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Federal Judge Strikes Down Utah Law Against Polygamy, Or At Least Part Of It

TV Sister Wives

A Federal District Court Judge has struck down a Utah law against polygamy and “religious cohabitation” as unconstitutional in a case that is sure to add fuel to the ongoing debate over same-sex marriage, the proper role of the judiciary, and the proper role of government at any level in the private lives of free people:

A U.S. District Court judge has sided with the polgyamous Brown family, ruling that key parts of Utah’s polygamy laws are unconstitutional.

Judge Clark Waddoups’ 91-page ruling, issued Friday, sets a new legal precedent in Utah, effectively decriminalizing polygamy. It is the latest development in a lawsuit filed by the family of Kody Brown, who became famous while starring in cable TV channel TLC’s reality series “Sister Wives.” The showentered a fourth season at the end of the summer.

Waddoups’ ruling attacks the parts of Utah’s law making cohabitation illegal. In the introduction, Waddoups says the phrase “or cohabits with another person” is a violation of both the First and 14th amendments. Waddoups later writes that while there is no “fundamental right” to practice polygamy, the issue really comes down to “religious cohabitation.” In the 1800s — when the mainstream LDS Churh still practiced polygamy — “religious cohabitation” in Utah could have actually resulted in “multiple purportedly legal marriages.” Today, however, simply living together doesn’t amount to being “married,” Waddoups writes.

“The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it,” Waddoups later writes.

Utah’s bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words “marry” and “purports to marry,” meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licences.

The Browns could not immediately be reached Friday night, but issued a statement through their lawyer calling the decision humbling and historic.

“While we know that many people do not approve of plural families, it is our family and based on our beliefs,” Brown wrote. “Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.”

George Washington University Law Professor Jonathan Turley, who has been representing the Browns in this case since the case was filed in the summer of 2011, broke the news of the decision on his own blog last night:

It is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah.  The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause.   The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists.  The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.

The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns. It is a victory not for polygamy but privacy in America.

I first wrote about this case more than two years ago, back in July 2011 when it was first filed and, as I noted at the time, it is important to understand what this lawsuit was about and, also, what it wasn’t about. Unlike pretty much every other state in the Union, Utah’s statute against polygamy is very broad, not only does it outlaw legal marriages to more than one person at a time, commonly referred to as bigamy, but it also outlaws cohabitation with one or more persons while legally married to another. Legally, Kody Brown, the “husband” in Sister Wives, is only married to one person, However, he and his legal wife live in what is apparently completely consensual relationship that includes three other women, all of whom live together sharing their lives, household duties, and, well, other aspects of their relationships. There have also been children born from this relationship to each of the women involved and those children are raised by all the women together. In almost any other state in the country, there would be nothing illegal about this relationship. However, because Utah’s law also includes a provision that outlaws cohabitation as described above the Browns were, in fact, breaking Utah law and potentially subject to prosecution. The fact that they chose to publicize their relationship on television only seemed to make it more likely that, eventually, Utah authorities would seek to prosecute them given the fact that the state has a long history of cracking down on anything resembling polygamy ever since the Church of Jesus Christ Of Latter Day Saints repudiated the practice in 1890 as the price of Utah’s admission to the Union as a state.

It’s still a bit early in the day, so there hasn’t been a whole lot of reaction from the right to this decision, but one suspects that much of it will be similar to what we see from Law Professor Stephen Bainbridge, who called it “free excercise run amok” and said “[n]ext stop on the slippery slope express, I suppose, will be consensual adult incest marriages.” Examining the decision closely, though, as David Kopel does at The Volokh Conspiracy, it is rather apparent that Bainbridge’s knee jerk reaction to the headline of the decision is more than just a bit overwrought:

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “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).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application ofReynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

Rather, the case involved the unique part of the Utah statute, which defined “bigamy” to also include when X “cohabits with another person.” This criminalizes quite a lot of conduct which, these days, is pretty common. For example, X and A are civilly married. With A’s knowledge and consent, X spends some weekends at the home of his mistress, B, with whom he has sexual relations. Under the common law, this is the crime of adultery, and adultery is still a crime in some states. But as far as I know, no state other than Utah would describe such conduct as “bigamy.”

