Mormon History Goes to Court

Earlier this week the Utah Supreme Court issued its opinion in State v. Holm. If you are interested in Mormonism, law, history, or (best of all!) Mormon legal history, you ought to read it. DMI has a very nice summary of the case. The case had three big issues. First, does the Utah anti-bigamy statute extend to religious ceremonies that are not intended to have any legal effect? Second, if the anti-bigamy statute does extend to such marriages, does it violate the Utah constitution? Third, does the statute violate the federal constitution? Not surprisingly, the court ruled that the statute applied to plural marriages by Mormon fundamentalists and this did not violate the state or federal constitutions. The real fireworks in the case came in Chief Justice Durham’s dissent. Holm is the latest installment of an argument that has been brewing in the Utah Supreme Court for a while. The bottom line is that Chief Justice Durham is extremely uncomfortable with the criminalization of religious polygamy, and in her dissent she very forcefully argued that the Utah bigamy statute did not apply to religious polygamy, that if it did apply it violates the Utah constitution, and that in any case the Supreme Court’s recent decision in Texas v. Lawrence, striking down Texas’s anti-sodomy statute, renders anti-polygamy laws unconstitutional. On the legal merits, with all due respect I think that Chief Justice Durham is wrong on all three of her conclusions. (Although, I think that the Texas v. Lawrence argument is a very close call.)

One of the striking things about the opinion was the extent to which the scholarship on Mormon legal history was on display in the case. Both the majority and the dissent relied heavily on Sarah Barringer Gordon’s recent book The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America. A concurrence in the case discussed the Smoot hearings and Kathleen Flake’s The Politics of Religious Identity discussing them. Dale Morgan, one of the earliest modern historian of Mormonism and the source of most of Fawn Brodie’s research was cited by Chief Justice Durham. Even Ken Driggs, who has written a number of excellent articles on Mormon legal history, made a brief cameo. He was retained by the polygamist defendant as an expert witness, but the trial court refused to allow him to testify. Interestingly, the only book that might have made and appearance but didn’t was Ed Firmage & Collin Mangrum’s Zion in the Courts. To the extent that the New Mormon History can make law, it was on display in Holm.

The ironic thing, of course, is that the opinion that made the most out of the history — Chief Justice Durham’s dissent — got the history wrong. The crux of the Chief Justice’s argument is that the anti-polygamy crusades of the late nineteenth century were not directed at the celebration of plural religious marriages, but rather were aimed primarily at suppressing the legal recognition of such marriages in Territorial Utah. The point is legally significant for two reasons. First, the anti-polygamy crusades led directly to provisions in the Utah Bill of Rights outlawing “polygamy” forever. The question is whether the “polygamy” referred to in the clause is what we would think of as plural marriage, or if it was directed more narrowly at the mere legal recognition of plural marriage. Second, Utah’s anti-bigamy statute is a lineal descendent of the federal and territorial anti-bigamy statutes, so the anti-polygamy crusades provide the context for understanding the meaning of the statute.* In support of her narrow reading of the statute, the Chief Justice — entirely correctly — points out that the Mormons in territorial Utah passed laws granting legal recognition to plural marriages. She also — entirely correctly — points out that in 1862 Congress moved decisively to suppress the legal recognition of plural marriages. At this point, however, her historical argument breaks down. She goes on to argue that the rest of the anti-polygamy crusades were simply variations on this theme. The problem, of course, is that they were much more than that. In 1862 Congress did more than refuse to allow plural marriages to get recognition. It also moved to criminalized Mormon plural marriages. Indeed, the repeal of territorial laws recognizing plural marriage and the criminalization of bigamy were two separate sections of the 1862 law. Furthermore, from the beginning, 19th century Mormon polygamists offered exactly the argument that the Holm dissent endorsed, namely that their plural religious sealing ceremonies were not marriages within the meaning of the anti-bigamy statute. This argument got nowhere in the 19th century, and everyone involved in the anti-polygamy crusades knew what Congress was trying to do from 1862 on: Criminalize the Mormon marriage system. In this sense, Chief Justice Durham’s opinion — for all of its laudable historical erudition — is trying to make an historically untenable argument.

Holm is a wonderful illustration of the power of history in the law. It is also, however, a great illustration of how the law is always about more than history. Frankly, I suspect that Chief Justice Durham, who is an exceptionally smart and well-informed woman, knows that her historical arguments in Holm are ultimately tendentious. However, she also realizes that as a judge she is much more than a historian in robes.

*The Chief Justice also argues that Utah’s current anti-bigamy statute was not passed until 1973 and therefore the territorial history is irrelevant. I think that this argument, however, is a makeweight. There have been bigamy laws in Utah since statehood and before, and it looks as though the 1973 enactment was simply a recodification. The usual rule of statutory construction is that recodification does not import a new legislative intent. Furthermore, the dissent does not marshal any legislative history in support of the contention that the 1973 enactment meant to strike out in new directions in Utah bigamy law.

40 comments for “Mormon History Goes to Court

  1. May 19, 2006 at 7:02 pm

    Nate, are you going to find time to comment on why you think the Texas v. Lawrence constitutional argument breaks down? I think that may be the most interesting issue for us lay people….

  2. cantinflas
    May 19, 2006 at 7:20 pm

    #1 – I second that.

  3. May 19, 2006 at 7:21 pm

    Robert C.: Because Kennedy’s opinion in Lawrence explicitly disclaimed that it had anything to do with marriage. He was saying that Lawrence does not create a constitutional right to same sex marriage, but simply went to the question of criminalizing sodomy. Bigamy is halfway between a sodomy crime and gay marriage. We know that Lawrence is not about gay marriage because Kennedy says so. Bigamy is about marriage. On the other hand, we know that Lawrence is about striking down criminal laws. Bigamy is a criminal law. It seems to sit between the holding in Lawrence and the explicit exclusion in Lawrence. Hence it could go either way (this is why I think it is a hard call.) On the other hand, I think that Scalia is ultimately right about the sociological origins of the Courts concerns about homosexuality in Romer and Lawrence. There is no analogous sociological source for a sympathetic view of polygamists.

