Hit & Run

Polygamists Singled Out Again in Utah

Utah's new bigamy law prescribes what people can call private relationships and provides authorities with a convenient tool for suppression when polygamist families get too vocal.

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Big Love/HBO

Under Utah's previous polygamy law, marriage to more than one person—bigamy—was a felony offense punishable by up to five years in prison. A new measure (HB99), signed into law by Utah Gov. Gary Herbert on March 28, doesn't change that. But it does tweak the definition of bigamy and add enhanced penalties for people who commit other crimes in conjunction with plural marriage.

The change stems from a lawsuit filed by Kody Brown and his spouses, who starred in the popular reality-TV series Sister Wives. Kody is legally married to his first wife, Meri, and "spiritually married" to three other women. After Utah police began investigating the family, in 2010, the Browns moved out of state to Nevada. They later filed a suit alleging that Utah's bigamy law is unconstitutional, as it doesn't merely prevent people from having multiple state-sanctioned marriages but prescribes what people can call their private relationships and how they can practice their faith.

After all, a married couple in Utah can legally bring in myriad long-term lovers to live with them. A polyamorous triad can all live together and be in a joint relationship without state interference. But the moment participants in such arrangements refer to more than one relationship as a marriage, they are suddenly committing a felony. If it isn't unconstitutional, it's at least incredibly silly.

The Brown family was initially victorious in their legal challenge, with a federal judge ruling in their favor in 2013. But the U.S. Court of Appeals for the 10th Circuit ruled in 2016 that the Browns had no standing to challenge Utah's law, since they had never actually been prosecuted for bigamy. The Browns appealed to the U.S. Supreme Court, which has declined to hear the case.

This year, Utah lawmakers decided to double-down on the state's bigamy statute. Under HB 99, bigamy becomes a second-degree felony if a defendant is also suspected of fraud, domestic abuse, child abuse, sexual assault, human smuggling, or human trafficking; as such, it's punishable by up to 15 years in prison, in addition to any penalties for those separate offenses. Anyone fleeing from abuse in a polygamous relationship is now immune from bigamy prosecution.

The law also changes the definition of bigamy by removing references to gender, making it now applicable to women with multiple husbands or same-sex polygamous relationships. And it requires both cohabitation and "purport[ing] to marry" someone when either you or they are already married for bigamy to be committed; before only one or the other was required.

There are thought to be about 30,000 polygamists in Utah. What will the new law mean for them?

Probably not much, according to The Salt Lake Tribune:

Polygamists and some sympathetic attorneys have said HB99 will be unconstitutional if it's applied to consenting adults who choose to live as such a family. Joe Darger, who has three wives and was the most vocal opponent of the bill, has dared prosecutors to charge him.

Darger doesn't think that will happen. After Herbert signed the bill Tuesday, Darger said the goal of HB99 appeared to be to keep polygamists silent by making their lifestyles a crime. "This is more for persecution than it ever is intended for prosecution," the polygamist said.

The Utah attorney general's office and every county attorney who has been asked has said his or her policies are not to prosecute families like the Dargers. Assistant Attorney General Parker Douglas testified to the Legislature that prosecutors are concerned with polygamists who commit fraud and abuse.

In other words, lawmakers seem to know the statute could be unconstitutional but say cool because they don't plan to actually enforce it against anyone but bad people. We've heard similarly from Donald Trump recently with regard to deportations. It hasn't held true for immigration enforcement, however, and it's unlikely to prove true for Utah polygamists. Sure, law enforcement might not go looking for ordinary polygamists to prosecute, but it provides a convenient tool for suppression when any polygamist families or activists do start getting too visible and vocal.

Retired defense attorney and legal scholar Ken Driggs, a sixth generation member of the Church of Jesus Christ of Latter-Day Saints, deemed Utah's new bigamy law "a solution in search of a problem" that makes it a crime "to make purely personal vows." It runs "contrary to established constitutional law" and "will not survive a court challenge," he warned Gov. Herbert in a Mrach 15 letter urging him to veto.

Driggs explained that he has done extensive research on the history of anti-bigamy laws in America and on Utah's polygamist families. He initially "brought the usual stereotypes" about polygamists with him, but has since been shown how wrong he was. "There are many strong, very accomplished women in this world," writes Driggs. And in his experience, "'sister wives' are seen as co-parents by children in [polygammist] homes," which are as functional and fine for children as more typical arrangements. Claims that "criminal prosecution of Fundamentalist Mormons cannot succeed without some sort of special Fundamentalist Mormon criminal code which HB 99 tries to create" are "poppycock," Driggs concludes, "and certainly unconstitutional. Abuses in the past have been successfully prosecuted using ordinary criminal law established for the population as a whole."

Laws criminalizing bigamy can also help abusive, cult-leader type polygamists. Utah resident Shirlee Draper, who grew up in the polygamist Mormon sect, said things there were normal until Warren Jeffs came to power and "started doing under age marriages, he started closing down the schools, he started building walls and telling us we had to shun our apostate relatives." People like Jeffs are "empowered by these laws," Draper told ABC4 News, "because then they go to their people and say look: see, now you know that the world is against you, you know that your only safety is in obeying me. and so it gives them power, it gives them credence, and it gives them a lot more leeway to commit the horrible things that they do."

Testifying against the new measure in February, Draper told lawmakers she has "no love for polygamy." But "to tell me I would have been a felon for practicing my religion, I would have gone underground."