multiplying love

8/21/2019 Multiplying Love

1/56

1

Multiplying Love: The Future of Polygamy in a Post “Traditional Marriage” World

“No matter how widely known the natural wonders of Utah may become, no matter the extentthat our citizens earn acclaim for their achievements, in the public mind Utah will forever be

shackled to the practice of polygamy.”1

- Utah Supreme Court Justice Ronald E. Nehring

I. Introduction

“Some times [ sic] I hate it when what I predict comes true,” tweeted polarizing

conservative politician Rick Santorum on December 15, 2013.2 This tweet was a reaction to

Federal District Judge Clark Waddoups’ potentially landmark decision in Brown v. Buhman, a

decision that would extend Free Exercise Clause protection and Due Process protection from

Lawrence v. Texas into polygamist bedrooms.3 Back in 2003 near the time of the United States

Supreme Court’s Lawrence decision, Santorum predicted that:

[i]f the Supreme Court says that you have the right to consensual (gay) sex within yourhome, then you have the right to bigamy (emphasis added), you have the right to polygamy (emphasis added), you have the right to incest, you have the right to adultery.You have the right to anything.4

Despite Santorum’s claim that his prediction had come true, at best, Brown only fulfills part of

the prediction.5 Brown does not allow for bigamy, the legal recognition of polygamous

marriages, in Utah.6 However, Brown does decriminalize the act of living together with multiple

“spiritual wives.”7 Therefore, in some sense Santorum is correct—practically, Brown creates a

“right to polygamy,” though the true legal scope of that right is limited.

Still, it would be no stretch to say that Brown is likely the single-greatest legal victory for

American polygamists in a history fraught with chilling defeat.8 While Brown is limited to the

narrow question of decriminalization of religious cohabitation, if upheld, Brown could

foreshadow a paradigm shift in how courts treat polygamists. Importantly, the Brown decision

was not handed down in a vacuum and could be seen as part of a larger movement away from


2/56

2

recognizing and protecting only “traditional marriages.”9 Paving the way for Brown was the

decision in United States v. Windsor 10 —which struck down a federal definition that had limited

marriage to monogamous, heterosexual couples—and affected countless other federal court

decisions striking down state level same-sex marriage bans across the United States. Presently,

the same-sex marriage debate is ripe for a final determination in DeBoer v. Snyder .11 In that

appeal, many believe the United States Supreme Court has already signaled that it will decide

that state same-sex marriage bans violate the Equal Protection and Due Process clauses of the

United States Constitution.12

This Comment assumes that same-sex marriage will become legal nationwide in the near

future and that some form of heightened scrutiny will be applied under the 5th and 14th

Amendments to distinctions based on sexual orientation. This Comment analyzes the

implications of that shift for polygamy in a post-“traditional marriage” world, particularly in

light of the landmark decision in Brown v. Buhman, the almost unanimous same-sex marriage

decisions in federal courts, and the likely favorable decision in DeBoer v. Snyder . Ultimately,

this Comment concludes that despite the shift in public opinion towards marriage equality, and

even if a heightened form of scrutiny is applied to state bigamy laws, state level bigamy

prohibitions could still survive constitutional challenge. Specifically, because states have a

myriad of potential important or compelling interests specific to polygamy—that are not

implicated in the same-sex marriage context—with which to justify their prohibitions.

Parts II and III of this Comment discuss the origins of the practice of polygamy in the

United States, the federal reaction to polygamy, and the case law leading up to Brown. Part IV

discusses Brown, analyzes its legal and political merits, and ultimately concludes it was rightly

decided. Part V discusses the future of polygamy in the wake of Brown, Windsor , and the same-


3/56

3

sex marriage movement. Part VI analyzes and compares the LGBT community with the

polygamist community, discusses some of the roadblocks polygamists may face on the road to

legal recognition, and ultimately concludes that polygamy implicates important policy

considerations not implicated by same-sex marriage. Thus, this section concludes that states may

be able to justify their bigamy laws in the event of a challenge even assuming that some

heightened form of scrutiny applies. Part VII summarizes all the conclusions made in this

Comment, and ultimately concludes that Rick Santorum’s prediction of legalized bigamy as a

necessary outgrowth of legal same-sex marriage is likely wrong, at least for the foreseeable

future.

II. The Rise and Fall of Mainstream Mormon Polygamy

It is impossible to talk about American Polygamy without discussing its origins in the

early teachings of the Church of Jesus Christ of Latter-Day Saints (known colloquially and

hereinafter as the “Mormon Church” or “Mormons”).13 The following sections explore the early

history of polygamy in the Mormon Church, federal reaction to Mormon polygamy in the mid-

to-late 1800s, and the mainstream Mormon Church’s ultimate decision to abandon the practice

near the turn of the twentieth century. Finally, this section explores the roots of Mormon

fundamentalism.

A. Beginnings: Mormon Origins

According to Mormon theology, Joseph Smith, Mormonism’s founder, experienced a

celestial visitation from God and Jesus Christ sometime in the spring of 1820.14

In 1823, Smith

claims to have been visited by an angel named Moroni, who eventually showed Smith the

location of golden plates containing an ancient record of the pre-Colombian inhabitants of the

Americas.15 Smith translated this record into what is now known as the Book of Mormon,


4/56

4

Mormonism’s principle book of scripture.16 In addition to the Book of Mormon, Mormon

canon—referred to by Mormons as the “Standard Works”—includes the Old and New

Testaments, the Doctrine and Covenants, and the Pearl of Great Price.17 Smith’s revelation on

Polygamy, referred to at the time as “celestial marriage,” is found in Section 132 of the Doctrine

and Covenants.18

The exact origin date of Polygamy within the Mormon Church is hard to pin down.

