Feb 13, 2004  |  By: LOU CHIBBARO JR.  | COMMENTS     

SALT LAKE CITY — A lawsuit filed here on Jan. 12 cites the U.S. Supreme Court’s ruling last year overturning state sodomy laws as grounds for striking down Utah’s ban against polygamy.

A heterosexual married couple filed the lawsuit in U.S. District Court in Salt Lake City after clerks in Salt Lake County denied the couple’s request for a license to enter into a three-person “plural” marriage with another woman.

It represents the kind of spin-off case from the Supreme Court’s sodomy ruling that conservative Justice Antonin Scalia warned about in his strongly worded dissenting opinion in the sodomy decision, known as Lawrence vs. Texas.

Scalia called the majority ruling in the Lawrence — that morality alone cannot justify laws criminalizing relationships between consenting adults — a misinterpretation of the U.S. Constitution. Echoing controversial comments made earlier in the summer by Sen. Rick Santorum (R-Pa.), Scalia predicted the Lawrence ruling would bring about a series of court challenges to state laws that currently ban “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”

Two gay rights attorneys said the Lawrence decision would have little or no legal impact on the Utah polygamy lawsuit, and the lawsuit would not be a significant factor in harming efforts to legalize gay marriage.

Opposites unite against polygamy
Gerald Jensen, Utah’s assistant attorney general, agreed, indicating that gay rights advocates and Utah’s conservative, often anti-gay state government may be on the same side in the polygamy case.

But a law professor with Brigham Young University said the U.S. Supreme Court might eventually accept the case on appeal — possibly before a gay marriage case reaches the high court. Such a scenario would likely add fuel to efforts by gay rights opponents to pass a federal constitutional amendment banning gay marriage.

Jensen called such a scenario highly unlikely.

“I think any linkage is extremely stretched,” he said, in discussing the Utah polygamy case and the Lawrence decision. “The Utah law characterizes polygamy as a legal relationship. It’s the state’s ability to regulate marriage. I don’t think Lawrence goes as far as to say that homosexuals can marry. That may be the next step, but Lawrence doesn’t say it.”

Jensen predicted the plaintiffs in the polygamy suit would likely lose in the federal trial court and intermediate appeals court and petition the U.S. Supreme Court to take the case. He said he was almost certain the Supreme Court would refuse to hear the case, allowing an expected lower court ruling dismissing the case to stand.

Matt Coles, executive director of the ACLU’s Lesbian & Gay Rights Project, said that, unlike same-sex marriage, polygamy often involves underage women in cases where abuse against minors occurs.

“You have relationships that we regard, on some level, as abusive, and the state is banning polygamy in order to protect against that,” Coles said. “That’s a whole state interest and a series of arguments that don’t seem to me to share much of anything with gay marriage cases or with Lawrence,” he said.

Jensen concurred, saying Utah authorities usually initiate prosecutions against persons involved in polygamous living arrangements after learning of sexual relations between adult men and underage girls.

Susan Sommers, supervising attorney for the gay litigation group Lambda Legal Defense & Education Fund, said same-sex marriage involves a union between two people, which doesn’t alter the “structure” of the nation’s marriage laws. Polygamy, Sommers said, would present a radical departure from the institution of marriage as a “binary unit for two people.”

“It’s really distinct from what is being sought by same-sex couples — to be a part of an existing institution that carries every bit as much importance for same-sex partners as their heterosexual neighbors,” Sommers said.

Richard Wilkins, a professor with Brigham Young University’s School of Law, strongly disputes this assessment. He said the sweeping Lawrence ruling — if adhered to consistently in other cases — would most likely lead to the eventual overturning of state laws banning both same-sex marriage and polygamy.

“I think gay rights activists now are afraid of reading Lawrence too openly because it not only gets you same-sex marriage, it gets you polygamy,” Wilkins told the Blade in a phone interview. “And if Americans know that you get everything on that train, they may not want to go on board.”

First Massachusetts, then Utah?
Wilkins noted that the Massachusetts Supreme Judicial Court cited the Lawrence decision in its ruling last year declaring that the state’s law banning same-sex marriage violates the Massachusetts Constitution. Last week, the Massachusetts high court issued a follow-up ruling saying civil ...