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Thursday, May 18, 2006

A Very Interesting Utah Case

Ann Althouse has posted about an intriguing case decided by the Utah Supreme Court. The comments are long and well worth your time and the opinion is linked at Ann's.

A man was prosecuted under a bigamy statute for contracting a second, unofficial "spiritual" marriage. The Utah SC upheld his conviction, because the Utah statute refers to cohabitation. Well and good, but does Lawrence v Texas permit such a statute to stand? I think it cannot if challenged on the rights granted to private sexual conduct in that decision:
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

“Our prior cases make two propositions abundantly clear. 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.” 478 U.S., at 216 (footnotes and citations omitted).

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Downtownlad saw the implications, commenting:
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.
That's a resounding "yup", if the Utah statute was ruled constitutional post-Lawrence. In fact, Lawrence would then protect the right of two people to have a one-nighter, but not to live together in a committed relationship. That's not a possible result given the language and precedents cited in Lawrence.

In the wake of Lawrence, I don't see any way the state can criminalize a consensual relationship such as this broadly, although the state is free to set ages of consent, etc.

But this raises another potential issue. The reasoning used by the Massachusetts Supreme Court to rule that restricting same-sex marriage was unconstitutional under the Massachusetts Constitution rested heavily upon the rights of the children of a same-sex couple. Consider polygamy and the children of such marriages. It's hard to see how the "rational basis" reasoning used in Goodridge would not apply as well to children of unlegitimized polygamous marriages:
No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow." Post at (Cordy, J., dissenting).
In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.
Or pluralistic marriage....

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