Reynolds Challenge

BYU NewsNet - Lawsuit challenges 1879 polygamy ruling

A modern polygamist challenge to Reynolds made not only the DU, but Desnews and the SLTrib as well. Interesting. Based on my limited knowledge of con law, I suspect the courts have ample reason to disregard this case.

The Smith precedent allows the government to regulate activites, even those with a (claimed) explicitly religious purpose, as long as the state has some justifiable interest. Regardless of how muddled and wrong that line of precedent may be, it is the current law of the land, and has some grounding in rational jurisprudence. Some religous practices clearly should be subject to criminalization--human sacrifice, abuse, etc, for instace. Smith merely seems to take the matter too far, allowing any 'justifiable' governmental intervention, rather than making reasonable accomodation the standard.

Thus, since regulating marriage is clearly a justifiable state interest, restrictions on polygamous marriage are seemingly constitutional on First Amendment grounds under this analysis. An equal protection challenge, however, is a different ball game, particularly given recent events in MA.

That said, Reynolds did have serious problems. The ex post facto nature of the Edmunds-Tucker statute, the clear attempts to criminalize belief, and the general explicit discimination against one particular religion make the upholding of ET extremely wrongheaded--but the core attempt to regulate marraige may be justifiable under current constitutional doctrine.