Judge shoots down challenge to ban

State constitution’s polygamy prohibition won’t be an issue in FLDS man’s trials

Kingman Daily Miner/January 13, 2006
By Jennifer Bartlett

Kingman -- Superior Court Judge James Chavez denied three separate motions challenging the state constitutional ban on polygamy in the case of David Romaine Bateman, one of eight men from Colorado City facing criminal charges.

The attorneys in this case presented oral arguments Thursday on seven separate motions filed by defense attorney Bruce Griffen.

Griffen asked Chavez to invalidate the Arizona Constitutional ban on polygamy. He said that, given a modern analysis of the religious practices of the Fundamental Church of Jesus Christ of Latter Day Saints, it was no longer a valid ban. The religious practices of Bateman, he said, would inevitably come into the case and the ban adversely affects the defense.

Chavez asked Griffen how a Superior Court ruling would affect the proceedings in this case, given that the defendant is not charged with polygamy.

Griffen responded that the ban has a ripple affect which prohibits his client from adequate defense. He also said that if the ban was not challenged in cases such as this one, there would be no opportunity to challenge given that there is no criminal law to go along with it. No one would ever be charged with polygamy, allowing the ban to never be challenged.

Mohave County Attorney Matt Smith said he agreed with Chavez’s initial statement that there was no place for the request in this case.

He also said that there were more appropriate places to challenge the constitutional ban, such as the decertification of officers on the sole basis that they practice polygamy.

Chavez denied the motion, saying that it was an inappropriate time to challenge the constitutional ban given that it had no relevance on the case.

The other two motions regarding the constitutional ban on polygamy concerned Griffen’s assertion that Bateman was not receiving due process because he was unable to use the defense that the minor was his spouse. He first stated that due process was not being given because the state was being allowed to interfere and apply moral codes to family matters and regulate marriages.

Chavez denied that motion due to the assertion that the state does have the authority to regulate sexual conduct with minors.

Griffen also argued that his client was being discriminated against because of his religious beliefs. Griffen alleged that discrimination was occurring when the state said it was fine for an adult to marry a minor with parent consent, but that it was not all right for someone who practices polygamy as part of a religion to engage in the same type of behavior. They are therefore being treated differently, he said, because they cannot use the defense that the minor is their spouse because of this discrimination.

Smith responded by saying that the law is, in fact, applied equally. FLDS members are allowed to legally marry someone under the age of 18 with parental consent as long is it is a legally binding ceremony. Second marriages or more are not legally recognized anywhere in the state of Arizona. Smith also said that the state obviously does not favor minors participating in marriage due to adding the condition that a child of 16 or 17 must obtain parental consent, and if younger, court consent as well. By adding these extra “hoops to jump through,” Smith said the state is stating its disapproval of the practice.

Smith also said that in order to be fair, the victim has to have the same rights as any other married minor. In the FLDS community, this is not the case if the “wife” is not the first. The victim enjoys no legal rights in the marriage.

Chavez denied the motion, saying that the state is afforded the right to regulate underage marriages.

Griffen also filed motions for a change of venue, to limit the scope of religious testimony and two motions to dismiss on the basis of defective timeframe and on grounds of duplicity. Chavez said he would take the last two under advisement and issue a determination at a later date. The change of venue was denied for now but was given the opportunity to come back at a later date if there is trouble in finding an impartial jury pool. As to the motion to limit, Chavez said it was inconceivable that the topic of Bateman’s religion would be completely avoided, but he would decide what would be admissible closer to the trial date.

Bateman is charged with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor, both Class 6 felonies. Chavez set a status hearing for 1:30 p.m. on Feb. 15.