Salt Lake City,
Utah — Polygamists in Utah can engage in as many “spiritual marriages” as
they like, thanks to a federal judge’s new ruling — provided they are married
legally to only one spouse.
Judge Clark Waddoups finalized
his decision last month, striking down a section of Utah’s anti-polygamy law as
unconstitutional. The federal judge for the District of Utah decided that
authorities in the the State of Utah were selectively applying a law
criminalizing polygamous cohabitation to target fundamentalist Mormons in
“plural marriages” of a spiritual nature.
The Utah law was
challenged on behalf of polygamist patriarch Kody Brown, his four “wives” and
17 children, who star in the TLC reality television program Sister Wives.
The Browns fled Utah for Nevada after the Utah County attorney’s office began a
bigamy investigation the day after the show’s September 2010 premiere, although
the case was dropped two years later, and charges were never filed.
Jonathan Turley, a George
Washington University Law School professor and lead counsel for the Browns,
called the decision a “great victory for freedom of religion.”
“The court found that
this law as it had been conceived was used to target religious minorities,” he
said. “What people need to remember is that this case is not about the
recognition of plural marriage; it is about the decriminalization of plural
relationships.”
In his decision, Waddoups
ruled the cohabitation prong of Utah’s anti-bigamy law violated the First
Amendment’s free-exercise-of-religion clause and lacked a rational basis under
the 14th Amendment’s due-process clause.
The judge said the state
could ban a person from committing bigamy — obtaining more than one legally
recognized marriage — because a “fundamental right” to polygamy does not exist
in U.S. law or British common-law precedent.
But he said Utah went
farther than other states by making a person guilty of a felony for
“cohabit[ing] with another person” not his or her legal spouse. The
crime was punishable up to five years in prison for each offense.
He noted that Utah only applied
this part of its polygamy statute when “religious cohabitation” was involved:
specifically, to fundamentalist Mormons living in “spiritual marriages,” not to
adulterers or even people living together in committed polyamorous households
with children.
Assistant Attorney
General Jerrold Jensen admitted to Waddoups during oral arguments that the
cohabitation prong of the statute only came into play when multiple wedding
ceremonies were involved or when the man and the women were representing
themselves as married.
Appeal Planned
Utah’s attorney general
has indicated he will appeal Waddoups’ ruling to the 10th U.S. Circuit Court of
Appeals in Denver.
However, the attorney
general’s office may need to substantially improve its constitutional
arguments. Waddoups, in his initial 91-page December 2013 ruling, said
the state’s “sheer lack of response” to seven claims against the anti-polygamy
statute’s constitutionality put the Browns’ attorneys in the “awkward position
of replying to a non-response.” He also noted that the state failed to
provide “admissible evidence” about the social harms of polygamy in further
briefs or oral argument.
However, despite claims
by the Browns’ legal advocate that this is a religious-liberty issue, some
Catholic leaders do not see the Brown case on par with the religious-liberty
issues at stake in the HHS mandate.
“It is not trying to
protect the religious rights of anybody. It is simply saying the law is not being
fairly applied, and it simply is not right,” said Bishop John Wester of the
Diocese of Salt Lake City.
He said the issues in the
Brown case are different from the religious-liberty issues the Catholic Church
faces with the HHS mandate.
“In our case, we are
objecting to the fact that the government is trying to define for us what
constitutes the Catholic Church. And you can’t do that: We are the
ones who define the Catholic Church,” Bishop Wester said. “For us, our
outreach and hospitals, our Catholic charities and social-welfare organizations
are part of our mission, part of who we are as Church, and that cannot be
overturned by the government.
“In this other case, the
state is not asking polygamists to violate their consciences.”
Bishop Wester said that
whether Judge Waddoups’ ruling has unintended consequences for marriage down
the road remains to be seen.
Turley, however, said
Waddoups’ ruling does not open up a new chapter in the “marriage equality”
movement. It leaves the ban on having multiple marriage licenses intact, which
was not part of the Browns’ objections. The vast majority of polygamists do not
pursue multiple marriage licenses, Turley explained.
“Most are like the Brown
family: a single marriage license, and the other relationships are called
‘spiritual marriages.’”
Turley said he has been
informed that Waddoups’ decision will make it easier for state officials to
deal openly with polygamous families rather than dealing with them as “criminal
enterprises.”
Polygamy Problems
But Bill May, president
of Catholics for the Common Good (CCG),
said Waddoups’ reasoning about marriage “has the same underlying problem as
cases to redefine marriage.”
“The consideration is
about freedom for fulfilling the desires of adults, rather than promoting that
children receive their just due from their parents,” he said.
In his ruling, the judge
claimed majoritarian prejudice against African or Asiatic cultures was the root
of Utah’s ban on polygamy, which was a condition for statehood.
May countered that the
arguments for banning polygamy in law are founded not on prejudice but on
protecting women and children, “who are often unjustly treated when there is
competition among spouses and children” living in a single household.
He said redefining
marriage to include same-sex couples undermines the rationale for bans on
polygamous unions, because it argues against “any unique value for children to
be born into the marriages of their mothers and fathers.”
“When marriage is
redefined and separated from the rights and interest of children, then the
argument for unjust treatment of children in polygamous marriage goes away,”
May said. “There will be no longer any reason under the law to prohibit
marriage between any number of people.”