Ariz. Court Upholds Polygamist's Conviction

By the Associated Press
The Salt Lake Tribune

August 8, 2008

PHOENIX -- An Arizona appeals court has upheld the conviction of a Colorado City polygamist who argued that his marriage to an underage girl was protected by religious freedom.

Kelly Fischer was one of the so-called "Colorado City Eight," members of the Fundamentalist Church of Jesus Christ of Latter Day Saints who were prosecuted starting in 2005 for taking underage plural wives.

Fischer was convicted of sexual conduct with a minor and conspiracy.

In his appeal, he argued that Arizona's constitutional ban on plural marriage prevented him from legally marrying his new teenage bride.

The court ruling issued Tuesday rejected that defense and referred to similar U.S. Supreme Court rulings. It also said Arizona has a compelling interest in preventing child sexual abuse.

The unanimous opinion, written by Judge Donn Kessler, rejected Fischer's argument that his prosecution for sexual conduct with the girl violated his right to religious freedom under the federal Constitution's First and Fourteenth Amendments.

Fischer described the girl, who gave birth to his child when she was 17, as his "celestial wife."

Fischer did not say that he would have lawfully married the girl except for Arizona's antipolygamy law. Instead, the court said, he argued simply that a "celestial marriage" should be recognized under the statutory definition of a spouse. But, the court said, his challenge failed because Fischer did not show he would have had a statutory defense if plural marriage were not prohibited.

Arizona law also does not define marriage as valid without a license or if it is prohibited by law, the court said. And, it noted that the Arizona Constitution proclaims: "Polygamous or plural marriages, or polygamous cohabitation, are forever prohibited within this State."

The court also said while people have an unchallenged right to believe and profess whatever religious doctrine they want, they do not have an absolutely right to carry that out.

In supporting its position, the state court cited numerous U.S. Supreme Court rulings, including one noting that "Conduct remains subject to regulation for the protection of society."

The U.S. Supreme Court outlawed polygamy in an 1878 ruling.

In that case, Kessler noted, the high court said that to allow people to make their religious beliefs "superior to the law of the land ... (would) permit every citizen to become a law until himself."

The judges also cited a previous Arizona court ruling that said the state's strong interest in protecting minors enables it to constitutionally prohibit sexual activity with them, "regardless of any 'consent' by the minor to such activity."

Fischer's lawyer, David Goldberg of Flagstaff, said the ruling was consistent with federal law.

Goldberg said he'll petition for review by the Arizona Supreme Court, but any appeal to the federal courts would depend on his client's wishes.


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