Did a federal judge declare Utah’s polygamy law to be unconstitutional?

No, though the federal district court did rule that key parts of Utah’s polygamy law is unconstitutional.

What was the case about?

Utah resident Kody Brown is legally married to one woman (Meri) but considers himself to be in a “spiritual union” with three additional women (Janelle, Christine, and Robyn) who he also calls his wives. Together, the four have 17 children together and live in three houses. Their family life is the subject of the TLC reality TV show, Sister Wives. The Browns are members of a fundamentalist Mormon group, not part of The Church of Jesus Christ of Latter-day Saints, which does not condone the practice of polygamy.

Utah state officials publicly denounced the Browns as “committing crimes every night on television” because they are violating the state’s bigamy law. Under Utah Code Ann. § 76-7-101(1) (2013), 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.”

What part of the law was declared unconstitutional?

U.S. District Court Judge Clark Waddoups struck the phrase “or cohabits with another person” from the statute, claiming that this phrase violates constitutional guarantees of due process and religious freedom. (This is rather peculiar, for as legal scholar Orin Kerr says, “I don’t know where the judge gets the idea that individual words or phrases are evaluated for their constitutionality, as compared to laws, but that’s an assumption the judge makes throughout the opinion.”)

What is the current status of polygamous marriage in Utah?

The ruling appears to say that a person who is legally married to one spouse cannot legally marry a second spouse (or third, or fourth, etc.). However, they are allowed to cohabitate with and claim to be married to additional people as long as they don’t attempt to obtain a state-issued marriage license. (As Kerr says, “At least, that’s what I think the court is saying. This isn’t an easy opinion to decipher.”)

Does the ruling affect other states?

Not directly. Only three states (Mississippi, Florida, and Michigan) currently have laws on their books against cohabitation by opposite-sex couples, though they are generally not enforced. Many legal scholars believe that in light of Lawrence v. Texas (the 2003 ruling that struck down the sodomy law in Texas and made same-sex sexual activity legal in every U.S. state and territory), such laws would be considered unconstitutional. In other words, it is likely already legally permissible to engage in a polygamous structure similar to the one that Kody Brown, his wife and his concubines are engaging in.

What is the difference between bigamy and polygamy?

Bigamy is the condition of having two wives or two husbands at the same time. Polygamy is having two or more spouses. Having several wives at the same time is called polygyny and being married to several husbands is polyandry.

What does this ruling portend for the future of marriage?

The primary significance of this ruling is not so much its current application but rather what it reveals about how federal court rulings are heavily influenced by Lawrence v. Texas. Polygamy is, in essence, already decriminalized. In certain states, a couple could be legally married (husband/wife, husband/husband, or wife/wife), be cohabiting with another married couple, and claim that all four are married to each other (though not legally). Such arrangements are protected under Lawrence because the court claimed that, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

The Lawrence decision was the foundation for all legal decisions allowing same-sex marriage. When polygamous marriage is made the law of the land, it will likely also have its roots in Lawrence.