Meri Brown, Christine Brown, Janelle Brown, Kody Brown and Robyn Sullivan

of TLC’s Sister Wives welcome baby Solomon. Photo courtesy TLC.



Federal Judge Strikes Down Ban On Religious Cohabitation In Utah Polygamy Law



WASHINGTON — A federal judge struck down Utah’s criminal ban on cohabitation between a married individual and another person not his or her spouse, a prong in the state’s law against polygamy.



The Friday ruling did not address legal polygamy — actually being married to multiple people — but only what U.S. District Court Judge Clark Waddoups referred to as “religious cohabitation.”



The court struck down the provision in the state’s bigamy statute that criminalized a married person from “cohabit[ing] with another person” and limited another provision in the law to cover only those who make a “claim of entry into a legal union recognized by the state as marriage” and not those who enter into a religious union with no attempt to “elicit the state’s recognition of marital statua.”



Waddoups has been considering the case brought by the Browns — featured on TLC’s Sister Wives television show — since 2011.



George Washington University law professor Jonathan Turley, who represents the plaintiffs, wrote on Friday night, “It is a moment in which all Utahans should take pride and celebrate not in the name of polygamy but of privacy. So congratulations to the Browns and to the people of Utah on a truly momentous day.”



In beginning his 91-page opinion, Waddoups noted that the case “has weighed heavily on the court for many months.”



At question was a 1973 law, passed when Utah rewrote all of its criminal laws, that read: “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.”



After detailing the history of the treatment of polygamy in Utah, Waddoups noted that the court deferred to a prior Supreme Court case foreclosing “any potential free exercise right to the actual practice of polygamy.” This case, he explained, was about “religious cohabitation” in which the participants “make no claim to having entered into legal unions by virtue of their religious cohabitation.”



Although Waddoups found no fundamental right either to polygamy or such “religious cohabitation,” he did find that Utah’s ban on religious cohabitation would violate the Free Exercise clause of the First Amendment because the point of that provision in the statute is “to infringe upon or restrict” people practicing religious cohabitation “because of their religious motivation.”



In looking at privacy rights, Waddoups applied the reasoning of the Supreme Court’s 2003 decision in Lawrence v. Texas striking down sodomy laws as unconstitutional, noting, “Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence.”



The court found the provision here unconstitutional because Utah does not prosecute “[a]dultery, including adulterous cohabitation” but does prosecute “religious cohabitation.” Of that, Waddoups wrote, “The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage ….”



The other potential basis for upholding the provision was “serious concerns” about “the potential for injury and harm in closed religious polygamist communities,” but Waddoups decided that “such crime can and should be prosecuted on its own independent basis under the Utah statutes specifically designated for those purposes.”



As such, Waddoups concluded the religious cohabitation ban to be unconstitutional.



Similar constitutional concerns led him to conclude that the other provision in the bigamy ban — its language criminalizing “purport[ing] to marry another person” when already married — needed to be interpreted in a narrow way — only when a legal union is claimed — that would prevent it from criminalizing cohabitation-like situations.







This is so good; the first facial attack on Reynolds [the 1879 Supreme Court decision affirming that polygamy can be criminalized], and this is the prefect place for it!



[Judge Waddoups writes:]



The proper outcome of this issue has weighed heavily on the court for many months as it has examined, analyzed, and re-analyzed the numerous legal, practical, moral, and ethical considerations and implications of today’s ruling. It would be an easy enough matter for the court to do as the Defendant urges and find against the Plaintiffs on the question of religious cohabitation under the Statute, defaulting simply to Reynolds v. United States, 98 U.S. 145 (1879) without seriously addressing the much developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices, though such legislatures may sincerely believe that such criminal sanctions are in the best interest of society. The court has concluded that this would not be the legally or morally responsible approach in this case given the current contours of the constitutional protections at issue.



In a huge win for the legal status of polyamorous relationships, the federal judge hearing the "Sister Wives" challenge to Utah's anti-cohabitation law has, after many months of deliberation, just ruled in favor of Kody Brown and his four wives.This is big for us. Utah's law outlawing polygamy outlawed polyamory too — any group relationship among people living together, or informally calling each other "husbands" or "wives" even if only one legal marriage is claimed or is on the books.If the decision is appealed, it will go to the 10th US Circuit of Appeals in Denver, then maybe to the Supreme Court. If the ruling is upheld, polygamous families and polyfamilies would be legal (though not recognized by the state as married) in states where anti-bigamy or anti-cohabitation laws still outlaw them.Even if these laws are rarely enforced, they can have effects on employment discrimination and child custody cases. The argument "What you're doing is illegal in this state" can hit hard in such cases even if the law is not enforced.Note that as far as governments are concerned, the Brown family is identical to a polyamorous group. They claim only one legally recognized marriage among them (between Kody Brown and his first wife), and the others file their taxes and so forth as single persons.One article among many: Original article at Buzzfeed (Dec. 14, 2013).Here's the judge's 91-page ruling (pdf or txt).Vrimj, a member of the Polyamory Leadership Network, has been tracking the legal aspects of the case from the beginning. She writes that this decision "strikes down all parts of the bigamy statue except the actual filing of multiple marriage licenses." The decision "is binding precedent only in the Utah federal district courts, but it is advisory precedent all U.S. courts, and would be very persuasive in the 10th Circuit. It is unclear if the county sheriff will appeal, but if he does it will probably next go to a three-judge panel of the 10th Circuit Court of Appeals."In the Federal judge declares Utah polygamy law unconstitutional (Dec. 13). With a statement from Kody Brown.Statement from the Browns' lead attorney, Jonathan Turley (George Washington University Law School): Federal Court Strikes Down Criminalization of Polygamy In Utah More from Vrimj as she reads the decision:

Labels: legal, polygamy