Latest Polygamy Case

The latest Utah polygamy case [SL Trib link] is by a trio not yet entered into polygamy, who argue that "the state of Utah should not be able to criminalize the maintenance of an intimate relationship." Well, there's prostitution, statutory rape, and incestuous unions, all of which are acceptably criminalized or "regulated" intimate relationships, so it's hard to affirm the general rule. The plaintiffs also argue that "the [state's] ban on plural marriage violates their constitutional rights to practice their religion and to free association." Reynolds redux, that won't fly.

But when they argue that "the law unfairly targets religious polygamy because people who create multiple common-law marriages through cohabitation are never prosecuted for bigamy," this highlights the potential to frame the state's prohibition on polygamy as contravening the Lukumi Babalu Aye principle that religious practices cannot be targeted while identical or similar secular practices are ignored. The state argued that polygamy laws are enforced across the board, regardless of the religious motivations or affiliations of the participants, and that the state has a right to define marriage legally and enforce marriage laws. This case might show how far Lawrence v. Texas can be made to stretch. The Deseret News story on the suit provides additional details (a better discussion, actually).

Comments

[clark]

I suspect that if the fundamentalists want to create precedence that they'd have a better shot doing this is a more liberal state like back east. I have a suspicion this is the wrong state to do it in, given our state constitution. Perhaps the plan is to get to the supreme court, but even there I bet they'd have an easier time starting in an other state.

[Ryan Bell]

Dave, I went to the hearing on Tuesday to listen to the arguments of both sides. Did a post about it at intellecxhibitionist, if interested.

But I agree that it's a stretch to say the state can't regulate private consenting relationships. All in all, though, it's a fascinating attempt to feel out the new boundaries of state power over relationships under Lawrence.

And yes, Clark, the intention is to take it to the Supreme Court, as stated by Plaintiffs' counsel in the hearing.

[Dave]

Thanks for the link, Ryan B. You are now the "man on the scene" for the Bloggernacle on this developing story.