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Dave: The legal questions in Reynolds and Lawrence were quite different. Reynolds was a challenge to a federal statute under the First Amendment on free-exercise grounds. (Also, Reynolds had another challenge under the Confrontation Clause, which is all but forgotten today.) Lawrence prsented a challenge to a state statute under the Fourteenth Amendment on substantive due process grounds. The cases were similar in that they were both about sex. Legally, things are a bit more complicated.

Nate, I wasn't really trying to do a full legal analysis of Lawrence or Reynolds in four sentences. And I think it is the case that Lawrence, as well as the various SSM initiatives, have led to speculation about how both might affect the legal status of polygamy.

Reynolds was brought from a territory; if a polygamy case is brought today, it is (like Lawrence) as a challenge to a state law. Reynolds brought a Free Exercise challenge, but they didn't have a right of privacy challenge to work with in 1878. Today, a polygamy challenge would likely be to a state law under a right of privacy theory. That sounds a lot more like Lawrence than you seem willing to grant.

Dave: I completely agree that any challenge to anti-polygamy laws today is likely to be a fourteenth-amendment privacy challenge to a state law. (BTW, it is not clear to me that Lawrence -- at least Kennedy's opinion -- is a privacy case per se, but I will leave that for another day.) My point is that privacy claims raise a different set of legal and philosophical questions than did the religious freedom claims raised in Reynolds.

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