Religious exemptions and sex with 16-year-old
State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds a statutory rape conviction of Kelly Fischer, a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Fischer was married, and then took a second wife, Lujean, though of course she was not recognized as a wife legally. Lujean's daughter J.S., who was thirteen our fourteen at the time, moved in with them; some time later (it's not clear when) Fischer took J.S. as a third wife. J.S. gave birth to Fischer's daughter when she was 17, so it's clear that he had sex with J.S. when she was 17, or even younger. J.S. was prosecuted for statutory rape, the age of consent in Arizona generally being 18. Here's the complicating factor: In Arizona, as in most other states, sex with under-18-year-olds is not a crime if the under-18-year-old is a spouse; and in Arizona, as in most other states, people may marry under-18-year-olds (at least when they're 16 or older, though perhaps even younger if there's court approval) so long as a parent or guardian of the minor approves. So if Fischer's marriage with J.S. were recognized by law, then his sexual acts with J.S. wouldn't be statutory rape (assume for now that J.S. was indeed 17, and not, say, 13, at the time of the first sexual act). Fischer demanded an exemption from Arizona's ban on polygamy, under the federal Free Exercise Clause, but naturally lost under Smith. Nothing in the opinion suggests that he demanded a similar exemption under the Arizona state RFRA-like statute, but perhaps this is because Arizona bans polygamy (and even polygamous cohabitation) in its state constitution. But let's say that Fischer were in Texas, which has a state RFRA and to my knowledge no similar state constitutional provision, and say that he demanded an exemption under the RFRA either from the state polygamy ban, or from state statutory rape law. Say also that Lujean was not already his wife, which casts some extra doubt on her independent judgment in deciding whether J.S. would be allowed to marry Fischer. And say that J.S. was indeed 16 or 17 at the time of the sexual conduct. Protecting children from sexual exploitation, Fischer would say, is generally a compelling interest. But about 40 of the 50 states have an age of consent of 17 or lower, and about 30 of the 50 have an age of consent of 16 or lower. What's more, Arizona itself recognizes an exception for sex within a non-polygamous marriage. Therefore, Fischer argues, applying the law to him doesn't pass strict scrutiny. The experience of most states, he argues, suggests that there is no compelling interest in using the criminal law to protect 17-year-olds or even 16-year-olds from underage sex (citing Boos v. Barry, which used a similar argument to strike down a content-based speech restriction under Free Speech Clause strict scrutiny); in fact, Arizona is in the small majority of states on this score. What's more, Arizona itself provides an exception for 16-year-olds and 17-year-olds who are in nonplural marriages with the defendant (as well as an exception for 15- to 17-year-olds when they are within two years of the defendant's age). The law is thus either not necessary to serve a compelling interest, or in any event underinclusive with respect to the supposedly compelling interest. How should we analyze this argument? I should stress that I don't think Fischer's case is particularly morally appealing, nor do I think that he'll likely win under a RFRA. I just wonder how a candid application of RFRA would go here, and what that tells us about (for instance) underinclusiveness analysis, and identification of compelling interests, under RFRAs. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and sex with 16-year-old
No court has agreed with a polygamy law challenge under any theory since Reynolds. And there have been over 100 challenges (I seem to remember close to 130 when I was working on an amicus brief in the recent swenson/Utah case) What is different since all of the sherbert and yoder-based challenges in this hypothetical? Having said that -- on the basis of texas penal law alone, underage and elder teen polygamous unions are serious criminal felonies. I would assume that rfra does not undermine neutral, generally applicable felonies. Why are they felonies? Because of the potential for abuse and rape in a union where the man holds seriously more power than the girl. Given recent studies, teenage brains are incapable of fully rational decisionmaking into the 20s, creating the conditions for abuse. