Posted on 08/06/2008 5:17:47 PM PDT by Alice in Wonderland
Arizonans have no religious right to practice polygamy — at least not with minors — the state Court of Appeals ruled Tuesday.
The judges rejected arguments by a member of the Fundamentalist Church of Latter Day Saints that he was legally entitled to have sex with a 16-year-old girl because she was his "celestial wife'' as recognized by his religion. Judge Donn Kessler, writing for the unanimous court, said while the right of individuals to believe whatever they want is absolute, the right to act on it is not.
Tuesday's decision in the case of Kelly Fischer is not likely to be the end of the legal fight. Attorney David Goldberg said he eventually expects the issue to have to be decided by the U.S. Supreme Court.
Goldberg acknowledged that the nation's high court has ruled there is no right to polygamy. But he noted that decision came in 1878.
He said the Supreme Court, in various more recent rulings, has refused to use morality as a basis of deciding constitutional rights. As proof, he cited the 2002 decision striking down a Texas anti-sodomy law.
And Goldberg said he believes the Supreme Court, if presented with this issue, will make a similar ruling.
But Goldberg may have a problem not present in that Texas case, where the participants were both adults. In this case, the victim of the offense was just 17 when she gave birth in 2001 and listed Fischer, then 33, as the father on the birth certificate.
Fischer was one of several men arrested in 2005 in connection with investigations by Arizona and Utah officials of adult men having sex with girls who are minors.
The victim refused to testify at the trial. Instead, prosecutors relied on the birth certificate as well as testimony of how the FLDS church practices polygamy.
Fischer was convicted of one charge of sexual conduct with a minor and a second of conspiracy to commit sexual conduct with a minor. There was no law on the books at that time about polygamy with minors. And while the state constitution makes polygamy illegal, those who practice it — at least among adults — violate no state laws.
But Fischer's legal arguments turn on the question of polygamy — and his claimed right to be able to have sex with one of his wives.
Kessler pointed out that defense is available only to those legally married to the victim. In this case, he said, Fischer already had a wife recognized under state law; the victim was "married'' to Fischer only in the eyes of the church, a marriage not recognized by Arizona law.
But the real key, said Kessler, is that 1878 U.S. Supreme Court decision. In that case, the justices said allowing individuals to decide that their religious beliefs trump statute would, "in effect ... permit every citizen to become a law unto himself.''
Goldberg said that ruling is ripe for being overturned.
"It was not a First Amendment decision so much as it was a political decision that you hold (the promise of) statehood over the state of Utah and other places,'' he said. Goldberg said he believes the current Supreme Court might reach a different conclusion when examining the case strictly from the perspective of the constitutional right of individuals of free exercise of their religion.
He specifically cited a 1993 U.S. Supreme Court ruling where the justices threw out an ordinance from Hialeah, Fla., which prohibited the ritual killing of animals. The high court overturned the law, saying it was aimed solely at restricting the practice of Santeria while not addressing questions of how animals are killed in other religious or secular contexts.
But Kessler said that case is different.
"The Arizona Constitution's provision prohibits the recognition of polygamy or plural marriage by the state under all circumstances without exception,'' Kessler wrote. He even cited research showing that the concept of plural marriages has been acceptable historically or even currently, including Christianity, Judaism, Islam and Hinduism.
He said the fact that members of FLDS suffer an adverse impact from that prohibition is not the same as targeting that religion.
And Kessler said this case is different than that Texas sodomy law where the U.S. Supreme Court concluded the statute "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.''
For one, he said, the nation's high court pointed out that the conduct Texas laws prohibited did not involve minors and did not involve "public conduct.'' Kessler said it has long been recognized that the state has a legitimate interest in protecting children from potential harm.
"Minors need protection because they are deemed too unsophisticated to protect themselves or to consent to sexual activity,'' he wrote. "Given this strong interest of the state in protecting minors, the state may constitutionally prohibit sexual conduct with minors, regardless of any 'consent' by the minor to such activity.''
This sick cult should be rounded up.
What mystifies me is why that particular case doesn’t violate child labor laws.
You can work a paying job at 14 or 15 - my first hired job was as a dishwasher when I was 15 1/2.
Yes. But not in all fields.
Like heavy construction, or nude dancing.
(well, strike the last)
It amazes how easily the FLDS can transition from, "We don't practice underage marriages." to "We will no longer condone underage marriages." AND from, "I don't have sex with underage girls" to "I am legally entitled to have sex with my underage wife." They are so hypocritical.
They can dress in a suit but that doesn't change the fact they are perverted criminals. Kinda like most CEOs.
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