Fueling debates over marriage and religious freedom, a federal judge
declared on Dec. 13 Utah laws criminalizing polygamy are
unconstitutional, ruling on a case involving the Brown family from TLC’s
reality series “Sister Wives.”
Social conservatives who have argued for marriage solely between one
man and one woman have long warned that allowing gay marriage would
ultimately lead to allowing polygamy — an argument that’s both feared
and rejected by gay marriage proponents.
Perhaps not surprisingly, groups advocating for legalizing gay marriage
were quiet in response, saying that legalizing polygamy is not part of
their mandate.
At the same time, proponents of traditional marriage did a victory lap
of sorts, saying their worst fears are starting to come true.
“Same-sex marriage advocates have told us that people ought to be able
to ‘marry who they love’ but have also always downplayed the idea that
this would lead to legalized polygamy, a practice that very often
victimizes women and children,” said Tony Perkins, president of Family
Research Council, in a statement on Monday (Dec. 16).
“But if love and mutual consent become the definition of what the
boundaries of marriage are, can we as a society any longer even define
marriage coherently?”
The case involves the cast of “Sister Wives,” which entered its fourth
season earlier this year, featuring Kody Brown and his four wives. The
Browns are members of a fundamentalist Mormon group, not part of the
Church of Jesus Christ of Latter-day Saints, which does not condone the
practice of polygamy.
“While we know that many people do not approve of plural families, it
is our family and based on our beliefs,” Kody Brown said in a statement.
”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.”
A 2012 Pew Research survey found little acceptance of polygamy among
Mormons with 86 percent of them saying it is morally wrong. Wider
American opinion on gay marriage, meanwhile, has evolved over the past
decade. In Pew Research polling in 2001, Americans opposed gay marriage
57 percent to 35 percent. Two 2013 polls suggest 50 percent of Americans
are in favor of gay marriage with 43 percent opposed.
U.S. District Court Judge Clark Waddoups’ ruling attacked sections of
Utah’s laws against cohabitation, saying in his decision that the phrase
“or cohabits with another person” is a violation of both the First and
14th amendments.
In his decision, Waddoups, who was nominated by President George W.
Bush, writes that while there is no “fundamental right” to practice
polygamy, the issue really comes down to “religious cohabitation.”
The judge’s ruling does not say that Utah has to recognize multiple
marriages, said Brad Greenberg, a research scholar at Columbia Law
School. The Supreme Court has repeatedly indicated that determining who
can marry is almost exclusively the province of the states, he said.
“A ban on polygamous marriage does little to deter those who want to
enter into multiple marriages, some illegally, and then live together,”
Greenberg said. “So Utah’s criminal ban on cohabitation sought to
address these practices with a broader ban. That is what Judge Waddoups
ruled was unconstitutional, because it criminalizes conduct outside
Utah’s ability to define marriage, and in doing so encroaches on First
Amendment protections.”
The Brown family filed a lawsuit in July 2011, saying that Utah’s law
violated their right to privacy, relying on the 2003 Supreme Court
decision that struck down a Texas law banning sodomy.
In hearings for the case, according to The Salt Lake Tribune report,
Waddoups focused on the definition of a polygamous relationship, asking
for the difference between a polygamous relationship between one man and
several wives and an unmarried man who chooses to have intimate
relationships with three women.
Assistant Utah Attorney General Jerrold Jensen argued that a polygamous
relationship is different because it was defined by people representing
themselves as married.
The Browns have only entered into one legally recognized marriage, so
they could have faced prosecution for calling their relationship a
marriage, a decision they made based on their
religion.
In response to the judge’s decision, Utah Gov. Gary Herbert, a
Republican, said he is ”always a little concerned” when public policy
changes are made by the courts.
Attorney Jonathan Turley, who argued the case for the Browns, said in a
blog post that the decision “was a victory not for polygamy but privacy
in America.”
“Utah has achieved something equally important today: true equality of
its citizens regardless of their personal faiths or practices,” Turley
wrote.
In his ruling, the judge took a narrow interpretation of the words
“marry” and “purports to marry,” meaning that bigamy remains illegal,
such as when someone fraudulently acquires multiple marriage licenses.
Courtesy Religion News Service 2013. Used with permission.