    On a more technical level, Lawrence is a really confusing case for me. Did it apply rational basis scrutiny or strict scrutiny? Is it a due process case or an equal protection case? Does it rest on the notion that homosexuality is a suspect classification or on the notion that intimate association is a fundamental right? It seems to rely on cases like Romer and Clereburn, which are equal protection cases purportedly applying rational basis scrutiny, but in reality applying something else. On the other hand, Kennedy goes off about private personal decisions, which makes it sound like it is a substantive due process/fundamental rights case. In short — true to form –Kennedy is none too clear. It could break in either of two ways. One, we could read Lawrence as standing in line with Romer as part of an emerging jurisprudence holding that sexual orientation is a semi-suspect classifcation like gender. (This gives the courts a out on gays in the military.) I think that this is probably the right way of reading it. In this case, however, polygamists, not being homosexuals, are out of luck. On the other hand, it might be some sort of fundamental rights case, in which case it all hinges on how broadly or narrowly one defines the fundamental right. Here, however, I suspect that the right is not too much broader than the ability of consenting adults to have sex free of government coercion. Bigamy, however, is not about sex but marriage, and I suspect that the Court doesn’t want to go down that road because it would become embroiled in the same-sex marriage wars, which I think it is trying to avoid.

    In short it is all very confusing and slightly incoherent. Lawrence is ultimately an inkblot overturning a sodomy law. Read your hopes and fears into it as you see fit…

  4. Mark Butler
    May 19, 2006 at 8:02 pm

    Nate, as I see it the idea of a judge circumscribing the scope of application of the logical argument of an opinion is hardly more than mere apologetics. Of course Lawrence is not a binding legal precedent to other questions because it directly applies only to cases with similar facts. However, the logical argument used will inevitably have great influence on the lower courts nonetheless, no matter how much the original justices pretend that they are setting legislative-like bounds of applicability based on assumed authority without some sort of rational argument as to why not. Precedents simply do not work that way in practice. Justices have to at least pretend they are making a legal, and not a legislative argument.

  5. May 19, 2006 at 9:00 pm

    Nate (#3): I’m glad to see that the issues in the ruling on Texas v. Lawrence aren’t obvious, I remember reading that decision and being pretty confused….

    So this link from DMI’s post gives me the impression that in truth it was the under age issue that decided the Utah bigamy case. As a practical matter, I find this convincing. But what about as a theoretical/jurisprudential matter? I find it hard to believe that this case wouldn’t have gone the other way had it involved consenting adults.

    You say, “I think that Scalia is ultimately right about the sociological origins of the Courts concerns about homosexuality in Romer and Lawrence. There is no analogous sociological source for a sympathetic view of polygamists.”

    Are there sociological sources for a sympathetic view of fornication for consenting adults? I remember fornication being cited in Scalia’s dissent, but is there any pracitcal significance on this issue for non-minors? How do you think this case would’ve been decided had the underage plural wife not been married to the bigamist—that is, if it were just adultery? or fornication?

    Here’s a scenario that came up in dinner conversation: Suppose I am renting an apartment in Utah (where cohabitation is illegal) to a couple that I know is cohabitating, where the husband is legally still married to someone else. Could the wife press charges against me for abetting the cohabitors? On the flip side, if I denied rent to the man just b/c I thought it was immoral for him to cohabitate with his lover, would he have theoretical grounds for discrimination (suppose he could prove this was the only reason I didn’t rent to him)? Would the gender of the illicit lover affect the case?

    (Feel free to ignore these questions—I don’t want to threadjack, I’m just brainstorming the questions this ruling raises for me….)

  6. Nate Oman
    May 19, 2006 at 9:51 pm

    Mark: I basically agree with you, subject to two caveats. First, I don’t really know what the logic in Lawrence was. Second, you can be pretty sure that the Supreme Court will maintain final control over what Lawrence means, so in a sense they can set legislative like bounds, as intellectually unsatisfying as that is. (Does Marsh fit in with the rest of Establishment Clause jurisprudence? Of course not. Can Locke v. Davies be reconciled with Lukumi? Not really. Etc. etc. etc.) That said, I think that judges ought to be upfront about their reasoning and that they do the law a disservice when they write incoherent opinions or make one-time-only decisions. (I am looking at you Sandra Day O’Connor).

    Robert C.: It would depend on the anti-discrimination statute at issue. This has actually come up, where religious landlords won’t rent to fornicating couples. The couples sue under state discrimination laws, which are then challenged on state constitutional grounds. If I recall correctly, there is an Alaska case and Massachusetts case on this. I think that in both cases the renter won. (Or maybe only in Alaska? I don’t really remember.)

  7. APJ
    May 19, 2006 at 10:14 pm

    re #5: the opinion clearly addresses both the bigamy and ‘sex with a minor’ charges. Both are analyzed, so I don’t think it would have come out differently w/o the ‘minor’ charge. Of course, since law enforcement of bigamists is clearly ‘hit and miss’ in Utah, it seems more likely that a prosecutor would go after a guy who is not only a bigamist (under Utah law), but also abusing a minor. And given the probable inability to go after each and every bigamist, I personally would hope that law enforcement would go after those with easily identifiable victims.

    But, I do think you are wrong that a court would decide differently if the case involved consenting adults; the Utah Supreme Court clearly finds the bigamy statute constitutional and finds that the guy (I forget his name) was violating it; therefore, it upholds his conviction under that statute.

  8. May 19, 2006 at 10:45 pm

    Nate (#6): You’re right about the Alaska case, the 9th Circuit found that the landlords were allowed to discriminate for religious reasons. Here’s a summary:

    The closing portions of the majority opinion found that the provisions had placed a substantial burden upon the exercise of the landlords’ religious beliefs because the provisions “de facto banish [the landlords] from the Alaska rental market altogether and force them to forsake their livelihoods” as property owners. The mere fact that the landlords entered into a regulated industry did not make the burdens placed upon them insubstantial. The majority further found that the appellants had not shown a compelling government interest to support enforcement of the provisions. The appellants had advanced insufficient evidence to support the conclusion that ending discrimination against unmarried couples (unlike, for example, racial discrimination) was a “firm national policy” sufficient to permit the substantial burden upon the landlords’ rights.

