May 17, 2006

The Utah Supreme Court applies the state bigamy statute to "spiritual marriages."

The Utah Supreme Court upheld a bigamy conviction under the state statute that defines bigamy as occuring when a person "knowing he has a husband or wife or knowing the other person has a husband or wife,... purports to marry another person or cohabits with another person." (Via Jurist.)

The defendant, Rodney Hans Holm did not enter into a state-sanctioned marriage with the second wife, only a religious "spiritual marriage." He therefore argued that the state needs to treat him the same as a married man who takes up living with another woman, and, if it does not, it is discriminating against him based on religion.
Justice Matthew B. Durrant, writing for the majority, responded that Utah lawmakers did not intend to narrowly define marriage as a state-sanctioned union. There can be no doubt that Holm purported to marry Stubbs, Durrant wrote, citing her white dress, her vows and their life together.

"The crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization . . . by which two individuals commit themselves to undertake a marital relationship," Durrant wrote.
It makes sense to read the statute as covering the solemnized union that the participants intend to constitute a marriage. The more difficult problem is whether the state can legitimately distinguish two sexual relationships where the difference could be characterized as having only to do with the beliefs that the individuals have about it. Chief Justice Christine M. Durham dissented, relying on a narrow construction of the statute, which she would apply only to acquiring a second marriage license from the state.
Durham pointed to the increasing number of couples who live together outside the bonds of a traditional marriage, and noted they are not prosecuted.

"While some in society may feel that the institution of marriage is diminished when individuals consciously choose to avoid it," she wrote, "it is generally understood that the state is not entitled to criminally punish its citizens for making such a choice, even if they do so with multiple partners or partners of the same sex."
Here's the PDF of the (very long) opinion.

IN THE COMMENTS: We discuss the significance of the statutory language "cohabits with another person."

70 comments:

Simon said...

"[Holm] argued that the state needs to treat him the same as a married man who takes up living with another woman"

I'm not sure how far this argument gets him. The statute (UC 76-7-101) says that a "person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person" (emphasis added). Thus, I'm not sure why the character of the marriage to Ruth Stubbs is even an issue; he was, is, and does not deny, that he was married to Suzie Stubbs; he was, and does not deny, that he was "cohabit[ing] with another person" (viz., Ruth), so it couldn't fall any more plainly into the language of the statute, which is precisely what the trial jury found (slip op., ¶12).

Ann Althouse said...

Simon: Good point. Looking at the PDF, I can see that Holm was also convicted on the cohabiting prong, but the court puts the whole issue aside in footnote 7:

"Because we conclude that Holm’s behavior violates the 'purports to marry' prong of the bigamy statute, we need not reach Holm’s arguments relating to the validity of the cohabitation prong. As indicated above, the jury convicted Holm under both prongs of the bigamy statute, and if, as we conclude,
Holm was properly convicted pursuant to the 'purports to marry' prong of the bigamy statute, it is of no consequence whether the cohabitation prong was properly applied to him."

Thus, as an issue for the U.S. Supreme Court, only the question of convicting someone for "purporting to marry" a second person would be presented. I assume the constitutional arguments against the cohabitation crime are stronger, and the issue of selective prosecution is also more complicated. (Presumably, there are a lot of people who separate from their spouses, without getting a divorce, and start living with someone else.)

Dave said...

"The Utah Supreme Court upheld a bigamy conviction under the state statute that defines bigamy as occuring when a person "knowing he has a husband or wife or knowing the other person has a husband or wife,... purports to marry another person or cohabits with another person."

If I'm reading you correctly, this means that a man who lives with his wife and eighteen year old step-daughter in the same house could be prosecuted for bigamy under the theory that he is cohabiting with his (adult) step-daughter.

If that is a valid reading of what you are saying, then Shakespeare was right: the law is an ass.

But we knew that already.

Ann Althouse said...

Dave: This is why statutory construction requires some common sense.

Dave said...

"statutory construction": You mean the words used to create the statute?

Sorry, I'm not a lawyer, so it boggles the mind that such a poorly thought piece of legislation could be considered law.

Perhaps that's naive on my part.

Ann Althouse said...

And Shakespeare didn't write "the law is a ass." A character in Dickens novel said it. A rather foolish character too.

***

Simon: Holm has another (worse) problem, which is that he was convicted of having sex with a minor, the girl being only 16 when he began his "spiritual marriage" with her.

Ann Althouse said...

Statutory construction = the construing of statutes

Dave said...
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Dave said...

I stand corrected on the Shakespeare quote.

Marghlar said...

Statutory construction = the construing of statutes

The mistake nicely illuminates one of the central irritations of the law -- that lawyers and judges would have to spend a lot less time construing the law, if legislators were better at constructing it.

Would it have been too much trouble to add a definitional section that defines cohabitation in some useful way? That's a big nasty ambiguity. So, can I rent a room to somebody if I am married and living in Utah?

Judicial construction can fix these sorts of things, of course, but it would be nice if the legislature didn't always punt its job to the judiciary.

Ann Althouse said...

Marghlar: So what do you say? The whole statute is unconstitutional?

Marghlar said...

Ann, I'm not sure that I'm making a constitutional point at all, just expressing a desire that legislators try a little harder to write clearer statutes.