Evidence suggests that Smith received a revelation regarding polygamy as early as 1831, though

no formal revelation was published until 1843.19 Even with the 1843 revelation, the Church

didn’t publically practice polygamy until 1852 when the main body of Mormons was already in

the Salt Lake Valley.20 However, during Mormonism’s Kirtland and Nauvoo periods in the

1830s and early 1840s, polygamy blossomed in secret.21 Smith appears to have married his first

documented plural wife, Fanny Alger, in Kirtland in 1833, and is reported to have had as many

as 48 wives.22 Later in Nauvoo, the practice of polygamy spread from Smith to other select

members of the Church.23 Early Mormons believed, and fundamentalist Mormons still believe

today, that polygamy (also known as “celestial marriage”) was a prerequisite to attaining the

highest degree of heaven in Mormon theology.24

B. Polygamy Unveiled: The Federal Iron Fist

Under Brigham Young’s leadership in Utah, polygamy came out of the shadows it had

occupied in Kirtland and Nauvoo and became public practice of the mainstream Mormon Church

in 1852.25

The federal government responded coldly to Mormon polygamy. While it may be

overly reductionist to conclude that polygamy was the only motivating factor for nearly universal

dislike and distrust of the early Mormon Church, it certainly was a large part of it.26 A

Republican presidential candidate even lumped polygamy in with slavery, calling slavery and


5/56

5

polygamy the “twin relics of barbarism.”27 This link with southern slavery likely contributed to

decades of draconian measures taken by the federal government to suppress polygamy and

disenfranchise the Mormons in the late 1800s.28 One scholar astutely described Congress’s

reaction to Mormon polygamy as “draconian” and a “blitzkrieg.”29

The first blow to Mormon polygamy, if it can be called that, came with the Morrill Act in

1862.30 The Morrill Act outlawed bigamy in territories of the United States and stipulated

penalties of no more than a $500 fine and imprisonment for a term not exceeding five years.31

The Act also repealed laws passed by the Utah Territorial Legislature that shielded polygamy.32

Beyond its direct attempts to thwart polygamy, the act also attempted to cripple the Church

financially.33 It revoked the Mormon Church’s incorporation and prohibited the Church from

holding more than $50,000 in total assets.34 Unfortunately for Congress, the Morrill Act ended

up being a toothless flop.35

Two major problems impeded enforcement of the Morrill Act. First, prosecutors needed

proof of an actual second marriage.36 This was difficult in Utah territory, where marriage

records were scarce—Utah marriages were mostly common law marriages solemnized by

ecclesiastical authority.37 Second, even if prosecutors could muster the proof, Mormon juries

were unlikely to indict or convict their fellow Mormons of bigamy.38 The act was ultimately

deemed a failure.39

The second attempt to stifle Mormon polygamy came with the Poland Act.40 The Poland

Act attempted to combat Mormon control over bigamy prosecutions by revoking jurisdiction

from Mormon-controlled state courts.41 However, the Poland Act did not do much to combat the

two major problems that stifled the Morrill Act; namely, that Mormon juries wouldn’t indict or

convict fellow Mormons of bigamy and that a second marriage had to be proven.42


6/56

6

Congress finally got serious about combating polygamy and passed the Edmunds Act in

1882, which counteracted many of the problems with the Morrill Act.43 The Edmunds Act

disenfranchised polygamists (and those who had ever practiced polygamy) and allowed

polygamist jurors, and those who believed in the practice of polygamy (functionally

disqualifying all Mormon jurors), to be stricken for cause.44 Most importantly, the act

criminalized cohabitation in addition to formal bigamy.45 This circumvented the problem of

finding proof of an actual, formal second marriage and greatly reduced the prosecutor’s burden

to obtain a conviction.46 In other words, a prosecutor needed only to show that a Mormon man

was cohabitating with more than one woman.

With the Edmunds Act, Congress dealt a heavy body blow to the Mormon Church. The

impact of the Act was immediate and devastating. By 1893, over a thousand Mormons were

convicted under the more expansive cohabitation provision of the Edmunds Act.47 By 1883,

12,000 Mormons were stripped of the right to vote.48 As one commentator noted: “the Edmunds

Act provided no alternative and no period of grace: a polygamist man could abandon his family

entirely, or he could go to prison.”49 As a result of this choice between two undesirable

outcomes, Mormon leadership went “underground” to evade the authorities.50

To pile on, Congress passed the Edmunds-Tucker Act in 1887.51 The Edmunds-Tucker

Act would prove to be the final kill stroke to the practice of polygamy in the mainstream

Mormon Church.52 The Edmunds-Tucker Act had two major goals.53 First, it attacked the

uncooperative Mormon women who were blocking attempts to prosecute their husbands and the

Church leadership in hiding.54 The Act revoked women’s voting rights and criminalized the acts

of fornication and adultery.55 The purpose of criminalizing fornication and adultery was not to

actually prosecute the women of those crimes, but to arrest the women and give the government


7/56

7

leverage in securing testimony from these women to be used against their husbands. 56 The Act’s

second goal was to financially cripple the Mormon Church.57 The Act unincorporated the

Mormon Church and forfeited its property to the United States.58 Unlike the similar provisions

in the toothless Morrill Act, in this case, Congress set up a receiver to manage the Church’s

assets.59 These two blows left the Church in a very precarious position.

In 1890, President Wilford Woodruff, then prophet of the Mormon Church, issued a

document known as The Manifesto.60 In The Manifesto, Woodruff announced that the

mainstream Mormon Church was discontinuing the practice of polygamy.61 After The

Manifesto, Utah was finally granted statehood.

