Full opinion text
MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT CLARK WADDOUPS, District Judge. TABLE OF CONTENTS Introduction Procedural Background Factual Background Historical Background Analysis I.No Genuine Dispute As To Any Material Fact II. Cohabitation in the 1973 Statute A. The Utah Supreme Court’s Interpretation of “Marry” in the Statute B. Strict or Heightened Scrutiny 1. Heightened Scrutiny under the Glucksberg Framework a. Polygamy b. Religious Cohabitation 2. Strict Scrutiny under the Free Exercise Clause a. Polygamy b. Religious Cohabitation i. Common-law marriage affected religious cohabitation in the nineteenth century. ii. The Statute is facially neutral under Hialeah. iii. The Statute is not operationally neutral under Hialeah. iv. The Statute is not generally applicable under Hialeah. v. The cohabitation prong is not narrowly tailored to advance a compelling state interest. 3. Heightened Scrutiny under Smith’s Hybrid Rights Analysis C. Rational Basis Review under the Due Process Clause D. Void for Vagueness under the Due Process Clause III. “Purports to Marry” in the 1973 Statute A. Construction of the Statute B. Understanding the Enabling Act and the Irrevocable Ordinance Conclusion INTRODUCTION Before the court are the parties’ cross motions for summary judgment relating to Plaintiffs’ facial and as-applied constitutional challenges to Utah’s bigamy statute, Utah Code Ann. § 76-7-101 (2013) (the “Statute”): Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 55). For the reasons discussed below, the court GRANTS Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant’s Motion for Summary Judgment (Dkt. No. 55). Accordingly, in Part II below the court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. As further analyzed in Part III below, after striking the cohabitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” and “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute. The court also terminates as moot Plaintiffs’ Motion to Strike Defendant’s Cross-Motion for Summary Judgment. (Dkt. No. 60.) PROCEDURAL BACKGROUND Plaintiffs named Utah Governor Gary R. Herbert, Utah Attorney General Mark Shurtleff, and Utah County Attorney Jeffrey R. Buhman in a lawsuit challenging the Statute as unconstitutional filed on July 13, 2011. The court ruled in its Memorandum Decision and Order dated February 3, 2012, 850 F.Supp.2d 1240 (D.Utah 2012), that Plaintiffs had standing to pursue the action against Defendant Buhman but dismissed Defendants Herbert and Shurtleff from the case, finding that Plaintiffs lacked standing to sue them in this action. (Dkt. No. 31.) Plaintiffs filed their Motion for Summary Judgment presenting detailed arguments on seven constitutional claims including due process, equal protection, free speech, free association, free exercise, the Establishment Clause, and 42 U.S.C. § 1983. (Dkt. No. 49.) Defendant Buhman responded by filing a Motion to Dismiss for Mootness at that time. (Dkt. No. 46.) On the date designated for response briefing Defendant Buhman then filed his Cross Motion for Summary Judgment and Response to Plaintiffs’ Motion for Summary Judgment (Dkt. No. 55) and a Motion to Stay Plaintiffs’ Motion for Summary Judgment Proceedings Pending a Determination of Mootness (Dkt. No. 58). After the court heard and resolved Defendants’ motions, Defendant completed briefing on the motions for summary judgment. The court was intrigued by the sheer lack of response in Defendant’s filing to Plaintiffs’ seven detailed constitutional claims. In fact, Plaintiffs pointed out that “[t]he lack of any substantive response to the instant motion puts Plaintiffs in the awkward position of replying to a non-response.” (Pis.’ Reply Mot. Summ. J. 2 [Dkt. No. 71].) Finally, outside of the briefing schedule ordered by the court, Defendant filed a Reply (Dkt. No. 73) in which he, for the first time, provided academic discussion about “social harms” arising from religious cohabitation in Utah, though no admissible evidence was proffered with his Cross-Motion, Response, or Reply, or in oral argument on the motions held on January 17,2013. FACTUAL BACKGROUND The court described the relevant facts underlying this lawsuit in its Memorandum Decision and Order dated February 3, 2012 and refers here to that discussion for a general review of the background. (Dkt. No. 31.) Weighing heavily in favor of the court’s disposition of these motions for Plaintiffs, the court finds no genuine dispute of the material facts outlined by Plaintiffs in their Motion. {See Pis.’ Mem. Supp. Mot. Summ. J. 1-7 [Dkt. No. 50].) As noted by Plaintiffs in their Reply Memorandum, Defendant only objects “to parts of four paragraphs in the factual background section” of Plaintiffs’ Memorandum supporting their Motion for Summary Judgment. (Pis.’ Reply 2-3 [Dkt. No. 71].) “Three of those paragraphs (3, 11, and 32) are objected to only to the extent that they ‘characterize’ the drafters (or enforcers) of the Anti-Bigamy Law as targeting primarily religious plural families.” {Id. at 3.) Moreover, the only fact actually contested by Defendant is Plaintiffs’ statement in Paragraph 20 of Plaintiffs’ factual background section that “state officials publicly denounced the Browns as committing crimes every night on television.” {See Def.’s Mem. Supp. Cross-Mot. and Resp. 2 [Dkt. No. 56].) The remaining facts are uncontested, and the court therefore finds the following undisputed material facts—quoted though renumbered from Plaintiffs’ “Factual Background”—to be relevant to its resolution of the pending motions: 1. The Statute covers not only polygamy but “cohabitation”—a term that encompasses a broad category of private relations in which a married person “purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101 (West 2010). 2. The practice of married individuals cohabiting with other people can include adulterous relations. Compl. ¶¶ 9-10, admitted in Answer ¶¶ 7-8. 3. The Browns are members of a religious group that believes polygamy is a core religious practice. Compl. ¶¶ 111-12; denied in Answer ¶ 48 but well supported by K. Brown Deck at ¶ 4; J. Brown Deck at ¶ 3; M. Brown Deck at ¶ 4. 4. The Brown family does not have multiple marriage licenses. Compl. ¶ 113; denied in Answer ¶ 48 but well supported by K. Brown Deck at ¶ 2; J. Brown Deck at ¶ 2; M. Brown Deck at ¶ 2. 5. There is only one recorded marriage license in the Brown family— that of Kody and Meri Brown. See id. 6. Prosecutions under the Statute have been rare and published cases in the last three decades only involve religious polygynists. Def.’s Mot. to Dismiss at 5-6 [Dkt. No.. 7]; Buhman Deck at ¶¶ 7-9 [Dkt. No. 8-1]; ... 