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Bigamy, Polygamy and the War on Plural Marriages: A Social Injustice and Direct Violation of the First Amendment

of the nited States !onstitution

By "ne#a V$ !am%&ell Student num&er: '((((')*'

Florida A+M ni,ersity !ollege of -a. Fall /('/ -a. and 0eligion Seminar Professor 1i#he&a 2$D$ !andidate /(')

Issue Statement:

nder the First Amendment of the nited States !onstitution 3sta&lishment and Free 34ercise !lauses, does an anti5&igamy statute fail constitutionally &ecause it ser,es to %rohi&it the free e4ercise of religion, sho.ing a %reference to the &eliefs of one grou% o,er another$ Pertinent Rules: 6he 6e4as statute that defines the crime of &igamy in Article 78(, P$!$ says that 9Any %erson .ho has a former .ife or hus&and li,ing .ho shall marry another in this State shall &e confined in the %enitentiary not less than t.o nor more than fi,e years$: In tah three legal documents esta&lish &igamy as an illegal %ractice$ 6hey are the tah 3na&ling Act, tah !onstitution ; tah !onst$ Art$ III, < '=, and tah Statute ; tah !ode Ann$ < >?5>5'('=$ 6he code states: '= A %erson is guilty of &igamy .hen, #no.ing he has a hus&and or .ife or #no.ing the other %erson has a hus&and or .ife, the %erson %ur%orts to marry another %erson or coha&its .ith another %erson$ /= Bigamy is a felony of the third degree$ )= It shall &e a defense to &igamy that the accused reasona&ly &elie,ed he and the other %erson .ere legally eligi&le to remarry$

Preface: The intent of this paper is to prove that the prohibition and criminal penalties associated with Bigamy in Utah and Texas violate the stablishment and !ree xercise "lauses of the !irst #mendment to the United States "onstitution$

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The !irst #mendment stablishment and !ree xercise "lauses In order to understand the argument against Bigamy Statutes as a ,iolation of the 3sta&lishment !lause and the Free 34ercise !lause of the First Amendment it is im%ortant to understand .hat these clauses say, the intent of the authors, the history &ehind the .ritings and ho. they ha,e &een a%%lied and understood throughout $S$ history$

a$ %hat are the stablishment and !ree xercise "lauses& 6he 3sta&lishment !lause of the First Amendment of the nited States !onstitution is the first of se,eral %ronouncements that states: 9!ongress shall ma#e no la. res%ecting an esta&lishment of religion@: and the Free 34ercise !lause says: 9@or %rohi&it the free e4ercise thereof:$' Aistorians, %oliticians, and legal scholars ha,e gra%%led .ith the meaning of these t.o clauses for centuries$ Some scholars inter%ret the esta&lishment clause as esta&lishing a 9.all of se%aration:/ &et.een !hurch and State .hile others inter%ret it as gi,ing religious li&erties to churches .here none e4isted &efore$ b$ The Intent of the #uthors 6he First Amendment .as %enned during a tumoltuous time in nited States history$ As a %art of the Bill of 0ights it .as the foundersB .ay of %rotecting the ne.ly formed America from the dangers of a centraliCed go,ernment .ith too much %o.er$ Scholars such as Professor Philli% Aam&urger might argue that the intent of the First Amendment .as ,ery distant from its use today$) In his &oo#, Se%aration of !hurch and State,
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U.S.C.A Const. Amend. 1- Religion.

Daniel L. Dreisbach, Sowing Usef l !r ths and "rinci#les$ !he Danb r% &a#tists, !homas 'efferson, and the ()all of Se#aration,*+ Journal of Church and State, 39: 468(1997). Altho gh, of co rse, not the first to # blish this and related doc ments, Dreisbach #ro,ides b% far most acc rate transcri#t of them. See Zorach v. Clauson, 343 .S. 3!6 (19"#). -onetheless, according to ' stice Do glas, .t/here cannot be the slightest do bt that the 0irst Amendment reflects the #hiloso#h% that ch rch and State sho ld be se#arated.+.
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"hilli# 2amb rger, Se$arat%on of Church and State, 2 . 2ar,ard Uni,ersit% "ress, 2332/. -otwithstanding the a thorit% of 'efferson and those who ha,e followed him, it ma% be sef l to reconsider whether the 0irst Amendment act all% g aranteed a se#aration of ch rch and state and,

Aam&urger tal#s a&out 2effersonBs 'D(/ letter to the Dan&ury Ba%tist Association .here he articulated the American %eo%leBs act of 9&uilding a .all of se%aration &et.een !hurch + State$:7 Aam&urger argues that it is %ossi&le that 2efferson got it .rong and that the &elief .e hold no. as Americans centuries after the First Amendment .as %enned is &ased on 2effersonBs ill5constructed inter%retation of the intent of the authors, not the true meaning of the 3sta&lishment and Free 34ercise !lauses of the First Amendment$ 2effersonBs inter%retation may ha,e &een a result of innocent error or a conscious effort to not only %rotect religion from state, and state from religion, &ut to also safeguard indi,iduals from religious e4%loitation$* Because the .ording of the First Amendment .as sha%ed in large %art &y the &eliefs of religious dissenters, Aam&urger e4%lores their thoughts in a Euest for the true meaning of the clauses$? 6he .ording of the First Amendment .as meant to %romote 9a freedom from la.s instituting, su%%orting, or other.ise esta&lishing religion:> not to create this e4treme se%aration of contact &et.een church and state$D
f rther, how 'efferson and other Americans came to ass me that it did so.+.
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Letter from !homas 'efferson to 5essrs. -ehemiah Dodge, 6#hraim Robbins, and Ste#hen S. -elson, a Committee of the Danb r% &a#tist Association in the State of Connectic t .'an 1, 1732/.on file with the Librar% of Congress/.
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2amb rger, su$ra, 9. :it o,erloo;s a third #ossibilit% that 'efferson desired not onl% to #reser,e go,ernment b t also, more f ndamentall%, to #rotect indi,id als from ch rches so that Americans might be free and ninfl enced in tho ght and #olitics.+
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<d. at 1=. <t is often ass med that eighteenth cent r% religio s dissenters so ght a se#aration of ch rch and state,:the% in fact str ggled for a ,er% different t%#e of religio s libert%:Almost none of the dissenters who str ggled for their libert% from religio s establishments re,ealed an% desire for a se#aration of ch rch and state:+.
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See 'ames 5adison*s Resol tions .' ne 7, 1>7=/, from -.?. Dail% Ad,erti@er .' ne 12, 1>7=/, in Aiet, &owling, and &ic;ford, eds, Creat%n& the '%ll of (%&hts, 1#. )ad%son $ro$osed that *+he c%v%l r%&hts of none shall ,e a,r%d&ed on account of rel%&%ous ,el%ef or -orsh%$, nor shall an. nat%onal rel%&%on ,e esta,l%shed,/0 -hen %ntroduc%n& the '%ll of (%&hts.
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2amb rger, su$ra 1

During %re50e,olutionary War America, many states had la.s that esta&lished go,ernment sanctioned religions .ith clergymen recei,ing salaries &ased on the religion they %rofessed$8 6he dissenters to this ty%e of go,ernment esta&lished church .ere mem&ers of the minority denominations .ho did not &enefit and .ere discriminated against due to their not &elonging to the church esta&lished &y the state go,ernment$'( 6herefore the se%aration of church and state they %etitioned for in the .riting of the First Amendment .ould ensure them freedom from the la.s that had created these esta&lished churches$ 6hey .anted freedom from the %enalties associated .ith not &eing a %art of the recogniCed clergy, including freedom of .orshi% or the 9free e4ercise of religion:$ 6his .as a far remo,ed meaning than .hat .e hold today$ 6he dissenters did not .ant to 9&uild a .all: &ut rather to ensure eEual %rotection and treatment for all religious sects not just the majority$ Se%arationists on the other hand ha,e ta#en it to the e4treme &y using the clauses to %romote a &an on any statute .ith a religious %ur%ose or that su&stantially &enefits religion as a .hole, e,en .hen it doesnBt &enefit one religious sect more than another$'' 6he %ro%onents of the First Amendments did not .ant it to ha,e the effect of limiting religion or 9the free e4ercise: thereof$ 6oday, First Amendment arguments are used to limit
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)illiam B. 5cLo ghlin, 1e- 2n&land 3%ssent, 163!41833,1(Ca5,r%d&e: 6arvard n%vers%t. 7ress, 1971). */%n Connect%cut and )assachusettes, Con&re&at%onal%sts ta8ed %nd%v%duals, %nclud%n& d%ssenters, for the salar%es of 5%n%sters selected ,. Con&re&at%onal 5a9or%t%es, unless the d%ssenters s%&ned cert%f%cates attest%n& to the%r d%ssent%n& status.0.
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2amb rger su$ra =. See also 5ar; de)olfe 2owe, +he :arden and the ;%lderness: (el%&%on and :overn5ent %n <5er%can Const%tut%onal 6%stor..
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See =e5on v. >urt?5an, 4!3 .S. 6!#(1971). !he test in Lemon called for 1/ sec lar # r#ose 2/ #rimar% effect that neither inhibits nor #romotes a s#ecific sect and 1/ no eCcessi,e go,ernment entanglement. ' stice )arren & rger in Lemon said that instead of being a wall of se#aration we act all% had a bl rred, indistinct and ,ariable barrier de#ending on all the circ mstances of a #artic lar relationshi#.+ See also L%nch ,. Donnoll%, 498 U.S. 997, 9>1 .1=74/.