    APJ (#7): Thanks, I can’t defend my speculation, I’m just asking the question out of my own ignorance and gnawing curiousity. I think the most confusing issue for me is how does one argue that sodomy laws are unconstitutional (a la Texas v. Lawrence) but bigamy laws are not (and how would, say, a fornication case between consenting adults be decided)?

  9. APJ
    May 20, 2006 at 2:26 am

    re #8: I got the impression (from reading some but not all of the opinion, so this could be wrong) that the court pretty much dealt with it by saying that since the state regulates marriage, it can regulate behavior to an extent within the marriage. So, adultery/bigamy etc. could still be criminalized, as it interferes with marriage. But, maybe laws regarding fornication (sex between non-married, consenting adults) could now have some protection per Lawrence? Again, I’m guessing and speculating and probably sounding stupid, but like Nate points out, there isn’t an obvious, coherent rationale to go by here. I’m thinking like those statutes banning oral sex in some places or what have you. I don’t know; just speculating.

  10. Mark Butler
    May 20, 2006 at 3:37 am

    In general, I do not see any constitutional basis for overturning laws that regulate actions – fornication, adultery, unlawful cohabitation, and so on. That is why Lawrence appears to be without constitutional merit.

    Although it appears to me that the Utah case was correctly decided as a matter of law, there are some aspects that trouble me. In particular, the irrationality of prosecuting people for ‘purporting to marry’ – prosecuting for unlawful (conjugal) cohabitation is one thing, but prosecuting for ‘purporting to marry’ looks like punishing people for a thought crime.

    It seems to me that portion of the Utah anti-bigamy law is a violation of the First Amendment, though not the Utah constituition, curiously enough.

    For example the Supreme Court stated in Sherbert (1963):

    “The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such. Government may neither compel affirmation of a repugnant belief; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibit the dissemination of particular religious views.”

    So how can it be a crime to purport to be religiously, but not legally married? Can polygamists escape prosecution by using a different, artificial word?

    It is worth that the Courts decision in Reynolds (1878) appears to be fully consistent with our position in D&C 134:

    “the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.”

    “…human laws being instituted for the express purpose of regulating our interests as individuals and nations, between man and man; and divine laws given of heaven, prescribing rules on spiritual concerns, for faith and worship, both to be answered by man to his Maker.”
    (D&C 134:4, 6)

  11. APJ
    May 20, 2006 at 4:27 am

    Mark, I had the same thought initially. But I don’t think it holds, because the couple actually participated in a marriage-like ceremony. In other words, the guy wasn’t convicted for thinking he was married to an additional wife, or even going around saying ‘I consider myself married to this additional woman;’ he actually ‘purported to marry’ an additional spouse (as in, ‘To have or present the often false appearance of being or intending;’ not as in having the intention to do something).

    I think it’s unfortunate that the state should criminalize something that obviously only has effect for personal religious purposes (i.e. the couple here was not seeking any legal benefits of marriage, only recognizing it as religious in nature); but I disagree that the statute is a ‘thought-crime’ one.

  12. Mark Butler
    May 20, 2006 at 7:14 am

    If that is the case APJ, then why shouldn’t we consider the word “marry” a government protected trademark and prosecute polygamists for trademark infringement?

    In other words, why wouldn’t polygamists be able to escape that point of the law by inventing a new term?

    Or is the prohibition against “purporting to marry” another really a prohibition against purporting to have a second conjugal relationship with spiritual overtones?

    And finally, what is the justification for prosecuting people who pretend to be married when we do not prosecute repeated adulterers, fornicators, and other conjugal cohabitors? Is it that any matter of sexual immorality and infidelity is just fine, as long as one does not pretend to have religious or spiritual sanction for such a relationship?

  13. May 20, 2006 at 8:37 am

    APJ (#9): Thanks, that helps. Although I think Mark points out good perverse implications of this way of thinking, it makes sense to me from a contract perspective: If you never say you’re going to enter into a monogomous marriage, then you can be as permiscuous as you want. But if you enter into a contract to be monogomously married, then the state has the right to prosecute you if you are not. Then the issue is only what kind of marriage can you legally enter into, and currently it seems the Supreme Court wants to leave that for the states to decide (e.g. bigamy in Utah, homosexuals in Connecticut).

  14. Mark Butler
    May 20, 2006 at 8:49 am

    Robert, Contract enforcement is generally a matter of civil law. It is one thing to say that the state does not recognize such a contract as valid, but what basis does that state have to criminalize such arrangements to a greater degree than adultery or cohabitation?

    What state interest is being served by making a fidelity a crime where infidelity is not?

  15. APJ
    May 20, 2006 at 8:52 am

    Mark, I think (again, just from perusing this particular decision) the rationale of the decision is that ‘purporting to marry’ is really a prohibition against having a second conjugal relationship; not against using the term marriage. I say this because the court, in justifying upholding the bigamy charge, described the religious marriage ceremony (and drew similarities to a ‘normal’ marriage ceremony), and then described the relationship between them after it (and again drew similarities between it and ‘normal’ husband/wife relationships, like living together, having sex, etc). So, I wouldn’t think you can’t just start calling plural marriage ‘the principle,’ and expect to win a bigamy charge. Granted, this raises a lot of questions as to what is sufficiently similar to ‘normal’ state sanctioned marriage, but it appears that if a court can be convinced of a sufficient similarity, bigamy would stick.

    As to the enforcement part of your comment, well, I can’t think of any justification, except that law enforcement is pretty discretionary. I mean, if a law exists, and charges have been brought, a judge can’t really say, ‘the law is constitutional, you broke it, but i think we should go after other lawbreakers instead.’

    By the way, I personally don’t think ‘victimless crimes’ should be criminal, and think polygamy between consenting adults should be legal. I’m just trying to guess as to what the Utah Supreme Court is trying to say with this opinion, whether I agree with it or not, since it’s the law, and it’s good to know what the law is, I think.

  16. APJ
    May 20, 2006 at 9:20 am

    I’ll just add that I don’t see analogies to copyright law or contract law as particularly useful, because, as it is now, the state has an interest in regulating marriage (whether this is good is debatable, but…).

