Well ... Scalia did predict, given the decision in Lawrence vs Texas, that this particular roast squab would come home to roost, if not necessarily in this particular way.
A lawyer for polygamous former Hildale police officer Rodney Holm urged the Utah Supreme Court on Thursday to lift a ban on plural marriage, and justices responded with sharp questions about whether the ban is constitutional.
Attorney Rodney Parker argued his client has a right not only to believe in a religious tenet of polygamy but also to practice his belief in a meaningful way. "The ban on plural marriage affects so many fundamental rights," he said, contending that tens of thousands of Utahns are forced to hide their relationships for fear of prosecution. Parker asked the high court to decriminalize polygamy, allowing its adherents to have a legal marriage with a first wife, then enter into religious unions with other women as a way to reach the highest degree of heaven.
He stressed Holm is not asking for legal polygamy, which would make marriage to each wife state-sanctioned. Under his request, married individuals could also live as a spouse to other partners without being considered part of a common-law marriage and, therefore, bigamists. "This issue deserves to be dealt with head-on," Parker said.
The justices launched into a spirited discussion on the legal intricacies of the case and society's changing relationships. They aimed numerous questions at Assistant Attorney General Laura Dupaix, asking how the Utah bigamy law is applied, whether only religious practitioners are targeted and the difference between cohabitating and purporting to marry. Chief Justice Christine Durham wondered if living together as husband and wife is sufficient to have a legal marriage, or if a religious, non-state-sanctioned ceremony has to have occurred before someone can be guilty of bigamy. Associate Chief Justice Michael Wilkins asked about possible constitutional conflicts between religious tolerance and a prohibition on polygamy. Justice Jill Parrish wondered if a man living with a fiancee while waiting for his divorce to be finalized is a bigamist. Other comments centered on a 2003 U.S. Supreme Court decision that struck down a Texas anti-sodomy law as a violation of the privacy rights of consenting adults.
Dupaix defended the constitutionality of the Utah bigamy statute, which was used to prosecute Holm for his polygamous marriage with three women. She denied the law tramples on freedom of religion or association. "No one is telling Mr. Holm that he can't belong to a church that believes in polygamy," Dupaix said.....
I must admit, the comments of the Utah Supreme Court justices as reproduced in this article are rather ... odd.
Why, absent a state-issued marriage certificate, is the state involved in this discussion at all? If you get married over and over and over again in your particular church, but only the first is given a marriage license, then as far as the state is concerned, technically you cannot have committed bigamy. Especially if all parties know about it, there is no intent to commit fraud. If the ceremony is, as one justice says, "religious and nonsanctioned", then the state technically can't even notice its existence without treading dangerously close to unlawful interference in religious practices.
For Assistant Attorney General Laura Dupaix to say, however, that "No one is telling Mr. Holm that he can't belong to a church that believes in polygamy," is really rather impressively sophistical. Belonging to a church that believes in polygamy isn't, and never was, the issue; the practice of polygamy is the issue, and to what extent the state is justified in forbidding said practice if it's not required to sanction the relationship.
Purely a side note:
The four were members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which embraces polygamy.
I guess every religion has its conservative fundamentalists. It never occurred to me that there were different flavors of Mormonism, but why wouldn't there be?Posted by iain at February 04, 2005 10:52 AM