In State of Arizona v. Fischer, (AZ Ct. App., Aug. 5, 2008), an Arizona state appellate court rejected free exercise and substantive due process defenses raised by a member of the FLDS Church who was convicted of engaging in sexual conduct with a minor and conspiracy. The charges grew out of defendant Kelly Fischer's polygamous relationship with J.S., a minor with whom he had entered into a "celestial marriage". Under Arizona law, it is a defense to a charge of sexual conduct with a minor that the minor was the "spouse" of the person charged. Fischer argued that if he had been able to enter into a legal plural marriage with J.S., he could have asserted the "spouse" defense.
More specifically, Kelly argued that the provision in Art. 20, Sec. 2 of the Arizona Constitution that prohibits polygamy or plural marriage violates his 1st and 14th Amendment rights. The court rejected Kelly's free exercise challenge, finding that the polygamy ban was a neutral law of general application, and not a law that targets the FLDS Church's practice of polygamy. The court also concluded that the U.S. Supreme Court's 1878 decision in Reynolds v. United States, upholding a ban on polygamy, remains good law.
The court additionally rejected Kelly's attempted reliance on the U.S. Supreme Court's 2003 decision in Lawrence v. Texas which focused on substantive due process protection of intimate sexual relationships. The Arizona court said that language in the Lawrence decision specifically limited its holding to sexual activity between consenting adults. Yesterday's Sierra Vista (AZ) Herald reported on the decision.
Thursday, August 07, 2008
Arizona Court Rejects FLDS Member's Constitutional Challenge To Polygamy Ban
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Fishers attorney Goldberg said that Reynolds v. United States is "ripe for being overturned."
"It was not a First Amendment decision so much as it was a political decision that you hold (the promise of) statehood over the state of Utah and other places,' he said. Goldberg said he believes the current Supreme Court might reach a different conclusion when examining the case strictly from the perspective of the constitutional right of individuals of free exercise of their religion."
This Supreme Court rejecting a politically expedient decision in favor of individual rights? Earth to Goldberg, we're talking about Thomas, Scalia, Alito, Kennedy and Roberts. Civil liberty and a dollar will get you a cup of coffee.
Legal polygamy isn't likely from this case, no matter how presented. We have a pervert who wants sex with a minor. That's sick regardless of his alleged motivation.
Polygamy doesn't follow from legal marriage equality for same-sex couples because polygamy has always been abusive/degrading to women, and there is no reason to think a modern revamping of polygamy would turn it into an institution of equals.
This is not true.
Some women in any type of marriage are not treated as equals. This statement is bizzare--''polygamy has always been abusive/degrading to women.'' I am not aware that this
is anywhere the case. I'm flabbergasted that anyone would present this as dogma without considerable study
and polling.
It may feel degrading to women
who borrow their
self esteem from
the fashion industry, and who
farm work degrading.
I don't know what to say about this.
It's just unfounded.
"The court also concluded that the U.S. Supreme Court's 1878 decision in Reynolds v. United States, upholding a ban on polygamy, remains good law."
The arguments made in that case are absurd. Such as "Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?" And they affirmed the quaint words of the prosecutor: "You should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children -- innocent in a sense even beyond the degree of the innocence of childhood itself."
How can this possibly be good law?
"...polygamy has always been abusive/degrading to women..."
Really?
I know some women in a polygamous/polyamorous relationship, and they do not consider themselves to be degraded or abused. They would be highly amused that anyone would assume so. Then they would be angry that no one bothered to ask them!
Each instance needs to be taken on its own merits. Among consenting adults, the choice should always be up to the participants. No one outside the relationship should be allowed any say in the matter.
As far as I am concerned the FLDS in arizona should be disbanded like they did to waco texas, as a catholic; incest, abuse, and marriage to more the one person and marriage between family members is evil in the eyes of god. It is also evil to hit your newborn to make it stop crying babies cry get over it.
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