State v. Green

*835DURRANT, Justice,

concurring:

T 65 In reaching its conclusion that Utah's bigamy statute does not violate the Free Exercise Clause, the majority applies the rational basis standard articulated by the United States Supreme Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), a standard under which a neutral and generally applicable law need not be justified by a compelling governmental interest, even if the law has the incidental effect of burdening a particular religious practice. Although I acknowledge that we are bound in our decision today to follow this authority, and therefore concur in the majority opinion, in my view, Smith's evisceration of the protections afforded the free exercise of religion is contrary to the explicit language and the purpose of the Free Exercise Clause. Consequently, I write separately to clarify what I believe to be the proper level of scrutiny applicable to governmental interference with the constitutionally protected freedom to freely exercise one's religious beliefs.

I 66 In a long line of cases prior to Smith, the Supreme Court "respected both the First Amendment's express textual mandate and the governmental interest in regulation of [religious] conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest." Id. at 894-95, 110 S.Ct. 1595 (O'Connor, J., joined by Brennan, Marshall, and Blackmun, JJ., concurring) (citing Hernandes v. Comm'r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Unmited States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Thomas v. Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); McDaniel v. Paty, 485 U.S. 618, 626-29, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (plurality opinion); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Sherbert v. Verner, 374 U.S. 398, 408, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In Smith, however, the Court all but abandoned the strict serutiny standard in the context of free exercise claims, concluding that a generally applicable and neutral law need only satisfy rational basis review. See id. at 878-80, 110 S.Ct. 1595.

T67 The Smith Court's abrupt departure from analyzing religious exercise issues under a strict serutiny standard has been widely criticized by courts and commentators alike, primarily on the basis that the majority opinion is unsupported by either history or precedent. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 546-48, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (O'Connor, J., joined by Breyer, J., dissenting) (arguing that Smith "adopted an improper standard for deciding free exercise claims"); id. at 565-66, 117 S.Ct. 2157 (Souter, J., dissenting) ("I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence."); Combs v. Corr. Corp. of Am., 977 F.Supp. 799, 802 n. 1 (W.D.La.1997) ("In that Smith reduces the First Amendment to a paper tiger and repudiates a long history of carefully crafted free exercise jurisprudence, we agree with the [City of Boerne] dissenters."); James D. Gordon III, Free Exercise on the Mountaintop, T9 Cal. L.Rev. 91 (1991); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L.Rev. 1109 (1990). Although I generally agree with these criticisms, and add my voice to the chorus of those calling for a re-examination of Smith, I do not repeat them here. Rather, I highlight what I believe to be an additional flaw in the Smith decision; namely, the inherent logical fallacy of applying rational basis review to an explicit constitutional protection while subjecting governmental interference with certain other unenumerated rights to more exacting seruti-ny.

168 In an extensive line of cases, the Supreme Court has interpreted the Due Process Clause as providing heightened protection against governmental interference with the right of privacy, a right not expressly provided for in the Constitution. My purpose here is not to challenge the Supreme Court's right of privacy jurisprudence (al*836though I do find it to be questionable in many respects), but to note the logical and theoretical inconsistency in affording more protection to an implicit "penumbral" right than to one explicitly protected by the Constitution's framers. In my view, Smith is made all the more indefensible by the fact that it has expelled the right to free exercise from the table of civil liberties, while the implicit right of privacy has been afforded a seat of honor.

T 69 The irony created by the juxtaposition of these differing standards is readily apparent from the facts in this case. As the majority correctly notes, had Green adequately briefed his argument with respect to a right of privacy, he would have been provided a greater degree of protection under an implicit right of privacy than he was under the explicit right to free exercise.

I 70 In short, Smith has essentially rewritten the Free Exercise Clause into the Free Belief Clause, a result that I believe to be inherently flawed. Because an implicit right of privacy should not be afforded greater protection than an explicit right to the free exercise of religion-a concept upon which our country was founded and a protection deeply ingrained in the hearts and minds of American citizens-a state should not be allowed to burden religiously motivated conduct unless the state's interest is compelling and the burden is narrowly tailored to achieve that interest.1