I think there are larger constitutional problems with a court that declines to enforce a vague statute, than with a legislature drafting that same crappy statute. Nor can I see any coherent separation of powers reason to think that this is a problem -- the legislature isn't grabbing anybody's power, nor is it delegating in a way that is novel or troubling. I don't think either a formalist or a functionalist could argue persuasively that an ambiguous statute is beyond Congress's delegated power.

What they are doing is undermining legality values, and forcing the judiciary to make more policy than it should need to. But those seem like subconstitutional problems to me.

Of course, the judiciary could fight back by adopting the Easterbrook approach to statutory interpretation -- just interpret any ambiguity to shrink the scope of the statute. But that seems to be punishing the public in order to win an interbranch fight, and that's not a decision I like to see from the judiciary.

Aspasia M. said...

In the 19th century, the cases of criminal adultery and bigamy are practically identical. The adultery had to be "notorious and public" which usually meant co-habitation.

Then co-habitation is further identified as sexual relations. Usually somebody else would testify that they caught the couple in bed together.

Not surprisingly, the person testifying was usually a legal spouse. (A wife bursts in on her husband and mistress in a boarding house, for example.)

In an interesting legal move, later in the 19th century, some states (like Missouri) excluded the testimony of the legal wife from both adultery and bigamy cases. The judge in MO, for example, argued that because of coverture a wife could not testify against her husband in court. (Sneaky, sneaky judges!!!)

Well, after that the number of criminal bigamy and adultery cases decreased.

Marghlar said...

Geo:

Did the adultery have to be "notorious and public" when it was a woman doing the cheating? Or was that a single-sexed rule?

Thanks as always for the historical info -- v. interesting.

Richard Fagin said...
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Simon said...
This comment has been removed by a blog administrator.
Simon said...

Ann:
"The whole statute is unconstitutional?"

Why - because it's ambiguous?

While I agree with Marghlar that a lot of the problems courts run into could be solved if legislatures would learn how to draft a piece of legislation properly (a goal, I might tangentially suggest, which would be well-served if courts would say once and for all that they will not look to legislative history, period), the Constitution does not require -- thank God! -- that a statute be well-drafted or unambiguous (or even, pace Dave, wise) to be valid.

Even if this statute does fall afoul of the Federal Constitution somehow (and I'm not convinced it does), surely we're governed by (the dicta in) Salerno as to what would have to be shown before we can say the whole thing is unconstitutional?

OTOH, I have to admit that my understanding of severability has taken a bit of a dent recently, so I'm going to stay on the fence for now.

Richard Fagin said...

Prof. Althouse, the law in Texas clearly does distinguish between different relationships, including cohabitational ones. A common law marriage here requires that a man and woman 1) have a present intention to be married, 2) hold themselves publicly to me husband and wife and 3) cohabit in Texas. The present intention may be inferred from facts and circumstances, including the cohabitation and holding themselves to be married, but the intention must be separately proven. Having some spiritual ceremony or the like could be dispositive on the element of present intention.

I don't think the Utah court was off base on that one.

I had to dump the last post. Too many references to present invention rather than present intention. You do stuff like that when you write patent applications for a living.

Simon said...

Marghlar said...
"I think there are larger constitutional problems with a court that declines to enforce a vague statute, than with a legislature drafting that same crappy statute"

I agree; this is actually where Bork and I go our separate ways. I' readily admit that underdeterminacy is a serious problem, but I'm not willing to get on board with Bork's view (i.e., with the popular misrepresention thereof, or his actual views), or Lee Strang's undedeterminacy thesis, both of which I think are tantamount to inviting judicial abdication.

MMF said...

co·hab·it (k-hbt)
intr.v. co·hab·it·ed, co·hab·it·ing, co·hab·its
1. To live together in a sexual relationship, especially when not legally married.

Presumably this differs from anyone's relationship with their daughter.

Marghlar said...

MWF:

From the OED Online:

cohabit, v.

1. intr. To dwell or live together.

Websters:

Cohabit

Verb

1. Room or live together; usually said of two people who are not married.


The meaning you give is one meaning, but not the only one. It can also be used to refer to people who merely live together, regardless of whether their relationship is sexual. Ergo, statutory ambiguity.

Simon said...

By the way - isn't it interesting: proponents of legalizing gay marriage by court fiat say (as I suppose they have to, although doubt their judgement, not their sincerity) that it would in no way suggest that polygamous marriage is okay. Cf. this opinon at ¶¶53-63 (petitioner relies on Lawrence to argue that there is a "substantive due process" - this is the old west, so pause to spit - right to polygamy.

That slippery slope - still dang slippy.

Marghlar said...

Well, Simon, just b/c people make arguments, doesn't mean that any court has to follow them. It obviously made little traction with the Utah court (which one might expect to be the most hospitable to such a claim).

By the by, I think there might be legitmate constituitonal rationales supporting polygamous unions, rooted in either the Free Exercise Clause (for religious groups) or in the Equal Protection Clause. But that's a conversation for another day, perhaps.

Politically and pragmatically, the polygamy argument is clearly a non-starter. Nor do I think it has the kind of stature or traditional pedigree I would normally look for in an unenumerated right.

Simon said...

"Nor do I think [the polygamy argument] has the kind of stature or traditional pedigree I would normally look for in an unenumerated right." Would you have said abortion did, in 1963 (or, for that matter, at 9:29am EST on January 21, 1973)?

