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Polygamists Take Their Cases to the Courts 4/19/2004 They argue that U.S. Supreme Court’s Lawrence ruling has paved the way.
The drive for homosexual "rights" is evolving into a larger effort to “expand” marriage to include polygamy in the civil law.
Polygamists are citing the U.S. Supreme Court's Lawrence v. Texas (2003) ruling to challenge marriage laws. In Utah, the ban on polygamy came under attack as civil rights attorney Brian Barnard brought a federal lawsuit, Bronson v. Swensen, No. 02:04-CV-0021, on January 12, 2004, against the state based in part on the Supreme Court’s reasoning in Lawrence.
Two other attorneys have also referenced Lawrence in defending polygamists. The Arizona Daily Star cited convicted bigamist and child rapist Thomas Green, whose lawyer, John Bucher, argued in Utah v. Green that Green’s convictions should be thrown out in light of Lawrence.
"It's no surprise that attorneys for polygamists try to expand Lawrence to bolster their claims," said Jan LaRue, chief counsel for Concerned Women for America (CWA). "Decriminalizing private sex acts between adults, however, is a monumental leap from deconstructing marriage, which has public ramifications. The Lawrence opinion makes clear that the ruling 'does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review ... such as ... preserving the traditional institution of marriage.'"
Bucher told CWA in an interview that his argument is “bigger than [Lawrence],” and that he including reasoning from it as an afterthought. However, in citing his use of the case, he said, “in Lawrence you have a right between adults to engage in sodomy in your own home,” but there were “interesting dicta in it about the rights of people in general.” He stated that because it “mentions the 14th Amendment, and because of the interesting language, it appears to leave room for the argument that polygamy may be a protected practice.”
At the same time, because of a history of cases in the 1970s and 1980s citing “compelling state interest” as sufficient reason to limit some rights, Bucher said, his argument was a “stretch because lots of cases talk about the sanctity of marriage, and there is a compelling state interest in marriage.”
In Bronson v. Swensen, Barnard thinks he has a better chance of challenging the bigamy law because his case is free of allegations of rape and sexual misconduct. Barnard filed a complaint in the United States District Court, District of Utah, Central Division, against Salt Lake County clerks for refusing to grant a marriage license to G. Lee Cook, an adult male, and J. Bronson, an adult female, because Cook was already married to D. Cook. D. Cook had given her consent to the plural marriage.
In his complaint, Barnard lists three problems with the state law:
First, the state has “improperly limited and restricted plaintiffs’ right and ability to fulfill and practice a major tenet of their religion,” thus violating the First Amendment to the U.S. Constitution.
In an affidavit filed with the complaint, plaintiff J. Bronson affirmed that she believes the law violates her free exercise of religion:
“I was born into a family that were members of, and practiced the tenets of, the Church of Jesus Christ of Latter-day Saints. After a great deal of reading, discussion, study and prayer, I determined that the practice of plural marriage was and is a major tenet of the restored church."
To back her statement, Bronson attached a doctrinal statement on polygamy, which quoted Brigham Young as saying, “The only men who become Gods, even the sons of God, are those who enter into polygamy.”
Some scholars think Barnard’s case has merit.
“It’s not a case people can sniff at,” Richard G. Wilkins, law professor at Brigham Young University, told The Washington Post. “If you can’t require monogamy, how in the world can you deny the claims of the polygamists, particularly when it’s buttressed by the claim of religion?”
However, the Arizona Daily Star reports that Utah Attorney General Mark Shurtleff said the lawsuit goes “way beyond the privacy interest the Supreme Court ruled on.” Shurtleff added, “Anytime you involve marriage, family, children – fundamental units of society – the state does have a compelling interest in what that is.”
Recently polygamists have said they would be content to gain decriminalization instead of full legalization. Salt Lake City attorney Rodney Parker asked the Salt Lake Tribune why polygamists “don't…have the right to organize their families without being charged with a crime?" According to the Tribune, Barnard acknowledges that legalizing polygamy would "hit the legal system hard," and that his clients would be happy with decriminalization. That way, he said, "spiritual wives" would have full knowledge that they had no rights to benefits and inheritances. As Barnard’s case gains more attention, the practice of polygamy is coming under closer scrutiny. The Christian Science Monitor reports that there are an estimated 100,000 polygamists in America.
Authorities are investigating a sect of fundamentalist Mormons in Colorado City, Arizona, with concerns over forced marriages of underage girls. Three 16-year-old girls are known to have run away from the enclave, according to the Monitor.
In addition, a member of the Kingston clan in Utah recently was sentenced to one year in prison for taking a 15-year-old cousin (who was also his aunt) as his wife.
Jeremy Sewall is a Patrick Henry College government major who is working on the marriage issue at Concerned Women for America. |
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