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?
---------------------------------------------------------------------

Labels

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