    I think maybe one way to get around bigamy laws would be to prove that the law, when passed, was targeted at a religious group. If I remember right, the Lukumi case got that animal sacrifice law declared unconstitutional because (even though it didn’t mention the Santerians) it was so obviously directed at them (which the context showed). The idea was that you couldn’t pass a law even if it didn’t single out a religion if your true motivation was to discriminate against that religion. The statute there didn’t deal only with Santerian practices; it involved any killing of animals (then carved out a bunch of exceptions) so as to be neutral to religion. But the context (local community leaders pretty much admitted that the reason for the law was to keep Santerians out of the city) was discriminatory towards them, so the statute got struck down.

    So maybe if you could show that some bigamy statute was passed in direct response to a fundamentalist religious group (or only enforced against them?), aimed at not allowing them to practice their religion, then a better case could be made for overturning bigamy laws. I don’t know though; I’m just kinda thinking outloud…

  17. Mark Butler
    May 20, 2006 at 10:42 am

    APJ, when I say justification in the latter context, I mean the legislative justification, not the legal justification.

    As far as the behavior part is concerned, I would think that would more than adequately be covered by the unlawful cohabitation section of the law, so the purporting to marry question is mostly academic.

    My other concern is consistency – I think non-polygamous cohabitation and especially adultery is equally meriting of state regulation as polygamy, and certainly far more than minor drug crimes. Not that we should throw adulterers in jail, but it definitely should be against the law and known to be such. Compare how we deal with treason.

    If not, I do not see why we should single out polygamists for special treatment.

  18. APJ
    May 20, 2006 at 11:31 am

    Oh, okay, legislative justification…I don’t know what it was (hard to put your finger on a single reason what with many legislators being involved). But like I said in 16, if you could show that the purpose of a law was to discriminate against a religious group, that group would be much more likely to get the law struck down. Generally, as I understand, a law that is equally applied to all can’t be struck down because it happens to go against some religion’s practices; but a law that was enacted to discriminate against/harrass/etc. a religion can be struck down under to Freedom of Religion principles. And it would be difficult for the state to find a sufficient reason why it needs a law that outlaws people ‘imitating’ legal marriages (once it’s established that the law was originally passed with the minority religion in mind).

    Also, I think you may have been right that not just the act but the ‘thoughts’ or motivations were considered here. The fact that they ‘considered themselves to be married’ and that the bride ‘considered her dress to be a wedding dress’ was used as ‘evidence’ of purporting to marry in the opinion. So you’re right: how the people involved thought about it was perhaps just as important as the act of doing it (or at least relevant enough to mention). So, your concern that the state seems to be criminalizing how people think of their relationships between each other is more valid than I thought originally.

    As far as whether or not it should be criminalized, I don’t think any of the things you mention should be criminal. Since adultery violates the marriage agreement, I think the non-breaching party should have legal advantages should s/he seek to dissolve the marriage; and I think that the more society values marriage, the more of a social outcast the adulterer will be. But I don’t see the point in criminalizing the behavior will achieve any societal good. To the extent that such things should be known, well, it would be in the divorce decree wouldn’t it? (I really don’t know, and I’ve been divorced! I can’t remember what the forms looked like, and didn’t ask if they were public record or anything; so young and naive and divorced was I). As to unmarried cohabitators in and of itself, I can’t think of any good justification to criminalize that behavior, without invoking some religious justification. But that’s just me

  19. APJ
    May 20, 2006 at 11:37 am

    uh, a quick reading of my previous comment could mistakenly lead one to assume that adultery was the cause of my divorce. It wasn’t. I was just commenting that I’ve been through the process and don’t remember what kinds of things are included on all the the forms and whether the decree is public record or not.

  20. May 21, 2006 at 9:17 pm

    Very interesting discussion. A couple of quick points:

    1. I don’t think that the prohibition on bigamy is particularly mysterious. You could argue that it rests on two basic justifications. The first is that it protects the expectations of monogamously married couples by punishing those who disappoint the expectations. This is bigamy in the classic sense, ie a man is married in Nevada, abandons his family, and then remarries in Utah without telling his second wife of the previous marrate. The second justification is that open plural marraige has bad social consequences. On this view the “problem” is that communities like Hillsdale are likely to be more dangerous in various ways, eg fraud, child abuse, etc., than other communities precisely because of plural marriage, which should therefore be suppressed. Now one can argue with the emperical basis for either of these justifications, but they both seem sufficient to withstand traditional rational basis scrutiny.

    2. I think that the intuition behind the objection that criminalizing merely religious marriages that don’t claim legal significance is in many ways a due process objection. In the Nevada example above the predicate “marriage” for the bigamy charge is cleary identifiable, as it is marriage as defined by state law. The problem with prosecuting Holm is that if marriage under the legal definition is not necessary, we are left with the question of exactly what is necessary. This, it seems to me, is ultimately a void for vagueness argument that sounds under the Due Process Clause rather than the First Amendment or the Equal Protection Clause. For whatever reason, however, the court did not analyze the problem in these terms. (Perhaps the case was simply badly briefed?) I don’t know the ins and outs of void for vagueness doctrine, but saying that a second “marriage” is illegal even when the marriage doesn’t meet all of the necessary elements for a legally binding marriage doesn’t strike me as so vague as to be unconstitutional on due process grounds. Indeed, my understanding is that under Utah law any religious leader over the age of 18 may perform a legally binding marriage. Hence, in Holm’s case I think that his second marriage would have been “legally binding” but for (a) its bigamous nature and (b) the fact that the parties did not “intend” to marry. It seems odd, however, to say that one can do everything necessary for the completion of a crime except intend that one’s actiosn be illegal and then somehow avoid prosecution. Furthermore, there is a sense in which ANY bigamous marriage — including one that intends to create a legally binding marriage — will involve defining marriage in terms other than the otherwise legally binding definition of marriage. This is because bigamous marriages by definition are not legally binding, despite one’s intent. For example, imagine that we have a Nevada-style bigamist who intends to get legally married to a second wife but fails to do so because (1) he is already married and (2) unknown to him the minister performing the “marriage” is a 15 year old shyster who isn’t associated with any church. As I understand it, under Utah law (2) would be sufficient to invalidate the marriage. Yet is it the case that our Nevada-style bigamist has failed to commit a crime?

