Positive Liberty

I’ve been following with interest the trial of Warren Jeffs, the man who believes God wants him to preside over the systematic rape of young girls. Prof. Erik Luna has a good article on Findlaw about the case. Excerpt:

Personally, I find it a mystery why anyone would enter into a plural marriage. But I also would not bet my paycheck at the blackjack table each month, or damage my health by drinking a case of beer or smoking a couple packs of cigarettes daily. And my viewpoint need not be imposed on everyone else: As long as the participants are above the age of consent and cause no harm to others, it is far from obvious that any of these fact-patterns—including polygamy—warrant government intervention. Moreover, when the state bans consensual, nonviolent behavior among adults—whether it’s plural marriage or vice crimes like prostitution—the participants are driven from public view, and as a result, genuine crimes of force and fraud often go unreported and undetected.

Nonetheless, some acts cause the precise type of harm that justifies state-imposed punishment even if they are part of bona fide religious practices. The question of whether plural marriage remains one of them, however, will not be answered by the Jeffs case. That’s because the polygamist prophet is on trial for rape, not polygamy—and it’s a good thing, too.

(Read the rest…)

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