B
beckers
Guest
Well if you have a chance i would suggest reading the dissent of State v Holms out of Utah in 2006 137 P.3d 726 (Utah 2006)
Background of the case :
*In this case, we are asked to determine whether Rodney Hans Holm was appropriately convicted for bigamy and unlawful sexual conduct with a minor. Specifically, we are asked to determine whether Holm’s behavior violated Utah’s bigamy statute and whether that statute is *constitutional.
***The dissent is especially interesting ***
***The majority also offers the view that “[t]he state must be able to … further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful.” The Supreme Court in **Lawrence, however, rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship. Striking down Texas’s criminal sodomy statute as unconstitutional, the Court in *Lawrence recognized that the Fourteenth Amendment’s individual liberty guarantee “gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” 539 U.S. at 572. As described in Lawrence, this protection encompasses not merely the consensual act of sex itself but the “autonomy of the person” in making choices “relating to … family relationships.” Id. at 574. The sodomy statute was thus held unconstitutional because it sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. at 567.
*I agree with the majority that marriage, when understood as a legal union, qualifies as “an 100 institution the law protects.” See id. at 568. However, the Court=s statement in *Lawrence that a state may interfere when such an institution is “abuse[d],” id., together with its holding that the sodomy statute was unconstitutional, leads me to infer that, in the Court’s view, sexual acts between consenting adults and the private personal relationships within which these acts occur, do not “abuse” the institution of marriage simply because they take place outside its confines. In the wake of Lawrence, the Virginia Supreme Court has come to the same conclusion, striking down its state law criminalizing fornication. Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367, 371 (2005). In my opinion, these holdings correctly recognize that individuals in today’s society may make varied choices regarding the organization of their family and personal relationships without fearing criminal punishment.
The majority does not adequately explain how the institution of marriage is abused or state support for monogamy threatened simply by an individual’s choice to participate in a religious ritual with more than one person outside the confines of legal marriage. Rather than offering such an explanation, the majority merely proclaims that “the public nature of polygamists attempts to extralegally redefine the acceptable parameters of a fundamental social institution like marriage is plain.” It is far from plain to me.
Here is the amicus brief filed by the ACLU for Holms sspa.boisestate.edu/politicalscience/files/2010/06/EmailSampleAmicusbrief.pdf
Starting on page 13: (the law is the cirminal bigamy statute)
The first question then is: Is this law based on protecting society? Or is it based on
“somebody’s” concept of morality? In Justice Kennedy’s majority opinion in *Lawrence v. Texas *he stated that: “The obligation of the United States Supreme Court is to define the liberty of all, not to mandate its own moral code” (4). So therefore it is clear that if this law is not based on protecting “society”, but instead based on the advancement a single set of opinions on the nature of morality, which in effect is the equivalent to religion, then it cannot be considered a legitimate law, see *Lemon v. Kurtzman *(5). To answer this question we will need further examination, which is provided in the later sections.
Background of the case :
*In this case, we are asked to determine whether Rodney Hans Holm was appropriately convicted for bigamy and unlawful sexual conduct with a minor. Specifically, we are asked to determine whether Holm’s behavior violated Utah’s bigamy statute and whether that statute is *constitutional.
***The dissent is especially interesting ***
***The majority also offers the view that “[t]he state must be able to … further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful.” The Supreme Court in **Lawrence, however, rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship. Striking down Texas’s criminal sodomy statute as unconstitutional, the Court in *Lawrence recognized that the Fourteenth Amendment’s individual liberty guarantee “gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” 539 U.S. at 572. As described in Lawrence, this protection encompasses not merely the consensual act of sex itself but the “autonomy of the person” in making choices “relating to … family relationships.” Id. at 574. The sodomy statute was thus held unconstitutional because it sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. at 567.
*I agree with the majority that marriage, when understood as a legal union, qualifies as “an 100 institution the law protects.” See id. at 568. However, the Court=s statement in *Lawrence that a state may interfere when such an institution is “abuse[d],” id., together with its holding that the sodomy statute was unconstitutional, leads me to infer that, in the Court’s view, sexual acts between consenting adults and the private personal relationships within which these acts occur, do not “abuse” the institution of marriage simply because they take place outside its confines. In the wake of Lawrence, the Virginia Supreme Court has come to the same conclusion, striking down its state law criminalizing fornication. Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367, 371 (2005). In my opinion, these holdings correctly recognize that individuals in today’s society may make varied choices regarding the organization of their family and personal relationships without fearing criminal punishment.
The majority does not adequately explain how the institution of marriage is abused or state support for monogamy threatened simply by an individual’s choice to participate in a religious ritual with more than one person outside the confines of legal marriage. Rather than offering such an explanation, the majority merely proclaims that “the public nature of polygamists attempts to extralegally redefine the acceptable parameters of a fundamental social institution like marriage is plain.” It is far from plain to me.
Here is the amicus brief filed by the ACLU for Holms sspa.boisestate.edu/politicalscience/files/2010/06/EmailSampleAmicusbrief.pdf
Starting on page 13: (the law is the cirminal bigamy statute)
The first question then is: Is this law based on protecting society? Or is it based on
“somebody’s” concept of morality? In Justice Kennedy’s majority opinion in *Lawrence v. Texas *he stated that: “The obligation of the United States Supreme Court is to define the liberty of all, not to mandate its own moral code” (4). So therefore it is clear that if this law is not based on protecting “society”, but instead based on the advancement a single set of opinions on the nature of morality, which in effect is the equivalent to religion, then it cannot be considered a legitimate law, see *Lemon v. Kurtzman *(5). To answer this question we will need further examination, which is provided in the later sections.