In the times we live in, there are all sorts of situations in which X + A are married, and one of them or both of them also cohabit with B. Utah currently disclaims any intention to prosecute X, A, or B. But Utah reserves the right to prosecute the three of them-and sometimes does-if and only if X+A+B claim to be married. This is not a claim made in the sense of marriage as recognized by the government. Prosecution can be based on a claim of marriage in the mere sense of saying “Under our personal value system, we consider the three of us to be married to each other.” Utah does not recognize common law marriage, so in Utah, just telling people that you are married cannot possibly confer the rights of civil marriage.

In the end, what this case is really about is whether a legally married husband and wife have the right, on their own, to enter into a consensual relationship with other people wherein they live together in what may appear from the outside to be a family and which they, as part of their own belief system consider to be a “marriage” of some kind. There’s nothing in the decision that establishes a legal right to a legal polygamous or polyandrous marriage, and in the eyes of Federal and state law Kody Brown remains legally married to only one woman. More important for this case, though, is the fact that the Utah statute specifically only prohibits cohabitation in those situations where the participants consider themselves to be living in a marriage in the eyes of whatever God they happen to believe in. Presumably, under this statute, a situation where a husband, wife, and two or three other women were all living together like the Brown’s do and, instead of considering themselves married simply consider themselves to be practicing what might be called a hedonistic or “swinging” lifestyle there would be no violation of the law. Additionally, as Judge Waddoups notes, it’s hard to see what the difference really is between the relationship the Browns have with each other and a marriage where both the husband and the wife are, with the knowledge and consent of the other, engaging in what might be called adulterous relationships. Such relationships may not be common, and many people may not approve of them, but that doesn’t mean that there is a Constitutional reason to justify the state from forbid them from taking place. Finally, the fact that even where it is a crime adultery is never prosecuted while the threat remains that Utah residents who live as a Browns do and hold a religious belief that they are “married” in some sense will be prosecuted by the state because they have a religious belief that their relationship is a kind of marriage. As Judge Waddoups notes, correctly I would submit that would seem to be a direct violation of the Equal Protection and Due Process Clauses of the 14th Amendment and of the precedent established by the Supreme Court in Lawrence v. Texas when it stated the following (emphasis mine):

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. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The 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.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge 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. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

(….)

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The 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.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

This logic would seem to me to be as equally applicable to the Browns as it was to Mr. Lawrence in the Texas case. If they wish to live together in the manner that they do, and as long as the relationship is completely consensual than it strikes me that it really isn’t any business of government at any level. These are all adults that we’re dealing with here, and based on the record there doesn’t seem to be anything about their relationship that has been harmful or abusive either to the adults involved or to the seventeen children that have resulted from the relationship. None of us are any obligation to morally approve of the relationship, of course, but moral disapproval in and of itself should not be a sufficient basis to make something a crime or to forbid it from happening. The Browns are choosing to live together in this manner, it appears to work out just fine for them, and there doesn’t seem to be any rational reason why how they chose to live should be considered a crime.

Does this mean that the Browns should be permitted to take the next step and established a legal polygamous marriage that would be entitled to the same legal benefits that two-person marriage is throughout the United States? That is, admittedly, a more difficult question. Recognizing a marriage legally ends up creating a whole host of rights and obligations under state and Federal law that may not translate well to multiple person marriage. That, however, is a practical observation rather than a principled one. It’s also a question for another day because it’s not one that the Browns are raising, even if it will be one that conservative critics of the decision will raise as they react to this decision.

Anticipating another argument that many on the right will likely make in response to this decision, it strikes me that this decision is only tangentially related to the issue of same-sex marriage. It’s related in the sense that the 14th Amendment arguments regarding the rights of people to live their private lives and consensual obligations free from state interference are issues in both situations, and also in the sense that the Utah law against “religious cohabitation” clearly treats a certain class of people differently in violation of the Equal Protection Clause. However, it’s unrelated in the sense that the arguments for same-sex marriage are merely seeking to extend to gay and lesbian couples the same rights and legal privileges already granted to opposite sex couples, whereas this case seeks to attack a provision of Utah law specifically punishing people for their religious beliefs. Indeed, for the most part, there is very little in this opinion that would be applicable outside of Utah and outside of the specific facts of this case. So, when you see the “slippery slope” crowd worrying that the next step along the road is, as Professor Bainbridge puts it, the legalization of adult incestuous marriage or the end of laws against incest themselves, you can largely dismiss it as little more than political rhetoric.

