Monday, July 4, 2011
I have for a long time wanted to write about the weakness in Utah's "Irrevocable" clause. The irrevocable clause was part of the text of Utah's Enabling Act - the document allowing Utah to achieve statehood. It was a craven compromise with the Mormons' enemies. Talk about "selling your birthright for a mess of potage." !!! Here we go - - -
At the time of Utah’s admission to the Union (1896), there was significant controversy regarding Mormon polygamy. The Church and its members were extremely reluctant to surrender the practice. The rest of the country probably had far more heartburn over Mormon power than Mormon polygamy. Federal officials doubted the sincerity of LDS leaders’ promises that plural marriages had been stopped. New polygamous unions may well have been ostensibly halted, but how many Latter-day Saint husbands were still living with their plural wives after the 1890 Manifesto? How could the government prevent polygamous courtships, polygamous ceremonies and ongoing polygamous family relationships?
Eventually, it became clear that, unless Utah agreed to include an anti-polygamy clause in its new state constitution, it would not be admitted to the Union. Here is the specific language from Utah’s constitution:
Article 3 Section 1 – The following ordinance shall be irrevocable without the consent of the United States and the people of this State: [Religious toleration -- Polygamy forbidden.]
First: – Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
On the surface, it would appear that those who drafted the language of the new state constitution did everything necessary to criminalize and eradicate polygamy from our state. Upon closer review, however, we find evidence of significant weaknesses. Here are some key failings:
1. If it was the intent of this clause in the (civil) constitution to enshrine the polygamy prohibitions in law, then statutes needed to be enacted to fully criminalize the practice. However, to this day, the words “polygamy” and “plural marriage” are nowhere to be found in Utah’s statutes (perhaps because their inclusion would have revealed the opponents’ naked desire to target a religious minority).
2. There are interesting ambiguities in the wording of the clause.
a. First let us look at the word “marriages”. If “polygamous” or “plural” marriages were “forever” to be prohibited, did this mean that the state was required to make sure that it would never grant anyone multiple concurrent marriage licenses? If so, then the objective was achieved. A sensibly-worded bigamy statute could accomplish this beautifully. Besides, one could count on one hand the number of polygamists who ever sought two marriage licenses in the last hundred years. If, however, by “marriages”, the framers really meant to say “weddings”, perhaps the clause should have read “polygamous or plural weddings” instead. Perhaps this is why additional statutes were written to punish individuals who participated in or “officiated” at purely religious “sealing” or commitment ceremonies (a felony). This was a particularly slippery fish to catch, so it required extraordinary statutory creativity.
b. Perhaps the word “marriages” was intended, rather, to apply to the condition of being “married” (like – “We had a wonderful wedding, and now we have a happy marriage). If this was the case, then the clause now runs afoul of the 2003 Lawrence decision because, once again, it attempts to prohibit couples or trios from acting “married”, even if the state provides no formal licensing of the relationship. Was there an intent to prohibit the mere relationship, and how could that be achieved in accordance with due process and equal application of laws?
3. Utah was placed in a rather unusual position. It could not attain statehood without bowing to federal demands regarding language in its constitution; in fact, the “irrevocable” clause states, “The following ordinance shall be irrevocable without the consent of the United States and the people of this State. This meant that, once Utah achieved the status of a State, it still would not have permission to remove this prohibition without federal approval. Later, Oklahoma was constrained (by the federal government) to agree to never relocate its capital (from Guthrie) as a part of its enabling act. Once a part of the Union, the capital was moved to Oklahoma City. When the controversial case (Coyle v. Smith, 1911) reached the U.S. Supreme Court, the Court ruled that, once Oklahoma had achieved statehood, it was no longer bound to honor an agreement imposed upon it by the federal government as a “condition” of statehood. Such a constraint would have caused Oklahoma to enter the Union on an “unequal”, lesser “footing” than the other states. Accordingly, Utah’s “irrevocable clause” (along with similar clauses in other states’ constitutions) is unconstitutional and should be voided.
Utah's feeble attempt to pay lip-service to religious freedom makes me prefer the religious freedom language of New York's 1777 state constitution:
"Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshiping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship."
