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Utah’s Recent Polygamy Statute Ruling

by Norris Law Group on February 28, 2014

21134464_sUtah has a law criminalizing polygamy. Or it did, until U.S. District Court Judge Waddoups struck down the cohabitation prong of the statute in December 2013. Under the Utah Code §6-7-101(1) ” [a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife the person purports to marry or cohabits with another person. Under the law, bigamy is a felony of the third degree. The only defense listed in the statute is if the person accused of bigamy reasonably believed that he or she were legally able to marry.

The Brown wives, known for their television show “Sister Wives” were the Plaintiffs in the case. In 2010, there was an investigation by Lehi police and the Utah County Attorney’s Office as to whether the Browns were violating the bigamy statute. No charges were filed, but the family—Kody Brown and his wives Meri, Janelle, Christin, and Robyn—argued that they were living under threat of prosecution. The case was entitled Brown v. Buhman, for Utah County Attorney Jeff Buhman.

Much of Judge Waddoups’ opinion comes from Utah Supreme Court Chief Justice Durham’s dissent from an earlier polygamy case, State v. Holm. In the 2006 case, Holm was arrested and charged with three counts of unlawful sexual conduct with a sixteen or seventeen year old and one count of bigamy. The charges were based on his second religious marriage at the age of 32 to a then sixteen-year-old. By the time the girl was 18, she has conceived two children by Holm. The Utah Supreme Court decided that the U.S. Constitution did not protect Holm from bigamy prosecution on religious freedom grounds. “The ability to engage in polygamous behavior is expressly excepted from the religious protections afforded by our state constitution.” ¶ 14 Both parties in this case agreed that purport, as in “purport to marry,” “meant to profess or claim falsely; to seem to be.” ¶17 The Court found that the word marry includes both legally recognized marriages and those not state-sanctioned. ¶18. According to the Court in the Holm decision, the statute being challenged not only criminalizes privately marrying someone after having legally married, but also merely cohabitating with another partner after having married the first. The main argument is that the statute, especially the cohabitation prong, specifically targets religious cohabitation.

In the Brown case, the Plaintiffs made constitutional claims under the Due Process and Free Exercise Clauses. In Due Process constitutional arguments, laws are analyzed based on the level of the right or class they impact. If a law deals with a fundamental right, then the law must pass what the courts call strict scrutiny. This means the State has to show that the law is narrowly tailored to achieve a compelling state interest. Examples of these rights are: the right to vote, freedom of religion, access to the courts, and the right to privacy. Any laws not dealing with either of those rights or classes are given a larger amount of leniency if they are found to be rationally related to an important government interest.

The court found that polygamy is not a constitutional right under the Due Process Clause since the prohibition against polygamy has been in place for centuries. English Common Law, under which many American laws are based, considered bigamy or polygamy a felonious offense in regard to the holy state of matrimony. Religious cohabitation beyond the first, legally married spouse could result in a common law marriage. However, Utah does not recognize common law marriage. The District Court found the inclusion of the cohabitation prong to the statute was a violation of the Free Exercise Clause. Therefore, the cohabitation prong has to satisfy a strict scrutiny analysis, which it was found to fall short of. The only way to save the statute was to strike the cohabitation prong. In the eyes of the U.S. Supreme Court it is better for a partial invalidation than a total invalidation of a statute.

The test applied for the Free Exercise Clause was whether the law was facially neutral or of general applicability. A law is not neutral if it is found to infringe upon or restrict practices because of their religious motivation. The statute was drafted to be facially neutral. There is no mention of polygamy or any associated religion. Along with facial neutrality, operational neutrality is also considered. Essentially if the effect of the law in its real operation is not neural, then the law itself cannot be neutral. The Brown wives were not asking for legal recognition of their religious marriage. Neither have they tried to obtain marriage licenses from the Utah Secretary of State. Few cohabitations, other than religious cohabitations are punished. In fact, cohabitation of unmarried couples, who live together “as if” they were married is commonplace in our contemporary society.

The difference between the cohabitation in the state and the cohabitation being disputed in the statute seems to be the existence of a wedding ceremony, where the couple is religiously recognized as husband and wife. The State has indicated that it does not prosecute those in religiously motivated polygamy under the criminal bigamy statute unless the person has entered into a religious union with a girl under eighteen years old. The State’s argument shows that the object of the statute is to restrict practices because of their religious motivation. This cannot be done without being narrowly tailored to advance a compelling state interest. Because those who religiously cohabit fall within the statute, but those who adulterously cohabit do not, the court found that the statute has every appearance of a prohibition that society is prepared to impose upon religious cohabitation but not itself. The cohabitation prong is neither operationally neutral nor generally applicable.

The State’s selective prosecution under the statute seems to encourage cohabitation over religious cohabitation. Even though the religious cohabitation resembles the institution of marriage in everything but a legal marriage certificate. This prosecution seems to be counterproductive to the State’s goal of strengthening or protecting the institution of marriage. Therefore, the court found that the cohabitation prong is not even rationally related to this state interest.

Since striking part of the statute as invalid is better than invalidating the whole statute, only the cohabitation prong has been eliminated from the statute. The statute now reads,” A person is guilty of bigamy, when, knowing he has a husband or wife, or knowing the other person has a husband or wife, the person purports to marry another person.” Under this statute, residents of Utah are aware that if a man has a wife or knows that a woman has a husband and they “purport” to marry, then they may be prosecuted for the crime of bigamy for entering into another marriage.

On February 11, 2014, Utah’s Attorney General Sean Reyes stated that the state will appeal the decision, but is waiting for the judge to issue a final order on the ruling.[1] Before an appeal can be filed, two issues must be resolved: one regarding any money the Browns ask for and the question regarding Utah County officials’ supposed violation of Enforcement Act. Judge Waddoups gave the attorneys until mid-February to write briefs on these issues. After which a new hearing will be scheduled.[2]

Attorney Graham Norris and his associates at the Norris Law Group serve the residents of Utah County and throughout Utah in the area of divorce. Contact them today at 801-932-1238 or online for a free consultation. In the next installment, Coach Kim discusses how encouragement can make a big difference in your marriage.


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