Parts of Anti-Polygamy Law in Utah Ruled Unconstitutional by Federal Judge

A federal judge with the US District Court in
Utah
ruled portions of the state’s anti-polygamy
lawunconstitutional, effectively decriminalizing the practice of
polygamous cohabitation. The Salt Lake Tribune
explains:

[Judge Clark] Waddoups’ ruling attacks the parts of
Utah’s law making cohabitation illegal. In the introduction,
Waddoups says the phrase “or cohabits with another person” is a
violation of both the First and 14th amendments. Waddoups later
writes that while there is no “fundamental right” to practice
polygamy, the issue really comes down to “religious cohabitation.”
In the 1800s — when the mainstream LDS Churh still practiced
polygamy — “religious cohabitation” in Utah could have actually
resulted in “multiple purportedly legal marriages.” Today, however,
simply living together doesn’t amount to being “married,” Waddoups
writes.

So polygamists in Utah can’t apply for multiple marriage
license, but neither can they be prohibited from living together as
(generally) husband and wives.

In not ruling to overturn Utah’s anti-polygamy law in whole, the
judge argued that the plaintiffs hadn’t proven the 1973 statute was
not a successor law to the patently anti-Mormon laws it replaced.
From the ruling:

As far as bigamy is concerned, therefore, it has not
been sufficiently established that the Statute is necessarily a
continuation of the federal government’s nineteenth-century
legislation at issue in Reynolds and Late Corp. It would be
ludicrous to suggest that the federal legislation at issue in those
cases did not specifically target the LDS Church and its practice
of polygamy. If it had been sufficiently established and argued
that the Statute was an extension of that legislation, the court
would likely be pressed to find it is therefore not a neutral law
of general applicability on that basis and would be required to
apply strict scrutiny to the polygamy part of the law as
well,

The case was brought to court by Kody Brown, who is married,
lives with, and has children with four wives, and whose family is
featured in TLC’s Sister Wives. Most polygamists’
lifestyles are not as public as the Browns’, so the issue may not
have come to a head absent the reality show. Connor Boyack of the
libertarian Libertas Institute in Utah
explains:

“With rare exceptions like Kody Brown and his wives,
most polygamists throughout Utah have been living under a shroud of
secrecy, forced into the shadows because the government has
historically considered their lifestyle to be criminal activity.
Today marks a new beginning, and an important invalidation of an
unjust law.”

“While child brides, abuse, and other problematic activities should
be dealt with and appropriately prosecuted, consenting adults in a
plural relationship should not be threatened with punitive action.
Judge Waddoups’ ruling will help integrate these communities into
society so that when abuse does occur, it will be more willingly
reported and investigated.”

You can read the whole ruling, via the Libertas Institute,
here.

Reason’s Scott Shackford
explained last year how the expansion of the legal definition
of marriage (and, ultimately, the regulatory structure around it)
will help make the libertarian case for pulling marriage and
voluntary relations between two (or more!) people out of the realm
of government, something this ruling is likely to contribute to as
well.