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By 3rd Anniversary of 'Lawrence' - Polygamy Rights Accelerating

Date: Jun 26, 2006
Word Count: 1700 words
Cross-Reference: Lawrence v. Texas, polygamy rights, O Centro Espirita, Supreme Court, no marriage amendment

The series of events that occurred during the year prior to June 26, 2006, accelerated the polygamy rights movement; Supreme Court changes, Christian Polygamy recognized, HBO’s “Big Love,” increased media attention, new Court Decision re-guarantees polygamy rights – and a big government marriage amendment still unable to be passed.

June   26,   2006,   marks   the   third   anniversary   of   the   U.S.   Supreme   Court   decision,   Lawrence   v.   Texas.     The   chronology   of   events   over   the   preceding   year   brought   some   powerfully   positive   consequences   for   the   polygamy   rights   movement. 
From   changes   to   the   Supreme   Court,   to   Christian   media   recognition   of   the   Christian   Polygamy   movement,   to   another   new   Supreme   Court   Decision   re-guaranteeing   polygamy   rights,   to   a   new   TV   show   about   polygamy,   to   increased   amounts   of   media   reports   about   the   polygamy   rights   movement,   this   series   of   events   rapidly   accelerated   the   polygamy   rights   movement.     How   fitting,   therefore,   that,   less   than   three   weeks   before   the   third   anniversary   of   Lawrence   v.   Texas,   the   U.S.   Senate   once   again   failed   to   pass   a   federal   marriage   amendment.      
The   chronology   of   events   following   June   26,   2005,   brought   much   indeed. 
July   01,   2005   -   Justice   Sandra   Day   O’Connor   announced   her   intention   to   retire   from   the   United   States   Supreme   Court.     The   significance   of   that   event   cannot   be   overstated.     Justice   O’Connor   had   been   the   actual   deciding   “swing”   vote   in   the   5-4   Decision   of   Lawrence   v.   Texas.     If,   instead,   she   had   opposed   the   Lawrence   v.   Texas   Decision,   the   result   would   likely   have   been   the   opposite,   4-5.     Her   decision   to   retire   thereby   opened   the   possibility   that   she   could   be   replaced   with   a   more   conservative   Justice. 
July   19,   2005   -   President   George   Bush   nominated   John   Roberts   as   a   conservative   to   replace   the   “less-conservative”   Justice   O’Connor. 
August   4,   2005   -   investigating   Roberts’   background,   the   L.A.Times   reported   that   Roberts   had   performed   about   a   few   hours   of   pro   bono   work   for   the   legal   defense   team,   Lambda   Legal,   helping   them   to   “win”   the   Romer   v.   Evans   case,   1996.     That   story   was   also   reported   the   next   day,   on   August   5,   2005,   in   the   New   York   Times.     Back   when   the   Romer   v.   Evans   case   was   being   heard   by   the   Supreme   Court,   Roberts’   law   firm,   Hogan   &   Hartson,   knew   that   he   had   previously   clerked   for   Justice   William   Rehnquist.     So   they   asked   him   to   sit   in   a   practice   moot   court,   role-playing   as   a   would-be   Justice   Scalia.     Roberts’   role-playing   as   a   conservative   Justice   enabled   the   defense   team   to   practice   and   prepare   their   best   method   of   arguing   their   case   before   the   Supreme   Court.     They   succeeded   -   and   with   Roberts'   help. 
August   11,   2005   -   The   Washington   Times   reported,   “In   1980s,   Roberts   wary   of   New   Right,”   including   Roberts’   concerns   about   a   book   written   back   then   by   renowned   conservative,   Paul   Weyrich       And   the   next   day   after   that,   on   August   12,   2005,   Concerned   Women   for   America   picked   up   on   that   same   story,   further   reporting   on   other   conservative   concerns   about   John   Roberts.       Although   many   conservatives   still   supported   the   Roberts   nomination,   there   did   remain   a   few   who   used   this   information   to   oppose   him. 
August   16,   2005   -   the   Christian   Polygamy   movement   got   its   historic   and   first   formal   recognition   as   “evangelical   Christians”   from   Christian   media.     A   “700   Club”   news   report   on   Pat   Robertson’s   Christian   Broadcasting   Network   (CBN)   accurately   reported   about   the   organization   and   its   founder,   Mark   Henkel.     That   acknowledgement   would   be   the   first   of   others   who   followed   afterward,   openly   identifying   the   growing   Christian   Polygamy   movement   correctly   as   “evangelical   Christians.”     The   magnitude   of   the   historical   significance   and   impact   of   that   event   also   cannot   be   overstated. 
September   3,   2006   -   Chief   Justice   Rehnquist   died   of   thyroid   cancer.     Two   days   later,   President   Bush   nominated   John   Roberts   for   Chief   Justice   instead   -   leaving   the   vacancy   for   Sandra   Day   O’Connor’s   seat   still   unfilled.     However,   she   held   off   her   pending   retirement   until   her   replacement   on   the   Court   could   be   determined. 
September   29,   2005   -   50-year-old   John   Roberts   was   confirmed   as   the   new   Chief   Justice   of   the   U.S.   Supreme   Court.     With   all   55   Republicans,   22   of   44   Democrats,   and   1   Independent   supporting   Roberts,   the   confirmation   vote   in   the   Senate   was   78-22. 
October   31,   2005   -   President   George   Bush   nominated   Samuel   Alito   to   fill   the   forthcoming   vacancy   from   Justice   Sandra   Day   O’Connor’s   retirement.     Presented   as   being   another   conservative   nominee,   the   political   battle   over   Samuel   Alito’s   confirmation   ensued   for   the   next   three   months. 
January   31,   2006   -   55-year-old   Samuel   Alito   was   finally   confirmed   as   an   associate   Justice   on   the   U.S.   Supreme   Court.     With   54   of   55   Republicans   supporting,   with   4   of   44   Democrats   also   supporting,   and   with   1   Independent   opposing   Alito,   the   vote   was   58-42.       By   replacing   O’Connor   who   had   been   the   deciding   “swing”   vote   that   supported   Lawrence   v.   Texas,   many   perceived   that   a   conservative   Alito   would   have   caused   that   kind   of   a   case   to   have   failed   instead. 
February   21,   2006   -   the   U.S.   Supreme   Court   gave   a   unanimous   8-0   Decision   in   a   new   religious   freedom   case   called,   Gonzales   v.   O   Centro   Espirita   Beneficente   Uniao   Do   Vegetal.     The   new   Chief   Justice   Roberts   even   wrote   the   official   Decision.     The   other   new   Justice,   Samuel   Alito,   had   not   participated   in   the   Decision   because   he   had   not   yet   been   appointed   at   the   time   when   the   case   was   heard.     This   case   would   become   the   third   of   three   important   Supreme   Court   cases   re-guaranteeing   polygamists’   Constitutional   rights. 
March   12,   2006   -   the   pay-TV   network,   HBO,   debuted   its   new   series,   “Big   Love.”       With   a   storyline   premised   around   a   quasi-secularized   Mormon   polygamist   with   three   wives,   the   TV   show   was   the   first   of   its   kind   to   positively   portray   polygamy   of   any   kind.     The   topic   of   polygamy   thereby   exploded   in   the   public   marketplace   -   and   the   discussion   of   the   differences   between   Mormon   Polygamy,   Christian   Polygamy,   and   other   forms   was   made   possible.     From   the   national   organization   (extolling   love-not-force   polygamy   with   Christian   Polygamy)   to   the   Utah/Arizona-area,   Principle   Voices,   (presenting   a   positive   model   of   Mormon   Polygamy),   the   topic   of   polygamy   was   being   more   honestly   discussed   in   the   media. 
Spring,   2006   -   as   a   result   of   the   massive   media   interest   about   “Big   Love,”   numerous   media   outlets   reported   about   the   national   polygamy   rights   movement.       Founder   Mark   Henkel   and   Christian   polygamous   members   from   the   organization   were   reported   in   various   well-known   media   reports.       Henkel’s   sound-bite,   “Polygamy   rights   is   the   next   civil   rights   battle,”   was   repeatedly   reported   “around   the   world.”     That   sound-bite   offered   the   solution   to   end   the   so-called   “same   sex   marriage”   debate   once   and   for   all:   true   limited   government   by   getting   government   out   of   defining   and   “abominating”   marriage   altogether. 
June   7,   2006   -   the   U.S.   Senate   yet   again   failed   to   pass   a   federal   marriage   amendment.     In   a   vote   of   49-48,   the   so-called   “Marriage   Protection   Amendment”   could   not   even   obtain   50   out   of   100   Senators   to   vote   yes   for   cloture   to   actually   vote   on   it.     That   fell   short   of   the   60   votes   needed   for   cloture   –   never   mind   the   67   votes   it   would   have   still   needed   to   actually   pass   the   amendment   itself.     In   the   end,   desecrating   the   U.S.   Constitution   with   another   big   government   amendment   was   not   going   to   happen. 
Such   an   important   chronology   of   events   could   not   have   been   predicted   –   particularly,   the   changes   to   –   and   a   new   Decision   by   -   the   Supreme   Court. 
