LEAVE THE CHILD
RAPISTS ALONE!!
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 is surely an interesting development.
LEAVE THE CHILD
RAPISTS ALONE!!
Pretty twisted.
Using “religion” to exploit young girls.
They will have much to answer for one day....
Poor young girls - I pray they find healing.
interesting...
It is interesting. Thanks for the ping!
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
Who cares about the FIRST words of the FIRST amendment to the highest law in the land? Sickening.
Fischer argued that he was entitled to have sex with a minor child because she was his spouse from a “celestial marriage,” a union that should be recognized by the state.
The girl was the daughter of one of his wives and had given birth to his child in 2001 when she was 17 years old.
The Appeals Court rejected that argument, saying, that under the Arizona Constitution, “Polygamous or plural marriages, or polygamous cohabitation, are forever prohibited within this state.” It also said that the Arizona Constitution “prohibits the recognition of polygamy or plural marriage by the state under all circumstances without exception.”
The court also held that Arizona law prohibits having sex with a minor, even with the minor’s consent. It rejected Fischer’s claim that he was married to the minor, saying that, “A marriage contracted in Arizona is not valid in the absence of a marriage license.”
You have a problem with that?
This is a state court upholding a state law. Try again.
Gee, maybe we should just let people keep slaves, commit honor killings, torture their kids, and perform human sacrifices.
ZOT!
Try reading the 14th Amendment.
At one time it was against "State law" for blacks to vote.
You don't really want to go down that road.
L
You really don’t want to go down the road you are standing on, friend. Banning polygamy and outlawing sex with underage girls are universal in this country now.
That would be a very, very good thing.
Conservatives warned that these sorts of arguments would be made, and believe it or not it's a crap shoot if this creeps case ever gets before SCOTUS.
L
Why, thank you. :)
Enslaving an adult is wrong from a libertarian point of view. Prohibiting a sick cult from raping underage girls is not.
At one time it was 'universal' that blacks couldn't vote.
At one time it was 'universal' that one person could own another.
I'm not saying I agree with this creeps arguments. He's earned the rest of his life under the prison as far as I'm concerned.
What I'm telling you is that we're one SCOTUS vote away from all those laws you speak of being voted down.
Think about that...
L
I refer you to Justice Ginsbergs well known writings on the 'age of consent' laws.
L
The First was unique in that it mentioned a specific restraint on Congress. At the time of the Founders, individual states could have their own official religions. So the poster's statement was irrelevant. This was not a freedom of religion issue. As a British officer once noted regarding suttee, it might be your culture to burn a widow. But it is our culture to hang those who do such.
This is a similar matter.
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