Utah judge strikes down piece of polygamy law

December was a difficult month for proponents of restricting the right to marry to couples consisting of one man and one woman.

First, on Dec. 13, a federal judge in Utah struck down part of that state’s anti-polygamy law. Five days later, the New Mexico Supreme Court ruled that it was unconstitutional to deny marriage licenses to same-sex couples in that state, and one day after that, another federal judge ruled that Utah’s ban on same-sex marriage violated the U.S. Constitution’s due process and equal protection provisions, bringing to 18 the number of states that allow same-sex couples to marry.

Church response

The decisions drew vehement protests from proponents of traditional marriage, including Archbishop Salvatore Cordileone of San Francisco.

“In a visit to the United States of America, Pope John Paul II — who will be canonized by Pope Francis — declared, ‘Vast sectors of society are confused about what is right and what is wrong, and are at the mercy of those with the power to “create” opinion and impose it on others.’ Both the New Mexico Supreme Court and the federal court in Utah imposed a wrong decision about the meaning of marriage onto the people of their respective states,” said Archbishop Cordileone, who is chairman of the U.S. Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage, in a statement.

“We must start off with the right question,” Archbishop Cordileone continued. “It is not, ‘Is there a government interest in not recognizing alternative types of relationships as marriage?’ but rather, ‘Is there a public interest in societal recognition and regulation of the only kind of relationship that brings children into the world?’ Every human society in history has recognized that there is. By losing sight of this fundamental reality, confusion and error triumph.”

Throughout this century, advocates for same-sex marriage have found victories in states from Massachusetts — the first to allow same-sex marriage, starting in 2004 — to Utah. At the same time, those who hold to the tradition, and Church teaching, that marriage can only exist between a man and a woman, have publicly wondered where it would all end, and many questioned what the justification would be to continue outlawing polygamy.

Path of consequences

Federal District Court Judge Clark Waddoups’ Dec. 13 ruling in favor of a polygamous family that is well known because of its reality television show “Sister Wives” drew this reaction from Brian Brown, president of the National Organization for Marriage.


“For years, we have warned of the importance of preserving the norms of marriage and its definition as the union of one man and one woman,” Brown said in a statement. “Now we see the next step in the path of consequences for abandoning those norms. Left on its current course, in a few years marriage could be unrecognizable.”

It must be noted that Judge Waddoups did not strike down the Utah law’s provision against bigamy, or the granting of official marriage licenses between one person and more than one partner at a time. Such laws are on the books in all 50 states and remain valid.

Rather, he struck down a more unusual provision in Utah law that said a person is guilty of bigamy if he or she “purports to marry another or cohabits with another person.” In other words, it is legal for a person to live as though they are married to more than one spouse, so long as only one of them has legal status.

The judgment followed years of litigation involving Kody Brown, who — with his four “wives” and their 17 children — is followed by TV cameras for a TLC reality show. The Browns are members of the Apostolic United Brethren Church, a fundamentalist church with roots in Mormonism that holds plural marriage as a core religious practice.

The Brown family does not have multiple marriage licenses, with only one recorded marriage license between Kody Brown and his wife, Meri.

The 91-page ruling, in favor of the Browns, was based on the First Amendment’s guarantee of freedom of religion and the 14th Amendment’s right to due process.

The Browns had filed suit against the state of Utah in July 2011 after their television show drew the attention of authorities in Utah, according to information posted on the website of their attorney, Jonathan Turley. The Browns later reportedly moved to Nevada to avoid prosecution in Utah.

Ultimately, it was ruled that the language of the law was unconstitutional because of its vagueness and “its targeted effect on specifically religious cohabitation,” therefore violating the First Amendment right to free expression of religion.

Ruling details

In his ruling, Judge Waddoups made it clear that his decision does not pave the way for a legal redefinition of marriage. The issue in this case, he wrote, was “religious cohabitation” or “a personal relationship that resembles a marriage in its intimacy but claims no legal sanction” between consenting adults. As such, the language of the law violated the due process clause of the 14th Amendment designed to ensure liberty.

Brian Brown of the National Organization for Marriage said that while the ruling does not create legally binding plural marriages, it is “the next step along the path blazed by same-sex marriage advocates who have convinced federal judges to transform the societal norm of marriage as the union of one man and one woman designed primarily for the benefit of any children produced of their union into an institution that recognizes intimate, romantic relationships between consenting adults.”

Family Research Council President Tony Perkins followed the same line of reasoning, saying in a Dec. 16 blog post: “While liberals insist that same-sex ‘marriage’ is the ultimate goal, their demands only lay the groundwork for other relationships to demand the same entitlements. Once the courts and policymakers depart from the natural definition of marriage, the Left has a legal foundation for any arrangement between consenting adults.”

“Judge Waddoups essentially admitted as much,” Perkins continued. “Despite the fact that the Supreme Court outlawed polygamy years ago, Waddoups insists that he can’t possibly rest on that decision in modern society. In his words, America has ‘developed constitutional jurisprudence that now protects individuals from the criminal consequences intended by legislatures to apply to certain personal choices.’ … Anyone being intellectually honest knew this was where liberals were pushing America.”

Michelle Martin writes from Illinois.