Saturday, January 31, 2004

SALT LAKE CITY (AP) — When the U.S. Supreme Court struck down Texas’ law against sodomy last year, at least one justice foresaw the likes of Brian Barnard.

Justice Antonin Scalia warned that the ruling would unleash a wave of challenges to state laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

Sure enough, Mr. Barnard, a civil rights attorney, has brought a lawsuit challenging Utah’s ban on polygamy. And some legal experts said the case could have a fighting chance because of the Supreme Court’s homosexual-sex ruling.

The federal lawsuit, filed Jan. 12, involves a married couple, identified only as G. Lee Cook and D. Cook, and a woman, J. Bronson, who wanted to enter into a plural marriage but were denied a marriage license by Salt Lake County clerks.

Citing the high court’s decision last June in Lawrence v. Texas, the lawsuit asserts that the county violated the plaintiffs’ right to privacy with regard to intimate matters and trampled on their First Amendment right to religious freedom.

Mr. Barnard has not disclosed his clients’ faith, except to say that polygamy is a “sincere and deeply held religious major tenet.” Utah’s constitution bans polygamy, and a 113-year-old Supreme Court ruling holds that the First Amendment does not protect the practice.

Polygamy was part of the early beliefs of the Mormon Church but was abandoned in 1890 as the Utah territory sought statehood. The church now excommunicates members who practice it and has worked to distance itself from the estimated 30,000 polygamists across the West who say they are following fundamental Mormon doctrine.

Utah Attorney General Mark Shurtleff filed a friend-of-the-court brief in the Lawrence case arguing that overturning the Texas law would open the door to challenges of Utah’s polygamy ban.

Mr. Shurtleff said he believes Mr. Barnard’s case is headed for the Supreme Court, and predicted the justices would uphold the polygamy ban.

“We have a long line of cases saying that the institute of marriage is the bedrock of society. Therefore, states have a compelling interest in regulating and controlling marriage,” he said.

But at least one legal expert said the Lawrence case logic leads to the legalization of polygamy, because the high court held that morality is not a strong enough justification for a state to ban a practice deemed unpopular or immoral by the majority.

Others say Mr. Barnard will have a hard time taking the court’s reasoning from the bedroom and applying it to marriage. The Lawrence case involved private behavior: Two homosexual men were arrested after police entered their apartment and found them having sex.

“It’s possible to take the concept of private and intimate relationships and extend it to marriages, but we’re not there yet,” said Wayne McCormack, a law professor at the University of Utah.

The state could try to justify the ban on polygamy by citing the messiness of configuring property rights and benefits between multiple spouses, Mr. McCormack said.

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