Engagement in Polygamy - Research Paper Example

 Engagement in Polygamy The plaintiffs, Aaron and Barb Conway and Debbie Evans (hereinafter “plaintiffs”) state that they have a fundamental right to be married. The trial court disagreed, stating that they do not have a constitutional right to engage in polygamy. The case will turn on three different constitutional protections – the fundamental right to marry the person one chooses, the right to privacy and to be free from governmental intrusions, and the free exercise of religion clause. The relevant statute is Utah Code Ann §76-7-101(1), which states that “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann § 76-7-101(1). The first relevant constitutional provision that shall be examined is the free exercise of religion clause of the Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The Free Exercise clause is applicable to the states through incorporation into the 14th Amendment due process clause. Employment Division, Dept. of Human Res. V. Smith, 494 U.S. 872, 876-877 (1990). Supreme Court decisions have determined that if a law that burdens a religion is neutral and of general applicability, then the state does not have to show a compelling state interest. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872. If the law is not neutral or not of general application, then the law must survive strict scrutiny, in that it must advance a compelling state interest and be narrowly tailored to advance that interest. Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. 520 (1993). The instant case is analogous to the Church of Lukumi case. The Church of Lukumi case involved a religious sect, Santeria, that practice animal sacrifice as a part of their rituals. Santeria considered the sacrifices to be form of devotion, and this is a practice that has its roots in ancient times. Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. at 521. The City of Hialeah banned the practice of animal sacrifice because, in part, “the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community.” Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. at 521. The Church of Lukumi court began its analysis of the case by stating that Church of Lukumi is a religion within the meaning of the First Amendment, and that “Although the practice of animal sacrifice may seem abhorrent to some, religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. at 522. The Court goes on to state that “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral,” and if that law is not neutral, then it must survive strict scrutiny, in that it is must be narrowly tailored to achieve a compelling state interest. Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. at 523. The Court also states that a law that subtly targets religion is a violation of the First Amendment, stating that “[t]he Free Exercise Clause protects against governmental hostility which is masked as well as overt.” Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. at 523. Similarly to the Church of Lumkumi case, the case at bar concerns a religious practice that has its roots in the bible, as the practice was condoned and found through numerous scriptures. The church to which the plaintiffs belong, the Mormon Religion, is a religion for the purposes of the First Amendment, and the practice in question, that of taking multiple wives, is abhorrent to some, unacceptable, illogical, inconsistent and incomprehensible to others, but, according to the Church of Lumkumi case, these are not reasons to infringe upon one’s religious practices. Moreover, it is evident that the statute targets a deeply-held religious practice, and, even though it purports to be a neutrally applicated statute on its face, in practice it mainly affects the members of the Mormon Church and other religions who practice polygamy, therefore it is religiously motivated and proscribed by the First Amendment. It must therefore be narrowly tailored to affect a compelling state interest. The first prong of this analysis is the compelling state interest. There are any number of state interests that would be served by an anti-bigamy law, but the question is whether any of them are compelling. One of the first interests, of course, is the protection of children, in that children and adolescents are often a target for a bigamous marriage. For instance, State of Utah v. Rodney Hans Holm, 137 P.3d 726 (2006) concerned a man who was married to a 16-year-old girl, and Tom Green was married to a 13-year-old girl, Linda Kunz, an act for which Mr. Green was successfully prosecuted. Arak, J. “Polygamist Guilty of Child Rape”, CBSnews.com, June 24, 2002. Available at: http://www.cbsnews. com/stories/2002/06/24/national/main513227.shtml. While this interest is admittedly compelling, the law is not narrowly tailored to address the interest. The problem of marrying young girls can be circumvented by a statute that addresses the concern in a narrow fashion. For instance, a statute stating that it is illegal to marry a girl under the age of consent would suffice to address this interest. Pedophilia laws already address the problem of sexual relations with these young girls. A broad statute prohibiting polygamy does not narrowly address this interest. Other than the interest above, there does not seem to be a compelling state interest that is served by this law. Assuming that children