This is hardly the end of the road for this case, of course. Judge Waddoups’ decision is at odds with a 2006 decision from the Utah Supreme Court that upheld this very same law. It will, most likely, be appealed to the Tenth Circuit Court of Appeals and, from there, to the Supreme Court of the United States. What its ultimate fate ends up being is hard to say at this point, but it strikes me that Judge Waddoups, George W. Bush appointee by the way, ended up with the correct result, for the right reason, in this particular case. If the Brown’s want to live the way that they do, then it really shouldn’t be anyone’s business but their own.

Update: Jazz Shaw makes this point addressed to the inevitable conservative critics of the decision:

[W]hile a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible. The fears that some are expressing over the Brown decision, however, aren’t really related to this question and appear to be unfounded. The court didn’t strike down rules against actual polygamy – the practice of being licensed and married to more than one spouse – but rather laws prohibiting one from saying they are married to additional people. You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.

In the end, it strikes me that conservatives, who claim to be opposed to the state intruding into people’s lives, ought to be completely in favor of this idea.

Here’s the opinion:

Brown et al v. Buhman Opinion by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. walt moffett says:

    A good decision, though I imagine any domestic courts proceedings would get involved.

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  2. George Washington University Law Professor Jonathan Turley’s comment that “plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization” is certainly not limited to Utah.

    There is presently no large movement toward polygamy in the way that there is for same-sex marriage. But give it time. I predict that it will not be heterosexuals who begin a larger movement toward multiple marriage, but homosexuals. After all, if two homosexual men or women can get married, why can’t three or four all marry each other? It’s more than a little ludicrous that once marriage is refined away from “one man, one woman” that SSM advocates would insist that it must unalterably be “one man, one woman or one man, one man or one woman, one woman.” No coherent case can be made for that at all.

    Ronald Lee is a homosexual and activist and explains in this piece what is really really going on inside the gay-rights movement: “The Truth About the Homosexual Rights Movement.”

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 21

  3. john personna says:

    This reminds me of the ad I saw years ago, maybe in the back pages of Whole Earth magazine .. a call for new members at a “poly-amorous commune” in San Francisco.

    My thought at the time was that were were a few ways that could go right, and so, so, many that it could go wrong.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. beth says:

    @Donald Sensing: So heterosexual people can love and commit to one person for the rest of their lives but homos are just promiscuous cheaters who can’t be monogamous? Got it.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 0

  5. beth says:

    @beth: By the way, every time I see a polygamous relationship, it’s almost always heterosexual in nature.

    Like or Dislike: Thumb up 13 Thumb down 0

  6. rudderpedals says:

    This seems like the right decision, provided Utah doesn’t recognize common law marriage…

    Like or Dislike: Thumb up 1 Thumb down 0

  7. jib10 says:

    @Donald Sensing: I dont think you understand how the state views marriage. And all we are talking about is the how the state views marriage, not how you view it nor how the church does.

    For the state, rights of survivorship, health care decisions, etc are privileged along blood lines. For example if you die your closest blood relative gets all your stuff unless you explicitly state otherwise in a will. However marriage places your spouse in a privileged position next to you. They go to the front of the line ahead of the relatives. There is some more but basically, as far as the state is concerned, that is all marriage is. A way to quickly and legally recognize a single person as your official closest relative.

    Gay marriage makes no changes to this structure. It simply allows people of the same sex to designate a single legal spouse. When it went legal in WA state, they only had to change some wording on the marriage license (husband and wife), nothing else changed. NOTHING.

    Polygamy would change a lot of this structure. Are all spouses equal or is there a order to who has survivorship rights? If a man marries 2 women and the man dies, are the women still married to each other? We also have lots of history on the social implications of polgamy (they are not good) unlike gay marriage where we have NO history.

    Bottom line the state is under no obligation to recognize polygamy regardless of gay marriage. And it has plenty of historic reasons to keep it illegal.

    Like or Dislike: Thumb up 11 Thumb down 1

  8. Rick DeMent says:

    I think what this ruling says is that marriage is one thing that is well understood even with the addition of homsexual relationships, and that the law simply cannot address the three dimensional chess of poly relationships and should stop trying. I mean if a person wants to enter into a relationship where they know they have no protection under the law then they should be free to do so (just like cohabitation).

    Like or Dislike: Thumb up 5 Thumb down 1

  9. James in Silverdale, WA says:

    @Donald Sensing: “But give it time. I predict that it will not be heterosexuals who begin a larger movement toward multiple marriage, but homosexuals. ”

    Why do you care? Why is this any of your business?

