Trial Court Upholds Most of Canada’s Anti-Polygamy Law (Religion Clause blog)

Law Professor Howard Friedman reports on his Religion Clause blog:

Excerpt: In Canada, the Supreme Court of British Columbia (the province’s superior trial court) today upheld most of Canada’s anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province’s attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

In today’s decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), Chief Justice Bauman concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17. To this extent, it violates Sec. 7 of the Charter which provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

http://religionclause.blogspot.com/2011/11/trial-court-upholds-most-of-canadas.html?m=1

Polygamy central issue in Utah Attorney General race

SALT LAKE CITY — Polygamy is never far from the minds of Utahns — even when it occurs in another state.

A raid on a polygamist compound in Texas earlier this year that put more 400 kids in state custody has become one of the biggest issues in the race for Utah attorney general.

Republican Attorney General Mark Shurtleff and Democrat Jean Welch Hill both told The Associated Press that the first question they are asked by voters is always about polygamy, even as they try to focus on other issues.

. . .

Polygamy is a legacy of the early Church of Jesus Christ of Latter-day Saints, who founded Utah and remain its dominant religion. The faith abandoned the practice in 1890 as a condition of statehood, but many self-described fundamentalist Mormons still believe in the principle.

Shurtleff said the Texas raid has made it more difficult for his office to get abused polygamist women to report crimes, and he’s had to reassure polygamist communities that he isn’t prosecuting their religion.

“I think now we’ve convinced them again, ‘That’s Texas. We don’t do that here. We’ll take it a case at a time.’ Ultimately, we have to convince them they have to fear their abuser more than they do us,” he said. “We’re here to serve them, not to judge them.”

For Hill’s part, she said polygamists would never have to fear being prosecuted for their religion. She contends that the state’s bigamy statute is unconstitutional in the wake of the 2003 Supreme Court ruling Lawrence v. Texas.

That case struck down a Texas sodomy law, saying it violated the due process clause and that the state has no justifiable interest intruding into the private lives of consenting adults.

“Our bigamy law still stands, but frankly, it’s indefensible based on that ruling,” Hill said. “You can prosecute for forced marriages, but to actively prosecute a polygamist for being a polygamist? You’re not going to succeed.”

Shurtleff disagrees, saying the state’s bigamy laws would be upheld. He’s more concerned about polygamy being legalized under a court ruling in favor of gay marriage than Lawrence v. Texas.
“Once you take it to the next level of marriage and children, marriage and divorce, that’s different than having sex with who you want in the privacy of your home,” he said.

Read the full article at http://www.chron.com/disp/story.mpl/headline/nation/6077915.html

Government, Religion, and a Mythical Past

By Karen Scott, Walt Pontynen, and Leigh Johnson

In this  article, originally published in Spectrum in 2002, the authors discuss the intent of the founders of the United States and how historical revisionism obscures our national heritage. (Re-posted with Permission.)

AMERICAN PHILOSOPHER and poet George Santayana (1863-1952) wrote, “Those who cannot remember the past are condemned to repeat it.”1 Unfortunately, from the highest offices (both elected and appointed) to the lowliest voter, the reaction of Americans to the Ninth Circuit Court’s decision in the Pledge of Allegiance case indicates that Americans are condemned to repeat the horrors of the Dark Ages.

Many, in attacking the Ninth Circuit Court’s decision, rest their case on the myth that separation of church and state in the United States is the product of modern secularists. They attack a string of decisions handed down by the U.S. Supreme Court since the 1960s. They misuse and misinterpret the Founding Fathers2 who supposedly saw government promotion of Judeo-Christian values as necessary for the survival of the Republic.

However, the record is clear: despite their own personal piety, those who successfully argued for ratification of the First Amendment did not see government as the appropriate avenue for promoting those religious beliefs. They recognized that coercion, the essence of civil government, in matters of conscience is repugnant.