People who go looking for unenumerated rights aren't looking for "traditional pedigrees", they're looking for an opportunity to write their own preferences into the Constitution, and those preferences have to start somewhere. The moment the Massachusetts Supreme Court declared George W. Bush the winner of the 2004 election, polygamists must have been celebrating, because what looks pretty tenuous today may grow into a fashion or trend in a decade, enough to influence the wrong kind of judge. And after Lawrence - why not? Hell, practically everything is game with the court's present social affairs majority. Slip Justice Kennedy a DVD copy of "Big Love" and let simmer for ten years.

Marghlar said...

Simon, if I had been on the court when Roe was decided, I would have dissented, despite the fact that I support abortion rights as a public policy question, because I don't think the constitution protects abortion rights (although I find the 13th Am. argument interesting...).

Nor do I think it was appropriate to decide Lawrence on a SDP rationale, because I don't think that unenumerated rights (which are properly found via the P or I clause or the 9th Am) can include rights that do not currently possess a broad public recognition (which will almost always mean traditional rights). I think that Lawrence should have been decided on an Equal Protection rationale, for reasons I have gone into at length on other threads.

downtownlad said...

I don't get this. Does this imply that if two gay men get married by a Reformed Rabbi, that the state can then deem that they violated a statute that prohibits gay marriage, and can therefore be imprisoned? Sounds like that to me, but I'm not an expert in the law.

Marghlar said...

DTL:

This statute wouldn't do that, b/c it only prohibits multiple marriages.

But the Utah Supreme Court's statutory interpretation might apply analogously if there was a statute making gay marriage a crime in Utah (I haven't heard of any state that has done so).

For now, at least, there is no risk of what you are talking about, because gay marriages are illegal (they have no binding legal force), but not criminal.

Marghlar said...

Marghlar: So what do you say? The whole statute is unconstitutional?

You know what's funny? I so rarely think about criminal law issues, that I totally forgot that the ambiguity might form the basis of a void for vagueness claim.

(Probably wouldn't be the case -- I'm sure the Utah courts have some kind of limiting construction.)

Anyway, even if that were so, the remedy wouldn't be to strike the whole statute, but probably to strike the cohabitation clause.

dave said...

my personal opinion - as well as my (uncommon) constitutional one - is that the state should get out of marriage, marriage being predominantly a religious institution. while it might be in the interest of the state to promote stability among its citizens' relationships (opening up the sideline of whether that's actually in state interests or not), this could be done without entangling the government in religious matters. we could change the tax benefits/etc to allow for people to apply for 'household status', encompassing any number of arrangements. [I'm thinking along the lines of the French "Pacte civil de solidarité"]. opinions about what the govt should encourage seem to me like religious/personal opinions and thus no business of the state.

my agenda aside, shouldn't the underlining principles of Lawrence v Texas effectively strike down the bigamy statute altogether? Scalia's dissent in Lawrence admits the possibility that overturning Bowers called into question other lower-court decisions based on it, including Owens v. State. Owens: "Although we need not reach the issue, it has been held that a person has no constitutional right to engage in sexual intercourse, at least outside of marriage, and sexual conduct frequently is subject to state regulation." the 'has been held' is Bowers, since overturned in Lawrence.

Daryl Herbert said...

a "person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person"

I don't see a definition for cohabit (or any other form of the word, e.g. cohabitant, cohabiting) in chapter 76. Elsewhere in the Utah Code, it (basically) just means people who live together and don't have a spousal or parent-child relationship.

I take it this law means, at least literally, that if you are married, you may not live with someone other than your spouse. What if your spouse is out of the state for some time? Is it illegal for you to move in with anyone other than one of your children or one of your parents?

Or have the courts conveniently narrowed the definition here so that the law comports with their conservative religious beliefs? It sounds like their real source of law is the Book of Mormon, the text of their "Utah Code" notwithstanding.

At least, that's the impression one would get if their "Utah Code" is vague and overbroad, and it just so happens to only be applied in furtherance of Mormon doctrine.

Aspasia M. said...

Did the adultery have to be "notorious and public" when it was a woman doing the cheating? Or was that a single-sexed rule?

It was the MO State Supreme court that made the ruling about women not testifying against their husbands. (In the specific case that established the rule a wife has literally forced open a door and caught the couple in bed together.)

The law itself was gender neutral. And in practice both men and women (in MO) were put on trial for adultery and bigamy. (I'm curious about the numbers between adultery/bigamy/men/women. I'm at a conference so all of my primary sources are at home.

What I recall, though, is that it was very difficult for me to tell why someone would be tried for adultery vs. bigamy. The court system seemed to conflate the two crimes. Because adultery had to be notorious and public, living together was often necessary to prove the crime.

Men did have an explicit financial obligation to provide for their wives & children and satify the debts of their wives to any creditors. That abandonment was defined as a criminal act, and plays into how the court judged whether a husband was avoiding his husbandly responsibilities.

And the state also had an interest in making sure that creditors were satisfied. It was a common practice in the Colonial and early 19th century for a wife to walk into a store and purchase goods with her husband's name and credit. So the issue of a wife's debts was not an insubstantial one for the state to be dealing with. In divorce proceedings men often ran an ad in the local newspaper declaring that they would no longer pay for the debts of their ex-wife.

Ann Althouse said...

Marghlar: "I so rarely think about criminal law issues, that I totally forgot that the ambiguity might form the basis of a void for vagueness claim. (Probably wouldn't be the case -- I'm sure the Utah courts have some kind of limiting construction.) Anyway, even if that were so, the remedy wouldn't be to strike the whole statute, but probably to strike the cohabitation clause."

