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Utah cases challenge whether anti-polygamy laws are constitutional

Polygamy is the practice (usually religious) of having multiple spouses (usually wives). There are two possible lines of constitutional attack on anti-polygamy statutes. One derives from the First Amendment’s religion clauses. The other derives from Due Process “right to privacy” concepts — and in particular, from the Supreme Court’s recent holding in Lawrence v. Texas that adults have a privacy right that extends to private, consensual sex acts.

In the end, neither of these lines of attack will — or should — be successful. Still, it is worth taking a close look at each to examine the extent to which the Constitution allows states to shape — or forbids them from shaping — the definition of marriage, and regulating who can marry whom.

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In the end, neither of these lines of attack will — or should — be successful. Still, it is worth taking a close look at each to examine the extent to which the Constitution allows states to shape — or forbids them from shaping — the definition of marriage, and regulating who can marry whom.

There are no laws against consenting adults shacking up. There are no laws against a man farthering children with as many consenting women as he sees fit, or a woman carring as many men's children as strikes her fancy.

If two people have a religious ceremony, and they consider themselves married in the eyes of God, that is a religious matter that is none of the state's concern. Gay weddings and "commitment ceremonies" go on every day in every state of the union, and there is no legal basis to ban them without seriously infringing the 1st amendment protection of free exercise of religion.

It becomes a legal issue when the state is asked to recognize the marriage. A religious marriage that carries no force of law is simply not a state concern -- just like a Bar Mitzvah is a rite of passage into manhood for Jews, but it does not confer the rights or privileges of adulthood in the eyes of the law.

In all of these polygamist cults I've heard of, there are certainly legal grounds to go after the leaders -- "marriages" to underaged girls, threats or coercion that make a mockery of "consenting adults," child neglect, abandonment and endangerment, and often welfare and other forms of fraud. All fair game. But to prosecute two people for simply feeling and saying that they are married is, indeed, a thorny constitutional issue. I can't see any constitutional justification for it.

There are two possible lines of constitutional attack on anti-polygamy statutes. One derives from the First Amendment’s religion clauses. The other derives from Due Process “right to privacy” concepts — and in particular, from the Supreme Court’s recent holding in Lawrence v. Texas that adults have a privacy right that extends to private, consensual sex acts. In the end, neither of these lines of attack will — or should — be successful.

I've wondered for some time that a simultaneous attack along both lines might just work.