December 16, 2013 - LAW AND RELIGION FORUM

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage. Such marriages are both criminally punishable and void. (This might seem like a paradox, but it’s not. Many illegal contracts are both punishable and void). But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states: They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state. On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another. Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together. Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute. It really had no choice given Reynolds v. United States, the famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws. But the district court struck down the extended application of the statute. It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here. I don’t want to discuss whether the district court played fast and loose with the precedents. Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.

But I do think one point deserves emphasis: This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States. Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings. And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Read more

This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to “law and religion”) than first appears. It is also a bleg — a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both.

William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published 1765-69), refers to

the Bolognian law, mentioned by Puffendorf [sic], which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

The point here, of course, is that words should not be read literally if that would give them “a very absurd signification.”

Blackstone’s source, Samuel von Pufendorf, discusses this “case” in his “Law of Nature and Nations,” first published in 1672, and Pufendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names). Pufendorf, for example, adds that the defendant “was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation.” Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be “absurd and inhuman,” not merely “absurd.”

Now, my intuition tells me that there’s more to this odd tale than meets the modern eye. Read more