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Court Decisions Secure "Polygamy Rights"

Date: Jul 01, 2003
Word Count: 600 words
Cross-Reference: Lawrence v. Texas (2003), Romer v. Evans (1996), US Supreme Court

With Lawrence v. Texas and Romer v. Evans, the U.S. Supreme Court has provided two powerful precedents for securing the next civil rights battle, "polygamy rights."

With   the   U.S.   Supreme   Court's   decision   last   month   overturning   anti-sodomy   laws,   the   Court   has   consequently   provided   two   powerful   precedents   for   securing   the   next   civil   rights   battle,   "polygamy   rights."

Romer   v.   Evans,   in   1996,   established   that   laws   cannot   "impermissably   target"   a   class   of   individuals.     This   recent   Lawrence   v.   Texas   decision   establishes   a   "right   to   privacy"   for   freely-consenting   adults.     These   two   precedents,   together,   make   anti-polygamy   laws   unconstitutional.

Such   analysis   comes   out   of   U.S.   Justice   Antonin   Scalia's   specific   dissents   in   both   decisions.    


On   May   20,   1996,   the   U.S.   Supreme   Court   overturned   Amendment   2   to   Colorado's   State   Constitution.   Voter-approved   in   1992,   the   amendment   was   titled,   "No   Protected   Status   Based   on   Homosexual,   Lesbian,   or   Bisexual   Orientation."

The   Court's   majority   declared   Amendment   2   unconstitutional   because   it   was   an     "impermissible   targeting"   of   a   "class"   of   people;   it   had   "impermissibly   targeted"   homosexuals.

Justice   Scalia   dissented,   noting   the   decision's   impact   regarding   polygamy.     He   explained   that   a   number   of   state   constitutions   were   originally   adopted   with   clauses   that   polygamy   is   "forever   prohibited."

Scalia   wrote,   "Polygamists,   and   those   who   have   a   polygamous   'orientation,'   have   been   'singled   out'   by   these   provisions   for   much   more   severe   treatment   than   merely   denial   of   favored   status...   The   Court's   Disposition   today   suggests   that     these   provisions   are   unconstitutional;   and   that   polygamy   must   be   permitted   in   these   States...   --unless,   of   course,   polygamists   for   some   reason   have   fewer   constitutional   rights   than   homosexuals."

Justice   Scalia   elaborated   that   Idaho's   State   Constitution   had   gone   so   far   in   "targeting   polygamists"     as   to   disenfranchise   any   polygamist   ---or   even   a   mere   vocal   polygamy   advocate---   from   being   allowed   to   vote.

Scalia   concluded,   "It   remains   to   be   seen   how   (that)   was   not   an   'impermissible   targeting'   of   polygamists,   but   the   much   more   mild   Amendment   2   is   an   'impermissible   targeting'   of   homosexuals."

Enter   the   Lawrence   v.   Texas   case   in   2003.    


On   June   26,   2003,   the   Court's   6-3   majority   overturned   the   Texas   anti-sodomy   law   on   the   basis   of   freely-   consenting   adults   having   a   "right   to   privacy."   This   reversed   a   previous   Supreme   Court   decision,   Bowers   v.   Hardwick   (1986).

Not   only   did   Lawrence   v.   Texas   give   polygamists   this   "right   to   privacy"   precedent,   but   it   was   actually   U.S.   Justice   Scalia   himself,   again,   who   would   specifically   write   the   Dissent   to   which   polygamists   could   point   in   advancing   pro-polygamy   arguments.

Scalia   disagreed   with   the   majority's   decision   of   reversing   Bowers   v.   Hardwick.

In   his   Dissent,   Justice   Scalia   wrote,   "State   laws   against   bigamy,   same-sex   marriage,   adult   incest,   prostitution,   masturbation,   adultery,   fornication,   bestiality,   and   obscenity   are   likewise   sustainable   only   in   light   of   Bowers'   validation   of   laws   based   on   moral   choices.   Every   single   one   of   these   laws   is   called   into   question   by   today's   decision;   the   Court   makes   no   effort   to   cabin   the   scope   of   its   decision   to   exclude   them   from   its   holding."

Scalia   noted   that   Bowers   v.   Hardwick   determined   that   States   did   have   an   interest   to   self-determine   what   forms   of   sexual   behavior   are   "immoral   and   unacceptable."     Scalia   stated   that   that   was   the   "same   interest   furthered   by   criminal   laws   against   fornication,   bigamy,   adultery,   adult   incest,   bestiality,   and   obscenity.   Bowers   held   that   this   was   a   legitimate   state   interest.

"The   Court   today   reaches   the   opposite   conclusion,"     Scalia   continued.     This   Court   now   says   that   the   "Texas   (anti-sodomy)   statute...   'furthers   no   legitimate   state   interest   which   can   justify   its   intrusion   into   the   personal   and   private   life   of   the   individual.'"

"The   Court   embraces   instead   Justice   Stevens'   declaration   in   his   Bowers   dissent,   that   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.'"

"This   effectively   decrees   the   end   of   all   morals   legislation,"   Scalia   declared.

Laws   which   "impermissably   target"   or   violate   the   "right   to   privacy"   of   adult,   freely-consenting   polygamists   have   been   made   unconstitutional.  


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