Anti-polygamy law unconstitutional in Utah

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sister-wivesLike many people, I’m a fan of Sister Wives, a reality show about an FLDS family with four wives sharing one husband. (Yeah, I admit it. I watch the series with voyeuristic fascination. I just don’t understand why those smart, lovely, funny, kind women are with Kody, who strikes me as a goofball.)

Anyway, it was with some interest that I read this morning’s news that a judge ruled yesterday that Utah’s robust anti-polygamy law is unconstitutional.

Those of you who have watched the show know that after the polygamous Brown family began opening their lives to viewers in the first season of Sister Wives, legal prosecution soon followed. Utah has long had one of the nation’s harshest statutes prohibiting cohabitation, including — ironically enough, given Utah history — plural marriage. It was not going to let the Brown family venture out of their closet without a fight.

Hence the family’s move to neighboring Nevada, which has, shall we say, a less strict notion of marriage. The last two seasons of the show (which I’ve fallen behind on watching) have taken place in the Browns’ spacious new digs in Vegas. Meanwhile, the criminal charges against them were dropped, but the lawsuit they had filed remained undecided until yesterday.

As the New York Times explained when the suit was filed in 2011,

the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Apparently this legal strategy was successful. According to today’s Salt Lake Tribune, some parts of the old Utah statute remain intact while others, which made cohabitation illegal, were struck down. The bottom line is that polygamy is no longer a crime in the state of Utah.

It’s a victory for the Browns, who are not Mormon (LDS) but members of a fundamentalist group called the Apostolic United Brethren. Founded by Rulon Allred, it is considered a more moderate sect than the FLDS and other polygamous groups.*

But it’s also a potential victory for religious freedom in America. As long as their plural unions are not violating other laws (all parties are consenting legal adults, etc.), polygamists in Utah will join the ranks of other kinds of non-nuclear, nontraditional families that deserve equal treatment under the law.

Will the mainstream LDS Church laud the decision? No way. If anything, I would expect the LDS Church to distance itself publicly from the AUB and the Browns, reminding the world once again that we Mormons are not polygamists, have not been for well over a century, etc.


* For an insider’s perspective on Allred and the AUB, an interesting book is Predators, Prey, and Other Kinfolk, a memoir by Allred’s daughter Dorothy Allred Solomon, who is now LDS.

  • Larry

    It did not make polygamy legal.

    Utah’s law was unnecessarily harsh to reflect the hostility of the LDS to the appearances of polygamy. The laws still do not recognize the marriages of wives 2 through … in any sense.

    It struck down the provisions which made the lifestyle associated with polygamy illegal. Frankly I agree it was an unconstitutional attack on intimate relations which violated privacy rights. As long as there is one marriage on paper and recognized under the law, it isn’t polygamy in any real sense. The law was overreach.

    Claiming polygamy was legalized based on Lawrence v. Texas will get all of the anti-SSM people out of the woodwork claiming their silly phony screed that gay rights leads to polygamy.

  • Elise Brown

    If anything I think the LDS church ought to have the most compassionate response toward this news. We know what it’s like to be harassed and treated unfairly and to have it done to us because we practiced polygamy. That ought to make us compassionate toward the Browns and other families like them.

    Polygamists are our spiritual family, but in a lot of cases they are our biological family too. Kody is my husband’s uncle. I know LDS people are scared of being associated with polygamists, but I think that fear sometimes keeps people from loving them the way Christ would want us to and treating them fairly.

  • Tom Downs

    Wasn’t a ban on polygamy in Utah’s constitution a requirement for statehood?

  • Larry

    The law which was struck down wasn’t a ban on polygamy in a real sense. It was a ban on living polygamously (without legal sanction for additional spouses)

    Sarah Pulliam Bailey’s article here is a lot clearer on the subject.

  • If I remember correctly B. Young could not be divorced because that would say legally that you could have more than one wife….I assume this ruling means you can marry / divorce one or more wives? I don’t really understand the administration of this …Help me understand.

  • Pingback: Persecuted atheists * Scientology weddings * Polygamy in Utah: Religious Freedom Recap: Dec. 9-16 | On Freedom()

  • Larry

    Only one marriage is still recognized under the law. You can only marry one person in a legal sense. The law doesn’t have to care about marriage in a spiritual sense.

    The law struck down was one which penalized polygamous lifestyles. If you live like a polygamist, but only are married to one person by law. Frankly the old law was overreach to begin with. It penalized cohabitation that looked like polygamy. That is an attack on a right to privacy and the right to form families that do not fit a traditional mold.

    If there is no attendant laws being broken such as welfare fraud, abuse, and seeking multiple marriage licenses, there should be no issue here.

  • My understanding (perhaps wrong) is that all types of cohabitation were basically illegal if they were in a relationship setting. However, it was virtually impossible to prove and so it just sat on the books for years. Once this family was on TV broadcasting their lifestyle to a million people a week, it was a different matter. Either way, I don’t think anyone will be harmed by the repeal of this law.