households.
In sum, there are rational grounds on which the Legislature could choose
to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us
that this long-accepted restriction is a wholly irrational one, based solely on
ignorance and prejudice against homosexuals. This is the question on which these
cases turn. If we were convinced that the restriction plaintiffs attack were founded
on nothing but prejudice-if we agreed with the plaintiffs that it is comparable to
the restriction in Loving v. Virginia (388 U.S. 1 [1967]), a prohibition on
interracial marriage that was plainly “designed to maintain White Supremacy” we
would hold it invalid, no matter how long its history. As the dissent points out, a
long and shameful history of racism lay behind the kind of statute invalidated in
Loving.
But the historical background of Loving is different from the history
underlying this case. Racism has been recognized for centuries – at first by a few
people and later by many more – as a revolting moral evil. This country fought a
civil war to eliminate racism's worst manifestation, slavery, and passed three
constitutional amendments to eliminate that curse and its vestiges. Loving was
part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause
for which many heroes and many ordinary people had struggled since our nation
began.
It is true that there has been serious injustice in the treatment of
homosexuals also, a wrong that has been widely recognized only in the relatively
recent past, and one our Legislature tried to address when it enacted the Sexual
Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the
traditional definition of marriage is not merely a by-product of historical injustice.
Its history is of a different kind.
The idea that same-sex marriage is even possible is a relatively new one.
Until a few decades ago, it was an accepted truth for almost everyone who ever
lived, in any society in which marriage existed, that there could be marriages only
between participants of different sex. A court should not lightly conclude that
everyone who held this belief was irrational, ignorant or bigoted. We do not so
conclude.
The court also rejected the argument that the legislation was not rational because
it is both over- and underinclusive, holding that the imperfect fit between the state goals
and the legislation was not irrational.
The petitioners argued that the court should subject the state law to heightened
scrutiny because it adversely affected an individual’s right to marry. However, the court
rejected this characterization, instead describing the right as “the right to marry someone
of the same sex.” The petitioners argued that the right should be broadly defined, as in
Lawrence v. Texas, 539 U.S. 558, 566 (2003) (describing the right affected there as the
right to privacy in intimae relationships, rather than the right of homosexuals to engage in
sodomy, the approach of Bowers v. Hardwick, 478 U.S. 186 (1986)). The court held that
the right affected here should be more narrowly described, analogizing the case to
Washington v. Glucksberg, 521 U.S. 702, 722-23) (1997) (describing the affected right as
the right to commit assisted suicide rather than the right to die). The court said,
The difference between Lawrence and Glucksberg is that in Glucksberg the
relatively narrow definition of the right at issue was based on rational linedrawing. In Lawrence, by contrast, the court found the distinction between
homosexual sodomy and intimate relations generally to be essentially arbitrary.
Here, there are, as we have explained, rational grounds for limiting the definition
of marriage to opposite-sex couples. This case is therefore, in the relevant way,
like Glucksberg and not at all like Lawrence. Plaintiffs here do not, as the
petitioners in Lawrence did, seek protection against State intrusion on intimate,
private activity. They seek from the courts access to a State-conferred benefit that
the Legislature has rationally limited to opposite-sex couples. We conclude that,
by defining marriage as it has, the New York Legislature has not restricted the
exercise of a fundamental right.
The petitioners then argued for heightened scrutiny on the basis that the ban on
same-sex marriage constitutes sex-based discrimination. The court rejected this claim,
saying that women and men are treated alike because they can both marry persons of the
opposite but not the same sex and is not intended to subordinate either men or women, in
contrast to the racial classification held unconstitutional in Loving. The court agreed,
however, that the legislation discriminates on the basis of “sexual preference” but held
that this classification does not trigger heightened scrutiny, at least when the legislation
affects marriage and family relationships. Justice Graffeo concurred and elaborated on
the level of scrutiny to which the legislation should be subjected. Chief Justice Kaye
filed a dissenting opinion for himself and Justice Ciparick.