But once you do this, you create the discrimination against religion or the free speech violation that would be argued against what you've got left in the statute. Look at the original post again and the first couple of comments. There's no free exercise claim if the statute is neutral and generally applicable, only if there is discrimination against religion. Take it from there.

Sean said...

dave (and others): How would the state get out of the marriage business? Just for example, there are two women who spend time cleaning the house where I live and caring for my children: my housekeeper and my wife. Are you suggesting that my relationship with both is governed by the law of property and employment contracts? Can I terminate my obligations to either of them and ask them to remove themselves from the premises on two weeks notice? (Actually, I wouldn't even have to give my housekeeper that, though it's customary.) Or does my wife have some special, higher claim which the courts, as agents of the state, should recognize?

Or maybe you mean a marriage contract is just like any other contract. I said "till death do us part," and the courts will enforce it. No divorce. Fiat justitia, ruat caelum.

Joseph Hovsep said...

Re slippery slopes, polygamy and same sex marriage...

I don't have time to invest in reading up on this case today, but here's my quick thoughts... It seems like Lawrence's privacy/due process holding that the state cannot criminalize noncommercial, private sexual relations between consenting adults would be directly relevant to this statute which basically seems to criminalize adultery or "open" marriages. I don't see the state interest in forcing a married couple to be monogamous or preventing a married couple from including a third party in their relationship where they are not seeking recognition from the state of the third party's legal connection to them.

The argument for getting the state to affirmatively recognize interracial, same sex, or polygamous marriages is different from and a much more difficult question, in my opinion, than getting the state to stop punishing people for having nontraditional private sexual/romantic relationships, which seems to be the case here.

Bruce Hayden said...

What has to be remembered here is that polygamy, or, the opposite view of it, bigamy, has extreme religious implications in Utah. I have no doubt that the judge and Justices interpreted this statute precisely like the legislature intended it to be interpreted.

And, yes, religion did have some impact on the interpretation, though on an informal basis. It is likely that the majority of the Justices are Mormon, belonging to the Church of Jesus Christ of the Later Day Saints Church (and not one of its "reformed" offshoots). This is because, though I don't know abou the current governor, but each one up until at least this one, have been Mormon, and that is who picks the Justices.

A couple of things must be remembered here. First, Utah tried for statehood for almost 50 years before finally being admitted, after the Mormons bribed a lot of eastern papers, the church prophet had a revelation that polygamy was no longer acceptable (and, was thus sinful), and polygamy was legally banned.

So, you first have the problem that the banning of polygamy was instrumental in getting statehood. Not a pretend banning, but a real ban. Remember, right before this, federal troops had been garrisoned in Utah to throw polygamists in jail, and when they were caught, they were jailed. The rest of the country wasn't going to grant Utah statehood if polygamy was still accepted with a wink and a nod. They had to be serious about banning it, and they were. And it was precisely this sort of slide around the polygamy laws that they had to prevent.

Secondly, it should be remembered that the Mormon Church is essentially run at one level by prophets making prophecies. But because of this, there can only be one true prophet at a time. When the church prophet declared that polygamy was no longer acceptable, but would henceforth be considered sinful, there were those who broke away. But they did so based on their own prophets declaring that the Mormon prophets were a false prophets.

What must be remembered is that this isn't just heresy, it is apostasy.

Simon said...

Daryl Herbert said...
"I don't see a definition for cohabit (or any other form of the word, e.g. cohabitant, cohabiting) in chapter 76. Elsewhere in the Utah Code, it (basically) just means people who live together and don't have a spousal or parent-child relationship."

Statutory construction 101: where a term is undefined within the statute, it will generally be construed to bear its plain or common meaning.

Marghlar said...
" I don't think the constitution protects abortion rights (although I find the 13th Am. argument interesting...)."

The Thirteenth Amendment Argument's fun, because it's one of those perfect examples of backwards reasoning: instead of working from the premise of determining what the Thirteenth Amendment meant when ratified, it starts from the premise that the Constitution has to protect abortion rights somehow, so let's go hunting for language we might be able to hang it off of.

For the record:
"Nor do I think it was appropriate to decide Lawrence on a SDP rationale, because I don't think that unenumerated rights (which are properly found via the P or I clause or the 9th Am) can include rights that do not currently possess a broad public recognition"

You stand, then, with Akhil Amar and Randy Barnett on unenumerated rights. Which isn't a bad place to stand; they're both great scholars, they've made some great arguments on this, but while I agree with you (and them) to the extent that I think incorporation of the Bill of Rights is accompished by way of the P&I clause, rather than the due process clause, I continue to maintain that the Constitution does not protect unenumerated rights, period.

Charley Foster said...
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ARCritic said...

Daryl said: Or have the courts conveniently narrowed the definition here so that the law comports with their conservative religious beliefs? It sounds like their real source of law is the Book of Mormon, the text of their "Utah Code" notwithstanding.

At least, that's the impression one would get if their "Utah Code" is vague and overbroad, and it just so happens to only be applied in furtherance of Mormon doctrine.


I find that an interesting comment since this law was specifically to STOP a practice of the Mormon church. How does that further Mormon doctrine?

Charley Foster said...

Utah has case law that defines cohabitation using a number of factors, some going to how much the relationship looks like a marriage.

