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The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01.

This answer to this question must necessarily begin with an analysis of a 2006 decision by the Utah Supreme Court, which rejected a litany of constitutional challenges to that state’s bigamy statute, and compared to the Texas statute. See: Utah v. Holm, 137 P.3d 726 (UT 2006), cert. denied, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007).

Rodney Hans Holm was convicted in Utah for bigamy and unlawful sexual conduct of a minor. He was legally married to Suzie Stubbs in 1986. As a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), he participated in a “religious marriage ceremony” with Wendy Holm. At age thirty-two, Holm participated in yet another “religious marriage ceremony” with the sister of Suzie Stubbs, sixteen-year-old Ruth Stubbs. Ruth moved into Holm’s house where Suzie, Wendy, and their children already resided. By the time Ruth turned eighteen, she had conceived two children with Holm. Id., at 730.

Holm was arrested, charged with three counts of unlawful sexual conduct with a minor, and charged with one count of bigamy. The jury returned a guilty verdict on each of the charges, and Holm was sentenced to five years on each conviction, with the sentences to be served concurrently, and fined $3,000.00. The sentences and fine were suspended conditioned on three years probation, one year in the county jail with work release, and two hundred hours of community service. Id., at 731-32.
On appeal, Holm raised a number of statutory and constitutional challenges to his conviction. These challenges will be briefly discussed for purposes of clarifying any defense to Texas’ bigamy statute.

THE UTAH BIGAMY STATUTE:

The Utah bigamy statute provides that “[a] a person is guilty when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

Holm challenged his conviction under this statute on three primary grounds.

First, his conviction under the “purports to marry” prong of the statute was unlawful as a matter of statutory interpretation because he did not purport to marry Ruth Stubbs.

Second, his conviction under the statute was unconstitutional under the Utah constitution because it unduly infringed upon his right to practice his religion.

Third, his conviction under the statute violated several provisions of the federal constitution.

1. “Purports to Marry” Issue:

Holm essentially argued that the language “purports to marry” applied on to legal marriage and not to “religious solemnization” marriages. Id., at 732.

Holm and the State of Utah agreed that the term “purport” (as defined by Black’s Law Dictionary) meant “to profess or claim falsely; to seem to be.” But the parties disagreed strenuously about the definition of the term “marry.” The State argued that the term should not be limited to “legally recognized marriages” as Holm had proposed. The Utah Supreme Court resolved the conflict by finding:

“We hold that the term ‘marry,’ as used in the bigamy statute, includes both legally recognized marriages and those that are not state-sanctioned because such a definition if support by the plain meaning of the term, the language of the bigamy statute and the Utah Code, and the legislative history and purpose of the bigamy statute.” Id., at 733.

The court concluded that the state legislature intended the term “marry” to include marriages that are not state-sanctioned. It noted that state’s bigamy statute did not require a “second marriage” (regardless of how it is defined) as a prerequisite to constitute bigamy because “cohabitation alone” constitutes bigamy under the statute. Id., at 734-35. See also: Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994) [“{The judicial decree} merely recognizes that a woman and a man have by their prior consent and conduct entered into a marital relationship, although it was not theretofore formally solemnized or otherwise legally recognized.”]; State v. Green, 99 P.3d 820 (Utah 2004) [rejected convicted polygamist’s argument that State was foreclosed from establishing legally recognized marriage under the state’s unsoleminized marriage statute which penalizes anyone who knowingly solemnizes a marriage prohibited by law.]

Holm and Ruth Stubbs were married by FLDS leader Warren Jeffs. Both responded affirmatively to the following traditional marriage vow:

“Do you Brother [Holm], take Sister [Stubbs] by the right hand, and receive her unto yourself to be your lawful and wedded wife, and you to be her lawful and wedded husband, for time and all eternity, with a covenant and promise, on your part that you will fulfill all the laws, rites and ordinances pertaining to this holy bond of matrimony in the new and everlasting covenant, doing this in the presence of God, angels, and these witnesses, of your own free will and choice?”

