Lawsuit Filed Challenging The Constitutionality Of Criminalizing Polygamy

And so the slippery slope continues. The Salt Lake Tribune reports:

Utah’s complicated history with polygamy will start a new chapter Wednesday when an attorney for a reality-show family files a lawsuit that could send the state’s ban on plural marriage to the U.S. Supreme Court.

Nationally-known constitutional law professor Jonathan Turley said the lawsuit to be filed in U.S. District Court in Salt Lake City will not call for plural marriages to be recognized by the state. Instead, it asks for polygamy between consenting adults like his clients, former Utahn Kody Brown and his wives, to no longer be considered a crime.

"We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs," Turley said in a press release. The Browns star in the TLC network show "Sister Wives." There is no word yet on whether they will appear in a press conference scheduled for Wednesday.

Utah Attorney General Mark Shurtleff said the country’s ongoing legal wrangling over same-sex marriage will necessarily grow to include plural marriage — quite possibly centered around this case.

"I’m confident that we can [defend] a challenge all the way to the Supreme Court," Shurtleff said.

"Ultimately, this decision is going to have to go there. You see it coming," he added.

The Supreme Court toyed with taking on polygamy five years ago, when they asked for briefs in the case of polygamous police officer Rodney Holm, who was accused of having sex with a 16-year-old plural wife. The justices ultimately refused to hear his appeal.

"The whole case was tainted by [sexual contact with a minor]. We didn’t die on the courthouse steps, we died inside," said attorney Rod Parker, who represented Holm. "I don’t know if [the Brown case] will be the one, but sooner or later one’s going to go there ... if it’s factually clean."

From the New York Times:

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses…

The questions surrounding whether same-sex couples should be allowed to marry are significantly different from those involved in criminal prosecution of multiple marriages, Ms. Pizer noted. Same-sex couples are seeking merely to participate in the existing system of family law for married couples, she said, while “you’d have to restructure the family law system in a pretty fundamental way” to recognize polygamy.

Professor Turley called the one-thing-leads-to-another arguments “a bit of a constitutional canard,” and argued that removing criminal penalties for polygamy “will take society nowhere in particular.”

The truth is that these folks should win their lawsuit if the Supreme Court meant what it said in Lawrence v. Texas (2003) regarding the right to "autonomy of self," and if they were serious about the Constitution apparently protecting "freedom...beyond spatial bounds" and "liberty...in its spatial and more transcendent dimensions," whatever the hell that means. Tweet