The normal response is "it's up to the legislature". Judges will "read down" a law to preserve it by restricting its application to what is justifiable, but they won't import detailed conditions to do so.
Drafting a version of the law which excludes the problematic Mormon version isn't all that hard (e.g. requiring a minimum age of, oh, say, 30 before someone can enter into a poly marriage would probably do it, but that wouldn't be very popular with the poly community), but doing it well would be a bit of a challenge. You also have to thread the needle of immigrants with pre-existing polygamous marriages, many of which are de facto as strongly characterised by suppression of the women as Mormon ones (e.g. the family involved in the Kingston killings which is now on trial), and which other non-Mormon religious polygamous traditions you want to exclude and which ones you want to support.
IANAL, but I am an LL.B. I do wholeheartedly agree that judgements are treated as narrowly as possible as deciding the issue between the parties in front of the judge (I will ignore judgements in rem and Declaratory judgements) and that it would have been pretty well impossible to have a judgement explicitly upholding the law for this set of facts while also explicitly striking it down on another set of facts which were before the court.
(no subject)
Date: 2011-11-24 12:39 am (UTC)Drafting a version of the law which excludes the problematic Mormon version isn't all that hard (e.g. requiring a minimum age of, oh, say, 30 before someone can enter into a poly marriage would probably do it, but that wouldn't be very popular with the poly community), but doing it well would be a bit of a challenge. You also have to thread the needle of immigrants with pre-existing polygamous marriages, many of which are de facto as strongly characterised by suppression of the women as Mormon ones (e.g. the family involved in the Kingston killings which is now on trial), and which other non-Mormon religious polygamous traditions you want to exclude and which ones you want to support.
IANAL, but I am an LL.B. I do wholeheartedly agree that judgements are treated as narrowly as possible as deciding the issue between the parties in front of the judge (I will ignore judgements in rem and Declaratory judgements) and that it would have been pretty well impossible to have a judgement explicitly upholding the law for this set of facts while also explicitly striking it down on another set of facts which were before the court.