Even this language isn’t necessarily confined to religious marriages.  There
are lots of secular people who perform marriage ceremonies, in which they
purport to marry one another with no public official present.  (Typically,
before or afterward, they go down to city hall and get the license.)



It still seems to me that the statute prohibits a certain kind of speech,
without regard to whether the speech is religious or not.  It’s just speech
that takes place at a certain kind of ceremony, religious or otherwise.



From: Marty Lederman [mailto:lederman.marty@gmai...]
Sent: Wednesday, July 13, 2011 9:53 AM
To: Andrew Koppelman
Cc: conlawprof@list...; conlawprof-bounces@list...
Subject: Re: Challenge to Utah polygamy law



Andy:  The statute doesn't proscribe purporting to be married, i.e.,
declaring to the world that one is married (which would raise a serious Free
Speech concern, as you suggest); instead, it criminalizes purporting to
marry.  And in Holm, the Utah Supreme Court made clear that what this covers
is the religious ceremony itself -- the solemnization that occurs there:



The “purports to marry” language contained in the bigamy statute is not
confined to legal marriage and is, in fact, broad enough to cover the type
of religious solemnization engaged in by Holm and Stubbs. . . .  



[W]e read the plain language of our bigamy statute as prohibiting an
individual from claiming to marry a person when already married to another.
Further, we conclude that the term “marry” is not confined to legally
recognized marriages. . . .  



Applying the definition of “marry” outlined above to the facts presented in
this case, there can be no doubt that Holm purported to marry Stubbs. The
undisputed facts establish that Holm stood before an official of the FLDS
Church, Warren Jeffs (son of then-FLDS prophet Rulon Jeffs), with Stubbs at
his side and responded affirmatively to a vow asking the following question:



Do you Brother [Holm], take Sister [Stubbs] by the right hand, and receive
her unto yourself to be your lawful and wedded wife, and you to be her
lawful and wedded husband, for time and all eternity, with a covenant and
promise, on your part that you will fulfil all the laws, rites and
ordinances pertaining to this holy bond of matrimony in the new and
everlasting covenant, doing this in the presence of God, angels, and these
witnesses, of your own free will and choice?



At the ceremony, Stubbs wore a white dress, which she considered a wedding
dress. Throughout her testimony at the trial court, Stubbs referred to the
ceremony as a marriage. As mentioned, the ceremony was officiated by a
religious leader and involved vows typical of a traditional marriage
ceremony. See Utah Code Ann. § 30-1-6
<https://web2.westlaw.com/find/default.wl?tc=-1&docname=UTSTS30-1-6&rp=%2ffi
nd%2fdefault.wl&sv=Split&rs=WLW11.04&db=1000511&tf=-1&findtype=L&fn=_top&mt=
208&vr=2.0&pbc=90B460F4&ordoc=2009159597> (1) (Supp.2004) (stating that
religious officials who are older than eighteen and “in regular communion
with any religious society” are empowered to solemnize a marriage). In
short, the ceremony in which Holm and Stubbs participated appeared, in every
material respect, indistinguishable from a marriage ceremony to which this
State grants legal recognition on a daily basis.





On Wed, Jul 13, 2011 at 10:29 AM, Andrew Koppelman
<akoppelman@law....> wrote:

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.