Over the last few days I pulled out several legal texts to read again over various ideas and I think there might be a way to legally argue and overturn (not establish) the laws that forbid polygyny. If so this would give all people the right to assemble as they see fit and for the assembly itself or the people in the assembly the right to call it whatever they so desire.
Of course if this route were to be followed it would give any person the right to form their own family however they agree to do it so long as it was done peacefully. But this would then be an inclusive approach not an exclusive approach, which seems to fit better with the 1st Amendment purpose. I'm not sure if anyone has tried this approach or not (if so I've not seen or heard of it).
In many cases people have focused on only one part of the 1st Amendment clause. Normally the focus has been: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Then they argue that polygyny is a religious issue.
But the "marriage idea" has been ruled to be more of a civil (whole societal) issue than a religious one since all people in general marry regardless of their religous status. Thus these arguments, though with some real weight, don't seem to have the amount of weight as we would like for them to have. Furthermore, those who go this route often go too far and argue that we need to make laws giving the permission to marry when marriage is not a permission issue but an innate right that people are born with (even though they have to physically mature to be able to mate).
But there are two other clauses that are in the 1st Amendment. This Amendment also says: "the right of the people peaceably to assemble."
In reading my legal texts I have discovered that this phrase is not directly the same as the next phrase which says: "and to petition the Government for a redress of grievances." In my mind I've always thought the two phrases were talking about the same thing and thus I never saw the "assembly clause" as something distinct from the "petition clause." However, I think I misread that and was wrong about it only applying to the act of petitioning the government. It looks like from my additional reading from previous case law and court rulings that phrase of "peacable assembly" is treated as a distinct phrase not directly connected to the "petition clause," though at times they can work concurrently. In other words, people can assemble together for the purpose of petitioning the government, but the assembling together can be for other purposes not related to petitioning the government. And thus the only qualifiers to that assembling together is that it must be "of persons" and done "peacefully." That would apparently exclude beastiality unions (a person and animal) and yet still include and maintain all the anti-criminal sexual conduct laws (laws against rape, etc as those acts are not peaceful assemblies).
It looks like to me people could argue before the courts that people have the natural right (natural law theory) to assemble themselves (to join) together peaceably. And the idea behind assemble has a broad range of applications. The idea of marry would fit within the idea of to assemble or to join for a common purpose. For example, look at the definitions for "assemble":
1. to come together,
2. to fit,
3. to join together
Now look at some of the definitions of to "marry."
1. to join,
2. to unite closely,
3. the act that unites two parties
A union of man and woman or any set of humans done peacefully for a purpose such as to be a family or to raise children or to simply enjoy each other's companionship could all fall within the semantical domain of the phrase itself. Surely, one might be able to argue, if the people have the right to join together in political parties, in religious organisms, in business endeavors, in actions to petition against the government, in personal common pursuits such as hobbies, vacations, then why not in the common purpose of forming a family or a personal bond for the common purpose(s) that come along with a family assembly? But if the law to assemble would be applied to all places at all times in the states then there would be the right to assemble, sexually, politically, etc. so long as they as adults agreed upon the purpose. Thus the argument would be the laws need to be overturned. This argument could be articulated in such a way that it steers a neutral course not drawing religion into the mix of the equation or argumentation and thus seemingly fit within the spirit of the 1st Amendment as a whole. One could easily argue it seems that several people wanted to form a family but because of some laws against no sexual unions outside of marriage they could not peacefully assemble. Several routes could be taken it seems to show that there exist on the books laws that prohibit people from peaceably assembling and thus those laws conflict with the constitution, the Supreme Law of the Land.
If that could be established then all laws that forbid people from uniting together (assembling) for the purpose of a sexual union or as a family union, if done peacefully, would or could be struck from all of the law books across the land. A seed was laid in the Lawrence vs.Texas case law but this route might take it even further.
As noted above, it would not "establish law" but it would dethrone and cut out all anti-laws that forbid sexual unions between consenting adults who choose to peacefully assemble, which would be a pluralistic law (fitting the spirit and purpose of the 1st Amendment) that then has room within it for polygyny. The religious argument could then maybe even be used as a secondary support, or not used at all depending on the nature of the legal brief and the nature of the court or justices it might be going before.
I've not included the numerous cases that have touched on this so as not to bore everyone here. But there is case law showing the difference in these two phrases and thus room for such idea to be submitted and defended within the courts and Appeals Courts.
Dr. Allen
***WARNING*** Just as a side note, but nonetheless an important one. I urge all who read this, especially those who are eager to take something before the courts, to not run wild and rush to a court or to find any lawyer to file a federal court brief. First, this is only an idea. But if this idea is a good one then this type of effort ought to be done carefully, prayerfully, on the right conditions and right terms with a great legal scholar or even with a team of legal scholars (kinda like a plurality of elders working together, there is wisdom in the multitude). Furthermore, someone or ones entering some effort like this should only do so after it is clear the Lord is calling them to do this (probably verified by prayer with others who can see it as well) and even more so only after they have clean hearts, humble hearts, and a spirit of love and respect for the government. In other words, those that do not respect, fear, and honor government authorities then this would not be the right place to be lest the wrong spirit and attitude undermine the effort itself. Alright, enough said, just a warning, ya know kinda like the "do not try this at home" kinda of warnings.
