It 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
This is no shock. With the purpose & definition of marriage changing & becoming diluted all the time, soon people will be able to marry a tree or their favorite pet. I guess we should be happy that it’s between humans for the moment.
Isn’t Utah the only state that defined polygamy as mere cohabitation anyway? And don’t they still have adultery and fornication laws on the books? This ruling gets them in line with most other states that require more than one registered spouse for it to be bigamy/polygamy but isn’t it still effectively illegal to have sex with someone other than a registered spouse in Utah?
Professor Turley, you are my hero. You have achieved what many of us could not over the last 15 years. Now, an entire culture of 50,000 people can feel free to sit at the front of the bus. This is at least historic. It will resonate forever and everywhere. Watching the reverberations will be delicious. Thank you !!!!!!!!
Gnite GeneH
I do believe that free and consenting adults should be afforded protection under the law to live in a polygamous relationship.
I do not believe though that the protection of young girls who are preyed upon by the likes of Warren Jeffs and his crowd should in anyway be diminished. These Jeffs should continue to be prosecuted to the fullest.
Stephan Gregory Patterson,…….
Oky,
Science tells us. The carrying capacity of the Earth is a calculable number. Current estimates vary somewhat, but it’s safe to say that Earth is running now (considering environmental and population pressures) at about 1.5, i.e. it would take 1.5 Earths to maintain our current levels indefinitely. The largest variable is consumption rates (we have a pretty good idea about population projections and rates of environmental degradation within ranges). The bottom line is we have too many people right now using too many resources to continue as we are and we have been at this level since the 90’s. Nature, however, is a self-correcting system. It seeks equilibrium. If we don’t start doing something to stabilize (and reduce) our population levels and moderate or reduce consumption over all, our species will be in for a nasty surprise when nature corrects it for us with plagues, famine and the attendant wars that often accompany resource scarcity. Earth, in short, could shake human civilization off like a bad habit. This of course does not include such black swan events like meteor/comet impacts (a matter of when, not if), nuclear war, super volcanoes, the “methane bomb” potential of global warming or other as of yet unknown ecological or technological disasters exacerbating the problem.
Some days, I regret not having children but that is a purely emotional reaction.
Most days – the days when reason rules my roost – I’m very very glad that I do not for their sake.
Have a nice day.
Congratulations Professor Turley!
**Gene H. 1, December 13, 2013 at 11:00 pm **
Gene H,
I agree with your points on this issue.
I’ll add another of mine.
My Dad’s family & extended families were extra large I’ll say. With that many people families have enough for tribes/clans.
The last generation that I’m from, no one in it breed like the earlier generation of 7-20 kids a couple. Most us just had a couple kids each.
Couple years back when Egypt 1st started revolting I heard a news caster say Egypt’s population was 40 million 20 years earlier & had since grown to 80 million.
I assumed that in another 20 years the pop could be 160 million if that same rate continued.
A major problem I see is that if the land was barely enough for 40 mil & having trouble at 80 mil at some point soon there will be more people then the land can support there.
At what point & who says when the world is over populated?
Congratulations to all. Truly a momentous ruling.
As one-third of a poly family, I would like to extend my thanks for the very hard work that went into this. There is a little sigh of relief tonight in our household.
I can only speak from the limited experience of my family, but insofar as polygamy being bad social policy, I must respectfully disagree. After 18 years, we are apparently doing something right. My son (who is well aware of who his biological parents are, and who considers his dad’s legal spouse to be his step-mother), skipped a grade in middle school and is going to start a college career in theoretical physics at age 17. He’s well-adjusted emotionally, socially and academically. Most of his friends (and their parents) are aware of our family structure, and it has never been an issue. People tend to see the postive impact we have in our community, and ask us about our situation to the degree they are comfortable with the answer.
Our family has had its share of interest from local law enforcement, but thankfully the DA decided that was not a path he wanted to wander down, as we have never tried to game the system. Two of us are married, three of us are in a committed relationship. We pay our taxes, help out in the community, and generally behave like everyone else in the neighborhood.
Congratulations to all involved in bringing this to a victory. The resolve against some very distateful, to say the least, actions by a state government and invididuals acting for political ends over civil rights does everyone credit.
ANY victory for privacy is a reason to celebrate. Congratulatons.
RWL,
I used to be for it under the theory of contracting, but I’ve always thought it was a bad idea for reasons that multiple parties mean compounded complications if something goes wrong. However, Elaine, Blouise and Smom showed me some studies that revealed that polygamy has repercussions in the community beyond the direct parties as well as negative impacts on the children (beyond those in a situation gone awry). Like mespo, I think this is good law, but I don’t think it’s necessarily good social policy. However, so long as consent is valid, I’m willing to let people make their own mistakes for a couple of reasons but the main one is that polygamy (despite its negative effects) is generally culturally unacceptable to the point that any negative social effects should remain fairly minimal and localized for the foreseeable future.
Now how about Utah being consistent and legalising gay marriage too!