62

Despite this public renouncing of polygamy

and Utah’s conditions of statehood, polygamous marriages continued in the Mormon Church in

secret until around 1904, when the Church issued a “Second Manifesto” to fully stamp out the

practice.63 Unlike the original Manifesto, the “Second Manifesto” called for excommunication

for any Church members engaging in the practice of polygamy.64 Roughly by the turn of the

century, both the original Manifesto and “Second Manifesto” sufficed to end the practice of

polygamy in the mainstream Mormon Church.65

C. Embers of Fundamentalism: Polygamy Outside the Mainstream Mormon Church

Perhaps unsurprisingly given the context, many within the Mormon community saw The

Manifesto and “Second Manifesto” not as divinely inspired revelations, but as capitulation in the

face of political pressure.66 These fundamentalists believed that polygamy retained its divine

mandate and was required for salvation.67

In 1912, a man named Lorin Woolley claimed that

Mormon President John Taylor had received a spiritual visitation from Jesus Christ and Joseph

Smith in 1886.68 In this visitation, Christ and Smith allegedly reiterated the necessity of

polygamous marriage, and Woolley claims to have received authority to perform polygamous


8/56

8

marriages from President Taylor.69 In 1929, Woolley published this alleged revelation and

ordained apostles, catalyzing the Mormon Fundamentalist movement.70

Today, there are an estimated 37,000-38,000 Mormon fundamentalist polygamists living

in Utah and its surrounding states.71 In addition to parting ways with the mainstream Mormon

Church in the early 1900s, polygamists have further fractured into discrete groups.72 The largest,

most secretive, and well-known Mormon fundamentalist group is the Fundamentalist Church of

Jesus Christ of Latter-Day Saints (FLDS).73 There are roughly 10,000 members of the FLDS

Church based in the communities of Hildale, Utah and Colorado City, Arizona.74 This is the

group led by convicted felon Warren Jeffs, who continues to direct the activities of the FLDS

Church from his jail cell in Texas where he is currently serving a life sentence. 75

Other large Mormon fundamentalist groups still extant today include the Apostolic

United Brethren (AUB) (of which the Browns are members) and the Centennial Park Group.76

The AUB is the second-largest organized group, with approximately 7,500 members based in the

Salt Lake City suburb of Bluffdale, Utah.77 Unlike their FLDS counterparts, members of the

AUB and other polygamist sects may dress in modern clothing and are virtually

indistinguishable from monogamists.78 Lately, the AUB has a penchant for producing reality TV

stars. In addition to the Browns, the AUB also produced the Williams family—stars of the TLC

reality show “My Five Wives”—though the Williams have since left the faith.79 The Centennial

Park Group split from the FLDS Church in the 1980s and also has its own reality TV show called

“Polygamy USA,” which documents the lives of the Centennial Park residents as a whole rather

than focusing on a single family.80 In addition to the existence of these larger, organized groups

of polygamists, the largest chunk of practicing polygamists, numbering around 15,000, are

unaffiliated with any particular Mormon fundamentalist sect.81


9/56

9

III. Yesterday and Today: Challenges to Laws Banning Bigamy and Religious

Cohabitation

Legal challenges to laws criminalizing bigamy and religious cohabitation had uniformly

failed prior to Brown. The first challenge came in United States v. Reynolds, an 1874 case

concocted by the Mormons to challenge the toothless Morrill Act under the Free Exercise

Clause, a case that unequivocally upheld the government’s power to ban bigamous

relationships.82 A century after Reynolds, in light of modern Free Exercise Clause jurisprudence

and recent legal developments in the Lawrence v. Texas case, Fundamentalist Mormons hoped

that attacks on the cohabitation prong of Utah’s bigamy statute would find success.83

However, the first forays into post- Lawrence challenges to Utah’s bigamy statute were

turned away in the Green and Holm cases.84 This section discusses Reynolds and modern Free

Exercise Clause jurisprudence, the Utah bigamy statute’s unique cohabitation prong, and quickly

summarizes the significance of the Supreme Court’s Lawrence ruling. Finally, this section sets

the stage for Brown by discussing the failed Free Exercise and Due Process Clause challenges to

Utah’s cohabitation and bigamy statute in Green and Holm.

A. Racist Roots: United States v. Reynolds

The Mormons were very confident that the Morrill Act was an unconstitutional

abridgment of their First Amendment free exercise rights.85 So much so, that they agreed to have

one of their own plead guilty to bigamy to act as a test case to challenge the Act.86

The mark

was George Reynolds, personal secretary of Mormon leader, Brigham Young.87 George

Reynolds was young and attractive, likely chosen as the test case to challenge the Morrill Act

because he shattered the traditional stereotype of the much older polygamist Mormon man that

married young girls.88


10/56

10

However, things did not go as the Mormons had planned.89 Rather than becoming the

case that would vindicate the Mormons’ supposed rights to polygamy under the First

Amendment’s Free Exercise Clause, Reynolds became the landmark case that established the

belief/action dichotomy in Free Exercise jurisprudence.90 Thus, the Court held that while

Congress could not pass a law abridging the Mormons’ right to believe in polygamy, Congress

could pass a law restricting the action of practicing polygamy.91 In support of this dichotomy,

the court reasoned that creating a religious exception would make the “doctrine of religious

belief superior to the law of the land” and “would permit every citizen to become a law unto

himself.”

92

While this belief/action dichotomy has been revitalized under the Court’s current free

exercise jurisprudence and deserves some measure of respect, the rationale for Reynolds does

not. Scholars have criticized the Reynolds court for its anti-Mormon, racist, and moralistic

overtones.93 In explaining its rationale, the Reynolds Court postulated that polygamy is “almost

exclusively a feature of the life of Asiatic and of African people.”94 In other words, for the

Reynolds Court, polygamy was bad because it was associated with “Asiatic” and “African”

people.95 Others have criticized the opinion’s emphasis on social mores of the time, claiming

that an interest in maintaining public morality can no longer serve as a rational basis for laws. 96

In light of its racist, poorly-reasoned roots, moralistic bent, and sidestepping of

discussing the merits of polygamy, many have suggested that Reynolds’ precedential value is

weak and that the United States Supreme Court should overrule Reynolds under modern

precedent.97 In discussing Reynolds, Judge Waddoups emphatically stated in Brown that: “[s]uch

an assessment arising from derisive societal views about race and ethnic origin…has no place in

discourse about religious freedom, due process, equal protection, or any other constitutional


11/56

11

guarantee.”98 However, as conceded by Judge Waddoups in Brown, the Supreme Court has not

yet spoken and Reynolds retains its binding status on the actual question of legal recognition of

plural marriage.99 Unfortunately for Utah polygamists, Reynolds was merely the first in a line of

resounding defeats in court.

