Polygamy 2012

Once upon a time, family law was a marginal legal topic that didn’t make many headlines the way constitutional law or criminal law so often do. But gay marriage and Prop 8 have propelled family law and marriage to the legal center stage. In an odd parallel development, “the family” has, over the last few years, moved to the center of LDS doctrine and practice as well, with “The Family: A Proclamation to the World” being the most visible evidence of that change. We are living in an intersecting perfect storm of changing family law, family doctrine, and family practice. So we should learn some family law before the cyclone hits. Let’s start with a current case.

While gay marriage has garnered headlines, polygamy or plural marriage is waiting in the wings. Every few years a polygamy case works its way through Utah courts and then quietly goes away. The latest case might not go so quietly: Brown v. Herbert, filed July 13, 2011 in federal court in Utah. Defendants filed a 12b1 motion to dismiss for lack of standing. On February 3, 2012 the court issued a Memorandum Decision and Order granting the motion as to two of the defendants (the Governor and Attorney General of Utah, both in their official capacities) but denying the motion as to the County Attorney of Utah County. So the case will go forward and Plaintiffs (the Brown family featured in the TV series Sister Wives) will have a chance to present their case in federal court.

And what is their argument? “Plaintiffs have filed this case to challenge Utah Code Ann. § 76-7-101 … as unconstitutional and enjoining its enforcement.” (Memorandum Decision, page 1.) Here is the text of Utah Code § 76-7-101, the anti-bigamy statute, included in the Utah Criminal Code under the suggestive classification “Offenses Against the Family”:

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

Notice the wording “purports to marry another person.” Under common law (and most modern criminal law derives from common law) the first marriage was valid but a purported second marriage was void. Technically, there was no second marriage, which raised tricky issues for prosecuting bigamy (Second marriage? What second marriage?). Modernly, licensing statutes accomplish a similar result. Utah Code § 30-1-7: “No marriage may be solemnized in this state without a license issued by the county clerk of any county of this state.” And you can’t get a license for a concurrent second marriage, hence any attempted second marriage will not be recognized by the state, either because no marriage license was granted or because one was obtained fraudulently. Thus the second clause in the first paragraph of § 76-7-101, “… or cohabits with another person.” That simplifies prosecution but, this being the year 2012, cohabitation as a basis for criminal liability may be problematic. Can the government still hold consenting adults (in any number and in any configuration of sexes or genders) criminally liable simply for living together? If it isn’t a crime for a guy to live with his girlfriend, is it a crime for a guy to live with two girlfriends? Or with a wife and two girlfriends? Will a court in 2012 be willing to make that distinction, or will it throw out the Utah statute as uncontitutional?

However, ruling the statute unconstitutional raises other constitutional issues. Here is Article 3, Section 1 of the Utah Constitution:

Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.

So the constitutionality of the statute raises the issue of the constitutionality of this clause in the Utah State Constitution. Furthermore, it was Congress that required that clause to be included in the Utah Constitution when it approved statehood for Utah in the Utah Enabling Act of 1894. Here is the langauge from the Act directing provisions to be included in the constitution to be drafted for the future State of Utah:

The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not to be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. And said Convention shall provide, by ordinance irrevocable without the consent of the United States and the people of said State

First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited.

So it is not simply a matter of Utah amending its state constitution to conform with a possible opinion by the federal district court (as possibly affirmed by the Tenth Circuit Court of Appeals and the United States Supreme Court). Utah may be prohibited from amending its constitution without the permission of Congress.

Which brings us to the final section of the Memorandum Decision, in which the court states that “notice will be given to the United States to determine if it wishes to intervene” in the case. That section also references an October 28, 2011 Order to Show Cause why “the United States should not be joined as a required party due to its interest in Utah’s prohibition of polygamous or plural marriages as a condition for granting statehood, as stated in the Utah Enabling Act of 1894.” (Memorandum Decision, page 20.)

I don’t know that the United States can really dodge this issue, but either position raises difficult questions. Would the United States defend the statute and the Utah Constitution, arguing that mere cohabitation in certain arrangements, but not others, is still criminally liable? Or would the United States decline to defend the statute, opening the door not only to officially tolerated plural cohabitation (which may be the de facto case already, except in Utah County) but also to legal plural marriage? This touches not only plural marriage as presently practiced by Mormon fundamentalists but also Islamic polygamy presently if quietly practiced in the United States (see articles here and here for a quick introduction). All this, with two presidential candidates who each have polygamy in their family histories.

It is still possible this case will, like previous cases, end quietly. The court could yet find the issue moot, and dismiss the entire case, if Utah County officials credibly state they will not, now or ever, prosecute the Browns for violating the statute, despite apparent public statements to the contrary. But fairly strong language in the Memorandum Decision suggests the court will not entertain that argument, and Plaintiffs seem intent on having the case heard on the merits. This may not be the last time you read about Brown v. Herbert.

