Bryan Fischer
It is impossible for polygamy to be constitutional
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By Bryan Fischer
December 17, 2013

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

It's impossible for polygamy to be constitutional in the United States. Historically, legally and constitutionally impossible.

This is for the simple reason that polygamy was illegal everywhere in the United States when the Constitution was enacted. Not only was it illegal, it was a capital crime. The punishment for polygamy was death everywhere in the nation in 1787.

In fact, as the Supreme Court itself noted in 1878, the state of Virginia enacted a statute prescribing the death penalty for polygamy AFTER the passage of its act establishing religious freedom and after recommending that a religious freedom clause be added to the federal constitution.

In 1878, in Reynolds v. U.S., in which the Supreme Court upheld a federal law against polygamy, the Court flatly and correctly stated,

"[T]here has never 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."

As if to nail the ruling down and to eliminate all doubt, the Court added, "So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed." Any questions?

Judge Waddoups, who gutted Utah's polygamy law in his ruling last Friday, cited both the First and 14th Amendment in his act of black-robed tyranny. But the First Amendment has never been amended, so it means the same thing today it meant in 1789 and in 1878. And for you fans of the misbegotten and constitutionally baseless doctrine of incorporation – perhaps the premiere example of judicial activism run amok – you will note that this ruling was issued AFTER the passage of the Fourteenth Amendment.

Some technocrats may argue that Judge Waddoups did not legalize polygamy, he only decriminalized it. That is a distinction without a difference. Let's not pretend that this ruling is anything other than a rabid judge imposing his own moral views on the rest of us and redefining marriage against the will of the people.

Even the uber-leftwing Slate – Slate! – published an article last year decrying the pernicious effect of polygamy on young males, women and children.

Two questions: why has the Mormon church not criticized this ruling? All the church has said is that it is not identified with the polygamous family that launched the lawsuit resulting in this egregious ruling. The Mormon church has gone silent on the issue of natural marriage in the last several years, after securing the passage of Prop 8 in California. One cannot help but wonder if the church has stopped resisting the homosexual agenda in the quiet hope by some in leadership that this very day would come, when an activist judge would springboard off homosexual activism and legalize polygamy, thus vindicating their religion in its original form.

The second question: why haven't we heard a peep from anyone in GOP leadership? After all, the Republican Party came into existence in 1854 to fight those "twin relics of barbarism," slavery and polygamy. To my knowledge, Rick Santorum, who does not hold elected office or any leadership position in the party, is the only one who has spoken a word of criticism. Will somebody in GOP leadership, anybody, speak out against this morally dark ruling? Anybody?

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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