B. The Free Exercise Clause, or There and Back Again100

Because Judge Waddoups struck down the cohabitation prong of Utah’s bigamy statute

on Free Exercise grounds, the history of the Free Exercise Clause is discussed briefly here. As

hinted above, the Reynolds belief/action dichotomy was only the beginning of Free Exercise

Clause jurisprudence.

101

The Free Exercise landscape changed dramatically in the 1960s and

1970s with the decisions in Sherbert v. Verner and Wisconsin v. Yoder .102 Collectively, these

cases modified the Reynolds dichotomy by requiring government interference with religious

action to be narrowly tailored to a compelling government interest.103 Functionally, this created

a religious exception to generally applicable laws so long as no compelling government interest

could be articulated.

This new standard was relatively short-lived. In 1990, the Court decided the landmark

case, Employment Division v. Smith.104 At issue in Smith was whether there was a religious

exemption to laws regulating the consumption of peyote, a substance used in Native religious

ceremonies.105 There, in contrast to Sherbert and Yoder , the Court held that no Free Exercise

exception existed for valid, neutral, generally applicable laws.106 Notably, the Smith holding did

not extend to laws that were non-neutral, or in other words, laws that targeted religious

practice.107 Later, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court fleshed

out the concept of “neutrality” for Free Exercise purposes.108


12/56

12

In Hialeah, the Court held that non-neutral laws are subject to strict scrutiny, meaning the

law must be justified by and narrowly tailored to a compelling government interest.109 The Court

held that “if the object of a law is to infringe upon or restrict practices because of their religious

motivation, the law is not neutral.”110 The Court then explained two varieties of neutrality—

facial neutrality and operational neutrality.111 Laws must be both facially and operationally

neutral, otherwise, strict scrutiny will apply.112

Facial neutrality is a simple concept. A law that in its text “refers to a religious practice

without a secular meaning discernable from the language or context” is not facially neutral.113

Operational neutrality is a stickier concept. In addition to protecting against overt targeting of

religious beliefs through application of strict scrutiny to facially non-neutral laws, the Free

Exercise clause also protects against the “covert suppression of particular religious beliefs”

through the concept of operational neutrality.114 In evaluating whether a law is operationally

neutral, a court must look beyond the face of the statute and “must survey meticulously the

circumstances…to eliminate…religious gerrymanders.”115 As part of this meticulous survey,

courts must look to effects of the law in practice—as the Hialeah Court noted, “the effect of a

law in its real operation is strong evidence of its object.”116 In short, courts must look beyond the

face of the statute to see if a law operates as an “impermissible attempt to target…religious

practices” despite the law’s facial neutrality.117

It could be said that with the Court’s decisions in Smith and Hialeah that Free Exercise

jurisprudence came full circle. Read together, Smith and Hialeah overruled Sherbert and Yoder

and reinstated the Reynolds belief/action dichotomy with one caveat—non-neutral laws must

withstand the same strict scrutiny test applied in Sherbert and Yoder .118 This caveat proved


13/56

13

important in Brown when Judge Waddoups took a hard look at the cohabitation prong of Utah’s

bigamy statute.

C. A Unique Utah Law: The Cohabitation Prong of Utah’s Bigamy Statute

Reynolds represents the current final word on a state’s ability to bar the actual legal

recognition of polygamy, but is not binding precedent in Brown.119 The Brown Family—along

with Most Utah polygamists—does not seek legal recognition of their plural marriages. In the

typical case (the Browns are a typical case) of a Fundamentalist Mormon plural family, the

husband legally marries his first wife and cohabits with the other women as non-legally

recognized “spiritual wives.”

120

In short, a typical bigamy statute that outlaws only traditional

bigamy would have little to no effect on Utah’s plural families because the families do not seek

additional marriage licenses.

While all fifty states criminalize bigamy—the act of being legally married to more than

one person at the same time—only Utah criminalized cohabitation by one who is married.121

The Utah bigamy statute, prior to Brown, read:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing theother person has a husband or wife, the person purports to marry another person orcohabits with another person (emphasis added).122

Thus, in addition to criminalizing run-of-the-mill bigamy, if either cohabitating party were

married and the other party had reason to know of the marriage, cohabitation would also qualify

as “bigamy.”123 Notably, the potential scope of this statute is actually broader than just

application to polygamists. Under the plain language of the pre- Brown Utah bigamy statute, a

man or woman who separated from his or her legal spouse and moved in with another partner

prior to a final divorce with the first spouse would also have technically been committing

“bigamy” in Utah pre- Brown (this could be termed “adulterous cohabitation”).124 Fortunately for


14/56

14

Utah’s adulterous cohabitants, the State of Utah has only ever enforced this provision against

religious cohabiting polygamists.125

Therefore, prior to Brown, Utah’s bigamy statute restricted polygamists not only in the

number of spouses they could legally marry, but also in their choice to live with and maintain

intimate relationships with the persons of their choice. In 2003, the United States Supreme Court

decided Lawrence v. Texas, which drastically limited the government’s power to regulate private

intimate relationships between consenting adults.126 Because Lawrence proved an important

case in the Brown decision, it is mentioned briefly below.

