>
> The analogy to gay marriage laws is not on-point.  No one is asserting any
> claim that Utah must recognize polygamous marriages under Utah law.
>  Instead, Utah is criminalizing *religious* marriages.  The analogy, then,
> would be the prosecution of two men who marry one another under the auspices
> of their church, without receiving a civil marriage license.  Unthinkable,
> right?  and a clear Free Exercise violation.
>
> Marci, you say that "polygamy laws have been enforced against non-religious
> polygamy."  That would be very important, obviously, if it were the case in
> Utah, because in that case perhaps this is closer to *Smith* than to *
> Lukumi*.  But what is "non-religious polygamy," and can you please
> identify cases in Utah where it has been prosecuted?  Thanks.
>
>
> On Wed, Jul 13, 2011 at 7:56 AM, <hamilton02@aol....> wrote:
>
>> ** The major point is this: should the legislature or the courts
>> determine the marriage construct? I think it is clear this is best left to
>> the legislature absent a constitutional restraint. And the practice of
>> polygamy has enough negative social consequences to satisfy even strict
>> scrutiny in my view. if you have not read God's Brothel, I highly recommend
>> it as a quick way to learn about actual practices in a dozen or so Christian
>> religious groups. She does not address Islamic polygamy, which is no
>> prettier for women and children.
>>
>> Gay marriage advocates have had to persuade state legis that same-sex
>> marriage (and all of the rights and privileges flowing from marriage) is not
>> inconsistent w sound public policy in states like NY. Polygamists should
>> have to do the same thing. Women who care about equal rights and child
>> advocates will fight them. That is where the fight should be.
>>
>> Just so my position is clear-- as public policy, I believe polygamy is as
>> violative of equal rights for women whether the female spouses are 40 or 12.
>> The principle itself violates women's equal standing in society. The
>> opposite practice is so rare in history as to be irrelevant to these
>> discussions.
>>
>> If we have a plague that kills most men so we need a different marriage
>> structure to build the society, let's talk. China --through base misogyny
>> that led to killing female fetuses and newborns--has brought on itself the
>> need to figure something out on that score. Not an issue here. But it
>> reinforces my point above-- it is a matter for legislative deliberation.
>>
>> Paul--my point was that Congress imposed the polygamy laws on the
>> territories after all states firmly banned the practice. The LDS were not
>> subject to a made-up law that was a gerrymander to their practices a la
>> Lukumi. I talk about this in my Wm and Mary Bill of Rts article on
>> Licentiousness and the Constitution
>>
>> Despite our focus on this list, polygamy laws have been enforced against
>> non-religious polygamy. Those cases don't get the same headlines unless a
>> guy is deceiving his 2 spouses. There is the classic hell hath no fury...
>>
>> Marci
>>
>> Sent from my Verizon Wireless BlackBerry
>> ------------------------------
>> *From: * Marty Lederman <lederman.marty@gmai...>
>> *Date: *Wed, 13 Jul 2011 05:24:06 -0400
>> *To: *<hamilton02@aol....>
>> *Cc: *<rs@robe...>; <Eric.M.Freedman@hofs...>; <
>> conlawprof-bounces@list...>; <conlawprof@list...>
>> *Subject: *Re: Challenge to Utah polygamy law
>>
>> 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.
>>
>>
>>
>>