Ruth Stubbs wore a white dress she considered a “wedding dress” at the ceremony. She testified at trial that following the ceremony she considered herself married to Holm; that they lived in the same house; that they considered themselves husband and wife; and that they regularly engaged in sexual intercourse. And while the court pointed out that none of these factors standing alone constituted “marriage,” the “cumulative effect” of them made it “clear that the relationship formed by Holm and Stubbs was a marriage, as that term is used in the bigamy statute.” Id., at 734-35.

2. State Constitutional Right to Practice Religion.

The court observed that “it is ironic indeed that Holm comes before this court arguing that the Utah Constitution, despite its express prohibition of polygamous marriage, actually provides greater protection to polygamous behavior than the federal constitution, which contains no such express prohibition. In making this argument, Holm relies on various provisions of our state constitution that protect the freedom of conscience and the exercise of religion, as well as provisions securing liberty interests for the people of this State. While our state constitution may well provide greater protection for the free exercise of religion in some respects than the federal constitution, we disagree that it does so as to polygamy.” Id., at 738.

The court stated that it had never determined that the Utah constitution provided greater religious freedom than the First Amendment under the federal constitution. In fact, the court pointed out that the “religious toleration” provision under the state constitution specifically forbids polygamy. Id.

The Utah constitution is unique in one significant respect. In 1894, the United States Constitution passed the Utah Enabling Act which granted the Territory of Utah the ability to convene a constitutional convention and take steps toward statehood. Id.,, at 739. Congress specifically included in the Enabling Act a requirement that any ultimate Utah constitution had to contain an “irrevocable ordinance” providing: “First: That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship, Provided, That polygamous or plural marriages are forever prohibited.” Id.

Thus, the Utah Supreme Court had no choice but to find that “given the framers’ express intent to comply, and, indeed, their assessment of the necessity of complying with the terms of the Utah Enabling Act … the framers of our state constitution made it clear they understood the [Act] did not merely prevent legal recognition of polygamy but required its prohibition.” Id.

The court then foreclosed Holm’s state religious freedom claim by concluding that “although the definition of polygamy contained in the 1892 territorial ct varies slightly from that articulated by the ‘purports to marry’ prong of our contemporary bigamy statute, it is clear that our state constitution is not offended by the criminal punishment of Holm’s behavior. To the contrary, the framers of our state constitution understood the irrevocable ordinance to mandate the prevention of polygamy and not merely prohibit government recognition of it.” Id., at 742.

3. Federal Constitution Issues:

Holm raised five federal constitutional challenges to his state conviction under the United States Constitution: (A) the conviction was obtained in violation of the First Amendment’s free exercise of religion guarantee; (B) the conviction violated his due process liberty interest protected by the Fourteenth Amendment; (C) the conviction violated the equal protection provisions of the Fourteenth Amendment because Utah targets only “religiously motivated polygamists with prosecution;” (D) the Utah bigamy statute is facially overbroad because it unduly infringes on his First Amendment right of association; and (E) the term “marry” in the Utah bigamy statute is unconstitutionally vague.

A. Free Exercise of Religion:

The United States Supreme Court nearly 130 years ago held that the prosecution of a “religiously motivated polygamist” did not violate the First Amendment. See: Reynolds v. United States, 98 U.S. 145 (1879).

Holm argued that Reynolds is “nothing more than a hollow relic of bygone days of fear, prejudice, and Victorian morality,” and that modern Supreme Court jurisprudence under the First Amendment prohibits a criminal penalty from being attached to “religiously motivated polygamy.” The Utah Supreme Court brushed aside this argument by pointing to its rejection of an “identical argument” two years earlier. See: State v. Green, 99 P.3d 820 (Utah 2004). The Holm court stated:

