I'm puzzled by the unanimity in this discussion on the question of whether
this is a religious liberty issue.  There are two rights here, raised by the
two sections of the statute cited by Marty.  The first is the right to free
speech, which is violated by section (i) of the statute.  Absent an
allegation of fraud, the state has no legitimate interest in telling me that
I can't say I'm married to two women, and the statute has no fraud
requirement.  (That's why a state that refuses to recognize same-sex
marriage could not make it a crime for a same-sex couple to tell their
friends that they are married.)  Section (ii) is likely unconstitutional
under Lawrence and Moore.  I don't understand how religion is supposed to
enter into it.  It happens that Mr. Brown wants to engage in this conduct
for religious reasons, but I don't understand why everyone thinks that needs
to be an element of his legal claim.



From: conlawprof-bounces@list...
[mailto:conlawprof-bounces@list...] On Behalf Of Marty Lederman
Sent: Tuesday, July 12, 2011 6:41 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....> 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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