religious organiCations from recei,ing %u&lic funding, e,en for secular reasons$ It has also &een used to limit %astors and %riests from commenting on ,oting and %olitics from the %ul%it, as e,idenced &y the recent Pul%it Freedom Sunday mo,ement$'/ 6he 2ohnson Amendment, .hich Pul%it Freedom Sunday %rotests, .as %assed &y !ongress in '8*7 as an amendment to section *(';c=;)= of the federal ta4 code$ 6his Act ma#es it illegal for ta4 e4em%t entities to: 9Partici%ate in, or inter,ene in ;including the %u&lishing or distri&uting of statements=, any %olitical cam%aign on &ehalf of F or in o%%osition to F any candidate for %u&lic office$:') 6he 2ohnson Amendment has &een ,ie.ed &y many nonreligious sects as a direct %rohi&ition from %astors and the church %reaching and influencing .ho their mem&ers ,ote for$ Su%%orters of the rule &elie,e that %olitical statements &y clergymen re%resent coercion to some e4tent and ,iolate the First Amendment 3sta&lishment !lause .hich, according to 2efferson, calls for a se%aration &et.een church and state$ 0eligious %eo%le .ho o%%ose the 2ohnson Amendment &elie,e that, just li#e e,eryone in society, churches through the rights afforded to them &y the 3sta&lishment !lause and se%aration of church and state should &e allo.ed freedom of s%eech in s%ea#ing forG against any %arty, %olitician or %olitical mo,e they see fit$'7 6his grou% sees the 3sta&lishment !lause as intended to &e a limitation of the go,ernmentBs in,ol,ement in the religious s%here instead of a limitation
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S#ea; U# 5o,ement, htt#$DDwww.s#ea; #mo,ement.orgDch rchDLearn5oreDdetailsD4>32 .last ,isited Dec. 8, 2312/.


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29 U.S.C. E 831.c/.1/ .1=84/.

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Aa ghn 6. 'ames, !he African American Ch rch, "olitical Acti,it%, and !aC 6Cem#tion, 1> Seton 2all L. Re,. 1>1 .233>/.

on the churchBs in,ol,ement in the o%inions of the %u&lic sEuare$ 6his grou% also argues that the 2ohnson Amendment .as added to the ta4 code as a result of the %olitical endea,ours of -yndon B$ 2ohnson .ho .as running for reelection to the nited States Senate, and it His not rooted in constitutional %ro,isions for se%aration of church and state@$ 2ohnson .as not trying to address any constitutional issue related to se%aration of church and stateI and he did not offer the amendment &ecause of anything that churches had done$H'* Mar# DeWolfe Ao.e in his &oo# The Garden and the Wilderness: Religion and Government in American Constitutional History,16 stated that in the eighteenth century the First Amendment .as translated and .idely held to &e a %rotection for religion and churches from too much %o.er &eing held &y the church not so much the other .ay around$ 3$0$ 1orman, The Conscience of the State in orth America1! argues that e,en though the nited States !onstitution delegates se%aration &et.een !hurch and State the meaning and intent .as to sto% one sectGdenomination from gaining su%remacy o,er another sectGdenomination$ It did not ha,e the intention to se%arate religious life from %u&lic life in totality$ 1ot only did the First Amendment stri,e to %rotect such li&erties as freedom of s%eech from the dictates of centraliCed go,ernment, it .as the foundersB intent for it to a%%ly to the Federal go,ernment and not to the States$ America had &een formed from the migration of a %eo%le .ho .ere tired of the tyranny and o%%ression they had faced in 3ngland$ 6he institutionaliCed religion in 3ngland had ra%ed
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S#ea; U# 5o,ement, htt#$DDwww.s#ea; #mo,ement.orgDch rchDLearn5oreDdetailsD4>32 .last ,isited Dec. 8, 2312/.


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2owe, !he Barden and the )ilderness, 17-1=. 6.R. -orman, +he Consc%ence of the State %n 1orth <5er%ca .Cambridge Uni,ersit% "ress, 1=97/.

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these migrants of their religious freedom$ 6hey .ere forced to su%%ort and ta#e %art in the State su%%orted !hurch, and to %ay ta4es to a church .hose ideals and edicts most of them had gro.n to disagree .ith$ Being %rotestant in their &elief, many of the settlers had mo,ed to 1orth America &ecause this ne. .orld %romised religious freedom$ "nce in America, the &attle for religious freedom had &egun once more$ In %re5 0e,olutionary War America, the colonists re%licated the o%%ression of 3ngland$ 6his time majority Protestant denominations such as Ba%tists dominated la. and society and o%%ressed other minority denominations$ In Virginia in '>D? the Act for 3sta&lishing 0eligious Freedom, drafted &y 6homas 2efferson, .as %assed$ 1ot long after the act .as %assed, the State &egan to sell 3sta&lishment Jle&e lands to !hristian denominations such as Ba%tists$'D Se%aration of !hurch and StateK 1ot hardlyLL "atholics found themselves hounded and proscribed because of their faith' (ua)ers who followed their conscience went to *ail' Baptists were peculiarly obnoxious to certain dominant Protestant sects' men and women of varied faiths who happened to be in a minority in a particular locality were persecuted+#nd all of these dissenters were compelled to pay tithes and taxes to support government,sponsored churches+-. II$ The /istory of the stablishment and the !ree xercise "lauses and how they have been applied through #merican /istory

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!homas 6. & c;le%, 6,angelicals !ri m#hant$ !he &a#tists* Assa lt on the Airginia Blebes, 1>791731+
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2verson v. 'oard of 2ducat%on of 2-%n& +$. 2t al, 113 U.S. 1.1=4>/

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stablishment "lause /istory

3,en though the First Amendment .as a %art of the original Bill of 0ights, the 3sta&lishment !lause did not gain .ide s%read a%%lication in $S$ !ourts until the middle of the t.entieth century$/( 6he %i,otal case of "verson v# $oard of "ducation%1 re%resents the foundation of Modern 3sta&lishment !lause doctrine$ 6hrough "verson the !ourt set the standard that the First Amendment incor%orated through the Fourteenth Amendment a%%lied to the States just as it did to the Federal go,ernment$ 6he justices in "verson&also agreed to the famous %assage: 1The establishment of religion clause of the !irst #mendment means at least this: 2either a state nor the !ederal 3overnment can set up a church$ 2either can pass laws which aid one religion4 aid all religions4 or prefer one religion over another$ 2either can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion$ 2o person can be punished for entertaining or professing religious beliefs or disbeliefs4 for church attendance or non, attendance$ 2o tax in any amount4 large or small4 can be levied to support any religious activities or institutions4 whatever they may be called4 or whatever form they may adopt to teach or practice religion$ 2either a state nor the !ederal 3overnment can4 openly or secretly4 participate in the affairs of any religious organi5ations or groups and vice versa$ In the words of 6efferson4 the clause against establishment of religion by law was intended to erect 1a wall of separation between church and State$7 5 verson v$ Board of ducation4 889 U$S$ at -:,-; <=uoting Reynolds v$ United States4 .> U$S$ -?:4 -;? <->@>00

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'erem% "atric;-' stice, Strict Scr tin% for Denominational "references$ Larson in Retros#ect, 7 -.?. Cit% L. Re,. 81 .2338/.
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2verson, 113 U.S.1.1=4>/

2ustice Augo Blac# also .ent on in the o%inion of the !ourt in "verson to say that, in the .ords of 2efferson, the clause against esta&lishment of religion &y la. .as intended to erect 9a .all of se%aration &et.een church and State$:// i$ The Aemon Test In 'emon v# (urt)man, the !ourt articulated a three %rong test to decide 3sta&lishment !lause claims$/) 6he -emon 6est says that a legislation .ill &e u%held as constitutional if the statute has a secular legislati,e %ur%ose, its %rinci%al or %rimary effect is one that neither ad,ances nor inhi&its religion and the statute does not foster 9an e4cessi,e go,ernment entanglement .ith religion$:/7 Strict scrutiny is only to &e used for la.s %referring one religious denomination o,er another$ 3,en today the test articulated in 'emon is the %rimary test for 3sta&lishment !lause issues$/* ii$ AarsonBs Strict Scrutiny Test

In 'arson v# *alete,%6 .hich dealt .ith the %rinci%le of denominational neutrality the !ourt stated 9the clearest command of the 3sta&lishment !lause is that one religious denomination cannot &e officially %referred o,er another$: 6he holding of that !ourt articulated that the strict scrutiny test .as the ne. standard to re%lace the -emon test for all cases regarding

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<d. Lemon, 431 U.S. 932 .1=>1/ @d. at 6#7 .F oting )al@ ,.!aC Commission, 1=> U.S. 994/ <d. Larson ,. Aalete, 489 U.S. 227 .1=72/

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religion$/> Any go,ernmental action related to religion .ould ha,e to fit a com%elling state interest and &e narro.ly tailored to fit that com%elling state interest, other.ise it .ould fail constitutionally under the strict scrutiny test$/D iii$ # Return to Aemon

Ao.e,er, 'arson has not &een a%%lied at such a .ide scale as 'emon# 'emon, e,en after 'arson, is still the test of choice to determine .hether or not a statute regarding religion as it %ertains to the 3sta&lishment !lause is constitutional$ b$ !ree xercise "lause /istory 6he Su%reme !ourt in Reynolds v# +nited States%, esta&lished that 9-a.s are made for the go,ernment of actions, and .hile they cannot interfere .ith mere religious &eliefs and o%inion, they may .ith %ractices$:)( 6his decision, eighty eight years after the First Amendment &ecame a %art of the $S$ !onstitution, esta&lished a jurisdictional test that said that e,en though go,ernment canBt sensor your o%inions and choice of .hat you &elie,e in, the go,ernment had jurisdiction and could restrict %ractices since these are not %rotected &y the Free 34ercise !lause$)' It limited 9free e4ercise: to mere o%inions and &eliefs and not actual actions$ Did the
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<d.