The Utah Supreme Court has noted that "the term 'cohabitation' does not lend itself to a universal definition that is applicable in all settings." Haddow v. Haddow, 707 P.2d 669, 671 (Utah 1985). Thus, "the meaning of [cohabitation] depends upon the context in which it is used." Id. Utah case law has discussed the meaning of cohabitation in a variety of factual contexts. See State v. Green, 2004 UT 76, ¶48, 99 P.3d 820 (explaining that, in the context of a criminal bigamy prosecution, the dictionary definitions of to "'live together in a sexual relationship, especially when not legally married'" and to "'dwell together as, or as if, husband or wife'" were both acceptable definitions of the word "cohabit") (citations omitted); Haddow, 707 P.2d at 671-72 (defining "cohabitation" in an alimony termination proceeding as "'[t]o live together as husband and wife'" with the key elements being "common residency and sexual contact evidencing a conjugal association") (citations omitted). Keene v. Bonser, 2005 UT App 37.

The bigamy statute is selectively enforced in Utah. Note that in the Holm case his second spiritual wife was sixteen years old. There are thousands of polygamists in Utah who the government ignores so long as their relationships do not involve child abuse or welfare fraud.

I understand other states have bigamy laws criminalizing cobahitation in the same way as Utah's. I imagine, post Lawrence v. Texas, that surely such laws are unconstitutional.

Scott W. Somerville said...

Wow.

I think this directly contradicts the Church of the Babulu Ai case.

I wonder if the Supremes will take it up?

Jim said...

Fagin wrote what he, and most others, believe to be the 3 criteria for recognition of a common law marriage in Texas, but nobody speaks of the many other criteria, which include:

1. The two must be of opposite sex.
2. The two must not be close family members.
3. Neither may be married to another.

I have always thought it more sensible for a Texas man not to marry, but to cohabit only with a woman married to another, so as to keep the eventual money-grubber from getting half his wealth. And I wonder what happens in the case of a Texas man who enters a common-law marriage in Texas with a woman from a country, say Denmark, that doesn’t recognize common-law marriage. You could say that Denmark would give full faith and credit to the Texas marriage, but you could also say that it wouldn’t, since Texas does not give full faith and credit to homosexual marriages now possible in Massachusetts, Canada, Spain, Holland and Denmark. I can’t wait for the day when Texas Baptists find out their marriages are not recognized in Massachusetts and other enlightened places!

Simon said...

Charley:
"I understand other states have bigamy laws criminalizing cobahitation in the same way as Utah's."

I don't have time to dig around in forty eight other state codes this morning, but I think it'd be interesting to find out if that's an accurate statement. Here in Indiana, IC 35-46-1-2(a) declines to include a term like cohabitation, warning instead that "[a] person who, being married and knowing that his spouse is alive, marries again commits bigamy." Unlike Utah, though, Indiana doesn't have a history of bigamy. I can imagine that when you have a deeply-rooted culture that is permissive of bigamy (regardless of what the law says), the law has to be more stringent in ordre to try and avoid situations like this one, wherein Holm is saying that "technically" he's not married to two people.

Aspasia M. said...

I don't see the state interest in forcing a married couple to be monogamous or preventing a married couple from including a third party in their relationship where they are not seeking recognition from the state of the third party's legal connection to them.

The state has a definite interest in preventing adultery and promoting stable families. That's why in the 19th century the state prosecuted adulterers in Missouri.

The question becomes if our citizenship rights limits the state's ability to police this aspect of our lives.

I think the constitutional question becomes:

Do our definitions of "liberty" and citizenship rights encompass the concept of extra-marital sex and adultery?

If not, the state has a right to prosecute people for criminal adultery.

Simon said...

Do our definitions of "liberty" and citizenship rights encompass the concept of extra-marital sex and adultery? If not, the state has a right to prosecute people for criminal adultery.

I would say that the "liberty" protected by the due process clause does not encompass that, but I think it's important to reword your second sentence a little: it's not that, absent a constitutional limitation, the state has a right to prosecute people for criminal adultery, it's that the option for doing so has been reserved to the people to work out through the normal democratic process. That is, absent constitutional protection, a majority can impose such a law.

The problem with saying that the state has a right to do something, absent a constitutional protection, is that it subtly perpetuates the idea that the state is restrained primarily - and maybe even exclusively - by the constitution, rather than the democratic process. The state doesn't have a right to make any laws; it is simply enabled to pass and enforce those laws with the consent of a majority.

Marghlar said...

But once you do this, you create the discrimination against religion or the free speech violation that would be argued against what you've got left in the statute. Look at the original post again and the first couple of comments. There's no free exercise claim if the statute is neutral and generally applicable, only if there is discrimination against religion. Take it from there.

Well, re the free exercise issue, it would seem that there could be both facial and applicational neutrality of the "purports to marry" prong -- so I'm not sure that our present jurisprudence would give us a violation. I'd like to see a stonger accomodationist strain in this area of the law (contra Empl. Div. v. Smith), but I don't foresee this as likely in the near future.

The speech claim is more interesting, and I'll probably keep it in the back of my head for a while and mull it over. There is a weird speech/conduct issue at work, which can alter the standard. Am I purporting to marry someone by asserting a marriage, or by acting as if we are married in other ways? Seems like a fair argument that this should be seen as viewpoint discrimination.