    3. Lukumi does state that “religious gerrymanders” can be unconstitutional. The question here is not quite one of legislative motivation. Rather, it is a question of whether the statute was drawn in such a way as to get at only religiously motivated conduct. While there is a great deal of appeal to the intuition that anti-bigamy laws in Utah are really about “getting” FLDS and other religious polygamists, I don’t think that you can argue that anti-bigamy statutes are a religious gerrymander under Lukumi, for the simple reason that they on their face reach lots and lots of non-religious behavior, and the common-law crime of bigamy has long existed for reasons wholly unrelated to the suppression of FLDS beliefs.

  21. Mark Butler
    May 21, 2006 at 10:56 pm

    To clarify, I do not have any problem with the second part of the law that prohibits an action (unlawful cohabitation), I have a problem with the first part that prohibits speech (purporting to marry).

    Suppose, two persons purported to marry, but then never consummated the marriage nor even lived together, just saw each other on occasion – behaving more like what we would consider an engagement.

    Presumably if they merely claimed to be married or wnet through a ceremony with a white dress and a wedding cake, they could be prosecuted on that basis alone because the “purported to be married”, either verbally or symbolically.

    That sounds like undue proscription of the expression of belief to me, which is or almost certainly should be a violation of the free exercise clause as interpreted in both Reynolds(1879) and Sherbert (1963).

    Am I wrong? And if so why?

  22. Kimball L. Hunt
    May 21, 2006 at 11:04 pm

    Don’t worry, even should they make thought a crime few Mo’s would ever be affected. Snark! rofl

  23. APJ
    May 22, 2006 at 12:23 am

    Nate, some comments and ‘concerns’

    Re 1st point: I agree. The justifications you present pass rational basis scrutiny easily.

    Re 2nd point: Interesting thoughts on vagueness. I don’t know the ins and outs either, but one thing that strikes me is that, under this bigamy statute, someone who is acting out a marriage in a play (and already married) or someone who is playing a joke on an old friend he hasn’t seen since he got married (introducing someone as his wife, when really his wife is in the other room; ha ha) could be prosecuted, because they are ‘purporting to marry,’ even though they lack the intent (granted, stretches, but still prosecuteable under this law). So, how could one objectively know if what they are doing is against the law (kind of the standard for vagueness, right?) when the phrase ‘purporting to marry’ covers so many activities? Granted, common sense tells us the law wouldn’t go after them, but if vagueness is the argument, can you rely on the ‘common sense’ of law enforcement discretion (to an extent we have to; but again, why should a law NOT be declared vague when the only reason it isn’t is because we all ‘know’ it’s just meant to go after reall trouble makers)? I don’t know. More realistically, what if a married man ‘purported to marry’ a fellow-religionist lady with no intent to act married in this life (not live together, not have sex, etc), but only so she could go to the celestial kingdom with him after this life (using, say, the same religious ceremony described in Holm). Bigamy committed or no? If the statute meant to go after that too, then, I guess it’s okay; but if not, then potentially vague? I don’t know. and I think the ‘purporting to marry’ requirement probably was a way to get at polygamists who got around ‘cohabitation’ bigamy by simply maintaining different houses for different wives; but there’s an argument that the ‘purporting to marry’ part of the statute at least is vague (I think, but maybe my concerns aren’t really ‘vagueness” concerns, but actually freedom exercise concerns dressed up as vagueness concerns, because I don’t know too much about it). Of course, there is still the ‘cohabitation’ prong, so we’re not discussing whether the state can go after bigamists, just that ‘purport to marry’ is to vague.

    Re 3rd point: I agree to an extent: although the Lukumi statute was ‘facially neutral,’ in the sense that it didn’t name a religion by name in the statute, it included a lot of exceptions for regular behavior, so as to effectively only target a religious minority. So, coupling the legislative history (discussed quite a bit in the opinion) with the poorly-carved-out exception (also discussed extensively), the court found the statute unconstitutional (looking at the WHOLE context). But, the statute in Lukumi DID address SOME non-religious conduct (if you didn’t meet an exception in the statute, and killed an animal, you could be prosecuted); it was just MOST LIKELY to be used to prosecute that particular religion. So, I think there is a way to compare this bigamy case and Lukumi, albeit without perfect analogies.

    Finally, your mention of ‘religious leaders over 18 can marry people’ got me thinking…how easily could the state revoke this power? In other words, what if the state found some justification for passing a law that says only ‘justices of the peace’ (or equivalent officials) can perform marriages. The justification is, say, too much fraud is occurring, regarding shoddy internet ministers. So, now religious ministers no longer have the authority to perform legal marriages (let’s say, from now on; not retroactively). Sounds like it passes rational basis, right? Can the state revoke the authority that it’s given clergy with no more justification? I really don’t know. But, let’s say LDS and other religions respond by, from now on, only performing ‘religious marriages’ for couples who can show that they have been legally married (LDS reasoning is obvious, to do the sealing ordinance; but even other religions do so, because they think marriage is something that should have God’s blessing). Then, the state finds some ‘rational basis’ for saying that these ceremonies are causing too much confusion as to what is legally marriage in this country, or (insert any rational argument here). So, a law is passed saying religious ministers can no longer perform ceremonies that ‘purport to marry’ people. Yes, religions still have ‘commitment’ ceremonies, or something, but if it looks like marriage too much, it’s illegal. This puts the LDS in a bad position, because of the importance of marriage by priesthood keys (i.e. sealings). So, LDS church brings a lawsuit claiming these ordinances should be overturned. What’s their best argument? Can they win on any argument? Is this situation different from FLDS and other religious polygamists, or would LDS and other religions simply have to accept that they are now a minority and all that that implies in this country, just like FLDS are currently?

  24. APJ
    May 22, 2006 at 12:34 am

    Kimball, please, my uncle was named Mo; what do you have against people like him??? He thought about lots of things. haha, just kidding.

