Arturo Roberto Reid of both Allentown PA and Brooklyn NY was arrested on Wednesday for allegedly having two wives (one in each locale). Apparently the wives didn’t know about each other, and when the Brooklyn wife found out, she called the cops.

Those facts are, honestly, rather mundane, but what makes this case unique is that the cops then went and arrested Mr. Reid, and then the DA charged him with a crime. Local news coverage followed.

But here’s the thing about this case — the charge is probably unconstitutional. Mr. Reid with charged with misdemeanor bigamy under Pennsylvania law. The specific section 18 Pa. C.S. Section 4301(a) makes it a crime to for a “married person” to “contract[] or purport[] to contract another marriage.” Based on the allegations in news coverage, this case seems to fit the bill.

The problem though is that Mr. Reid most likely has a fundamental right to marry as many women as he wants. Now, before you start nitpicking, let me limit things a bit. I’m not saying he couldn’t be prosecuted for fraud or tax evasion or something depending on what actually might have happened. I’m just talking about the specific bigamy charge under the Pennsylvania statute.

The Supreme Court just reminded us that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples” “may not be deprived of that right and that liberty” just because they happen to be same-sex. Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015). The reason a state can’t ban same-sex marriage is because there isn’t any decent justification that can overcome the need for couples to exercise their right to marry. Id. at 2600-01. Taking away the right from gay couples is really just religious animus. Id. at 2600.

But there is really no way to take the reasoning in Obergefell and conclude that bigamy prosecutions are still valid. I mean, even before Obergefell was decided, a federal court had already ruled that Utah’s ban on polygamy, which applied to simple cohabitation, was unconstitutional because it had no “rational basis.” Brown v. Buhman, 947 F. Supp. 2d 1170, 1224-25 (D. Utah 2013). Obviously the Pennsylvania statute is different because it prohibits plural marriage, not just cohabitation, but that distinction is probably not enough to save it from a constitutional challenge.

But don’t take my word for it, Chief Justice Roberts, Joined by the late-justice Scalia and Justice Thomas wrote in his dissent in Obergefell:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman,947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

135 S.Ct. at 2621.

Chief Justice Roberts was making the bigamy argument as a dire warning about the implications of the Obergefell case, and while I disagree with his notion that allowing bigamy is a bad thing, the chief justice was right on the law. There’s just no way to say that a person doesn’t have a right to marry as many people as he wants to.

That brings me back to Mr. Reid. I’m not sure why the Lehigh County District Attorney felt the need to prosecute him for his alleged conduct. But I am reasonably sure that the prosecution is unlawful.

 

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