Thursday, August 4, 2011

Three Tiers

In the seventies, the United States Supreme Court was feeling the need to bolster the civil rights protections craved by certain groups.  If a state legislature got a wild hair to pass a dumb law - like "Negroes must not sing on street corners", then the high court could overturn the law and void it.  As various classes or groups then clamored for similar protections, the Court was then faced with a dilemma.  The question was - how far could the Court go to intervene in state statutes?  By what standards could the Court review the state's laws when someone complained that they were unfair or biased?

There were people who were poor and people who were old.  The Court had sympathy for them, too, so it had to formulate a way of preventing bad laws targeting them.  But surely poor or old people weren't discriminated against as badly as were colored people, were they?

Ultimately, it was decided that the Court would use a "Three-Tiered" framework of review to scrutinize the legitimacy (or lack thereof) of certain legislation.  Thus, if a law impacted people according to race (or even religion), then the Court could apply the strictest standard of scrutiny ("Strict Scrutiny") to that law.  The impacted class was termed a "Suspect Class".  See this article.

The second tier - the one affecting poor or old people - would trigger "heightened (or intermediate) scrutiny".  These people fell into what was called the "Quasi-Suspect Class".  This also came to include people discriminated against because of gender.

The final, and lowest standard of review is the least demanding.  The term often used is "rational basis".  This means that, if the state can show that it had at least a "rational basis" for enacting a law, then that would satisfy the Court - the Court would just look away, basically.

So, in short, if you (as a member of a particular class of individuals) want to be protected from unreasonable laws, you had better be at least poor or old, or, better still - have dark skin.

This process signaled the need to define what a "class" of people was.  I quote from Wikipedia -

"Some of the criteria that have been cited include:

  • The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.[1]
  • They possess an immutable[2] and/or highly visible trait.
  • They are powerless[2] to protect themselves via the political process. (The group is a "discrete" and "insular" minority.[3])
  • The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society."
Certain types of people fell neatly into a class - for example - albinos (or amputees).  Albinos don't get to choose to stop being albinos.  Blacks do not have the ability to choose to be Caucasian.  Old people cannot decide to become young again (except for Joan Rivers).  These classifications are permanent and easy to define.

Other, less easily definable classes include Catholics, felons, homosexuals, polygamists, etc.  In the 1990's, gay Coloradoans fought hard to be viewed as a distinct class (in order to merit "protected status") (see Romer v. Evans).  After all, virtually all gay people feel that their sexual orientation is NOT a choice.  They are unable to experience sexual attraction to people of the opposite sex.

The Supreme Court disagreed and decided that the three-tiered framework would be final.  No new groups could be added to the Suspect and Quasi-Suspect classes.  This was brought to my mind again yesterday when I read a blogpost from a gentleman who insisted that homosexuality is an involuntary condition, while polygamy is a choice.  WOW !!!!!!!!!!!!!!!!

Think about that!  Gay people are drawn to same-gender partners.  They cannot get excited about the opposite sex.  Still, when they bond with one or more individuals, it is a CHOICE.  They select a partner through free choice.  They reject the partners they find unappealing.  Why is this different from polygamists?  The fact that polygamists are a "class" of people who have not been accorded any special kind of status (suspect or quasi-suspect) is the reason why the state of Utah can get away with arguing that its asinine bigamy law is worthy of only "rational-basis" review - that it need only argue that it has a "compelling interest" in protecting the sacred sacrament of holy matrimony within its borders.  With such a low standard of scrutiny, the Supreme Court is at best complacent.  The argument, however, is as flawed as the one promoted by the Prop 8 supporters in California who insisted that if Tim and Jeremy next door got a marriage license, then the neighborhood children would grow up to be murderers - - there simply is NO causal relationship.

If you think about it, there are thousands of polygamous families in Arizona and Utah.  If Reynolds were overturned, what would change?  NOTHING !!!  Their numbers would remain the same.  The only difference would be that perhaps they would be persecuted less, and they would live more in the open, and the Mormon Church would feel a little bit more self-conscious.

I am attracted to Beatrice.  I love Beatrice.  I want to have children with Beatrice.  Beatrice is my wife.  I choose not to leave her.  I love Violet. I can't make myself stop loving her.  She is physically attractive to me.  I am not attracted to Fred.  I cannot make myself be attracted to Fred.  Intimacy with Fred would disgust me.  I love Cecilia and Phoebe.  They love me too.  They trust that I will never leave them or our children.  I cannot make myself stop loving and supporting my plural family.

Tell me how polygamy is a choice.  I could say I choose not to be attracted to Marilyn Monroe, but it would be a lie.  No course of therapy could get me to find her ugly.

I think this is the fundamental logical disconnect in society's view of polygamy.  Society feels that polygamy is a sin, a crime, and that its practitioners should just choose to stop committing this "sin", this "crime".  There is confusion over what is inherent nature and what is moral choice.  Serial killers may be born with psychopathy or may have acquired it.  Therapy does not fix them. The inclinations are permanent.  Their crimes are a combination of nature and personal decision making.  Nature does not excuse accountability. 

I am a polygamist - it's hardwired into my DNA.  You cannot change that.  You can kill me, but, like Ogden Kraut, I will still be a polygamist.  By nature, I am attracted to a significant number of women.  I choose not to commit adultery.  By nature I am not attracted to children.  I choose not to marry nasty women.  I choose to pay my bills.  Most guys I have met seem to have an innate tendency to be attracted to multiple women.  That is biological or genetic or something like that.  The "choice" part comes in when the guy "chooses" to be loyal or not.  Fidelity is a conscious choice.  Polygamous attraction is no less hard-wired than same-gender attraction - - - - PROVE ME WRONG !!!!

I believe that gay people are incapable of undoing their homosexuality.  That is not a choice.  Whom they choose to marry is entirely free will.  I cannot undo my polygamousness - it is a permanent part of my biology.  I do, however, freely choose whom I marry.

My point is that, when the Supreme Court starts down the pathway of defining classes of people, it should remember that I can no more choose to stop being a polygamist (by nature) than a person with Down syndrome can choose not to have Trisomy 21.  My conduct is, however, pursuant to my choice.  No argument defending the rights of gays to marry does not also prove that polygamists should have the right to marry.  If legal marriage can be inflected by gender, why can it not also inflect by number?


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