Arizona Appellate Court rejects FLDS member’s challenge to polygamy ban
The Religion Clause Blog reports that criminal charges arose from “defendant Kelly Fischer’s polygamous relationship with J.S., a minor with whom he had entered into a ‘celestial marriage’”.
Arizona law permits sex between legal spouses even if one of them is a minor. The court rejected the defendant’s argument that restriction of his ability to raise the spousal defense for underage sex is unconstitutional. Specifically, the defendant 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.”
In the ruling, State of Arizona v. Fischer, No. 06-0682 (AZ Ct. App., Aug. 5, 2008), the court observed :
The United States Supreme Court has declined to extend the protection of the Free Exercise Clause of the First Amendment to the practice of polygamy. In Reynolds v. United States, 98 U.S. 145 (1878), the Court upheld the federal bigamy conviction of a member of the Church of Jesus Christ of Latter-Day Saints for practicing polygamy in accord with religious beliefs . . .
While conceding that Reynolds has never been explicitly overruled, Defendant argues it should not be binding because it cannot withstand modern constitutional analysis. It is true that Reynolds was decided more than a century ago, nevertheless, despite subsequent decisions modifying the strict belief/conduct distinction adopted in Reynolds, “the underlying reasoning of Reynolds remains valid.” Barlow v. Blackburn, 165 Ariz. 351, 356, 798 P.2d 1360, 1365 (App. 1990). The Supreme Court has not moved away from its holding on the issue of polygamy, and the Court has continued to refer to Reynolds approvingly for the proposition that plural marriages have no claim to First Amendment protection . . .