Thanks for your response, Marty.

Isn't it possible that what is trapping the women (or what a legislator may think is trapping them) is not *their* view of their religious obligation but rather their community's view and the subsequent community pressure? Of course neither the woman's sense of obligation nor the community's necessarily is religious; some of it may be cultural rather than directly rooted in religion.

And, even If it turns out that the only communities that want to bring pressure on women to be trapped are religious communities, does that matter, if our goal is not to inhibit the women's religious beliefs but to provide them protection against community pressure? Obviously we could still criminalize bank robbery even if only Zeus worshippers robbed banks. Should it matter that at this point only religious communities pressure women to stay in polygamous relationships?

I'm not sure I buy this line of argument. Its implications likely are too broad, and I'm probably not thinking very clearly about those implications as I write this email late at night. I suppose it could justify laws prohibiting wearing of burqas.

But it does seem to me that the "obligation" here may involve more than just the woman's religious tenets. Community pressure may also produce obligation. Consider H.L.A. Hart's discussion of the meaning of "obligation" in The Concept of Law; it relies heavily on community attitudes, if I remember correctly.

Best,
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: Marty Lederman [mailto:lederman.marty@gmai...]
Sent: Wednesday, July 13, 2011 5:13 PM
To: Scarberry, Mark
Cc: conlawprof@list...
Subject: Re: Challenge to Utah polygamy law

Mark:

Yes, that's a theoretically possible third category.  But as far as I know it does not actually exist among already married persons -- have you ever known of such a case? -- and I'd be shocked if Utah ever prosecuted such a case.  Moreover, it's not clear that the harms Marci and others have identified would be present there.  To be sure, the spouses in such a hypothetical marriage might feel "bound" to remain in the "marriage" to the extent that they, like the rest of us, are naturally reluctant to break their promises -- but they would not be bound by either civil or religious law and, as you note, there would be no community sanction imposed.  Therefore it's much less likely the women would feel obligated to remain in a relationship that they deem harmful.

For these reasons, even if there are one or two such cases, they wouldn't likely implicate the state interests and I can't believe Utah would prosecute them.  The State prosecutes the religious marriage cases precisely because the women in those polygamous marriages feel trapped by their religious vows.  That is to say, it is the religious commitments themselves, as such, that are the target of the state's criminal enforcement.

That's why I'm not yet convinced this case is governed by Smith rather than by Lukumi.
On Wed, Jul 13, 2011 at 7:55 PM, Scarberry, Mark <Mark.Scarberry@pepp...<mailto:Mark.Scarberry@pepp...>> wrote:
Marty,

What about category iii, in which the parties have a nonreligious ceremony in which they purport to marry each other, at a time when they both know that one of them is legally married to someone else?

At least as a theoretical matter, there is no reason why a commitment to a plural marriage needs to fit into one of your two categories. It doesn't have to be either (i) by way of a religious marriage (a ceremony, I assume) with no civil standing, or (ii) by way of a fraudulent civil marriage that would result in the persons being legally married but for the fact that one of them already is legally married.  There could be (iii) a nonreligious commitment ceremony in which the persons commit to treat each other as spouses but do not become civilly married. I'd imagine that such nonreligious commitment ceremonies - in which the parties say they don't need a piece of paper issued by the state to seal their commitment - are becoming more common. But I don't know that.

I suppose you're right that the actual communities today that would exert social pressure to enforce commitments made by persons who have marriage ceremonies with no civil standing are religious communities. But there is no reason why that would have to be the case, unless we think that only religious communities ever create social pressure on people to honor personal commitments.

I do think you're on to something with the concept that application of anti-polygamy laws against non-legally effective commitment ceremony plural marriages has to do with rescuing women from being "bound" in some way. You say "as a matter of religious tenet," but as a practical matter the binding is not done by the person's own holding of the tenet but by the community's social pressure to comply with the community's tenet. And such community pressure based on a community norm need not be religiously based.

So what do we do with a prohibition that has a disparate impact on religious communities, but that is generally applicable and not motivated by religious animus but rather by a desire to rescue women from situations in which they are likely to suffer harm? Sounds like Employment Division v. Smith territory to me.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667<tel:%28310%29506-4667>

From: conlawprof-bounces@list...<mailto:conlawprof-bounces@list...> [mailto:conlawprof-bounces@list...<mailto:conlawprof-bounces@list...>] On Behalf Of Marty Lederman
Sent: Wednesday, July 13, 2011 4:24 PM
To: hamilton02@aol....<mailto:hamilton02@aol....>
Cc: conlawprof@list...<mailto:conlawprof@list...>; Sanford Levinson; conlawprof-bounces@list...<mailto:conlawprof-bounces@list...>

Subject: Re: Challenge to Utah polygamy law

"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 that prohibition.

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 voidable.

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?