However, strict scrutiny might still uphold this law, depending on how the court applies strict scrutiny. I have a feeling that there might be a willingness to find both a compelling state interest in preserving the institution of marriage, and that this restriction (restricting people from purporting to marry additional partners) is narrowly tailored. Hard to think of a less restrictive alternative.

If I were deciding, I'd have a lot of skepticism on the compelling interest step -- and Lawrence would provide some support there (although so many competing readings are possible...).

Weird and vexing speech issues, indeed. Why couldn't the Utah legislature have spared us this difficulty by enacting an adultery law (thus avoiding purporting and cohavitational ambiguities), and by enacting a legal-marriage bigamy law? That should reach the actual conduct at issue, without muddling it up with expressive activity.

Charley Foster said...

Simon,

Like you, I have never actually researched whether any states besides Utah criminalize bigamous cohabitation. I heard such was the case at a CLE on polygamy here in Salt Lake City by one of the panelists, Monte Stewart who prosecuted Utah’s then most famous polygamist, Tom Green (now second in fame, I suppose, to Warren Jeffs). He did not site any such states and so, to answer as best I can, no, I’m not sure such is the case.

Marghlar said...

Simon, I think your concern about the language of the rights of the state is overblown.

In a Hohfeldian sense, clearly the state has rights (because there is no corresponding action giving the citizenry a right not to have the state act in a given way).

The state clearly need not act on every right it has (nor must the citizenry). But describing the space of a government's rights is useful, because it establishes how, and to what exent, a government may properly act.

Charley Foster said...

Scott W. Somerville said...

"I think this directly contradicts the Church of the Babulu Ai case."

Interestingly enough, the court took up Babalu Aye - for a second - just long enough to say that in its decision in the Tom Green polygamy case it "concluded that Utah’s bigamy statute is a neutral law of general applicability and that any infringement upon the free exercise of religion occasioned by that law’s application is constitutionally permissible."

Holm also made a state constitutional argument based on Utah’s free exercise clause. But the court pointed out (without reference to Babalu or any hint of irony) that the state’s free exercise clause says, "No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited."

Richard Fagin said...

Jim: What happens to a Texas man that enters a common law marriage with a woman from a state or country that doesn't recognize common-law marriage? The "eventual money grubber" sues for divorce" in Texas and gets a "just and right" share of the community estate, just as with a ceremonial marriage. It's not half as commonly believed.

Harris County courts usually give the "eventual money grubber" about 60% of teh community estate. They hand out about 10% of all the death penalties in the United States if that suggests anything.

You have a point about the cohaibtation. I always recommend it, but primarily for Federal income tax purposes.

MaxedOutMama said...

Under Lawrence the state statute is clearly unconstitutional insofar as it addresses a relationship not publicly recognized by the state of Utah. To say that the government has a legitimate interest in non-public, non-commercial sexual conduct between two consenting, non-related adults is not possible in the wake of Lawrence. Barring cohabitation is not constitutional, and neither is barring any form of consensual group arrangement.

To argue otherwise defeats the central premise of Lawrence, which is that the state cannot criminalize such types of sexual behavior out of moral disapproval.

If this statute is constitutional insofar as it touches upon cohabitation, then you have the ridiculous result that two adults are free to engage in any sort of private sexual conduct only as long as it does not occur in the context of a a committed relationship, and a firm constitutional justification for barring same-sex marriages.

Aside from the self-contradictory nature of that result, the Lawrence decision quoted Stevens' dissent in Bowers as the "controlling analysis":
"First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

This clearly introduces a broad shield of privacy around such relationships and builds the Lawrence decision upon a line of precedents involving marital privacy, which is wholly consistent with other language in the decision.

Downtownlad nailed it. If Utah has a legitimate interest here then Texas had one in passing its statute criminalizing same-sex sexual conduct, and the Supreme Court has already ruled it did not.

Richard Fagin's property argument is interesting, but cannot be maintained pragmatically. Any committed relationship between two people in the course of which they share their lives and assets by whatever legal mechanism has similar implications for others who may be expected to eventually share in the assets of one person in the relationship.

Such a legal principle would, for example, justify a state in forbidding divorced persons to cohabitate with later partners if minor children of the previous marriage were dependent upon one of the persons for support on the grounds that commitments arising out of the new relationship might be expected to dilute the rights of the minor child.

Utah may be free to raise the age of marital consent to 18, but it is not free to tell three people that they cannot legally engage in such a consensual relationship where no recognition by the state was sought or received.

Simon said...

"[post-Lawrence,] Utah may be free to raise the age of marital consent to 18, but it is not free to tell three people that they cannot legally engage in such a consensual relationship where no recognition by the state was sought or received."

Sadly, I agree with you, and note that this is precisely the result that Justice Scalia warned would flow from Lawrence. I suspect that anyone calling for that case to be overruled, though, will be told that Lawrence is settled law; as we all know, "settled law" means "settled our way". Thus, Penry v. Lynaugh never became settled law, but Atkins v. Virginia was settled law practically the moment that Justice Stevens finished announcing it, and while Bowers was never settled law, Lawrence became settled law the moment it was handed down.

Charley Foster said...

It isn't obvious to me that the states are in any way obliged to recognize polygamist marriages, any more than they are obliged to recognize gay marriages. But at the same time, it doesn't seem to me that the states have compelling interests in preventing married people from cohabitating with people other than their spouses that can't be addressed in less restrictive ways. Not that that is necessarily the measure...