“”As we pointed out in Green, Reynolds, despite its age, has never been overruled by the United States Supreme Court and, in fact, has been cited by the Court with approval in several modern free exercise cases, signaling its continuing vitality. Moreover, even if Holm’s assertion that Reynolds is antiquated beyond usefulness is accurate, our opinion in Green conducted a thorough analysis, using the most recent standards announced by the United States Supreme Court, of the claim that religiously motivated polygamy is immune from criminal sanction. As we noted in Green, the United States Supreme Court [has] held that a state may, even without furthering a compelling state interest, burden an individual’s right to free exercise so long as the burden is imposed by a neutral law of general applicability. The [U.S. Supreme] Court has since clarified that a law is not neutral if the intent of the law ‘is to infringe upon or restrict practices because of their religious motivation.’ In Green, we concluded that Utah’s bigamy statute is a neutral law of general applicability and that any infringement upon the free exercise of religion occasioned by that law’s application is constitutionally permissible.” Id., at 742. [Internal citations omitted].

The Holm court noted that “regardless of the wisdom of the United States Supreme Court’s current federal free exercise analysis,” it is controlling and the Utah courts lacked the constitutional authority “to tamper with or modify pronouncements by that court.” Id.

B. Liberty Interest Issue:

Holm argued that he had a fundamental liberty interest guaranteed by the Fourteenth Amendment to engage in polygamous behavior, and that the State of Utah could not infringe upon that interest absent compelling reasons. In support of this argument, he relied upon the recent decision by the U.S. Supreme Court in Lawrence v. Texas that struck a Texas’ homosexual sodomy statute because it violated the due process clause of the Fourteenth Amendment which protects an individual’s right to engage in private, consensual sexual behavior. Id., 539 U.S. 558 (2003).

The Holm court observed that despite the “seemingly sweeping language” of Lawrence, its holding was quite narrow. The Holm court said that Lawrence took “pains” to limit its holding “to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians.” Id., at 742-43. The court added that the Lawrence went out of its way to exclude constitutional protection for conduct that causes “’injury to a person or abuse of an institution the law protects’.” Id., at 743 [quoting Lawrence, 539 U.S. at 567]. Finally, the court noted that Lawrence contained the following constitutional caveat: “’The present case does not involve minors. It does not involve persons who might be injured or who are situated in relationships where consent might not easily be refused. It does not involve public conduct’.” Id. [quoting Lawrence, 539 U.S., at 578].

The Holm said the issue before it was whether the state had a right to protect and regulate the “public institution of marriage.” It began its analysis of this issue with the observation that Holm presented the “exact conduct” Lawrence had exempted from constitutional protection. Id. The court then concluded:

“The very ‘concept of marriage possesses undisputed social value.’ Utah’s own constitution enshrines a commitment to prevent polygamous behavior. This commitment has undergirded this State’s establishment of ‘a vast and convoluted network of … laws … based exclusively upon the practice of monogamy as opposed to plural marriage.’ Our State’s commitment to monogamous unions is a recognition that decisions made by individuals as to how to structure the most personal of relationships are capable of dramatically affecting public life.

“The dissent states quite categorically that the State of Utah has no interest in the commencement of an intimate personal relationship so long as the participants do not present their relationship as being state-sanctioned. On the contrary, the formation of relationships that are marital in nature is of great interest to this State, no matter what the participants in or the observers of that relationship venture to name the union. We agree with the dissent’s statement that these relationships do not receive legal recognition unless a legal adjudication of marriage is sought. That does not, however, prevent the legislature from having a substantial interest in criminalizing such behavior when there is an existing marriage.

“As the dissent recognizes, a marriage license significantly alters the bond between two people because the State becomes a third party to the marital contract. It is precisely that third-party contractual relationship that gives the State a substantial interest in prohibiting unlicensed marriages when there is an existing marriage. Without this contractual relationship, the State would be unable to enforce important marital rights and obligations. In situations where there is no existing marriage, the Legislature has developed a mechanism for legally determining that a marriage did in fact exist, even where the couple did not seek recognition of that marriage, so that the State may enforce marital obligations such as spousal support or prevent welfare abuse. There is no such mechanism for protecting the State’s interest in situations where there is an existing marriage because, under any interpretation of the bigamy statute, a party cannot seek legal adjudication of a second marriage. Thus, the State has a substantial interest in criminalizing such an unlicensed second marriage.” Id. [Internal citations omitted].

