Star Of “Sister Wives” To Challenge Constitutionality Of Utah’s Anti-Polygamy Law

The star of a controversial reality show about polygamy is suing to have Utah's law that makes his living arrangement illegal struck down.

The star of a cable reality show about the lives of a polygamous Utah family wants to take the State of Utah to Court:

Kody Brown is a proud polygamist, and a relatively famous one. Now Mr. Brown, his four wives and 16 children and stepchildren are going to court to keep from being punished for it.

The family is the focus of a reality TV show, “Sister Wives,” that first appeared in 2010. Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Mr. Brown has a civil marriage with only one of his wives; the rest are “sister wives,” not formally wedded. The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.

Making polygamous unions illegal, they argue, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise, establishment, free speech and freedom of association clauses of the First Amendment.

It’s worth noting that Utah’s bigamy statute not only outlaws multiple marriages, it also outlaws cohabitation with one or more persons while legally married to another. From a legal point of view, Brown is only married to one woman, but under Utah’s law he is violating the law because of the cohabitation arrangement, which from all appearances is entirely consensual on the part of all parties. Essentially what the lawsuit would seem to be arguing is that, based on the Supreme Court’s ruling in Lawrence v. Texas, Utah cannot make it illegal for a married couple to engage in a consensual living arrangement of their choice with other adults, as long as they aren’t breaking any other laws.

George Washington Law School Professor Jonathan Turley will be representing the Browns and issued this statement:

“We believe that this case represents the strongest factual and legal basis for a challenge to the criminalization of polygamy ever filed in the federal courts. We are not demanding the recognition of polygamous marriage. We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs. This action seeks to protect one of the defining principles of this country, what Justice Louis Brandeis called ‘the right to be left alone.’ In that sense, it is a challenge designed to benefit not just polygamists but all citizens who wish to live their lives according to their own values – even if those values run counter to those of the majority in the state.

The U.S. Supreme Court has ruled once before on the Constitutionality of laws against polygamy. In Reynolds v. United States, the Court denied the argument of a man living in what was then Utah Territory that the laws against polygamy violated his First Amendment rights. This case was heard, of course, during the period in which Utah’s statehood was a hotly debated topic, largely because of the Mormon practice of polygamy. It wasn’t until the LDS Church repudiated polygamy in 1890 that the dispute was completely resolved. This case takes a very different tack from Reynolds and, of course, these are very different times.

Perhaps the best argument in the Browns favor is the fact that the language in Lawrence v. Texas, which struck down laws against sodomy, was very broad in its definition of the scope of liberty that is entitled to autonomy from government control:

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.

If Justice Scalia has heard of this case yet, he’s probably saying “I told you so.” Because  in his strongly worded dissent Lawrence he did just that:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196

In fact, part of Scalia’s dissent in Lawrence ended up being used by the Judge in the case that overturned California’s Proposition 8:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

It’s easy to see this argument applied to the facts int he Browns case. Indeed, I tend to agree with Ann Althouse that there is a stronger Lawrence-based argument in favor of their position than their is in favor of same-sex marriage (although current legal arguments in favor of same-sex marriage have moved on to a n equal protection argument that seems fairly persuasive).

Of course, just because an argument is legally persuasive that doesn’t mean it is going to be successful in Court, especially when you’re dealing with an issue like as controversial as this one happens to be. As Eugene Volokh noted several years ago,a legally plausible, indeed persuasive argument, is  sometimes only half the battle:

I’ve argued in my Same-Sex Marriage and Slippery Slopes that polygamous marriages are indeed unlikely to be recognized in the U.S., even if same-sex marriages are recognized. If the same-sex-marriage-recognition movement wins, and especially if it wins by stressing certain kinds of arguments, those arguments may indeed be logically usable by polygamy-recognition forces. But, as I argued, “It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster. I doubt that there?ll be such a movement for polygamist rights, even with the potential slippery slope effects I describe.”

While I tend to think that Volokh is right about the odds of success for any argument like this right now, I cannot honestly see why Brown and his legal wife should not be permitted to enter into whatever relationships they want in the privacy of their home.  Whether and when that right will be recognized is something that remains to be  seen.

Here’s the Complaint, which was just filed this afternoon:

Kody Brown et al v. Gary Herbert et al

FILED UNDER: Law and the Courts, Religion, US Politics
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. PJ says:

    This isn’t good news for Romney.

  2. PD Shaw says:

    I”m not sure I’m following the analogy here. In Lawrence, two men are engaged in conduct (sex) in the privacy of their own homes. Legally sex is a private act. One can’t have sex on the sidewalk without potential legal ramifications.

    The analogy would be a right to conduct a similar private act, such as a threesome. I don’t believe that is what polygamy necessarily is, so the analogy isn’t quite right. The conduct they want protected is a social right, such as the right to raise children collectively without fear of punishment or loss of custodial rights. That’s not a private matter; they want protection for what happens outside of the privacy of the bedroom.

