I’m not surprised that Archbishop Dolan of the Archdiocese of New York defines “freedom” as doing what he and his clerical buddies tell you to do, or “limited government” as government that limits private actions that depart from Church doctrine. That’s his job.
Nor was I really surprised to find that Gov. Rick Perry can’t make sense of the Book of Genesis. That’s not his job.
But you’d think that an Archbishop, even if not personally a Bible-reader, might at least have one on his staff. So when his Eminence refers to:
an undeniable truth – one man, one woman, united in lifelong love and fidelity, hoping for children – that has served as the very cornerstone of civilization and culture from the start
then I can only scratch my head.
Monogamy is a fine idea, but it’s not in fact the historical norm: in lots of cultures and civilizations in the past, powerful men mated with, and sometimes married, multiple women. And it’s not in fact the Biblical norm, either. Adultery - understood as sex between a married woman and a man not her husband - and pre-marital sex are forbidden, but not polygamy.
Abraham had Hagar as well as Sarah. Jacob had two wives and two concubines: their twelve sons are the ancestors of the Twelve Tribes. David had eight wives; Nathan calls him out for his pursuit of the already-married Bathsheba and the murder of her husband Uriah, but once Uriah has been killed David marries Bathsheba and begets Solomon, without any criticism. Solomon had a whole harem-full of women, and gets criticized not for their number but for the fact that some of them were non-Israelites.
So if monogamy is, as His Eminence says, the ordinance of God, it took God - according to the Bible - a long, long time to make up His mind.
Footnote I’m not without sympathy for the Church’s position here. After all, it was in the business of defining “marriage” long before the State of New York was; family law didn’t become a state, as opposed to a Church, function until after the Wars of Religion. By allowing same-sex pairs to call themselves “married,” the state is telling the Church that it’s wrong about the meaning of one of its sacraments. So the proposal to have the State define, license, and protect pairwise domestic bonds as a purely civil matter, leaving the ritual of marriage to the churches and to civil society, seems to me a reasonable compromise.
But, as far as I can tell, Barack Obama and I are the only ones who think so. And His Eminence is disingenuous - to use no stronger term - when he disclaims any interest in denying gay couples civil rights, when at the same time he defends the Defense of Marriage Act. Every step forward for gay rights - including the steps the Archbishop now says he approves of - has been made against the virulent opposition of the Church. If Archbishop Dolan had had his way, gay sex would still be a crime.
Having insisted that the state enforce its views (and the views of its sister churches) on those who don’t share those views, the Catholic Church is now confronted with having the state come in on the other side of the question: not, of course, to require the Church to marry, or consider as married, anyone it doesn’t want to marry, but simply to extend the civil status called “marriage” to any adult couple that wants to claim it. Yes, that’s a black eye for the Church, but not one it hasn’t earned.
Live by the sword, die by the sword. It’s in the Bible.
Wait, so religious interpretation is a form of relativism? Nooooooooooooooooo!!!!!!!!!!
Marriage didn’t become a CHURCH function until after 1000 C.E. Marriage as a state function goes back to Hammurabi.
(an extract from)
Absalom and Achitophel
by John Dryden
In pious times, ere priestcraft did begin,
Before polygamy was made a sin;
When man on many multiplied his kind,
Ere one to one was cursedly confined;
When nature prompted, and no law denied
Promiscuous use of concubine and bride;
Then Israel’s monarch after heaven’s own heart,
His vigorous warmth did variously impart
To wives and slaves; and, wide as his command,
Scattered his maker’s image through the land
Michal, of royal blood, the crown did wear;
A soil ungrateful to the tiller’s care:
Not so the rest; for several mothers bore
To godlike David several sons before….
The “united in lifelong love and fidelity, hoping for children†clauses are also… interesting… in light of the Biblical pattern for a husband to have one infertile wife whom he favors and a fertile one who feels out in the cold. Cf. Abraham/Sarah/Hagar, Jacob/Rachael/Leah, Elkanah/Hannah/Peninah.
BTW, not that it has a snowball’s chance of being passed, but have any legal beagles tried coming up with a model polygamy statute?
(Simply extending the current marriage rules to groups of any size would be problematic because, for example, an organized-crime boss could marry all of his/her underlings and then any conversations among them would be covered by spousal privilege.)
Seth, the rules that apply to serial monogamy and parental rights/responsibilities are probably close enough that it wouldn’t be difficult. In African countries where Christian and Muslim and Animist believers are all present the laws provide for both monogamous and polygamous unions. The marriage certificate will indicate whether the parties intended to contract for a monogamous or polygamous union, which protects individuals from having their spouses decide to change the rules after signing the contract. In the U.S., of course, the rules would have to be gender neutral. The biggest issue is to clarify that having more spouses will not entitle you or them to greater public benefits. It often comes as a shock to people who are the second or third spouse that the total social security payout based on marital status does not increase with the number of spouses (or children).
Notwithstanding, I do not believe that the state is required to provide a legal edifice to formalize existing informal polygamous arrangements, which are not, after all, illegal. You can say you have two wives — you just can’t represent both as legally recognized by the state.
[…]an organized-crime boss could marry all of his/her underlings and then any conversations among them would be covered by spousal privilege.
Marriage creates all kinds of legal entanglements. Mr/Ms Organized Crime Boss would be a fool to casually enter into that status with large numbers of people. There is all sorts of paperwork where they’d need to get signatures from every single spouse — depending on the state, this could include mortgages, sale of property, changing beneficiaries on an insurance policy, etc etc etc. Who wants to deal with needing dozens (or more) of people’s signatures on every piece of paperwork related to real estate, medical care, retirement benefits, children’s education ….