7. Utah government officials are aware of thousands of polygamist families in the state and regularly interact with such families as part of the “Safety Net” program and other governmental programs. Compl. ¶¶ 152-55; admitted in Answer ¶ 55. 8. “The Sister Wives” is a reality show that explores the daily issues and realities of a plural family. 9. The content of “The Sister Wives” program includes the defense of plural families and discussion of the Browns’ religious beliefs in polygamy. 10. Utah government officials were aware that the Brown family was a plural or polygamist family for years before the first episode of “The Sister Wives” aired on TLC Network. Compl. ¶¶ 123-24; admitted in Answer ¶ 49; 11. The investigation of the Browns occurred only [after] the first episode of “The Sister Wives” aired. Compl. ¶ 158; admitted in Answer ¶ 58; 12. State officials have acknowledged that “The Sister Wives” program triggered their investigation. Compl. ¶ 163; admitted in Answer ¶ 60. This nexus was also acknowledged by Counsel for Defendant in the December 16, 2011 hearing ...; 13. State officials publicly denounced the Browns as committing crimes every night on television. Compl. ¶¶ 163-65; admitted in Answer ¶ 60; 14. One official connected to the investigation publicly stated the program made prosecution “easier.” Compl. ¶ 165; admitted in Answer ¶ 60; 15. The prosecutors stated that the Brown family moving to Nevada would not prevent them from prosecuting the family. Compl. ¶¶ 167-68; admitted in Answer ¶ 62; 16. The Defendant admitted, through counsel in the December 16, 2011 hearing, that prosecutors gave interviews discussing the Brown family, their alleged crime of polygamy, and the public investigation; 17. The Defendant has found no evidence of any crime by the Browns though he maintains future prosecutors can charge them as a matter of discretion and policy. Shortly before [Plaintiffs filed their Motion for Summary Judgment], the Defendant filed a Motion to Dismiss for Mootness and confirmed that the long investigation of the Brown[s] has been closed shortly before the planned summary judgment motions. He seeks to avoid review of the Statute based on the assurance that, while he cannot guarantee that they will not be prosecuted by others for polygamy in the future, he will not prosecute them unless he finds that they have also committed a collateral crime. Def.’s Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for Mootness at [4] [Dkt. No. 47] ...; 18. The Defendant has said that there is no guarantee that the Browns will not be prosecuted in the future for polygamy. Counsel for Defendant in the December 16, 2011 hearing ... (explaining that there are no current plans to prosecute the Brown family but that no one can say whether such prosecutions will occur in the future); [Second] Buhman Decl. ¶¶5, 12 [Dkt. No. 47-1]; 19. There has been no allegation of child or spousal abuse by members of the Brown family. Compl. ¶¶ 120-22; 20. No member of the Brown family has ever been charged with a crime. Compl. ¶ 122; admitted in Answer ¶ 49; (See Pis.’ Mem. Supp. Mot. Summ. J. at 2-7 [Dkt. No. 50].) In addition to the preceding undisputed material facts quoted from Plaintiffs’ Motion, the court finds the following additional undisputable material facts relevant to the disposition of the current motions: 21. Defendant swore under penalty of perjury that “[a]s Utah County Attorney, I have now adopted a formal office policy not to prosecute the practice of bigamy unless the bigamy occurs in the conjunction with another crime or a person under the age of 18 was a party to the bigamous marriage or relationship.” (Second Buhman Aff. ¶ 8 [Dkt. No. 47-1].) 22. Counsel for Defendant represented at oral argument on January 17, 2013 that the Statute is not intended to capture mere adultery or adulterous cohabitation (see, e.g., Tr. Hrg. Jan. 17, 2013, at 53:8-13), but that it is illegal under the Statute to participate in a wedding ceremony between a legally married individual and a person with whom he or she is cohabiting and/or to call that person a wife (Id. at 52:21-25; 53:16-21.) HISTORICAL BACKGROUND This decision is fraught with both religious and historical significance for the State of Utah because it deals with the question of polygamy, an issue that played a central role in the State’s development and that of its dominant religion, The Church of Jesus Christ of Latter-day Saints (the “LDS Church” or “Mormon Church”). The Brown Plaintiffs are not members of the LDS Church, but do adhere to the beliefs of a fundamentalist church that shares its historical roots with Mormonism. The proper outcome of this issue has weighed heavily on the court for many months as it has examined, analyzed, and re-analyzed the numerous legal, practical, moral, and ethical considerations and implications of today’s ruling. It would be an easy enough matter for the court to do as the Defendant urges and find against the Plaintiffs on the question of religious cohabitation under the Statute, defaulting simply to Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879) without seriously addressing the much developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices, though such legislatures may sincerely believe that such criminal sanctions are in the best interest of society. The court has concluded that this would not be the legally or morally responsible approach in this case given the current contours of the constitutional protections at issue. The court notes that 133 years after Reynolds, non-Mormon counsel for Plaintiffs have vigorously advanced arguments in favor of the right of religious polygamists to practice polygamy (through private “spiritual” marriages not licensed or otherwise sanctioned by the state, a relationship to which the court will refer as “religious cohabitation”) that would have perhaps delighted Mormon Apostles and polygamy apologists throughout the period from 1852 to approximately 1904. To state the obvious, the intervening years have witnessed a significant strengthening of numerous provisions of the Bill of Rights, and a practical and morally defensible identification of “penumbral” rights “of privacy and repose” emanating from those key provisions of the Bill of Rights, as the Supreme Court has over decades assumed a general posture that is less inclined to allow majo-ritarian coercion of unpopular or disliked minority groups, especially when blatant racism (as expressed through Orientalism /imperialism), religious prejudice, or some other constitutionally suspect motivation, can be discovered behind such legislation. It is worth noting the entrenched