37 Fair Empl.prac.cas. 1652,37 Empl. Prac. Dec. P 35,222royston E. Potter, Plaintiff-appellant, v. Murray City, a Municipal Corporation, Calvin G. Gillen,individually and in His Capacity As Chief of Police Ofmurray City, Murray City Civil Service Commission, Thehonorable Scott M. Metheson, As Governor of the State Ofutah, the Honorable David L. Wilkinson, As Attorney Generalof the State of Utah, the State of Utah and the Unitedstates of America, Defendants-appellees, 760 F.2d 1065 (10th Cir. 1985)

In this suit the plaintiff-appellant Royston E. Potter (plaintiff) challenges Utah's proscription against polygamy or plural marriage.¹  His principal claim is that the termination of his employment as a city police officer for the practice of plural marriage violated his rights to the free exercise of his religion and his right to privacy. On cross-motions for summary judgment, the district court ruled in favor of defendants, explaining its reasoning in a scholarly opinion. Potter v. Murray City, 585 F. Supp. 1126 (D. Utah 1984). Plaintiff appeals.

* Plaintiff is a former police officer of Murray City, Utah. The City terminated plaintiff's employment after it was learned that he practiced plural marriage. The basis for the discharge was that by his plural marriage plaintiff failed to support, obey and defend Article III of the Constitution of the State of Utah.

Plaintiff brought suit under 42 U.S.C. § 1983 and the First and Fourteenth Amendments. Brief of Appellant 1. He sought monetary damages against the City, its Chief of Police, and the Murray City Civil Service Commission. 585 F. Supp. at 1128. He also sought declaratory and injunctive relief against the State of Utah and its Governor and Attorney General to determine that Utah's laws prohibiting plural marriage are invalid and to enjoin their enforcement. Id. Because of the claim that Utah's proscription against plural marriages was mandated by Congress in Utah's Enabling Act as a condition for admission into the Union,²  the trial court on motion of the State of Utah ordered the United States to be joined as a party.

On appeal, plaintiff argues that (1) the portion of Utah's enabling act requiring that Utah forever prohibit polygamy is void by reason of the equal footing doctrine; (2) plaintiff's termination for practicing plural marriage violated his First Amendment right to the free exercise of religion; (3) his termination infringed on his fundamental right of privacy; and (4) his termination violated the constitutional guarantees of due process and equal protection because Utah's laws prohibiting plural marriage have long been in desuetude. Defendants disagree and also assert a number of defenses. We need not reach any of these arguments because we conclude that plaintiff's constitutional claims lack merit.

II

Analysis

Plaintiff argues that Utah's Enabling Act providing that polygamy will be forever prohibited violates the equal footing doctrine. Assuming, arguendo, that the Enabling Act does violate the doctrine, it would not entitle plaintiff to any relief.

The equal footing doctrine embraces the precept that each state is "equal in power, dignity, and authority," and that a state's sovereign power may not be constitutionally diminished by any conditions in the acts under which the State was admitted to the Union; any conditions imposed by Congress "would not operate to restrict the State's legislative power in respect of any matter which was not plainly within the regulating power of Congress." Coyle v. Smith, 221 U.S. 559, 567, 573, 574, 31 S. Ct. 688, 690, 692, 693, 55 L. Ed. 853 (1911).³  Assuming, arguendo, that the Enabling Act does violate the equal footing doctrine, as the district court recognized, the State of Utah had

full power since statehood to enact or amend in the manner provided by its own laws, any constitutional or statutory provisions dealing with the subject of marriage consistently with the Constitution of the United States as the supreme law of the land. The prohibition of polygamy as provided by its Constitution and laws, continues to be its settled public policy as does its commitment to monogamy as the cornerstone of its regulation of marriage.

585 F. Supp. at 1137.

We agree with the reasoning of the district court. If the original ban on polygamy and plural marriage was invalid, the State's power to incorporate such provisions in its Constitution and its laws remained. If there was an unlawful coercion in the Enabling Act, the Supreme Court of Utah observed some time ago that there has been no attempt to change the State's laws, " [n]or is such attempt likely." State v. Barlow, 107 Utah 292, 153 P.2d 647, 654 (1944), appeal dismissed for want of substantial federal question, 324 U.S. 829, 65 S. Ct. 916, 89 L. Ed. 1396 (1945) (per curiam).⁴ 

In sum, the plaintiff's claim based on the equal footing doctrine lacks merit.

In Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878), the Supreme Court affirmed a criminal conviction of a Mormon for practicing polygamy and rejected the argument that Congress' prohibition of polygamy violated the defendant's right to the free exercise of religion. Plaintiff argues that Reynolds is no longer controlling because later cases have "in effect" overturned the decision. Brief of Appellant 15. We disagree.

Plaintiff principally relies on Wisconsin v. Yoder. 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). There the Supreme Court held that the religious belief of the Amish that their salvation requires life in a church community apart from the world necessitated that they be exempted from a state law requirement that children attend public school beyond the eighth grade. Yoder explained that for a state to compel school attendance beyond the eighth grade when there is a claim that it "interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause." Id. 406 U.S. at 214, 92 S. Ct. at 1532. As Chief Justice Burger stated, " [t]he essence of all that has been said and written on the subject [of the Free Exercise Clause] is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Id. 406 U.S. at 215, 92 S. Ct. at 1533.