  3. ptfe says:

    There’s a lot of abuse of the word “marriage” in this and the cited articles. One of the arguments against gay marriage has been that it will lead to all manner of “marriage” being acceptable, including “polygamous marriage”. But because marriage is tightly constrained as a legal construct between two individuals (which, because of the strict nature of many of the provisions, is all it reasonably can be expected to be), “polygamous marriage” is wholly unrelated to “gay marriage”. Using one as some sort of benchmark for the other is unsupported by legal realities.

    It’s sort of like thinking that a corporation is just an extension of an LLC: they may both be ways of organizing businesses, but you can’t make a corporation with an LLC-based agreement. While the guy might think that they’re all his “wives”, they’re no more legally his spouses than my brother’s housemate — and not his actual spouse — is his spouse. And they’re not covered by any legal construct that currently exists, nor should their actions be.

    Volokh is right in that “polygamous marriage” is unlikely to be recognized in the US, but I think he’s fundamentally wrong about the reason — and that may be partly because he calls it “marriage” in the first place. Yes, few people clamoring for “polygamous marriage”, but also there’s no current legal shortcut to a multi-spouse scenario for social/civil contracts. His argument is fatuous if it rests on marriage equality being driven by a large voting bloc; the reality is that it’s driven by a desire to include all classes of citizens in a potential contractual relationship. Full rights of marriage (gay and straight) simply erases exclusion. “Polygamous marriage” would be a complete re-write of the law to accommodate a situation that’s highly dynamic and would be nearly impossible to capture in a simple legal sense — as well as being rare.

    That having been said, if they’re all consenting adults and want to live together, there should be no legal reason why they can’t. What makes Utah’s polygamy problem so difficult, though, is that many of these arrangements involve adults whose lives are effectively controlled by the church. Do I think they’re largely nutcases who need to think for themselves? Absolutely. But do I think there should be legal remedies against them? Largely, no. (There are, of course, some that involve children “married off” through the church only, in which case the legal remedies are clear.)

  4. Chad S says:

    Good luck overturning Reynolds v US.

  5. Ben says:

    This doesn’t even seem to be a polygamy case at all. They aren’t looking to have an actual civil marriage with each other. This seems to be a case about allowing a married couple to cohabitate with other consenting adults and living as a family unit. That’s quite different. Other than the fact that there is also sex going on, what is different between this situation and the plot of Full House?

  6. PD Shaw says:

    @Ben: Having read the first couple of pages of the complaint, I think the bigamists are being disingenuous about not seeking a civil marriage. In all but name that’s what they are seeking.

    They complain that groups of adulterers can co-habitate and have children without fear of prosecution, something the complaint describes as non-religious plural relationships; but they are being discriminated against in being unable to have an openly religiously-based plural relationationship. As far as I can tell, they want the state to recognize this as a legitimate social formation, or at least one of religious conscience. That’s basically state recognition of the legitimacy of polygamy without (yet) asking for licensure.

  7. hey norm says:

    For the life of me I can’t understand the desire to have more than one wife. Actually I can’t understand the desire to have one, having had one.

  8. As far as I can tell, they want the state to recognize this as a legitimate social formation, or at least one of religious conscience. That’s basically state recognition of the legitimacy of polygamy without (yet) asking for licensure.

    They aren’t asking the state to recognize anything, they’re merely arguing they can’t be thrown in jail for it.

  9. Robert in SF says:

    I wonder if “common law marriage” is a consideration for impact.
    If the 3 persons are living as a family unit, and one of the civilly married persons dies (a spouse and parent of the children)…could the remaining non-spouse have some sort of legal recourse in being consider a common law spouse, or parent to the children?

  10. MBunge says:

    “But because marriage is tightly constrained as a legal construct between two individuals (which, because of the strict nature of many of the provisions, is all it reasonably can be expected to be), “polygamous marriage” is wholly unrelated to “gay marriage”.”

    Uh, polygamy is such a well-established human custom that it stretches from Biblical days all the way to the present in places like Saudi Arabia. I don’t believe there’s any such historical support for gay marriage.

    Not to say there aren’t arguments against polygamy, but most of them are either bound up in child rearing issues, require one to imagine polygamy becoming very widely practiced or are simply expressions of public distaste. If such things are not determinative when it comes to gay marriage, why should they be with polygamy?

    Mike

  11. sam says:

    Purely prudential argument for having one wife at most:

    Woman (Not Lorena Bobbit) Cuts Off Husband’s Penis

    You increase your chances n-fold…

  12. hey norm says:

    @ Sam…
    …and she put it down the disposal. Ouch.

  13. Franklin says:

    @hey norm: Well after it was off I doubt that made it physically hurt any more.

  14. Franklin says:

    I can’t imagine polygamy in a place that’s already got too many men vs. women, like China. The last thing we need in this world is more frustrated young men.

