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:
