Monday, February 21, 2011

Poly in court - testimony of Prof John Witte Jr.

Summary of transcripts of BC Supreme court session on January 10, 2011.

The Attorney General of Canada called as their next witness Professor John Witte Jr. as an expert in American and English (but not Canadian) legal history, marriage and historical family law and religious freedom to provide evidence consistent with his report relating to the historical development and evolution of the dyadic marriage structure and the prohibition of polygamy in the western tradition.

Professor Witte received his JD from Harvard Law School in 1985 and is currently a professor at Emery College Law School and Director of Emery College's Law and Religion Center. Prof Witte teaches exclusively graduate level course in the law, theology, arts and sciences schools. His courses are concerning constitutional law, legal history in first amendment religious freedom, comparative religious liberty, American and European legal history. The Law and Religion Center focuses on issues of religion and human rights comparative religious freedom, issues of Islamic law, Jewish law, Christian canon law,marriage, family, sexuality and children.
The centre's work manifests itself in six different joint degree programs that a student can pursue a JD and another degree concurrently and there are a series of clinical internships for students to work with organizations that cultivate legal and theological understanding of a given topic. The Center also publishes books adn sponsors a variety of public forums from individual lectures to panel discussions to
one-day conferences and every three or four years and they have major international conferences that involve several days, several dozen speakers and several hundred audience members. The Center has culminated all of these in a series of major research projects that have produced over 340 published volumes in the last 25 years.

In this report for this reference case, Prof Witte discusses:
- Greco Roman and biblical sources for the origins of monogamy and polygamy
- early Christian and medieval teachings on protestantism and the Protestant reformation of monogamy and polygamy laws
- modern common law views of monogamy and polygamy

Highlighted points of the report:

1. - for 2500 years the western tradition has taught that marriage is a monogamous dyadic union exclusively between a man and a woman
- that union is formed in a two-step process with an engagement contract and then a marriage contract. The marital contract is usually celebrated in a wedding or in some kind of public ceremony in which the public is involved including the families of the respective parties. In some instances between the engagement and the wedding there are elaborate economic negotiations. There's an exchange of property between the parties.
- a set of duties is attached to the status of "married" for the spouses to each other and between parents and children - these duties survive divorce and death
- in a few common law jurisdictions today that has been extended to include a dyadic union between same sex parties

2. - the western tradition has taught throughout that 2500 years that polygamy is not a recognized form of marital union.
- any attempt in the first 800 years from the 6th century BCE to the 3rd century BCE to have a polygamous union recognized as a marriage was voided
- after the 3rd century polygamous unions were criminalized
- 6th century Roman law began to systematize a set of crimes that were considered to be serious sexual crimes that eroded the institution of marriage and under cut the private and public good that marriage sought to achieve for the community. Amongst things that start getting singled out adultery, incest and polygamy.
- polygamy was a persistent practice amongst a set number of Jews and other conquered people and Roman law set to stamp it out by stating the concerns bout the lack of mutuality between the man and the multiple women and the lack of stable structures for children that are produced in these unions
- by the 9th century in much of the west polygamous unions were considered to be capital offences that gave rise to execution
- biblical texts from Adam and Eve in Genesis shown to be a divinely encouraged dyadic coupling to and the concept of two becoming one flesh promotes the preferred arrangement of monogamy.
- the Hebrew Bible in particular records about a dozen stories of patriarchal households by heros of the faith who have multiple wives and keep a wife and multiple concubines and those stories include Abraham and Jacob and David and Solomon and some of the other titans of the faith each of them participates in polygamy and each of their households is riven with internal turmoil in Prof Witte's opinion the church fathers will take those stories as indication that polygamy is unnatural and that it's the cause and the consequence of a number of harms sometimes serious crimes.
- The notion that polygamy is a cause and a consequence of harm was considered to be a sufficient ground among many later theologians for its prohibition in the
western tradition.

3. The function of marriage as its described by the philosophers is that marriage is a source of both private goods and of public goods.

- private goods for the couple are mutual friendship,companionship,love and support, as well as mutual protection from the temptations to wander sexually.
- public goods being the vehicle for the production of legitimate children through which a party can pass his or her property, legacy or name - the family unit provide nurture,care,support,education and internal welfare from generation to generations and that's good for society.