nature of an orientalist mindset among ruling elites during the time period when Reynolds was decided, an attitude that surely reached Congress and the United States Supreme Court as well, as discussed below. Professor Edward Said situated British, French, and American views of Middle Eastern, African, and Asian cultures and society (collectively, the “Orient”) in their cultural and imperial contexts, arguing that an ideology of the racial inferiority of the latter peoples emerges in the resulting “Orientalism” of the West, which, though idealizing the “Orient” in the arts as both exotic and romantic, see Said, supra note 10, at 98-99, also simultaneously denigrates it as socially and racially inferior, id. at 14-15, 92-110. Said posited that “so far as the West was concerned during the nineteenth and twentieth centuries, an assumption had been made that the Orient and everything in it was, if not patently inferior to, then in need of corrective study by the West.” Id. at 40-41. Indeed, “[t]he Orient was viewed as if framed by the classroom, the criminal court, the prison, the illustrated manual. Orientalism, then, is knowledge of the Orient that places things Oriental in class, court, prison, or manual for scrutiny, study, judgment, discipline, or governing.” Id. at 41. Thus, Said located “the essence of Orientalism” in “the ineradicable distinction-' between Western superiority and Oriental inferiority.” Id. at 42. Because the United States Supreme Court’s 1879 decision in Reynolds v. United States displays “the essence of Oriental-ism” through its explicit “distinction between Western superiority and Oriental inferiority,” this is a relevant interpretative framework for evaluating the “crusade” of nineteenth-century American society against Mormon polygamy and the merits of the Reynolds decision today. Although the object of the decision was the Mormon Church, an institution virtually entirely comprised of white Americans and European immigrants, rather than the “Orient” or a people or institution geographically unique thereto, Reynolds invokes this framework because of the corn-parisons drawn by the Court between Mormons and non-European peoples and their practices, and the Court’s views of the nature of the social harm posed by Mormon practices. For the Reynolds Court, the comparison with non-European peoples and their practices is precisely what made the Mormons’ practice of polygamy problematic. With this interpretive framework in mind, it is perhaps a bitter irony of the history at issue here that it is possible to view the LDS Church as playing the role of both victim and violator in the saga of religious polygamy in Utah (and America). When the federal government targeted Mormon polygamy for elimination during the half century from the passage of the Morrill Anti-Bigamy Act of 1862 through the Congressional inquiry into the seating of Utah Senator Reed Smoot from 1904 to 1907, the “good order and morals of society” served as an acceptable basis for a legislature, it was believed, to identify “fundamental values” through a religious or other perceived ethical or moral consensus, enact criminal laws to force compliance with these values, and enforce those laws against a targeted group. In fact, with the exception of targeting a specific group, this has remained -true in various forms (depending on the particular right and constitutional provision at issue) until the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) created ambiguity about the status of such “morals legislation.” But the LDS Church was a victim of such majoritarian consensus concerning its practice of polygamy as a foundational and identifying tenet of religious faith. See Reynolds, 98 U.S. at 166-67 (noting that Congress was “deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order”). Although the court doubts that Lawrence actually must be interpreted to signal the end of the, era in which the “good order and morals of society” are a rational basis for majoritarian legislation, there is no question this was the prevailing view in the 1870s. Amd, in fact, the decades-long “war” by the United States against the LDS Church—beginning with the Republican Party’s 1856 platform of abolishing American chattel slavery and Mormon polygamy as the “twin relics of barbarism” and culminating, depending on how one views the historical episode, with either the Enabling Act in 1894 requiring that Utah ensure that “polygamist or plural marriages are forever prohibited” in Utah as a condition for joining the Union as a State, or the seating of Utah Senator Reed Smoot in 1907—was based on a majoritarian consensus that Mormons were indeed “subversive Of good order” in their practice of polygamy. Id. But what exactly was the “social harm” identified by the Reynolds Court in the Mormon practice of polygamy that made the practice “subversive of good order”? “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Reynolds, 98 U.S. at 164. -Though Professor Said did not cite Reynolds in his text on Orientalism, this expression of the social harm identified in the Mormon practice of polygamy aptly exemplifies the concept. A decade later, the Supreme Court clarified the social harm further, explaining that Mormons were degrading the morals of the country through their religious practices, such as polygamy, which, the Supreme Court declared, constituted “a return to barbarism” and were “contrary to the spirit of Christianity.” Late Corp. of The Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49, 10 S.Ct. 792, 34 L.Ed. 478 (1890). It was not just that white American Mormons were engaging in a practice thought to be characteristic of Asiatic and African peoples who were believed, at the time, to be civilizationally and racially inferior, cf. Said, supra note 10, at 15, but also, as a practice of such peoples, “polygamy leads to the patriarchal principle,” which, “when applied to large communities, fetters the people in stationary despotism”— another racist or orientalist observation about this Mormon practice based in the “scientific” perspective of the day. Reynolds, 98 U.S. at 166 (citing Professor Francis Lieber, “a prominent intellectual and founder of American political science”); see also Gordon, supra note 2, at 119-45 (discussing Congress’s underlying concern that the Mormon Church was using polygamy to secure direct political dominance of the Territory of Utah (i.e. the “patriarchal principle”), and that this would continue in any future State of Utah). The practices were therefore objectionable because they were characteristic of “oriental” races including “Asiatic” and “African” peoples, both considered