Monday, February 9, 2009

Why Reynolds is NOT good law

Okay, folks, the time has come for me to write my perspective on the (1879) Reynolds decision, and let me say that I am not a legal scholar or anything. I am just the kid at the Emperor’s New Clothes parade who wonders why the crowds are praising the Emperor’s beautiful robes, when in fact he is naked.

The Reynolds decision rendered by Chief Justice Waite was lame at best, first because there was really no thorough jurisprudential reasoning provided by the Court in support of its conclusion, and secondly because the Court simply announced, summarily, that polygamy is bad, and may therefore be burdened by the State.

It is widely known that legal scholars far and wide look somewhat dimly on the Reynolds decision, especially because it deliberately targeted the religious practice of a specific religious society, the Mormons. My frustration stems from the fact that, despite its being looked upon with moderate disdain, the legal community complacently tolerates the decision as ongoing “good law”. We are supposed to be grateful at least that the Davis v. Beason (1890) decision (forbidding Mormons to vote) has been set aside.

The general, pat, shorthand, condensed, Cliff Notes definition of the Reynolds decision turns on “belief versus practice”. It says, “You are free (under the First Amendment) to BELIEVE anything you want, you just can’t necessarily PRACTICE each and every one of those beliefs if the State decides that one (or more) of those practices is repugnant to the right-thinking folks in our society.”

I have struggled with this for a long time, because the argument offered by the proponents of Reynolds is so bewitchingly clever-sounding. Listen to it:

Governments MUST have the prerogative of proscribing certain religiously-motivated acts, or else we will become a lawless society where all kinds of crimes might be excused away under the auspices of religious sanction.

Wow! I’m convinced, aren’t you? I mean, they mention the prospect of religious congregations performing female circumcisions under the guise of a religious ritual. Who could argue that the government should not step in and prevent such atrocities? Some barbaric believers would burn widows on their husbands’ funeral pyres, and that simply cannot be countenanced, can it?

Well, if you haven’t yet figured out where I am going with this, let me elucidate further. You see, with this model of testing religious conduct, each state must surely create a tolerable/intolerable behaviors list, right? Let’s assume that sacrificing virgins on the altar falls into the “intolerable” column. Infant baptism would fit into the tolerable category, I suppose. Ritual chicken slaughter is perfectly acceptable (U.S. Supreme Court decision in Lukumi [1993]). So go ahead, start making your own list. If you live in Utah, you might go along with the Utah legislature which has long held that it is UTTERLY acceptable for men to have numerous sex-partners (either consecutively or concurrently) so long as those men are not Fundamentalist Mormons.

Bottom line – Reynolds lets the State analyze each and every religious practice and choose to criminalize those for which it can assert merely a rational basis argument for proscribing. For example, a Native American church wants to drink hallucinogenic tea in its Sabbath ceremony. The State says that hallucinogenic substances are harmful to everyone and that it ought to be able to legislate against them, be they used in a recreational or ecclesiastical setting. Religious belief cannot exempt the actors from a generally applicable law against such crimes, right?

Okay, here’s what really gets to me. Throw religion completely out of the window for a minute. Forget religious beliefs! I don’t care whether you are killing that chicken to barbecue it or to atone for your sins – it is generally understood that killing chickens shouldn’t get you five years in prison. Now, Jesse Jackson, John F. Kennedy, Bill Clinton, Hugh Hefner, Martin Luther King, Jr., Jimmy Swaggart, Jim Bakker, Karl Malone, Wilt Chamberlain, King David, Madonna, Britney Spears, (I could go on forever) all had multiple bed-partners, and not a single one of them spent even five minutes in prison for bigamy/polygamy/unlawful cohabitation, and I bet anyone $100.00 that not a single Utah legislator would wish it otherwise.

Forget about religion for another minute! I mean, why does the state even have to keep bringing religion into it at all? Sure, Utah’s Fundamentalist Mormons take extra “wives” primarily because, for them, it is a tenet of their religion, but you don’t hear them saying, “You can’t arrest me because I am protected by my religious beliefs.” Instead, they would say, “Why do you arrest me for bigamy when I only have one marriage license?” [see Mark Easterday, Thomas Green and Rodney Holm]. It is almost as if the State is saying, "Look, we don't care what you do in your bedroom. We'll look the other way. Sleep with two girls, sleep with your dog, for that matter! WE DON"T CARE !!!! Just don't go believing in that D&C 132 Mormon marriage stuff, or we're just gonna have to come and get you with our precious Reynolds weapon!"

Everybody knows that the Reynolds decision targeted Mormon religious polygamy and that Utah’s bigamy statute never targets anybody with only one marriage license except for Fundamentalist Mormons. The reason the Reynolds decision is stupid is that it grants the State specific license to assess the rightness of certain religious practices, in contradiction of the intent of the First Amendment (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”).

When Reynolds is overturned, religion can no longer be used to evaluate the merits of prosecuting someone, any more than in a post-Lawrence era can morals be used to prohibit private, intimate adult conduct. Look at the act objectively, neutrally and secularly. Did he burn his sister-in-law to death? – Yes or No? Did he cut off her genitals? – Yes or No? Did he take two women to bed? – Yes or No? Did he dust off his feet in New York? – Yes or No? Did he baptize his son? - Yes or No? Did he arrange his daughter’s marriage? - Yes or No? Did he cut off his newborn son’s foreskin? – Yes or No?

I know that the Supreme Court has gone to extra lengths in recent years to make sure that States do not impermissibly impede the sincere expression of religious beliefs (even in practice), and I contend that soon, when Texas’s recent, idiotic bigamy prosecutions result in the overturning of Reynolds, America, though bankrupt, will be a better place.


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