D. A Light in the Darkness: Lawrence v. Texas

While not itself a polygamy case, Lawrence v. Texas127 became a game-changer for Utah

polygamists by adding a crucial item to their lawyers’ litigation tool-belts. In Lawrence, police

investigated a reported weapons disturbance and caught two men engaged in a sexual act.128 The

men were charged and convicted of “deviate sexual intercourse” under Texas law.129 The

Supreme Court heard their appeal, and held that the men had a liberty interest in their intimate

relations protected under the Due Process Clause.130 Justice Kennedy eloquently stated:

The laws involved in Bowers and here are, to be sure, statutes that purport to do no morethan prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior,and in the most private of places, the home. The statutes do seek to control a personalrelationship that, whether or not entitled to formal recognition in the law, is within theliberty of persons to choose without being punished as criminals…[t]his as a general rule,should counsel against attempts by the State, or a court, to define the meaning of therelationship or to set its boundaries[.]131

Notably though, the Court did not invoke the term “fundamental right” to describe the

liberty interest at stake, and even used traditional “rational basis” language in its analysis.132

Moreover, at other points in the opinion the Court suggested some exceptions to its holding.133

Among those exceptions to the holding are cases involving minors, coercion, injury, public


15/56

15

conduct, prostitution, or “relationships where consent might not be easily refused.”134 Despite

these limitations, the holding in the case shows “an emerging awareness that liberty gives

substantial protection to adult persons in deciding how to conduct their private lives in matters

pertaining to sex.”135

On the surface, Lawrence’s analysis would seem to translate seamlessly from the same-

sex relationship context to the religious cohabitation context. If the private intimate relations of

consenting adult same-sex couples are shielded from state interference via a protected

substantive due process liberty interest, it would seem to follow that the same protections would

be warranted for the private intimate relations of consenting adult polygamists. However, there

were yet a few bumps in the road before that transition was made in Brown.

E. State v. Green

From the late 1980s into the early 2000s, Polygamist Tom Green flouted Utah law by

appearing on television shows, including “Dateline NBC,” to defend his polygamist lifestyle.136

Mr. Green was charged with and eventually convicted of four counts of bigamy under the

cohabitation prong of Utah’s bigamy statute.137 Green appealed.138

Green’s primary argument was that the cohabitation prong of Utah’s bigamy statute

violated the Free Exercise Clause by unconstitutionally targeting Fundamentalist Mormons.139

The Utah Supreme Court analyzed this claim through the lens of the Smith/ Hialeah framework

discussed above and found that the statute was both facially and operationally neutral.140 In

support of its conclusion that the statute was facially neutral, the court cited the plain language of

the statute, which carried no overtly religious wording.141 To support its conclusion that the

statute was operationally neutral, the court pointed to the most recent prosecution under Utah’s

bigamy statute, where the State had prosecuted a non-religious person for traditional bigamy—


16/56

16

but, importantly, not religious cohabitation—under the same statute.142 Having determined that

the law was neutral and generally applicable, the Utah Supreme Court quickly delineated a few

of the State’s “rational bases” for passing the law and dispatched Green’s Free Exercise Claim

under Smith.143

F. State v. Holm

The next and most serious challenge to Utah’s bigamy statute (and direct precursor to

Brown) came in State v. Holm.144 In Holm, Rodney Holm “married” Ruth Stubbs as a plural

wife in a commitment ceremony when she was 16 years old.145 Holm was charged and

convicted of unlawful sexual conduct with a minor and bigamy.

146

On appeal, Holm argued,

among other things, that the trial court had erred in its interpretation of the “purports to marry”

prong of Utah’s bigamy statute and that his conviction for bigamy violated the Free Exercise

Clause and substantive due process under Lawrence.147 The Holm court rejected Holm’s Free

Exercise Challenge, deferring to its prior “thorough analysis” of the Free Exercise question in

Green.148

As for substantive due process, Holm claimed that Lawrence set out a “fundamental

liberty interest” that also applied to polygamous unions that could “be infringed only for

compelling reasons.”149 The Utah Supreme Court disagreed, claiming that Holm misconstrued

the breadth of Lawrence.150 The court noted a few of the qualifications from the Lawrence

holding, and concluded that Holm’s case implicated the “abuse of an institution the law protects”

and the “harm to a minor” exceptions to the Lawrence ruling.151

The court held that polygamous

“marriages” are “an abuse of an institution the law protects,” namely marriage, and that the State

of Utah has an interest in regulating polygamous “marriages” even though polygamous

marriages are not legally recognized marriages.152 Next, the court noted the age of Holm’s child-


17/56

17

bride Stubbs and applied the “harm to a minor” exception in Lawrence.153 In concluding its

discussion of the above two exceptions to Lawrence, the court noted:

Given the above, we conclude that Lawrence does not prevent our Legislature from

prohibiting polygamous behavior. The distinction between private, intimate sexualconduct between consenting adults and the public nature of polygamists’ attempts toextralegally redefine the acceptable parameters of a fundamental social institution likemarriage is plain.154

Thus, in addition to upholding Holm’s conviction for committing bigamy under Lawrence’s

“harm to a minor” exception, the Court also seemed to suggest that, for them, even polygamous

relationships between consenting adults would fall outside of Lawrence’s protections.155

In an honest and revealing concurrence, Justice Ronald Nehring admitted the closeness of

the constitutional questions presented.156 Justice Nehring also exposed the backdrop against

which the court issued its opinion:

No matter how widely known the natural wonders of Utah may become, no matter theextent that our citizens earn acclaim for their achievements, in the public mind Utah willforever be shackled to the practice of polygamy. This fact has been present in myconsciousness, and I suspect has been a brooding presence in one form or another in theminds of my colleagues, from the moment we opened the parties’ briefs…[n]o small partof the responsibility that the members of this court agree to assume is to stand resolutelyagainst majority will when constitutional principles require it. We shoulder this dutywillingly despite knowing that the decisions we make will inevitably vex, frustrate, andenrage many people, including persons of power and influence. Still, an outcome that iswholly defensible as a product of intellectual rigor and principled application of the lawcould, at the same time, be so much at odds with widely and deeply held cultural valuesthat it would not only undermine the legitimacy of the ruling but call into question theinstitutional legitimacy of the court.157

Justice Nehring’s concurrence straddled the line between laudably protecting the reputation of

the court and admitting an impermissible bias that at least colored the outcome in Holm. On one

hand, Justice Nehring at least seemed to suggest that if resolution of the close constitutional

questions had favored Holm, that perhaps still the majority would have been justified in


18/56

18

affirming Holm’s convictions. On the other hand, Nehring’s willingness to “own up” to the

Court’s predisposition against polygamy is both honest and refreshing.

