Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices. Suppose one
believed that human sacrifices were a necessary part of religious worship, would
it be seriously contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously believed it was
her duty to burn herself upon the funeral pile of her dead husband, would it be
beyond the power of the civil government to prevent her carrying her belief into
practice?
Reynolds v. United States, 98 U.S. 145, 166 (U.S. 1878) This quote does an excelent job of outlining the freedom of religion. What freedom it does guranty and what freedoms it does not. It is explained generally enough to cover almost any situation where someone tries to raise religious belief to justify some crime they have committed. More than that, it actually gives a moral outline so rare in the law. That a religious belief does not excuse a wrong act, is an excelent precept with which to weed out those that believe that God will excuse their sins if only they belive correctly.
The above quote also informs people where their right to believe as they please ends and the rights of others begins. You can believe abortion is wrong, but you cannot stop women from having them. You can believe vaccinations are against the commands of God but you cannot keep them from your children. You can believe creationism, but you cannot teach it in schools.
However that line of reasoning is used below to justify the government meddeling in marriage.
From that day to this we think it may safely be said there never has been a time
in any State of the Union when polygamy has not been an offence against society,
cognizable by the civil courts and punishable with more or less severity. In the
face of all this evidence, it is impossible to believe that the
constitutional guaranty of religious freedom was intended to prohibit
legislation in respect to this most important feature of social life. Marriage,
while from its very nature a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it
society may be said to be built, and out of its fruits spring social relations
and social obligations and duties, with which government is necessarily required
to deal. In fact, according as monogamous or polygamous marriages are allowed,
do we find the principles on which the government of the people, to a
greater or less extent, rests. Professor Lieber says, polygamy leads to the
patriarchal principle, and which, when applied to large communities, fetters the
people in stationary despotism, while that principle cannot long exist in
connection with monogamy. Chancellor Kent observes that this remark is qually
striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of
polygamists under an exceptional leadership may sometimes exist for a time
without appearing to disturb the social condition of the people who surround it;
but there cannot be a doubt that, unless restricted by some form of
HN21constitution, it is within the legitimate scope of the power of every civil
government to determine whether polygamy or monogamy shall be the law of social
life under its dominion.
Reynolds v. United States, 98 U.S. 145, 165-166 (U.S. 1878) Why? Why does the government get to fuck around with my marriage? Why did I have to go pay some beureaucrat to file some paperwork so that I can go to a state approved church to solmenize the commitment I have made with my wife? Because marrage is the foundation of the state? Fuck you! All that is saying is that the state and all the members of the society demand a benefit from my love for my wife and that I pay for them to have the priviledge.
All that is said when someone says that marriage is the foundation of society is that they want the benefit of your children. The benefit that more productive members of society bring. Fuck you! You have no right to demand that my marriage be of any value to you. Even in a capatilist society where each of your fingers has a dollar value attached to it the value of my future children cannot be demanded by you for no compensation.
If you want control of marriage you owe me. You owe me for the increased efficiency of a two person household. You owe me at least the cost of producing the children you will benefit from. Not only that you owe me the value their future labors will bring to society and the taxes they will pay. The cost of raising a child to adulthood is huge but only a fraction of what that person puts back into society. That value is increased tremendously if that child moves on to higher education. You have no right to demand that value and the control over my life to get it.
You have no right to meddle in my spiritual ritual and put restrictions on whom I can have to officiate the ceremony of my marriage. Every person has the same connection to the devine as each other. We all had the breath of life put in us by the creator and none of us has any more or less than our neighbors. No schooling, licence, building, location, costume, or ritual can increase or decrease that, nothing. Yet there are judges that have invalidated peoples marriages because they did not like the manner in which the person officiating the ceremony obtained the title of "minister." This is just the state insuring the continued existance of the professional clergy.
I hate that there is legal effect to the state's yoke of control over love. I hate that I could not stand up for my beliefs and refuse to register my marriage because it would send a terrible message to my wife that there was something deficient about our love.
Even if I agree with the Supreme Court's rationale that polygamy fosters patriarchy and totalitarianism, it does not justify the state sticking its fingers into the exercise of faith. Back to the thought I started with. There must be some limit to the distinction between belief and action because faith is meaningless if one cannot act on ones beliefs. Clearly there must be limits, but cutting off all action leaves faith as a mute quadrapalegic.
I don't know where I would place the marker. Ideally the law would reflect morality but it does not and not all things that are wrong are illegal and not all things that are illegal are wrong. As a libertarian I want to say that ones right to act on ones beliefs ends when they interfere with the rights of another but that can be a sticky area to hash out. Harm can be a good way to solve that problem. When an act of one person harms another can be a good place to say their rights have ended but that is still far too broad and vague. How do you define harm? And so forth. It might be glib to end this way, and all of this falls below the standard of legal reasoning, but it is pretty easy to detect the harm eminating from Warren Jeffs' brand of polygamy.
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