4. Philosophers of the enlightenment and late medieval scholars described monogamy as the better protector of natural rights of the child to be raised by the parents that gave it birth, the natural duty of the parents to raise the child they produced,the natural rights of women to be treated with equality and dignity in her relationship with her husband and not rendered an indentured servant or slave.  Natural rights, natural law, natural duty are language seen in the 15th and 16th century texts as the discussion of a new paradigm of thought set apart from religion began the enlightenment period. Monogamous marriage is seen as a good institution and polygamy is seen as a dangerous institution in the west. Monogamy is seen as the preferred source of reproduction as it encourages the male to protect a fragile infant with ensured paternity rights.

Prof Witte discussed several 17th Century jurists who's opinions have been foundational in the formation of English and early American common law.  These all concur that one of the consequences of having one man with multiple wives is that the children do not have resources at their disposal the way they would in a monogamous relationship.  Polygamy was seen to result in children who become impoverished, malnourished, and under educated.  One man with 25 children was far less efficient than 25 children produced by five men with one wife each.  Polygamy was referred to as a patriarchal fraud because it betrays the fundamentals of what marriage namely mutuality and companionship of husband and wife and renders the women indentured servants or slaves.  Polygamy was seen to spawn jealousy and competition between wives and between children in the home. Polygamy was also bad for men as it inflames the passionate lust of the man and by encouraging him to take a second wife, he will lust after a third, fourth and fifth.  It gives him opportunity to take a step on that slippery slope.  (My Comment:This phrase has been around for 3 centuries too long IMHO) Further, these slippery sloped men will seek additional wives by devious means and their enterprising women feeling neglected will retaliate by taking male lovers and begat illegitimate offspring. 

(My Comment:  WHERE, WHERE, WHERE is all this sex people go on about?  Seriously, folks ...we poly people do NOT get laid as much as y'all think we do.)

5. All 13 original states had laws prohibiting bigamy and/or polygamy prior to the American revolution and prior to the formation of the Mormon church.  The laws as they came down through time tended to combine the idea of any multiple partner situation  bigamy being two wives and polygamy being two or more wives.
 Those charged under these laws were men who had deserted one wife and moved to another to marry another woman or left a wife in England to marry another in the United States.  The men were sent back to the jurisdiction of the original marriage for prosecution.

6. Marriage contracted through a license of the state or church or through common law marriage which was an open continuous uninterrupted living as if husband and wife for seven or more years.  Couples would plead common law marriage in defense of a charge of fornication.  Any parties living together in a non-marriage relationship were charged with aggravated fornication or prostitutio

7. US Congress began to pass its on statures making it a federal crime in the territories and only the territories to practice polygamy in response to the announcement  in 1852 by the Mormon Church that new churches on the frontier were preaching and practicing polygamy while invitingh new immigrants to the community who would maintain Mormon lifestyles including the lifestyle of polygamy. In 1887 Congress passed a law allowing for the confiscation of the property and lands of the Mormon church until such time as the polygamy prohibition law was enforced in Utah.

Cross-examination by the lawyer for the FLDS:
This meandered around a bit but one interesting point was that Prof Witte also gave expert testimony in the Halpern case of the Ontario Supreme Court challenge of theheterosexual definition of marriage in Canada on the grounds that it discriminated against same sex unions.  Prof Witte gave evidence for the AG of Canada on  the history of marriage in the West.  The AG of Canada was trying to uphold the heterosexual definition of marriage.

Web content with regards to a blog discussing polygamy and the law where Prof Witte is interviewed in a Q & A fashion.  He is quoted as commenting that the prosecutions in Texas would likely be under laws such as child abuse, coerced under age marriage and statuatory rape and that polygamy laws are rarely prosecuted when there is not added evidence of child coercion, statuatory rape or other missusses of women or children in a household.

Adultery, fornication, sodomy were also crimes in US law which are either no longer prosecuted or removed from the statutes depending on the State.  There followed a lengthy discussion where the lawyer produced quotes from Prof Witte and the Emery College website with regards to the same sex marriage debate in the states where Prof Witte clearly sides with a very traditional view of marriage and sexual freedoms.

There was some interesting discussion of "Covenant marriage" which is an alternative form of marriage currently available in three states:  Louisiana, Arkansas, and Arizona.  Participants are presented with two options:
1. contract marriage - easy in easy out marriage formed with a certificate which has a one day waiting period and a period of time where a no-fault divorce can be obtained
2. covenant marriage - six months of pre-marital counseling and more limited grounds for separation and divorce
Prof. Witte favours the covenant marriage and appears to see the advance of recent liberal sexual freedoms as being the downfall of the institution of marriage.


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