In a strident dissent, Utah Chief Justice Christine Durham heavily and articulately

criticized the majority’s rationale. Chief Justice Durham agreed that Holm’s conviction for

unlawful sexual conduct with a minor should be upheld.158 However, she disagreed that his

bigamy conviction—which did not rely on his partner’s status as a minor—should be upheld

under Lawrence.159 Chief Justice Durham also took issue with the majority’s claim that the

private consensual behavior of individuals not claiming legal recognition of their marriage

somehow abused the institution of marriage.

160

Holm was a major defeat for polygamists. Along with Utah’s history of polygamy, the

elements of child sexual abuse present in Green and Holm also likely weighed heavily on both

the Green and Holm Courts.161 However, Chief Justice Durham’s dissent in Holm outlined a few

of the problematic parts of the majority’s analysis and foreshadowed an eventual victory if the

right case presented itself. The right case came in Brown.

IV. Brown v. Buhman: The Right Call

This section gives a brief background of the Brown family and the events leading up to

their lawsuit challenging Utah’s bigamy statute. Next, I discuss Judge Waddoups’ decision in

Brown and conclude it was rightly decided on its legal merits. Finally, I discuss why Brown was

the right move from both a political and social standpoint.

A. Meet the Browns

The members of the Brown Family are the stars of the hit TLC reality show “Sister

Wives,” which documents the daily life of the Browns. Kody Brown and his wives Meri,

Janelle, Christine, and Robyn are collectively the parents of 17 children.162 The goal of “Sister


19/56

19

Wives” is to dispel misconceptions about polygamy and to show that polygamist families can

function normally.163

The Brown family now lives in adjacent homes in Las Vegas, Nevada, but previously

lived in Utah prior to receiving word of potential prosecution under Utah’s bigamy statute.164 In

response to the threat of prosecution, the Browns filed a civil rights action against Utah Governor

Gary Herbert, Utah Attorney General Mark Shurtleff, and Utah County Attorney Jeffrey Buhman

under 42 U.S.C. § 1983.165 The Browns claimed that Utah’s bigamy statute violated their due

process and free exercise rights (among others) and sought declaratory and injunctive relief.166

Judge Clark Waddoups, a federal district judge, found that the Browns had standing to sue

Jeffrey Buhman in his officially capacity as Utah County attorney because there was a credible

threat of prosecution, but dismissed Herbert and Shurtleff because there was no standing to

sue.167 The case eventually progressed to the summary judgment stage on the Brown’s

constitutional claims.168 The parties filed cross-motions for summary judgment and in a

landmark decision, Judge Waddoups granted the Brown’s motion.169

B. The Decision

Judge Waddoups’ first dealt with Reynolds. Unsurprisingly, Judge Waddoups explained

and condemned Reynold ’s racially and morally charged rationale.170 Ultimately, Judge

Waddoups conceded that Reynolds had not been expressly overruled by the Court, but concluded

that Reynolds was inapplicable here.171 Waddoups reasoned that Reynolds continues to apply as

binding precedent only for the question of actual polygamy, or in other words, only to situations

where multiple marriage licenses exist or are pursued.172 Here, the Browns have not pursued

additional marriage licenses—they are merely living together.173 Waddoups then stated the

ultimate holding of the Brown case, striking and severing the cohabitation prong of Utah’s


20/56

20

bigamy statute because it violates both the Free Exercise Clause and substantive due process

privacy rights under Lawrence.174 His analysis on each claim is discussed below.

i. The Brown’s Free Exercise Claim

After restating his conclusion that Reynolds does not control the analysis of the

cohabitation clause issue and discussing Utah’s common law marriage past, Judge Waddoups

dives into the Free Exercise analysis using the Smith/Hialeah framework discussed above to

determine if the law is neutral toward religious activity or targets religious activity.175 First,

Judge Waddoups looked to see if the Statute was facially neutral.176 He concluded that the

cohabitation prong is facially neutral under Hialeah because it does not refer to religion in its

text. Moreover, the word “cohabit” is a secular word that does not have religious origins.177

With facial neutrality established, Judge Waddoups began the “meticulous survey” called

for in Hialeah to determine if the statute was operationally neutral.178 Judge Waddoups first

dissected the Green Court’s analysis on the issue of the Utah bigamy statute’s operational

neutrality. In Green, the Court had held that the statute was operationally neutral because the

bigamy statute had been used to prosecute religious polygamists and non-polygamists alike.179

The Green Court pointed to the most recent prosecution of a non-religious polygamist as a sign

that the law was fairly applied to everyone.180 However, according to Judge Waddoups the

Green Court was conflating the issues of actual bigamy and religious cohabitation.181 For

Waddoups, the Green Court was correct that prosecution for actual bigamy (i.e. applying for

multiple marriage licenses) was carried out in an operationally neutral manner—those applying

for multiple marriage licenses, whether for religious or non-religious reasons, were being

prosecuted.182 However, the Green Court did not take into account the fact that only those


21/56

21

cohabitating for religious reasons were being prosecuted under the Statute’s cohabitation

prong.183

Therefore, the real question was whether the cohabitation prong, rather than the

traditional bigamy prong of the Statute, was operationally neutral.184 On that question,

Waddoups held that the Statute’s cohabitation prong was not operationally neutral because “few

if any [cohabitations] are prohibited other than [religious cohabitations].”185 This holding was

based on the finding that adulterous cohabitants, those who remain legally married to someone

while cohabitating with another, were not being prosecuted under the cohabitation prong.186

