A former polygamous sect leader facing bigamy charges in Texas is challenging that state’s bigamy law as unconstitutional.
Unlike other Fundamentalist Church of Jesus Christ of Latter-Day Saints men charged in Texas, 70-year-old Wendell Nielsen is not accused of marrying underage girls. Instead, the three felony bigamy charges against him are focused on women ages 66, 56 and 43.
In newly filed court documents in Schleicher County, Nielsen’s attorneys argue that the law unfairly targets groups with a religious belief in plural marriage. They quote a landmark decision that struck down the state’s sodomy law, Lawrence v. Texas.
“The bigamy statute appears to be nothing more than a thinly veiled attempt to ‘use the power of the state to enforce [majority views regarding morality] on the whole society through the operation of criminal law’ and as such cannot survive even minimal scrutiny,” according to a motion to quash Nielsen’s indictment filed this week.
In a separate argument, Nielsen’s attorneys claimed the bigamy law is unfairly enforced and unconstitutional because it applies only to certain groups.[…]
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In a separate motion to limit Nielsen’s potential sentence, his lawyers said that the state unfairly targeted the FLDS when the legislature strengthened its bigamy law in 2005, after the sect moved to the state and established the remote Yearning for Zion Ranch in Eldorado.
Four witnesses, including Utah Attorney General Mark Shurtleff and author Jon Krakauer, testified during those legislative hearings that the FLDS church is “a radical religious cult,” according to the motion.
That testimony helped raise the bigamy statute from a class A misdemeanor to a third-degree felony for polygamous marriages not involving underage people — an action that Nielsen’s attorneys argue violated the constitutional separation between church and state.
Nielsen was reported excommunited — along with several other FLDS leaders — in February this year, when the cult’s jailed leader retook his position as president of the Fundamentalist Church of Jesus Christ of Latter-Day Saints.