  15. Robert in SF says:

    @MBunge: IANAL, but it seems to me that all of the current legal ramifications around marriage deal with an even split of authority and responsibility, such that in the event that one of the spouses dies or becomes incapacitated, *all* power flow to the remaining spouse, or the benefits (social security, inheritance, etc.)…

    This is unique based on the number of persons in the arrangement, such that with 3 or 4 or more the default is not clear and only causes confusion or legal strife trying to figure out what happens if more than one person needs to be involved….

    So the number of persons left over is more pertinent to the marriage legal arrangement than the genders…

  16. ptfe says:

    @MBunge: You’re making the very obvious mistake of conflating marriage as a social or religious custom with marriage as a legal contract. While there’s historical precedence for polyamorous relationships, there’s no current legal construct to deal with all that entails. So, for instance, when I get married, my spouse becomes my default legal heir in all cases where such heir is unspecified; who is the heir in the case of a plural marriage? When I get married, my spouse is able to receive specific benefits from my job; does a plural marriage allow the same conferral of benefits? When I get married, the federal government treats our combined incomes as entity income; how does the federal government calculate income (and taxes) based on plural marriage? How does such a marriage dissolve? Clearly, these are legal questions that could be answered by contract, but we don’t have a ready-made shortcut for it.*

    This isn’t to say it couldn’t be done, just that there’s no construction that’s even close. Gay marriage is simply an extension of an existing institution (conferring all elements of that institution) to a currently excluded class, while “polygamous marriage” would require an entirely separate apparatus.

    *If we did, there would be no reason to, say, allow polygamous marriages but not polyandrous marriages. Just like there’s no reason to allow hetero marriages and not same-sex marriages.

  17. MBunge says:

    “So the number of persons left over is more pertinent to the marriage legal arrangement than the genders.”

    But as I pointed out, polygamy has a long history in human society and I would wager that the issues you’re talking about were commonly dealt with as a part of that. The point being that re-recognizing polygamy as a legal institution is just that, re-recognizing something that has existed and continues to exist. Extending the legal construct of matrimony to people of the same sex, however, is a new thing.

    Again, not saying their aren’t arguments against polygamy, but I don’t really see why the personal choice/autonomy arguments in favor of gay marriage also don’t logically carry the day with polygamy.

    Mike

  18. Ben says:

    @ptfe: And that would be an interesting discussion, if that were what these claimants were seeking. But they’re not. They’re not looking for any of the legal benefits the US government provides to legally married couples. They just don’t want to be thrown in jail for living together as a single family unit.

  19. MBunge says:

    “This isn’t to say it couldn’t be done, just that there’s no construction that’s even close.”

    Sure there is. We have legal partnerships formed all the time between more than two people where the responsiblities of each partner to each other and to the overall partnership are spelled out in detail. Combining that with the historical precedent of polygamy doesn’t seem like too great a challenge. And besides, opposing polygamy because it would require too much paperwork is even weaker than the weakest argument against gay marriage.

    Mike

  20. hey norm says:

    @ Franklin…
    the neural connections in the somatosensory cortex that remain after amputation often produce a “phantom limb feeling”…so it might still hurt. he might even be able to achieve a virtual erection???

  21. PD Shaw says:

    @Stormy Dragon: My reading of the complaint is that all of the arguments would apply equally to requiring states to license polygamous “spiritual marriages.” The fact that they don’t request it doesn’t change the substance of the arguments in the complaint.

    In particular, large chunks of the complaint are dedicated to the proposition that polygamy has a long history of recognition within the Abrahamic faiths, and that the only rational justification for not recognizing it as a basic Constitutional right is residual religious bigotry of majoritian religious views against a minority religious sect. If the court agrees with that, how could a state constitutionally discriminate in refusing marriage licenses?

  22. Trumwill says:

    Gay marriage requires you to change only a few words in law. Plural marriage requires you to come up with an alter all sorts of rules about “next of kin”, estates, and so on. I don’t really have a problem with people living as a plural marriage. But I don’t really want to go in and mess with all the rest in order to accommodate them. Gay marriage required comparatively little “messing with.” At the very least, it removes the question of whether my spouse is allowed to turn around and marry someone else, whether she has the expectation of being able to do so, and whether she will feel entitled to at a later date. So in addition to the contract law, legal polygamous marriage would affect my marriage in a way that gay marriage simply does not.

  23. Wayne says:

    Polygamy is still an arrangement between two individuals. It just at least one of those individuals is already is married to at least one other person. Sometimes some are not even aware of the other marriage and sometimes they do.

    Most of the arguments that are use for gay marriage are just as relevant to polygamous marriages. Beside the moral issues, the big can of worm is benefits.

  24. Rob in CT says:

    I’m fine with it, so long as all parties are consenting adults. I don’t get it, personally, but forbidding it doesn’t really fly for me.

    Added bonus: a non-zero number of “single mothers” would no longer be such, and come off the rolls… 😉 WIN-WIN baby!