Via Musawah – in India the Supreme Court ruled against polygamy.
In a historic decision last month, the Supreme Court denied a Muslim man the right to have more than one wife and upheld his termination from employment for committing bigamy. The court observed that polygamy was not integral to Islam and the practice was not mandated by religion simply because it was permitted. Similarly, in 2005, the SC had boldly acknowledged that, despite codification and the introduction of monogamy, too many Hindu marriages, like Muslim marriages, continue to be bigamous. This latest SC decision is in line with the reform of Muslim personal law that it initiated three decades ago in the Shah Bano case.
In a catena of cases, the SC has held that the freedom of religion protects only those practices that constitute an “essential and integral part of religion”. Therefore, Muslim personal law can claim the protection of Article 25 only if it is established that marriage, inheritance and the other areas it covers are “essential and integral parts” of Islam. The bench was of the view that a Muslim [man] who wants to take more than one wife is engaged in neither professing and practising nor promoting and propagating his religion. Thus the SC rightly upheld service rules that mandated that a
n[male] employee can have only one wife. There is substance in the argument that though the basic source of Muslim law is the Quran and the traditions of the Prophet, the relations it regulates are not religious. They are, on the contrary, social relations well within the province of the state. Therefore, Muslim polygamy has no religious motivation.
That’s an interesting distinction. I think it’s a good one, but it’s one that I think judges in the US would shy away from making…because it would entangle them in theological judgments that aren’t their province. That tends to mean that religious people have a lot of latitude to claim that this thing they want to do is a core religious belief. We’ve seen how that plays out.
Well, the Mormons dropped polygamy like a hot rock in order to keep from having their temples and other properties confiscated and themselves imprisoned, as the US government had ruled that polygamy was illegal. It was an expedient means, in other words, for the Mormons’ own convenience, despite plural marriage being well established in doctrine AND practice – but only women were ever in multiples. A woman with multiple “husbands” was to be “destroyed.”
“Plural marriage for ME but not for thee!” Women were clearly regarded as property, and the Mormon death squads, the Danites, were known to get rid of troublesome women who either refused to give consent for their husbands to engage in “plural marriage” or women who had been selected but were reluctant to enter into such an arrangement. There really never was anything other than coercion.
Yet Joseph Smith took his followers’ wives for his own. Once again, an example where the leader gets carte blanche – the rules only really apply to everyone else.
Even now, the Mormons believe that, if a man’s wife dies, he may remarry, as many times as that cycle occurs, and that ALL the wives will be his concurrently,, to serve him forever in “heaven”. As usual, the man’s “heaven” is the woman’s “hell”.
The Mormons still believe in polygamy, in other words – they just postpone it for political expediency.
If, say, a Muslim or Mormon man were to challenge bigamy laws today under the US’ s First Amendment, a US court would uphold the laws because they apply equally to people of all religions and were not enacted with the purpose of burdening the exercise of a particular religion. Whether bigamy is a “core” practice of Islam or Mormonism is irrelevant. (Of course I realize most American Muslims and Mormons do not support plural marriages.)
The ONLY argument that the fundies use against gay marriage that actually makes sense, is the one about how once gay marriage is legal, the polygamists will be lining up at the courthouse. Which would be fine if it was your friendly polyamorists at your local sf con, but of course the Mormons would be first in line.
I’m inclined to say “let ’em do it” as long as there is extensive counseling to make sure the second and third wives are aware of their options and aren’t being coerced, and it’s just as legal for women to have multiple husbands as for men to have multiple wives. They absolutely will be using the exact same arguments that we use in favor of gay marriage, and it’ll be tough for liberals to stand against them without feeling like hypocrites.
Brucegee…
I can’t think of a reason to forbid, say, three women and one man from marrying (or any other combinations), as long as, as you say, they all enter into it without coercion, and everybody agrees to marry each other. But the marriage isn’t the problem — it’s the divorce. If one of the women decides to divorce the man, isn’t she still married to the other women? Or if one person wants out of the marriage, does the whole arrangement collapse, and they’re all divorced?
Mormons and Muslims might think of trying to push the idea of allowing plural marriage as a way of broadening civil rights, but I don’t think they’re willing to live with the implications. What they want, of course, is ownership of a collection of domestic servants and sex slaves.
Legal polygamy faces other real-world problems besides those brought up by Brucegee & Peter N @ #s 3 & 4.
If one person in a 2-person marriage dies or becomes incapable of managing their lives, the other person usually, by default, steps in to inherit the property/raise the kids/tell the doctors what to do/etc. With two or more spouses, disagreements over any and all such choices produce a whole new set of headaches not found in duogamies.
Once we have enough long-term de facto polymarriages, and they go through enough of these sorts of crises, perhaps a body of contract law will develop that might enable de jure polygamy without requiring mediators, judges, et alia to contrive ad hoc solutions without a set of guiding principles.* In the meantime, such arrangements do threaten new and real challenges under the law, which same-sex marriages do not.
* Gee, four italicized Latin terms in one sentence – jurisprudentially profound, huh?
That’s an interesting distinction. I think it’s a good one, but it’s one that I think judges in the US would shy away from making…because it would entangle them in theological judgments that aren’t their province.
