While the state may have a legitimate interest in outlawing fraudulent or coerced polygamous relationships, it does not have a similar concern when it comes to consenting adults, a civil rights attorney said Tuesday.
Attorney Brian Barnard made the argument in federal court on behalf of three Utahns who wish to participate in plural marriage. The married couple, along with the man’s would-be second wife, filed a lawsuit after they were denied a marriage license by the Salt Lake County Clerk’s Office in December.
The trio seek a judicial order directing Salt Lake County Clerk Sherrie Swensen to issue the marriage license, as well as a declaration that the criminal statute and civil prohibitions against polygamy are unconstitutional.
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“What my clients want is to be able to enter into that relationship without the stigma of being branded as criminals,” Barnard said.
Assistant Attorney General Jerrold Jensen argued that the group lacks legal standing to challenge the statutory prohibition against polygamy because they have not been criminally charged with violating it.
Upon prodding by U.S. District Judge Ted Stewart, however, Jensen conceded they do have proper standing to challenge civil bans on plural marriage.
Still, Jensen maintains that an 1878 U.S. Supreme Court decision prevents Stewart from overturning the state’s century-old ban on polygamy.
“Those concepts and that holding in that case have not been overturned,” Jensen said. “It is still the law in this country.”
Barnard acknowledged that Stewart has little power to overturn the high court’s decision in U.S. vs.. Reynolds, which upheld the polygamy conviction of George Reynolds, personal secretary to early LDS leader Brigham Young.
It is time, however, for the court to rethink that decision and offer a more complete analysis of a person’s constitutional right to free exercise of religion, Barnard said. The lawsuit is the first step toward getting the issue back before the Supreme Court.
A recent U.S. Supreme Court decision striking down a ban on private homosexual activities provides a sufficient basis for Stewart to declare the state statute and polygamy prohibitions unconstitutional, Barnard said.
“If Texas cannot criminalize sodomy, the state of Utah should not be able to criminalize the maintenance of an intimate personal relationship” between consenting adults, he said.
Jensen countered, saying the court’s decision in Lawrence vs.. Texas is limited solely to a person’s private sexual activity. The holding does not extend to marriage, he said.
Barnard also argued that the civil bans against polygamy — a clause within the state constitution and the Enabling Act of 1894, which allowed Utah to achieve statehood by forever shunning polygamy — specifically target one group of people and therefore fail to achieve neutrality as required by law.
Stewart agreed Tuesday, noting that the purpose of the legislation “was to end the practice of polygamy by the Mormon Church.”
The question, then, is whether Stewart should look at the intent or the application of the prohibitions when deciding if they are neutral.
Jensen said the law is applied today to people of all, and no, religions and is therefore neutral. Barnard, however, said all recent polygamy prosecutions have targeted those with strongly held religious beliefs.
“The fact of the matter is that polygamy in Utah is practiced by religious people for religious reasons, and the statute is aimed at them,” he said.
In his clients’ case, Barnard said, full exercise of their religion requires that they practice polygamy. “The practice of plural marriage is required, in this lifetime, to the attainment of eternal salvation.”
Stewart took the matter under advisement.