Utah’s 1st and 14th Amendment Problem

I, personally, find the domestic arrangement of Sister Wives creepy at best. But prosecuting someone with one marriage license under a statute that forbids “cohabitation” seems like a straightforward violation of the 1st and 14th Amendments to me:

Defending the statute, the state of Utah made an argument essentially similar to the argument made by former Virginia Attorney General (and failed gubernatorial candidate) Ken Cuccinelli in defense of his application of Virginia’s patently unconstitutional band on “sodomy.” As Judge Waddoups put it, Utah argued that ” much of the Statute’s usefulness, apparently, lies in the State’s perception that it can potentially simply charge religious polygamists under the Statute when it has insufficient evidence of other crimes.” But like Cuccinelli’s attempt to prosecute a man guilty of creepy—but not actually illegal—sexual solicitation of much younger women under a broad-based sodomy prohibition, this stated application is inconsistent not only with the right to privacy, but the rule of law. The right recognized by Lawrence does not forbid Utah from denying multiple simultaneous marriage licenses to the same individual, banning nonconsenual sex, or banning sex between adults and children. If someone in a polyamorous relationship is guilty of any of these offenses, they can be prosecuted under specific statutes banning bigamy, sexual assault, and/or statutory rape. If Utah does not have sufficient evidence to prosecute someone of these specific offenses, they have no business punishing them under a broader statute. Allowing a law like this to remain on the books has the same problems as allowing rarely enforced laws banning sodomy on the books: it’s an invitation to prosecutorial abuse inconsistent with the fundamental protections of the 14th Amendment.

And the free exercise problems are similar. I think Oregon v. Smith was correct, but even it forbids regulations of conduct that intentionally target religious practice, and I don’t think there’s much dispute that’s what’s going on here, and the statutory language is so broad I don’t see how it can survive strict scrutiny.