10th Circuit 13th Amendment 14th Amendment 1953 Short Creek Raid 1st Amendment 6th Circuit Abortion Abraham Addam Swapp Admiralty adultery Affordable Care AG - Craig Jones AG - Mark Shurtleff Ahmedinejad Al Sharpton Alan Dershowitz Albert Nock Alex Jones Alina Darger Allen Keate Allen Steed Amnesty Anders Breivik Andrew Napolitano Angela Corey Anteater Anthony Weiner Anti-bigamy Apocalypse Arm of flesh Arnold Schwarzenegger Ashton Kutcher Assad atheism B.C. Supreme Court bailout bailouts Barack Hussein Soetoro Obama Barack Obama Barbie BarefootsWorld.net Belief vs. Practice Ben Bernanke Benghazi Bernie Machen Bestiality Betty Jessop Big Love bigamy Bill CLinton Bill Medvecky Blacks and the Priesthood blood Blood Atonement Bolshevik Revolution Book burning Bountiful Boyd K. Packer Branch Davidians Breitbart Brigham Young Brown v. Herbert Bruce R. McConkie Bruce Wisan Canada Canada Reference Carolyn Jessop Casey Anthony Caylee Anthony Chapter 13 bankruptcy Charles Darwin Charlie Hebdo Charlie Sheen Chick-Fil-A Chief Justice Robert Bauman Child-bigamy Chris Serino Christine Durham Church of Jesus Christ of Latter-Day Saints Church Police Civil War CNN cohabitation collaboration Colonia Lebaron Colorado City Communism Conrad Murray Conservative Constitution Country Music CPS Craig Barlow Craig Jones Creston Crimea crooked judge cultural genocide Czar Nicholas D+C 101 Dallin H. Oaks Dan Cathy Darwin Darwin's Black Box Darwin's Doubt Darwinian Darwinism Darwinists David Boies David Koresh David Leavitt Davis v. Beason DCFS Debra Weyermann decertification Decriminalization Democrat Denise Lindberg Depends Deuteronomy 28 Diaper Disodium Guanylate Disodium Inosinate DNA Doctrine & Covenants DOMA Don't Ask Don't Tell Donald Trump Dr. Drew Pinsky Dr. Seuss Dream Mine Dred Scott Drew Pinsky Drones Edom Edomites Egypt El Baradei Elaine Tyler Eldorado Elijah Abel Elissa Wall Enabling Act Entitlement Ephraim eradication Eric Holder Ernst Zundel escape European Union Eurpoean Bailout Eustace Mullins Evolution Ex Parte extradition Ezra Taft Benson FBI Federal Reserve Felony FEMA camp Feminazi First Amendment Flagellum flatulence FLDS Flora Jessop Florida Flying Circus Food waste fornication Fourteenth Amendment Free-Agency Fundamentalist Mormon Fundamentalist Mormons Gadianton Robbers Gary Herbert Gathering Gay Gay Marriage General Conference genocide George Clooney George W. Bush George Washington George Zimmerman Germany Gerunds Glue-sniffing Gordon B. Hinckley Grant Morrison Greece Greg Abbott GritsForBreakfast Gun-Control guts H1N1 Handbook of Instructions Harry Reid Harvey Hilderbran hatred HB-99 HBO Health Care Reform Heber C. Kimball Hildale Hillary Clinton Hippies Hitler Hoax Holding Out Help Holding Out Hostages Holly Madison Holocaust Homeland Security Homeschooling homosexuality Hoole Hosni Mubarak House of Cards Hubris Hugh Hefner Human Nature Hypocrisy hypocrite Idumea illegal aliens Illegal Ceremony IMF Immigration IN TIME incest Intelligent Design International Monetary Fund Iowa Supreme Court Iran Irony Irrevocable Clause Isaac Jeffs Jacob Zuma Jaimee Grubb James Dobson James Rosen Jamie Dimon Jan Brewer Jane Blackmore Janet Yellen Jeff Ashton Jeff Buhman Jeffs Jerrold Jensen Jerry Sandusky Jesse Barlow Jesus Christ Jew Jim Jones Jimmy Oler Joe Darger Joe Paterno John Boehner John Daniel Kingston John F. Kennedy John H. Koyle John Hyrcanus John Kerry John Singer John Swallow John Taylor Jon Krakauer Jonathan Turley Jonestown Massacre Joni Holm Jose Baez Joseph Compton Joseph Henrich Joseph Smith Joy Behar JP Morgan Chase Jubilee Judea Judge Barbara Walther Judge Bauman Judge Clark Waddoups