Many polygamy adherents look upon Lawrence for constitutional salvation. But the Holm court turned a deaf ear to claims that Lawrence protects polygamous behavior. The court said the kind of private, intimate sexual conduct between consenting adults endorsed by Lawrence cannot be compared to attempts by polygamists to redefine a “fundamental social institution like marriage.” Id. Given this difference, and the fact that the U.S. Supreme Court has elected not explicitly overrule Reynolds, the court ruled that Holm’s conviction did not violate any personal liberty interests guaranteed by the Fourteenth Amendment. Id.

C. The Equal Protection Issue:

Holm argued that Utah bigamy statute violated the Fourteenth Amendment constitutional guarantee of equal protection because it discriminates against individuals who are “religiously compelled to practice polygamy.” Id., at 745.

The United States Supreme Court has held that the equal protection clause is violated when “similarly situated individuals” are treated differently. See: City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

The Utah Supreme Court in Green turned back an equal protection challenge to the state’s bigamy statute by finding it is “facially neutral as to religion” because “it delineates no distinction between classes of individuals” and, in fact, does not “mention polygamists or their religion.” Id., 99 P.3d at 820.

The Holm court added that an individual could actually engage in polygamy because of religious animus and still be convicted under the bigamy statute. The Holm court followed its lead in Green that the “facially neutral text” of the bigamy statute was not a “smokescreen” designed to “disguise a discriminatory intent” to prosecute only “religiously motivated polygamy.” Id., at 745. The Holm court noted that its last reported decision concerning a bigamy prosecution before Green involved a man “engaging in non-religiously motivated polygamy.” Id.

Against this factual and legal backdrop, the court found prosecution under the state’s bigamy statute did not violate the federal constitutional guarantee of equal protection under the law. Id.

D. Right of Association:

Holm argued that Utah’s criminalization of polygamous behavior violated his First Amendment right of association by restricting his ability to teach his family the “principle of plural marriage by way of example.” Id.

The freedom of association guaranteed by the Firth Amendment covers two separate but related rights: intrinsic and instrumental association. See: Roberts v. United States, 468 U.S. 609, 617-18 (1984).

Holm alleged his conviction violated both rights of association. The court disagreed, saying:

“First, the concept of intrinsic association encompasses certain intimate associations. Under this type of association, the United States Supreme Court has recognized that the freedom to form certain intimate associations is constitutionally protected, stating that ‘choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.’ In this sense, the ‘freedom of association receives protection as a fundamental element of personal liberty.’ When considering claims that a certain governmental action violates the right to intimate association, the United States Supreme Court has essentially conducted a fundamental liberty analysis to determine whether the type of behavior allegedly infringed upon is protected.

”Holm’s right to intrinsic association has not been unduly infringed upon because the right to engage in polygamous behavior is not encompassed within the ambit of the individual liberty protections contained in our federal constitution. Consequently, Holm cannot argue that his associational rights prevent the State from interfering with his ability to engage in properly criminalized behavior, as the right of intimate association protects only those associations that further or otherwise support fundamental liberty interests.

”Second, instrumental associations include those associations ‘indispensable’ to the ‘preserv[ation] [of] other individual liberties’ including ‘those activities protected by the First Amendment. An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.’

”Holm’s right to instrumental association has not been infringed. We have already concluded that Utah’s prohibition on polygamous behavior does not run afoul of constitutional guarantees protecting the free exercise of religion. Further, we see nothing contained within the language of the bigamy statute that prevents Holm from associating with a group advocating the social and spiritual desirability of a polygamous lifestyle. Although it is true that the bigamy statute prevents Holm from expressing his opinions regarding polygamy by engaging in polygamous behavior, we are not convinced that the State is constrained to tolerate constitutionally prohibited behavior in order to allow individuals to express their dissatisfaction with the criminal status of that behavior.” Id., at 746.

