SALT LAKE CITY — 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 Beehive State 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.
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.”
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.”
Peter Jesserer Smith is the Register’s Washington correspondent.