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.The legislators had been entreated to improve their laws onadultery, though it is not mentioned by whom (whether by the public orgovernment officials).The situation appears to be one in which partiescharged with adultery were not considered to have adequate dueprocess.The current process did not involve a  just and constitutionaltrial of the facts. In spite of this problem, the solution offered does notdo away with punishments for adultery, rather it attempts to make theprocess more constitutional and just.If the party or parties chargedwith adultery are found guilty, the court may dissolve the marriage,requiring the husband (if a convicted party) to provide financialsupport for the ex-wife and any children.In addition, any convictedparty is prohibited from re-marrying.In other words, a convictedadulterer risks having his or her marriage nullified, incurring financialcommitments, and being forbidden from re-marrying.Only the secondof the three punishments relate to a concern for private property.The requirement to provide financially for an ex-spouse andchildren may well be based on the reasoning of the bastardy lawsenacted a year later.If so, it is an issue of making people responsiblefor their choices and indirectly protecting private property of thecommunity at large from paying for an individual s poor choices.Thefirst and third punishments listed above are not an issue of protectionof private property.The nullifying of the marriage is an intrusion ofgovernment into a very private matter.It allows government tointervene in an adulterous marriage and dissolve it.Even a convicted Ambiguous Constitutionality 245adulterer who wants to try to salvage his or her marriage can be barredfrom doing so under the authority of this law.The judgments of this legislation of morality are not explicitlymade on the basis of theological or philosophic principles.Theprevious laws are said to be  very defective , but no principles aregiven as a sound basis for this new legislation.While this response toadultery is not found in the teachings of Christianity or the Bible,however, its judgment that adultery is wrong is.Thus, the commitmentto punish adultery and create a deterrent against its practice isconsistent with Christian moral principles.At the outset of this chapter,however, it was noted that New York s constitutional basis forlegislating morality is a philosophically oriented theism more so thanprinciples from Christian theology.However, the two views, as itrelates to adultery, need not be seen in conflict.A philosophic theismcan be demonstrated to view adultery as a blameworthy practice asmuch as Christian theology does.Philosophic arguments have beenarticulated for the existence of a divine being who created humanbeings with a particular design for their lives including monogamousmarriage.For example, Locke makes the argument that  adultery,incest, and sodomy & cross the main intention of Nature, whichwilleth the increase of Mankind. ccclxxxiiThe second law addressing marriage was enacted in February1788.It makes a strong statement against the practice of polygamy,giving it the status of a felony.If any person or persons being married, or who hereafter shallmarry, do at any time marry any person or persons, the formerhusband or wife being alive, then every such offence shall befelony & but neither this act, not any thing therein contained,shall extend to any person or persons whose husband or wifeshall be continually remaining without the United States ofAmerica for the space of five years together, or whosehusband or wife shall have absented him or herself the onefrom the other by the space of five years together, the one ofthem not knowing the other to be living within that time; norto any person or persons who are, or shall be, at the time ofsuch marriage, divorced by the sentence or decree of any courthaving cognizance thereof; nor to any person or personswhere the former marriage hath been, or shall be, by theFaith, Reason, and Consent246sentence or decree of any such court, declared to be void andof no effect.ccclxxxiiiAgain, while there is no explicit theological basis given for thedecision to prohibit polygamy, this law demonstrates a strongcommitment to the heritage of western Christianity.While the Biblehas many examples in the Old Testament in which polygamy waspracticed, the New Testament suggests that marriage between one manand one woman is the standard for followers of the Christian faith.Here is a trustworthy saying: If anyone sets his heart on beingan overseer, he desires a noble task.Now the overseer must beabove reproach, the husband of but one wife, temperate, self-controlled, respectable, hospitable, able to teach, not given todrunkenness, not violent but gentle, not quarrelsome, not alover of money.I Timothy 3:1-3This standard for marriage, while given to church leaders, has becomethe standard accepted in Christian tradition for all believers.Theteaching of Jesus in the New Testament does not explicitly condemnpolygamy, nor does the Old Testament.The broader more prevalentbiblical standard is for people to honor marriage as a sacredcommitment not to be violated.New York s view that polygamy is notonly wrong, but demands the most severe punishment is, therefore,more consistent with the western Christian tradition than it is with theolder biblical tradition, especially that found in the Old Testament (e.g.,King David and King Solomon, both revered Old Testament figures,had polygamous marriages).The law forbidding polygamy clearly steps beyond the bounds ofprotection of life, liberty, and property in its regulation of privatemorality.It is does not provide its reason for prohibiting the practice,giving the impression that there is no question of its blameworthiness.However, a marriage of consent between more than one woman andone man, or more than one man and one woman, does not infringe onthe rights to life, liberty or property of others.While the law takes afirm stand against polygamy, it is not so inflexible as to ignoreextenuating circumstances.It does allow for re-marriage in caseswhere a spouse has left the country and not returned within a five-year Ambiguous Constitutionality 247period, or has abandoned a spouse and remained absent for at least afive-year period.In this way, New York provides a way for men orwomen whose spouses have abandoned the marriage to re-marry.Thisis especially important for women in a period of history when beingabandoned by their husbands left them without the means to providefor their family s financial needs.There are two laws that relate to the use of one s labor or property.They demonstrate a concern for a solid work ethic and productivity.The first example is a law prohibiting most forms of gaming [ Pobierz całość w formacie PDF ]