Showing posts with label who whom. Show all posts
Showing posts with label who whom. Show all posts

July 12, 2011

Polygamists sue using gay marriage logic

From the NYT:
Polygamist, Under Scrutiny in Utah, Plans Suit to Challenge Law 
By JOHN SCHWARTZ 
Kody Brown is a proud polygamist, and a relatively famous one. Now Mr. Brown, his four wives and 16 children and stepchildren are going to court to keep from being punished for it. 
The family is the focus of a reality TV show, “Sister Wives,” that first appeared in 2010. Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy. 
On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law. 
The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses. 
Mr. Brown has a civil marriage with only one of his wives; the rest are “sister wives,” not formally wedded.

Are these "sister wives" actual sisters? That's the kind of thing I find interesting, but nobody else seems to wonder about...
The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.
Making polygamous unions illegal, they argue, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise, establishment, free speech and freedom of association clauses of the First Amendment. 
“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University. 
The connection with Lawrence v. Texas, a case that broadened legal rights for gay people, is sensitive for those who have sought the right of same-sex marriage. Opponents of such unions often refer to polygamy as one of the all-but-inevitable outcomes of allowing same-sex marriage.  
Such arguments, often referred to as the “parade of horribles,” are logically flawed, said Jennifer C. Pizer, a professor at the law school at the University of California, Los Angeles, and legal director for the school’s Williams Institute, which focuses on sexual orientation law.
The questions surrounding whether same-sex couples should be allowed to marry are significantly different from those involved in criminal prosecution of multiple marriages, Ms. Pizer noted. Same-sex couples are seeking merely to participate in the existing system of family law for married couples, she said, while “you’d have to restructure the family law system in a pretty fundamental way” to recognize polygamy.

Huh? Professor Pizer, there are a whole bunch of Muslims who want to have a word with you about which has been around longer: polygamy or gay marriage.

Well, okay, what Prof. Pizer said didn't make much sense, but let me explain what she really meant: Here's the simple logic behind today's conventional wisdom about who should have family law fundamentally restructured on their behalf and who shouldn't:

Gays are good, so they should get whatever they want.
Fundamentalist Mormon wackos are bad, so they shouldn't. 

And that's all you need to know. The rest is just an exercise in legalistic rationalization of the basic who / whom distinction of gays good / Mormons bad.

That logic will stand to keep polygamy banned as long as it's just blond Mormons doing the suing. But, at some point, say, two immigrants from Guinea here on fraudulent asylum visas will sue for a third spousal visa to import a third spouse into their polygamous marital union. If they are all gay black immigrant HIV+ men who are members of a [long-awaited] progressive gay-friendly Muslim sect and they want immigration laws changed to recognize their culture's ancient history of gay polygamy (just wait for the scholarly books), well, then they've got what will, over a few decades, turn into an obvious slam dunk case. I can't predict exactly which legal rationalizations will be trotted out in that kind of case, but it's only a matter of time.
The Supreme Court supported the power of states to restrict polygamy in an 1879 case, Reynolds v. United States. Professor Turley suggests that the fundamental reasoning of Reynolds, which said polygamy “fetters the people in stationary despotism,” is outdated and has been swept away by cases like Lawrence.
Douglas Kmiec, a law professor at Pepperdine University, said today’s courts might not agree with the sweeping societal conclusions of the 19th-century courts, but noted that more attention has been paid in recent decades to the importance of internal family issues as part of the public policy sphere. Questions of child abuse and spousal domination, he said, could figure into a judicial examination of polygamy. 
“We’re more sensitive to the fact that a household can be quite repressive,” he said, and so reservations about polygamy “might be even more profound.”

Nobody ever mentions the leftover men problem with polygamy. We're only supposed to worry about the harms polygamy causes to women, not to men. (Here's my 2002 article on "The Problem with Polygamy.")
Professor Turley disagreed, noting that “there are many religious practices in monogamous families that many believe as obnoxious and patriarchal,” and added, “The criminal code is not a license for social engineering.”

