Federal Court Strikes Down Criminalization of Polygamy In Utah

240px-sister_wives_tv_series_logoIt is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah.  The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause.   The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists.  The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.

The decision affects a far greater range of such relationships than the form of polygamy practiced by the Browns. It is a victory not for polygamy but privacy in America. I wish to thank our legal team including our local counsel, Adam Alba, my students like Geoff Turley, my assistant Gina D’Andrea, and the many others who have assisted us through the years. I must also thank Judge Waddoups who showed remarkable principle and integrity in rendering this decision. This law has been challenged dozens of times in state and federal court over the many decades. It took singular courage to be the first court not only in this country but any recorded decision to strike down the criminalization of polygamy. In doing so, Judge Waddoups stood against prejudice and considerable hostility toward plural families. In a single ruling, he reaffirmed the wisdom of our Framers in creating a court with life tenure and independence under our constitutional system.  While the Supreme Court is often credited with the recognition of basic rights, it is often forgotten how the true profile of courage is found among those lower court judges who stood against prejudice and anger to follow the rule of law. It will be an honor to defend this  decision in any appeal by the State and we are prepared to do so as far as the Supreme Court to protect this legal breakthrough.

My final thanks is to the Brown family which has endured years to threats and investigation to bring this day about. They have secured for plural families the promise of privacy recognized for same-sex couples in Lawrence v. Texas. In recognition of the importance of this civil liberties case (and contrary to the statements of state officials), the Brown have made little reference to the case on their TLC show so not to distract attention from the merits of the case. They have earned this historic victory and both my respect and gratitude.

With this decision, abuse of spouses and children will continue to be prosecuted regardless of whether they occur in monogamous or polygamous families. These protective services will only be strengthened now that many families can openly integrate into society and not fear prosecution merely because of their family structure.

The court struck down that part of the statute that criminalized co-habitation between consenting adults — allowing plural families to step out for the first time in their communities and live their lives openly among their neighbors.  What remains of the statute was narrowly construed by the Court to limit future prosecutions to traditional bigamy, i.e. individuals with multiple marriage licenses.

This historic ruling is a hard-won victory that will be defended with equal vigor in the coming months. If the State (as previously stated) intends to fight for this pernicious law on appeal, we will be prepared and honored to defend this ruling.  Accordingly, as we argued, the state can only prohibit and prosecute “bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.”

Kody Brown issued the following statement on the ruling:

The entire Brown family is humbled and grateful for this historical ruling from the court today. Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs. There are so many families who have waited for so long for this ruling and, on their behalf, we can only say: thank you, Judge Waddoups, for your courageous decision. We want to particularly thank our lead counsel Professor Jonathan Turley who represented us through the criminal investigation and then led the fight against this law. We also want to thank the team of lawyers and students from George Washington, including our local counsel Adam Alba. We are so honored and blessed to have been able to serve as the vehicle for this milestone ruling. Professor Turley has pledged to defend this decision on appeal and we are equally committed to fight to preserve this great victory.

Finally, many have asked what the next step will be. The Utah Attorney General’s office previously stated that they would defend this law on appeal. If that remains their intention, they will have a number of options. They can seek a reconsideration from Judge Waddoups. Such motions are rarely granted in an opinion that has been written with such care as this one. Alternatively, they can go directly to the United States Court of Appeals for the Tenth Circuit. They will have to file notice of appeal with the Court and the matter will be put on a briefing schedule. Given the limited trial record, such an appeal could proceed without significant delay if the Utah Attorney General remains committed to an appeal. Once filed, the case will shift from Salt Lake City to Denver Colorado.

For the moment however we are all savoring this great victory that has come after such a long and difficult fight — long before this lawsuit was filed. This struggle began with the approval of the Enabling Act in July 16, 1894 when Congress made the outlawing of polygamy a condition for statehood. Utah has achieved something equally important today: true equality of its citizens regardless of their personal faiths or practices. It is a moment in which all Utahans should take pride and celebrate not in the name of polygamy but of privacy. So congratulations to the Browns and to the people of Utah on a truly momentous day.

Jonathan Turley
Lead Counsel

Here is the opinion: Brown Summary Judgment Decision

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187 thoughts on “Federal Court Strikes Down Criminalization of Polygamy In Utah

  1. […] 9. It is no longer merely hypothetical to argue that sanctioning same-sex marriage leads down a slippery slope toward other redefinitions of marriage, as well. Recently, a United States District Court judge recently struck down Utah’s ban on polygamy as unconstitutional. The polygamist’s attorney in the case, Jonathan Turley, cited the “right” of homosexual couples to marry as a precedent. See his Dec. 13, 2013 blog entry, “Federal Court Strikes Down Criminalization of Polygamy In U…. […]

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  4. Thank you your Honor’s – – now that we have discussed a few of the more pointed rationales as why we support the two person of opposite gender marriage, what ever you decide as is the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in an ’emotional relationship’ can be extended to all other ’emotional relationships and that will be OK

  5. Point is clear – – Rationality determines marriage – – As the question being – is marriage a Fundamental Right – then by what measure shall it be cabined ?
    Clearly no existing ‘Platonic Relationship’ [which Bob and the Twin Sisters co-habit under] can be excluded from translating that relationship to and under the umbrella of civil marriage – –

  6. The inter-personal relationship is eternal – social acknowledgment of can be obtained by Matrimony without civil marriage – civil marriage is what the state acknowledges – by what measure shall the state not acknowledge what is known and accepted towards the co-habit and not towards the married . . .

    ‘Bob and the twin sisters Sue and Sally’ may freely co-habit and create children together – – each child is equal under the states tenancy of the co-habit – which child is to be as second to the other under the tenancy of civil marriage – one from Bob and Sue or the one from Bob and Sally . . .

    . . . what ever you decide as to the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in a child rearing relationship can be extended to all other child rearing relationships and that will be OK

  7. Stepping into a discourse well beyond the subject of civil marriage
    Mapping of the Mind – Rita Carter
    Located in the temporal lobe is a religious hot spot hard-wired into humanity
    After all, if God exist, it figures He must have created us with some biological mechanism with which to appreciate Him – –

    Can perhaps define eternal as that which upward and downward causality meet, as that regardless of the point in space and time, in creation a truth is measured by the message that travels upward must always intersect with the message that travels downward, the point of intersection, the law of that intersection never changes . . e.g. no matter where is time and space, given the conditions of fuel, air and heat, rubbing two sticks together will produce fire . .

    Here though it is civil marriage and by what measure shall it be weighed ?
    State takes no action to prohibit the brother and sister from the relationship of the co-habit – – The state views it as a Platonic Relationship, yet under the tenancy of civil marriage that relationship becomes one of a sexual nature, one that the state denies giving its stamp of approval upon. If civil marriage is indeed a “Fundamental Right” that without merit transfer from the Platonic to the sexual is untenable – that transference may be made by a rational person and upheld under rationale review, that same rationale made by a rational person fails the exam of strict scrutiny – – the state makes no effort to curb the co-habit

    . . what ever you decide as to the marriage right of ‘Bob and the twin sisters, Sally and Sue’ who already may co-habit together in a “Platonic Relationship” can be extended to all other Platonic Relationships and that will be OK

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