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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