21 comments for “Polygamy 2012

  1. Kevin Barney
    April 19, 2012 at 1:35 pm

    Thanks for the summary. I’m interested in this one.

  2. Coffinberry
    April 19, 2012 at 1:43 pm

    Cool beans.

    If I understand you correctly, the problem would be that to remove the cohabitation clause would gut the bigamy statute in such a way as to violate the Utah constitution because there would be no way to enforce the constitution?

  3. April 19, 2012 at 1:56 pm

    Coffinberry, the court wouldn’t just remove the cohabitation clause from the statute. A court isn’t going to take a criminal statute it deems unconstitutional and trim away a clause or two to render it acceptable, like it might in a civil contract, where one clause might be held unenforceable but the balance of the contract still enforceable. I think the court will consider the statute as a whole.

    As to the idea of treating bigamy and cohabitation as entirely separate issues, one could make that argument, but I think that would be difficult to establish given how entwined the two concepts are in the history of the issue and in present statutes. The court in this case seems to see it this way, given the court’s invitation to the United States to intervene because of its legal interest in prohibiting plural marriage (not its legal interest in prohibiting cohabitation).

  4. April 19, 2012 at 3:20 pm

    I’ve believed for a while now that Reynolds vs. the United States is a mess that was going to have to be cleaned up some day. Maybe that day is coming.

  5. Jax
    April 19, 2012 at 5:24 pm

    Thanks for the info…

    I was also interested in watching the polygamy case (investigation) that just concluded in Canada. I am not a polygamist (nor will my wife ever allow me to become one), but I hope that eventually we just legalize plural marriage. I can’t see any defendable reason why single men (or adulterers really) can sleep with as many women as he wants without any criminality involved, but that sleeping with multiple women while simultaneously taking on marital responsibility for them is criminal.

    We’d have to be very vigilant in prosecuting child abuse, incest, and other problems that could occur if someone weren’t a willing partner to a plural marriage, but those laws are already on the books. If we did that I don’t see any reason we couldn’t do away with anti-polygamy laws.

  6. palerobber
    April 19, 2012 at 5:28 pm

    i fail to see how striking the cohab law for unconstitutional (which it is) raises any issue for the state constitution’s prohibition on “plural marriages.” so long as that passage is interpreted to refer to civil marriages then there’s no contradiction.

  7. palerobber
    April 19, 2012 at 6:38 pm

    @ Mark N.

    SCOTUS had a good opportunity to fix Reynolds in the 1990 peyote case (Employment Division v. Smith) but instead they reaffirmed it. only 3 justices, all liberals, dissented.

    here’s Scalia writing for the majority:

    the [Free Exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional […] See, e. g., Reynolds v. United States

    btw, the Reynolds opinion was in turn based directly on Jefferson’s letter to the Danbury Baptists, where he writes:

    Believing with you […] that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

    the court in Reynolds read that bolded part above to mean that government is free to prohibit religious actions, just not opinions. i think this is pretty dangerous and it highlights a contradiction within Jefferson’s letter: what is “free exercise” worth if it doesn’t extend to “actions”?

  8. April 19, 2012 at 8:31 pm

    But palerobber, won’t the argument be different when this issue reaches the court? I don’t think the argument will be religious practice, but the right to choose who to marry (i.e., the argument that gay rights advocates are using). Perhaps I’ve missed it, but Dave’s description doesn’t indicate that the arguments in Brown v. Herbert are about religious practice at all.

    To the extent that the arguments advanced in Brown v. Herbert are in fact about religious practice, I suspect that it will lose or the Court won’t hear it. BUT, if another argument is advanced, I can see the Court using that logic to allow polygamy.

    We should probably add that even if polygamy becomes legal, I don’t think religious practice in the LDS Church will change.

  9. palerobber
    April 20, 2012 at 12:33 am

    Kent, i was mainly just responding to the poster who brought up Reynolds, but the complaint Dave linked to says the Browns intend to challenge the law on not just due process and equal protection, but also on free exercise, establishment, free speech, and freedom of association.

    given that today’s court is more conservative that the court that decided the peyote case, i agree with you that they have no chance of winning on the 1st amendment front. but let’s be clear, they also won’t be arguing “right to choose who to marry” as a fundamental right, because 1. they’re challenging the criminal cohab law, not the civil marriage law, and 2. neither SCOTUS nor any federal circuit court has even found a fundamental “right to marry” yet.

    their best (only?) bet is the Lawrence v. Texas route, i.e. right to private consensual relationships under substantive due process.

  10. Fred Gedicks
    April 20, 2012 at 4:36 am

    Dave, an important Utah case is State v. Holm decided in 2006 by the Utah Supreme Court. It rejected your (common sense)reading of the Utah bigamy statue, disingenuously construing “purporting to marry” to mean “imitating or pretending to marry.” Durham made your arguments in dissent. The polygamous wife was underaged, but that was not an issue in the bigamy part of the appeal.