    Like or Dislike: Thumb up 9 Thumb down 0

  10. HarvardLaw92 says:

    Tempest in a teapot. The actual ruling has no bearing on the question of whether the state must recognize polygamous marriages at all.

    To be frank, there is no constitutional basis, at all, for asserting that the state MUST recognize marriages or create the construct of civil marriage. It opened a door by choosing to create that construct with respect to two party marriages, and in doing so did open itself up to equal protection claims with respect to denying access to that construct to a subset of the population based on animus.

    That said, however, it does not follow that because the state chose to recognize two party marriages that it must also recognize multi-party marriages. The two are not equivalent constructs, and recognition of polygamous marriages is barred to all citizens, without exception. There is no basis IMLO for an equal protection claim there.

    Like or Dislike: Thumb up 8 Thumb down 1

  11. HarvardLaw92 says:

    @jib10:

    There is some more but basically, as far as the state is concerned, that is all marriage is. A way to quickly and legally recognize a single person as your official closest relative.

    Eh, not quite. Marriage creates what we term a legal fiction – namely that the two parties merge and become one in the eyes of the law. This is the basis for what we call tenancy by the entirety, which is available solely to married couples.

    Legally, two people do not own the property. The legal fiction created by marriage combining them into a single legal person (the marital couple) does. This is why property held in this manner does not pass from spouse to another. At the instant of death, the deceased spouse exits the legal fiction, but the fiction itself survives, as do the rights to property owned by it.

    Like or Dislike: Thumb up 6 Thumb down 0

  12. Rafer Janders says:

    @jib10:

    We also have lots of history on the social implications of polgamy (they are not good) unlike gay marriage where we have NO history.

    And while we have no history on gay marriage, we have a lot of history on two-person marriage. We know how it works and how it doesn’t. Whether it’s a man and a woman, a woman and a woman, or a man and a man, it’s still a basic two-person partnership, and we know how to deal with that.

    Like or Dislike: Thumb up 8 Thumb down 1

  13. HarvardLaw92 says:

    Polygamy would change a lot of this structure. Are all spouses equal or is there a order to who has survivorship rights? If a man marries 2 women and the man dies, are the women still married to each other?

    In order to preserve the assertion that a polygamous marriage must be recognized by the state, all of the parties within the marriage would, by necessity, have to be viewed as being married to each other, otherwise what exists is not a polygamous marriage, but instead is a set of two party marriages. People arguing that all of the members of the marriage are not jointly married to all other members are not arguing for polygamous marriage – they are arguing for bigamy.

    Imagine the confusion inherent in a polygamous couple with 5 parties (say, one husband and four wives), and the husband dies. Due to tenancy by the entirety, the surviving 4 wives all each own 100% of the marital property, and none can sell or otherwise dispose of it without the consent of all of the others. It’s a disaster just waiting to happen.

    Which is primarily why the law refuses to recognize it.

    Like or Dislike: Thumb up 4 Thumb down 1

  14. Grewgills says:

    @Donald Sensing:
    There is a long history of polygamy. For most of the history of marriage, polygamy was the norm for those that could afford it. Look at virtually every ruler in the Old Testament. The Catholic Church made marriage explicitly between one man and one woman about 1500 years ago because of Roman law designed to limit the number of new citizens. The Jews ended polygamy about 500 years later. Other religions and cultures still accept one man having multiple wives.

    There is no such history for homosexual multiple marriage. You are simply pulling things out of your ass to support your own bigotry.

    Like or Dislike: Thumb up 8 Thumb down 0

  15. Grewgills says:

    @HarvardLaw92:
    Couldn’t some sort of contractual arrangement be made to deal with that?
    In some European countries they have ‘living together contracts’ each party agrees to confer certain rights and take on certain obligations to the other party(ies). Those contracts can be for situations that look like this case, to what we would consider ‘normal’ marriages, or simply to friends or siblings that choose to live together platonically.

    Like or Dislike: Thumb up 0 Thumb down 1

  16. Gustopher says:

    It’s a slippery slope from allowing pharmacists to refuse to dispense medicines based on their religious beliefs, to allowing corporations to have religious beliefs, to allowing polygamous marriages.

    Like or Dislike: Thumb up 5 Thumb down 0

  17. HarvardLaw92 says:

    @Grewgills:

    Sure, but that remains true even in the absence of the marriage covenant. If a group of people choose to jointly own property, or to create chinese walls around their ownership of property, then they certainly have the ability to create contractual agreements.

