I do not think that it is so easy to read Lawrence as simply about
sexual activity. While the Lawrence Court several times suggested that
it was not deciding whether same-sex marriage was constitutionally
protected, that is not the same as saying that Lawrence had no
implications for the latter claim.  McLaughlin expressly disclaimed that
it was speaking about interracial marriage but it would not have been
error to think that it had implications for whether interracial marriage
was protected, as Loving established three years later.

The Court has long prioritized marriage over sexual relations and
reading Lawrence as only about relations inverts those priorities. While
that does not make the reading impossible, there clearly are other ways
to read the decision.

Even in states recognizing common law marriage, there must be more than
cohabitation to yield marriage. As a general matter, the parties must
treat each other as spouses, they must be known in the community as
spouses (and not merely known as living together), and they must be able
to marry.

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
Hamilton02@aol....
Sent: Thursday, July 14, 2011 9:14 AM
To: lederman.marty@GMAI...; Mark.Scarberry@pepp...
Cc: conlawprof@list...
Subject: Re: Challenge to Utah polygamy law



Marty cites this language from the complaint.  This was my original
point -- this case has confused sexual activity and the legal marriage
construct (probably intentionally).  The former is protected under
Lawrence, the latter is regulated by state law, which has never fallen
to a constitutional challenge in over 120 tries.  In states with common
law marriage rules, the act of living together as a family creates a
marriage.  Conduct is what is being regulated.  Cohabitation rules are
another way of getting at common law marriage, and again it is conduct
that is being regulated.



This group of adults lives together with 16 children as a family, holds
itself out as a polygamous family, participated in a widespread,
aggressive public relations campaign saying they are a polygamous
family, and expected to make money from a television reality show
because they are in a polygamous family.  How can a court now say they
are comparable to casual sex partners?  There may be factual
circumstances like those described in the complaint (marriage with extra
sexual partners in the house--I would imagine any number of pimps and
prostitutes live such a life), BUT those are not the facts of this case.
Is this family going to be encouraged to retract all of their
well-documented statements about polygamy to say they are just sex
partners?  This is the epitome of trying to be a "law unto oneself," to
paraphrase Reynolds.  That would be perjury, no?  Is their defense that
they did not know there is an anti-polygamy law?  Or that the Utah
Constitution requires Utah to have an anti-polygamy law and, therefore,
has no choice but to have an anti-polygamy law?  And what remedy can
they obtain?  Even if this law were to fall, Utah is only a part of the
union as part of its voluntary agreement to enforce the anti-polygamy
laws every other state already had in place.



Marci









In a message dated 7/14/2011 6:11:03 A.M. Eastern Daylight Time,
lederman.marty@GMAI... writes:

"they would not be prosecuted if they claimed no religious
obligation and merely had casual or purely sexual associations"