LS39D Final Paper - Prof Alan Pomerantz PDF

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Tiffany Lo Legal Studies 39D December 19th 2016 Bridges and Carter v. Bacchanal (2016) Appellant Chris Bridges is the owner of the bookstore “Paradise Found,” located in Bacchanal, Nevada, as well as a member of the Fundamentalist Church of Latter Day Saints (FLDS), which advocates polygamy and allows for marriages between a man and a woman as long as all participants are over 13 years of age. Bridges, prior to moving to Bacchanal, had married Stefani Germanotta, then 16 years old, in a FLDS religious ceremony. During his time in Bacchanal, Bridges met and married Onika Tanya Maraj, a 25-year-old born male who identifies and dresses as a female. Maraj knew of Bridges’ religious marriage to Germanotta, but neither Bridges nor Maraj disclosed this fact to Tracey Marrow, the City Clerk of Bacchanal, who conducted their wedding ceremony. Pursuant to the requirements of the federal Affordable Care Act, Bridges purchased health insurance for his 50 employees at Paradise Found, some of them FLDS members, and their dependents from a state insurance company named Bacchanal Affordable Care. On his own policy, Bridges had listed Germanotta as his wife and dependent, and after marrying Maraj, added her as his spouse and dependent. On September 25th 2016, Germanotta and Maraj fell and broke an arm and leg respectively as they were running down the stairs and were sent to the Bacchanal hospital for treatment. Bridges informed the hospital that both were covered under his insurance policy as his dependents, but Bacchanal Affordable Care did not recognize either claim, stating that neither Germanotta nor Maraj could be considered the legal spouse of Bridges, as Nevada state law requires both the man and woman to be over 18

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years of age as a requirement for the issuance of a valid state marriage license and prohibits polygamy. Connected to the case, our second appellant, Sean Corey Carter, upset by an expose published in the Bacchanal Daily News, which was about Bridges’ two wives, one of them transgender, and the back room child pornography section of Paradise Found, decided to organize a protest against the bookstore. He worked to create a KKK chapter in Bacchanal and recruited like-minded residents of the city and students attending Heavenly University to join the chapter. Annoyed that his actions had not brought about the changes he wanted and incited by the passing of two Anti-Harassment Resolutions (AHRs) by the city as responses targeting him, Carter distributed a flyer about holding an open rally in front of the bookstore on September 25th 2016. On the day, Carter hung an effigy of Bridges and lit it on fire, provided signs reading things like “When Perverts Die, God Laughs” and “God blesses those who take an eye for an eye” to the picketers, as well as led the crowd in chants against Bridges, Germanotta, and Maraj. Carter was deemed to have violated Section 1 of the AHR for burning an effigy of Bridges, and Section 2 of the AHR for his hateful words at the rally and his organization of the Paradise Found picket. He was arrested by Police Chief Shady and convicted under the AHRs, which state the following: Section 1: Whoever places on public or private property a sign, writing, symbol, object, characterization or graffiti, with the intent to intimidate or threaten another person, commits a class A misdemeanor. Section 2: Whoever speaks or assembles on public and private property with the intent to arouse anger, alarm or resentment in others towards a person, based on that person’s race,

