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Let’s Get a Few Things Straight About Utah’s ‘Polygamy Ruling’

Let’s Get a Few Things Straight About Utah’s ‘Polygamy Ruling’

A federal judge has ruled that Utah state’s using a broad interpretation of cohabitation law to ban polygamy is unlawful. Here’s what you need to know about that ruling.

On Friday, December 13, Judge Clark Waddoup issued a 91 page ruling finding that parts of Utah’s laws on polygamy and cohabitation are unconstitutional on grounds that they violate religious and personal freedom.

The much anticipated ruling comes as a result of a suit filed by Kody Brown, famous as the star of TLC’s reality series “Sister Wives” which depicts the lives of Brown, his wife Meri Brown, and three other women he classes as his wives even though they have never sought a state marriage license (the distinction is important), and the collective’s 16 children.

The Key Facts of the Case: Religion, Utah’s Polygamy Laws and Cohabitation

Brown and his family are members of the Apostolic United Brethren Church, which is a Mormon fundamentalist faith that relies heavily on the traditions of nineteenth-century (polygamous) Mormonism.

Another fact is that Brown had caught the ire of Utah’s administration — the reality TV show was a particular grievance as it was seen to be promoting multiple partner relationships — and it is widely understood and noted in the Court’s opinion (Page 6 & 7) that the administration had said it could and may prosecute Brown and family, despite their moving to Nevada, even though there is no evidence Brown has ever sought multiple marriage licenses, and only that he has called the women he has cohabited with who aren’t his spouse his other wives. Technically, this did fall foul of the law and the reasons are quite interesting.

Judge Clark Waddoup was forced to look at the history of Utah law. As a condition of becoming the 45th State in the Union, Utah was required to outlaw polygamy. States after Utah were also all required to outlaw polygamy but Utah’s anti-polygamy laws are rather unique.

At the time of joining the Union, Utah’s territorial laws included the so-called “Irrevocable Ordinance” that prevented the abridgment of religious freedom with one very glaring exception:

Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.

This territorial law was the basis through which further codification of Utah’s ban on polygamy was built.

Judge Waddoup then looked at the interpretation of the law since that time. He noted that in the 2006 state Supreme Court ruling in State v. Holm the Court had interpreted the bigamy ban as being so broad that it effectively criminalized those who might “purport to marry” multiple partners (as a result of seeking a religious blessing for their marriage) and who live under the same roof, even if they hadn’t tried to have more than one marriage sanctioned by the state.

Judge Waddoup found this rather overreaching interpretation “worrisome” in that it attempts to regulate private conduct in a way that when squared with current law is particularly overzealous. He turned then to Chief Justice Durham’s dissent in Holm that said the term “purports to marry” would be better rendered were it narrowed to “referring to an individual’s claim of entry into a legal union recognized by the state as marriage.” This seemed to Waddoup to be more agreeable.

As such, Waddoup struck down the portion of Utah law that had rendered cohabitation with multiple partners as unlawful polygamy. He did not, however, strike the state’s ban on bigamy and so technically anyone seeking a state sanctioned polygamous marriage could still be prosecuted. This therefore doesn’t actually legalize polygamy in the state as such, any more so than it is legal in any other state, but brings Utah’s laws on this subject into line with most other states in the United States.

No, Gay Marriage Didn’t Play a Part in this Ruling

While making no comment about whether polygamy should be legally recognized, it is important that we clarify a few other aspects about this ruling.

It is absolutely false to claim that the sanctioning of gay marriage led to Utah’s polygamy statute being struck down, as Breitbart, Matt Barber and other Religious Right pundits and websites have claimed.

The landmark gay marriage ruling Windsor v. United was not used in this case for any substantial argument, and the judge did not rule that because gay marriage has been allowed then there is a right to a polygamous marriage. As we covered above, the parts of Utah law that were challenged actually were about how Utah restricted cohabitation.

The judge in this federal case did touch on the Supreme Court’s 2003 decision in Lawrence v. Texas which served to strike down the USA’s sodomy bans.

Judge Waddoup cited Lawrence v. Texas because he wanted to highlight that even though the Supreme Court has previously ruled that states cannot be forced to recognize polygamous marriage, it has recognized that a private relationship between consenting adults and intimate adult relationships carried out behind closed doors are not something the state can lawfully infringe. We may disagree in the application of that legal fact or we may not, but what is clear is that gay rights as we understand them today had very little to do with this case.

Religious Rights that Vex the Religious Right

What the judge actually found, and this must be the bit that hurts for the Religious Right even as it vociferously protests this ruling, is that Utah had been unlawfully infringing on both personal and religious freedom by attempting to regulate the relationships of people like the Brown family who, in absence of the overreaching cohabitation provision, technically were not doing anything wrong under the law but were attempting to live their lives according to their religious beliefs.

It should also be reiterated that the Church of Latter Day Saints, as opposed to the offshoot to which the Brown family belong, does not officially sanction polygamy and hasn’t done so since about 1890.

Finally, it’s worth saying that contrary to reports, polygamy is still illegal in Utah by virtue of the anti-bigamy provisions and policies that remain in place. That hasn’t changed.