The   previous   12   months   had   begun   with   the   “swing”   voter   of   the   Lawrence   v.   Texas   Decision   announcing   retirement   and   being   replaced   with   a   “more   conservative”   Justice.     Despite   the   seemingly   “more   conservative”   ideological   shift   in   the   composition   of   the   U.S.   Supreme   Court   with   two   new   Justices,   though,   the   Court   actually   ended   up   making   a   new   unanimous   Decision   in   a   case   that   provided   one   of   the   strongest   re-guarantees   of   polygamy   rights   yet:   Gonzales   v.   O   Centro   Espirita   Beneficente   Uniao   Do   Vegetal.     While   Romer   v.   Evans   (1996)   and   Lawrence   v.   Texas   (2003)   are   often   represented   as   being   “unconservative”   Decisions,   this   third   landmark   case   was   an   unquestionably   conservative   one,   indeed   –   and   it   was   unanimous. 
Although   “Gonzales   v.   O   Centro   Espirita”   was   specifically   dealing   with   a   sacramental   use   of   hallucinogenic   tea,   the   case   re-established   the   overall   “standard”   for   would-be   “religiously   neutral”   laws   as   set   by   the   Religious   Freedom   Restoration   Act   of   1993.     With   the   praise   of   conservatives   and   even   some   liberals   too,   the   Roberts   Court   thereby   established   the   requirement   of   -   not   one,   but   -   two   burdens   of   proof   upon   the   government   regarding   “religiously   neutral”   laws. 
First,   it   established   that   government   has   the   burden   of   proof   to   show   that   it   has   a   compelling   interest   to   ban   all   forms   and   applications   of   an   activity     Second,   even   if   the   federal   government   is   capable   of   proving   that   such   a   compelling   interest   legitimately   exists   for   a   total   ban,   the   government   also   has   the   second   burden   of   proof   to   show   –   on   a   case   by   case   basis   -   that   allowing   any   “regime   of   religious   exemptions”   from   such   a   total   ban   would   undermine   those   overall   compelling   interests   of   the   total   ban. 
While   the   specific   case   involved   drug-use   bans   and   a   religious   use   of   a   hallucinogenic   tea,   this   re-established   “standard”   equally   applies   to   polygamy   bans   of   all   forms   and   applications   of   polygamy.    
First,   because   polygamy   is   a   neutral   word   and   can   only   be   subsequently   connected   to   the   different   ways   in   which   it   is   applied,   it   would   be   completely   impossible   for   government   to   rationally   argue   that   it   has   any   compelling   interest   in   banning   all   forms   of   polygamy.       Hence,   the   first   test   would   not   pass.     Secondly,   even   if   government   could   accomplish   such   establishment   of   proof,   it   would   be   even   more   impossible   for   government   to   ever   rationally   prove   that   allowing   a   religious   exemption   for   individual   benevolent   models   of   applying   consenting-adult   polygamy   -   such   as   Christian   Polygamy   -   would   somehow   undermine   those   overall   would-be   compelling   interests   of   a   total   ban.     Hence,   even   if   the   first   test   could   pass,   the   second   test   could   never   pass   within   the   re-established   “standard”   from   the   Roberts   Court. 
Accordingly,   even   as   most   conservative   organizations   rightly   applauded   the   8-0   Decision   in   this   case,   Gonzales   v.   O   Centro   Espirita   Beneficente   Uniao   Do   Vegetal   (2006)   is   a   truly   conservative   Decision   by   the   Court   that   ultimately   re-guarantees   the   constitutional   rights   of   good,   healthy,   consenting-adult   polygamists   such   as   Christian   Polygamy.     And   the   Decision   was   written   by   Chief   Justice   Roberts   –   the   conservative   who   had   helped   in   winning   the   Romer   v.   Evans   (1996)   case. 
Add   to   that,   the   Christian   media   recognition   of   Christian   Polygamy,   HBO’s   TV   show,   “Big   Love,”   and   the   massive   media   exposure   of   the   polygamy   rights   movement,   it   is   no   wonder   that   –   once   again   -   the   U.S.   Senate   could   not   pass   a   big   government   marriage   amendment. 
Truly,   therefore,   on   the   third   anniversary   of   Lawrence   v.   Texas   –   even   with   the   “swing”   vote   Justice   O’Connor   no   longer   on   the   Supreme   Court   –   pro-polygamists   have   much   for   which   to   celebrate.     As   of   June   26,   2006,   freedom   from   the   utterly   unconstitutional   big   government   tyranny   of   anti-polygamy   laws   is   unstoppably   coming. 
Happy   Anniversary   indeed! 


Bibliographic URLs:

Lawrence v. Texas 
Sandra Day O’Connor 
Bush nominated Roberts for Chief Justice instead 
“Other conservative concerns about Roberts” 
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal 

700 Club reports of Christian Polygamy

HBO's "Big Love"

Henkel's sound-bite: "Polygamy Rights is the Next Civil Rights Battle"

Polygamy Interviews & Reports in the Media

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