Notably, Judge Waddoups took issue with the Green Court’s “too tidy” secular

representation of the “type of situation” the cohabitation prong was meant to prevent.187 In

Green, the Court appeared to take the position that anyone who engaged in relationships with

“all the indicia of marriage repeated more than once” would be subject to prosecution under the

cohabitation prong independent of whether there was a religious element.188 In Waddoups’

view, this was “manifestly not the case.”189 Waddoups looked to Holm to support his holding—

specifically, Waddoups noted the Holm majority’s emphasis on the parties’ intention to be

“religiously married” as a major factor in the determination of whether the cohabitation prong of

the bigamy statute had been violated.190 Ultimately, Waddoups noted that the “essential

difference between the adulterous cohabitation that ‘goes on all the time’ in the State and the

cohabitation at issue in the Statute seems to be the existence of a wedding ceremony.191 From

that, Waddoups concluded that “[g]iven the fact that all prosecutions under the Statute’s

cohabitation prong…have been of those cohabitating for religious reasons underscores that, in

practice, the law is not operationally neutral under Hialeah.”192 For similar reasons, Judge

Waddoups also concluded that the statute is not generally applicable.193


22/56

22

Having concluded that the law is not neutral or generally applicable, Waddoups applied

strict scrutiny to the cohabitation prong of the statute and held that the law was not narrowly

tailored to any compelling government interest.194 At the outset, Waddoups pointed to the policy

of “selective prosecution” alone as indication that “a blanket criminal prohibition on religious

polygamous unions is not necessary to further the state’s interests[.]”195 More specifically,

Waddoups also held that the state’s interest in protecting the institution of marriage is not

furthered by prosecuting those who “deviate from that domestic structure[.]”196 Next, Waddoups

acknowledged some of the reported problems of abuse in closed, polygamist communities, but

held that the cohabitation prong was not narrowly tailored to protect “vulnerable individuals

from exploitation and abuse.”197 Waddoups noted the presence of pre-existing Utah laws that

already criminalized “incest, rape, unlawful sexual conduct with a minor, and domestic and child

abuse,” and held that “the broad criminalization of the religious practice itself as a means of

attacking other criminal behavior is not [justified].”198 Waddoups posited that the State’s policy

of prosecuting religious cohabitation only when accompanied by evidence of other crimes

actually impeded the collateral prosecutions for rape, abuse, etc. because it had become “a

bottleneck to the straightforward prosecution of these other crimes[.]”199 Ultimately, Waddoups

held that “the cohabitation prong of the Statute cannot survive strict scrutiny and must be

stricken as a facial violation of the free exercise of religion under the First Amendment.”200

ii. The Brown’s Due Process Claim Under Lawrence

Referencing the language of the Lawrence holding appearing to invoke the rational basis

test (rather than strict scrutiny) and relying on the Seegmiller case (Tenth Circuit precedent

applying the Lawrence holding to a separate set of facts), Judge Waddoups held that Lawrence

did not establish a fundamental right to “intimate sexual conduct.”201 Therefore, in order to


23/56

23

withstand a Lawrence challenge, Waddoups held that a law abridging a party’s right to intimate

sexual conduct need only meet rational basis review, or in other words, be reasonably related to a

legitimate government purpose.202 The cohabitation prong of Utah’s bigamy statute did not meet

even this low standard.203

In applying the rational basis test to the cohabitation prong of Utah’s statute, Judge

Waddoups evaluated 3 things. First, in response to the State’s purported legitimate interest in

protecting the institution of marriage, Judge Waddoups looked at the distinction between

religious cohabitation and adulterous cohabitation.204 At oral argument, the Utah County

Attorney conceded that religious cohabitation was subject to prosecution under the statute, but

argued that adulterous cohabitation was not.205 Both varieties of cohabitation potentially

involved minors, public conduct, and economic implications to women and children, with the

only distinction between the two types of cohabitation being the religious element.206 For

Waddoups, if the State were really pursuing protection of the institution of marriage, both types

of cohabitation would be criminalized and enforced, as there is no rational basis to distinguish

between the two.207 Therefore, because the law was not applied to similarly situated individuals

that similarly “threatened” the institution of marriage, Judge Waddoups concluded that the

cohabitation prong was not reasonably related to protecting the institution of marriage.208

Next, Judge Waddoups looked at the County Attorney’s claim that the law served the

legitimate interest of protecting society from the harmful effects of polygamy, such as domestic

abuse and child abuse.209

Waddoups noted first that these crimes should be prosecuted on an

independent basis under the specific statutes used to criminalize that specific conduct and also

noted that he shared concern about the “potential for injury and harm in closed religious

communities.”210 However, Judge Waddoups held that the cohabitation prong is not reasonably


24/56

24

related to the legitimate government purpose of protecting against the dangers of polygamy

because Utah has adopted a general policy of non-enforcement of religious cohabitation.211

Moreover, when it has prosecuted violations of the cohabitation prong, it is “usually in cases in

which the defendant has been convicted of the ‘collateral crime’” (i.e. domestic abuse or child

abuse).212 Therefore, because the law is generally not enforced, and when it is enforced, it is

usually in conjunction with a collateral crime, which is itself sufficient to protect the State’s

legitimate interest in combating the dangers usually associated with polygamy, Judge Waddoups

held that the cohabitation prong is not reasonably related to the legitimate state interest of

protecting against dangers commonly associated with polygamy.

