Polygamy Next Threat to Marriage?
by AFA Journal
March 30, 2005
(AgapePress) - While battling on the same-sex marriage front, pro-family groups also have to worry about another potential threat to the institution of marriage: lawsuits attempting to legalize polygamy.There have been numerous challenges to the ban on polygamy, most notably in the state of Utah, where Mormons, many of whom practiced polygamy in the 1800s as part of their religious faith, were especially strong.
In 1878 the U.S. Supreme Court ruled that laws banning polygamy are constitutional. In that case, the high court said an appeal to the First Amendment right to free exercise of religion was not adequate grounds to legalize the practice.
According to the Deseret News, the Utah ban has drawn a number of more recent challenges -- all thus far unsuccessful. In cases that reached the 10th U.S. Circuit Court of Appeals in 1985 and 2002, the 1878 case was cited as sufficient reason to deny the demands of plaintiffs arguing for polygamy. A challenge before the Utah Supreme Court last year was also rejected on similar grounds.
In 2001, in perhaps the biggest polygamy trial in Utah in nearly 50 years, Tom Green -- who had five wives and 30 children -- was sentenced to five years in prison.
For those hoping that the courts will continue to reject attempts to legalize polygamy, there was more good news in February. In another federal lawsuit challenging Utah's ban, U.S. District Judge Ted Stewart brushed aside a suit filed by a married couple in that state and the man's prospective second wife. As in the earlier cases, Stewart based his ruling on the 1878 U.S. Supreme Court case.
However, in a development that disturbs pro-family groups, some recent challenges raise a new argument that may shake things up. The three plaintiffs in that case are arguing that the U.S. Supreme Court ruling in Lawrence v. Texas in 2003 actually opens the door for the legalization of polygamy.
In Lawrence, the high court struck down all state sodomy laws, stating that the government had no right to interfere in private sexual matters.
Brian Barnard, attorney for the trio of Utahans, said he will appeal Stewart's decision on the basis of Lawrence.
"The Utah statute makes criminal a married person living in a sexual relationship with a person of the opposite gender to whom he is not married," he said. "Such cohabiting is the crime of polygamy. Such a choice is a private sexual decision which is protected by Lawrence v. Texas. When Lawrence is applied to the facts of our case, we hope the result will be different."
Another challenge to Utah's polygamy ban has been heard by the Utah Supreme Court. Press reports indicated at least some sympathy among the justices to the argument that Lawrence might change the way polygamy should be viewed.
This article appeared in the April 2005 issue of AFA Journal, a monthly publication of the American Family Association.
