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


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

  1. Hugh McBryde
    1, December 15, 2013 at 8:43 pm

    To back up my refutation of Elaine, I offer the following:

    “The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance.”

    From an article by James Thalman in the Deseret News:




    From the Deseret News article that you provided a link to:

    The Houston Chronicle has reported that not one of the nearly 3,000 residents of Schleicher County, where the Yearning for Zion Ranch is located, is receiving state assistance. There are just more than 200 receiving federal food stamps, and there are 63 children enrolled in the joint state and federal Children’s Health Insurance Program. The newspaper also reports that 283 residents are covered by Medicaid, the government medical insurance plan for the poor.

    The splinter group, which actively seeks the least possible involvement with government — local zoning ordinances the most notable exception — has had a history in other states of using whatever financial supplements provided by the government.

    Six years ago, the Utah Attorney General’s Office reported that between 65 and 80 percent of the residents of polygamous families in Colorado City, Ariz., and Hildale, Utah, were on food stamps.

    1. Gene H wrote: “Ooo. More false equivalency. Delicious.”

      You love to proclaim this “false equivalency” fallacy, but you fail to recognize that I am not arguing for equivalency. My stance has been that homosexual unions and heterosexual unions are distinctly different based upon a number of parameters such as gender diversity and reproductive capabilities that I have outlined elsewhere. In contrast, your stance is one of equivalency. You argue that these two types of unions are essentially the same. You argue that the law should make no distinction between them in regards to marriage or it runs afoul of discrimination against homosexuals.

      When I bring up other types of sexual relationships, such as pedophilia or bestiality, I am not saying that they are the same as homosexual or heterosexual relationships. I am saying that your erroneous arguments advocating support for homosexuality and same sex marriage apply equally well toward these other situations. This is EXACTLY what Professor Turley has done in this case of “Brown et. al. v. Buhman” by arguing for the privacy issues in “Lawrence v. Texas.” The decision of the court is almost entirely based upon “Lawrence,” a decision that declares a portion of a Utah State Statute unconstitutional, paving a way to open up the legalization of polygamy. If you have a beef with so-called “false equivalency,” I suggest you take it up with Professor Turley and the United States District Court.

  2. I want to marry my dog and my horse. Can you help me.

    The horse betrothal would be a same sex marriage, if that matters.

  3. He removed two posts I made that referenced joining an organization and fighting against his attempts to shove polygamy down our throats.

    Looks like Turley isn’t as big of an advocate of “free speech” as he claims to be on this blog.

  4. Actually MK, you are not being censored. WordPress has a fickle and temperamental spam filter. I’ll see if it got you.

  5. Thank you, david m.

    PS I earlier left a message for other posters on this thread to ask if they knew of any organizations I could raise money for and join that are dedicated to fighting Professor Turley’s attempts to shove polygamy down American throats.

    The message was removed.

    it looks like taxpayer-funded, far-left-wing Professor Turley is not as much of an advocate of “free speech” as his blog would leave one to believe.

    About George Washingon University: “The George Washington University was created in 1821 through an Act of Congress, fulfilling George Washington’s vision of an institution in the nation’s capital dedicated to educating and preparing future leaders”

    So we federal taxpayers are being forced to fund a lavishly paid professor of law who is dedicated to destroying an essential underpinning of our Western culture? How is that fair or just?

    1. MK wrote: “it looks like taxpayer-funded, far-left-wing Professor Turley is not as much of an advocate of “free speech” as his blog would leave one to believe.”

      I would disagree with you on this point. WordPress does overly protect the blog all on its own. Long posts and posts with more than two links in them tend to get snagged. Some posts get snagged for no discernible reason. This happens to everybody, even guest bloggers. The general way to deal with this is to make a short public post that asks a guest blogger to see if your post could be released from WordPress. Sometimes they can be released, and sometimes they are just gone for unknown reasons.

      The blog here does allow a wide latitude of free speech. Perhaps too much. There is not enough moderation for uncivil comments by the guest bloggers, so the threads tend to be heavy upon emotion and popular liberal rhetoric rather than logic. As a result, the female mind and effeminate minds of men tend to rule. Saying such is sure to bring heckles because they like to pretend that no educated person believes in gender diversity anymore.

      In regards to Professor Turley, I find him to be sincerely interested in Constitutional rights and individual liberties. One problem is that he has bitten into the apple of the gay rights movement and the kind of egalitarian views that it pushes. This has moved him into a position of being blind to the dangers posed to society by the homosexual movement and the polygamous movement. I do not know where he stands on the issue of liberty for man/boy love or bestiality.

  6. A large number of commentors have these ideas confused and seem to think this court decision clears the way for multiple people to be legally married.

    Bu isn’t that Turley’s final goal? Isn’t this Utah court case just an interim step in the process? How stupid do you think we are? We have seen this show again and again and again.

  7. Gene H: I don’t believe for one minute that your Reynolds decision is a bulwark against formally legalizing polygamy. People like Turley will get their own way, by hook or by crook, and the public be damned. “Democracy” be damned.

    I will revisit this blog in four or five years–which is probably about when the formal SCOTUS decision will be handed down legalizing polygamy. While Turley and his ilk sit back and smile like the cat who swallowed cream. By that time I will be ready to leave my blue state for a red state and start agitating for secession.

  8. It might be useful to make a very clear distinction near the front of the article (ie: the part people bother to read) between “not criminally prosecuting people for cohabiting” in a plural marriage, and legalizing marriage for more than two people. (One can infer this distinction if they read the whole article carefully, I’m just suggesting being more clear up front). A large number of commentors have these ideas confused and seem to think this court decision clears the way for multiple people to be legally married.

  9. Who exactly is “we”, MK? And no, the voices in your head don’t count. I was also unaware that I was the spokesman for modern progressivism let alone parenthetical “progressives”.

    I might add that directly citing relevant case law – not just on legal theory and black letter law but in fact pattern directly relevant to polygamy – does not qualify as either deflection or “incrementalism “. It is the essence of direct. I also fail to see how a case from 1878 could be considered incremental. Reynoldsis well established precedent that the government can regulate religious practice but not belief and it be appropriate under the 1st Amendment.

    Your trolling is weak, young Jedi.

    That’s what turning to the Dark Side will get ya.

  10. How polygamy affects your wallet
    May 11, 2006

    You may or may not agree with polygamist Warren Jeffs’ lifestyle, and you may or may not think he is indeed the dangerous criminal the FBI says he is, but would you believe Jeffs and his followers are costing you money?

    “Their religious belief is that they’ll bleed the beast, meaning the government,” said Mark Shurtleff, Utah’s attorney general. “They hate the government, so they’ll bleed it for everything they can through welfare, tax evasion and fraud.”

    It makes some sense. Polygamists have multiple wives and dozens of children, but the state only recognizes one marriage. That leaves the rest of the wives to claim themselves as single moms with armies of children to support. Doing that means they can apply for welfare, which they do. And it’s all legal.

    “More than 65 percent of the people are on welfare … compared with 6 percent of the people of the general population,” Shurtleff said.

  11. I didn’t realize citing a spot on relevant precedent was propaganda.

    We’ve already seen this show during the gay marriage debate and a hundred other debates with “progressives.” We know that deflection and incrementalism have always been winners for you guys.

    I’m not swayed or impressed.

    1. MK wrote: “We know that deflection and incrementalism have always been winners for you guys. I’m not swayed or impressed.”

      Yup, I’m not impressed with the deflection either. You make some intelligent points, MK.

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