    That said, we run into the difficulty of a spouse overriding all others with respect to the ownership of property. What prevents the first spouse (the one that would enjoy recognition by the law) from challenging the contractual claims on the basis that he/she enjoys a senior claim to the assets thus governed by virtue of the marital covenant? We won’t even get into the insanity that such an arrangement would create in community property states.

    The bottom line remains that these people are arguing in favor of bigamy, not in favor of what would actually be a polygamous marriage, and I think we can all see why bigamy is probably a bad idea from a property standpoint. The endless wars between parties that would ensue upon the death of one would clog up the courts and hopelessly convolute property records.

    Beyond that, we run into issues of taxation. Property that passes by virtue of a marital covenant to a surviving spouse is not taxed, because the surviving spouse already owned 100% (as did the deceased spouse) of it from the inception. Property that passes between unmarried parties, in the absence of a trust (and even then there are taxation issues), is taxed at the time of transfer. I just can’t get behind this idea. I sympathize with them, but the potential for disaster from a property standpoint, IMLO, outweighs the interests of the parties with respect to their desire to be married as a group.

    Like or Dislike: Thumb up 2 Thumb down 1

  18. HarvardLaw92 says:

    Now, I will say that if these people want to find an amenable minster, go through the ritual and consider themselves to be married, more power to them, How they choose to arrange their domestic affairs neither concerns nor interests me. It’s between them.

    It’s when they propose to involve the law in recognizing the arrangement that the problems begin.

    Like or Dislike: Thumb up 4 Thumb down 1

  19. HarvardLaw92 says:

    I also find it amusing that these arrangements ALWAYS seem to be a guy seeking to have multiple wives. I’m willing to bet that even those in support of this idea would lose their collective minds over the proposition of a woman having multiple husbands.

    Which in an odd way makes this just another episode in the long history of misogyny.

    Like or Dislike: Thumb up 6 Thumb down 1

  20. Grewgills says:

    @HarvardLaw92:
    If multiple marriage (or multiple civil union) is eventually allowed, it would have to be for any arrangement of consenting adults.

    Like or Dislike: Thumb up 1 Thumb down 1

  21. Ebenezer_Arvigenius says:

    It’s when they propose to involve the law in recognizing the arrangement that the problems begin.

    While I can see where it is coming from I am always amazed at lawyers fronting this argument since we have much more complicated structures working completely fine in corporate law. And seen from the point of comparative law, laws covering multiple spouses and property issues are not exactly unknown too.

    If there was a need for it this could be solved quickly.

    Like or Dislike: Thumb up 2 Thumb down 0

  22. HarvardLaw92 says:

    @Grewgills:

    Understood, but that doesn’t change the fact that all of these still seem to be one man / many women. I call it the “have your cake and get to eat it too” plan.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. Grewgills says:

    We also have lots of history on the social implications of polgamy (they are not good)

    The main problem there was that women were chattel. They were regularly forced into marriages that they wanted no part in and often were not able to give what we today agree is consent because too often they were children. The joys of actual real traditional marriage.

    Like or Dislike: Thumb up 1 Thumb down 1

  24. Grewgills says:

    @HarvardLaw92: @HarvardLaw92:

    What prevents the first spouse (the one that would enjoy recognition by the law) from challenging the contractual claims on the basis that he/she enjoys a senior claim to the assets thus governed by virtue of the marital covenant?

    Wouldn’t or couldn’t that contract act as a prenup of sorts? If all of them were married to the deceased party, the contract could stipulate how the division would occur. Alternately the relationship could continue after the death of any member. If one of them were the keystone partner, then the others could seek a divorce after that partner died and the assets would be distributed by the divorce court.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. Grewgills says:

    @HarvardLaw92:
    We still live in a largely paternalistic society, so that is to be expected. If it were to become legal I suspect that what we would see a wealthy partner with multiple less well off partners. Most times the wealthy partner would be the man, other times not. There would still be more social approbation against the single woman with multiple partners than against the man with multiple partners, but that is a societal rather than a legal problem. As the old saw goes, a slut is a woman with the morals of a man.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. michael reynolds says:

    @Ebenezer_Arvigenius:

    We do have complex corporate relationships, which is why New York and Washington have so many fine buildings stuffed full of lawyers. Polygamy would require the rest of us not currently engaged in lawyering to immediately enroll in law school. We would need a 1:1 ratio of citizens to lawyers. All due respect to HarvardLaw and Doug Mataconis (and my lawyer) I think we probably have enough lawyers.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. An Interested Party says:

    Ronald Lee is a homosexual and activist and explains in this piece what is really really going on inside the gay-rights movement: “The Truth About the Homosexual Rights Movement.”

