Monday, July 12, 2010

Cal Thomas and Utah - Showing a Huge Lack of Historical Understanding

Please read the following article from Cal Thomas before continuing, though I will extensively quote the article in the following post.

http://www.sltrib.com/sltrib/opinion/49914799-82/marriage-law-elites-federal.html.csp

Writing in the Salt Lake Tribune, Cal Thomas argues that the ban of Polygamy in Utah, shows that the United States federal government has jurisdiction on the marriage issue. He is making this claim in response to the recent Massachusetts judges assertion that the Federal Government does not have jurisdiction over marriage because it has traditionally been a state affair. Well let us look at some of the historical aspects in question that Thomas uses in his article.

The following claim is made about the induction of Utah as a state...
A New York Times editorial says of DOMA, “There is no rational basis for discriminating against same-sex couples.” Really? Has the newspaper forgotten the federal government’s “discrimination” against Utah when it forbade the territory from entering the Union until it outlawed polygamy?
 First of all, any study of Utah history will realize that in the numerous attempts to obtain statehood, polygamy was not as big of an issue as might be assumed. In fact, in the year 1850, the first time that Utah applied for statehood, it was not even on the radar, as other issues were preeminent, such as the size of the proposed State of Deseret and the fact that the proposed state had an insufficient amount of people in it to qualify for statehood.

Only after the the Morril Anti-Bigamy Act was passed in 1862 did polygamy and its practice become a thorn in the attempt of the people of Utah to become a state. Interestingly, though Thomas is correct in stating that Utah was forced to write anti-polygamy statutes in in Constitution before it could become a state, he fails to mention two things. First, Utah became a state in the year 1896...six year after the LDS church had officially outlawed the practice and thus the main impediment to statehood, and Second, the Morril Anti-Bigamy Act - which ended up being redrafted into the Edmunds-Tucker Act - is not on the books today, in fact it was repealed in 1978 by the United States Congress.

Thomas also claims this...
In 1878, the Supreme Court declared in Reynolds v. United States that polygamy was not protected by the Constitution.
On the contrary, for that is not what the Supreme Court declared, and anyone who reads just a little on that case will realize this. You see, by this time Congress has enacted the Morril Anti-Bigamy Act, which outlawed polygamy in the territories of the United States. The plaintiff in the case before the Court - George Reynolds - argued that because his religious beliefs necessitated him to practice polygamy, he should be exempt from the new law because of First Amendment.  The court disagreed, for they stated in so many words that the First amendment of the Constitution does protect religious beliefs, but it does not protect the "actions" of those beliefs. The Court stated that it if they agreed with the plaintiff that his religious belief to practice polygamy trumped federal law, then any "religious belief", like human sacrifices could be deemed protected under the First Amendment.  Thus the Reynolds v. United States case was not a case on polygamy, as Thomas would like us to think. Instead it was a case on religious freedom, the actions that flow from religious freedom, and how those actions interact with federal law.

Next quote from Thomas -
If the federal government could reject polygamy then as a means of promoting the general welfare, why can’t it block attempts to redefine marriage now? If marriage is redefined by courts, what is to stop anyone from declaring a “right” to any relationship they wish to enter and demanding “equal protection” under the Constitution?
What Thomas refuses to see here is that other forms of relationships - those that he says people will declare a "right" to have - have known negative individual, social, and ethical consequences.Thus the federal government does have the jurisdiction to regulate them. Homosexual relationships on the other hand, have none of these individual, social, or ethical consequences. Though the Right might say that there is, there is no definitive research to back up their claims, and instead all evidence points to how these relationships are beneficial to all involved.

The purpose of government is to “secure” unalienable pre-existing rights about which Thomas Jefferson wrote in the Declaration of Independence (a document Kagan dismissed as irrelevant to the Constitution, though it is the Constitution’s moral and philosophical foundation). Government is not supposed to create new rights like national health care, or same-sex marriage.

Thomas again is shooting himself in the foot here. First he brings up Kagan, which I really don't see how she has any implications in this debate, but secondly he goes against the majority of Supreme Court jurisprudence. The Supreme Court has repeatedly stated that their exists a right to marry, so though Thomas Jefferson might not have "thought" that this would be a right, the highest court of our land has asserted that it is. Thus, the Supreme Court, by legalizing something like gay marriage, is not "creating" a new right. Instead it is recognizing that this already established right applies to all individuals in the United States, not just the majority.

And here is the kicker quote from Thomas...

Marriage redefiners demand acceptance for their position that morality, as well as right and wrong, are to be determined by polls.
If polls show the public disapproving of behavior the elites favor, the elites ignore majority opinion and seek to shove it down our throats anyway, because, you see, only they can be right.
Nowhere has gay-rights advocates wanted the morality of gay rights to be determined by the polls. Yes, they would like to see gay rights gain widespread acceptance from the American people, but because gay marriage is a civil rights issue, they recognize that even if the "majority" disagrees with them, the law should not.

Thus, from the outset, with Thomas' view of history, a distortion at best to fit his ideological bent. To his last quote stating that a minority is shoving their morality down a majority's throat, Thomas has once again shown that he is no better than his other Right-wing bedfellows.

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