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Arizona Court Rejects FLDS Member's Constitutional Challenge To Polygamy Ban

By Howard M. Friedman

In State of Arizona v. Fischer, (AZ Ct. App., Aug. 5, 2008), an Arizona state appellate court rejected free exercise and substantive due process defenses raised by a member of the FLDS Church who was convicted of engaging in sexual conduct with a minor and conspiracy. The charges grew out of defendant Kelly Fischer's polygamous relationship with J.S., a minor with whom he had entered into a "celestial marriage". Under Arizona law, it is a defense to a charge of sexual conduct with a minor that the minor was the "spouse" of the person charged. Fischer argued that if he had been able to enter into a legal plural marriage with J.S., he could have asserted the "spouse" defense.

More specifically, Kelly 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. The court rejected Kelly's free exercise challenge, finding that the polygamy ban was a neutral law of general application, and not a law that targets the FLDS Church's practice of polygamy. The court also concluded that the U.S. Supreme Court's 1878 decision in Reynolds v. United States, upholding a ban on polygamy, remains good law.

The court additionally rejected Kelly's attempted reliance on the U.S. Supreme Court's 2003 decision in Lawrence v. Texas which focused on substantive due process protection of intimate sexual relationships. The Arizona court said that language in the Lawrence decision specifically limited its holding to sexual activity between consenting adults. Yesterday's Sierra Vista (AZ) Herald reported on the decision.

Full post as published by Religion Clause on August 07, 2008 (boomark / email).