    Ahh, there’s nothing quite like a self-loathing gay man to help conservatives feel good about their bigotry…what this person fails to realize is that the icky sex thing isn’t so much a gay thing as it is a man thing…

    Like or Dislike: Thumb up 6 Thumb down 1

  28. michael reynolds says:

    @An Interested Party:

    the icky sex thing isn’t so much a gay thing as it is a man thing…

    Yes. If you’re doing it right.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. Ebenezer_Arvigenius says:

    @michael reynolds: Ah bollocks. Marriage as it stands now is doing somewhat complex things to benefits, property rights, and assorted mutual rights and financial arrangements without large numbers of people lawyering up in advance. You can if you want but you don’t have to since there’s a legal default. No reason something like that couldn’t be created for polygamy.

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  30. Grewgills says:

    @michael reynolds:
    Even if that were so, it would only matter to those involved. I don’t plan on extending my marriage to more than my wife and to my knowledge she doesn’t have plans in that vein, so we wouldn’t need to lawyer up.

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  31. As this anthropologist points out polygamy can give women more choices and also be empowering for women! And judging from how few men of any quality are desiring to settle down and start families today maybe polygamy’s time has come? http://www.youtube.com/watch?v=erTwhTCAAss&feature=youtu.be

    Like or Dislike: Thumb up 1 Thumb down 0

  32. superdestroyer says:

    @James in Silverdale, WA:

    Legal recognition of polygamy would give polygamous families access to all of the entitlements currently reserved for married couples such as insurance, social security benefits, etc. I suspect that homosexual activist will use the current legal reasoning in support of homosexual marriage to find a liberal judge to approve polygamy. From there, it will only be a matter of time until the benefits will flow to polygamous families.

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  33. Tyrell says:

    Utah is a place that is unusual and outside of the mainstream in that regard. I do see this ruling as giving more encouragement and confidence to many of the underground cults out there which are secretive, powerful, influential, and dangerous. One question is how this ruling relates to these child marriages in many of the cults and sects out there. Those sects and cults reach and power is far: politics, law enforcement, and courts.

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  34. DrDaveT says:

    Every common law marriage state already has all of the legal problems people are worrying about here. Because there is no common law divorce, states like Pennsylvania have large numbers of bigamists, most of whom are unaware (blissfully or otherwise) that they are married to multiple people. It would be funny, if the fallout weren’t so painful sometimes.

    I await with glee the first edition of the new IRS form for “Married, Filing Collectively”.

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  35. grumpy realist says:

    @DrDaveT: A lot of states have gotten rid of common law marriage. The idea is that it’s easy enough to jump through the hoops to get married, (cough, Las Vegas), so why have common law marriage?

    In the majority of states you can’t just shack up with your sweetie, call yourselves married, and then be able to claim a common law marriage five or seven years down the road…..

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  36. grumpy realist says:

    Oh, and Rod Dreher over at TAC is (as could be expected) screaming SEE THIS PROVES THAT SINGLE-SEX MARRIAGE IS A SLIPPERY SLOPE TO POLYGAMY.

    The reason no one wants to open the polygamy door is because it’s pretty easy to modify statutes and apply common law to SSM.

    Applying all of this to a three-person or more situation? Difficult. Very difficult. People who are in polygamous relationships should bone up on law or expect to spend a large amount of their salaries on legal costs.

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  37. DrDaveT says:

    @grumpy realist:
    Yes, grumpy, I know. But common law marriage states still exist, and they still have the problems I referred to above.

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  38. DanA says:

    @jib10: Just because changing something in the law will create complications for which you or others do not have immediate answers, that is no basis to bury your head and the sand and decide that things can’t be allowed to change. “Inconvenient” is a very weak argument, as is “complicated”. Principals of fairness, reason and, most importantly, the arrangements those plural marriage parties make among themselves, are what will guide the resolution of any new situations — just as it does NOW for 2-party marriages.

    BTW — Plenty of those marriage create hugely complex legal issues on divorce or death, but there’s no prohibition on those, even if someone has three prior marriages and 20 kids. Just because equal protection under the law may cost society something, the principle is paramount and worth every penny since the alternative is far worse.

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