As of 2006, at least, the Utah bigamy law made it a crime for a married
person to "(i) purport[] to marry another person or (ii) cohabit[] with
another person."

The state apparently has not enforced the cohabitation prong for many years
-- it would, of course, cover a great number of married persons living with
their lovers -- and if it were to do so, it presumably would be subject to a
substantial *Lawrence/Moore*-type of due process challenge.  Perhaps there
is some threat of such prosecution here on a cohabitation theory, which
would explain Turley's due process focus.

The action in actual Utah cases, then, has been on the first prong --
prohibiting a married person from "purporting" to marry a second spouse.
This does *not* refer to attempting to obtain a second *civil* marriage
certificate from the State of Utah -- the State will only grant an
individual one such certificate of civil status at a time, and that
restriction on the state's conferral of civil marriage status is undoubtedly
constitutional.

Instead, the prosecutions occur where a married person engages, not in
another civil marriage ceremony, but in a *religious *marriage ceremony, and
obtains the religious (but not civil) status of marriage with a second
person.  In this sense, the statute is directed at, and singles out for
punishment, *a religious ritual itself*, and the conferral of a religious
status on two persons.

Were it not for the stare decisis effect of *Reynolds*, I can't imagine why
this wouldn't be a Free Exercise violation, especially after *Lukumi*.  I am
no fan of bigamy, but is there any good argument why this statute should be
considered constitutional?

If I recall correctly, the issues are teed up very nicely in the three
opinions of Justices of the Utah Supreme Court in *State v. Holm*, 137 P.3d
736 (2006).  The majority rejected the religious freedom arguments; but my
recollection is that I found the dissent more persuasive when I read it five
years ago.





On Tue, Jul 12, 2011 at 7:05 PM, <hamilton02@aol....> wrote:

> The lawsuit confuses sex and marriage.  Lawrence supports a right to
> private consensual sex.  That is separate from the legislatively-defined
> institution of marriage
> Polygamy debates frequently fall into this problem.
>
>
> Marci
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Cardozo School of Law
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Nareissa L. Smith" <nsmith@fcsl...>
> Sender: conlawprof-bounces@list...
> Date: Tue, 12 Jul 2011 22:30:58
> To: conlawprof@list...<conlawprof@list...>
> Subject: Challenge to Utah polygamy law
>
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