July 27, 2010

Modern Logic

Libertarian economists Tyler Cowen and Adam Ozimek are worried that a potential nominee for head of the new Consumer Financial Protection Bureau, Harvard Law School bankruptcy expert Elizabeth Warren, might (or might not) favor legal restrictions on high interest loans. Ozimek writes:
My concern is that the agency will go for restrictions that liberals tend to like but that limit credit for those who need it most, like usury laws. This fear seems like a good reason to side with Tim Geithner in (supposedly) opposing Elizabeth Warren as head of the agency. I think a good test as to whether you should support Warren is how you feel about payday lending. If you’re the type of person who thinks that interest rates of 200% are crazy and shouldn’t be permitted, then you probably will like Warren as head of CFPB

Here's Bill Maher interviewing Warren, where he raises the topic of "usury laws" and she points out that we had legal limits on interest rates until the Supreme Court tossed them out in 1979. I don't see in the clip that she endorsed usury limits, just rules requiring effective interest rates to be transparently obvious to borrowers. (I reviewed here the 2003 book The Two-Income Trap that Warren wrote with her daughter : "I came away just plain liking these two ladies and their down-to-earth approach based on both formal data and the realities of daily life.")

Cowen writes:
I am curious about the modern liberal take on autonomy and credit.  Let's say that two gay men, of unknown health status, want to have informed, consensual, unprotected sex.  Should the law prohibit this?  ...

The unprotected sex is riskier and less prudent than borrowing money at an annualized rate of two hundred percent.  Why prohibit one and not the other?  Many of the borrowers are being fooled, but others have legitimate reasons to seek the money, such as wanting to buy a birthday present for a visit to one's child, living with a separated spouse.

Is it that sex is sacred but borrowing money is not?  What if you're borrowing money to catch a plane to go have sex?  Isn't sex a big reason why people might borrow money at high annualized rates?  Aren't "sex decisions" some of the least rational we make and the most prone to error? ...

How many of you would support this same woman -- with enthusiasm -- if she wanted to ban risky but consensual sex?

One Marginal Revolution commenter actually has some useful information to contribute:
"No Authority To Impose Usury Limit- No provision of this title shall be construed as conferring authority on the Bureau to establish a usury limit applicable to an extension of credit offered or made by a covered person to a consumer, unless explicitly authorized by law."
That's a quote from the consumer protection portion of the financial reform bill. Warren, if nominated and confirmed, will have zero authority to stop high interest rate loans, payday loans, etc. Indeed if you listen to her interviews her primary focus is on disclosure and on consumers understanding their contracts. So I think it is misleading to imply that she will just put a bunch of usury caps on when she has no power to do so.

So, don't worry, the right to engage in usury remains sacrosanct.

But, I'm increasingly fascinated by how citing actual huge examples when arguing is now considered in poor taste. My natural reaction when thinking about anything is to look at the most important examples -- why not kill to birds with one stone -- but that's not proper etiquette these days.

For example, gay liberation in the late 1960s and 1970s in places like Greenwich Village, the Castro district and West Hollywood (e.g., the end of police raids on gay bars after the Stonewall Riot following Judy Garland's funeral in 1969) led directly to the AIDS epidemic breaking out about a decade later in places like Greenwich Village, the Castro district and West Hollywood.

The Bush Administration's war against traditional lending standards, such as down payments and limited interest rates, in the name of "Increasing Minority Homeownership" (the title of Bush's 10/15/02 White House Conference) led directly to massive lending to people who previously wouldn't have gotten mortgages in places like the Inland Empire, Las Vegas, and Phoenix, which led directly to massive foreclosures in places like the Inland Empire, Las Vegas, and Phoenix, which is what started the Great Recession.

Maybe we shouldn't have any laws regulating bathhouses or subprime lending, but we at least ought to be able to talk about the costs associated with them.

It's striking how the history of the biggest American public health story of the last half century, the AIDS epidemic, has been rewritten to conform to the demands of Who? Whom? thinking.

We've all been taught to reason according to the following logic:

A. Gays Are Good;

B. So, Anybody Who Mentions Anything Not Good About Gays Must Be:

C. Bad

Therefore, the AIDS epidemic couldn't possibly have been self-inflicted. It had to be the fault of, say, Ronald Reagan, or of homophobic Mormons in Provo, or of something, anything, other than what actually happened.

QED

Of course, exactly the same process is happening to recollections of the mortgage meltdown.

Similarly, the historical connection between money-lending and Jews has come to subtly influence much of the economics profession to view anyone not utterly allergic to prudential limits on lending, even lending of the most "Heads we win, tails the taxpayers bail us out" variety, as probably a raging anti-Semitism and thus illegitimate.

This essentially childish "Who? Whom?" style of thinking is becoming ever more prestigious at the highest levels of the modern world.