Utah's bigamy law is basically the equivalent of telling gay people that if they LIVE TOGETHER they're going to jail.

Still - probably shouldn't listen to me. In my frequent less sober moods (such as now) I tend to agree with Justice Thomas that it is comletely irrational to incorporate the establishment clause against the states and that Utah is perfectly within its rights to establish Mormonism as its state religion if it wants to (and I'm not even a Mormon. Not even close).

Simon said...

Charley-
Nicely tee'd up. ;) You have a chance to make a convert here - I'm sympathetic to, but have never bought into, Justice Thomas' theory that the establishment clause resists incorporation (for those wondering what this is about, see Thomas' concurrences in Elk Grove v. Newdow and Cutter v. Wilkinson). If you buy it, what's your best argument for it, as you see it?

Charley Foster said...

I'm shooting from the hip here, but in Newdow, I believe it was, Thamos made the historically correct point that the establishment clause, "Congress shall make no law respecting an establishment of religion," was not only to prevent establishment of a federal religion, but also to make clear that Congress could not interfere with state establishments. (Numerous states had established state religions at the time of the amendment and ratification debates make clear the intent was to protect those state-established religions from federal interference).

Looked at in this historical light, it doesn't make sense to incorporate the establishment clause against the states because it is a clause that establishes a federalist doctrine, not an individual right (In the same way it obviously makes no sense to incorporate the 10th amendment reserving certain powers to the states against the states).

Thomas goes on to argue that, even if the establishment clause can be incorporated against the states: The traditional establishments of religion to which the Establishment Clause is addressed necessarily involved actual legal coercion:

"The coercion that was a hallmark of historical establishments
of religion was coercion of religious orthodoxy and of financial support by force of law andthreat of penalty. Typically, attendance at the state
church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example,
in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of
the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches."

Under this analysis, It seems then that such innocuous state acts such as prayer in school or at sporting events, nativity scenes on municipal property, and The Ten Commandments in courthouses fall far short of triggering the incursion of the establishment clause.

So long as the Mo's don't make me pay for their projects, or go to their clases or services or whatever the hell it is they do over there, pffft, they can HAVE the state religion and inscribe it on the courthouse where I argue cases for all I care.

Charley Foster said...

This same line of argumet can be found in Akhil Reed Amar, The Bill of Rights, p. 41 et seq and, I assume, in his America's Constitution, though I haven't read that far yet.

Marghlar said...

Charley & Simon:

I recently read a forthcoming chapter of Martha Nussbaum's new book, in which she addresses this contention. Suffice it to say that there was a broad strain of thought prior to ratification arguing that Establishment violated individual rights as well as collective rights. See, e.g., Madison's Memorial and Remonstrance Against Religious Assessments, or the writings of Roger Williams. So even if one purpose of the Establishment Clause as understood in 1791 was to protect State establishments, that probably wasn't the only understood purpose.

Furthermore, this argument seems to skip over the fact that the more important understanding was that of the 1860s, when no state continued to permit establishments. Much harder question there -- what did the 14th Amendment ratifiers think the point of the Establishment Clause was?

None of which is to say that I don't think the Establishment Clause has been carried well past its intended or textually plausible meaning. Establishment probably shouldn't mean anything more than creating a state church, or funding specific private churches.

How'd ya'll get on to Establishment, anyway? Isn't the issue here obviously free exercise, not establishment?

Charley Foster said...

Marghlar,
As much as Madison argued against religious establisment, he ALWAYS allowed that on the state level it was the state's prerogative to establish. So, even though he opposed a state religion for Virginia, he ALWAYS recognized Virginia's right to have a state religion if it so desired. They were two different issues.

Why did we get onto establishement from exercise? Martinis make it easy to fall off the path of the one face down into the puddle of the other. that's the only excuse I have to offer.

Charley Foster said...

Oh, and I forgot to say, Marghlar, the 14th IS, I agree, some kind of warp in the space-time continuum of Constitutional history so that one can easily get caught on the one hand erroneously assuming that American constitutional history began with the Civil War Amendmets (which is how most grammar school teachers teach the subject) and on the other ignoring the very real and hard to define impact of the 14tgh et al on the actual meaning of our Constitution.

Marghlar said...

Charley,

I'm no expert on Madison's views on religion -- I was just trying to point out that there are strong competing arguments here. Clearly, the Memorial shows that Madison was very hostile to religious establishments at any level of government. I'd agree that his proposed drafts of the religion clauses don't seem to target state establishments, though, so that's a point in your corner.

Still, though, Amar and Thomas need to give better account to the views of the Reconstruction generation. And account for the fact that the Establishment Clause was probably viewed by many ratifiers as a protection of individual liberty against Federal entitlements, as well as a protection of State entitlements. The first understanding of the clause does seem to support the incorporation argument.

Now, that's all I can probably manage at this hour.

Charley Foster said...

Marg,
To date I'm very week on the Civil War amendment debates and I will honestly admit to you that I simply don't understand very well what impact they had or have or ought to have had or ought to have on what came before. I do understand that at times they serve as little more than turtle neck sweaters covering the hickies resulting from hungry desires of supreme court make-out sessions with a string of individual rights sluts. At the same time, those amendments insert the original intent of their drafters and ratifiers just as insistently as the drafters and ratifiers of the originale document.

Daryl Herbert said...