    Full disclosure: I was co-counsel to the defendant.

  11. palerobber
    April 20, 2012 at 10:34 am

    Fred, isn’t that exactly what “purport” means? (i’m not a lawyer)

    in any case, since we still have the “or cohabits with another person” so it doesn’t really matter what the courts make of “purport”. or was your client not cohabitating?

  12. palerobber
    April 20, 2012 at 10:54 am

    Fred, after reading a little more about the Holm case, i’d be interested to hear your opinion as to whether the Lawrence argument used in that case was sound, and if so, why it failed to sway the justices.

    the majority opinion seems to say that Lawrence didn’t apply because that ruling didn’t cover “the public institution of marriage”. talk about disingenuous! Kennedy’s actual words: “The present case […] does not involve whether the government must give formal recognition to any relationship” (my emphasis). Kennedy said nothing about “the public institution”, whatever the hell that is.

  13. April 20, 2012 at 6:05 pm

    Thanks for the comments, everyone.

    Fred (#10), the Holm majority’s byzantine discussion of the boundaries (in fact, shifting boundaries) of the definition of marriage does not seem like an analysis that will hold up in the long run.

    In particular, the majority’s analysis clearly brings “polygamous cohabitation” within the statute at 30-1-7, whereas the federal district court in the Memorandum Decision in Brown deems the statute against polygamous cohabitation “moribund” (more or less officially unenforced, although Utah County apparently didn’t get the memo). This seems inconsistent with the view of the majority in Holm. The district court deftly avoided a direct discussion of Holm (and Green) by distinguishing their facts (which included other independent crimes) from Brown (with no other crimes alleged), but it doesn’t sound like the district court is buying the argument of the Holm majority.

  14. Raymond Takashi Swenson
    April 20, 2012 at 6:07 pm

    I personally think that Professor Turley (from George Washington University, representing the plaintiffs) would have a better chance of making his case on Equal Protection grounds in a state where same sex marriage is legal. The rationale of the Canadian court rulinig against authorizing polygamy was that, as a prudential matter, polygamy has negative consequences, but in American jurisprudence those kinds of factors are for legislatures to weigh, not courts. If you take the position that marriage is merely an accommodation to the desires of adults who wish to have official recordation and recognition for a de facto relationship, there is no rational distinction that allows same sex marriage versus polygamous marriage. Or a bi-sexual person wanting to have one heterosexual marriage and one homosexual marriage. Once you cross the line, and give control over marriage to individuals and not society, as a matter of preventing society and legislatures from interfering in sexual choices, then there is no rationale that puts same sex on the acceptable side of the line but puts polygamy on the unacceptable side. And then the permutations can go on from there.

    Altogether it is rather strange that the courts have been willing to create a zone of personal sovereignty into which normal government authority may not intrude, on the basis of no firm language in laws or constitutions, something like an Indian reservation, even while the explicit language protecting religious freedom in the Federal and state constitutions has been held to NOT create any special legislative zone, except in a few cases involving conscientious objectors, and religious objections to pledging allegiance to the flag or to wearing uniforms. In other words, the modern Federal courts appear to be saying that sexual relationships are more sacred and holy (set apart) than are religious relationships.

  15. Sharee Hughes
    April 21, 2012 at 2:21 pm

    I have an off topic question. Why are no comments allowed on the “Mormon Thought: Sex” post?

  16. Jax
    April 21, 2012 at 2:35 pm

    Because Mormons thinking about Sex isn’t allowed either =)

  17. Ray
    April 21, 2012 at 2:55 pm

    Frankly, I don’t care. The only ancestor of mine to practice polygamy was a great-grandfather who married a girl who wasn’t even 14 yet. He already had a wife and family. Did this girl marry him out of romantic love and her own free will? Not bloody likely! I don’t see anything divine about it and never have.

  18. April 21, 2012 at 4:59 pm

    Jax, since Adam posted on the topic, it’s obvious that thinking about sex (even talking about it!) is allowed. But discussion in the comments on that topic might go in a variety of unintended directions, which I assume is why Adam chose to not open comments for public discussion.

  19. April 21, 2012 at 5:14 pm

    That simplifies prosecution but, this being the year 2012, cohabitation as a basis for criminal liability may be problematic. Can the government still hold consenting adults (in any number and in any configuration of sexes or genders) criminally liable simply for living together? If it isn’t a crime for a guy to live with his girlfriend, is it a crime for a guy to live with two girlfriends? Or with a wife and two girlfriends? Will a court in 2012 be willing to make that distinction, or will it throw out the Utah statute as uncontitutional?

    Wasn’t that answered in the “resorting” statute prosecutions?

  20. Jax
    April 21, 2012 at 9:58 pm

    Dave, the smily face at the end of my comment was meant to convey that I was joking…

  21. palerobber
    April 23, 2012 at 12:10 am

    Raymond #14:

    we’re all familiar with the slippery slope fallacy, Ray, no need to rehearse it here… again.

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