What is a Rational Basis for Marriage Boundaries?<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
J. Michael Sharman
 
 
            On August 4, 2010 Judge Vaughn R. Walker ruled that <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />California's marriage laws are unconstitutional, declaring that the law "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."[1]
Marriage licenses have always had specific boundaries: a man and a woman who were not currently married to another person could get a marriage certificate if they were within that state's "age of consent" and if they were not related by blood or marriage in ways the state prohibited.
If Judge Walker's ruling is upheld, what boundaries can be considered rational if it is no longer "rational" to require marriage to only be between a man and a woman?
Federal inmates, Thedell Doss and Judy McCarroll Doss, sued in a federal court in Illinois[2] to get the correspondence rights normally given to inmates who are married to one another. As proof that they were married, they produced not just one but two certificates of Islamic marriage. The prison officials, though, said Judy Doss was married to two husbands.
The Illinois federal district court ruled in 2009 that: "There does appear to be one clear way to cut through this jumble-Mr. Doss does not deny that Mrs. Doss was married before and that there is no record of a divorce. A marriage entered into before a prior marriage is dissolved is prohibited."
In Utah, police officer[3] Rodney Holm married Suzie Stubbs in a civil marriage ceremony. While married to Suzie, he had a religious marriage ceremony with Wendy. While married to Suzie and Wendy, 32 year-old  Holm had another religious marriage ceremony with his sister-in-law, Suzie's 16 year-old sister, Ruth.[4]
Holm claimed that Utah had no rational basis to prohibit him from these "marriages". Utah disagreed and its 2006 decision upheld the state's definition of marriage. For bigamy and unlawful sexual conduct with a minor, Holm was sentenced to one year incarceration in the Purgatory Correctional Facility[5] with five more years suspended.[6] 
Like Holm, Kelly Fischer of Arizona already had a wife, Alison, when he married Lujean in a "celestial marriage". Lujean had a daughter, J.S., and Kelly also had a "celestial marriage" with his step-daughter, J.S., when she was 14 or 15 years-old.
Fischer was not charged with bigamy, but he was easily convicted of two counts of sexual conduct with a minor because he was named as the father on the birth certificate of the baby that J.S. had while she herself was still legally a child.
 "Defendant argues," the Arizona Court of Appeals noted in its 2008 decision, "that his conduct with J.S. falls within the fundamental liberty interests protected from governmental intrusion by the Fourteenth Amendment because it involves a private matter of familial relationship 'with a consenting young woman.'"[7]
The Arizona court rejected Fischer's argument and said, "Minors need protection because they are deemed too unsophisticated to protect themselves or to consent to sexual activity."[8] Fischer had to serve his three years probation and a forty-five day jail term.[9]
These type of cases will continue and folks like Judy Doss, Rodney Holm, and Kelly Fischer will continue to mount vigorous legal challenges against the nation's marriage laws.
The Yale Daily News quoted the president of the ACLU as saying they are defending "the right for individuals to engage in polygamy."[10]
Now is a good time for you to make a firm decision on what you will defend, and what you believe to be a rational basis for the boundaries of marriage.
 
 
 
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[1] Perry et al v. Schwarzenegger et al, page 135.

[2] Doss v. Gilkey, 649 F.Supp.2d 905, 916 (S.D. Ill., 2009)

[3] "Arrested husband claims U.S. Supreme Court decision indicates right to polygamy"
http://webcache.googleusercontent.com/search?q=cache:6AgHNIxI0lwJ:www.cwfa.org/articles/7448/LEGAL/family/index.htm+Wendy+Holm+bigamy&cd=10&hl=en&ct=clnk&gl=us

[4] State v. Holm, 137 P.3d 726, 730, 2006 UT 31 (Utah, 2006)

[5] "Arrested husband claims U.S. Supreme Court decision indicates right to polygamy"
http://webcache.googleusercontent.com/search?q=cache:6AgHNIxI0lwJ:www.cwfa.org/articles/7448/LEGAL/family/index.htm+Wendy+Holm+bigamy&cd=10&hl=en&ct=clnk&gl=us

[6] State v. Holm, 137 P.3d 726, 731, 2006 UT 31 (Utah, 2006)

[7] State v. Fischer, 199 P.3d 663, 665, 219 Ariz. 408 (Ariz. App., 2008)

[8] State v. Fischer, 199 P.3d 663, 670, 219 Ariz. 408 (Ariz. App., 2008)

[9] State v. Fischer, 199 P.3d 663, 666, 219 Ariz. 408 (Ariz. App., 2008)

[10] Paul-Laughinghouse, Crystal, "Leader of ACLU talks on agenda", January 19, 2005, Yale Daily News