To say that the government has a legitimate interest in non-public, non-commercial sexual conduct between two consenting, non-related adults is not possible in the wake of Lawrence. Barring cohabitation is not constitutional, and neither is barring any form of consensual group arrangement.

But cohabitation is more than sex. It's also living together. If any of the people have children living with them, I think the state could conceivably have an interest in it. Barring that, they shouldn't be able to enforce that law. (that's my normative judgment, of course)

Simon said...

"How'd ya'll get on to Establishment, anyway? Isn't the issue here obviously free exercise, not establishment?"

Dunno - but now we're here, we're having fun. ;)

I guess my major problem with Thomas' argument (I agree to about the import of the view of the framers of the fourteenth amendment - indeed, I'd go further and suggest that the states are bound by different standards to the Federal government, for precisely the reason of that differentiation) is that from a textual point of view, it doesn't make sense to differentiate the establishment clause from any other clause in the First Amendment. All of those clauses seem to be addressed specifically and exclusively to Congress, because at the time, they were. So maybe it really does come back to the unresolved question of how the fourteenth amendment affects the bill of rights in toto. I'm not sure that I have a good answer on this one, even though I'm generally sympathetic to the logic behind Thomas' argument. This is fine from the point of view of debate, but it's not satisfactory a a methodology for a practising judge.

MaxedOutMama said...

Daryl, you wrote:
"But cohabitation is more than sex. It's also living together. If any of the people have children living with them, I think the state could conceivably have an interest in it. Barring that, they shouldn't be able to enforce that law."

Hmmm. Well, in Utah cohabitation is not defined that way, and in theory if the adults involved are not having sex in the living room in front of the children the sex is a moot point. (I'm not saying that it is; I understand that Lawrence is a huge departure from the traditional theory that relationships that involve children are a matter of public interest.)

Look again at the legal reasoning used in Lawrence. The majority opinion explictly grounded its ruling on the earlier privacy cases and directly referred to Casey several times:
"Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults."

and:
"In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

The reasoning used in Lawrence really has a wide logical swath. It appears to imply that sexual conduct/pairings may not be regulated in and of themselves, because the privacy right protected in Lawrence is the same right that has been used to legally recognize a large range of personal and parental autonomy based on the cited decisions in many contexts.

The argument you are making is the state's argument in Lawrence. To put it bluntly, if Texas cannot criminalize relationships between two adults on the ground that they consider them harmful to public morals, and if that sexual privacy right is akin to and derived from the same source as the right to marital privacy, then how can committed relationships between more than two adults be criminalized in Utah?

If an individual has a constitutional privacy right to have sex with the partner of his choice, and the "state cannot demean (his) existence or control (his) destiny" by criminalizing that conduct, the individual must also have a constitutional privacy right to have sex with the partners of his choice.

In Bowers I think the majority feared to wade into these waters, but in Lawrence the majority dove straight into the deep end of the pool. I cannot see how they can get out again without overruling Lawrence, which I don't think will happen.

Charley Foster said...

There is here a compelling state interest. The fact is, in many of Utah’s polygamist communities taking child brides is common. The question is whether criminalizing bigamous cohabitation is the least intrusive way to deal with the problem.

MaxedOutMama said...

But is it a compelling interest against children as brides or against multiple brides?

I think under Lawrence, if Utah wants to take an interest they are confined to do so with regard to minors only.

Marghlar said...

Charley, MOM is right. As a way of regulating pedophilia, this regulation is so over- and under-inclusive that it seems pretextual to label protection of minors as the interest at stake.

You can call that a failure of narrow tailoring if you like, but protecting children shouldn't shield this statute from constitutional attack.

Regarding the SDP question more generally, I'd say that one needs to be a bit more legal realist about this (if we are trying to accurately predict a result). Lawrence can be read in a lot of different ways, and I'm not sure that all five members of the majority would be willing to see this application.

Charley Foster said...

I agree with you both that the statute is almost certainly unconstitutional. I said so higher in the thread but I understand it is buried by now.

Simon said...

"I cannot see how they can get out again without overruling Lawrence, which I don't think will happen."

I think you're probably right, but keep in mind two things. That, first, Justice Kennedy has previously written an opinion on an "unenumerated right," failed to recognize its obvious implications, and then in a later case refused to folow his previous opinion where its logic compels (See Casey, cf. Stenberg), and thus, even if he won't join an opinion overruling Lawrence, he may not be willing to extend it; and that second, the Lawrence majority is one retirement away from evaporating entirely.

WWJD? said...

I'm completely over my head on this blog but am fascinated by the subject and the legal arguments and implications involved. On the face it seems like legislating to criminalize the religeous practice of a specific religious group which would be unconsititutional. This posts did seem to address that:

"There's no free exercise claim
if the statute is neutral and
generally applicable, only if
there is discrimination against
religion."

You'll have to forgive my ignorance and be merciful in your responses. If the only people involved in the practice being legislated against are members of specific religious groups how is it relevant that the law would be applied to everyone else equally?

Would it be okay to legislate against kneeling in a public place facing east as long as anybody who did so would be prosecuted equally? This would not pass the sniff test and would be an obvious attack on Muslims. I'm not seeing any difference between this and criminilizing the Mormons practice of polygamy.

General applicability seems like a gigantic loophole that leaves every religion open to having their practices criminalized as long as anybody who continues in the practice will be prosecuted. That doesn't seem right. There must be more to the requirement that statute be neutral and generally applicable.

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