The Cato Institute is rallying behind a challenge to Utah's anti-bigamy law from the family that stars in TLC reality series Sister Wives. In an amicus brief filed with the 10th U.S. Circuit Court of Appeals, the think tank agreed with the polygamous Brown family that prohibiting people not just from legal recognition of plural marriage but from identifying so socially and religiously is an unconstitutional violation of free speech.
"In Utah, one can promise love to someone in addition to one's spouse," the brief states. "One can share one's home and create a family with someone in addition to one's spouse. But one cannot, under penalty of criminal law, call this other person one's wife or husband, or otherwise express that one is religiously or spiritually married to more than one person. This happens because Utah defines criminal bigamy… to include saying 'I do' in a wedding ceremony, or saying 'that's my wife' about someone one lives with, even when everyone knows that the marriage is not legally recognized."
While Sister Wives star Kodi Brown is only legally married to one woman, he claims a "spiritual union" with three others. Together, Kodi and the "sister wives"—Meri, Janelle, Christine, and Robyn—have 17 children.
"Because the potential sentences are quite severe (five years for each of the women, and up to 20 years for Kodi), the Browns took preemptive action, filing a federal lawsuit challenging the constitutionality of Utah's law," explains Ilya Shapiro, a Cato senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review, in a post on the Cato blog.
A U.S. district court agreed with the Browns, holding that because the law criminalizes "spiritual cohabitation," i.e. religious recognition of plural marriages without seeking state-sanctioning, Utah's anti-bigamy law was "facially unconstitutional," violating the First and Fourteenth Amendments.
The state is now appealing. The court will hear arguments in the case, Brown v. Buhman, this fall.
Cato's amicus brief, filed together with First Amendment scholar and Washington Post blogger Eugene Volokh, urges the appeals court to uphold the district court's ruling. Utah's bigamy statute "criminalizes speech that creates intimate associations between consenting adults, and communicates freely chosen religious and moral values," it states. "The bigamy statute thus restricts protected and valuable speech because of its content, and is therefore presumptively unconstitutional."
"Telling people you're married, even if it isn't legally true, isn't the kind of harmful speech any government has the right to censor, let alone criminalize," adds Shapiro. Make no mistake, this case "involves speech—not conduct—that the state doesn't like."
Whether governments should legally recognize plural marriage is irrelvent here. The Browns aren't seeking state recognition, merely the right to call themselves a married quintuple without criminal prosecution and punishment.