Thomas wrote:That's a tough and interesting argument to counter, and one I haven't heard before. But my first impression of it is that it cuts both ways: Suppose a very traditional mormone were to argue that polygamy lies at the core of his religious beliefs, and that the proscription of polygamy has the effect of discriminating against mormones. Would you argue that this would be a good reason for the Supreme Court to strike down the proscription of polygamy?
Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. On the other hand, if a regulation is aimed solely at one religion, then it is subject to strict scrutiny (which, in practice, means that it is always unconstitutional). See
Church of Lukumi Babalu Aye v. City of Hialeah. In the case of polygamy, the courts have held that the regulations are neutral and of general applicability;
no one is permitted more than one spouse, not just Mormons.
But that would be based on the first amendment's free exercise clause. Under normal circumstances, discriminatory laws are judged according to the fourteenth amendment's equal protection and due process clauses. A law that said that only Mormons could have multiple spouses, for instance, would violate the fourteenth amendment. We need to keep in mind that the first amendment free exercise cases are not the same as the fourteenth amendment equal protection and due process cases.
