CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 3, 2005

Utah Judge Has Three Wives

I have always been troubled by the criminalization of plural marriage (among consenting adults), as a religious, rather than civil, legal, institution.  Doesn't the free exercise clause allow individuals to go through whatever religious rituals they like with whomever they like? So the law could criminalize being a party to more than one civil, legal marriage at the same time, but how can the state can criminalize a particular set of religious rituals that do not purport to have legal consequences?  If a whole religious community, for example, had a sacrament called "community marriage" could that ceremony in and of itself be criminalized?  After Lawrence v. Texas, non-marital sex in and of itself cannot be criminalized, although I suppose adultery can still be prohibited. But if this judge engaged in religious but not civil ceremonies with three different people, with all parties having no intent to create legal consequences (i.e., none of them intending to be legally married, just married in the eyes of their church), I vote that the free exercize clause allows him to do to.  Story here.  [Jack Chin]

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