This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The "Sister Wives" cast is trying to take its case for polygamy into federal court. We're not sure the court will hear it because the plaintiffs have not been convicted of a crime. But we are sure that the Brown family's legal argument against Utah's bigamy law has constitutional merit.
In their complaint, the Browns do not seek the state's legal approval of polygamous marriage. Rather, they pray the court to overturn the state's bigamy statute.
When, as in the case of the Browns, a polygamous family is the product of consensual, openly acknowledged relationships between adults, we don't see the harm. What's more, the Browns make a good case that prosecuting them for their sexual arrangements, when adulterers and others go unprosecuted and unpunished for sex with multiple partners, is discriminatory under the Equal Protection and Due Process clauses of the 14th Amendment. We agree, but with qualifications.
Polygamy as practiced by various offshoots of mainstream Mormonism is often pernicious. It enslaves women from girlhood in a patriarchal and religious web that denies them education, reproductive freedom and self-determination. It can be equally twisting of boys. It is sometimes accompanied by child sexual abuse, domestic violence, incest and welfare and tax fraud. The same, too, can be said of monogamy.
When these crimes are discovered, whether in a polygamous or a monogamous family, the state should prosecute them.
But, as with the Browns, where none of the parties to the relationships has been defrauded and the only crime seems to be a violation of the state's bigamy law, then we can see little practical or constitutional justification for a prosecution.
It's a conundrum, because there are some situations in which the application of the state's bigamy law is justified, such as when a man is legally married to a woman and then, through deceit, marries a second woman without his existing wife's knowledge.
Utah has been down this legal road before. In 2006, the state Supreme Court upheld the bigamy statute and the conviction of Rodney Holm, a polygamous peace officer who had challenged it. In that case, however, Holm had consummated a spiritual marriage with a 16-year-old. That is not the case with the Browns.
Ultimately, Utah should retain its laws against the abuses that arise from polygamy but not its ban on forthright plural marriage itself.