With the U.S. Supreme Court's decision last month overturning anti-sodomy laws, the Court has consequently provided two powerful precedents for securing the next civil rights battle, "polygamy rights."

Romer v. Evans, in 1996, established that laws cannot "impermissably target" a class of individuals. This recent Lawrence v. Texas decision establishes a "right to privacy" for freely-consenting adults. These two precedents, together, make anti-polygamy laws unconstitutional.

Such analysis comes out of U.S. Justice Antonin Scalia's specific dissents in both decisions.



ROMER v. EVANS

On May 20, 1996, the U.S. Supreme Court overturned Amendment 2 to Colorado's State Constitution. Voter-approved in 1992, the amendment was titled, "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation."

The Court's majority declared Amendment 2 unconstitutional because it was an "impermissible targeting" of a "class" of people; it had "impermissibly targeted" homosexuals.

Justice Scalia dissented, noting the decision's impact regarding polygamy. He explained that a number of state constitutions were originally adopted with clauses that polygamy is "forever prohibited."

Scalia wrote, "Polygamists, and those who have a polygamous 'orientation,' have been 'singled out' by these provisions for much more severe treatment than merely denial of favored status... The Court's Disposition today suggests that these provisions are unconstitutional; and that polygamy must be permitted in these States... --unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."

Justice Scalia elaborated that Idaho's State Constitution had gone so far in "targeting polygamists" as to disenfranchise any polygamist ---or even a mere vocal polygamy advocate--- from being allowed to vote.

Scalia concluded, "It remains to be seen how (that) was not an 'impermissible targeting' of polygamists, but the much more mild Amendment 2 is an 'impermissible targeting' of homosexuals."

Enter the Lawrence v. Texas case in 2003.



LAWRENCE v. TEXAS

On June 26, 2003, the Court's 6-3 majority overturned the Texas anti-sodomy law on the basis of freely- consenting adults having a "right to privacy." This reversed a previous Supreme Court decision, Bowers v. Hardwick (1986).

Not only did Lawrence v. Texas give polygamists this "right to privacy" precedent, but it was actually U.S. Justice Scalia himself, again, who would specifically write the Dissent to which polygamists could point in advancing pro-polygamy arguments.

Scalia disagreed with the majority's decision of reversing Bowers v. Hardwick.

In his Dissent, Justice Scalia wrote, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

Scalia noted that Bowers v. Hardwick determined that States did have an interest to self-determine what forms of sexual behavior are "immoral and unacceptable." Scalia stated that that was the "same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest.

"The Court today reaches the opposite conclusion," Scalia continued. This Court now says that the "Texas (anti-sodomy) statute... 'furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.'"

"The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'"

"This effectively decrees the end of all morals legislation," Scalia declared.

Laws which "impermissably target" or violate the "right to privacy" of adult, freely-consenting polygamists have been made unconstitutional.


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