Marty's memory is good:

http://writ.news.findlaw.com/grossman/20101004.html

Best. -E.


                         *************
                         Eric M. Freedman
    Maurice A. Deane Distinguished Professor of Constitutional Law
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From: conlawprof-bounces@list... [mailto:conlawprof-bounces@list...] On Behalf Of Marty Lederman
Sent: Tuesday, July 12, 2011 7:41 PM
To: hamilton02@aol....
Cc: conlawprof@list...; conlawprof-bounces@list...
Subject: Re: Challenge to Utah polygamy law

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....<mailto: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...<mailto:nsmith@fcsl...>>
Sender: conlawprof-bounces@list...<mailto:conlawprof-bounces@list...>
Date: Tue, 12 Jul 2011 22:30:58
To: conlawprof@list...<mailto:conlawprof@list...><conlawprof@list...<mailto:conlawprof@list...>>
Subject: Challenge to Utah polygamy law

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