Judge Rules for Polygamists in Sister Wives Case

Last December, Federal Judge Clark Waddoups struck down a
central part of the Utah law banning polygamy. Yesterday he issued
the rest of his ruling, dealing not with the statute itself but
with the husband and wives at the center of the case—Kody, Meri,
Janelle, Christine, and Robyn Brown, stars of the reality show
Sister Wives. Nate Carlisle of The Salt Lake
Tribune
reports:

Waddoups in December struck the section of Utah’s
bigamy statute that can be applied when someone “cohabits with
another person” to whom they are not legally married. Utah law made
such a union a felony punishable by up to five years in prison.
Waddoups said the ban violated the First and 14th amendments to the
Constitution.

Waddoups let stand the portion of the statute that prevents someone
from having more than one active marriage license.

In the final portion of his ruling Wednesday, Waddoups found the
Utah County Attorney Jeff Buhman violated the Browns’
constitutional rights when he oversaw a 2010 investigation into
whether the Brown family was committing bigamy. At the time the
Browns lived in Lehi. They have since moved to Nevada. Buhman
eventually decided
not to file criminal charges, but Waddoups said the
investigation stifled the Browns’ rights to free speech, religion
and equal protection.

Waddoups ordered Utah to pay the Browns’ attorney fees as a result
of that finding.

Utah’s attorney general says he plans to appeal the ruling; if
he does, I hope he loses again. As I wrote
when Waddoups’ earlier decision came down:

The case is drenched in the politics of
polygamy, but in one important way it isn’t about polygamy at all.
The Browns all live together, but only one of the wives has a
marriage license. To the extent that their family departs from
American marital norms, it is a private arrangement unrecognized by
the state. The Browns’ household is more like the informal and
contractual gay unions that have
existed for decades than the fully recognized same-sex
marriages that many states are beginning to allow today.

And that’s all that is now legal. Previously, Utah considered a
person guilty of bigamy if, “knowing he [or she] 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.”
It is the final part of that restriction—the bit about
cohabitation—that comes into play here. If a dozen roommates in San
Francisco decide to set up a polymorphous polyamorous partnership, the law
would have nothing to say about the matter. (The building code
enforcers might object, I suppose. But that’s a separate issue.)
Utah’s rules are different, and they are different because of a
long legacy of prejudice
and religiously targeted persecution. Pointing to this persecution
and to a history of selective enforcement, Judge Clark Waddoups
ruled that the portion of the statute prohibiting cohabitation
violates the First Amendment’s guarantee of religious liberty.
Pointing to other matters of law, such as the fact that Utah no
longer has common-law
marriages, he ruled that the ban on “purport[ing] to marry
another person” should apply only to someone attempting or
pretending to acquire more than one marriage license. That puts
households like the Browns’ in the clear.

So Utah is not about to start recognizing group marriages. It’s
just going to stop bringing criminal charges against people who
have done nothing more than establish their own unlicensed big-love
homes.

To read the rest of that article—including my argument that this
decriminalization will make it easier, not harder, to act against
abusive households—go
here.