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From polygamy to same-sex marriage, Utah leads the way

Published July 14, 2014 12:52 pm

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • A national poll a few years ago found nearly half of Americans wrongly think that Mormons "definitely" or "probably" practice polygamy. It's no wonder that many an American thinks of Utah — the home of the LDS Church — as a stronghold of polygamists.

Heck, even Mitt Romney, probably now the world's most well-known Mormon, joked about polygamy in 2005.

"I believe marriage should be between a man and a woman … and a woman … and a woman," he said, obviously in jest.

So, to some, it appears a bit ironic that Utah — where polygamy once thrived — is now the state likely to appear before the Supreme Court to defend marriage as between one man and one woman. The 10th Circuit ruling against Utah's same-sex marriage ban is the first appellate court decision on the subject, and an appeal of it could be heard by the high court as early as this fall.

If the justices rule as other federal courts have since the Supreme Court struck down the Defense of Marriage Act, gay marriage will be legal across the United States — and Utah will be at the center of it all.

The state has come a long way since Mormons first entered the Salt Lake Valley to establish a new home, bringing with them the practice of plural marriage. Not all Mormon men had multiple wives, of course, but enough did to earn them some consternation from the populated areas in the East.

The Church of Jesus Christ of Latter-day Saints banned polygamy in 1890 as Utah attempted to earn statehood, though some Mormons continued the practice, and others — including Romney's relatives — high-tailed it to Mexico, where plural marriage could continue.

The Senate refused to seat Sen. Reed Smoot of Utah for four years while holding hearings on whether his position as a Mormon apostle (and rumors of still-secret plural marriages within the faith's ranks) meant he couldn't legally hold office.

Although Utah outlawed polygamy, there still are reminders of the state's history with TV shows such as "Big Love" and, more recently, in December, a federal judge striking down part of the anti-polygamy law against cohabitation.

Perhaps it was a tad coincidental that another federal judge tossed out Utah's same-sex marriage ban in the same month. Utah leaders quickly appealed, and a 10th Circuit panel upheld the lower court's ruling. The Kitchen v. Herbert case now appears the one most likely to be heard by the nation's top court.

And don't expect polygamy to go unmentioned in the arguments over gay marriage. Last year, Justice Sonia Sotomayor brought up plural marriage during the case about California's Proposition 8 against same-sex marriage.

"If you say that marriage is a fundamental right, what state restrictions could ever exist?" Sotomayor asked former Solicitor General Ted Olson before referencing polygamy and incest among adults, as reported by my colleague Matt Canham. Olson noted that polygamy raises other questions about exploitation, abuse, taxes and child custody.

"It is an entirely different thing," Olson said.

No doubt. But as Utah presses its case closer to a final resolution at the high court, look for references to the state's polygamist past as it tries to argue that marriage should strictly be between one man and one woman.

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Burr has reported for The Salt Lake Tribune for nearly a decade from Washington, D.C. He can be reached at tburr@sltrib.com or via Twitter @thomaswburr.