FWIW, I do not believe that Lawrence/Moore could successfully be used to
preclude a state from punishing an individual who is married to one
person and cohabiting with another. At least one interpretation of
Lawrence's discussion about "abuse of an institution the law protects,"
Lawrence v. Texas, 539 U.S. 558, 567 (2003) involves the Court's
implying that it will not strike down a state's punishment of adultery.



ms

Mark Strasser

Trustees Professor of Law

Capital University Law School

303 East Broad St.

Columbus, OH 43215-3200

Ph: 614-236-6686

Fx: 614-236-6956



From: conlawprof-bounces@list...
[mailto:conlawprof-bounces@list...] On Behalf Of Andrew Koppelman
Sent: Wednesday, July 13, 2011 10:29 AM
To: conlawprof@list...; conlawprof-bounces@list...
Subject: RE: Challenge to Utah polygamy law



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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