As to the question of an appeal, Utah’s Governor Gary Herbert has said he is troubled by the ruling and is looking to understand the complexities before he decides whether an appeal should be filed.

What this adds up to is that Utah appears to have had an anti-cohabitation law that was far too broad. Now, this has been corrected. While the manner in which this was achieved dealt with polygamy and Utah’s particular relationship with that religious tradition, this isn’t the “legalized polygamy” story the press has been making it out to be.

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Photo credit: Thinkstock.

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72 comments

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2:01PM PST on Dec 23, 2013

In fact, what is really going on in almost all cases involved is not polygamy (in which all individuals have multiple partners contemporaneously) but polygyny (in which a male has multiple female partners contemporaneously). The amount of power that this competition among females gives the sole male is measured by the fact that women are not allowed the same situation in that culture.
The prevalent marriage type among Americans is serial polygamy, i.e. a married person has one (official) partner at a given moment but easily-obtained divorce allows a series of such arrangements, for both men and women.

1:28PM PST on Dec 21, 2013

Interesting that it’s the men who want multiple wives, while women don’t get more than one husband. Just look at the Bible. Solomon had 700 wives and 300 concubines. It’s a wonder he got anything done! Others with multiple wives: Abraham (who also had concubines), Esau, Jacob, Gideon, and Rehoboam (who had 18 wives and 60 concubines).

2:15PM PST on Dec 20, 2013

Wow, very interesting comments. Thanks for the clarifications.

6:36PM PST on Dec 19, 2013

that snot sucker with the tv program makes me puke; he cannot be hung that good

6:05AM PST on Dec 19, 2013

I watch the show all the time and see nothing wrong with the way they live. But they are of a different kind of polygamist family. I would call the Brown family modern polygamists.

Other kinds of polygamist families live in compounds and are brain washed and not integrated into society. One man has up to 13 wives. There is a show called Breaking Faith that documents some of the young girls getting help from outside their communities to leave as they do not want to be married off to men twice their age. These families are under their leader Warren Jeffs who is now in prison. I do not think that this kind of polygamy should be allowed as the people loose freedom of choice.

In the Brown family, the kids will choose whether or not they will want to live plural or not and will find their own husband/wife.

3:08AM PST on Dec 19, 2013

I don't really care how many wives/husbands any consenting adult is married to - why is it my business?

2:43AM PST on Dec 19, 2013

Polygamy is OK if:
it's not too common
it doesn't encourage population growth
people are honest about it
there's no marriage (that's for monogamous people, others can have partners)
and no kids are involved (it's not fair on their emotions).
Kids must be brought up with manogomous parents. Then the adults can be free to date who they want.

11:27PM PST on Dec 18, 2013

This is not an article about bigamy, nor polygamy, nor Utah. It is an attempt to discredit the tolerance of certain types of unconventional marriage types.
In my country, the Netherlands, polygamy is tolerated by law. The system is as such: The man divorces his current wife and marries a new wife who moves in with the family. However, the divorcee remains at home, enjoys alimony payed by the ex husband and for all other purposes remains part of the household: They live together, enjoy sex, raise children together and live a normal family life with the other wives and the husband. It is very difficult to charge such a family with fraud or polygamy, so the Dutch simply sweep the problem under the carpet. Needless to say, the man often remains religiously married under Islamic law to his former ex-wives. Much as I dislike right wing religious fanatics, this arrangement is similar to cohabitation of gay couples, whose marriage has not been reinforced by law. The law may not permit these marriages legally, but cannot prohibit the cohabitation and sexual contact of such arrangements.

10:21PM PST on Dec 18, 2013

In response to Anne M - remember the second "m" in Mormon is silent......
In my country, the current President is a Zulu - he has 4 wives, 22 children and is in the process of having a retirement home built which is costing the taxpayers over 200 million rands - that's nearly $20 million! Culture and religion, two examples of how in continuing to promote the belief systems of deluded bronze age peasants, our ability to develop future generations of well informed logically thinking citizens who can deal with the enormous challenges that face the survival of our species, is severely constrained!

9:06PM PST on Dec 18, 2013

Regardless if the people are moslems or mormons or whatever, the first wife is the real wife, all the other women who have sexual relations with that man are just cheap floozies who horn in on a marriage and the man in that set-up is just a cheap whore. End of story. I'm sick of these religious people waxing on and on about morals while they use their religion to evade our common sense traditions. After all, where does such a stupid set-up leave all the other wives and their children if the man dies and the first wife is eligible for his social security? In fact, these mormons frequently wind up marrying underage girls as their multiple wives. Let's remember the immoral oversexed customs these mormons are trying to establish before we look at another mormon who actually dares to try to become president. Most EU countries won't even acknowledge a religion whose sole purpose is to side-step the law while a conversion to another, similar religion that doesn't do that wouldn't keep them from worshiping a deity. After all, once you remove polygamy and racism from the mormon faith, all you have left is just another protestant cult, so why cater to those two illegal tenets in that faith?

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