Judge Dee Benson Judge Donald Eyre Judge James Brady Judge Robert Shelby Judge Terry Christiansen Judge Waddoups Julian Assange June 26th Jury Justice Christine Durham Justice Nehring Justice Robert Bauman Justin Timberlake K Dee Ignatin Kathy Jo Nicholson KD Ignatin keep sweet Keith Dutson Ken Driggs Kendra Keystone Kops kidnapping Kiev Kimberly Conrad Kingston Kirk Torgensen knife Kody Brown Lab rats Lance Armstrong Larry Beall Las Vegas Laura DuPaix Laurie Allen Lavar Christensen Lawrence decision Lawrence v. Texas LDS LDS Church Lehi Police Liberal Liberals library Lifeboat Lindberg Lost Boys Love Times Three Lukumi Lyle Jeffs Main Street Plaza Mancy Nereska Marilyn Monroe Mark E. Petersen Mark Shurtleff marriage license Marxist Mary Batchelor Merrianne Jessop Merril Jessop Michael Behe Michael Dorn Michael Jackson Michael Zimmerman middle-class Migraine Relief Mike de Jong Mike Noel military miscegenation missionaries Mitt Romney Modern Pharisee Monkeys monogamy Monosodium Glutamate Monty Python Mormon Mormon Church Mormon Matters MSG Mubarak murder Muslim polygamy Musser Nancy Pelosi Naomi Jeffs Natalie Malonis National Debt National Enquirer Natra-Bio natural selection Nazi Next Generation Ninth Circuit Nobel Peace Prize Norway NSA Obacle Obama Obamacare Obaminacare obesity Occupy Wall Street Oligarchy Open Marriage Orrin Hatch Osama Bin Laden Pakistan Palestine Papandreou Paris France Parker Douglas patriarchy Paul Murphy Paul Ryan pharaoh Planets Planned Parenthood Playboy mansion plural marriage polyamory polygamist polygamous polygamous grouping polygamous sect polygamy polygamy reference Polygamy Task Force Predictor Presbyterian Presidential Election promotional video Promulgate Prophecy Proposition 8 Prostitute Protection of Marriage Punk'd Quantitative Easing race card Rand Paul rape Raymond Jessop Reassignment Recession Reconciliation Relief Mine Religion religious test Rep. John Lewis Rep. Mike Noel Resurrection Revelation 18:3 Reynolds decision Richard Dawkins Richard Nixon Rick Santorum Rights riots Robert Mueller Rocky Ridge Rodney Holm Rodney King Roe v. Wade Ron Paul Rothschild Rozita Swinton Ruby Ridge Rulon Allred Russia Safety Net Salmonella Samaria San Angelo Sargon Sarin Saudi Arabia Schleicher County Sean Reyes Seattle Second Amendment Senator Kevin Van Tassell Shalmaneser Shannon Price Shoshana Grossbard Shutdown Siamese Signature in the Cell Silsby Silvio Berlusconi Sir Evelyn de Rothschild Sister Wives skin color Slippery Slope Socialism Sonny Hostin Soviet Union Spencer W. Kimball Star Trek Stars Stephanie Colgrove Stephen C. Meyer Steven Conn stimulus Stromberg-Stein Survival Suspect Class Swine Flu Syria Tapestry Teen pregnancy Temple Teresa Jeffs termites Texas Texas CPS Texas FLDS Texas Rangers The Fall of Reynolds Theodore Olson Thirteenth Amendment Thomas S. Monson Thurgood Marshall Tiger Woods Timothy Geithner Timothy McVeigh Titanic Tito Valdez TLC Todd Shackelford Tom Green Tonia Tewell Trace Gallagher tracting Trayvon Martin trickle-down economics Trip-Wire Trust TSA twins TxBluesman Tyranny U.S. Bankruptcy. Franklin D. Roosevelt U.S. Supreme Court UEP UEP Trust Ukraine Uncommon Dissent Uniform Commercial Code Universe University of Oslo usury Utah Utah A.G. Utah Amendment 3 Utah Attorney General's Safety Net Utah bigamy statute Utah Legislature Utah Supreme Court Vera Black Vermont Vladimir Putin Waco Wally Bugden Wally Oppal Warburg Warren Jeffs weapon words Wendell Nielsen Whistleblowers Wilford Woodruff William Dembski William E. Jessop Willie Jessop Winston Blackmore Wisan Woodrow Wilson Worf WTC 7 Xenarthra Yams YFZ YFZ Raid YFZ Ranch Zombies