Post-Windsor prospects for morals legislation: the case of polygamous immigrants.

• Author: Amgott, Jonathan E.

INTRODUCTION I. THE MORAL JUSTIFICATIONS DEBATE SINCE LAWRENCE A. Implications of Lawrence for Moral Justifications B. Implications of Windsor for Moral Justifications C. A Word on Obergefell D. What Is "Moral" Argumentation, and When Is It Permissible? II. POLYGAMY PROHIBITIONS: THEN AND NOW A. Early Anti-Polygamy Impulses B. Introducing and Policing the Polygamy Ban in Immigration Law C. Current Grounds for Exclusion of Polygamous Immigrants 1. State Public Policy Exception 2. Inadmissibility Grounds Under INA Section 212(a)(10)(A) III. CONTEXT FOR A CHALLENGE TO THE POLYGAMOUS IMMIGRANT BANS A. Legal Grounds for a Challenge B. Level of Scrutiny IV. CONTESTING THE POLYGAMY BANS AT THE SUPREME COURT A. State Public Policy Exception B. Inadmissibility Grounds Under INA Section 212(a)(10)(A) CONCLUSION "[W]hat can be done to minimize the risk that moral justifications will be abused while still allowing moral judgments to remain a part of the law?" (1)

"[U.S. Citizenship and Immigration Services] has an established practice of not recognizing polygamous marriages .... This practice is consistent with [Board of Immigration Appeals] precedent and not contrary to the law." (2)

INTRODUCTION

The U.S. Supreme Court decision in United States v. Windsor (3) reignites a long-running debate about the extent to which legislatures may justify laws on moral bases. Ten years beforehand in Lawrence v. Texas, (4) the Court made its most recent major contribution to this debate, finding that moral reasons were insufficient to sustain a law criminalizing same-sex sodomy, and striking that law as a violation of substantive due process. (5) Yet, the Lawrence majority did not define what constitutes a moral argument; the Court merely illustrated by reference to an apparently impermissible example. (6)

Lawrence created several specific ambiguities with respect to moral justifications. For example, did the Court oppose legislated morality in general, or only as it pertains to sexual freedoms or discrete minorities? Would moral justification remain permissible when accompanied by a non-moral rationale, or, in fact, should courts tolerate no moral justifications whatsoever? Alternatively, did the Court simply oppose statutes whose legislative history overtly references the Judeo-Christian roots of American morality, as commonly understood? Without greater clarity, the next legislator would risk invoking unacceptable moral arguments to pass a law, and the government would risk relying on such inappropriate moral justifications to defend it. The Windsor Court only reinforced the salience of these ambiguities when it criticized the reasons motivating Congress to pass the Defense of Marriage Act (DOMA) and held section 3 of that law unconstitutional. (7)

The uncertain status of moral justifications may have greatest relevance for sexual issues, which frequently spark morally charged legislative battles and judicial aftermath. Lawrence and Windsor suggest that a particular grouping of sexual practices--those historically proscribed under Judeo-Christian morality--would be most likely to require the Court to clarify its jurisprudence on legislated morality. Recognizing that these decisions explicitly expand the category of parties who may lawfully engage in sexual activity and marriage, Justice Scalia and others have argued that Lawrence and Windsor open the door to polygamy, incest, and other sexual practices traditionally viewed as deviant; the justification for each such prohibition rests primarily on moral reasoning, which this recent precedent declares impermissible. (8) Other commentators have decried Justice Scalia's logic as a slippery slope that will not come to fruition. (9)

Notwithstanding such criticism, it is at least plausible that the Supreme Court's recent statements on morals-based justifications for legislation affect the legal basis for bans on traditionally deviant practices, regardless of whether the Court would in fact follow its reasoning to its natural conclusion. Following the same-sex marriage decision in Windsor, chief among these sexual hot topics is polygamy, another marital form vying for legal recognition and perhaps gaining ground. In late 2013, a federal district judge applying rational basis review invalidated parts of Utah's bigamy ban as a violation of substantive due process, among other constitutional doctrines. (10)

