RFRA now covers "any exercise of religion, whether or not
compelled by, or central to, a system of religious belief; many of the
state statutes (including the Arizona one) say the same, and others
aren't as clear, but they might well be interpreted the same way.
So I don't think Fischer would have to argue his faith compelled
him to marry a third wife who's under 18; it would be enough, I think,
if his faith viewed marrying this particular person at this time (and
consummating the marriage) as a religious sacrament. That's not
implausible, it seems to me, given that marriage is indeed viewed as a
sacrament by some religions, and given that many religious people
believe their mate is in some sense chosen for them by God. Or am I
mistaken on this?
Nor do I think that Fischer has to challenge statutory rape laws
generally, on non-RFRA grounds. Rather, his claim would be that even
though statutory rape generally pass the rational basis test, they don't
pass strict scrutiny, especially given the exemptions to age of consent
for nonplural marriages (and, possibly, for sexual partners close in age
to the minor).
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Paul
> Finkelman
> Sent: Wednesday, August 06, 2008 10:48 PM
> To: religionlaw@lists.ucla.edu
> Subject: 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
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