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creed, marital status, religion, sexual orientation or gender, commits a class A misdemeanor. Bridges argues that his First Amendment right to free exercise of religion was violated when his claim for payment to the hospital regarding Maraj and Germanotta’s respective injuries was denied. He cites the Religious Freedom Restoration Act of 1993 and Burwell v. Hobby Lobby Stores in insisting that his First Amendment rights as applied to the states by the Fourteenth Amendment, Due Process, and Equal Protection rights had been violated. The state argues that Bacchanal Affordable Care acted properly as Nevada state law expressly prohibits polygamous marriages and requires that the man and woman be over 18 years of age to receive a valid marriage license. Germanotta cannot be Bridges’ wife under state law, and since Bridges believed himself to be married to her, he could not legally marry Maraj as Nevada did not recognize polygamous marriages. Carter insists that the two sections of the AHR are unconstitutional on their face and as applied to him – even if the AHRs were facially constitutional, his actions were nonetheless protected speech by the First Amendment, and that his conviction should be overturned. Nevada rebuts that the AHRs are constitutional on their face as well as constitutionally applied to Carter. We are tasked with deciding three issues: first, whether Bridges has a right to receive reimbursement from Bacchanal Affordable Care by claiming both Maraj and Germanotta as his dependents and “wives,” second, whether the AHRs are constitutional on their face and third, constitutional as applied to Carter, thus whether Carter’s trial conviction should be upheld. The free exercise of religion is one of the bedrocks of our nation, enshrined in the First Amendment, which delineates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The free exercise and establishment clauses

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prohibit the government from impeding or interfering with religious beliefs and choices, preferring one religion to another, or outright establishing a state religion. This fundamental right warrants strict scrutiny analysis. Nevada’s two laws regarding marriage, which infringe on Bridges’ right to freely exercise his religion as a member of the FLDS, in order to pass constitutional muster, must further a compelling government interest, be narrowly tailored to the interest, and be the least restrictive means to achieve that interest. The Religious Freedom Reformation Act of 1993 (RFRA) also requires that in order for a government action to substantially burden the exercise of religion, it “must serve a compelling government interest, and must also constitute the least restrictive means of serving that interest,” as Justice Alito wrote in Burwell v. Hobby Lobby Stores (2014). Here, there is no dispute about the sincerity of Bridges’ beliefs about marriage and his devotion to the FLDS. It is clear that these policies of the Nevada constitute an infringement on the free exercise clause and the establishment clause – different religions have varying rules and preferences about marriages and civil unions; by setting forth laws regarding marriages in order to be deemed valid by the state, the government is giving “preference” to religions with views that align with the state’s position. In this case specifically, the fundamental right of Bridges to marry, to develop and solidify a sensual and intimate relationship in accordance with his sincerely held religious beliefs, was infringed upon. The issue is then whether the state’s regulations placed on Bridges’ beliefs fail strict scrutiny, thus allow him, as an individual and as the owner of Paradise Found to opt out of the law, and allow Maraj and Germanotta to be recognized as his legal spouses and dependents. The precedent of Burwell v. Hobby Lobby Stores (2014), which ruled that closely held for-profit corporations may be exempt from a law to which its owners object on religious

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grounds, if there is a less restrictive means of furthering the interest of that law, offers relevant insight. Regarding the dispute in question, Paradise Found is a closely held for-profit, indeed, Bridges is the only shareholder, officer and director of the bookstore, and objects to the statute imposing an over 18-year-old requirement on marriage and the ban on plural marriage, as they conflict with the teachings of the Fundamentalist Church of Latter Day Saints. The Nevada law’s age requirement for a valid marriage license is certainly furthering a compelling state interest – the government has a stake in protecting minors, the future architects and innovators of society, from entering into commitments as significant and as consequential as marriage. The government regularly accords stronger protections to minors, allowing them to disaffirm valid contracts, treating them less harshly as defendants in the criminal system, and more; at the same time, it prevents minors from engaging in certain activities, denying them the ability to make decisions about their health, to cast a ballot in the elections, to carry out certain behaviors in school that would be otherwise constitutional, and more. Marriage, as a legal contract, carries important implications – one’s spouse may make medical decisions for the other, may inherit the other’s estate in case of death, may contribute to, draw from, and share community assets and debts, and may obtain other benefits regarding taxes, employment and government. There are both benefits and detriments from entering into a marital contract that minors, who are in general not yet fully developed, do not understand. Permitting children under the age of 18 to marry could subject them to financial harm, physical abuse, and emotional damage, and it is in the state’s interest to prevent these from occurring. The right to marry is a fundamental right as established in Loving v. Virginia (1967) and marriage is a favored institution, but Nevada has legitimate and compelling interests to create an age restriction, thus preventing minors from entering into such a complex contract until they attain majority. Enacting