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'erem% "atric;-' stice, Strict Scr tin% for Denominational "references$ Larson in Retros#ect, 7 -.?. Cit% L. Re,. 81 .2338/. !his Law re,iew article loo;s at the Larson test that ne,er gained #o# larit% in U.S. co rts. 5an% lower co rts are hesitant in a##l%ing it since the S #reme Co rt a,oids a##l%ing it themsel,es, therefore #ro,iding no strong and clear indication of when the test is a##licable. Co rts contin ed to se =e5on in deciding 6stablishment Cla se iss es b t onl% sing strict scr tin% for nonne tral laws nder the 0ree 6Cercise Cla se.
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=7 U.S. 148, 194 .17>7/ <d. at 194-198 <d.

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Reynolds court mean that the !ourt had a&solute rights to %rohi&it any actions of the churchK A further loo# at the case and ho. the o%inion .as deri,ed says other.ise$ i$ # "loser Aoo) at Reynolds In Reynolds, the %laintiff .as %rosecuted for ,iolating tahBs anti5&igamy statute$)/ 0eynolds, .ho married his second .ife &ecause he felt com%elled to do so due to his religious duty, &rought suit claiming that the statute .as unconstitutional since it ,iolated the Free 34ercise !lause of the nited States !onstitution$ Because religion .as not defined any.here in the First Amendment, the Reynolds !ourt loo#ed to the historical .ritings of 6homas 2efferson and 2ames Madison, namely the '>D* Virginia Statute 3sta&lishing 0eligious Freedom)) and MadisonBs 9Memorial and 0emonstrance:$ Madison recogniCes in his 9Memorial and 0emonstrance: that the 90eligion@of e,ery man must &e left to the con,iction and conscience of e,ery manI and it is the right of e,ery man to e4ercise it as these may dictate$: 6his 9unaliena&le: right comes from the realm of 9duties o.ed

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!he Utah Constit tion #ro,ides in #ertinent #art$

!he following ordinance shall be irre,ocable witho t the consent of the United States and the #eo#le of this State$ .Religio s toleration-"ol%gam% forbidden/ 0irst$-"erfect toleration of religio s sentiment is g aranteed. -o inhabitant of this State shall e,er be molested in #erson or #ro#ert% on acco nt of his or her mode of religio s worshi#G b t #ol%gamo s or #l ral marriages are fore,er #rohibited. Utah Const. art. <<<G see also Utah Code Ann. E >9->-131 .1=>7/ .bigam% is a felon% of the third degree/.
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!he 1>78 Religio s 0reedom Act was #enned b% 'efferson for the State of Airginia. <t delineated se#arated H risdictions for ch rch and state. -o reg lation of the religio s o#inions of men. <t also led to the sale of glebe lands.

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to the !reator: outside the cogniCance of ci,il go,ernment:)7 .hile 2efferson said that magistrates should not &e gi,en the %o.er to intrude on the religious o%inions of men$ Jo,ernment should only intrude in that s%here .hen religious 9%rinci%les &rea# out into o,ert acts against %eace and good order:$)* ;'>D* Virginia Statute 3sta&lishing 0eligious Freedom=$ 6herefore, the standard set in Reynolds seems to %romote go,ernment inter,ention in actions of religion only .hen they go against the %eace and good order of society$ Purely religious actions that do not go against %eace and good order of society are there&y e4em%t from the regulations of the !ourt since they fall under the religious s%here$ Does this mean that the religious conscientious o&jector to anti5&igamy statutes should &e allo.ed an e4em%tion from anti5&igamy statutes or that the statutes should &e found unconstitutional as a .hole as regulation of such a %urely religious action falls .ithin the realm of religionK Is Bigamy in itself an o,ert act against %eace and good orderK 6he decision of the Reynolds court guided the a%%lication of the Free 34ercise !lause for another eighty t.o years after the decision .as handed do.n$)? ii$ Cvert #cts #gainst Peace and 3ood Crder Re=uired 6he underlying Euestion in Reynolds .hich is the Euestion that I as# today is sim%le$ nder

the nited States !onstitution, Amendment "ne does an anti5&igamy statute ,iolate the Free 34ercise !lause ma#ing it unconstitutional .hen the act of &igamy does not seem to classify as

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Re%nolds , United States , =7 US. at 191. See also 2 )ritings of 'ames 5adison 174 .B. 2 nt ed. 1=31/.
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)ording from 1>78 Airginia Stat te 6stablishing Religio s 0reedom written b% !homas 'efferson. 2erbert ). !it s, !he 0ree 6Cercise Cla se "ast, "resent and 0 t re, 9 Regent U.L. Re,.> . /

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an 9o,ert act against %eace and good order: in society, the test so clearly articulated in 2effersonBs '>D* Virginia Statute 3sta&lishing 0eligious Freedom and re%eated in ReynoldsK iii$ "antwell v$ "onnecticut D #ctions "lassified as Cpinions and Protected 6he !ourt in 0eynolds ac#no.ledged the fact that some actions may fall under the realm of religion and &ecause they are not o,ert acts against %eace and good order they are %rotected &y the First Amendment Free 34ercise !lause$ ReynoldsB a%%lication of the Free 34ercise !lause .as further refined &y Cant-ell v# Connecticut,)> .hich ser,ed to further define the ty%es of actions that .ere reachea&le &y go,ernment regulations and .hich .ere sacred and e4em%t &ased on them o.ing their e4istence to a duty to the !reator$ In Cant-ell, 2eho,ah .itnesses .ere denied %ermits to solicit funds &ecause the distri&ution of their literature .as not seen to ha,e a religious cause$ 6he !ourt found the act of collecting cash for literature fell under the %rotection of o%inions co,ered &y the Free 34ercise !lause$ Because 9-a.s are made for the go,ernment of actions@: and 9they cannot interfere .ith mere religious &eliefs and o%inion@:)D the go,ernment does not ha,e the right to interfere .ith the distri&ution of literature &ased on o%inion .hether religious or not$ 6he court in Cant-ell sent a clearly resounding message that some actions may classify as o%inions &ecause the action is so dee%ly rooted in the religious o%inionG%rinci%le of the s%ecific actor$ Aanding out tracts, li#e gi,ing a li,e sermon Eualified as o%inion and could not &e %rohi&ited &y la.$

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Cantwell ,. Connectic t, 113 U.S. 2=9.1=43/ Re%nolds, s #ra 194-198

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-ater in Torcaso v# Wat.ins,)8 the !ourt held that the Free 34ercise !lause canBt &e misconstrued to e4em%t a %erson from o&eying the la., e,en if o&edience meant &rea#ing a religious %rece%t or %ractice$ iv$ Sherbet v$ Eerner D "ompelling 3overnment Interest Test 6he .ay the !ourt inter%reted the Free 34ercise !lause &egan to change .ith Sher/ert v# *erne,7($ Sher/ert .as a challenge to an nem%loyment -a. in South !arolina .hich reEuired &enefactors to &e in,oluntarily unem%loyed to recei,e &enefits$ A %erson .ho refused .or# &ecause they .ere &eing reEuired to .or# on a day against their religious &elief .as not considered in,oluntarily unem%loyed and .as there&y denied &enefits$ Ms$ Sher&ert .as a Se,enth Day Ad,entist .ho had &een denied nem%loyment &enefits &ecause she had made herself una,aila&le to .or# on Saturdays$ 6he !ourt through 2ustice Brennan ruled that Sher&ertBs right to Free 34ercise .as ,iolated due to three factors$ 6he religious %ractice of resting on Saturday did not %ose a threat to %u&lic safety, %eace, and order$ Also, the state action had im%osed a &urden on the free e4ercise of religion &ecause it tried to coerce her to a&andon a %rece%t of her religion$7' Finally, the state had no com%elling interest therefore the rule could not stand u% under strict scrutiny$7/ 6his three %rong test articulated &y 2ustice Brennan &ecame #no.n as the Balancing 6est$ 6he Su%reme !ourt held that .hen the state acts in a .ay that interferes .ith someoneBs free e4ercise rights, it must &e justified &y a sho.ing of a com%elling

1=

!orcaso ,. )at;ins,19> U.S. 477 .1=91/. Sherbert ,. Aerner,1>4 U.S. 1=7 .1=91/. <d. at 434. <d.

43

41

42

18

state interest and the use of the least restricti,e means in %ursuing that interest$7) 6he stateBs &urden .as not met$ v$ %isconsin v$ Foder D "ompelling State InterestG Balancing Test 6he !om%elling State Interest 6estGBalancing test .as further re,ised and refined in Wisconsin v# 0oder77 &y !hief 2ustice Warren Burger$ 0oder concerned Amish %arents .ho ,iolated mandatory school attendance la.s in Wisconsin &y #ee%ing their children out of school after the eighth grade$ In 0oder, the !ourt articulated that the true test .as a &alancing of the indi,idualBs interest in e4ercising hisGher religious conscience against the stateBs interest in %u&lic safety, %eace and order$ Dra.ing on Reynolds for su%%ort the !ourt %ro%osed that 9it is true that acti,ities of indi,iduals, e,en .hen religiously &ased, are often su&ject to regulation &y the State in the e4ercise of their undou&ted %o.er to %romote the health, safety, and general .elfare, or the Federal Jo,ernment in the e4ercise of its delegated %o.ers$:7* If the indi,idualBs interest .as hea,ier than the stateBs, thus ma#ing the stateBs interest not com%elling, the indi,idualBs actions &ased on religious conscience .as e4em%t from state %rohi&ition on First Amendment Free 34ercise grounds$ 6he !ourt further articulated that in order to stand against the stateBs interest the religious conscientious o&jectorBs claim must &e 9rooted in religious &elief:7? not just &ased on %ersonal or %hiloso%hical ,ie.s$ In this case, WisconscinBs %ur%orted com%elling interest in uni,ersal education did not %ass the test &ecause it .as not hea,y enough to trum%h the religious conscience claim for&idding the %ractice of formal education %ast the
41

<d. )isconsin ,. ?oder, 439 U.S. 238 at 223 .1=>2/. <d. <d. at 218

44

48

49

19

eighth grade$ 6his !om%elling State Interest GBalancing test created in Sher&ert5Moder .as held unanimously in su&seEuent cases as the test to &e used in all future Free 34ercise !laims$ 6his test allo.ed not just o%inions to &e %rotected &ut to some e4tent religious &ased actions as long as they could %ass the test disEualifying a stateBs com%elling interest in for&idding the %ractice$ vi$ The Sudden Heath of Sherbert,Foder Test D mployment Hivision v$ Smith 3ighteen years after 0oder, 2ustice Scalia thre. a %oisoned arro. at the heart of the Sher&ert5 Moder test in the ruling of "m1loyment 2ivision v# Smith#3! 6his case concerned t.o 1ati,e Americans .ho .ere fired from their jo&s as drug reha&ilitation counselors &ecause they .ere found to ha,e ingested a hallucinogenic drug, %eyote, in their .orshi% ser,ice in the 1ati,e American !hurch$ 6he state further denied their claims for unem%loyment com%ensation .hich led to the suit$ When the case finally reached the Su%reme !ourt a ,icscious fight ensued &et.een the majority ,ote of fi,e justices led &y 2ustice Scalia and the minority dissent of four led &y 2ustice "B!onnor$ 2ustice Scalia argued for a return to the traditional jurisdiction test articulated in Reynolds$ Ae said that to force the state to %ro,ide a narro.ly tailored com%elling interest in order to trum%h a %ersonBs indi,idual religious conscience, es%ecially in generally a%%lica&le criminal la.s, .ould ma#e an indi,idual 9a la. unto himself:$7D It .ould create 9a %ri,ate right to ignore generally a%%lica&le la.s,: and 9.ould &e courting anarchy$:78 2ustice Scalia argued that the &alancing test li#e in 0oder should only &e in,o#ed in unem%loyment claims, that the test forced judges to e,aluate religious con,ictionsGactions indi,idually ; an area
4>

6m#lo%ment Di,ision ,. Smith, 4=4 U.S. 7>2.1==3/ <d. at 778 .F oting Re%nolds/ <d.

47

4=

1>

long held outside the jurisdiction of ci,il courts=, and that the Free 34ercise !lause only a%%lied to statutes .here the 9e4ercise of religion is the o&ject,: &ut not to 9 generally a%%lica&le and other.ise ,alid: la.s $*( Ais o%inion limited the a%%lication of the &alancing test .here 9across the &oard criminal %rohi&ition on a %articular form of conduct: is %resent$ 2ust as the court in Reynolds rejected a claim that 9criminal la.s against %olygamy could not &e constitutionally a%%lied to those .hose religion commanded the %ractice:, Scalia o%ined that an indi,idualBs religious &eliefs can ne,er e4em%t him from follo.ing a la. that ,alidly %rohi&its conduct the State is free to regulate$ In the .ords of 2ustice Scalia 9religious conduct cannot stand in the face of a generally a%%lica&le criminal la. unless the conduct finds su%%ort in one of the other %rotected freedoms of the First Amendment$:*' 6he only .ay this la. .ould fail constitutionally according to Scalia is if it tram%led on the 9right to &elie,e and %rofess .hate,er religious doctrine one desires: andGor it re%resented 9an attem%t to regulate religious &eliefs, or the communication of religious &eliefs$*/ ;3m%olyment Di,$ , Smith, 787 $S$ D>/,D>> ;'88(= Because %rohi&ition of drug use is an area the State is free to regulate, and the la. a%%lies &roadly to all mem&ers of society, not just mem&ers of the 1ati,e American !hurch or to a s%ecific religious &elief, the Su%reme !ourt ruled that the state court .as justified in its ruling against the %laintiffs$ 2ustice Scalia succeeded in changing the standard of re,ie. for these ty%es of cases from strict scrutiny to rational &asis, a much easier standard for states to meet to u%hold a la. regarding religious e4ercise as constitutional$
83

<d. at 7>> <d. <d.

81

82

17

In a strong dissent to this o%inion 2ustice "B!onner .rote that 9the com%elling interest test reflect;ed= the First AmendmentBs mandate of %reser,ing religious li&erty in a %luralistic society$:*) 2ustice "B!onner .rote that 9Fe. States .ould &e so naN,e as to enact a la. directly %rohi&iting or &urdening a religious %ractice as such$ "ur free e4ercise cases ha,e all concerned generally a%%lica&le la.s that had the effect of significantly &urdening a religious %ractice$:*7 "B!onner reasoned that the a%%roach articulated &y the majority o%inion in essence is an action that .ould remo,e all life and su&stance from the Free 34ercise !lause, and limit it to 9only the e4treme and hy%othetical situation in .hich a State directly targets a religious %ractice$:** She reasoned that, &ecause this ty%e of o,ert discrimination against s%ecific religions hardly if e,er e4isted and that most la.s .ith discriminatory effect .ere .ritten to seem neutral on their faces, it .ould mean ne,er a%%lying the Free 34ercise !lause$ 6his .ould also mean allo.ing States, .ithout a sho.ing of a com%elling interest and narro.ly tailored means to achie,e that interest, to tram%le the 9religiously moti,ated conduct: of Americans contrary to 9.ell settled First Amendment juris%rudence:$*? According to "B!onner the &alancing test is the %referred test &ecause it considers each case on its indi,idual merits and is 9sensiti,e to the facts of each %articular claim$:*>

81

<d. at =31. <d. at 7=4. <d. <d. <d. at 7==.

84

88

89

8>

1=

vii$ The Revival of Sherbert,Foder Test D Religious !reedom Restoration #ct of -..8 <R!R#0 6he history of the Free 34ercise !lause is a long and .inding one .ith many &um%s in the road$ "ne such &um% is the enactment of 6he 0eligious Freedom 0estoration Act of '88);0F0A=$*D Because of .ides%read outrage and o%%osition to the Smith decision grou%s li#e 6he American !i,il -i&erties nion and the 0utherford Institute, Peo%le for the American Way and the !hristian -eague, and the American 2e.ish !ongress and the Ba%tist 2oint !ommittee on Pu&lic Affairs %ut aside their usually o%%osing o%inions and joined forces in an attem%t to ha,e the Smith decision o,erturned$ After many failures, the grou% .as a&le to con,ince !ongress of the merits of their claims$ !ongress %assed 0F0A as a direct result of these %etitions for inter,ention to undo the damage to the First AmendmentBs Free 34ercise !lause done &y 2ustice ScaliaBs decision in Smith$ 0F0A reads: a= Findings 6he !ongress finds that F '= 6he framers of the !onstitution, recogniCed free e4ercise of religion as an unaliena&le right, secured its %rotection in the First Amendment to the !onstitutionI /= -a.s 9neutral: to.ards religion may &urden religious e4ercise as surely as la.s intended to interfere .ith religious e4erciseI )= Jo,ernments should not su&stantially &urden religious e4ercise .ithout com%elling justificationI 7= In 3m%loyment Di,ision ,$ Smith, 787 $S$ D>/ ;'88(= the Su%reme !ourt ,irtually eliminated the reEuirement that the go,ernment justify &urdens on religious e4ercise im%osed &y la.s neutral to.ards religionI and
87

!he Religio s 0reedom Restoration Act .R0RA/ 42 U.S.C. EE2333bb to 2333bb-4

23

*= 6he com%elling interest test as set forth in %rior Federal court rulings is a .or#a&le test for stri#ing sensi&le &alances &et.een religious li&erty and com%eting %rior go,ernmental interests$ &= Pur%oses 6he %ur%ose of this cha%ter areO '= to restore the com%elling interest test as set forth in Sher&ert ,$ Verner, )>7 $S$ )8D ;'8?)= and Wisconsin ,$ Moder, 7(? $S$ /(*;'8>/= and to guarantee its a%%lication in all cases .here free e4ercise of religion is su&stantially &urdenedI and /= to %ro,ide a claim or defense to %ersons .hose religious e4ercise is su&stantially &urdened &y go,ernment$ $ !ritics of 0F0A .ere in an u%roar at its %assing$ 6hey argued that !ongress had no enumerated %o.er .hich ga,e them the right to o,errule the Su%reme !ourt in this matter$ 0F0A a%%lied to &oth federal and state go,ernment and the su&ject, unaliena&le right to free e4ercise of religion, .as not one o,er .hich !ongress had jurisdiction$ Since it is the 9%ro,ince and duty of the judicial de%artment to say .hat the la. is:*8 and not the duty of !ongress, critics argued that 0F0A .as unconstitutional and !ongress had crossed the line of %o.er instituted &y our system of chec#s and &alances here in America$ viii$ The Beginning of the nd for R!R# 0F0A remained unmo,ed and unscathed until the '88> case, City of $oerne v# 4lores$?( In $oerne, Patric# Flores, the !atholic Arch&isho% of San Antonio &rought suit against the city of Boerne, 6e4as &ecause of an ordinance that denied him a %ermit to enlarge a church &uilding$ Flores claimed under 0F0A that the generally a%%lica&le ordinance su&stantially &urdened his
8=

