2

3.

Heightened Scrutiny under

Smith

’s Hybrid Rights Analysis C. Rational Basis Review under the Due Process Clause D. Void for Vagueness under the Due Process Clause III. “Purports to Marry” in the 1973 Statute A. Construction of the Statute B. Understanding the Enabling Act and the Irrevocable Ordinance Conclusion

INTRODUCTION

Before the court are the parties’ cross motions for summary judgment relating to Plaintiffs’ facial and as-applied constitutional challenges to Utah’s bigamy statute, Utah Code Ann. § 76-7-101 (2013) (the “Statute”): Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and Defendant’s Cross-Motion for Summary Judgment (Dkt. No. 55). For the reasons discussed below, the court GRANTS Plaintiffs’ Motion for Summary Judgment (Dkt. No. 49) and DENIES Defendant’s Motion for Summary Judgment (Dkt. No. 55). Ac cordingly, in Part II below the court finds the Statute facially unconstitutional and therefore strikes the phrase “or cohabits with another person” as a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and as without a rational basis under the Due Process Clause of the Fourteenth Amendment, both in light of established Supreme Court precedent. As further analyzed in Part III below, after striking the coha bitation provision the Statute is readily susceptible to a narrowing construction of the terms “marry” an d “purports to marry” to remedy the constitutional infirmity of the remainder of the Statute. The court also terminates as moot Plaintiffs’ Motion to Strike Defendant’s Cross-Motion for Summary Judgment. (Dkt. No. 60.)

PROCEDURAL BACKGROUND

Plaintiffs named Utah Governor Gary R. Herbert, Utah Attorney General Mark Shurtleff, and Utah County Attorney Jeffrey R. Buhman in a lawsuit challenging the Statute as unconstitutional filed on July 13, 2011. The court ruled in its Memorandum Decision and Order