cannot be married, then the law is basically concerned with the rights of consenting adults. While individuals may find the practice of polygamy abhorrent and demeaning to women, this is a matter for the individual woman to choose for herself, not society. If a woman wants to be in a polygamous relationship, this should be her choice. This is the principle behind the right to privacy, as stated in Lawrence v. Texas, 539 U.S. 558 (2003), a Supreme Court privacy rights case that was formed on the basis of a long line of privacy-related cases that involve sexual conduct. Lawrence v. Texas concerned two homosexual men who were caught fornicating when an officer was dispatched to their house on a reported weapons disturbance. They were convicted of sodomy, and appealed this conviction. In finding that the Texas sodomy law was unconstitutional, the Court relied upon other right-to-privacy cases, including Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that “the right to make certain decisions regarding sexual conduct extends beyond the marital relationship”); Eisenstadt v. Baird, 405 U.S. 438 (1972) (invalidating a statute that stated that contraceptives were only to be distributed to married persons); and Roe v. Wade, 410 U.S. 113 (1973) (holding that the right to an abortion is protected by the Due Process Clause). In invalidating the sodomy statute, the Lawrence Court stated that statutes that “touch[ing] upon the most private human conduct, sexual behavior, and in the most private of places, the home” infringe upon the liberty of individuals and that States must not make laws that “define the meaning of a relationship or set its boundaries absent injury to a person or abuse of an institution that the law protects.” Lawrence v. Texas, 539 U.S. at 564 (emphasis added). The words “absent injury to a person” is what is controlling in this situation, for these words are at the very heart of liberty. If a person is not being harmed by an act, then a state ought not proscribe it, especially if the act is intimate and behind closed doors. If three consenting adults want to be married, and these consenting adults are all happy with their arrangement, then what right does the state have to say that they cannot? According to the reasoning in Lawrence v. Texas, the state cannot proscribe this conduct. Of course, the Utah law does not proscribe adult sexual conduct per se, it simply states that more than one person cannot be married. However, to demonstrate the absurdity of the polygamy laws, one must imagine that, if the plaintiffs all wanted to live together, having sexual relationships with one another, and bringing children into this arrangement (by having them, not by marrying them), there is nothing that the state could do about this. If they made a law prohibiting this arrangement, then this law would surely be invalidated by Lawrence v. Texas, in that they are consenting adults entering into an arrangement of their choosing, and nobody is being harmed by the act. But if these same parties want to make this arrangement legal, with all the attendant rules and benefits that come with this solemnization – the wives share in the husband’s benefits, they are regarded as the next of kin in medical emergencies, the children are legitimized as opposed to bastardized, etc. – this arrangement is against the law. Public policy encourages marriage, and one of the reasons why marriage is encouraged is mentioned above – children are legitimized, and are treated to a more stable situation than if the parties are unmarried. Polygamy will happen, whether it is outlawed or not. However, because it is outlawed, the children who are born into these arrangements can never be legitimized. Therefore, the prohibition of making these arrangements legal and legitimate by allowing the parties to marry would seem to be against public policy. Further, the Court in Loving v. Virginia, 388 U.S. 1 (1967) stated that individuals have the right to marry to person of their choice. Loving concerned an anti-miscegenation law that forbid two people of different races to marry. The Court struck down this law on equal protection grounds, but also stated that the Lovings were deprived of “liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. at 5 (1967). The Loving case therefore states that marriage is a fundamental right, and, as such, cannot be arbitrarily infringed upon. Individuals have a right to marry whomever they choose, and this right should extend to polygamy as well. Polygamy is a much more acceptable incarnation of this right then people who serially marry. In order for plaintiff Debbie Evans to marry plaintiff Aaron Conway, Mr. Conway would first have to divorce Barb Conway, thereby depriving Mrs. Conway of the benefits of being married to Mr. Conway. This is an untenable situation, therefore Debbie Evans is deprived of her right to marry Aaron Conway, who is her choice of person to marry. Therefore, Ms. Evans right to marry the person of her choice is being infringed upon, in violation of the Due Process Clause. TABLE OF AUTHORITIES Church of Lukumi Bablu Aye. v. City of Hialeah, 508 U.S. 520 (1993) Employment Division, Dept. of Human Res. V. Smith, 494 U.S. 872, 876-877 (1990) Lawrence v. Texas, 539 U.S. 558 (2003) Loving v. Virginia, 388 U.S. 1 (1967) State of Utah v. Rodney Hans Holm, 137 P.3d 726 (2006) Utah Code Ann §76-7-101(1) Read More