Judge Rules for Polygamists in Sister Wives Case

And he was right to do so.


Last December, U.S. District Judge Clark Waddoups struck down a central part of the Utah law banning polygamy. Yesterday he issued the rest of his ruling, dealing not with the statute itself but with the husband and wives at the center of the case—Kody, Meri, Janelle, Christine, and Robyn Brown, stars of the reality show Sister Wives. Nate Carlisle of The Salt Lake Tribune reports:

One man, 9 women, 10 votes.

Waddoups in December struck the section of Utah's bigamy statute that can be applied when someone "cohabits with another person" to whom they are not legally married. Utah law made such a union a felony punishable by up to five years in prison. Waddoups said the ban violated the First and 14th amendments to the Constitution.

Waddoups let stand the portion of the statute that prevents someone from having more than one active marriage license.

In the final portion of his ruling Wednesday, Waddoups found the Utah County Attorney Jeff Buhman violated the Browns' constitutional rights when he oversaw a 2010 investigation into whether the Brown family was committing bigamy. At the time the Browns lived in Lehi. They have since moved to Nevada. Buhman eventually decided not to file criminal charges, but Waddoups said the investigation stifled the Browns' rights to free speech, religion and equal protection.

Waddoups ordered Utah to pay the Browns' attorney fees as a result of that finding.

Utah's attorney general says he plans to appeal the case. If he does, I hope he loses again. As I wrote when Waddoups' December decision came down:

It's the story/of a man named Kody…

The case is drenched in the politics of polygamy, but in one important way it isn't about polygamy at all. The Browns all live together, but only one of the wives has a marriage license. To the extent that their family departs from American marital norms, it is a private arrangement unrecognized by the state. The Browns' household is more like the informal and contractual gay unions that have existed for decades than the fully recognized same-sex marriages that many states are beginning to allow today.

And that's all that is now legal. Previously, Utah considered a person guilty of bigamy if, "knowing he [or she] 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." It is the final part of that restriction—the bit about cohabitation—that comes into play here. If a dozen roommates in San Francisco decide to set up a polymorphous polyamorous partnership, the law would have nothing to say about the matter. (The building code enforcers might object, I suppose. But that's a separate issue.) Utah's rules are different, and they are different because of a long legacy of prejudice and religiously targeted persecution. Pointing to this persecution and to a history of selective enforcement, Judge Clark Waddoups ruled that the portion of the statute prohibiting cohabitation violates the First Amendment's guarantee of religious liberty. Pointing to other matters of law, such as the fact that Utah no longer has common-law marriages, he ruled that the ban on "purport[ing] to marry another person" should apply only to someone attempting or pretending to acquire more than one marriage license. That puts households like the Browns' in the clear.

So Utah is not about to start recognizing group marriages. It's just going to stop bringing criminal charges against people who have done nothing more than establish their own unlicensed big-love homes.

To read the rest of that article—including my argument that this decriminalization will make it easier, not harder, to act against abusive households—go here.