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Federal judge declares Utah polygamy law unconstitutional

Published December 14, 2013 4:56 pm

District court ruling finds key parts of Utah polygamy laws unconstitutional.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A U.S. District Court judge has sided with the polgyamous Brown family, ruling that key parts of Utah's polygamy laws are unconstitutional.

Judge Clark Waddoups' 91-page ruling, issued Friday, sets a new legal precedent in Utah, effectively decriminalizing polygamy. It is the latest development in a lawsuit filed by the family of Kody Brown, who became famous while starring in cable TV channel TLC's reality series "Sister Wives." The show entered a fourth season at the end of the summer.

Waddoups' ruling attacks the parts of Utah's law making cohabitation illegal. In the introduction, Waddoups says the phrase "or cohabits with another person" is a violation of both the First and 14th amendments. Waddoups later writes that while there is no "fundamental right" to practice polygamy, the issue really comes down to "religious cohabitation." In the 1800s — when the mainstream LDS Churh still practiced polygamy — "religious cohabitation" in Utah could have actually resulted in "multiple purportedly legal marriages." Today, however, simply living together doesn't amount to being "married," Waddoups writes.

"The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it," Waddoups later writes.

Utah's bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words "marry" and "purports to marry," meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licences.

The Browns could not immediately be reached Friday night, but issued a statement through their lawyer calling the decision humbling and historic.

"While we know that many people do not approve of plural families, it is our family and based on our beliefs," Brown wrote. "Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs."

Jonathan Turley, the attorney representing the Brown family, called the opinion "magnificent" Friday in a phone conversation. In a blog post, he added that it strikes down "the criminalization of polygamy" and will allow "plural families to step out for the first time in their communities and live their lives openly among their neighbors."

"Regardless of how you feel about the legal issues in the case," Turley told the Tribune on Friday, "this is a decision that was rendered after considerable amount of reflecting and consideration by the court."

Turley explained that the ruling means everyone is entitled to freedom of religion as well as due process. He also expects the ruling to stand up over time, and potential appeals, which the Utah Attorney General's Office has indicated in the past it might pursue.

Joe Darger, who with his three wives detailed their life in the book "Love Times Three: Our True Story of a Polygamous Marriage," praised the decision and said it would change the future for Utah's polygamists. He said that he learned of the victory Friday night when Kody Brown called him. The call was unusual — the two men don't call each other frequently, he said — and when he learned of the ruling he felt "shocked."

"It just caught us off guard," he said. "It's like Christmas came early."

Darger added that his 25th child, a girl who was born Dec. 10, will face an entirely different future as a result of the ruling.

The Browns filed their lawsuit in July 2011, arguing Utah's law violated their right to privacy. The family's argument relied primarily on the 2003 U.S. Supreme Court decision that struck down the Texas law banning sodomy, which was celebrated by gay rights advocates.

At the time, Utah Attorney General Mark Shurtleff responded that the bigamy law is different because it involves entire families, not just consenting adults.

The lawsuit also came at a time when the Brown family faced possible prosecution from Utah County. However, nearly a year after the Browns filed their lawsuit, Utah County District Attorney Jeff Buhman announced that his office wouldn't file bigamy charges against any consenting adult polygamists unless violence, abuse or fraud was involved.

During arguments in January over the lawsuit, both sides engaged in a conversational and sometimes heated exchange with Wadduops. For much of the hearing, Wadduops zeroed in on the definition of a polygamous relationship. Posing a hypothetical question, he asked what the difference was between a polygamous relationship and an unmarried man who chooses to have intimate relationships with three women.

After a series of increasingly heated exchanges, Assistant Utah Attorney General Jerrold Jensen replied that a polygamous relationship is different because it was defined by people representing themselves as married.

"I think it's the representation that they make to the world," Jensen said.

Waddoups also drilled Turley. During that conversation, Turley argued that Utah has a unique bigamy statute because it makes it illegal for married people to cohabitate with adults who aren't their legal spouse.

"Other states focus on multiple marriage licenses," he said.

Turley also criticized what he characterized as anecdotal evidence to say polygamy fostered abuse.

Months passed after the hearing without any developments, though many speculated that Waddoups was waiting for U.S. Supreme Court rulings on gay marriage before making a decision. However, those rulings came and went in June and still the Browns' lawsuit remained unresolved.

Turley pointed out Friday that abuses against spouses and children in monogamous and polygamous relationships will continue to be prosecuted.

According to Darger, who has lobbied in favor of polygamy in the past, the next step will be focusing on equality, education and overcoming bigotry. However, with polygamy decriminalized he does not anticipate a push to go one step further and legalize plural marriages. Darger said other causes will consume his energy in the future and he and other polygamists would prefer simply to have less government involvement in their lives.

jdalrymple@sltrib.com

Twitter: @jimmycdii —

Statement from Kody Brown:

The entire Brown family is humbled and grateful for this historical ruling from the court today. Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs. There are so many families who have waited for so long for this ruling and, on their behalf, we can only say: thank you, Judge Waddoups, for your courageous decision. We want to particularly thank our lead counsel Professor Jonathan Turley who represented us through the criminal investigation and then led the fight against this law. We also want to thank the team of lawyers and students from George Washington, including our local counsel Adam Alba. We are so honored and blessed to have been able to serve as the vehicle for this milestone ruling. Professor Turley has pledged to defend this decision on appeal and we are equally committed to fight to preserve this great victory.