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a law that allows a valid marriage license to be issued only if both parties are over 18 is narrowly tailored to the state’s interest and is the least restrictive means of achieving that interest. Thus, the statute passes the strict scrutiny test and is permissible, even though it substantially burdens the exercise of free exercise and deprives Bridges of the right to marry a 16-year-old individual. Thus, Germanotta is not his legal spouse under Nevada state law, cannot be his dependent, and Bacchanal Affordable Care need not pay her insurance claim. With regards to Bridges’ marriage to Maraj, since Bridges was never legally married to Germanotta, he did not commit polygamy when he wedded Maraj. The state argues that since Bridges held himself out to be married to Germanotta, he could not be legally married to Maraj owing to the statute prohibiting plural marriage. It is ironic that Bridges’ sincerely held belief is used against him to deny his union with Maraj. It is true that neither Bridges nor Maraj disclosed that Germanotta was Bridges’ wife under a religious ceremony, but as we have ruled, the marriage between Bridges and Germanotta is null and void because of Germanotta’s age at the time of marriage. A null marriage is one that should have never been recognized, and is treated as no marriage at all. Strictly from a legal standpoint, Bridges was a single man when he met and eventually wed Maraj. He did not violate Nevada’s law prohibiting plural marriage. The fact that Maraj is a born male who identifies and dresses as a female is not relevant as a point to dispute the validity of her marriage to Bridges. Obergefell v. Hodges (2015) held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process and Equal Protection Clause of the Fourteenth Amendment. Even if Maraj is not recognized as a female by the state, the marriage between same sex persons is constitutionally protected because of Obergefell. Maraj and Bridges are legally married, did not commit polygamy, and therefore

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Bacchanal Affordable Care must recognize Maraj as Bridges’ spouse and dependent and pay her insurance claim. Assuming, for the sake of argument, that Germanotta is the legal wife of Bridges, the claim regarding Maraj should still be accepted. We subject the law banning plural marriage to the same strict scrutiny test, as it infringes upon the fundamental right to free exercise of religion and right to marry. Obergefell v. Hodges (2015) not only ruled that same-sex marriages are constitutionally protected, it also departed from the traditional definition of marriage as a union between a man and a woman, and viewed marriage as a sensual activity essential to the human condition and central to individual dignity and autonomy. Affirming Griswold v. Connecticut (1965), author of Obergefell’s majority opinion, Justice Kennedy, emphasized that fundamental rights found in the Due Process Clause of the Fourteenth Amendment extend to personal choices that include intimate ones that define the beliefs and identity of an individual. We reject a framing of the issue as whether there is a “right to plural marriage,” as our precedents Loving v. Virginia (1967) and Lawrence v. Texas (2003) guide us to view the right to marry as the fundamental right implicated in this case. Justice Kennedy correctly opined for the majority in Obergefell, "If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied." The rationale of Obergefell serves our case here in applying the fundamental right to marry to polygamous relationships. The four reasons cited carry over: the choice regarding marriage is inherent in the concept of individual autonomy, the right to marry supports a union unlike any other in the importance of commitment, the right to marry safeguards children and families, and marriage is a keystone of social order. Now, the state of Nevada has claimed that