E. The Vagueness of the Term “Marry”:

Holm told the court that the term “marry” used in the Utah Code is not confined to “legally recognized marriage;” therefore, it is broad enough to encompass his polygamous behavior thereby making the “purports to marry” prong of the bigamy statute impermissibly vague because the language of the statute fails to adequately define the type of activity being criminalized.

As the writers have pointed out in previous blogs and as noted by the Utah Supreme Court, a criminal statute to survive a vagueness challenge must (1) define a criminal offense with sufficient definiteness and in a manner that does not encourage arbitrary and discriminatory enforcement, and (2) establish minimal guidelines that sufficiently instruct law enforcement as to avoid arbitrary and discriminatory enforcement. Id., at 747 [citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)].

The court concluded that under this well-established jurisprudence no constitutionally protected conduct had been restricted by Holm’s conviction and, therefore, there was no need to consider his “facial vagueness” challenge. Id. But the Court did analyze whether the state’s bigamy statute provided adequate notice of criminal conduct and whether the statute had been applied in an arbitrary and discriminatory manner. Id.

With respect to Holm’s argument that the bigamy statute’s prong “purports to marry” did not provide adequate notice because the ordinary person would consider that prong as applying only to legally recognized marriages, the court found:

”Looking only to the plain language of our bigamy statute, we are at a loss to comprehend how Holm can plausibly argue that he did not purport to marry Stubbs when he participated in a marriage ceremony with her and subsequently engaged in a relationship that mirrored that of a traditional marriage. By its terms, the bigamy statute is designed to prevent individuals from engaging in two marital relationships simultaneously. We conclude that Holm was provided adequate notice by the ‘purports to marry’ prong of our bigamy statute that his marriage to Stubbs would be considered criminal behavior.

“Holm argues, however, that if the ‘purports to marry’ prong of the bigamy statute is not unconstitutionally vague, then the term ‘married,’ which provides that sexual conduct with a minor is not unlawful if the participants in the conduct are ‘married to each other,’ must protect him from prosecution for unlawful sexual conduct with a minor. Essentially, Holm argues that he received inadequate notice that his purported marriage to Stubbs would not immunize him from prosecution for unlawful sexual conduct with a minor for engaging in sexual activity with Stubbs. We disagree and conclude that Holm was on notice that his marriage to Stubbs would not serve as a defense to a subsequent prosecution for unlawful sexual conduct with a minor.” Id., at 747-48.

Relative to whether the state’s bigamy statute is enforced in an arbitrary or discriminatory manner, the court held that an “as-applied challenge to the constitutionality of a criminal statute” must be reviewed as to how the statute is applied by law enforcement officials. The court succinctly ruled:

“Just as we determined in Green ‘that law enforcement officials encountering Green’s circumstances would not be left to pursue their own personal predilections in determining the applicability of Utah’s bigamy statute,’ we conclude that no reasonable law enforcement official acquainted with Holm’s behavior could conclude other than that Holm had violated Utah law … the facts clearly establish that Holm purported to marry Stubbs while already having a wife.” Id., at 748 [Internal citations omitted].

THE TEXAS BIGAMY STATUTE
1. Texas’ Two Types of Marriages:
Texas Penal Code § 25.01 provides:
(a) An individual commits an offense if:
(1) he is legally married and he:
(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or
(B) lives with a person other than his spouse in this state under the appearance of being married; or
(2) he knows that a married person other than his spouse is married and he:
(A) purports to marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or
(B) lives with that person in this state under the appearance of being married.
(b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)(1) that the actor reasonably believed at the time of the commission of the offense that the actor and the person whom the actor married or purported to marry or with whom the actor lived under the appearance of being married were legally eligible to be married because the actor’s prior marriage was void or had been dissolved by death, divorce, or annulment. For purposes of this subsection, an actor’s belief is reasonable if the belief is substantiated by a certified copy of a death certificate or other signed document issued by a court.
(d) For the purposes of this section, the lawful wife or husband of the actor may testify both for or against the actor concerning proof of the original marriage.
(e) An offense under this section is a felony of the third degree, except that if at the time of the commission of the offense, the person whom the actor marries or purports to marry or with whom the actor lives under the appearance of being married is:
(1) 16 years of age or older, the offense is a felony of the second degree; or
(2) younger than 16 years of age, the offense is a felony of the first degree.

The Texas Family Code Ann. § 1.102 provides:

“When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves its validity.”

The § 1,101 presumption is “one of the strongest known to the law.” See: Wood v. Paulus, 524 S.W.2d 749, 758 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). It presumes that the most recent marriage is valid until an impediment to the marriage is established that undermines its continuing validity. See: Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). See also: Medrano v. State, 701 S.W.2d 337, 341 (Tex.App.-El Paso 1985).

In a criminal case, such as Medrano, when the State attacks the validity of a second marriage, it bears the burden of introducing sufficient evidence that negates the dissolution of the prior marriage. Id.

The Medrano court added that “ … to rebut the presumption it [is] incumbent upon the State to prove (1) that the first spouse was alive at the time the husband married the second wife, (2) that the husband never secured a divorce or annulment from the first wife, and (3) that the first wife never secured a divorce or annulment from the husband.” Id. See also: Salone v. Olaque, 1998 Tex.App. LEXIS 7742 (Tex.App.-Austin 1998).

The Medrano court said these civil law principles should be applied in criminal cases. Id. That appellate reasoning is consistent with longstanding jurisprudence from the Texas Court of Criminal Appeals in bigamy cases requiring the State to show that the defendant’s prior marriage has not been dissolved by death or divorce.” See: Parker v. State, 122 Tex.Cr.R. 21, 53 S.W.2d 473, 474 (1932) [“A prosecution for unlawful marriage can be sustained only by allegation and proof of a prior, valid marriage, for upon this depends the criminality of the second or bigamous marriage. If the defendant was legally married to another person at the time he contracted the alleged prior marriage, this renders such alleged marriage invalid, and, therefore, not a sufficient marriage upon which to predicate a prosecution for bigamy. It is essential in this crime that the first marriage be legal and the second illegal.”]

The Court of Criminal Appeals in Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App. 1985) held that for a marriage to be legally valid, “the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage.” Id., at 893. One legal impediment is the existence of a previous marriage: a previous marriage not terminated by divorce, annulment or death of the prior spouse invalidates the second marriage. Id.

The appellant in Dorre v. State, 2000 Tex.App. LEXIS (Tex.App.-Dallas 2000) “admitted to a ceremonial marriage with the complainant’s mother in 1995 and testified they were still married at the time of appellant’s trial. Appellant also testified that some time after this marriage, he entered into a common-law marriage with the complainant. Appellant, however, concedes he never divorced the complainant’s mother and was married to her at the time he allegedly married the complainant. The complainant’s mother testified similarly to appellant. Additionally, the State introduced into evidence a certified copy of the marriage certificate for appellant’s marriage with the complainant’s mother.

”Appellant’s prior marriage prevented him from entering into a legal common-law marriage with the complainant. If an impediment to the creation of a lawful marriage exists, as when one party is married to someone else, there can be no common-law marriage, even if all the other statutory prerequisites are present.”

Texas jurisprudence imposes three prerequisites to make a common law marriage valid:: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married. See: Tex. Family Code Ann. § 1.91(a)(2). See also: Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App.-San Antonio 1998). These three elements must exist at the same time. Id. See also: Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ). The three requisites can be proven, collectively or independently, through circumstantial evidence. Id., at 490.