The Founding Fathers were clearly against the formation of the United States being founded on any religion, Christian or otherwise. For example, in 1796 the administration of George Washington negotiated a treaty with Tripoli that the US Senate ratified – unanimously – the following year at the request of President John Adams. The treaty denied that the U.S. government was founded on Christianity, reading in part:

As the Government of the United States of America is not in any sense founded on the Christian Religion: as it has in itself no character of enmity against the laws, religion, or tranquility of Musselmen [Moslems]; and as the said states never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties, that no pretext arising from religious opinion shall ever produce an interruption of the harmony existing between the two countries.3

Washington, Adams, and members of the U.S. Senate were not alone. The United States Constitution itself verifies that the United States is not “founded on the Christian Religion.” One searches in vain through the U.S. Constitution, which encapsulates the thinking of the Founders and provides the framework for national government, for wording that the United States is based on Christianity. Indeed, it makes no mention of God at all. In an era when European monarchs routinely claimed a divine right to rule, the point was obvious. In the United States, authority derives not from any church or religious creed, or from God, but from “the people” – as the preamble to the Constitution plainly states.

So sensitive were the Founders to the danger of pressuring consciences that out of deference to Quaker beliefs they included a provision in the Constitution for Quaker officeholders to “affirm” rather than “swear” their oaths of office. In addition, they forbade any test of religion for holders of federal office. The U.S. Constitution is blind to the religion of its civil servants—whether Catholic, Buddhist, Latter-day Saint, Seventh-day Adventist, Baptist, Methodist, or atheist.

However, the American tradition of strict separation between church and state goes back much further in time than the framers and the Constitution. Its parent was not a liberal, secularist, U.S. Supreme Court, nor an anti-Catholic bigot,4 as some have recently suggested. The tradition even predates Thomas Jefferson, who customarily gets credit for coining the term “wall of separation.”

Its originator was Roger Williams, a devout Christian who lived in the seventeenth century. So devoted was Williams to God that his contemporaries described him as “God-intoxicated.” Williams was a Puritan clergyman who emigrated from England to Massachusetts Bay Colony in the 1630s. He spoke his piece, which disagreed with religious authorities in the colony, went on trial for unorthodox views, and was forced to flee for his life in the dead of winter.

The colony that Williams established in 1636, Rhode Island, is the stuff of legend. Unlike Massachusetts, whose religious establishment had a reputation for whipping, banishing, and hanging religious dissenters, including Quakers and Baptists, Rhode Island extended full religious freedom to everyone, including Catholics, Jews, Muslims, and atheists. The colony had no religious taxes, no church establishment, and no religious tests for office holding. It even exempted nonbelievers from swearing the oath “so help me God,” which, in Williams’ view, would have been meaningless to them and contrary to God’s ways.

Williams believed that God communicates with humans by working on people’s hearts through the Holy Spirit. Thus, even the slightest coercion that interfered with that process displeased God. “Rape of the soul” was the term Williams used to describe forcing people who did not believe in God to observe and participate in religious rituals.5

To Williams, “a wall or hedge of separation” was needed to guard between “the Garden of the Church and the Wilderness of the world.”6 As a result, Rhode Island’s charter guaranteed “full liberty in religious concernments,” and the colony thrived from a diversity of religions. Later, nearly identical wording cropped up in the colonial charters of Pennsylvania, New Jersey and Carolina.

During the American Revolution, Williams’ view of separation between church and state was revitalized and expanded by Baptist Ministers Isaac Backus and John Leland, spokesmen for the fastest growing denomination in the United States at that time, whose activism played no small part in ratification of the First Amendment. Government and religion, Backus warned in 1773, “Are distinct in their nature and ought never to be confounded together.”7

Alexis de Tocqueville was a young French traveler who visited the United States in the 1830s. He wrote in the introduction to his book Democracy in America, “One cannot establish the reign of liberty without that of mores, and mores cannot be firmly founded without beliefs.” This statement is often quoted today by those who tout that the separation of church and state is a myth. What is not quoted from the same book is de Tocqueville’s statement that religion “realizes its sway is all the better established because it relies only on its own powers and rules men’s hearts without external support.”8

