Thanks to Robert for sharing my previous findlaw columns on the subject.  I represented Tapestry (formerly polygamous wives against polygamy) in the Holm case and stand by my earlier analyses of anti-Utah's polygamy laws.  I completely disagree with Marty that the Holm dissent had the better of the argument.  The well over 120 cases that have upheld the anti-polygamy cases have the better of the argument constitutionally and public policy wise.

This particular case has interesting elements, though:

Coiuld someone clarify the religious beliefs of this particular family that would give them standing to challenge the polygamy laws based on religious persecution?  

For anyone who persists in believing that Reynolds somehow upheld a law targeting the LDS--The polygamy laws applicable to Utah were simply following the anti-polygamy laws in place in every state.  US polygamy laws did not start with the LDS at all.  

Just so we all stay with the facts--a prosecution of this family was made necessary by this family's decision to put its illegal practices on public display for money, as part of a reality show.  If a DA turned on the TV and there was an ad for a marijuana dealer flaunting his "business," the DA, who might have put marijuana dealers behind heroin dealers in terms of priorities, would be be forced to prosecute. ( If I were the family, I'd be suing the lawyers who gave the green light for the show, not Utah.)  In any event, prosecution of a criminal who has decided to make his or her crimes the focal point of a heavily publicized TV show is not the same as prosecution of an ordinary lawbreaker.  That is a distinction that differentiates this case from every other polygamy prosecution,and justifes the prosecutorial choice to "single out" this family if there is any argument for singling out.

Actually, there is no such thing as "serial polygamy"   When a single spouse divorces a single spouse, they are freed from each other and can then move onto the next co-equal relationship.  Polygamy binds a disproportionate number of women to a single man at the same moment.  

Polygamy has been on the decline worldwide because it is an inherently dysfunctional system that requires multiple women to be co-equal to a single man, the abandonment of a certain number of boys to eliminate competition for women, and resort to younger and younger women.  It is also economically impossible to maintain, which is why the polygamous subcultures in the US rely heavily on welfare (and feature undereducated women and children).  State legislatures have tremendous resources to justify the ban.  (Note that they do not have the same factual bases to
refuse same-sex marriage--the two phenomena are not remotely on the same public policy base.)  

Marci




-----Original Message-----
From: Robert Sheridan <rs@robe...>
To: Eric M. Freedman <Eric.M.Freedman@hofs...>
Cc: 'Marty Lederman' <lederman.marty@gmai...>; hamilton02 <hamilton02@aol....>; conlawprof-bounces <conlawprof-bounces@list...>; conlawprof <conlawprof@list...>
Sent: Tue, Jul 12, 2011 9:57 pm
Subject: Re: Challenge to Utah polygamy law


http://writ.news.findlaw.com/hamilton/20060323.html


http://writ.news.findlaw.com/hamilton/20080501.html


The Findlaw column below cites two incisive Marci Hamilton columns on the subject, links above, the first re:  the fictionalized version of polygamy on TV and the second as to the reality, such as where Child Protective Services seem routinely to ignore how children are reportedly treated in some of the Fundamentalists LDS plural households, what with girls contracted in marriage in childhood in ways that might find favor in rural northern India, and boys thrown out of the household onto the street, literally, according to the report, upon reaching puberty (to prevent their going after dad's women, if I'm reading the analysis correctly).


The Grossman column notes that bigamy in the early U.S. sense was intended to provide a punishment to the man who abandons W1, and perhaps children, in order to disappear into the vastness of the country before the communications revolution in order to marry W2, who hasn't a clue, an instance of domestic fraud.


The religious aspect seems to confuse matters.  Assuming that polygamy were protected on religious grounds, like use of sacramental wine during Prohibition, or male circumcision as a sign of faith, that wouldn't protect against fraud or child abuse or neglect.


I doubt that anyone would much care if a person of one gender lived together at the same time with two or more of the opposite gender w/o benefit of clergy.  The difficulty seems to be in acquiring either a church or civil marriage certificate w/o previous dissolution of a previously acquired one.  The rule allowing only one of these certificates (or marriages in the common-law sense)  to issue and remain valid at a time seems to make them proxies designed to eliminate the practice of plural marriage.


Question:  Is there a rational basis, or more, for concluding that society is better off maintaining the status quo in regard to prohibiting concurrent polygamy but permitting 'serial' polygamy?  If there were a trial of the issue, as Judge Vaughn Walker, USDJ/NORCAL, conducted on the issue of gay marriage a year or two ago, what would the evidence look like on the merits, that is, apart from the religious arguments?


The sociologists would have to weigh in, I imagine, shades of Brown...


rs




On Jul 12, 2011, at 4:56 PM, Eric M. Freedman wrote:



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
              Eric.M.Freedman@Hofs...
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Hofstra Law School                250 West 94th Street
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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 substantialLawrence/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 religiousmarriage 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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