Finally, longstanding Texas jurisprudence provides that a bigamy prosecution can be based on two valid common law marriages. See: Adlberg v. State, 88 Tex.Crim. 173, 225 S.W. 253 (1920). The Adlberg court explained:

“Marriage is not a contract but a status, created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agreement with cohabitation, but, however, contracted, having the same elements and producing the status of husband and wife. The sole difference which can legally exist is in the method of expressing consent.” Id., at 254-55. See also: Stevens v. State, 156 Tex.Crim. 431, 243 S.W.2d 162 (1951).

The State of Texas, therefore, recognizes two types of marriages: a “ceremonial marriage” under Tex. Family Code § 2.001 that requires a state marriage license; and a common law marriage that requires an agreement to be husband and wife, cohabitation in the State of Texas, and a representation of marriage to others.

Unlike in Utah, there is no specific statutory or constitutional prohibition in Texas against “religiously motivated” polygamy. The question then is whether a “spiritual marriages,” such as those recognized by the FLDS, falls squarely within the legal parameters of the two marriages recognized in Texas.

First, it must be stressed that a “spiritual marriage” does not require a state marriage license mandated by § 2.001 in “ceremonial” marriages.

Second, and most importantly, the preliminary issue about whether a “spiritual marriage” falls “under the “appearance of being married” as defined by Texas Penal Code § 25.01(b). That subsection requires a finding “that the parties are married with cohabitation and an intent to be married by either party” in order to create an “appearance of being married.”

While a “spiritual marriage” entails an agreement by the parties to marry and cohabitate, the marriage does not necessarily entail a representation to others that the parties are married. So long as the parties take part in a “religious solemnization” of their agreement to marry and cohabitate but do not represent to others that they are married, neither party can be convicted of bigamy under Texas law. To convict under the Texas bigamy statute when a common law marriage is alleged, the State must prove the existence of three simultaneous elements: agreement, cohabitation, and representation. A “spiritual marriage” that does not entail representation to others is not a valid common law marriage for purpose of a bigamy prosecution.

2. Lawrence v. Texas Implications:

The constitutional implications of Lawrence on the Texas bigamy statute are significantly different than the ones confronted by the Holm court. The Holm court embraced the Lawrence finding that the constitution does not protect conduct that causes “abuse of an institution the law protects.” Id., 539 U.S. at 567. The Holm court pointed out that Utah had created “vast network” of laws stressing the exclusivity of monogamy over plural marriages and that the state constitution specifically prohibits polygamy to protect the sanctity of monogamous marriages as mandated by the U.S. Congress.

Texas does not have a vast network of laws or a constitutional provision protecting the sanctity of what the Holm court called the “fundamental institution of marriage.” Marriage is not a “fundamental institution” in Texas. It is nothing more than a “status” created by the mere mutual consent of one man and one woman as defined by the Texas Court of Criminal Appeals in Adlberg v. State, supra.

The fact that Texas recognizes common law marriage undermines the sanctity of its own state-sanctioned “ceremonial marriages.” Marriage in Texas, therefore, cannot remotely be considered a “fundamental institution” deserving of the kind of constitutional distinction it enjoys in Utah.

Accordingly, adult polygamists in Texas could mount a reasonable Lawrence-type argument that they have a liberty interest to engage in plural marriages. It cannot reasonably be argued that polygamy in Texas would abuse any “institution the law protects.” The state does not have any laws either designating or protecting marriage as a “fundamental institution.” By any stretch of the imagination, marriage as a “status” does not translate into marriage as a “fundamental institution.”

Finally, polygamy poses no greater threat to the “status” of marriage in Texas than the practice of homosexuality recognized in Lawrence. In fact, several state legislatures, as well as several state supreme courts, have recognized the validity of homosexual marriages. We surmise that these states also do not have vast network of laws or constitutional provisions protecting heterosexual marriage as a “fundamental institution” like the State of Utah.

Texas is certainly a state that has elected not to protect the sanctity of marriage as a “fundamental institution” by defining it a mere “status.”

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair