Member of Parliament Briefing Note
BRONSON VERSUS SWENSON COURT CASE ISSUE: The legal challenge entitled Bronson versus Swenson, which is arguing that the ban against polygamy is unconstitutional, is working its way through the American court system. KEY MESSAGES: The case, Bronson v. Swensen, was dismissed by a federal court but is being appealed. The lawyer for the defendant, Salt Lake City lawyer Brian Barnard, is arguing that anti-polygamy laws are unconstitutional. The legal action seeks to overturn an 1879 decision by the U.S. Supreme Court, Reynolds v. United States that upheld Utah's ban on polygamy. Other polygamists are hoping the case will go to the U.S. Supreme Court, where it was last heard well over a century ago. Mary Batchelor, executive director of Principle Voices said, "It's time for it to be readdressed. We live in a society of family arrangements that simply are, no matter how people want to define them. They are not labeled criminal and we don't believe our family arrangements should be labeled criminal either." CURRENT STATUS: On Monday, 25 September 2006, a three-judge panel in the 10th US Circuit Court of Appeals in Denver decided to hear the pleas of three people suing for the right of the husband to legally marry a second wife, and accepted their attorney’s written arguments. In his written brief presented on 25 September 2006, Attorney Brian Barnard argued that: o The Supreme Court found no compelling state interest in criminalizing homosexual sodomy based on a long history of states and/or a majority of society finding the practice immoral. Similarly, the state of Utah can offer no compelling justification for criminalizing polygamy. o Utah's anti-polygamy laws violate his clients' constitutionally protected freedom of religion rights. Court papers he filed with the 10th Circuit also cite the controversial U.S. Supreme Court decision of Lawrence vs. Texas, which decriminalized gay sex.
Date Prepared: 24 November 2006
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Member of Parliament Briefing Note
o Lawrence' is the most recent in a line of Supreme Court cases that have increasingly cordoned off from state invasion a realm of individual privacy grounded in the First Amendment and protected as a Fourteenth Amendment 'liberty' interest. o Utah's anti-polygamy laws stigmatize the Cooks and Bronson as criminals because of their religious-based choice of marriage. o Although polygamy is not accepted by the majority of society, that is insufficient to ban it and make believers into criminals. BACKGROUND: On Dec. 22, 2003, six months after the high court issued its 6-3 ruling in June 2003 in the Lawrence v. Texas case, G. Lee Cook, his wife (D. Cook), and a woman (J. Bronson) who wished to join their marriage as a second wife, sought a marriage license at the clerk's office in Salt Lake County, Utah. G. Lee Cook wrote on the application that he already was married and told clerks that he wanted to legally marry a second wife. The state law prohibits a man from marrying a second wife. As a result, the clerks refused to issue the license and refunded the $50 fee. The three - who are all more than 50 years old - filed suit in federal court against the clerks claiming that their constitutional rights to religious expression, privacy and intimate expression had been violated. They said their preferred form of marriage also should be allowed. In February 2005, U.S. District Judge Ted Stewart: o rejected the argument that the prohibition on polygamy is an unconstitutional violation of religious and privacy rights and ruled that the state has an interest in protecting monogamous marriage. o Stewart also ruled that even the 2003 opinion in Lawrence v. Texas over the sodomy law did not grant a right to plural marriage, noting that the laws against bigamy and polygamy do not preclude private sexual conduct. They then asked the 10th U.S. Circuit Court of Appeals to reverse the federal judge's rejection of their challenge to state prohibitions against bigamy and polygamy. In November 2005, Brian Barnard, lawyer for the defendant, filed a brief with the Denver-based appeals court. Barnard argued that a 2003 U.S. Supreme Court decision striking down a Texas law that prohibited sexual conduct between same-sex couples "provides individuals with protection from state intrusion as to intimate relationships." In addition, Barnard argues that under Utah law:
Date Prepared: 24 November 2006
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Member of Parliament Briefing Note
o Married people living in a sexual relationship with someone who is not their spouse is guilty of bigamy; deceit or a second marriage ceremony are not required elements of the crime. o Although that provision makes it illegal for a married man to live with a girlfriend before his divorce is final, the law has been used to target polygamists. o There is no compelling governmental interest that makes the prohibition against religious polygamy constitutional. o The state does not regulate exploitative relationships between other couples, and if there were a compelling reason to promote responsible procreation, Utah would step into all family situations. o There are no sanctions against an unwed mother who rears children alone, and there is no statute barring parents from divorcing and raising their children in separate households. o The state does not restrict nor ban 'serial polygamists,' individuals who repeatedly marry, conceive children and divorce a series of spouses. o The state law prohibits a man from marrying a second wife, then states that "if a married man chooses to live with a woman to whom he's not married, he's guilty of a crime. That's comparable to Lawrence v. Texas, where the U.S. Supreme Court said you can't outlaw a sexual relationship between consenting homosexual adults," Barnard stated. Barnard also argues: "If you start at one end of the spectrum, with one man and one woman creating children, the furthest away from that is two people of the same gender who cannot procreate. A polygamist situation is closer to the 'traditional family' because it's two parties of the opposite gender for the purpose of, with the capability of, procreation of children." The case, Bronson v. Swensen, was slated to be argued before the 10th U.S. Circuit Court of Appeals in late 2006.
Source documents: “Legal challenge: Salt Lake City lawyer Brian Barnard says the ban is unconstitutional” by Pamela Manson The Salt Lake Tribune 27 November 2005 http://209.157.64.201/focus/f-news/1530218/posts “Court Of Appeals Accepts Polygamists Suit” by Megan Shannon All Headline News September 26, 2006 http://www.polygamy.com/articles/templates/?a=245 “Trio asks 10th Circuit to overturn longtime Utah ban on the practice” by Ben Winslow Deseret Morning News, Monday, September 25, 2006 http://deseretnews.com/dn/view/0,1249,650193578,00.html
Date Prepared: 24 November 2006
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Member of Parliament Briefing Note “Polygamy Is 'Next Civil Rights Battle,' Activists Say” by Randy Hall Staff Writer/Editor, CNSNews.com, March 16, 2006 http://www.cnsnews.com/ViewCulture.asp?Page=%5CCulture%5Carchive%5C200603%5CCUL20060316 a.html
Date Prepared: 24 November 2006
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