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene [EMAIL PROTECTED] Date: Wed, 6 Aug 2008 16:11:47 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Religious exemptions and sex with 16-year-old State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds a statutory rape conviction of Kelly Fischer, a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Fischer was married, and then took a second wife, Lujean, though of course she was not recognized as a wife legally. Lujean's daughter J.S., who was thirteen our fourteen at the time, moved in with them; some time later (it's not clear when) Fischer took J.S. as a third wife. J.S. gave birth to Fischer's daughter when she was 17, so it's clear that he had sex with J.S. when she was 17, or even younger. J.S. was prosecuted for statutory rape, the age of consent in Arizona generally being 18. Here's the complicating factor: In Arizona, as in most other states, sex with under-18-year-olds is not a crime if the under-18-year-old is a spouse; and in Arizona, as in most other states, people may marry under-18-year-olds (at least when they're 16 or older, though perhaps even younger if there's court approval) so long as a parent or guardian of the minor approves. So if Fischer's marriage with J.S. were recognized by law, then his sexual acts with J.S. wouldn't be statutory rape (assume for now that J.S. was indeed 17, and not, say, 13, at the time of the first sexual act). Fischer demanded an exemption from Arizona's ban on polygamy, under the federal Free Exercise Clause, but naturally lost under Smith. Nothing in the opinion suggests that he demanded a similar exemption under the Arizona state RFRA-like statute, but perhaps this is because Arizona bans polygamy (and even polygamous cohabitation) in its state constitution. But let's say that Fischer were in Texas, which has a state RFRA and to my knowledge no similar state constitutional provision, and say that he demanded an exemption under the RFRA either from the state polygamy ban, or from state statutory rape law. Say also that Lujean was not already his wife, which casts some extra doubt on her independent judgment in deciding whether J.S. would be allowed to marry Fischer. And say that J.S. was indeed 16 or 17 at the time of the sexual conduct. Protecting children from sexual exploitation, Fischer would say, is generally a compelling interest. But about 40 of the 50 states have an age of consent of 17 or lower, and about 30 of the 50 have an age of consent of 16 or lower. What's more, Arizona itself recognizes an exception for sex within a non-polygamous marriage. Therefore, Fischer argues, applying the law to him doesn't pass strict scrutiny. The experience of most states, he argues, suggests that there is no compelling interest in using the criminal law to protect 17-year-olds or even 16-year-olds from underage sex (citing Boos v. Barry, which used a similar argument to strike down a content-based speech restriction under Free Speech Clause strict scrutiny); in fact, Arizona is in the small majority of states on this score. What's more, Arizona itself provides an exception for 16-year-olds and 17-year-olds who are in nonplural marriages with the defendant (as well as an exception for 15- to 17-year-olds when they are within two years of the defendant's age). The law is thus either not necessary to serve a compelling interest, or in any event underinclusive with respect to the supposedly compelling interest. How should we analyze this argument? I should stress that I don't think Fischer's case is particularly morally appealing, nor do I think that he'll likely win under a RFRA. I just wonder how a candid application of RFRA would go here, and what that tells us about (for instance) underinclusiveness analysis, and identification of compelling interests, under RFRAs. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu
Re: Religious exemptions and sex with 16-year-old
In a message dated 8/6/08 9:11:28 PM, [EMAIL PROTECTED] writes: I would assume that rfra does not undermine neutral, generally applicable felonies. Didn't it do precisely that in the O Centro case? ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and sex with 16-year-old
In a message dated 8/6/2008 9:35:22 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: Didn't it do precisely that in the O Centro case? Fair point, but I think not dispositive. O Centro came out as it did only because of the specious comparison between peyote and hoasca -- the Court reasoned that if peyote was a Schedule I drug and made a permissible exemption, then any other Schedule I drug prohibition must not serve a compelling interest either. The logic is faulty in the extreme, especially if you know the wide array of chemical compositions of Schedule I drugs and the wide array of social handling of different drugs, but that is obviously off-topic. I do not believe there is a precedent that is analogous involving underage sex and/or polygamy. Marci **Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and sex with 16-year-old