to be morally inferior based on such practices, and civilizationally inferior based on “the patriarchal principle” attributed to their societies, not to mention raciálly inferior. Accordingly, for the Reynolds Court, it was “impossible to believe that the constitutional guarantee of religious ¡freedom was intended to prohibit legislation in respect t'o this most important feature of social life,” referring to monogamous marriage. Reynolds, 98 U.S. at 165. Rather, “it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.” Id. at 166. White American Christians, the Court implied, legislate monogamy. Id. (comparing Mormon polygamy to Aztec or other indigenous ritual human sacrifice or the self-immolation of widows on their husbands’ funeral pyres in the British Raj). The only characteristic connecting Mormon polygamy to these two incongruous examples is that polygamy, in the orientalist view of late nineteenth-century America, was similarly attributed to Asiatic and African races. In other words, the social harm was introducing a practice perceived to be characteristic of non-European people—or non-white races—into white American society. “The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” Late Corp., 136 U.S. at 49,10 S.Ct. 792. This observation in Late Corp.—unthinkable as part of the legal analysis in a modern Supreme Court decision given the significant (and appropriate) development in the interpretation of the protections afforded to religious minorities under both the Establishment Clause and the Free Exercise Clause in the latter half of the twentieth century, and racial minorities under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as also recognized in the latter half of the twentieth century—was only a reiteration of the definitive position already taken by the Supreme Court more than a decade earlier in Reynolds. Cf. 98 U.S. at 164. Such an assessment arising from derisive societal views about race and ethnic origin prevalent in the United States at that time has no place in discourse about religious freedom, due process, equal protection or any other constitutional guarantee or right in the genuinely and intentionally racially and religiously pluralistic society that has been strengthened by the Supreme Court’s twentieth-century rights jurisprudence. Unfortunately, despite this “orientalist” strain in both Reynolds and Late Corp., not to mention myriad statements in the Congressional Record behind the legislation at issue in both of those cases and otherwise relating to the Mormon practice of polygamy spanning the half century from approximately 1856 (essentially the beginning of the federal campaign against polygamy) to 1907 (when Mormon Apostle Reed Smoot was finally seated in the Senate), the Supreme Court has periodically continued to cite Reynolds in Free Exercise cases, most notably in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The court views Smith’s 1990 invocation of Reynolds in its analysis of the free exercise claim at issue there—whether Oregon could deny unemployment benefits to those dismissed from their jobs for the religiously motivated use of peyote, which was defined and prohibited by state statute as a controlled substance—as unfortunate and unnecessary for the holding in Smith. That reference (and other similar citations to Reynolds by the Supreme Court and the Tenth Circuit) can mistakenly give the impression of endorsing the morally repugnant reasoning in Reynolds. But Justice Scalia, writing for the majority in Smith, also provided the way forward for this case in Smith’s identification of a “hybrid rights” framework ancillary to the primary question of the legislature’s ability to enact “a neutral, generally applicable law to religiously motivated conduct,” as discussed below. Smith, 494 U.S. at 881, 110 S.Ct. 1595. The court need not be entirely bound by the extremely narrow free exercise construct evident in Reynolds', that case is, perhaps ironically considering the content of the current ease, not controlling for today’s ruling that the cohabitation prong of the Statute is unconstitutional. In fact, the court believes that Reynolds is not, or should no longer be considered, good law, but also acknowledges its ambiguous status given its continued citation by both the Supreme Court and the Tenth Circuit as general historical support for the broad principle that a statute may incidentally burden a particular religious practice so long as it is a generally applicable, neutral law not arising from religious animus or targeted at a specific religious group or practice. The court therefore defers to Reynolds as binding on the limited question of any potential free exercise right to the actual practice of polygamy. In the religious cohabitation at issue in this case, however, the participants have “consciously chose[n] to enter into personal relationship[s] that [they] knew would not be legally recognized as marriage” even though they “used religious terminology to describe [the] relationship[s].” State of Utah v. Holm, 2006 UT 31, ¶ 172, 137 P.3d 726, 773 (Durham, C.J., dissenting). They make no claim to having entered into legal unions by virtue of their religious cohabitation, having instead “intentionally place[d] themselves outside the framework of rights and obligations that surround the marriage institution.” Id. In light of this, despite any applicability of Reynolds to actual polygamy (multiple purportedly legal unions), the cohabitation prong of the Statute is not operationally neutral or of general applicability because of its targeted effect on specifically religious cohabitation. It is therefore subject to strict scrutiny under the Free Exercise Clause and fails under that standard. Also, in these circumstances, Smith’s hybrid rights exception requires the court to apply a form of heightened scrutiny to Plaintiffs’ constitutional claims, including their Due Process claim, since each of those constitutional claims are “reinforced by Free Exercise Clause concerns,” 494 U.S. at 882, 110 S.Ct. 1595, in light of the specifically religious nature of Plaintiffs’ cohabitation. Alternatively, following Lawrence and based on the arguments presented by Defendant in both his filings and at oral argument, the State of Utah has no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue here; thus, the cohabitation prong of the Statute is facially unconstitutional, though the broader Statute survives in prohibiting bigamy. ANALYSIS I. NO GENUINE DISPUTE AS TO ANY MATERIAL FACT Rule 56(a) of the Federal Rules of Civil Procedure requires the court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Under this standard for summary judgment, the moving party must first establish the absence of a genuine issue of material fact on the claims or elements as to which it is moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1168-1169 (10th Cir.2010) (“The moving party has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.”) (internal quotation marks removed). Then, “in response to a properly supported motion for summary judgment, a non-movant must produce sufficient evidence for a reasonable trier of fact to find in its favor at trial on the claim or defense under consideration.