Lawsuit Uses Repeal of Sodomy Laws to Support Utah Polygamy
The
Advocate, August 6, 2004
If Texas cannot criminalize sodomy, Utah should not be
able to criminalize polygamy, argued the attorney for three adults who want to
live together as husband and wives. The three filed a lawsuit after they were
denied a marriage license by the Salt Lake County clerk’s office in
December. They ask that the county clerk be required to issue the marriage
license, and they seek a declaration that the state’s criminal and civil
bans of polygamy are unconstitutional. “What my clients want is to be able
to enter into that relationship without the stigma of being branded as
criminals,” civil rights attorney Brian Barnard argued Tuesday before U.S.
district judge Ted Stewart, who took the case under advisement.
Assistant Attorney General Jerrold Jensen argued that the
group lacks legal standing to challenge the statutory prohibition against
polygamy because they have not been charged with violating it. He conceded
they have standing to challenge civil bans on plural marriage. Jensen cited an
1878 U.S. Supreme Court decision upholding the polygamy conviction of George
Reynolds, personal secretary to Mormon pioneer leader Brigham Young. “Those
concepts and that holding in that case have not been overturned,” Jensen
said. “It is still the law in this country.”
However, Barnard said the recent U.S. Supreme Court
decision striking down the ban on private gay sex activities provides a basis
for striking down the polygamy ban. Jensen said the court’s decision in Lawrence
v. Texas, the case that brought about the repeal of sodomy laws, is
limited solely to a person’s private sexual activity and does not extend to
marriage. Barnard also argued that the bans against polygamy in the state
constitution and the Enabling Act of 1894 specifically target one group of
people and therefore fail to achieve the neutrality required by law. Stewart
agreed the purpose of the legislation “was to end the practice of polygamy
by the Mormon Church.” But Jensen said the law is applied today to people of
all, or no, religions and is neutral. Barnard said all recent polygamy
prosecutions have targeted those with strongly held religious beliefs. “The
fact of the matter is that polygamy in Utah is practiced by religious people
for religious reasons, and the statute is aimed at them,” he said. Barnard
said that for his clients, “the practice of plural marriage is required, in
this lifetime, to the attainment of eternal salvation.”
The Church of Jesus Christ of Latter-day Saints abandoned
polygamy when the territory was seeking statehood, and it now excommunicates
members who advocate it. A number of individuals and groups, however, feeling
the church leaders’ action was wrong, have continued the practice. It is
estimated there may be as many as 30,000 polygamists in the state.
Prosecutors’ enthusiasm for enforcing the criminal law against polygamy has
waxed and waned several times over the last century. In recent years it has
been stepped up in association with complaints of forced marriage, marriage of
underage girls, incest, and welfare fraud.
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