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. David: “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.”

    Let’s start here: “There is not enough moderation for uncivil comments”

    David, David, David, you really have no concept of incivility being applied to you. Even Mike S has said you have “credibility”. I suggest Mike check the dictionary regarding “credibility” because he has IMO confused it with civility and predictability. You have no credibility. Your arguments can not be trusted because they are founded on bigotry, misogyny and ant-social political ideology.

    Just look at your above statement. You long for ideas and opinions to be moderated/censored. You allege, fear actually, that the female mind and feminized men rule. There is no ‘female mind’, just women with opinions and you don’t like that. You’ve fallen back onto that kind of statement before. Feminized men? Would that be “fags” and “faggy” men? Your homophobia is so obvious that any self-declared male that does not share it, or your other quaint ideas about family can’t be ‘real’ men, can they. They have been feminized. An insult so degrading to women (as a bank shot) that you can’t be ignorant enough to not realize what you have done.

    That you are better spoken and less volatile than Tootie (a now infrequent and totally rude and mentally deranged poster- I hope she is doing better) lulls others here. They value civility in form over the substance of the hatred that lurks just below the surface of your comments and occasionally breaks through. Not me pal, not me.

    I’m an old, unreconstructed feminist and for about 20 years would have called you a pig to your face as I do now. I only stopped using that word because I like and respect my porcine cousins and in general, using an animal name to describe a person or a persons ideas is unfair and deeply insulting to the animal. But you David, you are an old fashioned, unreconstructed pig.

  2. Seeking. Please save me from people who want to save me.

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

    And whose children should these children be? Yours?

    Clive Staples Lewis

  3. Jonathan, This is one of the few times I disagree with you. Polygamy is simply another way misogynistic men subjugate, minimize, objectify, & abuse women and children. There is nothing healthy about it, and it should not be allowed. I wonder if the result would be the same if the common practice was for women to have multiple men in their household to service their “needs?” I feel very sorry for the children of such relationships. They have no say in the matter.

  4. This was not about polygamy, but about cohabitation with multiple partners, mutually consenting partners, here sisters. Attorney Turley’s clients wisely called their situation “religious co-habitation” not marriage. There is only one marriage certificate among the four sisters. For now this distinction will differentiate this case from Save Sex cases. The Court’s 91 page opinion is a great read.

  5. 16 Dec 2013,
    North Dakota Attorney General Wayne Stenehjem filed a legal opinion last week confirming that the state does not recognize out-of-state same-sex marriages, allowing a man [woman] married to another man [woman] to come to North Dakota and marry a woman [man] without divorcing his [her] husband [wife].

    The Slippery Slope of Polygamy to Plural marriage is paved with the carcass of Marriage Equality

  6. Dredd,

    Sorry, I didn’t finish my point:

    I meant to say his clients circumvented the state of Utah’s law against polygamy. We will see if it holds up on appeal.

  7. Elaine. First you quoted an article from 2006. The article I quoted CONTRASTED prior views (filed under the heading of “Bleeding the Beast”) with actual fact. While it was believed that a fundamentalist sect of the LDS faith WAS taking welfare, they were not. If I’m not mistake, AFTER the FLDS children WERE taken into custody, then some of the families DID end up on some form of assistance. That was a result of interference.

    What you’re doing is pointing to the same article. Emphasizing what WAS believed and ignoring part of the point of the article. What WAS believed, didn’t turn out to be true.

    I have no doubt whatsoever that some plural families in this country take inappropriate advantage of government welfare problems. What you posted was “LOOK! All PLYGS STEAL FROM YOU THE TAXPAYER” as a way of drawing a Red Herring through this discussion. There are many answers to your distraction:

    First and foremost, it simply points out the error of Government interference at all levels. Not only should they get out of marriage, but they should get out of rent, mortgages and stay away from the dinner table.

    Second, you presented plural families as lock step thieves. They are not, and weren’t. It’s a classic straw man argument, which you’ve wrapped in your smelly herring. We’re not all variants of the LDS out here. Not all LDS variants are thieves. We don’t all live in gated/closed communities and we don’t all dress funny. Even if we were all lock step in the categories that were legal, there’s nothing wrong with that.

    This is about the law. The premise for Gay/Lesbian rights and “Same Sex” marriage is access to the benefits of marriage in terms of societal acceptance, insurance benefits, inheritance rights, adoption and tax classifications, all based on sexual proclivities and preference. The proclivities of the Brown family are oriented toward four heterosexual women who are willing to have one heterosexual man between them. In addition to that, they have a religious belief that exaltation in the after life is enhanced for all participants by being in such a relationship. They believe if they want to call themselves married in terms of speech only, they should be allowed to do so. Those last two are covered by the First Amendment.

    Frankly if that offends your egalitarian ethic, you’re going to have to do what all evangelists do, social or religious. Convince them one on one by the strength of your arguments and their willingness to listen. If you fail, you’re just going to have to live with it.

  8. Laws directed at limiting religious practice already get strict scrutiny under Lemon v. Kurtzman. Any law must 1) have a secular legislative purpose, 2) must not have the primary effect of either advancing or inhibiting religion and 3) must not result in an “excessive government entanglement” with religion.

  9. Quite frankly, Waddoups is brilliant. The State of Utah really does not want to appeal this decision. Waddoups has built a fortress guarding against successful appeal around his decision and stayed with Plaintiffs strongest arguments. Also should give props to Utah Supreme Court Justice Durham, who laid the extensive, thoughtful, framework for Judge Waddoups decision in her dissent in Green. After 120 years the courts have finally come to the right decision, laws targeting and criminalizing someone’s religion deserve strict scrutiny and should almost always found to be unconstitutional.

  10. Hugh,

    You’re the one who posted an excerpt from the Desert News article in order to refute the article that I had posted. I quoted a different excerpt from the Deseret News article. You asked me to provide the link–which I did. If you don’t like what I did…so be it. I don’t post here according to your rules.

  11. The Supreme Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing the citizen to hold their tongue, to not speak as in ‘purport to marry’ violates that freedom of the mind.

    Even though unmarried by state mechanism, all are free to live and speak as if they were, even if one of the parties is already legally married to another..

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