Of course if this route were to be followed it would give any person the right to form their own family however they agree to do it so long as it was done peacefully. But this would then be an inclusive approach not an exclusive approach, which seems to fit better with the 1st Amendment purpose. I'm not sure if anyone has tried this approach or not (if so I've not seen or heard of it).
In many cases people have focused on only one part of the 1st Amendment clause. Normally the focus has been: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Then they argue that polygyny is a religious issue.
But the "marriage idea" has been ruled to be more of a civil (whole societal) issue than a religious one since all people in general marry regardless of their religous status. Thus these arguments, though with some real weight, don't seem to have the amount of weight as we would like for them to have. Furthermore, those who go this route often go too far and argue that we need to make laws giving the permission to marry when marriage is not a permission issue but an innate right that people are born with (even though they have to physically mature to be able to mate).
But there are two other clauses that are in the 1st Amendment. This Amendment also says: "the right of the people peaceably to assemble."
In reading my legal texts I have discovered that this phrase is not directly the same as the next phrase which says: "and to petition the Government for a redress of grievances." In my mind I've always thought the two phrases were talking about the same thing and thus I never saw the "assembly clause" as something distinct from the "petition clause." However, I think I misread that and was wrong about it only applying to the act of petitioning the government. It looks like from my additional reading from previous case law and court rulings that phrase of "peacable assembly" is treated as a distinct phrase not directly connected to the "petition clause," though at times they can work concurrently. In other words, people can assemble together for the purpose of petitioning the government, but the assembling together can be for other purposes not related to petitioning the government. And thus the only qualifiers to that assembling together is that it must be "of persons" and done "peacefully." That would apparently exclude beastiality unions (a person and animal) and yet still include and maintain all the anti-criminal sexual conduct laws (laws against rape, etc as those acts are not peaceful assemblies).
It looks like to me people could argue before the courts that people have the natural right (natural law theory) to assemble themselves (to join) together peaceably. And the idea behind assemble has a broad range of applications. The idea of marry would fit within the idea of to assemble or to join for a common purpose. For example, look at the definitions for "assemble":
1. to come together,
2. to fit,
3. to join together
Now look at some of the definitions of to "marry."
1. to join,
2. to unite closely,
3. the act that unites two parties
A union of man and woman or any set of humans done peacefully for a purpose such as to be a family or to raise children or to simply enjoy each other's companionship could all fall within the semantical domain of the phrase itself. Surely, one might be able to argue, if the people have the right to join together in political parties, in religious organisms, in business endeavors, in actions to petition against the government, in personal common pursuits such as hobbies, vacations, then why not in the common purpose of forming a family or a personal bond for the common purpose(s) that come along with a family assembly? But if the law to assemble would be applied to all places at all times in the states then there would be the right to assemble, sexually, politically, etc. so long as they as adults agreed upon the purpose. Thus the argument would be the laws need to be overturned. This argument could be articulated in such a way that it steers a neutral course not drawing religion into the mix of the equation or argumentation and thus seemingly fit within the spirit of the 1st Amendment as a whole. One could easily argue it seems that several people wanted to form a family but because of some laws against no sexual unions outside of marriage they could not peacefully assemble. Several routes could be taken it seems to show that there exist on the books laws that prohibit people from peaceably assembling and thus those laws conflict with the constitution, the Supreme Law of the Land.
If that could be established then all laws that forbid people from uniting together (assembling) for the purpose of a sexual union or as a family union, if done peacefully, would or could be struck from all of the law books across the land. A seed was laid in the Lawrence vs.Texas case law but this route might take it even further.
As noted above, it would not "establish law" but it would dethrone and cut out all anti-laws that forbid sexual unions between consenting adults who choose to peacefully assemble, which would be a pluralistic law (fitting the spirit and purpose of the 1st Amendment) that then has room within it for polygyny. The religious argument could then maybe even be used as a secondary support, or not used at all depending on the nature of the legal brief and the nature of the court or justices it might be going before.
I've not included the numerous cases that have touched on this so as not to bore everyone here. But there is case law showing the difference in these two phrases and thus room for such idea to be submitted and defended within the courts and Appeals Courts.
Dr. Allen
***WARNING*** Just as a side note, but nonetheless an important one. I urge all who read this, especially those who are eager to take something before the courts, to not run wild and rush to a court or to find any lawyer to file a federal court brief. First, this is only an idea. But if this idea is a good one then this type of effort ought to be done carefully, prayerfully, on the right conditions and right terms with a great legal scholar or even with a team of legal scholars (kinda like a plurality of elders working together, there is wisdom in the multitude). Furthermore, someone or ones entering some effort like this should only do so after it is clear the Lord is calling them to do this (probably verified by prayer with others who can see it as well) and even more so only after they have clean hearts, humble hearts, and a spirit of love and respect for the government. In other words, those that do not respect, fear, and honor government authorities then this would not be the right place to be lest the wrong spirit and attitude undermine the effort itself. Alright, enough said, just a warning, ya know kinda like the "do not try this at home" kinda of warnings.
