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On March 5, 2010, attorneys for Mike Emack filed in 51^st District Court a forty-seven-page motion requesting the Court to dismiss the bigamy charges against their client and challenging the constitutionality of the bigamy statute itself. The document is a masterful discussion of the reasons that the statute does not apply to the prosecution of religiously-motivated plural marriage. 

 

 

The Texas bigamy statute makes a person subject to criminal liability if he “lives with a person other than his spouse in this state under the appearance of being married.” Central to the argument presented in this motion is the legal definition of “marriage.” 

The Texas Constitution provides that “marriage in this state shall consist only of the union of one man and one woman.” Substituting the constitutional definition of marriage into the bigamy statute clearly shows that “one commits the offense of bigamy if (1) he is legally in a union of one man and one woman and (2) he lives with a person other than his spouse in this state under the appearance of being in a union of one man and one woman…”

 

The motion points out that the Defendant is legally married to one woman and cohabits with another under the appearance of being in a union with more than one woman. The cohabitation is not under the appearance of one man to one woman. There is no fraud or deception involved, and the Defendant and his plural “wife” have no intention to be “married” other than in a religious sense any more than a Catholic woman who undergoes a religious ceremony of being married to Christ when she becomes a nun intends to hold out her “marriage” as a legal civil marriage under the laws of the state. Being “married” under Texas law means complying with all of the legal formalities prescribed. One who doesn’t hold himself out deceitfully as having done so or doesn’t attempt to do so, which would be without binding legal effect, cannot be said to be living “under the appearance of being married.”

 

For over fifty years the bigamy statute in Texas has been enforced only in cases involving deception or fraud. The requirement for conviction has been “that someone—the other parties to the bigamous ‘marriage,’ or the state itself—be deceived by the person who goes through the motions of a second civil marriage or holds himself out as having done so.” The Texas Court of Criminal Appeals has ruled that statutes are void for vagueness if they fail to define for persons of ordinary intelligence what acts are prohibited. Both the language of the bigamy statute and the prior case law “fail to give either potential defendants or prosecutors acting in good faith any clear indication that the conduct at issue here falls within the definition of bigamy.” Thus, any attempt to apply the bigamy statute to religiously-based cohabitation would violate the Defendant’s right to due process.

 

 

The motion further argues that in addition to the bigamy statute’s not applying to the acts at issue in this case, any attempt to prosecute the Defendant under the statute would violate his religious rights under the Texas Religious Freedom Restoration Act (TRFRA), the Texas Constitution, and the First Amendment to the U.S. Constitution.

 

The TRFRA was enacted in response to a perceived erosion of religious liberty at the federal level and requires that the state must demonstrate a compelling government interest before regulating actions mandated by sincere religious belief. In addition, the Texas Constitution grants broader protection for religious liberty than the U.S. Constitution, stating in its “Rights of Conscience” guarantee: “No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion…But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceful enjoyment of its own mode of public worship.”

 

On the federal level, the Reynolds decision of 1879 established the precedent that the guarantee of religious liberty in the First Amendment applies only to belief and not to practice. More recent decisions, however, have discredited this premise. “This is not to say that religious practice has no social boundaries. But the boundaries must be fixed within an analytical framework more modern and respectful of the diversity of human belief and conduct than the crude belief/practice dichotomy reflected in Reynolds.”

 

The current standard established at the federal level for determining the constitutionality of laws which impinge on religious practices is the same as that stated in the TRFRA—that such laws must “be justified by a compelling or at least substantial state interest.” That no such compelling interest exists in the case of religiously-motivated cohabitation is obvious from the fact that the cohabitation of unmarried couples is commonplace in contemporary society and that it has been decades since relationships outside the religious community have been prosecuted under the bigamy statute where one person was legally married to someone other than the person with whom he or she is cohabiting. The 2000 Census listed 5.5 million couples living in unmarried-partner households with 327,246 such couples in Texas alone.

 

Such toleration of cohabitation, even where one of the parties is still legally married, “shows that the state does not regard the interest compelling or even important, and exposes the targeting of the religious practice.” In emphasizing the discriminatory way in which religiously-based plural marriage has been prosecuted, the motion quotes from contemporary scholar J. M. Miller in A Critique of the Reynolds Decision (1984):

 

 

Summarizing the point that such prosecution serves no compelling state interest, the motion observes: