"The practice [in Reynolds] was universally banned--the very definition of
neutral and generally applicable regulation."
OK, so Marci has teed up again what would appear to be the most important *
legal* question. How is the Utah statute "generally applicable"? Well, it
might be so if it prohibited all cohabitation by married persons with
non-spouses, such as multipartner relationships, and married persons living
with those with whom they are having affairs. On its face the statute
prohibits all such cohabitation -- but Utah understandably does not enforce
So this comes down to the other prohibition in the statute -- on a married
person "purporting to marry" another. As I've explained in previous posts,
this category would appear to encompass two types of cases:
i. religious marriages with no civil standing, involving at least one
spouse who is *known *to be already married to another; and
ii. civil marriages where one of the spouses is *secretly* already married
to another -- marriages, that is, that are fraudulent and presumably void or
These two categories have almost nothing in common. The prohibition on the
latter is an entirely understandable attempt to prohibit fraud, and to
enforce the basic (constitutionally permissible) decision of the state that
it will not afford legal, civil marriage status to those already married.
But the former is an effort -- perhaps very understandable and salutary --
to prevent women from the harms of being "bound" to their husbands *as a
matter of religious tenet*.
Standing alone, a prohibition on (ii) would presumably be subject to
heightened *Lukumi* scrutiny, because it would be a state effort to
criminalize *exclusively religious* ceremonies and statuses in order to
ameliorate the harms that are thought to flow from such religious practices.
So, two (actual constitutional) questions for the List:
1. Is prohibition (i), on the fraudulent second marriage by an undisclosed
married person, sufficient to render the statute "neutral" and "generally
applicable" for purposes of *Smith*?
2. If not, and if the statute is best viewed as being directed uniquely at
religious ceremony and status, might it nonetheless satisfy heightened *
Lukumi *scrutiny, perhaps for the reasons Marci offers?
> Their religious claims were weak. The practice was universally banned--the
> very definition of neutral and generally applicable regulation. In Europe
> and across the states.
> Sent from my Verizon Wireless BlackBerry