Eagle Forum Legislative Alerts

Saturday, December 14, 2013

Judge allows Utah polygamy

Law professor Ruthann Robson reports:
In a 91 page  opinion  in Brown v. Buhman,  federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.  ...

The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people." ...

However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis."
Here are some excerpts from the orientalism in the opinion:
“It should come as no great surprise that many Orientalists took for granted the superiority of Western civilization and the right of Europeans to rule over Asians and Africans: these assumptions were pervasive in nineteenth-century European culture. Though there were always those who rejected them and opposed colonialism and imperialism, most Europeans (and later Americans) sincerely embraced the notion of the ‘white man’s burden’ — the idea that the civilized white Europeans had a duty to exercise firm but beneficent tutelage over what they regarded as the less advanced, child-like, dark skinned races and guide them toward civilization”

Orientalism, then, is knowledge of the Orient that places things Oriental in class, court, prison, or manual for scrutiny, study, judgment, discipline, or governing.” Thus, Said located “the essence of Orientalism” in “the ineradicable distinction between Western superiority and Oriental inferiority.”

“Edward Said’s work on Orientalism offers some clues as to why [nineteenth century] cartoonists might have portrayed Mormon polygamists as Black and Asian. ... Thus the public imagination’s construction of Mormons as members of subject racial groups (Asian and Black, mainly) played a crucial role in subjecting Mormons to federal control.” ...

Because the United States Supreme Court’s 1879 decision in Reynolds v. United States displays “the essence of Orientalism” through its explicit “distinction between Western superiority and Oriental inferiority,” this is a relevant interpretative framework for evaluating the “crusade” of nineteenth-century American society against Mormon polygamy and the merits of the Reynolds decision today.

Although the object of the decision was the Mormon Church, an institution virtually entirely comprised of white Americans and European immigrants, rather than the “Orient” or a people or institution geographically unique thereto, Reynolds invokes this framework because of the comparisons drawn by the Court between Mormons and non-European peoples and their practices, and the Court’s views of the nature of the social harm posed by Mormon practices. For the Reynolds Court, the comparison with non-European peoples and their practices is precisely what made the Mormons’ practice of polygamy problematic.
So I guess that it is somehow racist and hence unconstitutional to have marriage laws that are based on a view that monogamy is better than polygamy.

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