5arb r% ,. 5adison, 8 U.S. 11>, 1>>.1731/ Cit% of &oerne ,. 0lores, 821 U.S. 83>

93

21

e4ercise of religion .ithout a sho.ing of a com%elling state interest &eing achie,ed &y its least restricti,e means$ 6he !ourt reasoned in Beornes that !ongress had e4ceeded its authority under Section * of the Fourteenth Amendment &y its %assage of 0F0A and that 0F0A could not &e a%%lied to the states$?' 0F0A .as reasoned to &e o,er5&road and faulty &ecause it sought to %rotect undocumented harms .hile !ongress only had the %o.er to correct %ast .rongs$?/ 6herefore, Arch&isho% FloresB claim failed and o,erturned 0F0A as unconstitutional as a%%lied to the states$ Follo.ing Boerne many states enacted similar 0F0A legislation, ho.e,er the !ongressional Act in its entirety .as still not a%%lica&le on a state le,el$ 6his .as not the end of the &attle for religious freedom in America$ 6he 0eligious -and se and InstitutionaliCed Persons Act ;0- IPA=, .hich %assed in /(((, &ecame !ongressB ne.est attem%t at defining religious e4ercise and the li&erty held and afforded &y the First Amendment Free 34ercise !lause$?) viiii$ Religious Aand Use and Institutionali5ed Persons #ct <RAUIP#0 0- IPA reads: a= Su&stantial Burdens '= Jeneral 0ule

91

<d. at 811. ' stice Ienned% deli,ered the o#inion of the Co rt. A decision b% local @oning a thorities to den% a ch rch a b ilding #ermit was challenged nder the Religio s 0reedom Restoration Act of 1==1 .R0RA or Act/, 13> Stat. 1477, 42 U.S.C. E2333bb et seA. !he case calls into F estion the a thorit% of Congress to enact R0RA. )e concl de the stat te eCceeds Congress* #ower.+
92

<d. at 837. <n im#osing R0RA Congress relied on the 0o rteenth Amendment which in section one g arantees that no State shall ma;e or enforce a law de#ri,ing an% #erson of life, libert%, or #ro#ert%, witho t d e #rocess of law+ or den%ing an% #erson the eF al #rotection of the laws.+ Section 8 em#owers Congress to enforce those g arantees b% a##ro#riate legislation.+
91

" b L -o 139-2>4, 114 Stat 731 .2333/, codified at 42 U.S.C. E2333cc et seF.

22

1o go,ernment shall im%ose or im%lement a land use regulation in a manner that im%oses a su&stantial &urden on the religious e4ercise of a %erson, including a religious assem&ly or institution, unless the go,ernment demonstrates that im%osition of the &urden on that %erson, assem&ly, or institutionO ;A= Is in furtherance of a com%elling go,ernmental interestI and ;B= Is the least restricti,e means of furthering that com%elling go,ernmental interest$ /= Sco%e of a%%lication 6his su&section a%%lies in any case in .hichO ;A= 6he su&stantial &urden is im%osed in a %rogram or acti,ity that recei,es Federal financial assistance, e,en if the &urden results from a rule of general a%%lica&ilityI ;B= 6he su&stantial &urden affects, or remo,al of that su&stantial &urden .ould affect, commerce .ith foreign nations, among se,eral States, or .ith Indian tri&es, e,en if the &urden results from a rule of general a%%lica&ilityIor ;!= 6he su&stantial &urden is im%osed in the im%lementation of a land use regulation or system of land use regulations, under .hich a go,ernment ma#es, or has in %lace formal or informal %rocedures or %ractices that %ermit the go,ernment to ma#e, indi,idualiCed assessments of the %ro%osed uses for the %ro%erty in,ol,ed$?7 ;some %arts omitted= At first ,ie. 0- IPA doesnBt seem to do anything for Bigamy$ 6he t.o areas .here 0- IPA ha,e &een successfully a%%lied is in Coning and religious e4ercise rights of institutionaliCed %erson$ Ao.e,er, through the a%%lication of 0- IPA in our courts, a ne. definition of religious e4ercise and religion has emerged$ Because 0- IPA demands a sho.ing of some ty%e of religious faith to &e a%%lica&le, courts ha,e &een forced to inter%ret such terms$ 6hrough a%%lication 0- IPA has defined religion ,ery &roadly so that it encom%asses almost any s%iritual act$ 0eligious e4ercise under 0- IPA is defined as 9any e4ercise of religion,
94

<d.

21

.hether or not com%elled &y, or central to, a system of religious &elief$:?* 6he fact that 90eligious &elief needs not &e acce%ta&le, logical, consistent or com%rehensi&le to others in order to merit First Amendment %rotection: .as o%ined &y the court in Thomas v# Revie- $d# of the 5ndiana "m1loyment Sec# 2ivision#?? 9It is no &usiness of courts to say that .hat is a religious %ractice or acti,ity for one grou% is not religion under the %rotection of the First Amendment$:?>

III$

Hefinitions of Bigamy4 Polygamy and Plural Iarriages from a Statutory Point of Eiew;> 6hroughout the nited States of America the crime of Bigamy has &een descri&ed in

,arious .ays .ith different le,els of %unishment de%endent u%on the jurisdiction in,ol,ed$ At common la., entering into a second marriage .hile the first remained undissol,ed .as designated as %olygamy, and many statutes still use that term$ 6he crime of &igamy in most statutes is committed &y the act of marrying .hile the s%ouse &y a former marriage is still ali,e and the former marriage is still in force, or hasnBt &een declared ,oid &y a com%etent court .ith jurisdiction o,er the %arties, andGor the coha&itation together .ithin such state, after a &igamous marriage else.here$ If one of the %arties of the first marriage has remained a.ay .ithout the other %arty #no.ing of their .herea&outs or .hether they are ali,e or not
98

<d. !homas ,. Re,iew &oard of the <ndiana 6m#lo%ment Sec. Di,ision, 483 U.S. >3> .1=71/ 0owler ,. Rhode <sland, 148 U.S. 9>, >3 .1=81/

99

9>

97

"ol%gam% is defined as the state or #ractice of ha,ing more than one s#o se sim ltaneo sl%.+ &lac;*s Law Dictionar% 11=>.7th ed. 2334/

24

for a s%ecific term of years, then a second marriage after the statute of limitation has run is considered a ,alid marriage and not &igamous$?8 Statutes in Ala&ama, Io.a, Massachusetts, Minnesota, Missouri, 6enessee and Vermont follo. a ,ersion of this trend$ Most modern statutes term this ty%e of &eha,ior as &igamy .hile some use &oth terms interchangea&ly$ In most states .ith anti5&igamy statutes, the crime of &igamy is no longer a common la. crime &ut it is statutory due to codification in the stateBs statutes$ 6he 6e4as statute that defines the crime of &igamy in Article 78(, P$!$ says that 9Any %erson .ho has a former .ife or hus&and li,ing .ho shall marry another in this State shall &e confined in the %enitentiary not less than t.o nor more than fi,e years$:>( In tah three legal documents esta&lish &igamy as an illegal %ractice$ 6hey are the tah 3na&ling Act, tah !onstitution>' , and tah Statute>/ ; tah !ode Ann$ < >?5>5'('=$ 6he code states: 7= A %erson is guilty of &igamy .hen, #no.ing he has a hus&and or .ife or #no.ing the other %erson has a hus&and or .ife, the %erson %ur%orts to marry another %erson or coha&its .ith another %erson$ *= Bigamy is a felony of the third degree$ ?= It shall &e a defense to &igamy that the accused reasona&ly &elie,ed he and the other %erson .ere legally eligi&le to remarry$

9=

5arHorie A. Shields, Aalidit% of &igam% and "ol%gam% Stat tes and Constit tional "ro,isions, 22 A.L.R.9th 1 .originall% # blished in 233>/
>3

!eCas does not o tlaw cohabitation of a man with more than one women as if married+. Some showing of a criminal intent to enter into another marriage while alread% married is needed to meet the stat te.
>1

Utah Const. Art. <<<, E1 Utah Code Ann. E >9->-131

>2

28

-oo#ing at the anti5&igamy statutes of these t.o states there are some stri#ing differences$ In 6e4as there is no %ro,ision made for %unishing a %erson .ho merely li,es or coha&its .ith the hus&andG.ife of another .ithout an actual marriage$ Ao.e,er, the tah statute is Euite clear that one can &e found guilty of Bigamy e,en if one does not %ur%ort to marry the hus&andG.ife of another$ "ne can &e found guilty of Bigamy just &y coha&iting .ith someone else .hile married$ Another difference in &oth statutes is that in 6e4as the only guilty %arty, or %arty against .hom charges can &e &rought, is the %erson .ho is already married and marries another .ithin the state of 6e4as$ Ao.e,er, in tah, Bigamy charges can &rought against the %erson .ho is already married and %ur%orts to marry another and also against the unmarried %erson .ho marries the hus&andG.ife of another$ E$Aoo)ing at Bigamy4 Polygamy and Plural Iarriages from a Religious Perspective a0 Importance and /istory of Polygamy in the Iormon Religion <The "hurch of 6esus "hrist of Aatter Hay Saints0 '= Polygamy Defined: 6he !hurch of 2esus !hrist of -atter5day Saints .as founded &y 2ose%h Smith 2r$ on A%ril ?, 'D)(, se,en years after Mr$ Smith claimed to ha,e &een ,isited &y an angel called Moroni and led to inter%ret golden ta&lets in a near&y hillside$>) 6hese inter%retations are the Boo# of Mormon$>7 6he Mormons migrated through "hio, Missourri, Illinois and then to an area that is no. #no.n as tah$ 6hrough their tra,els the Mormons gained enemies .ho res%onded to the
>1

'on Ira;a er, Under the &anner of 2ea,en$ A Stor% of Aiolent 0aith 8= .2331/

>4

Sarah &arringer Bordon, !he 5ormon J estion$ "ol%gam% and Constit tional Conflict in -ineteenthCent r% America, 27 H. S #. Ct. 2ist. 14,19 .2331/