New York State trial courts have since considered whether the Hernande’ holding
that marriage restrictions based on opposite-gender classifications are subject only to
rational basis scrutiny extend to issues such as adoption, employee benefits, and
discrimination. Most cases considered by the lower courts extend the equal protection
analysis of Hernandez, upholding, for example, statutes denying state benefits to spouses
from same-sex marriages performed in other jurisdictions or denying standing to samesex partners to pursue wrongful death claims. See Mark Fass, “Effects of ‘Hernandez’
Reach Beyond Marriage,” N.Y.L.J., Nov. 28, 2006.
By a vote of 5-4, the Washington State Supreme Court held in Christian v. King
County, 138 P.3d 963 (Wash. 2006), that the state DOMA enacted in 1998, which
prohibits same-sex marriage, does not violate the state or federal constitution. For
purposes of the federal equal protection clause and the state privileges and immunities
clause, the court held that gay men and lesbians are not a suspect class and that same-sex
marriage is not included within marriage as a fundamental right triggering heightened
scrutiny. Therefore, the court subjected the statute to rational basis review. It rejected the
argument that the only purpose of the legislation was to discriminate against gay men and
lesbians, which would have made the statute per se unreasonable under Romer v. Evans,
as not supported by the evidence. Instead, like the New York court in Hernandez, the
court found that promoting and protecting procreation and raising children was the
purpose of the legislation and that its over- and underinclusiveness with regard to this
goal did not make it unreasonable. For the same reasons, the court held that the statute
does not violate the state constitution’s due process and right to privacy provisions.
Finally, the court held that the state’s ERA, which requires strict scrutiny of sex-base
classifications, was not violated because the law treats men and woman equally, rejecting
the analogy to Loving v. Virginia, 388 U.S. 1 (1967), and affirming the continuing vitality
of Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974), which rejected the same claim
more than 30 years ago.
Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005), held that limiting marriage
to opposite-sex couples does not violate the state Equal Privileges and Immunities
Clause, which, the court said, is as or more deferential to the legislature than the federal
equal protection clause. The court held that the challengers had failed to prove that the
rule is not reasonably related to inherent characteristics that distinguish same- and
opposite-sex couples because the inherent differences in the couples affects the state’s
interest in “seeing that children are raised in stable environments. Those persons who
have invested the significant time, effort, and expense associated with assisted
reproduction or adoption may be seen as very likely to be able to provide such an
environment, with or without the ‘protections’ of marriage, because of the high level of
financial and emotional commitment exerted in conceiving or adopting a child or children
in the first place.” In contrast, the court said, opposite sex couples can conceive a child so
easily that the state legitimately seeks to promote stability in these relationships by
making the benefits of marriage available. 821 N.E. 2d at 20-22.
In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), the New Jersey Supreme Court determined
that the state’s equal protection clause demands that same-sex couples be provided the
same rights, benefits, and obligations as married couples, but deferred a ruling on
whether those protections must be recognized under the name of marriage. In other
words, the court distinguished between the rights of marriage and the rights to marriage.
Recognizing that the state’s decisional law and legislative enactments rejected
discrimination, the court found no legitimate state interests that were served by a denial
of the rights and privileges of marriage to either same sex-couples or to their children.
The court then ordered the state to remedy this denial within 180 days. The court
determined that if the state were to implement legislation providing same-sex couples the
same privileges and obligations as provided in marriage but under a different name, the
legislature would express its view of the legitimate state interests that such a delineation
may serve. In addition, the court concluded that a fundamental right to same-sex
marriage had not yet become “deeply rooted in the traditions, history and conscience of
the people of this State.” A dissent argued that the majority defined the right so narrowly
as to preclude the possibility that it could be treated as fundamental under a due process
analysis and that the majority’s denial of the equal protection claim establishing a clear
right to the status of marriage inappropriately delegated the court’s responsibility to
decide constitutional questions to the political process. The New Jersey legislature has
enacted a domestic partnership law which is described in this supplement below as a note
accompanying p. 276 of the text.