    Mark I share your concerns, but, as far as considering it a thought crime, I would add that considering speech as a ‘symbol’ only goes so far. For example, I don’t think you could be a bigamist for thinking you’re married to someone; you could even express this by saying everytime you see that person ‘hey we’re married’ and they could feel/think the exact same way. It’s when you do something that looks like marriage too much that ‘purporting to marry’ gets brought up and it goes from thoughts and expression to punishable acts (I would argue, though, that even the acts shouldn’t be punishable). Even in your hypothetical, the participants have to ‘do’ something (wear a white dress, have a cake, etc.). You still can’t be prosecuted for ‘thinking’ you’re married to someone besides your wife. ‘Purport’ seems to include some mixture of intent and actions.

  25. Mark Butler
    May 22, 2006 at 1:18 am

    Presumably a law explicitly proscribing the wearing of white dresses would be legal, as would a law against the preparation or consumption of cake. That is not the problem.

    The problem is that the law is against claiming or representing that one is married or being married. Now if a particular “marriage” ceremony has the trappings of some benign cultural signification of marriage – such as the eating of cake, or even a blessing of a priest, or the exchanging of vows, but does not involve living together, sleeping together, or any sexual relationship at all – all activities which could be explicitly prohibited, then proscribing the other significations is simply a prohibition against public expressions of a religious or spiritual status.

    I do not think one can legitimately proscribe against benign significations certaintly not any more than one can proscribe the burning of flags. That type of signification should fall under both free speech and free exercise protections.

    So the only way out I can see is for the government to argue that the term “marriage” and all its cultural modes of signification is a government protected trademark justified on the basis of the importance of the institution to civil society.

    And of course the government in any particular case would have to establish that a particular ceremony really was sufficiently similar to a marriage of the conventional type – i.e. likely to lead to the birth of children and so on.

  26. Rob Briggs
    May 22, 2006 at 4:41 pm

    “Lawrence is ultimately an inkblot overturning a sodomy law. Read your hopes and fears into it as you see fit… ”

    A very interesting technical discussion. Re the quote above, Nate, I’d just like to mention what a nice piece of writing that was. Captures it perfectly.

  27. May 23, 2006 at 12:02 pm

    A couple of more thoughts:

    1. I am actually skeptical that the idea of “thought crimes” is particularlly useful here. Indeed, the more I think about it, the less the idea of “thought crimes” makes much sense to me. There is a sense in which virtually every crime is a thought crime, as the dividing line between civil and criminal liability is frequently the requisit criminal mens rea (criminal intent). (With the approprirate caveats here about various strict liability crimes.) The whole point of the criminal law is to punish guilty minds that accompany guilty acts. It is not as though bigamy as defined by the Utah Supreme Court is a crime without an actus reus. One might believe that it ought not to be punished or that the punishment is too harsh, but doesn’t this really go to the issue of the proportionality of the punishment rather than to concern about “thought crimes.” Nor do I really buy into the idea that what is involved here is analogous to the suppression of speech. Certainly, bigamy would pass any standard of content and view-point neutrality. Given that fact, does anything think that they can make a serious argument that it violates the free-speech clause under the framework for incidental burdens set forth in O’Brien and its progeny? I didn’t think so…

    2. I think that the concerns about bigamy reaching long last prangster pals is missing a key point, namely that there was a very real sense in which Holm and his second wife DID intend to marry one another. This is why the majority went into the details about conjugal relations, children, domestic arrangements, etc. IOW, there was lots of evidence that what was involved here was much more than simply a ceremony or a prank. The two of them intended to get married and actually did get married. The only think that they did not intend was to form a “legal marriage,” for the simple reason that they thought that by not having this intent they could avoid criminal sanctions. Once this fact is recognized, the absurdity of their legal argument becomes apparent. They are in effect arguing that the mens rea for bigamy involves the explicit intent to violate the bigamy laws. There is virtually no kind of crime that requires this level of intent.

    It seems to me — as I said before — that the real concern is not with the intents involved, that is with the mens rea, but with what action is actually necessary for the crime, that is the actus reus. Here the Court in Holm didn’t offer a bright line rule, saying instead that given the sex, children, and domestic arrangments, as well as the language of the ceremony and accompanying symbols (white dress, cake, etc.) this was an easy case. And frankly, they are right about that. Figuring out the edges of the actus reus, however, will be difficult. This means, however, that we are straight back to the void-for-vagueness due process analysis. At this point, step back from bigamy for a moment, and think about some other kind of crime like attempt. In many (most?) states as well as in the federal system, my understanding is that the crime of attempt consists of (a) the intent to commit a particular crime; and (b) a “substantial step” toward its commission. Is “substantial step” really LESS vague than “marriage”? Do we feel that juries can competently sort out what constitutes “a substantial step” but not what constitutes a “marriage.”

    At the end of the day, I suspect that what is lurking behind the objections to the bigamy statute are none of these arguments about what constitutes a marriage or the like but rather a simple dissatisfaction with Reynolds. Reynolds, however, for better for for worse is the law of the land.

  28. May 23, 2006 at 12:12 pm

    Now here is an argument that could REALLY tie one in knots about what is marriage. In Employment Div. v. Smith, Scalia distinguished Wisconsin v. Yoder by arguing that it involved a situation where there was a “hybrid right,” namely the free exercise of religion and the right of parents to raise their children. Although the Court held (in Smith) that the plaintiff in Yoder was not entitled to an exemption from the law on the free exercise claim alone — afterall it was a neutral law of general applicability — the plaintiff was entitled to an exemption when a hybrid-right was at issue. Thus was born the so-called “hybrid-rights doctrine,” which has been explicitly followed by several circuits.

    So in Loving v. Virginia the Supreme Court, in striking down an anti-miscegenation law held that marriage was a fundamental right. So you could argue that a religious polygamy claim presents a case of hybrid-rights. The argument would be that it is a religious practice that also involves the exercise of a fundamental right. Under Smith’s reading of Yoder, this is the classic hybrid-right case. The problem, of course, would come in deciding what is the fundamental right to marriage that was recognized by Loving. Put another way, does plural marriage come within the idea of “marriage” recognized in Loving?