Plus, in a community property state, all of the underlings would have an equal right to any wealth acquired by Mr/Ms Organized Crime Boss during the period of their “marriage” (with limited exceptions). I don’t think many bosses would like that idea.
In light of Barbara’s comment, I should clarify that I meant Legal marriage creates all kinds of entanglements. She’s quite right that you can get married without involving the state. Many same-sex couples in the US have been married by Quaker Meetings in states where same-sex marriage is not recognized. But that obviously wouldn’t help Mr/Ms Mafia Boss with the need for immunity.
@ Seth:
There is a model polygamy statute, albeit a charmingly old-fashioned one. It’s in the Model Penal Code, a masterpiece of 1960’s (or maybe 1950’s) drafting by the American Law Institute. It defines polygamy, unsurprisingly, as a crime. However, you may be surprised to know that the crime is not being married to several people, because that would be impossible in the US. (Married people do not have the power to marry again before getting divorced, and any putative such marriage is void.) Rather, the crime is that of holding oneself out to be married to several people. Bigamy is the crime of holding oneself out to be unmarried and contracting a void second marriage.
The polygamy statute has an exception for visiting sheikhs and the like. As far as I can see, it is an unconstitutional violation of several prongs of the First Amendment. Other lawyers may wish to chime in.
Ebenezer, it’s hard to react to whether the MPC provision would be unconstitutional until you figure out how it is being used. In most cases where polygamy is prosecuted it is prosecuted via the misrepresentations that people make to state governments to get benefits — as in, multiple women assert that they are legally wedded to the same man and eventually the state realizes that can’t be true. Or one man makes the opposite assertions — claiming one spouse and then the other, let’s say, for purposes of insurance or some other benefit. You could prosecute him for fraud, but that requires proving scienter — much easier to prosecute for illegally holding out someone as a bona fide spouse under the law.
In a parallel kind of situation, people were sometimes prosecuted for sodomy because it was judged to be too difficult to prosecute them for rape, but it was clear to prosecutors that rape took place. You read these kinds of cases in law school — the problem, of course, is that the statute could also apply where there is no coercion or conduct that is objectionable on other grounds (involvment of minor), so that they can become a tool of persecution.
So as a general proposition, I would say that such laws should be disfavored, but the one re polygamy is probably narrowly drawn enough that it would be much harder to misapply like the sodomy laws.
I should also say that in older definitions of rape, the law often required some kind of actual vaginal penetration by the male organ — so a bottle or a tongue or finger wouldn’t technically fall within the definition of rape, and “forcible sodomy” wasn’t a separate crime — just plain old sodomy (which was often not defined but basically was supposed to extend to “everything else” you could do “down there” that was something other than intercourse).
In Argentina (perhaps elsewhere but I happen to know about Argentina), couples must be married in a civil ceremony presided over by a state official in order for their marriage to be recognized in law. Most couples also choose to have a religious ceremony so that they will be married in the church, but that ceremony has no legal effect at all.
It seems to me that if Archbishop Dolan weren’t a hypocrite, he would be advocating for a law that would take his priests out of the legal marriage business entirely and make the State of New York use its functionaries to make legal marriages. But he doesn’t want that. No, he wants his priests to continue to have “the power invested in [them] by the State of New York” while at the same time pretending that what they’re doing is a religious sacrament.
“but once Uriah has been killed David marries Bathsheba and begets Solomon, without any criticism”
This kinda skips over the death of David’s first child by Bathsheba (2 Sam. 12), which Nathan expressly says is a punishment for killing Uriah.
Doesn’t affect your point, but for the record and all that.
J, I think that what would probably stop most men (and perhaps more than a few women) from actually considering polygamy, official western style, is that it would not place any of the spouses in a legally superior position. For instance, let’s say that a couple gets married and then decides to add another spouse. When the arrangement breaks up, that “new” spouse is going to take away property from the others — whether it’s pension, equity in the house, or something else, when you bring a new person into the household you are elevating the risk that you will lose some portion of your worldly goods to someone. The more spouses you bring on board the more likely it is that someone will walk away with part of what you own.
In traditionally polygamous societies men are not really required to share much if anything with a divorcing spouse. Hence, there is really no penalty to men from contracting polygamous relationships if they don’t work out. That won’t work in the West, where divorcing spouses have rights and there is consideration for their material and property rights. Some of the angriest and most disillusioned men I know are those with multiple ex-spouses. A failed marriage can be a very costly mistake.
Barbara,
I think that the MPC polygamy statute is facially invalid under the First Amendment. The crime is holding oneself out to be married to several people. This is a purely expressive act-there is no need for sex or support or welfare fraud. Heck, it could all be done over the Internet! I know that the Supreme Court has limited facial free speech challenges, and I forget precisely how this would play out in the polygamy statute. But if anything gets a facial challenge, this is is. My wife and I sometimes kid around how our dog is the third member of our marriage. If we intend other people to believe it, I think we’ve violated the statute. Agreed, no prosecutor would ever think of applying it in to us (although our previous local prosecutor did some real nasty stuff with sex crimes.) But that doesn’t save you from a facial challenge.
The free exercise argument is also pretty strong, but as you point out, it would require a prosecution with no elements of statutory rape, welfare or insurance fraud, or the like.
But everyone knows that Catholics don’t read the Bible. That’s a Protestant thing. Archbishop Dolan was just being a good Catholic.