Marriage Redefined? Utah Polygamy Law Unconstitutional

Marriage, polygamyIn a ruling that is sure to incite arguments around traditional marriage again, a federal judge in Utah has struck down parts of the state’s anti-polygamy laws as unconstitutional. The ruling, issued by U.S. District Court Judge Clark Waddoups on Friday, basically decriminalizes the act of polygamy. Waddoups’ focused on one key part of the law – the cohabitation of a married, consenting adult with other adults who cannot be defined as a legal spouse.

Bigamy, which is defined in Utah as fraudulently obtaining multiple marriage licenses, is still illegal.

The ruling is the result of a lawsuit filed by Kody Brown, who, along with his four wives, stars in the TLC series Sister Wives. Brown had filed the lawsuit in 2011, claiming the family’s right to privacy and right to practice their religion as they see fit was violated by the state of Utah. Brown had come under scrutiny by Utah authorities when his family’s lifestyle became the subject of the show. Brown and his family fled to Nevada to avoid prosecution.

In his ruling, Waddoups compared Brown’s relationship to his four wives to that of a single male simultaneously engaging in intimate relationships to three different women. Waddoups stated that even though Brown called the women his wives, without the proof of multiple marriage licenses, they were essentially cohabitating adults. The only marriage license in the plural family is that of Kody and Meri Brown.

Part of the 90-page ruling states: “the participants have “consciously chose[n] to enter into personal relationship[s] that [they] knew would not be legally recognized as marriage” even though they “used religious terminology to describe [the] relationship[s].” The ruling continues on to say that Utah’s actual targeting of religious cohabitation failed under the Free Exercise and Due Process clauses of the Constitution.

The determination of the Utah polygamy law as unconstitutional comes at a time when the practice of polygamy is a glaring part of the debate surrounding marriage equality. Many proponents claim that by legalizing same-sex marriage, then the door will be opened to other types of “unions”not currently recognized under the law, with polygamy being the least of them.

The question, though, is if the ruling actually redefines “marriage” to allow polygamy, or if the definition of marriage as recognized by law is still in tact. In the lawsuit, Brown and his family admit they never expected their religious cohabitation to be recognized as a legal polygamous marriage, and Waddoups’ ruling doesn’t allow for this, either. What the ruling does say, however, is that Brown and his family, along with many other families who practice religious cohabitation, should be free of undue prosecution for their religious beliefs when the participants are consenting adults.

The general perception of polygamy has centered around the earliest teachings of the Church of Jesus Christ Latter Day Saints and around the much publicized colonies such as Colorado City, AZ, and its twin, Hilldale, UT. Polygamy has not been practiced or approved within the LDS faith since 1890. However, there were some who broke with the Church over the decision, believing the original proclamation by Joseph Smith, found in the Doctrines and covenants (D & C) section 132:61-63, was the true teachings meant to be adhered to. While the exact number of polygamists aren’t known, there are an estimated 30,000 active families living between Utah, Idaho and Nevada.

Some sects of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or the FLDS, have drawn fire in the past because of the practice of child marriages, as well as forcing some young men out of Hilldale and Colorado City because they posed a competition to the established men for brides. There has also been much discussion about the treatment of women in these groups, who are often subject to abuse from their husbands and older wives, as well as subsist on state aid to support their children, since in some sects, little or no support comes by way of the fathers. Women in these ultra strict communities have little to no formal education, own no property, and have no say in whom they marry. However, since they have little knowledge of the outside world, the thought of leaving the community is often more frightening than just staying put.

While this segment of polygamy is truly saddening and disheartening, Brown and his family sought to portray a different side to a multiple partner union, in which all the partners entered into the arrangement willingly and voluntarily. Even though things may not always run smoothly, the biggest differences between the Brown family and the families of Colorado City and Hilldale are that the participants in this religious cohabitation are all adults, and the act of cohabitation is consensual. Brown’s clan is much like the one portrayed in the very popular HBO series Big Love; full of ups and downs with a fair share of conflict and pain, but also a lot of love – and, most importantly, they’re family.

Where this ruling leads now is anyone’s guess. Waddoups’ decision can still face legal challenges, including a potential one in front of the Supreme Court. There is also no way to tell how the decision will impact the battle for marriage equality, or if other groups, such as those who practice polyamory, will also begin to see gradual acceptance and understanding. However, for now, families like Kody Brown’s are hailing the ruling as a victory. They feel that now they can live their lives openly and freely, without the fear of prosecution. While marriage itself is still defined as the legal union of two people and bigamy is still illegal, the type of polygamy practiced by Brown and may others in Utah,  known now and forever as religious cohabitation, is not.

By Heather Pilkinton


Daily Herald
Salt Lake Tribune
Al Jazeera America

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