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir.2010). But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Thus, “there is no issue for trial unless there is sufficient evidfence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249, 106 S.Ct. 2505. Ultimately, Defendant only genuinely disputes one fact presented by Plaintiffs as material to their motion. (See Def.’s Mem. Supp. Cross-Mot. and Resp. 2 [Dkt. No. 56] (responding to Plaintiffs’ allegation that “state officials publicly denounced the Browns as committing crimes every night on television” by explaining that “I never stated publicly that I would or would not prosecute the Browns, though I am aware that others in my office may have responded to the press to that effect (or at least the press reported that they did)”).) As Plaintiffs observe, however, their “factual representation refers to ‘state officials,’ and thus is neither rebutted nor disproven by a representation concerning Mr. Buhman individually, even if accepted as true.” (Pls.’ Reply Mot. Summ. J. 4 [Dkt. No. 71].) The court agrees. Moreover, Defendant proffered no evidence that would be admissible at a trial either in support of his own motion or in opposition to Plaintiffs’ motion. The academic discussion of the “social harm” attributable to fundamentalist Mormon polygamy first presented in Defendant’s Reply brief does not constitute the “sufficient evidence” required “for a reasonable trier of fact to find in [his] favor at trial on the claim ... under consideration.” Nahno-Lopez, 625 F.3d at 1283; Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Accordingly, the court finds no .genuine dispute of material fact that would preclude the court from engaging the mechanism of summary judgment in this case. As analyzed below, the court finds that Plaintiffs are entitled to summary judgment as a matter of law. II. COHABITATION IN THE 1973 STATUTE A. The Utah Supreme Court’s Interpretation of “Marry” in the Statute Plaintiffs challenge the constitutionality of the Statute on multiple grounds, arguing both that the Statute is facially unconstitutional and unconstitutional as applied to the Plaintiffs. The Statute provides that “[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013). “It is axiomatic that state courts' are the final arbiters of state law.” United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir.Okla.2004) (citing Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)). The court is therefore bound by the Utah Supreme Court’s interpretation of the Statute, see R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), most recently in State of Utah v. Holm, 2006 UT 31, 137 P.3d 726. In Holm, the Utah Supreme Court affirmed the defendant’s conviction for unlawful sexual conduct with a minor under section 76-5^401.2 of the Utah Code as well as bigamy under the Statute, but did not find occasion to construe the phrase “or cohabits with another person” because it rested its holding as to the bigamy conviction on its interpretation of the term “marry” and the phrase “purports to marry.” 2006 UT at ¶ 33,137 P.3d at 737 & n. 7. Construing “purports to marry” in the Statute, the Utah Supreme Court analyzed the definition of “marry” in Black’s Law Dictionary, including “discrepancies between the definitions provided for ‘marriage’ and ‘polygamy’ in the seventh and eighth editions of Black’s Law Dictionary” (opting generally for the definitions provided in the seventh edition), id. at ¶ 19 n. 5, and the use of the word “marriage” in other sections of the Utah Code, id. at ¶¶ 23-25, and held that “the term ‘marry,’ as used in the bigamy statute, includes both legally recognized marriages and those that are not state-sanctioned.” Id. at ¶ 18, 137 P.3d at 733. “[T]he plain meaning of the term ‘marry,’ as it is used in the bigamy statute, supports our conclusion that it encompasses both marriages that are legally recognized and those that are not.” Id. at ¶21, 137 P.3d at 734. Because the Statute is unambiguous, the Court held, it was not necessary to “look to other interpretive tools such as legislative history.” Id. at ¶ 16, 137 P.3d at 733. Nevertheless, the Court also found support for its interpretation in those sources. Id. at ¶ 26, 137 P.3d at 735. Thus, the Court held that it was “constrained to conclude that an unlicensed, solemnized marriage can serve as a subsequent marriage that violates the bigamy statute.” Id. In other words, “it is clear that the Legislature intended ‘marry’ to be construed to include marriages that are not state-sanctioned.” Id. at ¶ 22, 137P.3d at 734. This, in turn, according to the Court, means that “the bigamy statute does not require a party to enter into a second marriage (however defined) to run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s terms.” Id. (emphasis added). This broad interpretation of “marry” in the Statute, which itself includes cohabitation, is the focus of this section of the court’s decision together with the cohabitation prong; the “purports to marry” prong is addressed below in Part III in its relation to the 1894 Utah Enabling Act and Irrevocable Ordinance in the Utah State Constitution. As Plaintiffs correctly note, the Utah Supreme Court’s interpretation of “marry” in the Statute in Holm means that the Statute “criminalizes not only privately ‘marrying’ someone after having legally married, but also merely cohabiting with a second adult partner after having married a first partner.” (Pis.’ Mem. Supp. Mot. Summ. J. 9 [Dkt. No. 50].) This, argue Plaintiffs, is unconstitutional under numerous independent constitutional provisions, as discussed below. B. Strict or Heightened Scrutiny Though the court is bound by the Utah Supreme Court’s interpretation of the Statute in Holm (with the particular relevance of its broad construction of the word “marry”), it is not bound by that Court’s denial of Holm’s federal constitutional claims. See Holm, 2006 UT at ¶¶ 49-87, 137 P.3d at 741-48 (rejecting Holm’s federal Free Exercise, Due Process, and Freedom of Association claims). At oral argument, Plaintiffs suggested that' “the narrowest ground upon which this court can find for the plaintiff is under the Due Process Clause.” (Tr. Hrg. Jan. 17, 2013, at 47:24-25 [Dkt. No. 75].) The court will therefore first examine the constitutionality of the Statute, as interpreted by the Utah Supreme Court in Holm, under the Due Process Clause of the Fourteenth Amendment. 