Arizona court: Polygamy with minors not a right

East Valley Tribune - Arizona
August 5, 2008

by Howard Fischer | Capitol Media Services

Arizonans have no religious right to practice polygamy, at least not with minors, the state Court of Appeals ruled Tuesday.

The judges rejected arguments by a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints that he was legally entitled to have sex with a 16-year-old girl because she was his "celestial wife" as recognized by his religion.

Judge Donn Kessler, writing for the unanimous court, said while the right of individuals to believe whatever they want is absolute, the right to act on it is not.

Tuesday's decision in the case of Kelly Fischer is not likely to be the end of the legal fight. Attorney David Goldberg said he expects the issue to eventually be decided by the U.S. Supreme Court.

Goldberg acknowledged that the nation's high court has ruled there is no right to polygamy. But he noted that decision came in 1878.

He said the Supreme Court, in various more recent rulings, has refused to use morality as a basis for deciding constitutional rights. As proof, he cited the 2002 decision striking down a Texas anti-sodomy law.

Goldberg said he believes the Supreme Court, if presented with this issue, will make a similar ruling.

But Goldberg may have a problem not present in that Texas case, in which the participants were both adults.

In the Arizona case, the victim of the offense was 17 when she gave birth in 2001 and listed Fischer, then 33, as the father on the birth certificate.

Fischer was one of several men arrested in 2005 in connection with investigations by Arizona and Utah officials of adult men having sex with girls who were minors.

The victim refused to testify at the trial. Instead, prosecutors relied on the birth certificate as well as testimony of how the fundamentalist church practices polygamy.

Fischer was convicted of one charge of sexual conduct with a minor and one charge of conspiracy to commit sexual conduct with a minor.

There was no law on the books at that time about polygamy with minors. And while the state constitution makes polygamy illegal, those who practice it - at least among adults - violate no state laws.

But Fischer's legal arguments turn on the question of polygamy - and his claimed right to be able to have sex with one of his wives.

Kessler pointed out that defense is available only to those legally married to the victim. In this case, he said, Fischer already had a wife recognized under state law; the victim was "married" to Fischer only in the eyes of the church, a marriage not recognized by Arizona law.

But the real key, said Kessler, is that 1878 U.S. Supreme Court decision. In that case, the justices said allowing individuals to decide that their religious beliefs trump statute would, "in effect ... permit every citizen to become a law unto himself."

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