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there are the compelling state interests of preserving monogamy as the sole structure of marital relationships, that there are certain forms of abuses, especially those that victimize young girls and women, which are more prevalent in polygamous relationships, that monogamy reduces crime and social unrest in general, that banning polygamy avoids complicated issues such as determining paternity of children and administrative issues such as handling multiple marriage licenses, resolving conflicts regarding next of kin, inheritance, and power of attorney. The preservation of monogamy is not a compelling state interest. While the state has a compelling interest in maintaining the institution of marriage as recognized in the past, monogamy is a structural feature of traditional marriage but not a compelling interest in itself; it may be a legitimate one, but the state has failed to carry its burden and prove it to be sufficiently compelling. Regarding the abuses, the patriarchal elements, and the increase of crime tied to plural relationships, while there are compelling interests for the state to prevent abusive behavior, ensure equality between the genders, and minimize criminal activity, these interests are covered by existing statutory offenses, or may be addressed with less restrictive statutes compared to a ban on polygamy. Thus the Nevada law against plural marriage is not the least restrictive means of preserving the interest of emotional and physical well-being. For example, in order to protect younger women at risk of being coerced into polygamous marriages by their community or religious leaders without being able to give meaningful consent, there may be statutes enacted to prosecute the perpetrators and conspirators of such behavior. The complexities in determining paternity, inheritance, power of attorney, and issuing licenses are legitimate, but not compelling interests; even if we do view them as compelling, statutes that specifically target these issues by setting out rules and procedures may be created as narrowly tailored and the least restrictive means for achieving the interests of the state. Furthermore, it is lawful for a person to marry

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multiple people, as the state does not prohibit a person from remarrying after a divorce; he or she merely cannot have concurrent multiple marriages. Nevada’s law banning plural marriage would thus fail strict scrutiny, as the compelling government interests it claims to further may be achieved with other regulations, while other interests related to banning plural marriages are merely legitimate interests, insufficient to satisfy the strict scrutiny test. Thus, if Germanotta’s marriage to Bridges were recognized as valid and legal, the claim for Maraj should still be paid as Nevada’s law banning polygamy substantially burdens Bridges’ free exercise to religion and fundamental right to marry, as well as violates the 1993 Religious Freedom and Restoration Act. We now turn to the two Anti-Harassment Resolutions passed by the Bacchanal Board of Supervisors. Freedom of speech is protected by the First Amendment and applied to the states by the Fourteenth Amendment, but this does not prevent the government from imposing regulations on certain categories of speech, such as obscenity, slander, and libel. To be declared constitutional on its face, a restriction on speech must not be overly broad – regulating substantially more speech than permissible in the Constitution, and must not be unconstitutionally vague – impossible for a reasonable person to determine what speech or action is allowed or not. If a statute is deemed facially unconstitutional, there is no application of it that would be protected by the Constitution. In addition, we must analyze the statute to see if there is content or viewpoint discrimination within the regulation, which is when the statute restricts speech based upon the subject matter or based on the view expressed. The first section of the AHR states: “Whoever places on public or private property a sign, writing, symbol, object, characterization or graffiti, with the intent to intimidate or threaten another person, commits a class A misdemeanor.” This prohibition does not only address fighting

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words; it is possible that expressions not deemed fighting words may still harbor the intent of intimidation or threat. Thus, this section is overly broad and fails a facial constitutionality test. The second section reads: “Whoever speaks or assembles on public and private property with the intent to arouse anger, alarm or resentment in others towards a person, based on that person’s race, creed, marital status, religion, sexual orientation or gender, commits a class A misdemeanor.” This blatantly discriminates based on content – expressions made with the intent to arouse anger, alarm or resentment, based on a person’s employment status, disability, family background, or anything other than “race, creed, marital status, religion, sexual orientation, or gender,” are permissible. The First Amendment does not allow the city of Bacchanal to impose special prohibitions on someone who express their views on these 6 specified disfavored subjects. In R.A.V. v. City of St. Paul (1992), the ordinance in question, similar to the one in this case, read: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.” It was ruled impermissibly overbroad and content-based, thus facially invalid. The ordinance was also deemed to discriminate based on viewpoint. The court wrote that content discrimination is impermissible, pointing out the hypocrisy that “Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics.” The AHRs in question, despite being viewpoint-neutral, prohibits otherwise

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permitted expressions solely on the basis of subject matter addressed. This regulation is not content neutral and the AHR as a whole is facially invalid. Assuming, arguendo, that the AHR...