Utah filing targets ban on polygamy

Barnard cites top court ruling against Texas law forbidding gay activities

When the U.S. Supreme Court ruled last summer against a Texas law that forbade private homosexual activities, Justice Antonin Scalia ominously predicted the decision would spell the end to laws against a list of other taboos, including polygamy.

The ruling, Scalia said, “effectively decrees the end of all morals legislation” and would likely require laws against “fornication, bigamy, adultery, adult incest, bestiality and obscenity” to be subsequently declared unconstitutional.

Using that train of thought, a Utah civil rights attorney has now asked U.S. District Judge Ted Stewart to pick up where Scalia left off and strike down the state’s century-old ban on polygamy.

“Utah’s statutory prohibitions make criminal personal sexual relationships between consenting adults,” attorney Brian Barnard writes in a new court filing. “This prohibition of polygamist relationships is as unconstitutional as Texas’ prohibition against homosexual sodomy because it criminalizes a private sexual relationship between consenting adults.”

The court’s June 2003 holding in Lawrence v. Texas has been invoked in several lawsuits and sparked interesting legal debates across the country. The Massachusetts Supreme Judicial Court relied heavily on the ruling to reach its November decision rejecting a ban on same-sex marriages in that state.

In January, Barnard filed a federal lawsuit on behalf of three Utahns who wish to participate in plural marriage. The married couple, along with the man’s would-be second wife, sued after they were denied a marriage license by the Salt Lake County Clerk’s Office.

Barnard on Friday filed a motion for summary judgment in the case asking Stewart to rule that, as a matter of law, the polygamy ban violates the trio’s First Amendment rights to practice their religion and their 14th Amendment rights to be free from unwarranted government intrusion.

According to the filing, “Deeply held religious beliefs mandate that plaintiffs now enter plural marriage. Belief in and practice of polygamous marriage is a requisite for plaintiffs’ exaltation and eternal salvation.”

The couple has not been identified, but Barnard has said the married couple is each in their 60s and the woman in her late 40s.

The Utah Attorney General’s Office, which represents Salt Lake County Clerk Sherrie Swensen and two deputy clerks in the action, has not yet filed a response to the lawsuit. It will also have an opportunity to respond to Friday’s motion prior to oral arguments in the case.

Barnard argues in Friday’s filing that the recent Texas case is just the latest in a long line of Supreme Court decisions protecting the privacy rights of U.S. citizens. Starting in 1965 with the rejection of a Connecticut law that prohibited distribution of contraceptives and counseling for their use, the nation’s highest court has continued to give “substantial protection to adult persons in deciding how to conduct their lives in matters pertaining to sex.”

And if two consenting homosexual adult males are legally allowed to avoid unwanted state intrusion into their private matters, Barnard argues, so must three or more consenting adults of any sexual preference be immune from prosecution.

“Homosexuals have a constitutional right to engage in intimate sexual acts without state intrusion, therefore, heterosexuals have a similarly constitutionally protected right,” the filing states.

Such protections should only be extended to consenting adults who are participating in private and non-commercial activities, Barnard states. Within those parameters, he maintains, the state has no compelling interest to criminalize the behavior.

State attorneys, however, disagree. In a recent filing before the Utah Supreme Court, in the case of well-known polygamist Tom Green, the state offered four reasons for the ban on polygamy. Among them are the numerous laws based on the long-standing American culture of monogamy, the high number of polygamous families that rely on public assistance and the possible exploitation of young girls and women in polygamous cultures.

Barnard strikes down each of the reasons in Friday’s filing, saying none are compelling enough to “justify the nullification of a person’s constitutional right to associate based upon a deeply held religious belief.”

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