29

Mormon %resence in their areas .ith ,iolence and state legislation &anning their religious %ractices$ When the MormonBs a%%ealed to the federal go,ernment for hel% and %rotection they .ere denied &ecause the Free 34ercise !lause .as &elie,ed to only a%%ly to the federal go,ernment and had no %o.er to sto% state action$>* Smith and his &rothers .ere murdered in Illinois &efore the mo,e to tah$>? Mormons %etitioned !ongress for tahBs statehood in 'D*( &ut .as denied statehood largely in %art due to their %olygamous %ractices$>> Instead tah &ecame a nited States territory$>D Mormon Polygamy is &ased in doctrine and its %ractice is the direct result of strongly held religious &eliefs that merit constitutional %rotection$>8 Polygamy or celestial marriage .as instituted into the !hurch of 2esus !hrist of -atter Day Saints in the 'D7) &y its founder 2ose%h Smith 2r$ .ho is &elie,ed to ha,e &een %racticing %olygamy since the 'D)(s$D( Mr$ Smith recei,ed a re,elation from Jod that justified the marriage of one man to more than one .ife just as %atriachs A&raham, Isaac, 2aco&, Moses, Da,id, and Solomon %racticed$D' Smith .as said to ha,e forty t.o to forty eight .i,es, .ith t.el,e to nineteen of them &eing sealed to him %ost
>8

Bordon, s #ra note 9, at 19 <d. Richard S. Aan )agoner, 5ormon "ol%gam%$ A 2istor% 2.1d ed. 1==2/. <d. at 124.

>9

>>

>7

>=

Iristen A. &erberic;, 5arr%ing into 2ea,en$ !he Constit tionalit% of "ol%gam% bans nder the 0ree 6Cercise Cla se, 44 )illamette L. Re,. 138 .233>/
73

Ira;a er, s #ra note >, at 117.

71

!he Doctrine of the Co,enants at E112$91-92.And again, as #ertinent to the law of the #riesthoodKif an% man es#o se a ,irgin, and desire to es#o se another, and the first gi,e her consent, and if he es#o se the second, and the% are ,irgins, and ,owed to no other man, then he is H stifiedG he cannot commit ad lter% for the% are gi,en nto himG for he cannot commit ad lter% with that that belongeth nto him and to no one else. And if he ha,e ten ,irgins gi,en nto him b% this law, he cannot commit ad lter%, for the% belong to him, and the% are gi,en nto himG therefore is he H stified.+/

2>

humously$ !elestial marriage .as not the only ty%e of marriage %racticed &y the Mormons nor .as it the most %racticed$ Ao.e,er celestial marriage .as considered the highest form of marriage &y the church$D/ In a celestial marriage the .ife is sealed to her hus&and in this life and for eternity$D) In the nineteenth century, in order to &e considered a good Mormon man andGor leader, men .ere church mandated to %ractice %olygamy$ Women .ho married men .ho did not %ractice %olygamy .ere marrying at their o.n detriment in this life and the life to come$ In the .ords of a contem%orary Mormon: Perha%s the most radical doctrine tenet of Mormonism is that man#ind can achie,e godhood and Jod himself .as once a mere mortal$ 6he Pro%het 2ose%h Smith e4%licitly taught that a man .ould %rogress through eternity in %ro%ortion to the magnitude of his %osterity on earth and that %olygamy .as a central %art of the %ursuit of godhood$ More .i,es ensured &oth increased %rogeny and greater future glory$ Men .ho rejected the %ractice of %olygamy not only forfeited godhood, &ut .ere damned$ Accordingly, the sal,ation of .omen de%ended on their union .ith a righteousO&y definition, %olygamousOman$D7 6his %ractice of %olygamy .as #e%t a secret from the outside .orld until the 'D*/ .hen it .as announced and defended &y one of the church leaders, 3lder "rson Pratt, at a general conference$D* Follo.ing 3lder PrattBs %roclamation the Mormon church found itself ostraciCed &y the general %u&lic, .ith some going as far as to call their %ractices immoral and sa,age$
72

<d. Bordon, s #ra note 1, at >41

71

74

6li@abeth 2armer-Dionne, -ote, Lnce a "ec liar "eo#le$ Cogniti,e Dissonance and the S #ression of 5ormon "ol%gam% as Case St d% -egating the belief-Action Distinction, 83 Stan. L. Re,. 12=8, 1118 .1==7/
78

Bordon, s #ra note 9, at 17.

27

/$ -egislati,e Atomic Bom&s 6he Morrill Anti5Bigamy Act .as %assed in 'D?/ &y !ongress as its first federal attem%t to %unish %eo%le .ho choose to %ractice %olygamy$ 1ot only did the act &an &igamy &ut it also limited churches and other non5%rofits from o.nershi% ,alued more than P*(,((( in any territory of the nited States$ nder the Morrill Act one could &e fined and sentenced to fi,e years in %rison for %racticing %olygamy$ It .as no secret that the Morrill Anti5Bigamy Act .as directed at the Mormon community in tah$ Ao.e,er, &ecause tah had not yet &ecome a state, the act .as ne,er really enforced$ 6his act .as later amended in 'DD/ &y the 3dmunds Act and again in 'DD> &y the 3dmunds5 6uc#er Act$ Because it .as hard to find concrete e,idence of &igamous marriage, the 3dmunds Act made 9unla.ful coha&itation: a misdemeanor$ 6his lo.ered the go,ernmentBs &urden of %roof and many Mormons .ere jailed for coha&itation e,en though no e,idence of &igamy .as e,er %ro,en$ nder 3dmund anyone li,ing a %olygamous lifestyle .as &arred from ci,il duties

such as jury duty, %u&lic office and ,oting 6he 3dmund F6uc#er Act of 'DD> dis5incor%orated the Mormon !hurch due to its %romotion of the %ractice of %olygamy and mandated that any %ro%erty o,er the P*(,((( limit set &y Morrill .as to &e seiCed &y the go,ernment$ 6his e4cluded %ro%erty used for religious %ur%oses &ut led to the loss of ,alua&le real estate$ In nited States ,. 6he -ate !or%oration of !hurch of 2esus !hrist of -atter Day Saints, * tah *)D the !ourt held that %ro%erty that .as transferred to another %arty three days &efore the church .as dissol,ed &y the 3dmund56uc#er Act .as done in an attem%t to defraud the go,ernment, and all transfers .ere declared ,oid$

2=

6his .as just one e4am%le of many cases .here Mormons .ere losing %ro%erty to the go,ernment all &ecause of the nited States disa%%ro,al of the %ractice of %olygamy$ )$ Mormons .a,e the White Flag of Surrender nder increasing %ressure to conform, the Mormon !hurch conceded to go,ernmentBs demands in 'D8($D? 6he churchBs %resident Wilford Woodruff, after recei,ing a re,elation, issued a manifesto .hich %u&licly denounced the %ractice of %olygamy in the Mormon church$D> tah .as admitted into the nited States in 'D8? under s%ecific conditions$ "ne condition .as that the StateBs 3na&ling Act and !onstitution contained an irre,oca&le ordinance %rohi&iting %olygamy fore,er, mandated &y !ongress$DD 6he full official %ractice of %olygamy in the Mormon church did not end ho.e,er, until '8(7, .hen the churchBs ne. %resident, 2ose%h F$ Smith, the son of founder 2ose%h Smith 2r$, after ta#ing many financial hits issued a Second Manifesto .here he denounced %olygamy &efore !ongress and called for its com%lete cessation in the Mormon church$ It is im%ortant to note that many radical sects &ro#e off from the Mormon !hurch after this manifesto and still continued the %ractice of %olygamy, e,en today$ D8 A grou% called the Fundamentalist !hurch of 2esus !hrist of -atter5day Saints ;F-DS= continue
79

After the 5anifesto the !erritor% of Utah enacted man% laws that mirrored federal legislation. 0ebr ar% 4, 17=2, <f an% male #erson, hereafter cohabits with more than one woman, he shall be g ilt% of a misdemeanor, and on con,iction thereof shall be # nished b% a fine of not more than three h ndred dollars, or b% im#risonment in the co nt% Hail for not more than siC months, or b% both # nishments, at the discretion of the ch rch.+ Laws 17=2, c. >, E2.
7>

)ilford )oodr ff*s manifest# read, )e are not teaching #ol%gam% or #l ral marriage, nor #ermitting an% #erson to enter into its #ractice. <n as m ch as laws ha,e been enacted b% Congress forbidding #l ral marriages:< hereb% declare m% intention to s bmit to those laws, and to se m% infl ence with the members of the ch rch o,er which < #reside to ha,e them do li;ewise:And now < # blicl% declare that m% ad,ice to the Latter da% Saints is to refrain from contracting an% marriage forbidden b% the law of the land.+ See also Ira;a er, s #ra note >, at 288.
77

Ln ' l% 19, 17=4, Congress #assed the 6nabling Act, 27 Stat. 13>, reF iring thereb%, the incl sion in the State

