Saturday, December 14, 2013

Federal Court Strikes Down Most of Utah's Statute Banning Polygamy

In a ground-breaking decision in Brown v. Buhman, (D UT, Dec. 13, 2013), a Utah federal district court held that most of Utah's statute barring polygamy is unconstitutional.  Utah Code §76-7-101 provides:
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.
Plaintiffs, the polygamous family featured on the TLC reality series "Sister Wives," sued seeking a declaratory judgment that Utah's ban on plural marriage is unconstitutional. (See prior posting.) Plaintiffs are members of a religious group that believes polygamy is a core religious practice.  Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights.  Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test.  Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs' rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness. In ruling on this portion of the statute, the court said that it was not constrained by the U.S. Supreme Court's 1878 decision in Reynolds v. United States upholding the federal anti-bigamy statute because that decision dealt only with a ban on multiple marriages, not on cohabitation while married.

Nevertheless, Judge Waddoups wrote a lengthy and unusual critique of Reynolds,  analyzing it in terms of Prof. Edward Said's theory of "Orientalism."  The court said that the social harm from Mormon polygamy perceived by the Supreme Court in Reynolds was the introduction of "a practice perceived to be characteristic of non-European people—or non-white races—into white American society."

The district court also severely limited the application of the remaining ban in Utah's bigamy statute-- the ban on purporting to marry a third person while already married to someone else.  In a 2006 decision in State of Utah v. Holm (see prior posting), the majority of the Utah Supreme Court held that this statutory ban applies to polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.  Judge Waddoups initially says that he is bound by the Utah Supreme Court's interpretation of the state bigamy statute.  However he appears to back off of this limitation when he faces the question of the constitutionality of the ban on purporting to marry. He says that this portion of the statute "raises the same constitutional concerns addressed in relation to the cohabitation prong...." and can be saved only by a narrowing construction.  He finds that in the views of the dissent in the Holm case:
the court agrees with Chief Justice Durham['s dissent] that the “purports to marry” prong should be interpreted “as referring to an individual’s claim of entry into a legal union recognized by the state as marriage. The phrase does not encompass an individual’s entry into a religious union where there has been no attempt to elicit the state’s recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import."
The Salt Lake Tribune reports on the decision. Orin Kerr and David Kopel both analyze the case at Volokh Conspiracy.