SALT LAKE CITY – If Texas cannot criminalize sodomy, Utah should not be able to criminalize polygamy, argued the attorney for three adults who want to live together as husband and wives.
The three filed a lawsuit after they were denied a marriage license by the Salt Lake County Clerk’s Office in December.
They ask that the county clerk be required to issue the marriage license, and they seek a declaration that the state’s criminal and civil bans of 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,” civil-rights attorney Brian Barnard argued Tuesday before U.S. District Judge Ted Stewart, who took the case under advisement.
Assistant Attorney General Jerrold Jensen argued that the group lacks legal standing to challenge the ban the statutory prohibition against polygamy because they have not been charged with violating it. He conceded they have standing to challenge civil bans on plural marriage.
Jensen cited an 1878 U.S. Supreme Court decision upholding the polygamy conviction of George Reynolds, personal secretary to Mormon pioneer leader Brigham Young.
“Those concepts and that holding in that case have not been overturned,” Jensen said. “It is still the law in this country.”
However, Barnard said the recent U.S. Supreme Court decision striking down a ban on private homosexual activities provides a basis for striking down the polygamy ban.
Jensen said the court’s decision in Lawrence vs. Texas is limited solely to a person’s private sexual activity and does not extend to marriage.
Barnard also argued that the bans against polygamy in the state constitution and the Enabling Act of 1894 specifically target one group of people and therefore fail to achieve the neutrality required by law.
Stewart agreed the purpose of the legislation “was to end the practice of polygamy by the Mormon Church.”
But Jensen said the law is applied today to people of all, and no, religions and is neutral.
Barnard 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.
Barnard said that for his clients, “The practice of plural marriage is required, in this lifetime, to the attainment of eternal salvation.”
The Church of Jesus Christ of Latter-day Saints abandoned polygamy when the territory was seeking statehood and it now excommunicates members who advocate it. A number of individuals and groups, feeling the church leaders’ action was wrong, have continued the practice. It is estimated there may be as many as 30,000 polygamists in the state.
Prosecutors’ enthusiasm for enforcing the criminal law against polygamy has waxed and waned several times over the last century. In recent years it has been stepped up in association with complaints of forced marriage, marriage of underage girls, incest and welfare fraud.