13

in their stern &elief that Woodruff .as .rong to sanction the a&andonment of %olygamy, .hich they argue is one of the central teachings of their faith$8( Ao.e,er, the foundational Mormon !hurch ;-DS= has done its &est and still tries today to distance itself from %olygamous lifestyle accusations$ 7$ 6he Massacre of 0eligious Actions !entral to 0eligious Beliefs 6here .ould &e no argument and my issue .ould &e moot if the story ended here .ith the Second Manifesto$ It is o&,ious that Mormons, through coercion and e4treme o%%ression .ere forced to a&andon a %rece%t of their religion .hich .as dee%ly rooted in religious &elief not just %ersonal %references$ Polygamy, according to the church mandate, guaranteed s%ecial %ositions in the afterlife for men as articulated &y the churchBs founder 2ose%h Smith 2r$ Women .ho did not seal themsel,es and their children to %olygamous men .ere %utting themsel,es at a disad,antage in the afterlife$ Polygamy .as not just a %ractice added later on in church history to satisfy the lusts of men$ It .as %resent in the %rece%ts of the religion from the foundation and &ac#ed &y scri%tures in the Bi&le, Boo# of Matthe.$8' 6he religious e4ercise of %olygamy argua&ly fits MadisonBs descri%tion of 9a duty o.ed to the !reator: since it concerned matters of the afterlife seemingly mandated &y the religionBs holy &oo#s$ 6his duty is em&odied in the commitment to intact
7=

<rwin Altman, "ol%gamo s 0amil% Life$ !he Case of Contem#orar% 5ormon 0 ndamentalists, 1==9 Utah L. Re,. 19>, 197 .1==9/
=3

6li@abeth 2armer-Dionne, -ote, Lnce a "ec liar "eo#le$ Cogniti,e Dissonance and the S ##ression of 5ormon "ol%gam% as Case St d% -egating the &elief-Action Distinction, 83 Stan. L. Re,. 12=8, 1118 1==7/. !his law re,iew arg es that it is diffic lt or almost im#ossible to disting ish belief from action in religion beca se most religio s actions are significantl% intertwined in the belief and religio s eCercise.
=1

!he 2ol% &ible, -ew Iing 'ames Aersion, &oo; of 5atthew

11

familial order here on 3arth and e4tending into the afterlife$ 6he !ourt in Cant-ell recogniCed that some actions may classify as o%inions &ecause they are so dee%ly rooted in the religious o%inionG%rinci%le of the s%ecific actor$ Mormons &elie,ed that it .as s%iritual damnation not to ha,e more than one .ife$ Ao. much more rooted can .e getK *$ Analysis of the Issue under Sher&ert5Moder !om%elling Jo,ernment Interest Balancing 6est F Jone &ut not forgotten 6he court in Sher/ert got it right .hen they said that the religious %ractice of resting on Saturday did not %ose a threat to %u&lic safety, %eace, and order$ Also, the state action had im%osed a &urden on the free e4ercise of religion &ecause it tried to coerce the defendant in that case to a&andon a %rece%t of her religion$ Finally, the state had not sho.n a com%elling interest .ith a remedy that .as narro.ly tailored to meet that interest$ !om%aring the finding in Sher&ert to the %resent %ro&lem, does the %ractice of &igamy &y the Mormon !hurch threaten %u&lic safety, %eace, and orderK !ritics might say that the %ractice of %olygamy has led to many an under aged &ride and therefore goes against %u&lic %olicy in %rotecting the young and innocent$ For e4am%le in State of +tah v# Holm,% the defendant 0odney Aans Aolm .as con,icted of &igamy and se4ual contact .ith a minor .hen he %ur%orted to marry his .ifeBs si4teen year old sister and had se4ual relations .ith her as his .ife$8) 6he a&sence of a marriage certificate .as of little to no ,alue &ecause the statute does not just %rohi&it state recognition of the marriage &ut

=2

State of Utah ,. 2olm, 11> ".1d >29 <d. at >11

=1

12

the ,ery act of %ur%orting to enter into the second marriage is .hat is %rohi&ited$87 6he marriage .as %erformed &y a religious leader and it in,ol,ed ty%ical marriage ,o.s$ Whether the %arties had the legal right to marry or not due to the e4istance of the %re,ious marriage .as also irrele,ant$ Because Aolm coha&ited .ith the second .ife in tah after the 9marriage: the sho.ing of Bigamy is satisfied .ith or .ithout the marital ceremony$ tahBs code ma#es

coha&itation .ith another .hile still married %unisha&le under Bigamy la.s$ Ao.e,er true the %u&lic interest in %rotecting young under aged .omen may &e, .as an outright &an on the %ractice of %olygamy necessary to achie,e this goalK 3,en if the %u&lic interest in the %rotection of under aged .omen from a&use is the com%elling state interest, is it not argua&le that &anning all %olygamous marriages is o,er5inclusi,eK ShouldnBt it just criminaliCe the marrying of under aged .omen if this is the goalK Is %lural marriage the ty%e of o,ert acts against %eace and good order descri&ed &y 2efferson in the '>D* Virginia Statute 3sta&lishing 0eligious FreedomK 6he Sher&ert5Moder test .as %ut to death &y 2ustice ScaliaBs o%inion in "m1loyment 2ivision v# Smith,8* resurrected &y 0F0A, and then de5toothed and %laced in a stony gra,e &y City of $oerne v# 4lores$8? Ao.e,er, my argument, li#e that of 2ustice "B!onner in her Smith case dissent, is for the return to 9.ell settled First Amendment 2uris%rudence:$ sing a Sher/ert

analysis, it is %lain to see that the State of tah has o,erste%%ed its %olicing %o.ers and mo,ed
=4

<d. at >11. !he # r#orts to marr%+ #ro,ision of Utah*s bigam% stat te declares that a #erson is g ilt% of bigam% when, ;nowing he has a h sband or wife or ;nowing the other #erson has a h sband or wife, the #erson # r#orts to marr% another #erson.+ Utah Code Ann. E131.1/. " r#ort means #rofess or claim falsel%G to seem to be.+ 'lacBCs =a- 3%ct%onar. 1283 .>th ed.1===/.
=8

4=4 U.S. 7>2.1==3/ 821 U.S. 83> .1==>/

=9

11

dangerously dee% into the realm of religion$ !ritics to this %oint of ,ie. might raise as an argument the fact that tah has a %olicy of not %rosecuting for %olygamy unless it is cou%led .ith another crime not as easily ignored$ For the most %art, %olygamous families are left alone$ Ao.e,er, such an argument is not enough to %rotect the Free 34ercise 0ights of Polygamous families$ It does not set them on an eEual footing .ith other families$ When other families commit a crime they are %unished for that crime only$ Ao.e,er, .hen tahBs %olygamous families commit a crime they are %unished for that crime and %olygamy, if a close enough lin# &et.een &oth crimes can &e found$ ?$ Analysis of Anti5Bigamy -a.s under Smith 2urisdictional 6est 6he Smith rule articulated &y 2ustice Scalia calls for a rational &asis standard .hen re,ie.ing state action in reference to religious e4ercise$8> Ae reasoned that the only .ay a %iece of legislation should fail is if it re%resents 9an attem%t to regulate religious &eliefs, or the communication of religious &eliefs$:8D According to 2ustice Scalia, 9religious conduct cannot stand in the face of a generally a%%lica&le criminal la. unless the conduct finds su%%ort in one of the other %rotected freedoms of the First Amendment$:88 If .e .ere to follo. this rule the argument against anti5&igamy statutes .ould fail$ Because it is &ased on a rational standard of re,ie., the state must ha,e a rational interest and the means of reaching that interest must &e reasona&ly related to the goal$ Because the State of tah has a rational interest in 9the formation of relationshi%s that are marital in nature: State of tah ,$ Aolmes and the criminaliCation of

=>

Smith, 4=4 U.S. 7>2.1==3/ <d. at 7>> <d.

=7

==

14

&igamy is reasona&ly related to that goal, the standard is met$

tah also %ur%orts as its

com%elling interest an interest in the %romotion of monogamous relationshi%s as a %u&lic %olicy$ In 2orre v# State,'(( the defendant .as charged .ith &igamy and se4ual assault of a child$ 2orre &rought for.ard as his defense the e4istence of a common la. marriage &et.een himself and his alleged ,ictim$ Because Dorre .as %re,iously married, the issue fell under 6e4asB anti5 &igamy statutes$'(' sing the Smith test the !ourt held that 6e4asB ant5&igamy statute .as on its

face a neutral la. of general a%%lica&ility so it did not ,iolate the defendantBs First Amendment right to the free e4ercise of religion$ 6he defendantBs %ractice of &igamy .as not %rotected &ecause the la. did not single out the s%ecific religious %ractice of a s%ecific grou% &ut made it illegal for anyone in the State of 6e4as$ In an earlier decision in $ierer v# $ro-n,'(/ the !ourt affirmed a decision &y the Board of Veterans not to recogniCe a .oman as the .ife of the %laintiff, according them certain im%ro,ed disa&ility %ension &enefits, &ecause they did not ha,e a marriage certificate$ 6he !ourt reasoned that &ased on )D $S$!$A$ < '();c= a marriage is ,alid if it follo.s the la.s of the %lace .here the cou%le resided at the time of marriage or .here the cou%le resided at the time the right to the

133

Dorre ,. State, 2333 )L ===89 .!eC. A##. Dallas 2333/. See also Robin Cher%l 5iller, '.D., )hat Laws are - etrat and of Beneral A##licabilit% )ithin 5eaning of 6m#lo%ment Di,., De#t. of 2 man Reso rces of Lregon ,. Smith, 4=4 U.S. 7>2, 113 S. Ct. 18=8, 137 L.6d.2d 7>9, 19> A.L.R.0ed. 991 .originall% # blished in 2331/. !his law re,iew article loo;s at the res lts of the a##lication of the Smith test to ,ario s challenges to laws regarding s#ecific beha,iors that were ne tral and of general a##licabilit% on their face b t had ad,erse effects on religio s #ractitioners. <t gi,es a histor% of cases in different areas of a##lication of the Smith test incl ding Animal sla ghter, assisted s icides, ban;r #tc% and tithes, child c stod% and s ##ort laws, and o r area of interest, marriage laws. .H st to name a few/
131