This Note will evaluate the feasibility of a challenge to polygamy laws by the polygamous spouses who may be best positioned to succeed: those seeking U.S. immigration benefits. Board of Immigration Appeals (BIA) and federal court decisions on polygamy commonly involve one of two fact patterns: either a noncitizen who has received lawful permanent resident (LPR) status wishes to bring his second, concurrent wife with him, or a U.S. citizen or LPR marries a second woman abroad without yet terminating his first marriage. (11) To streamline the analysis and avoid a possible standing issue, this Note will focus on a version of the second fact pattern, in which a U.S. citizen or LPR and his second wife who were married abroad now seek her LPR status in the United States. (12) These spouses would face several "polygamy bans," both in the form of state public policy objections to their marriage and inadmissibility grounds in federal immigration law. (13) For at least two reasons, this couple would be better positioned than an American polygamous couple to challenge the United States' polygamy bans.

First, between the state and federal bans, the federal one is more directly implicated by Windsor, a case striking a federal limitation on the definition of marriage. The implications for the state public policy bans were initially less clear since the Windsor Court cabined its holding to federal recognition of marriages already "made lawful by the State," (14) a distinction which did not hold water. (15) Furthermore, only prospective immigrants--not American polygamists--would have one of the above-described occasions to challenge a federal immigration ban. The basic implications of Windsor were readily apparent in the immigration context. (16) Within days of the decision, the U.S. Department of Homeland Security began extending benefits to same-sex couples filing spousal visa petitions with U.S. Citizenship and Immigration Services (USCIS). (17) Several weeks later, the BIA affirmed the validity of this interpretation in Matter of Zeleniak. (18) Polygamous spouses applying for immigration benefits could cite Zeleniak for proof that the Obama administration extended Windsor to immigrants. In turn, they could argue that the logic of Windsor and Zeleniak should vindicate their rights too.

Second among reasons that polygamous immigrants may be more successful, polygamy is legal in many immigrant-sending countries, (19) satisfying the requirement in U.S. immigration law that a marriage be lawful in the place of celebration. (20) An American polygamist, on the other hand, would find no state law in his favor. (21) The sheer number of prospective immigrants to whom the state public policy ban may apply dwarfs the number of American polygamists seeking recognition of their relationship. (22) Furthermore, USCIS and consular officials must enforce both the state and federal polygamy bans during the visa petition and application processes, whereas state law enforcement officers often decline to enforce analogous bans in the domestic setting. (23) Recent litigation illustrates that foreign polygamists continue to seek lawful immigration status in the United States for themselves and their spouses, demonstrating that polygamous immigration is a live, if under-recognized, issue. (24)

Considering polygamy bans in the immigration context is also instructive because such bans necessarily implicate those facing an American polygamist. An intending immigrant whose marriage is valid in the place of celebration may nevertheless be barred by the public policy of the place of domicile, e.g., state statutes and state court precedent against polygamy. (25) Thus, analysis of the litigation prospects for a polygamous immigrant also suggests how a challenge to the polygamy ban would fare in the domestic context. (26) Although the plenary power doctrine could affect the Court's willingness to vindicate a rights claim in the immigration setting, this Note will discuss the minimal impact of that doctrine in a case brought by a polygamous couple. (27)

The goals of this analysis are twofold. First, this Note will address the effects of Lawrence and Windsor for moral, often religiously based reasoning in general, with particular emphasis on sexual issues. Supreme Court decisions on same-sex matters suggest the types of reasoning that the Court will find persuasive in other cases implicating sex and marriage. These applications in turn affect the likelihood that the Court would accept moral justifications for legislation unrelated to sexual issues. Second, this Note will discuss the implications of Windsor for polygamous couples, a specific, oft-overlooked group whose legal status is arguably affected by that decision.

This inquiry is urgent because it is difficult to imagine a legislative process that does not permit at least some moral justifications. Even Professor Suzanne Goldberg, quoted above, (28) can ardently support the outcome in Lawrence, (29) which overruled Bowers v. Hardwick, (30) and yet concede: "Notwithstanding Bowers's flawed conclusion that statements of majoritarian morality alone sufficed to justify Georgia's sodomy law, Justice White was probably correct that '[t]he law ... is constantly based on notions of morality.'" (31) The real contest lies in determining which moral arguments are impermissible. Whereas some commentators would permit legislation which is otherwise founded on morality, as long as the prevention of harm is among secondary justifications, (32) others recognize that our very...