OPINION: Cal Thomas gets it wrong again

I just read this opinion piece, Cal Thomas: Polygamy precedent applies to gay marriage | The Salt Lake Tribune, and I write this in response thereof.

Cal Thomas is the author of the aforementioned piece, which was published by the Salt Lake Tribune. I don't know about you, gentle reader, but this blogger really wonders how an opinion piece advocating that same-sex marriage be denied on the same grounds as, and because, anti-polygamy laws were held constitutional and not an intrusion on the fundamental right to marry, ends up published in the primary newspaper for the Mormon Capital of the World, Salt Lake City, Utah. Mr. Thomas proclaims himself to be "America's #1 nationally syndicated columnist" and syndicated commentator. He has been an outspoken opponent of equality and opposes even tolerance of "homosexuality":

What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect. (source: "The Slippery Slope of Tolerance" published 7 September 2010 by Monterey County's The Herald)

As one may remember, and as Mr. Thomas points out, the State of Utah had to ban polygamy (practiced by those in the Mormon faith at the time) before the Union (the United States of America) would accept its membership. Quoth he, "Has the [New York Times] forgotten the federal government’s “discrimination” against Utah when it forbade the territory from entering the Union until it outlawed polygamy?" Comparing apples to oranges, apparently, is a valid legal argument in Mr. Thomas's opinion. 

Mr. Thomas cites Reynolds v. United States of America, 98 U.S. 145 (1878) which holds that religious action is not protected under the Constitution's First Amendment freedom of religion protections; rather, only religious opinion is.

However, the Court has since developed a test used to determine the constitutionality of legislation versus religious freedoms guaranteed in the First Amendment, in Lemon v. Kurtzman, 403 U.S. 602 (1971). The first two prongs of the test deal with purpose and effect of the legislation; does it intend, or actually result in, the advancement or inhibition of a religion? In other words, the legislation must have "a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” The third prong measures "government entanglement with religion."

Now here's the real apples-to-oranges comparison: Reynolds was a case about criminal law, not civil law. That's right, let me repeat: George Reynolds (petitioner in the case) was convicted of a felony. He argued that his religious beliefs should excuse his felonious behaviour. So, Mr. Thomas uses a convicted felon's argument (that his religious beliefs should excuse him from criminal conduct) to bolster support for his argument that marriage equality should be unconstitutional.

If you, gentle reader, are not already aware, no where in the United States of America is marriage equality (that is, same-sex marriage, or "gay marriage") illegal--not a single jurisdiction has enacted legislation criminalising marriage equality. In fact, there is no locality within the United States where homosexuality is a crime or where comitting homosexual acts are a crime (see Lawrence v. Texas, 539 U.S. 558 (2003)).

If, as Mr. Thomas wished, marriage equality were to continue to be denied in most of the country, it would put the religious beliefs of some ahead of the religious (and non-religious) beliefs of others. Using the basis of his argument, polygamy, it also would require that same-sex marriage be criminalised, and that homosexuality be recriminalised.

The Reynolds Court analyzed the First Amendment's freedom of religion:

The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration 'a bill establishing provision for teachers of the Christian religion,' postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested 'to signify their opinion respecting the adoption of such a bill at the next session of assembly.'

This brought out a determined opposition. Amongst others, Mr. Madison prepared a 'Memorial and Remonstrance,' which was widely circulated and signed, and in which he demonstrated 'that religion, or the duty we owe the Creator,' was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States.' Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three-New Hampshire, New York, and Virginia-included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.' Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

[emphasis supplied.]

Here, we see the famous phrase, "separation of church and state," which, contrary to popular belief, is not actually used in the First Amendment. However, as the Reynolds Court notes, this "wall of separation between church and state" is the wording of one of the chief advocates of such tenet, and which to which the court derives its opinion as to the meaning and scope of the language used in the First Amendment. Why is this important or noteworthy? Because one sees here that the Reynolds Court, in interpreting the law, did not create a "separation of church and state" out of thin air; rather, it pulled it from one of the chief architects thereof.

The Reynolds Court then goes on to examine polygamy in general, noting:

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. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society.

. . .

By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.

[emphasis supplied.] Mr. Thomas is selectively taking the court's view out of context in order to support his misguided argument. Of particular interest is the last statement, "Marriage ... is ... a civil contract, and usually regulated by law." As far back as 1878, the United States Supreme Court has recognized marriage as being a civil matter, governed by civil law, not by religion. While religion plays a part in some marriages, it does not dictate, control, or influence the the 1,138 federal civil laws regarding marriage, nor should it.


Chief Justice Waite put it best:

Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Mr. Thomas states, "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?" Apparently, he has not read the Reynolds case, as nowhere in it does the Court state that the government rejects polygamy as a means of promoting the general welfare. Instead, the Court stated that polygamy generally has been considered in Western civilizations as an offence against society--in other words, it's a crime. Nor does Mr. Thomas understand that polygamy is a crime whereas same-sex marriage, and same-sex relationships among consenting adults, is not criminal conduct of any kind.

As America's #1 syndicated columnist, someone really should be fact-checking his writing, in my opinion, so as not to have such misinformation carried into the public knowledgebase.