Another reason we “shy away” from making such arguments, is that we really don’t need to — we can just say “secular law applies to everyone equally, and no one is above the law.” It’s getting harder to say that in the US these days, but it’s probably damn near impossible to say it in India; which is why their courts have to resort to more tortured reasoning like the “essential and integral part of religion” argument you cited above.
The ONLY argument that the fundies use against gay marriage that actually makes sense, is the one about how once gay marriage is legal, the polygamists will be lining up at the courthouse.
Actually, that argument is bullshit (is there any connection between gay marriage and polygamy in either Mormon or Muslim societies?). Allowing same-sex marriage does not change the actual legal or social nature of marriage — i.e., the specific privileges, obligations and benefits — any more than allowing interracial marriage did. But allowing marriages of more than two people WOULD fundamentally change how marriage works and what it actually accomplishes; therefore plural marriages can still be banned, for valid reasons that clearly do not apply to either same-sex or interracial two-person marriages.
I didn’t say we shy away from making such arguments, I said judges do. They do. They say that in rulings. It’s an explicit part of the jurisprudence.
Raging Bee, this is problematic. Is SS marriage a right or a privilege? Proponents of SSM have pursued both avenues, not caring about the unintended consequences.
You mention plural marriages can still be banned for valid reasons that don’t apply to SSM. That implies that SSM was weighed for its impact on the ‘legal and social nature’ of marriage. But you can’t weigh a right. You can weigh a privilege.
So, if you believe SSM is a right, how do you deny the right of marriage to polygamists?
But, if you believed SSM or polygamy or heterosexual marriage was a privilege, then we could weigh the pros and cons and vote on it.
That’s an interesting distinction. I think it’s a good one
It would be fun to use this . Anytime you point out some evil that can be caused by religion , you usually get versions of the no true scotsman. But with the argument the Indian supreme court is making , you could end all religious exemptions.
Contraceptives? Well these religious members of your sect use them and are still religious – doesn’t seem to be mandatory or core- no exemption for you!
Discrimination against gays? Well these religious members of your sect don’t discriminate and are still religious – doesn’t seem to be mandatory or core – no exemption for you!
@md
So, if you believe SSM is a right, how do you deny the right of marriage to polygamists?
Only if people are willing to support polyandry can this argument be made. You’ll usually find that the drive to have polygamy as legal fades if you ask for equal treatment for everyone.
There isn’t any objective reason to deny polygamy (or polyandry or any other combination).
Is SS marriage a right or a privilege?
It’s a legal arrangement, conferring certain benefits, which same-sex couples have an equal right to enjoy; there being no rational basis not to allow equal participation.
That implies that SSM was weighed for its impact on the ‘legal and social nature’ of marriage.
It was, and no rational basis was found to justify denying same-sex couples the right to participate in it. Lots of “rational basis” claims were made, and all were debunked and disproven.
So, if you believe SSM is a right, how do you deny the right of marriage to polygamists?
There are specific purposes served by two-person marriage, that would not necessarily be served by plural marriage: in particular, two-person marriage easily creates a legal framework where ownership, decision-making authority, power of attorney and the like, instantly transfer to one, and only one, eligible spouse should the other die or become incapacitated. This allows the surviving spouse to take up necessary activities such as paying bills, child custody, medical decisions, etc. in a timely manner, without having to go to court and fight over them with other claimants.
A plural marriage, however, would erase that easy line of succession, and would raise questions of which surviving spouse would get these powers, by what reasoning that decision would be made, and whether the arrangement is fair to all spouses.
There is also the question of which kinds of personal relationships are being ratified by marriage. This is why, for example, states forbid marriage between close family members: first, because sexual reproduction by close family members leads to genetic defects in offspring; and second, because it is generally understood that sexual relationships between kin tend to be coercive, based on grossly unequal power (father-daughter, older and younger sibling, etc.), and therefore not something any society is willing to publicly condone or enable. This is why there is a rational basis to ban incestuous marriage, which does not apply to same-sex or interracial marriage.
Raging Bee
Judges in the US can’t, not even under Employment Division v. Smith 494 U.S. 872 (1990) much less when dealing with statutory exceptions like RFRA. Laws cannot “regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs” Moreover, legislatures cannot target secular laws at disfavored religious practices, such as animal sacrifice. Church of the Lukumi Babalua Aye v. Hialeah 508 U.S. 520 (1993)
Ophelia Benson
Exactly right. Under US v. Ballard 322 U.S. 78 (1944) US courts will not evaluate the truth of religious claims and under Presbyterian Church v. Hull Church 393 U.S. 440 (1969), will not evaluate questions of religious doctrine or church law.
@md, Under US law, marriage is a fundamental right. Loving v. Virginia 388 U.S. 1 12 (1967) (“388 U.S. 1 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”) As a results, states cannot bar prisoners from marrying. Turner v. Safley, 482 U.S. 78 (1987)The Supreme Court has not yet extended that right as a matter of constitutional law to same sex couples, but has talked about states granting the “right” to same sex marriage. United States v. Windsor, 133 S.Ct. 2675 (2013) Numerous lower courts have done so, however, and the Supreme Court is widely expected to recognize that right this year.
TWO-PERSON marriage is recognized as a fundamental right. Plural marriage is clearly not the same thing. And while prisoners cannot be prevented from marrying, blood-relatives can, and so can minors and animals.