An% #erson who has a former wife or h sband li,ing and shall marr% another in this state shall be confined in the #enitentiar% not less than two nor more than fi,e %ears.
132

&ierer ,. &rown, 9 Aet. A##. 891 .1==4/

18

&enefit accrued$ A%%lied to 2orre,'() his claim that he .as married to the ,ictim and thus e4em%t .ould not stand &ecause the marriage .as not ,alid$ It did not follo. the la.s of 6e4as .hich had a direct %roscri%tion against &igamous marriages$ >$ Analysis of Anti5Bigamy Statutes under todayBs case la. and de,elo%ments in Free 34ercise 2uris%rudence !ourts in recent years ha,e recogniCed religious conduct in a .ay that .as ne,er recogniCed in nineteenth century anti5%olygamy statutes$'(7 Because of these recent modifications in o%inion and la., it is argua&le that if !ongress too# a second loo# at the la.s such as the Morrill Anti5Bigamy Act, 3dmund Act, 3dmund56uc#er Acts to name a fe., they .ould &e found unconstitutional &y ,iolation of the Free 34ercise !lause$ 6his is &ecause these la.s s%ecifically targeted the Mormon !hurch$'(* Ao.e,er, the tah !onstitutional &an on %olygamous .ould not fail &ecause it e4cludes all &igamous marriages not just those entered into &y Mormons$'(? Ao.e,er, it is argua&le that the unconstitutional %assage of the series of la.s listed a&o,e ;Morrill, 3dmund, etc$= led to an unfair coercion of the 6erritory of tah$ Because of !ongressB insistence that the only .ay tah could &ecome a state .as to include the 9Irre,oca&le "rdinance: in its constitution, it is argua&le that this unfair %ractice of %o.er &y the federal go,ernment .as a ,iolation of the Free 34ercise rights of Mormon citiCens of tah$ 0emem&er that the %etition for statehood of tah .as made &y the Mormon !hurch mem&ers .ho occu%ied
131

2333 )L ===89 .!eC. A##. Dallas 2333/

134

Iristen A. &erberic;, 5arr%ing into 2ea,en$ !he Constit tionalit% of "ol%gam% &ans Under the 0ree 6Cercise Cla se, 44 )illamette L. Re,. 138.233>/.
138

<d at 139 <d. at 139

139

19

that area at the time$ 6he leader of the church, Brigham Moung .as to &ecome the go,ernor and se,eral other church leaders .ere slated for high state offices$'(> 6he %etition initially only led to the declaration of the tah 6erritory and increased attac#s on the Mormons from the federal go,ernment$ If the action of !ongress in its coercion through the tah 3na&ling Act, Morrill Act, 3dmund Act, and 3dmund56uc#er Acts is re,isited and found to &e unconstitutional gi,en the Smith test, that could o%en the door for the re,ocation of the 9Irre,oca&le "rdinance: and e,ery other la. that o.es its e4istence to this ordinance$ Because the %rohi&ition against %olygamy .ould no longer &e irre,oca&le, cases challenging the constitutionality of the tah !ode and others %roscri&ing &igamy in tah .ould &e %laced on stronger footing$ D$ 6he 0- IPA argument for Plural MarriagesGPolygamyG Bigamy Because the Su%reme !ourt has found in Cam1s e-found v# Harrison167 that religious grou%s Eualify as grou%s that can affect interstate commerce, Mormons and Muslims as religious grou%s Eualify for %rotection under 0- IPA < ;a=;/=;B=$ Is it %ossi&le that statutes that ma#e it a criminal act or &igamy to coha&it .ith another .hile still married to someone else re%resent a land use regulation that im%oses a su&stantial &urden on the religious e4ercise of %ersons of these faithsK With the o,erturning of 0F0A one is forced to loo# at the ne. definition of religious e4ercise and religion as defined &y 0- IPA for the ans.er$ 6a#ing a closer loo# at the tah Anti5Bigamy statute one of the .ays one can &e found guilty of Bigamy, e,en .hen you did not %artici%ate or %ur%ort to %artici%ate in a marriage ceremony, is through coha&itation$ It can &e argued that this regulation ,iolates 0- IPA$
13>

Aan )agoner, s #ra note 13, at 124 Cam#s -ewfo nd ,. 2arrison, 823 U.S. 894 .1==>/

137

1>

-oo#ing &ac# at our earlier discussion, 0- IPA says that no go,ernment is allo.ed to im%ose a restriction on land use that su&stantially &urdens the religious e4ercise of a %erson@ .ithout the sho.ing that it is in furtherance of a com%elling state interest and it &eing achie,ed &y the least restricti,e means$ 6he religious e4ercise of coha&itation .ith %lural .i,es is &eing su&stantially &urdened &y tahBs Anti5Bigamy la.$ Because religious e4ercise has &een redefined under 0- IPA as any e4ercise of religion, .hether or not com%elled &y or central to a system of &eliefs, the Mormon act of coha&itation e,en though not central to their &elief, is co,ered &y 0- IPA and the First Amendment Free 34ercise !lause$ nder 0- IPA, .here there is no

sho.ing of actual additional marriages o,er and &eyond the one still in force &y la., &ut only e,idence of coha&itation, defendants should not &e %unished under anti5&igamy criminal la.$ 6he act of coha&itation is a religious e4ercise$ What is tahBs com%elling state interest for &anning coha&itation on %ri,ate %ro%ertyK In 8a/loc.i v# Redhail, the !ourt stated that 9Monogamy is ine4trica&ly .o,en into the fa&ric of our society$ It is the &edroc# u%on .hich our culture is &uilt$:'(8 2ustice Ste.art concurring in the o%inion stressed that states may legitimately say that no one .ho has a li,ing hus&and or .ife can marry$''( Ao.e,er, I feel li#e this statement is an o4ymoron$ tah .as &uilt &y %eo%le

.ith a strongly held religious ,ie. that mandated %olygamy$

tah today is made u% of a large

num&er of %olygamous families and %eo%le .ho, e,en though they donBt o%enly %ractice %olygamy, &elie,e in the tenant of the religion$ So .hose %u&lic o%inion is 2ustice Ste.art referring toK tahBs courts also found in 9aris Adult Theatre 5 v# Slaton that 9statutes ma#ing

13=

Mabloc;i ,. Redhail, 414 U.S. 1>4, 174 .1=>7/ <d. at 1==

113

17

&igamy a crime surely cut into an indi,idualBs freedom to associate, &ut fe. today seriously claim such statutes ,iolate the First Amendment or any other constitutional %ro,ision$:''' Again in tah, State v# $arlo-,''/ a num&er of defendants .ere charged .ith unla.ful coha&itation in ,iolation of Sec$ '() *' /, $!$A$ '87)'') .hich %rohi&its the %ractice of %olygamy$ 6he lo.er court decision to con,ict the defendants just &y a sho.ing of coha&itation .as affirmed$ In light of 0- IPA, it is my argument that a state in the %ursuit of its %olicing %o.ers does not ha,e the right to restrict the use of land for religious acti,ities$ 6he case aforementioned, es%ecially State ,$ Barlo., if decided under ne. 0- IPA jurisdiction .ould find tahBs anti5 &igamy statutes to &e unconstitutional in as much as they %rohi&it coha&itation, grou%ing it in .hole .ith &igamy$ Due to freedom of association rights, nited States citiCens should ha,e the right to coha&it .ith .home,er they choose, %laced on to% of 0- IPABs %rohi&ition of interference .ith land use for religious %ur%oses$ EI$ Aegal "onclusion In conclusion, in light of the historical %ers%ecti,e of ho. tahBs Bigamy %rohi&itions came to &e in e4istence I &elie,e that the anti5&igamy statutes are in direct ,iolation of the Free 34ercise !lause of the First Amendment of the nited States !onstitution$ 6he tah 3na&ling ActBs 9Irre,oca&le "rdinance: .as set u% as a shield &y the federal go,ernment to %rotect an
111

"aris Ad lt !heatre < ,. Slaton, 411 U.S. 4=,97 State ,. &arlow, 13> Utah 2=2 .1=44/

112

111

Sec. 131 81 2 s #ra reads$ <f an% #erson cohabits with more than one #erson of the o##osite seC, s ch #erson is g ilt% of a felon%.

1=

action that .as o&,iously directed to.ards the limiting of the free e4ercise of religion for Mormons$ Based on .hat .e #no. of this history, de,elo%ments in modern legislature, and cases e,en u% to recently the origins of this discrimination against Mormons is dee%ly rooted in the ty%es of &eha,iors and ideas that the First Amendment sought to eradicate$ 6he Morrill Anti5 Bigamy Act, the 3dmund Act, the 3dmund 6uc#er Act and !ongressB tah 3na&ling Act .ould all &e found unconstitutional under Smith$ 6herefore, it is time for us to re,ie. and ree,aluate the .rongs done to the Mormon %eo%le &y so seriously limiting their free e4ercise of religion$ I argue for the declaration that these acts .ere an unconstitutional mo,e &y !ongress, and allo.ing for the re,ie. of the Irre,oca&le "rdinance and all the la.s that %ertain to it$ 6his mo,e .ill allo. the %eo%le of tah to &e %laced on eEual footing .ith other states$ It .ill also esta&lish the true meaning of Free 34ercise of religion here in America$ In the .ords of 2ames Madison in his 9Memorial and 0emonstrance: the 90eligion@of e,ery man must &e left to the con,iction and conscience of e,ery manI and it is the right of e,ery man to e4ercise it as these may dictate$: 6his 9unaliena&le: right comes from the realm of 9duties o.ed to the !reator: outside the cogniCance of ci,il go,ernment:''7

114

Re%nolds , United States , =7 US. at 191. See also 2 )ritings of 'ames 5adison 174 .B. 2 nt ed. 1=31/.

43