    To add another wrinkle to the story, the best (in my mind) constitutional argument for gay marriage under existing precedent is that that the gender classification of traditional marriage statutes burden the fundamental right to marry. This let’s you link Loving with gender-discrimination cases to provide an argument for the unconstitutionality of traditional marriage. The response to this argument — and I think it is a good one — is to point out that gay marriage is not simply a subspecies of marriage, but redefines it in such a radical way that despite the coincidence of labels it is actually something quite different than the institution recognized as a fundamental right in Loving.

    So think before you jump into the constitutional marriage thicket all ye Reynolds haters!

  29. Mark Butler
    May 23, 2006 at 1:41 pm

    For the record, I think that Reynolds was correctly decided, and is fundamentally good law. For the Court to have decided otherwise would have opened up a legal loophole larger than due process. If a government cannot regulate marriage, what can it regulate?

    What is completely amazing to me is the lengths the LDS were willing to go to post-Reynolds to pursue a fight that they should have known that they had no chance of winning.

  30. May 23, 2006 at 2:31 pm

    Mark: The court could have decided Reynolds in ways that overturned the Morrill Act without creating a massive “legal loophole.” Indeed, contrary to the way that their arguments were characterized by the Court (and by virtually all subsequent legal historians), the lawyers for Reynolds laid out a fairly limited theory of religious freedom. Stay tuned, and check for more coming soon to a law review near you…

  31. APJ
    May 23, 2006 at 3:02 pm


    The hybrid rights aspect is interesting; I’ll admit to being a little unsure of what it means. For one thing, I think it’s a little ‘shaky’ to create a whole new doctrine based on what was Scalia’s attempt to distinguish Yoder from Smith. But, you’re right, some courts are embracing it, and the fact that I think it’s ‘shaky’ doesn’t mean much (all you need is the majority of justices, eh). But if you look at Yoder ITSELF, it clearly wasn’t using a hybrid-rights analysis. Yes, it mentions the right of parents to raise their children, but the ANALYSIS is under free exercise doctrine. (In my mind), a very viable alternate interpretation in Yoder is that society in general favors hard-working people like the Amish (Yoder) over peyote-smokers (Smith). We respect the Amish, so we let it slide; we don’t value white guys practicing a Native American religion and smoking peyote (even though from what I understand no one really questioned their sincere religious motivation; it’s just that we don’t VALUE their religion the way we do the hard-working Amish) so we don’t let it slide.

    Even beyond the fact that Scalia was probably stretching to make a distinction (not uncommon in opinions, obviously), the constitutionality of ‘hybrid rights’ should be very suspect (in my opinion), because: WHY SHOULD TWO CONSTITUTIONAL VIOLATIONS BE MORE IMPORTANT THAN ONE?! For example, shouldn’t a gross violation of a constitutional right be more protected than a small violation, even if the small one happens to fall under two different rights? I mean, how logical is it to say that criminalizing one practice is ‘kind of ‘ a free exercise violation, and ‘kind of’ a free speech violation (or any combination of Constitutional rights).

    So, I’m not disagreeing with you (in fact I agree as to what the current law is): yes, Scalia wrote what he wrote, and yes some courts are using this ‘hybrid-rights’ doctrine (from what I understand), but I just think it stands on a very shaky premise (one that could easily fall out of favor). My initial thought would be that courts are using ‘hybrid rights’ not because they are convinced of its pure logic and constitutional soundness, but because they see it as an easy way to come to what they see as a fair resolution.

    In short, I agree with you as to current assessment of law; I’m just arguing that I hope ‘hybrid rights’ doesn’t become too entrenched, because I think it’s wrong.

    (Finally): as to my ‘long lost pal prank’ example, I agree with you, it is a stretch and doesn’t really address the main concern. I was just trying to find an argument for vagueness/overbreadth (not actually trying to dispute the analysis of the court or anything), and, admittedly, didn’t do so very convincingly.

    I still think it’s interesting (perhaps not very legally significant, but interesting to me) to consider the much-more-likely scenario of a religious man taking on multiple wives with whom he lives, but does not have kids with (e.g. the poor widow who never was sealed to her now-dead spouse, but wants to go to the celestial kingdom, and so gets sealed to a married man, who also provides for her). Again, a stretch, but is this similar enough to marriage (religious marriage coupled with *some* similarities to marriage, albeit without kids or sex, but with the living together and providing for) to be a ‘bigamist’? Of course, this is still a stretch since it’s unlikely to be prosecuted, (although I could see a ‘bigamy’ charge being added on if, for example, the husband was also abusing her or committing fraud against her).

  32. APJ
    May 23, 2006 at 3:35 pm

    That said, your idea about using hybrid rights for polygamists is interesting. Are you saying the argument would be used to justify ‘legal’ polygamous marriages (i.e. that the state has to provide legal recognition to them) or just ‘religiously significant’ marriages (ie., like in Holm)?

    It seems there’s a difference between (some) gay marriage advocates and polygamists, in that gays want legal marriage itself. And even civil unions that imply some legal recognition, even if it is not marriage. Polygamists like Holm are not seeking any legal recognition…just to be able to live the lifestyle. So, my question, I guess, is how does the fact that polygamists (at least the ones we’re talking about) aren’t pursuing a fundamental right to marry (legally) fit in to what you’re saying? (honestly curious)

  33. APJ
    May 23, 2006 at 3:42 pm

    I guess I just think it’s more likely that courts would find that polygamists would have a fundamental right to privacy to practice polygamy than a fundamental right to ‘marriage’ (which implies state recognition of it). Granted, neither ‘right’ has been found, but if Lawrence could be used analogously, if gays ever get the right to marry (whether this is your hope or fear, haha), it can always be said that that their right to live their lifestyle (by not having laws criminalize their sexual practices) came first. So it seems (to me) that when we’re talking about expanding rights (whether we call it judicial activism or a living constitution) the right of a minority to do something privately will almost always come before the right to have that practice legally recognized as equivalent to what the majority are doing. This is more of a societal observation than legal analysis, but I think it’s useful to consider.