1. Heightened, Scrutiny under the Glucksberg Framework In its “Due Process Clause,” the Fourteenth Amendment provides that a State shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Supreme Court has held that “[t]he Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Rather, the Due Process Clause has been held “to cover a substantive sphere as well, ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’ ” County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (U.S.1998) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Under this doctrine of “substantive due process,” the Fourteenth Amendment “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (emphasis in original). This “heightened protection,” Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258, or “heightened scrutiny”—under which any infringement of a fundamental liberty interest must be found to be narrowly tailored to serve a compelling state interest—is “only” applied to “fundamental rights” under the substantive due process analysis. See Lawrence, 539 U.S. at 593, 123 S.Ct. 2472 (Scalia, J., dissenting) (emphasis in original). The Supreme Court has outlined the framework for evaluating a claim to the existence of a fundamental right. This “established method of substantive-due-process analysis has two primary features.” Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258. First, the asserted “fundamental right” (or “fundamental liberty”) must be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. (internal citations and quotations omitted). Second, the analysis requires “a ‘careful description’ of the asserted fundamental liberty interest.” Id. As a practical matter, the Tenth Cir: cuit applies this Glucksberg framework by addressing the second prong first to narrow the inquiry: “a plaintiff asserting a substantive due process right must both (1) carefully describe the right and its scope; and (2) show how the right as described fits within the Constitution’s notions of ordered liberty.” Seegmiller v. Laverkin City, 528 F.3d 762, 769 (10th Cir.2008); cf. Williams v. Att’y Gen. of Ala. (“Williams IV”), 378 F.3d 1232, 1239 (11th Cir.2004) (“First, in analyzing a request for recognition of a new fundamental right, or extension of an existing one, we must begin with a careful description of the asserted right.”) (internal quotation marks and citation omitted). If the narrowly asserted right qualifies as “fundamental” based on this two-pronged Glucksberg analysis, then “only heightened scrutiny” of the state’s interference with such right would be “appropriate.” Seegmiller, 528 F.3d at 771 (quoting Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 for the content of this “heightened protection”—that “the government may not infringe a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest”) (internal quotation marks omitted). If the asserted right does not qualify as “fundamental” under this analysis, “rational basis review” applies, under which “the state may regulate an interest pursuant to a validly enacted state law or regulation rationally related to a legitimate state interest.” Id. (quoting Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (“[Njarrow tailoring is required only when fundamental rights are involved.”)). The court first considers Plaintiffs’ claim to the heightened protection afforded under the Glucksberg substantive due process analysis and finds that prevailing precedent binding on this court precludes the application of heightened scrutiny under the Glucksberg framework, both for polygamy and religious cohabitation. a. Polygamy. Preliminarily, the court finds that “polygamy” fails to qualify as a fundamental right under the Glucks-berg analysis. In truth, the court disagrees with Defendant’s assertion that Plaintiffs are arguing that the fundamental rights analysis (under Lawrence) requires “the State to sanction their polygamous marriages.” (Def.’s Mem. Supp. Cross-Mot. and Resp. 9 [Dkt. No. 56].) To the contrary, “[t]he Browns have not questioned the right of the state to limit its recognition of marriage and to prosecute those citizens who secure multiple marriage licenses from the state.” (Pis.’ Opp. Def.’s Mot. Summ. J. 26 [Dkt. No. 72].) But in the interest of completeness on this issue of such acute importance in the State of Utah, the court briefly considers actual “polygamy” under the Glucksberg framework before moving on to the “carefully described” liberty interest in religious cohabitation that Plaintiffs are claiming. As noted above, and perhaps somewhat surprisingly given the court’s introductory comments about Reynolds, the court finds that there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right, see Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258; Seegmiller, 528 F.3d at 769, no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. See Utah Code Ann. § 76-7-101. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (internal citations omitted). Glucksberg concerned a challenge to a statute in the State of Washington prohibiting assisted suicide, including physician-assisted suicide. In its analysis, the Supreme Court carefully described the asserted fundamental liberty interest as “whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” Id. at 723,117 S.Ct. 2258. The Court referred to the 700 year history of the prohibition of suicide in Anglo-American law (as well as considering other countries’ posture toward it), beginning with evidence of its prohibition as early as the thirteenth century in Henry de Bracton’s treatise on the Laws of England. Id. at 711, 117 S.Ct. 2258 (quoting 2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transí., 1968)). Sir William Blackstone observed that this was still integral to the common law in the eighteenth century in his Commentaries on the Laws of England, which also was “a primary legal authority for 18th and 19th century American lawyers.” Id. at 712, 117 S.Ct. 2258. “For the most part, the early American colonies adopted the common-law approach.” Id. at 712-19, 117 S.Ct. 2258 (discussing the prohibition in the American colonies, early State statutes, and the development of statutes— beginning as early as 1828 in New York— explicitly prohibiting assisted suicide). “By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide.” Id. at 715, 117 S.Ct. 2258. Finally, “the Model Penal Code also prohibited ‘aiding’ suicide, prompting many States to enact or revise their assisted-suicide bans.” Id. at 715-16, 117 S.Ct. 2258. The Court concluded that to identify a fundamental right to assisted suicide, the Court “would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State.” Id. at 723, 117 S.Ct. 2258. The Court also declined to consider the substantive due process interest at issue framed much more broadly as “reflecting a general tradition of ‘self-sovereignty’ ” or “that the ‘liberty’ protected by the Due Process Clause includes ‘basic and intimate exercises of personal autonomy.’ ” Id. at 724, 117 S.Ct. 2258 (quoting Brief of Respondents 12). Instead, the Court returned the focus of the analysis to the “careful description” of the asserted fundamental interest, which it framed as “whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance.” Id. at 724, 117 S.Ct. 2258. In light of its historical analysis, the Court observed that “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728, 117 S.Ct. 2258. Thus, the Court held that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.” Id. The prohibition against polygamy has similarly ancient roots in Anglo-American law. The court need not look as far back as the Council of Hereford in 673 A.D. in this fundamental rights analysis; it is sufficient to trace the prohibition to the 1603 Statute of James, “An act to restrain all Persons from Marriage until their former Wives and former Husbands be dead.” 1 James 1, ch. 11, § 2 (quoted in Model Penal Code § 230.1 cmt. 1, Background at 371 n.l (1980)). “Prior to that, problems of plural marriage were dealt with exclusively by the ecclesiastical authorities.” Model Penal Code § 230.1 cmt. 1, Background at 371-72. As Chief Justice Durham of the Utah Supreme Court observed, the policy behind this ancient prohibition of polygamy seems to have centered on the often fraudulent nature of a polygamous marriage: “Such an act defrauds the state and perhaps an innocent spouse or purported partner.” Holm, 2006 UT at ¶ 168, 137 P.3d at 771 (Durham, C.J., dissenting). Moreover, and with increased relevance for the prohibition as carried forward into the laws of most States of the Union, “[i]t also completely disregards the network of laws that regulate entry into, and the dissolution of, the legal status of marriage, and that limit to one the number of partners with which an individual may enjoy this status.” Id. The text of the Statute of James substantiates this, providing as justification for the enactment that “divers evil des-posed Persons being married, run out of one County into another, or into Places where they are not known, and there become married, having another Husband or Wife living, to the great Dishonour of God, and utter undoing of divers honest Men’s Children....” 1 James 1, ch. 11, § 2, art. I (emphasis added). In his Commentaries on the Laws of England, Sir William Blackstone—so important for the American colonists in continuing the institution of England’s common law—observed that “bigamy” or “polygamy” was “a felonious offense with regard to this holy estate of matrimony.” William Blackstone, 4 Commentaries MbS-bS. As with suicide, the American colonies adopted this English approach to polygamy and most of them prohibited it from the beginning. See generally Model Penal Code § 230.1 cmt. 1, Background at 370-75. As states joined the Union, they either enacted their own anti-bigamy statutes derived from this English precedent or adopted territorial prohibitions on the practice of polygamy, as did Utah by referring in its 1895 Constitution to the 1892 territorial law prohibiting polygamy, see Utah Const, art. XXIV, § 2. Id. The court therefore finds that, as with assisted suicide, no fundamental right exists under the Glucksberg framework to engage in polygamy; that is, to enter into a second purportedly legal matrimonial union when already legally married. Many people who currently practice “polygamy,” however, including Plaintiffs, do not have any expectation that their purported marriages will be legally recognized even though they describe their often religiously motivated cohabitation as “marriage,” “polygamy,” or “plural marriage.” b. Religious Cohabitation. The relationship at issue in this lawsuit, which the court has termed “religious cohabitation,” has been aptly described by then Chief Justice Durham of the Utah Supreme Court. Religious cohabitation occurs when “[t]hose who choose to live together without getting married enter into a personal relationship that resembles a marriage in its intimacy but claims no legal sanction.” Holm, 2006 UT at ¶ 172, 137 P.3d at 773 (Durham, C.J., dissenting). Those who choose to live in these relationships “intentionally place themselves outside the framework of rights and obligations that surrounds the marriage institution.” Id. A defining characteristic of such cohabitation as lived by Plaintiffs and those similarly situated is that, in choosing “to enter into a relationship that [they know] would not be legally recognized as marriage, [they use] religious terminology to describe the relationship,” and this terminology—“ ‘marriage’ and ‘husband and wife’—happens to coincide with the terminology used by the state to describe the legal status of married persons.” Id. Stated succinctly, Plaintiffs “appropriate the terminology of marriage, a reveréd social and legal institution, for [their] own religious purposes,” though not purporting “to have actually acquired the legal status of marriage.” Id. at ¶ 123, 137 P.3d at 773. But this religious cohabitation also fails to qualify as a fundamental right or fundamental liberty interest triggering heightened scrutiny under the Glucksberg substantive due process analysis. Plaintiffs provide the “careful description” of the asserted fundamental right— the required first, step of the analysis in the Tenth Circuit, see Seegmiller, 528 F.3d at 769—as follows: “a fundamental liberty interest in choosing to cohabit and maintain romantic and spiritual relationships, even if those relationships .are termed ‘plural marriage’.” (Pis.’ Mem. Supp. Mot. Summ. J. 11 [Dkt. No. 50].) Plaintiffs truncate the Glucksberg analysis by reference to Lawrence, which they argue establishes “a fundamental liberty interest in intimate sexual conduct” (Pls.’s Opp. Def.’s Mot. Summ. J. 19 n.16 [Dkt. No. 72]), thus prohibiting the state “from imposing criminal sanctions for intimate sexual conduct in the home.” (Pis.’ Mem. Supp. Mot. Summ. J. 9 [Dkt. No. 50].) “Lawrence was the latest iteration in a long series of constitutional decisions amplifying a core principle: the Due Process Clause circumscribes and in some cases virtually forbids state intervention in private relationships and conduct.” (Pls.’s Opp. Def.’s Mot. Summ. J. 22 [Dkt. No. 72].) , Plaintiffs’ arguments about the meaning and implications of Lawrence for the State’s ability to criminalize their private conduct of religious cohabitation are very persuasive. But Lawrence provides less specific guidance than would be desirable, primarily because the enigmatic decision eschews a formal, technical analysis of the level of detail modeled in the Glucksberg framework for analyzing claims to substantive due process protecting carefully described fundamental rights. Unfortunately, the decision also never explicitly identifies the standard of review applied and, though providing a substantive due process discussion that could fairly easily support an interpretation that heightened scrutiny was indeed applied, the Court used some terminology arguably characteristic of rational basis review in ruling Texas’ anti-sodomy statute unconstitutional. See Lawrence, 539 U.S. at 586, 123 S.Ct. 2472 (Scalia, J., dissenting) (arguing that the majority applied “an unheard of form of rational basis review” to strike down Texas’ anti-sodomy law). But see Lawrence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1917 (2004) (arguing that “the strictness of the Court’s standard in Lawrence, however articulated, could hardly have been more obvious” and to assume that rational basis review was applied “requires overlooking passage after passage in which the Court’s opinion indeed invoked the talis-manic verbal formula of substantive due process but did so by putting the key words in on unusual sequence of another”). Instead, the Supreme Court in Lawrence offered a high-level contemplation of a much broader fundamental value, a deeper unifying principle, that it held to transcend specific narrowly defined individual fundamental rights in the “substantive reach of liberty under the Due Process Clause” and expressed in its long line of substantive due process cases. Lawrence, 539 U.S. at 564,123 S.Ct. 2472. That is, in overturning Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the Court explained that Bowers had incorrectly upheld an anti-sodomy statute because the Court'had “failed to appreciate the extent of the liberty at stake” and had defined the asserted fundamental right at issue in Bowers too narrowly simply as “a fundamental right [of] homosexuals to engage in sodomy.” Id. at 567-68, 123 S.Ct. 2472. “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 568, 123 S.Ct. 2472. Rather, the Court in Lawrence identified a deeper liberty interest that ran through its substantive due process line of cases, unifying them by reference to this underlying commitment to liberty itself: Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In pur tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. Id. at 562, 123 S.Ct. 2472. The Court thus framed the inquiry as “whether the petitioners were free as adults to engage in the private conduct [of homosexual sodomy] in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Id. at 564, 123 S.Ct. 2472. Anti-sodomy statutes such as those in Bowers and Lawrence, and similar laws “that purport to do no more than prohibit a particular sexual act,” invariably “have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.” Id. at 567, 123 S.Ct. 2472. Thus, “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. (emphasis added). Moreover, the Court acknowledged that “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.... The liberty protected by the Constitution allows homosexual.persons the right to make this choice.” M After broadening the actual liberty interest at issue in Bowers and Lawrence through this redefinition, the Lawrence Court then implicitly seemed to loosely follow the Glucksberg framework for analyzing substantive due process claims— though without ever citing to or referencing Glucksberg—by proceeding to engage in a brief historical analysis of the asserted liberty interest, finding “the historical grounds relied upon in Bowers” to be “more complex than the majority opinion and the concurring opinion ... indicate.” Id. at 567-71, 123 S.Ct. 2472. In this process, the Court addressed the historical analysis in Bowers, while reiterating the broader liberty interest it considered to be at issue, in language that has become one of the key messages of Lawrence: It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Id. at 571, 123 S.Ct. 2472 (emphasis added). The Court then determined that in the applicable historical analysis, the “laws and traditions in the past half century are of most relevance,” id. at 571-72, 123 S.Ct. 2472, including taking into account the “moribund character” of such laws based on an observable “history” or “pattern of nonenforcement with respect to consenting adults acting in private.” Id. at 572-73, 123 S.Ct. 2472. Even if not enforced, criminalizing such private, consensual conduct, is an “invitation to subject homosexual persons to discrimination both in the public and the private spheres” and thus even the continued existence of Bowers “as precedent demeans the lives of homosexual persons.” Id. at 575,123 S.Ct. 2472. As a result, the Court overturned Bowers, holding that Justice Stevens’ dissenting analysis “should have been controlling in Bowers and should control here.” Id. at 578, 123 S.Ct. 2472. Lawrence involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle” and “are entitled to respect for their private lives.” Id. Accordingly, based on the broader liberty analysis, the Court held that [t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [Planned Parenthood of Southeastern Pa. v.] Casey, 505 U.S. [833], 847 [112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ].... The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Id. (emphasis added). This reference to the Texas statute furthering “no legitimate state interest which can justify its intrusion into the personal and private life of the individual” is what seems to frame the holding in the language of rational basis review rather than the heightened scrutiny implied by the entirety of the preceding analysis. See Lawrence, 539 U.S. at 586, 123 S.Ct. 2472 (Scalia, J., dissenting); Williams v. Att’y Gen. of Ala. (“Williams TV”), 378 F.3d 1232, 1236 (ilth Cir.2004) (holding that Lawrence declined the invitation “to recognize a fundamental right to sexual privacy” and that it “is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right—whether to homosexual sodomy specifically or, more broadly, to all forms of sexual intimacy” because Lawrence “did not employ fund