Those who have either forgotten why our Founding Fathers erected a wall of separation of church and state or who refuse to acknowledge our history also fail to quote de Tocqueville’s observation that on questioning the “faithful of all communions,” including clergymen, especially Roman Catholic priests, de Tocqueville found that:

“They all agreed with each other except about details; all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that.”9

The high wall of separation between church and state is not the creation of a twentieth-century, liberal, anti-Catholic, secularist U.S. Supreme Court. Rather, it is the creation of a devout and godly seventeenth-century Christian and is an American tradition since the founding of the Republic. History has proven Roger Williams right: religion retains its sanctity best and remains most vital, vibrant, and dynamic when strictly separated from government.

Unfortunately, now with the removal of each brick in the wall of separation, our freedoms are that much less secure and the foundation of our nation less firm. The loss of understanding in the reason for the wall of separation between church and state can only condemn us to repeat the bloody history of past religious persecution.

______________________________________________________________________________

A shorter version of this article can be found under the title “God, Caesar and Historical Revisionism” at:http://old.spectrummagazine.org/library/columns2002/020902scott.html.

1 Allison Jones, ed., Chambers: Dictionary of Quotations (New York, 1997), p. 842, No. 84.

2 See Pontynen and Scott article Founding Fathers: Cannon Fodder in a Cultural War, 2000.

3 “Treaty with Tripoli, 1796, Article XI,” quoted in William Addison Blakely, ed., American State Papers and Related Documents on Freedom in Religion (Washington, D.C., 1947), 311, 312. See also, Robert Boston, “Joel Barlow and the Treaty with Tripoli,” Church and State Magazine, June 1997, 11 – 14.

4 See, most recently, Philip Hamburger Separation of Church and State (Cambridge, Mass., 2002).

5 Our main source for Williams’ life is Edwin S. Gaustad, Liberty of Conscience: Roger Williams in America (Grand Rapids, Mich., 1991).

6 Ibid. 43.

7 Ibid. 203 – 204. The quote comes from An Appeal to the Public (Boston, 1773). See also, Leigh Johnsen, ed., Isaac Backus Papers, 1630 – 1806 (Ann Arbor: UMI, forthcoming).

8 Democracy in America, ed. J. P. Mayers, trans. George Lawrence (New York, 2000), 17, 47.

9 Ibid. 295.

Polygamy: Where religious liberty ends (Salt Lake Tribune)

Trying to walk the line between religious freedom and societal concerns has never been easy. Some scholars say the line is drawn at polygamy. This article explores that option, but is the line even better drawn at child abuse? What about “legitimate” serial marriages and divorces? This issue may gain some traction in the next few months. Admin

Read the full article at http://www.sltrib.com/news/ci_8908639

By Brooke Adams,
Peg McEntee
and Jessica Ravitz
The Salt Lake Tribune

For more than a century and a half, Americans have seen polygamy from a distance and through a filter of silence.
But in recent years, the view has become more distinct: a prophet in prison, jail terms for men who marry underage women, a precision raid on a ranch in west Texas. And this is where the social imperative of protecting the young and the vulnerable collides with the constitutional guarantee of freedom of religion.
This past week, the raid on the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado, Texas, has once again brought polygamy into focus, especially among scholars and legal experts who’ve studied the phenomenon for years.
Marci Hamilton is frankly shocked it had not happened sooner.
“Nobody’s had the guts to do what Texas authorities did,” said Hamilton, a church-state scholar and attorney who lives in the Philadelphia area. “We so often ignore what’s happening to children in religious communities . . . finally a group of authorities realized they couldn’t let it go on any more.”
She has a history with abused children, particularly the sexual assault victims of priests or ministers, and she has no patience for those who argue that the autonomy and privacy of adults is more important than protecting children.

Read the full article at http://www.sltrib.com/news/ci_8908639