Polygamy

Utah's Anti-Polygamy Ruling Actually a Blow Against Free Speech

Brown family case was not about getting legal recognition from the state.

|

A federal court yesterday tossed out a lower court ruling that blocked the enforcement of a Utah law that criminalized polygamous relationships. Therefore, the the anti-polygamy law is back in effect. The case was brought by the polygamous Brown family made semi-famous in the TLC reality series Sister Wives. (Update: Wording cleaned up a bit to make the ruling clearer. Apologies!)

What actually happened is a little bit complicated. At no point during this whole process did a court rule that the state of Utah had to legally recognize polygamous marriages. That was not what this case is about at all. Rather, Utah has a law on the books outlawing married people from living with other partners and declaring themselves to be in a polygamous marriage. This was all completely separate from whether marriage licenses were even involved. This was a case about religious expression, freedom of association, and free speech, not government recognition or benefits.

But it was also a case where the Brown family was not actually being threatened with any sort of prosecution under this law. They were challenging the existence of the law as a violation of their liberties, but because the state of Utah was not threatening them with prosecution, the 10th Circuit Court of Appeals in Denver ruled that the family did not have standing under the law and could not sue.

Beyond having a law that violates the right of adults to freely decide with whom to associate, the state's defense of having such a law, even though it was not charging the Browns for violating it, is creepy and horribly authoritarian:

State prosecutors have a longstanding policy against charging consenting adult polygamists, but attorneys argued in their appeal that the ban should stay on the books to help authorities go after those who commit crimes related to the practice, such as sexual assault, statutory rape and exploitation of government benefits.

Prosecutors pointed to imprisoned polygamous sect leader Warren Jeffs, who was convicted of assaulting underage girls he considered wives.

Presumably, Utah has laws against sexual assault, statutory rape and exploiting government benefits. Jeffs, by the way, was not actually convicted of violating this polygamy law, but of two counts of "rape as an accomplice."

We should be disturbed about the justification for keeping this law not just for the implications on free association and liberty, but the implications for the purpose of the laws themselves. The state's argument makes it implicit that the law itself is not intended to be enforced, but rather as something to throw at people when they violate laws that the state actually cares about. As a result, citizens end up living in a situation where enforcement of the law is ambiguous and unpredictable. Polygamists in Utah are fine until they do something else the state doesn't permit and then they may be punished for the polygamy as well. What that "something else" may be is up to the state, apparently. And while the state may say "Well, the Browns weren't actually prosecuted," The Washington Post notes that they were, in fact, being investigated for bigamy.

In a way, it's reminiscent of how laws against sodomy persisted all the way until 2003. Very few people actually wanted to charge or imprison people just for sodomy, which made it very hard to challenge the laws in the courts. The laws, though, could be used by prosecutors to threaten and cajole people over other crimes and force plea agreements. They are tools of intimidation. Under this logic, the state of Utah could declare anything at all illegal and avoid having to address constitutional violations by never actually charging anybody with the crime. They sure as hell could threaten those who don't have the capacity to fight back like the Browns could.

While the ruling is against the Browns on a technicality and does not create any sort of precedent, it is nevertheless a blow against freedom of speech and association. The Cato Institute had filed an amicus brief in support of the Brown family. Read about Cato's argument here.

The case also dovetails with the activism of Detroit pastor Neil Patrick Carrick. He has been challenging Michigan's marriage laws, which appear to criminalize "solemnizing" any marriage that is not recognized by the state. The law is unclear as to whether it is referring to marriages where the participants intend to seek legal recognition. Carrick sued to argue that he has the right to perform private marriage ceremonies for consenting adults who may not be looking for "official" recognition. Carrick's case ended just like the Brown case. Carrick was not actually charged with violating the law, and so a judge ended up tossing his lawsuit out due to lack of standing.

The Brown family said they plan to appeal this ruling.

NEXT: Attn, DC! Celebrate Freedom Day Tomorrow with Reason!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Scott, can you rewrite that first sentence to make it a little more readable? Maybe put in some parentheses so the order of operations is a bit clearer?

    1. The law was blocked at trial level, appeals overturned, restoring the law.

    2. I cleaned it up … I think? It’s one of those situations where it all makes perfect sense to me when I read it, but I realize it can be confusing.

