I understood Marty's point (and the language in the complaint) to be arguing that there is functionally no difference, for Lawrence purposes, between purely casual or sexual relationships and a more formal, religiously motivated, but still not civilly sanctioned relationship. Maybe there is a difference, maybe there isn't; but that seems to be the issue.
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.
Trustees Professor of Law
Capital University Law School
303 East Broad St.
Columbus, OH 43215-3200
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.
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"