T 71 That being said, I believe Utah's bigamy law is supported by a compelling state interest for several of the reasons briefly touched on in the majority opinion. First and foremost, the State has a compelling interest in regulating and preserving the institution of marriage as that institution has been defined by the State. The Supreme Court has made clear that the right to marry is a fundamental right, the interference with which is appropriately the subject of heightened serutiny. Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). However, the marital relationship itself is "not merely a private romantic declaration or religious right." Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L.Rev. 778, 774 (2002). Rather, it is a civil contract, Andrews v. Andrews, 188 U.S. 14, 30, 23 S.Ct. 237, 47 L.Ed. 866 (1903); Meister v. Moore, 96 U.S. 76, 78-79, 24 L.Ed. 826 (1878), and " 'a relationship in which the state is vitally interested.' " Norton v. Macfarlane, 818 P.2d 8, 18 (Utah 1991) (Howe, J., concurring and dissenting) (quoting Fennell v. Littlejohn, 240 S.C. 189, 125 S.E.2d 408, 412 (1962)). "Indeed, 'marriage is a state-conferred legal status, the existence of which gives rise to the rights and benefits reserved exclusively to that particular relationship. " Universal Life Church v. State, 189 F.Supp.2d 1302, 1315 (D.Utah 2002) (quoting Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 58 (1993)). It is precisely because marriage is a state-created institution that states have a compelling interest in defining the parameters of marital relationships, and in regulating the procedures, duties, and rights that stem from those relationships. See id. ("It is clear that states have an absolute right to prescribe the condition upon which marriage shall be created."); Bond v. Trustees of the STA-ILA Pension Fund, 902 F.Supp. 650, 655 (D.Md.1995) ("[TThe definition and regulation of marriage is a traditional area of state authority."); Salisbury v. List, 501 F.Supp. 105, 107 (D.Nev.1980) ("The state *837legislatures may control the qualifications of the contracting [marital] parties, the forms or procedures necessary to solemnize the marriage, the duties and obligations it ere-ates, its effect upon property rights, and the grounds for dissolution."); Estate of De-Passe, 97 Cal.App 4th 92, 118 Cal.Rptr.2d 143, 148 (Ct.App.2002) ("The state has a vital interest in the institution of marriage and plenary power to fix the conditions under which the marital status may be created...."); In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845, 850 (1975) ("The institution of marriage has always been peculiarly a creature of the state, and subject to regulation by its legislature."); Hendrick v. Hendrick, 1999 OK CIV APP 15, ¶ 9, 976 P.2d 1071 ("Marriage ... [is al creature[ ] of statute with the State having exclusive control over the establishment, maintenance and termination of the marital relationship."); see also Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) ("State regulation of ... marriage is obviously permissible. ...").

T72 Moreover, the concept of marriage possesses "undisputed social value." In re Marriage of Mehren & Dargan, 118 Cal.App.4th 1167, 13 Cal.Rptr.3d 522, 528 (Ct.App.2004) (internal quotation omitted). Marriage, as that institution has been defined in our country for centuries, is the very "foundation of the family and of society." Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888); see also Norton, 818 P.2d at 18 (Howe, J., concurring and dissenting); Borelli v. Brusseau, 12 Cal.App.4th 647, 16 Cal.Rptr.2d 16, 22 (Ct.App.1998) (Poche, J., dissenting) ("[The structure of society itself depends in large part upon the institution of marriage."). Justice Powell onee observed that "[tJhe State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people." Zablocki, 434 U.S. at 399, 98 S.Ct. 673 (Powell, J., concurring in judgment). Because the State of Utah has defined marriage, with all of its attendant legal benefits and obligations, to encompass only monogamous relationships, it has a compelling interest in preserving the integrity of that state-created and state-sance-tioned marital institution. See Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir.1985) (noting that because the State of Utah "has established a vast and convoluted network of ... laws ... based exclusively upon the practice of monogamy as opposed to plural marriage," it "is justified by a compelling interest in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship" (quotations omitted)). Accordingly, the State has a compelling interest in prohibiting conduct, such as the practice of polygamy, which threatens that institution.

T 73 Associate Chief Justice WILKINS concurs in Justice DURRANT's concurring opinion. ~

. I would apply strict scrutiny not only to free exercise claims under the United States Constitution, but to claims under the Utah Constitution as well. See Utah Const. art. I, § 4 (''The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."). I do note, however, that because plural marriages are expressly prohibited by the Utah Constitution, see Viah Const. art. III, any free exercise claim asserting the right to enter into bigamous or polygamous relationships would, under a state constitutional analysis, be subject to a different standard of review.

For an excellent article discussing the use of state constitutions to fill the free exercise protec-tional void created by Smith, see Christine M. Durham, What Goes Around Comes Around: The New Relevancy of State Constitution Religion Clauses, 38 Val. U.L.Rev. 353 (2004).