The parties have stipulated here for the purpose of the motions for summary judgment that plaintiff's practice of plural marriage is the result of a good faith religious belief. 585 F. Supp. at 1129. The plaintiff has made an undisputed showing that his two wives consented to the plural marriage, and that the wives and five children of the marriages receive love and adequate care and attention and do not want for any necessity of life. Plaintiff points out that the State defendants have not presented any empirical evidence that monogamy is superior to polygamy, nor has the Utah legislature ever considered whether its anti-polygamy laws are wise.⁵  Hence plaintiff argues that under Yoder, summary judgment should have been entered in his favor rather than for the defendants.⁶ 

We cannot disregard Reynolds, however, because in Yoder and afterwards the Supreme Court has recognized the continued validity of Reynolds. In Yoder, Reynolds was one of four cases that the Court cited in support of the proposition that " [i]t is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers." 406 U.S. at 220, 92 S. Ct. at 1535; see also id. 406 U.S. at 230, 92 S. Ct. at 1540. Since Yoder, the Court has said that " [s]tatutes making bigamy a crime surely cut into an individual's freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15, 93 S. Ct. 2628, 2641 n. 15, 37 L. Ed. 2d 446 (1973); see also Zablocki v. Redhail, 434 U.S. 374, 392, 98 S. Ct. 673, 684, 54 L. Ed. 2d 618 (1978) (Stewart, J., concurring in the judgment) (state may legitimately say that no one who has a living husband or wife can marry); id. 434 U.S. at 399, 98 S. Ct. at 688 (Powell, J., concurring in the judgment) (state has undeniable interest in insuring that its rules of domestic relations reflect widely held values of its people, and state regulation has included bans on incest, bigamy and homosexuality as well as various preconditions to marriage). Moreover, Reynolds has been cited with approval since Yoder. E.g., Bob Jones University v. United States, 461 U.S. 574, 603, 103 S. Ct. 2017, 2034-35, 76 L. Ed. 2d 157 (1983); United States v. Lee, 455 U.S. 252, 257, 102 S. Ct. 1051, 1055, 71 L. Ed. 2d 127 (1982); see also United States v. Dickens, 695 F.2d 765, 772 (3d Cir. 1982), cert. denied, 460 U.S. 1092, 103 S. Ct. 1792, 76 L. Ed. 2d 359 and 461 U.S. 909, 103 S. Ct. 1883, 76 L. Ed. 2d 812 (1983); United States v. Carroll, 567 F.2d 955, 957 (10th Cir. 1977) (per curiam).⁷ 

We are in agreement with the district court that the State of Utah

beyond the declaration of policy and public interest implicit in the prohibition of polygamy under criminal sanction, has established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.

585 F. Supp. at 1138.⁸  Monogamy is inextricably woven into the fabric of our society. It is the bedrock upon which our culture is built. Cf. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 680, 54 L. Ed. 2d 618 (1978) (marriage is foundation of family and society; "a bilateral loyalty"). In light of these fundamental values, the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship.

Plaintiff argues that his constitutional right to privacy prohibits the State of Utah from sanctioning him for entering into a polygamous marriage. Again we disagree.

We find no authority for extending the constitutional right of privacy so far that it would protect polygamous marriages.⁹  We decline to do so. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. at 68 n. 15, 93 S. Ct. at 2641 n. 15 (few today seriously claim that making bigamy a crime violates the First Amendment or any other constitutional provision).

Plaintiff further argues that Utah's laws prohibiting polygamy have fallen into desuetude. He says that there have been fewer than 25 prosecutions in Utah since 1952 for such offenses, that there are at least 5,000 to 10,000 polygamist family members in the State, and that during Chief Gillen's thirty year tenure he had never arrested anyone nor seen anyone arrested or prosecuted for violating Utah's anti-bigamy statute. Brief of Appellant 31; Appellant's Reply Brief 15. Thus he says that invoking laws which have long been in disuse to sanction him is a violation of the constitutional guarantees of due process and equal protection, citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), and People v. Acme Markets, Inc., 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555 (1975). See also United States v. Elliott, 266 F. Supp. 318, 326 (S.D.N.Y. 1967). We disagree.

Polygamy has been prohibited in our society since its inception. See Reynolds, 98 U.S. at 164-65. The prohibitions continue in full force today.¹⁰  We cannot agree that the discharge of plaintiff for engaging in bigamy violated any constitutional guarantee. The showing made did not establish the enforcement of a "basically obsolete or an empty law whose function has long since passed." United States v. Elliott, 266 F. Supp. at 326. The showing of minimal numbers of prosecutions does not establish an abandonment of the State's laws and an irrational revival of them here. " [M]ere failure to prosecute other offenders is no basis for a finding of denial of equal protection." United States v. Blitstein, 626 F.2d 774, 782 (10th Cir. 1980), cert. denied, 449 U.S. 1102, 101 S. Ct. 898, 66 L. Ed. 2d 828 (1981); see also United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983), cert. denied, --- U.S. ----, 105 S. Ct. 789, 83 L. Ed. 2d 783 (1985); United States v. Dukehart, 687 F.2d 1301, 1303 (10th Cir. 1982); United States v. Amon, 669 F.2d 1351, 1355-56 (10th Cir. 1981), cert. denied, 459 U.S. 825, 102 S. Ct. 57, 74 L. Ed. 2d 61 (1982). Selectivity in the enforcement of laws is subject to constitutional constraints. Nevertheless, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Amon, 669 F.2d at 1355.

III

Conclusion

In sum, we find no error in the conclusions of the district court and uphold the summary judgment on the merits for the defendants, except as to the United States. In the case of the United States, the judgment in its favor was grounded on the same reasoning applied elsewhere in the court's opinion, namely that no violation of any constitutional rights was established. With that conclusion we agree, but more fundamentally, " [t]he United States, as sovereign, is immune from suit save as it consents to be sued," United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 2d 1058 (1941), and there is no jurisdictional grant with respect to this controversy as to the United States.¹¹ 

Accordingly, we vacate the order of joinder of the United States. As thus modified, the judgment is in all respects affirmed.

MODIFIED AND AFFIRMED.