To begin to answer my own question about general applicability, the Utah
Supreme Court in a case called State v. Green, 99 P.3d 820, held that the
statute was generally applicable, and thus subject to Smith rather than
Lukumi analysis, because it is not necessary that the second marriage
ceremony be religious in nature. How could there be a second civil marriage
ceremony if the State will only recognize one such marriage? The Green
court cited yet another earlier case as an example: State v. Geer, 765 P.2d
1 (Utah App. 1988), in which the conviction was based on the fact that the
defendant had (apparently) entered --fraudulently -- into 17 civil
marriages. It appears Geer was one of those cases of legend where the man
does not tell the spouses or the state authorities of his previous
marriages, and lives a double (or in this case a seventeen-fold!) life.
So the Utah statute is not strictly limited to religious marriages -- it
also proscribes (fraudulent) repeat civil marriages. Perhaps this is
sufficient to take the issue out of Lukumi and into Smith "generally
applicable" analysis, as the Court in Green held. If that's correct, then
the Free Exercise claim is, of course, much weaker.
I recommend those interested to read Holm and Green -- really interesting
sets of opinions.
> 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.