On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.

Lawyers for FLDS children profiled in ABA Journal

This month's ABA Journal has a fascinating feature on the Texas FLDS custody debacle this past spring, and the volunteer lawyers who represented the more than 450 children removed by the State of Texas. One of those lawyers is Susan L. Hays, who founded an organization (Jane's Due Process) that helps Texas teens obtain abortions. Hays describes how the experience challenged her expectations about FLDS women.

The article's penultimate paragraph quotes another lawyer with a sentiment one rarely hears when Mormon fundamentalism and polygamy come up:

“The problem is not really polygamy; the problem is the belief that women and children are unilaterally the property of the priesthood, and they raise the girls from the cradle to grow up and be mothers and plural wives. It’s all the girls have ever known.”

Hardly anyone ever considers these things separately, of course; in upholding Utah's criminal polygamy law, the state's high court said the law was justified because of the crimes against women and children associated with polygamy.

S.Ct. denies cert. in polygamy case

The U.S. Supreme Court denied certiorari yesterday in Holm v. Utah, the appeal of a heretic Mormon polygamist whose polygamy conviction was upheld by the state's highest court. This continues the Supreme Court's consistent refusal to hear any cases concerning the scope of Lawrence v. Texas.

In one sense this is a pity, because the unique "bigamy" statute in Utah -- which actually criminalizes nothing more than cohabitation with a person other than one's spouse -- presents an issue that may be closer to the one in Lawrence than in other post-Lawrence cases it has refused to hear. (The major difference being the state's asserted interest in addressing separate crimes believed to be correlated with polygamy -- also an issue of considerable interest.) Yet denial in this particular case makes perfect sense, because the involvement of a sixteen-year-old in Holm means that the issue of the rights of consenting adults is not squarely presented.

However you feel about the polygamist sects of the American West, or about Utah's law, one may hope that a case comes up that does squarely present this issue, so that maybe we can finally have some guidance on Lawrence.