As if on cue for this week's theme of polygamy, the Utah State Supreme Court delivered a polygamy opinion this week, State v. Holm, 2006 UT 31, filed May 16. (Hat tip: this interesting post at Right Coast.) The Court affirmed the bigamy conviction of an FLDS adherent from Hildale, Utah. Anyone interested in LDS history will find the three opinions (there was a concurrence and a dissenting opinion) interesting reading. Should Reynolds ever be taken up by the US Supreme Court, this Utah case will provide a starting point for their analysis.
The defendant in State v. Holm is FLDS; his second wife was sixteen at the time the "religious solemnization" was performed by Warren Jeffs, the current FLDS religious leader. The defendant was charged, under Utah statutes, with both bigamy and unlawful sexual conduct with a minor. The majority opinion upheld convictions on both charges, with one judge dissenting on the bigamy charge.
As one would expect, it's the bigamy issue that's getting the attention. The Utah bigamy statute covers both "purporting to marry" when one is already married, as well as "cohabiting" when one is already married. The defendant predictably disputes whether a religious service that everyone knows does not result in a legal marriage can be "purporting to marry." The majority points out that in State v. Green, 2004 UT 76, even an unsolemnized marriage was held sufficient to support a bigamy conviction, so a solemnized marriage (where a service of some sort occurred, even though the State does not recognize the resulting "marriage" as valid) certainly suffices. The wording of the FLDS marriage vow can be found on page 12 of the slip opinion.
The Court rejects Holm's appeal to the Utah Constitution's version of the Free Exercise Clause, noting that the same clause also expressly prohibits plural marriage: "No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited." Article III, section 1. The opinion also notes that it was the US Congress that required such a prohibition to be present in the Utah Constitution as a prerequisite of statehood (p. 16).
Likewise, the Court cites the venerable Reynolds v. US, 98 US 145 (1879), to dispose of Holm's appeal to the Free Exercise Clause of the US Constitution, noting that Reynolds is still good law. There's a short discussion of Smith and Church of the Lukumi Babalu Aye that elides the obvious fact that the clause in the Utah Constitution, and arguably by extension the bigamy statute itself, were intended to "infringe upon or restrict practices because of their religious motivation." Nevertheless, the Court (relying on an earlier analysis in Green) finds the statute "facially neutral as to religion" (p. 27) or at least deems any infringement to be constitutionally permissible (p. 22). If there's a constitutional road to polygamy, it does not run through the Free Exercise Clause. However, I think the dissent's long and critical discussion of Reynolds is likely to receive some discussion in law review articles over the next couple of years.
There is plenty of historical discussion in the various opinions. The majority and dissent cite Sarah Barringer Gordon's The Mormon Question (2002) at pp. 18, 61, 72; the concurrence quotes Kathleen Flake's The Politics of American Religious Identity: The Seating of Senator Reed Smoot, Mormon Apostle (2004) at p. 47. The dissent also cites Dale L. Morgan's long essay The State of Deseret (1987; first published 1940) at p. 62.