The case the Judge cited is from 1878.
Precedence going back 136 years...Reynolds v US
Facts of the Case
George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court.
Question
Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice?
Conclusion
No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.
http://www.oyez.org/cases/1851-1900/1878/1878_0
http://eom.byu.edu/index.php/Reynolds_V._United_States
Reynolds V. United States (98 U.S. 145 [1879]) was the first U.S. Supreme Court decision to interpret the "free exercise" language of the First Amendment to the U.S. Constitution. In giving an extremely narrow interpretation to that guarantee of religious freedom, the
Reynolds decision opened the way for legal suppression of the Mormon practice of plural marriage.
The Morrill Act (Act of July 1, 1862, 12 Stat. 501), which defined the crime of bigamy in U.S. territories, had been adopted for the express purpose of outlawing Mormon polygamous marriages. The First Amendment, however, expressly states that Congress shall "make no law…prohibiting the free exercise" of religion. The issue posed by the
Reynolds case was whether a federal bigamy statute could constitutionally be applied to a person who practiced polygamy as a matter of religious duty. The Court held that it could.
George Reynolds, an English immigrant to Utah, private secretary to Brigham Young, and husband of two wives, was found guilty in March 1875 of violating the antibigamy provision of the Morrill Act. The conviction was overturned by the Utah Supreme Court on procedural grounds (
United States V. Reynolds, 1 Utah 226 [1875]), but on retrial he was again convicted and was sentenced to two years in prison with a $500 fine. This conviction was upheld by the U.S. Supreme Court.
In applying the First Amendment's free exercise clause, Chief Justice Morrison R. Waite concluded 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" (98 U.S. 164). This distinction between protected religious
belief and unprotected religious
actions was followed for several decades, and this specific holding regarding plural marriage is still the law. Since 1940, however, the Court has said that religious conduct also may fall within the free exercise guarantee (
Cantwell V. Connecticut, 310 U.S. 296).
In Cantwell...the courts holds that actions are subject to regulation...
...
On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom...
http://en.wikipedia.org/wiki/Cantwell_v._Connecticut
