>
> Marci, on this one I tend to agree with you (although I haven't studied it
> sufficiently) that from a public policy standpoint, polygamy -- or at least
> the common variant we're familiar with, in which several young women are
> manifestly subservient to a single man in a family --
> is something we ought to be working to strongly discourage.
>
> Nevertheless, from a Free Exercise perspective, I remain unpersuaded by the
> argument on behalf of the State.  Like all other states, Utah does not
> proscribe voluntary subservience as such -- it's the religious component of
> the relationship that brings the criminal sanction.
>
> I haven't seen Sister Wives, but in what way does the family there "put its
> illegal practices on public display for money."  Which depicted practices
> are illegal?  Mere cohabitation in an intimate relationship between more
> than two adults, at least one of whom is married under civil law?  That does
> appear to violate the face of the "cohabitation" prong of the Utah bigamy
> statute, but as I noted earlier, Utah apparently does not actively enforce
> that prong -- because if it did, it would proscribe many relationships apart
> from the polygamist ones that concern us, and that prong of the law would be
> subject to a substantial due process challenge.
>
> So, if my recollection of *Holm* is correct, the "illegal practices" of
> Kody Brown were *the religious weddings in which he engaged*.  (I don't
>  know if those are depicted on the show.)  That's the actus reus that
> establishes criminal culpability, and without it there'd be no prospect of
> prosecution.  (If I have this wrong, and it's the cohabitation as such that
> would be the basis of prosecution, then the principal objection would be *
> Lawrence/Moore*, and the only Free Exercise claim would likely be a *
> Lukumi*-like argument about singling out religious cohabitationists for
> disparate treatment.  If the show were instead about a "nontraditional"
> family in which a married couple had invited another adult into their home
> and their bed, or about a married man who was living with his mistress, I
> assume Utah authorities would be uninterested.)
>
> Marci adds an important point:  "Polygamy *binds* a disproportionate
> number of women to a single man at the same moment."  It is this sense of
> "bindingness," I suspect, that is at the heart of most of what troubles us
> about these cases.  But as far as I know, the women are not "bound" to the
> men in any legal sense under Utah law -- a woman could leave the
> relationship tomorrow, and there could be no breach of contract claim, or
> any divorce consequences.  (RIght?)  What binds the women with any real
> force is the fact that there will be consequences *within the church *if one
> of the wives were to abandon the relationship.  That's hardly trivial --
> such religious consequences obviously have a profound effect on behavior, as
> they do for many of us when we make decisions about marriage, childrearing,
> etc.  Nevertheless, for the state to attach criminal culpability to the fact
> of such religious consequences is certainly singling out religion for
> specific sanction, which should thereby trigger the sort of heightened
> scrutiny we see in* Lukumi.  *Perhaps this is the rare sanction against
> religion that should survive such scrutiny -- perhaps Utah, for example,
> should be able to forbid the church itself from attaching any religious
> consequences to the fact of the multiple religious marriages.  (Would such a
> law be materially different from this one?)  But it appears to me that that
> is where our legal attention should be -- on the question of what special
> showing a state must make in order to take the extraordinary step of
> singling out the conferral of a religious status for condemnation and
> criminal penalty.
>
>
>
>
> On Tue, Jul 12, 2011 at 10:30 PM, <hamilton02@aol....> wrote:
>
>>  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
>>
>>
>>
>>  *From:* conlawprof-bounces@list... [
>> mailto:conlawprof-bounces@list...<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.
>>
>>
>>