In 2004 a lesbian couple obtained a marriage license from the Cherokee Nation and were
married on Cherokee land in a ceremony performed by a licensed minister certified by
the Cherokee Nation. The Cherokee Tribal Council then enacted legislation restricting
marriage to opposite sex couples, which did not apply retroactively to the lesbian
couple’s marriage. Nonetheless, a lawyer for the Cherokee Tribal Council sought a
declaration in tribal court that the marriage was contrary to Cherokee law. The Judicial
Appeals Tribunal of the Cherokee Nation (JAT) held that the lawyer lacked standing to
bring the challenge. The JAT also held that members of Tribal Council lacked standing to
challenge the marriage. In re Reynolds and McKinley, JAT-04-15 (Cherokee Nation
Judicial App. Tribunal, Aug. 2, 2005); Anglen v. McKinley, JAT-05-11 (Cherokee Nation
Judicial App. Tribunal, Dec. 22, 2005). On January 26, 2006, the court administrator
filed suit to prevent the filing of the couple’s marriage certificate; this action is currently
pending before the JAT. In re the Marriage License of McKinley, JAT-06-01.
p. 210, End of note 5 For later developments in Morrison v. Sadler and Lewis v. Harris,
see above, note for page 206.
p. 212-213 Note on same-sex marriage in Europe The complete citation for the note by
Allison R. O’Neill cited on p. 213 is Recognition of Same-Sex Marriage in the European
Community: The European Court of Justice’s Ability to Dictate Social Policy, 37 Cornell
Int’l L. J. 199 (2004).
As of July 1, 2005, same-sex couples may marry in Spain under the same
conditions and with the same effects as opposite-sex couples. Act 13/2005.
South Africa. Fourie and a second case were consolidated upon appeal to the
Constitutional Court of South Africa, which concluded that any exclusion from the
Marriage Act of the means for same-sex couples to enter into marriage constitutes unfair
discrimination. Minister of Home Affairs v. Fourie and Bonthuys, 2005 SACLR LEXIS
34 (Nos. 60/04, 10/05, Dec. 1, 2005). The court declared the common law prohibition of
same sex marriage invalid and the omission of gender-neutralizing terms in the Marriage
Act constitutionally invalid, but the court suspended both declarations of invalidity for 12
months to allow Parliament an opportunity to correct the defects. In November 2006 the
South African Parliament enacted a statute that legalizes same-sex marriage over the
objections of religious and traditional leaders. The text of the law is available at
http://www.anuariocdh.uchile.cl/anuario03/DocumentosRelacionados/Seccion_
InternacionalII_FernandezValle/LeyMatrimonioSudafrica.pdf.
p. 217, Notes and Questions following In re Barbara Haven Colorado statutes provide
that a person must be at least 18 to marry without parental consent, those between 16 and
18 can marry with parental or judicial consent, and someone younger than 16 can marry
only with the consent of both the court and the parents. The Colorado Court of Appeals
held in In re Marriage of J.M.H. and Rouse, 143 P.3d 1116 (Colo. App. 2006), that,
notwithstanding these statutes, the common law rules regarding age apply to common
law marriage, so that a girl as young as 12 could enter into a common law marriage. The
case involved a 38-year-old man who purportedly entered into a common law marriage
with a 15-year-old girl. The man pled guilty to stalking the girl and was serving a fouryear prison term when the court issued the decision. In response to the uproar, in July
2006 the Colorado legislature enacted a law that harmonizes the age of consent for
common law marriage with the existing law regarding ceremonial marriage. Colorado to
Ban Child Marriages (AP, July 19, 2006).
In 2005 the Texas legislature amended the family and penal codes to void any marriage
in which one party is younger than 16 and to make it a felony for a parent to give consent
for a children younger than 16 to marry. The legislature was responding to reports that
members of a polygamist group in Texas were regularly consenting to the marriage of
their 14- and 15-year-old daughters. The group was said to be members of the
Fundamentalist Church of Jesus Christ of Latter Day Saints, which broke away from the
Mormon Church when the latter renounced plural marriage. Rosanne Piatt,
Overcorrecting the Purported Problem of Taking Child Brides in Polygamist Marriages:
The Texas Legislature Unconstitutionally Voids All Marriages by Texans Younger than
Sixteen and Criminalizes Parental Consent, 37 St. Mary’s L. J. 753 (2006). The group is
also active in Utah. The case of State v. Green, discussed in the text at p. 187 and in this
supplement, above, concern members of the group.