In a message dated 8/6/08 9:44:58 PM, [EMAIL PROTECTED] writes: I do not believe there is a precedent that is analogous involving underage sex and/or polygamy. I assume there's not a case on point, but what does that matter when there's a statute on point? ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and sex with 16-year-old
I suppose this case would force the court to either reverse Reynolds or conclude that RFRA does not apply to statutes that are not directly prohibiting religious conduct; Fischer would presumably have to argue that this faith required him to marry a third wife and that he must marry her before she is legally of age to do so. But, Fishser's marriage was not approved by the Court; and does RFRA require the Court to abandon its mandate to protect children? It would obviously be a cleaner challenge to Reynolds if this did not involve a minor. But, as Eugene points out, the Court could avoid this by determining that that the age of consent law in Az fails -- but then it is not a RFRA case is it? Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] Volokh, Eugene [EMAIL PROTECTED] 08/06/08 7:11 PM State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds a statutory rape conviction of Kelly Fischer, a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Fischer was married, and then took a second wife, Lujean, though of course she was not recognized as a wife legally. Lujean's daughter J.S., who was thirteen our fourteen at the time, moved in with them; some time later (it's not clear when) Fischer took J.S. as a third wife. J.S. gave birth to Fischer's daughter when she was 17, so it's clear that he had sex with J.S. when she was 17, or even younger. J.S. was prosecuted for statutory rape, the age of consent in Arizona generally being 18. Here's the complicating factor: In Arizona, as in most other states, sex with under-18-year-olds is not a crime if the under-18-year-old is a spouse; and in Arizona, as in most other states, people may marry under-18-year-olds (at least when they're 16 or older, though perhaps even younger if there's court approval) so long as a parent or guardian of the minor approves. So if Fischer's marriage with J.S. were recognized by law, then his sexual acts with J.S. wouldn't be statutory rape (assume for now that J.S. was indeed 17, and not, say, 13, at the time of the first sexual act). Fischer demanded an exemption from Arizona's ban on polygamy, under the federal Free Exercise Clause, but naturally lost under Smith. Nothing in the opinion suggests that he demanded a similar exemption under the Arizona state RFRA-like statute, but perhaps this is because Arizona bans polygamy (and even polygamous cohabitation) in its state constitution. But let's say that Fischer were in Texas, which has a state RFRA and to my knowledge no similar state constitutional provision, and say that he demanded an exemption under the RFRA either from the state polygamy ban, or from state statutory rape law. Say also that Lujean was not already his wife, which casts some extra doubt on her independent judgment in deciding whether J.S. would be allowed to marry Fischer. And say that J.S. was indeed 16 or 17 at the time of the sexual conduct. Protecting children from sexual exploitation, Fischer would say, is generally a compelling interest. But about 40 of the 50 states have an age of consent of 17 or lower, and about 30 of the 50 have an age of consent of 16 or lower. What's more, Arizona itself recognizes an exception for sex within a non-polygamous marriage. Therefore, Fischer argues, applying the law to him doesn't pass strict scrutiny. The experience of most states, he argues, suggests that there is no compelling interest in using the criminal law to protect 17-year-olds or even 16-year-olds from underage sex (citing Boos v. Barry, which used a similar argument to strike down a content-based speech restriction under Free Speech Clause strict scrutiny); in fact, Arizona is in the small majority of states on this score. What's more, Arizona itself provides an exception for 16-year-olds and 17-year-olds who are in nonplural marriages with the defendant (as well as an exception for 15- to 17-year-olds when they are within two years of the defendant's age). The law is thus either not necessary to serve a compelling interest, or in any event underinclusive with respect to the supposedly compelling interest. How should we analyze this argument? I should stress that I don't think Fischer's case is particularly morally appealing, nor do I think that he'll likely win under a RFRA. I just wonder how a candid application of RFRA would go here, and what that tells us about (for instance) underinclusiveness analysis, and identification of compelling interests, under RFRAs. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be
