Polygamy Suit Raises Religion Rights
By Matthew Heller

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Are polygamists on the same legal footing as Santeria followers who sacrifice animals?

The answer to that question could determine the outcome of a suit filed this week that would decriminalize polygamy in Utah. The three plaintiffs brought the federal court complaint after a court clerk refused to grant them a license to enter into a plural marriage. Bronson v. Swensen, 02:04-CV-0021.

The suit seeks to overturn the ancient precedent of Reynolds v. U.S., 98 U.S. 145 (1879), which upheld a federal criminal bigamy statute in the face of a religious freedom challenge from a Mormon.

Much of the publicity about Bronson has focused on whether the U.S. Supreme Court's recent invalidation of anti-sodomy laws could trump Reynolds. The complaint cites Lawrence v. Texas in claiming that the plaintiffs' privacy rights were violated.

But the plaintiffs also will focus on a religious freedom claim. They profess a "sincere and deeply held" belief that polygamy is divinely ordained.

"We have a strong argument besides Lawrence," says their attorney, Brian M. Barnard of Salt Lake City.

Barnard notes that courts now analyze laws affecting religious practice rather differently than in the days of Reynolds. Under the strict scrutiny standard of review, such laws are invalid absent a "compelling state interest."

Applying that standard in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court ruled that an ordinance banning animal sacrifice violated the freedom of Santerians to practice their religion.

"Hialeah is one of the strongest recent cases that has this kind of analysis," says Barnard, who expects Bronson to go all the way to the high court.

So, what's good for Santerians is good for polygamists? That may be a stretch -- after all, Hialeah did not implicate such basic "interests" as monogamous marriage. But Barnard has a vision rather like that of the same-sex marriage advocates:

Courts are hopefully not going to allow an Ozzie-and-Harriet description of the family to be the basis for restricting people's rights.

1/15/04