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In his dissent to the Supreme Court’s landmark invalidation of the Texas sodomy law last year, Justice Antonin Scalia expressed fear that state laws prohibiting other types of behavior, including bigamy, would fall in its wake. Scalia may have sounded like Chicken Little to some. But a challenge to the law against polygamy in Utah may change skeptics’ minds. A Utah woman and her would-be husband — Mormons denied a marriage license because he is already married — have filed suit against the Salt Lake County clerks who refused them. The lawful wife is a third plaintiff. Bronson v. Swensen, No. 02:04-CV-0021 (D. Utah 2004). The plaintiffs, identified only as J. Bronson, G. Lee Cook and D. Cook, allege that their desire to live polygamously is inspired by their deeply held religious beliefs, which demand constitutional protection. They want to live as their forebears did before the Church of Jesus Christ of Latter-day Saints abandoned polygamy in 1890. The suit alleges violations of the plaintiffs’ rights to practice their religion, to “intimate expression and association” and to their rights of privacy. They have significant barriers to overcome. As a part of the 1894 enabling statute that permitted Utah to become a state, it had to forbid polygamous or plural marriages constitutionally. Polygamy was outlawed before then by a federal law covering its territories. That statute was upheld by the U.S. Supreme Court in Reynolds v. U.S., 98 U.S. 145 (1878). Plaintiffs attorney Brian Barnard, however, says his case is analogous to last year’s Texas case. Sex outside of marriage, adulterous or not, is a crime in Utah, as was consensual sodomy in Texas. That means that if the Utah couple were to remain unmarried and engaged in sex, they would be subject to criminal penalties both for that act and for adultery. It would be logical to extend the protection of private conduct in the Lawrence case to polygamy, Barnard said. It would mean overturning Reynolds. “ Reynolds is cited for the proposition that the government can outlaw polygamy even if it’s practiced because of religion,” said Barnard, of the Utah Law Clinic in Salt Lake City and a cooperating attorney for the Utah Civil Rights and Liberties Foundation. “It’s an hysterical opinion.” The opinion calls polygamy an “odious” practice, which “until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” The Supreme Court would use a different analysis today, Barnard said. He cited a 1993 Florida case that invalidated an ordinance prohibiting animal sacrifice. Though apparently a neutral law, the court said it was aimed at the Santerian Church. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520. “Forbidding polygamy was clearly aimed at Mormons,” Barnard said. Not so, said Utah Attorney General Mark Shurtleff, who will defend the suit. He pointed to the rationale in Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985), in which the court affirmed a decision that allowed a police officer to be fired for being a polygamist. Potter held that “monogamy is inextricably woven into the fabric of society … the bedrock upon which our culture is built.” It said that state bans on “incest, bigamy and homosexuality as well as various preconditions to marriage,” reflected “widely held values” that the state had an “undeniable interest” in regulating. In the Texas case, two men convicted of engaging in deviant sexual behavior, anal sex, challenged a state criminal statute. Justice Anthony Kennedy, writing for a 6-3 majority, held that adults may engage in private sexual conduct that does not involve coercion or injury. Lawrence v. Texas, 123 S. Ct. 2472 (2003). Richard Wilkins, a law professor at Brigham Young University, said he shares Scalia’s concern. “There’s a willingness to throw out things before we know what the value was and what the results will be,” he said. Salt Lake County District Attorney David E. Yocum said he hasn’t seen a polygamy prosecution in his almost 30 years of involvement in law enforcement. He said that his office does vigorously prosecute child marriages, welfare fraud and sex crimes, some of which involve polygamous marriages. “I don’t think [marriage laws are] directed at any one religion,” said Shurtleff, who filed an amicus brief in Lawrence in support of Texas. “And I think it’s appropriately regulated.” He said there are an estimated 20,000 to 40,000 polygamists in Utah. “We can’t keep turning a blind eye about it … ” he said. “ Scalia echoed our concerns.”

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