  34. Mark Butler
    May 23, 2006 at 6:04 pm

    I do not doubt that one could and perhaps should draw a more expansive definition of religious liberty thatn that drawn in Reynolds, however I am dubious that drawing one large enough to include marriage is either what the founders intended, or what a neutral reading of the text supports, or would be a good idea in the first place, even as a separate constitutional amendment.

    If that was the case, we might not be able to have restrictions on under age marriage at all, or statuatory rape laws, or consanguinity laws, or obscenity laws, and so on, without requiring to have the courts invent novel legal theories to fit their vision of desirable practice of governmental regulation within such a sweeping principle.

    I think that the idea of using the free exercise clause to support drug use for some – as long as you truly and sincerely believe in it – and prohibit it for others, is untenable. What about equal protection?

    Given history going back to the time of the Protestant Reformation, it seems clear that the free exercise clause was intended to allow people to exercise religious freedom in the traditional manner – building churches, holding meetings, publishing books, proselyting in public, and other benign activities – all things that would still be subject to reasonable legal regulation, just not regulations that were uniquely hostile to a particular religious viewpoint, religion in general, or the general freedom of assembly and the press.

    The other primary purpose of the free exercise clause, it seems to me, is to provide a proper balance for the establishment clause, so that we do not improperly read the Constitution as being hostile to religion of the first kind.

    However, I am dubious that there are many activities beyond preaching, teaching, publishing, and assembly that rightly deserve to have strict free exercise clause protections.

  35. APJ
    May 23, 2006 at 9:03 pm

    Mark, I agree generally that religious people shouldn’t get more rights just because they’re religiously motivated. How do you explain Yoder, though? That was a law of general applicability (kids under certain age must go to school), but Amish get an exception.

    MY SPECULATION: One difference I note is that the Amish were asking to be able to NOT do something (send their kids to school), whereas in Smith the defendants were saying they had to right TO DO something (smoke peyote). I don’t remember that being discussed in the case, but to me it’s notable. Perhaps Scalia, writing in Smith, didn’t want to make that distinction because it would justify things like, oh, polygamists who weren’t seeking legal recognition.

    So, call me cynical, but I think Yoder was decided because the court looked at the situation and said, this doesn’t look so bad to us, so we’ll apply strict scrutiny and let the Amish (whose protestant work ethic we admire) slide. Of course, they can’t just say that, because it would pretty much admit that free exercise protection is really just a popularity contest (if we like/admire your religion enough, we’ll let you opt out of certain laws, so long as it doesn’t upset society too much). My cynicism also tells me that, this is why FLDS can’t win…even though they share the self-sufficient, hard-working, keep-to-themselves attitude of the Amish, they also have nasty rumors of child brides and rampant abuse running wild.

    (Another perspective may be that, at some level, if we think a religion can do a better job at what the state is doing, like education, we’ll give them the okay to do it on their own)

  36. May 24, 2006 at 9:58 am

    Mark: On the “original intent” of the free exercise clause, I suggest that you take a look at

    Michael McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” 103 Harv. L. Rev. 1409 (1990)

    McConnell makes a pretty good case for an expansive original understanding of free exercise, noting that there seemed to be a general understanding that religious conduct was protected so long as it was not “repugnant to the peace and safety of the State” or “does not disturb the public peace” or does not “include acts of licentiousness or justify practices inconsistent with the peace or sefty of this State.” What this means is unclear, but it does seem to mean something more than simply building churches and attending the Protestant sect of your choice.

    APJ: Who knows what will happen to the hybrid-rights doctrine. I suspect that it will actually survive because its rejection would require the Court to overturn Yoder, which it won’t do, or overturn Smith, which it won’t do. The justices who dislike Smith will stick with it because it preserves Yoder, and the justices who like Smith will stick with it because it perserves Smith. Just my prediction.

    My bet is that even if a court bought into a hybrid-rights argument against the criminalization of polygamy (and I doubt that they would), it would not be willing to hold that the argument affirmatively required the state to legally recognize polygamous marriages. I think that you could point to cases like Tax Comm’n v. Waltz for the proposition that while the state may, if it chooses, provide some benefit to religion it is not affirmatively required to do so. All of this requires that you hold to a rather strict benefit v. detriment distinction. Whether or not this is really tenable is unclear. Certainly, the court can ignore this sort of thing if it wishes, as cases decided under the state-action doctrine make abundently clear.

  37. APJ
    May 25, 2006 at 1:23 am

    Perhaps the US should just suggest they secede from the Union and be done with them. It would save a lot of legal analysis. Would we really miss that chunk of the Arizona desert? haha

  38. Mark Butler
    May 25, 2006 at 2:23 am

    Nate, I am quite sure the founders would consider polygamy, prostitution, incest, consanguinity, sadomasochism, etc. acts of “licentiousness”. Twin relics of barbarism, right?

    So the question is, what other types of peaceful, public nuisance free behaviors are there that government would have a reasonable interest in regulating that would be covered under the penumbra of free exercise?

  39. May 25, 2006 at 9:09 am

    Mark: There are no penumbras here. We are trying to figure out what the actual words of the text mean.

  40. Mark Butler
    May 25, 2006 at 12:51 pm

    Nate, anything that *properly* fits within the penumbra of a valid legal principle, is deserving of judicial consideration, or degree of protection in this case. That follows by the very definition of penumbra – that part of the shadow that is the crossover zone between dark and light. The only debate can be about what is properly within the penumbra or ambiguous zone, and to what degree. So we end up with multi-step concepts like rational, intermediate, and strict scrutiny, right?

    Now I am a big fan of textualism, but in this case it fails. The literal meaning of “free exercise of religion” is perfectly clear – it includes just about any religiously motivated practice from child sacrifice to spousal immolation. The problem is that taking the words literally is one of those ‘turn the Constitution into a suicide pact’ things, as much or more so than yelling Fire! in a crowded theater.

    So that is where original or legislative intent comes in – and I cannot see the original intent of the clause including the right to polygamy or any behavior similarly consequential. The penumbra of the original intent no doubt extends beyond the classic expressions of free exercise to related matters, but they should be given a lesser degree of protection, just as political speech deserves more protection than commercial speech.

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