Skip to comments.Polygamists Take Their Cases to the Courts
Posted on 04/23/2004 7:21:16 AM PDT by scripter
They argue that U.S. Supreme Courts 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 Courts 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 Greens 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.
Second, based on the First and other amendments, the state has improperly limited and restricted plaintiffs right to intimate expression and association.
Third, the state violated the right to privacy of the plaintiffs with regard to private, intimate matters as protected by the First, Fourteenth and other Amendments to the U.S. Constitution. Lawrence v. Texas, 539 U.S. No. 02-102, (2003); 2003 U.S. LEXIS 5013.
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 Barnards case has merit.
Its not a case people can sniff at, Richard G. Wilkins, law professor at Brigham Young University, told The Washington Post. If you cant require monogamy, how in the world can you deny the claims of the polygamists, particularly when its 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 Barnards 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.
When I've heard the claim that gay marriage wouldn't lead to legalization of polygamy, all I could think of was that polygamy has a far greater claim. I believe it was the norm in much of the ancient world, and is still observed in at least some Muslim countries. No society has ever had gay marriage.
I saw a little thing in the paper (I thought it was today's paper, but I can't find it) about some people pushing for "group marriage," i.e., not polygamy or polyandry, but sort of open-ended, for people who are married but want to branch out without being considered unfaithful. A woman quoted in the piece (just a short one; not much more than a paragraph) said she herself has two "OSOPs" (other significant other persons) besides her husband.
Polygamy has been around for thousands of years in all kinds of cultures, and it can be a solution to the current divorce crises. I submit for discussion: When women get too focused on children, and neglect their sexual duty towards their husbands (having headaches!), then husbands can bring in a competition a new wife. The old wife, and her children will stay in the family, and the new women will provide sexual void for the guy. I know all that crap about the women libs, which are going to scream "how about women having more husbands"! I think if a girl is in need of sex as frequently as a guy, and her husband does not want to provide it, SHE CAN HAVE AS MANY HUSBANDS AS SHE WANTS! The reality is very few girls on this planet have such a high drive.
Huh? Communism sought do elimiate marriage in favor of civil unions. BTW monogamy has also been around for thousands of years, therefore your polyagamy arguement is not a solution to the present divorce crisis. What is the solution is the strengthening of marriage throught the strenghtening of the moral fabric of todays society that has been torn down over the past several decades of free sex, abortion, condoms, welfare and no fault divorce. Polyagamy would only add fuel to the lawyers - imagine the child support lawsuits that could spring up as well as the other legal issues. No, the answer lies with the man and woman coming into the marriage committed it that divorce is not an option, and society supporting and encouraging them.
Indeed. Yet some (even here) refuse to acknowledge the fallout.