      1. A federal appeals court yesterday reinstated a Utah law that criminalized polygamous relationships, overturning a lower court decision that blocked enforcement of the law.

        1. Fed Appeals to Lower Court – NO SISTER WIVES!

  2. Rather, Utah has a law on the books outlawing married people from living with other partners and declaring themselves to be in a polygamous marriage.

    So we can all agree that polygamy is actually not legal here in pretty much every sense?

    1. I don’t know. What if you aren’t legally married to any of them? Does the anti-polygamy law only apply to legally married people?

  3. Rather, Utah has a law on the books outlawing married people from living with other partners and declaring themselves to be in a polygamous marriage. This was all completely separate from whether marriage licenses were even involved. This was a case about religious expression, freedom of association, and free speech, not government recognition or benefits.

    Not so fast. That law is on the books because the government refuses to issue marriage licenses, and went the extra mile to prevent “covenant” (unlicensed) marriages as well. You’re right that this goes beyond licensing, but that doesn’t mean licensing and government recognition of marriage isn’t at the core of it. Its not separate from licensing, any more than restrictions on buying ammo are separate from gun control.

  4. Despite Eddie’s protests, cheating isn’t illegal. Also, it doesn’t look like living with a bunch of women who will cook, clean, and occasionally have sex with you is illegal either.

    Why does it have to become such a sticky wicket once you need to get government approval for it? Isn’t the government not supposed to have a preferred religion?

    1. I think adultery is actually still illegal (or at least still on the books) in many places. You know how that works, “we need those laws to target people who might otherwise get away with unrelated crimes, blah, blah…”

    2. Because they want to give you tax breaks for marrying in a way they find socially acceptable.

      Wait…why does this suddenly sound like the ACA…

    3. Adultery is *maybe* illegal. There are still adultery laws on the books in something like 20 states, but after Lawrence v. Texas their constitutionality is in question. But I don’t believe it’s been *tested*.

      That said, I did find mention of a 2010 case where a woman won something like $9 million from her husband’s mistress in an “alienation of affections” case. That’s new ground for me, so I can’t speak to how that actually works.

      So in the United States, adultery is *technically* illegal in a large minority of states, though such laws are *probably* unconstitutional, but it hasn’t been tested hence the use of weasel words.

  5. Would, would, would, would, would.

    /Crusty

    1. [skeptically] Crusty is bi?

  6. Want to meet a girl? come on http://goo.gl/mxiosK
    the Best adult Dating site!

    1. Apparently meeting girls is what led to all this trouble. Are you trying to get more people in trouble with the law?

      1. SPAM-BOT IS A UTAH COP!!!!

    2. Too old.

  7. “Presumably, Utah has laws against sexual assault, statutory rape and exploiting government benefits. Jeffs, by the way, was not actually convicted of violating this polygamy law, but of two counts of “rape as an accomplice.””

    And he was charged with those crimes in Arizona, not Utah, which makes the value of the Utah law even more dubious.

  8. Well, this is simple:

    Unlike gays, who are catty and edgy and funny and chic, these people are just religious freaks. And if there’s anything America hates and considers a sin, it’s religious freaks who take their holy books too serious. Well, that and being fat or littering, all of which anger the spirits.

    1. But they’re on TV. And look how happy they appear.

    2. “Bitter, party of one…”

  9. I can’t believe the state got off the hook with “but we don’t actually enforce it”. If that’s the best defense you can offer for a law, that it should be acceptable because you don’t enforce it, then it’s a bad law. Obviously.

    This is no better then the states that keep around sodomy laws because they want to express animus, even if they know they aren’t allowed to enforce it.

    That said, the *law* in this case is peripheral to what the case was actually *about*. Just like sodomy laws weren’t *really* about sex, but about gay people themselves, this is all animus. The outcome makes a lot more sense in that context. And hopefully this cohabitation law (it really shouldn’t be called a polygamy law) will go the same way.

  10. Dipecah-pecah dan digiling sampai menjadi halus, sehingga partikel besi dapat dipisahkandari bahan yang tidak diperlukan dengan menggunakan magnit.? Dibentuk menjadi “pellet” (bulatan-bulatan kecil) dengan diameter + 14mm.

    jasa konstruksi baja makassar
    jasa konstruksi gedung

Please to post comments

Comments are closed.