Bigamy (Polygamy) and Lawrence v. Texas

When the Supreme Court ruled in Lawrence v. Texas (2003) that a Texas law against homosexual sodomy could not be enforced against consenting adults for their private sexual activity, how broad a right of sexual privacy was it recognizing under the Due Process Clause?  For example, would the same constitutional principle prohibit punishing somebody for entering into a bigamous"marriage" as defined under state law?

This is a particularly pressing question in Utah, the home state of the Mormon Church, where an indeterminate number of "fundamentalist" Mormons continue to engage in polygamous marriages, thus running afoul of the state's bigamy statute.

On May 16, the Utah Supreme Court upheld the criminal conviction of Rodney Hans Holm under the bigamy statute, finding that neither the federal nor state constitutions would protect his conduct from prosecution.  See State of Utah v. Holm, 2006 Westlaw 1319595, 2006 UT 31.  Specifically addressing the issue of Lawrence v. Texas, the court described that holding as "actually quite narrow" despite "its use of seemingly sweeping language."  "Specifically, the Court takes pains to limit the opinion's reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians.  In fact, the Court went out of its way to exlude from protection conduct that causes 'injury to a person or abuse to an institution the law protects.'"  The court reason that since the bigamy law protects the institution of marriage, the state could take action to prosecute conduct inimical to that protected institution.

But the opinion reveals a split in the court over how to deal with the various questions presented, which included, in addition to due process privacy, equal protection and free exercise of religion, as well as a vigorous argument over the actual reach of the state law, which applies both to plural marriages and "purported" marriages.  A concurring opinion and a dissenting opinion by the Chief Justice signal concerns by some members of the court about the state's intervention in family matters. 

The defendant in this case raised as part of his defense that his multiple marriages were religious marriages, not civil marriages, and thus could not be criminalized by the state as "bigamy".  The Chief Justice agreed with this argument, finding that the "purports to marry" prong of the bigamy statute raised constitutional questions. 

In particular, relating to Lawrence, the Chief Justice writes, "I do not believe that the conduct at issue threatens the institution of marriage, and I therefore cannot agree that it constitutes in 'abuse' of that institution. . .  The Supreme Court in Lawrence... rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship." 

After referring to a recent Virginia Supreme Court decision striking down that state's fornication law based on Lawrence, the Chief Justice stated, "In my opinion, these holdings correctly recognize that individuals in today's society may make varied choices regarding the organziation of their family and personal relationships without fearing criminal punishment."