Standing, Polygamy and More

Did the Lawrence case from the U.S. Supreme Court, which held unconstitutional a state law criminalizing sodomy between consenting adults, really open the door to polygamy?  If you want to have a polygamous marriage, you’d want to know for sure before you risk going to prison.  Similar concerns apply to people from abortion providers to medical marijuana users who want to test the constitutionality of new laws. 

The 10th Circuit Court of Appeals  in Denver closed the door to the federal courts to these kinds of questions more tightly last week through an obscure doctrine known as “standing.”The Holding

The core holding of the case was that, the only way polygamy proponents could test the constitutionality of a state law criminalizing polygamous marriage was to be convicted under the law.  The challenge arises at all, despite prior anti-polygamy precedents as a result of a new precedent, the Lawrence case, which some legal commentators, mostly conservative, have claimed opens the door to polygamy as well.

Other Closed Doors

The trouble is, that day may never come.  State polygamy laws are prosecuted in state courts, not federal courts.  Once you are convicted, you can eventually contest the constitutionality of your conviction in federal court in a habeas corpus petition,  after exhausting your remedies in state court, but that is possible only after many, many years of state level appeals.  And, often your sentence will have been served by the time your case makes it to federal court, so your case will be moot and dismissed for that reason by the time you are eligible for a federal court review of your conviction.

Even worse, even if you did make it to federal court, you’d still lose, even if you were right that the law was unconsitutional.  Habeas corpus review generally only allows you to be released from prison based upon a violation of your constitutional rights, if “clearly established” law of the U.S. Supreme Court holds that the right exists.

If there is no U.S. Supreme Court case that has specifically addressed the constitutionality of polygamy after Lawrence, you lose, even if other state and federal courts have universally held that laws criminalizing polygamy are unconstitutional.

As a result, the only way you can establish that a state criminal law is unconstitutional in federal court, under this 10th Circuit opinion, is for you to (1) be convicted of the state crime, (2) lose in your direct appeals of that conviction in state courts, and (3) have the U.S. Supreme Court take up the constitutionality of your state conviction at that point in time.  Since the U.S. Supreme Court often prefers to wait until its last encounter with a case (on an appeal from a federal appellate court decision denying habeas corpus relief) before weighing in on a state court criminal conviction, out of judicial economy, this can make federal court review of the constitutionality of a state criminal law almost impossible. 

The Law of Standing

Subject area precedents in the area of “standing” have historically been more deferrential to business people with established businesses, like abortion providers, whose careers are purportedly criminalized by a new state law, but this is a thin straw of precedent upon which to base your livelihood.

While the “black letter law” rules for determining when someone has standing to challenge the constitutionality of a law are relatively settled, the application of these rules are among the most partisan areas of the law, and academics routinely accuse courts of being results driven in applying them.  Conventional wisdom is that a court can find standing any place it wants to, and can deny that it exists on almost any set of facts, when a public law question (i.e. one involving the powers of the government) is involved.

The Facts

This case illustrates that principle.  The facts were relatively simple, by design, as it was intended to be a “test case.”

A married man who is a member of a splinter Mormon denomination applied for a marriage license in Utah and made clear that he was married and that the second wife consented to the marriage.

The clerk, not surprisingly, refused to grant the license.  If the clerk had, it would have been a crime under Utah law.

The government and the marriage license applicant agreed to a statement of facts, presented them to a judge of the United States District Court for the District of Utah, and the trial court ruled on the merits that the civil and criminal prohibitions against polygamy were valid on the merits, despite the Lawrence precedent.  It held that neither the United States Constitution, nor the Constitution of the State of Utah, create a right to have a polygamous marriage.  The trial court had no trouble finding that someone who had gone to the trouble for applying for a marriage license for a polygamous marriage had standing to challenge the law.

The Appeal

The 10th Circuit Court of Appeals, however, vacated the ruling.

On appeal, the would be polygamists argued that the criminal laws banning polygamy were unconstitutional, and essentially abandoned the argument that Utah had a constitutional duty to grant legal recognition to polygamy through a marriage license.

The 10th Circuit held that the trial court had no jurisdiction to consider the criminal laws, because the couple seeking to be married had no standing to challenge them (the opposite of the conclusion reached at the trial court), and also vacated the trial court ruling on marriage laws by holding that the issue was abandoned on appeal since it wasn’t raised in the would be polygamist’s legal briefs.

It is not clear why the 10th Circuit didn’t instead take the usual course of action when a matter isn’t raised in an appellate brief by simply affirming the trial court ruling that Utah had no constitutional duty to grant a marriage license to a polygamous couple.

The Bottom Line For Polygamists

The result is that polygamous is still probably illegal in Utah, as the state courts of Utah have ruled on the subject after the Lawrence decision, but the federal courts have refused to provide a federal court ruling on the subject.

Qui Bono

By itself, this is a hard to understand decision in the context of legal realist analysis which believes that most standing decisions in the public law area are policy driven and also notes that the federal courts are increasingly conservative.  It would have been far easier simply to find that standing existed and settle the polygamy point once and for all, as the trial court did in a way that pleases conservatives.

The ruling also keeps the Lawrence/polygamy bogeyman alike in academic and political discussions.

Precedent prior to Lawrence, i.e. a 1985 decision in the 10th Circuit and a U.S. Supreme Court decision from the late 19th century, made the law otherwise clear, and grappling with one case, as the trial court did would have been easy.  But, against a larger backdrop of conservative opposition to the recognition of federal constitutional rights in federal court, the notion that this easy polygamy case could be used to deal with a variety of other constitutional challenges to state laws, makes the conservative ends served by this ruling clear, and the ruling which otherwise might be obscure, worth the attention of a wider audience.

Moreover, because standing is a constitutional doctrine concerning the power of the judicial branch itself, if this ruling holds, it cannot be overturned by Congress.  So, this case represents a slight sacrifice for conservative values in the short term, for what could be a slam dunk down the line when a new social issue comes along.

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