213

Having dealt with the

proposed legitimate state interests asserted by the County Attorney, Judge Waddoups held that

“[t]he cohabitation prong of the Statute does not survive rational basis review and must be

stricken as a violation of substantive due process under Lawrence.”214

C. The Right Decision: Legal Merits

Waddoups’ decision to strike the cohabitation prong of Utah’s bigamy law as a violation

of substantive due process under Lawrence was the right decision from a legal standpoint under

the specific facts presented in this case and should be upheld on appeal. The Free Exercise

grounds for the decision present a closer case on appeal, but should nonetheless be upheld. This

section discusses the above assertions, and ultimately concludes that while the decision was

correct under the specific facts presented here, it is limited in a few important ways.

i. Substantive Due Process under Lawrence: Strengths and Weaknesses

Judge Waddoups’ analysis that the law as applied violated substantive due process under

Lawrence is correct. Judge Waddoups correctly found that the Brown’s had a liberty interest in

intimate sexual conduct recognized in Lawrence, and while some scholars have posited that this


25/56

25

is a fundamental liberty interest subject to heightened scrutiny, he correctly applied the binding

10th Circuit precedent in Seegmiller and applied rational basis review to the facts in Brown.215

Worthy of note, Waddoups is correct that the law’s practical distinction between

adulterous cohabitants and religious cohabitants is not reasonably related to the State’s legitimate

interest in protecting the institution of marriage.216 Even assuming that these polygamous

cohabitants—people that explicitly do not consider themselves “married” in the eyes of the

state—pose a threat to the institution of marriage, that threat is the same whether the

relationships are motivated by religious or non-religious reasons. Moreover, as society becomes

more secular, non-traditional marriages and relationships are becoming more palatable and the

number of those affiliating themselves with a particular religion or identifying as religious are

declining.217 Therefore, if anything, non-religious cohabitants, through secular polyamory, pose

an equal if not greater future “threat” to “traditional marriage” than religious cohabitants.218 In

light of these trends, Utah’s decision to prosecute religious cohabitation but not secular

adulterous cohabitation is arguably even less justifiable.

Despite the holding’s correctness under Lawrence based on the specific facts of this case,

the holding is limited in a few important ways. First, the law was struck down based on problems

with the law’s application, not based on problems with the substance of the law. Per Judge

Waddoups, the state’s proffered rational bases failed because the law was applied in a

discriminatory or selective manner (only against religious cohabitants), not necessarily because

criminalizing cohabitation was itself problematic.219

In contrast, Lawrence used strong language

that got to the substance of laws criminalizing sodomy, effectively barring the use of sodomy

laws everywhere.220 Extrapolating a bit, under Judge Waddoups’ reasoning it appears another

state could hypothetically enact a law with the same text as the Utah cohabitation prong, enforce


26/56

26

it against secular and religious cohabitants equally, and survive a Lawrence challenge. In this

sense, the ruling is arguably only a soft application of Lawrence to the polygamy context and

doesn’t appear to have the same “bite” and finality to the religious cohabitation question as

Lawrence did to the question of sodomy laws.

Second, the Court (correctly, it seems based on Seegmiller ) applied only rational basis

review in lieu of heightened scrutiny.221 One scholar has picked apart the Lawrence ruling, and

ultimately, seemed to conclude that Lawrence applied a concealed heightened scrutiny and

granted “fundamental right” status.222 Here, nothing indicates the Brown Court adopted and used

what may be viewed as the concealed heightened scrutiny found in Lawrence. Because the

Court applied only rational basis review to the law, the precedent set for future cases is to apply

the more permissive rational basis review to other laws abridging polygamists’ liberty interest in

their intimate sexual conduct. The application of this lower standard of review casts doubt about

the success of any challenge to a future hypothetical cohabitation law that is fairly and equally

applied against religious and adulterous cohabitants alike. Assuming Brown is upheld on appeal

and another State enacts (or Utah re-enacts) a similar law banning cohabitation that is applied in

a non-discriminatory fashion, the Court’s opinion in a challenge to that law would better

elucidate the scope of protections polygamists have under Lawrence. Brown seems to only clear

up part of the story.

ii. Free Exercise Analysis: Strengths and Weaknesses

Brown should also be upheld under Judge Waddoups’ Free Exercise Clause analysis,

though this is a closer case. As mentioned above, the operational neutrality prong of the Hialeah

Free Exercise analysis is a squishy, less linear, stickier situation than deciding a case on facial

neutrality alone—one that allows for reasonable differences in conclusions based on the facts at


27/56

27

hand.223 This room for reasonable disagreement is born out by the different conclusions reached

by the Green Court (which held that the law was operationally neutral) and Judge Waddoups’ in

Brown (which held that the law was not operationally neutral).224

One critique of Judge Waddoups’ analysis is how quickly he cast aside what he terms the

“too tidy” secular explanation of the cohabitation prong employed in Green.225 In fairness, his

quick cast-aside of that lens also makes his analysis somewhat “too tidy.” To refresh, the Green

Court emphasized the secular aspects of marriage, the holding out as married, or in their words,

“all the indicia of marriage repeated twice”—rather than the religious ceremony aspect of the

cohabitation emphasized by Judge Waddoups—as the main indicator of when the Statute had

been violated.226 If, as Judge Waddoups held, a religious solemnization ceremony is the major

factor in determining violation of the statute, then naturally the statute is targeted at stamping out

a specific religious practice and is not operationally neutral. However, giving the Green Court

the benefit of the doubt, if the more secular “holding out as married” were actually the main

distinction between free love and violation of the Statute, then the argument that the Statute was

not operationally neutral would fall apart. A good comparative case for the true scope of the

cohabitation prong would be a group of atheists or other non-religious people holding themselves

out as married in committed, plural relationships that mirrored religious cohabitation—if the

State elected not to prosecute that group, then, yes, it would be patently obvious the State was

targeting religious polygamists. But what if that perfect secular analog does not exist, or has not

yet been discovered by Utah authorities? In that event, the State’s decision to only prosecute

religious polygamists could plausibly be attributable to the fact that no perfect secular

polyamorist (joined in a marriage or commitment ceremony of some kind) counterpart exists in

Utah to provide a true comparison, rather than to any real intent to target religious cohabitants.


28/56

28

However, in the absence of that comparative case and based on the evidence we do have,

the Green Court’s rationale that the statute was operationally neutral is unconvincing and Judge

Waddoups wins the day. The cherry-picked case of a non-religious party being prosecuted

supporting those courts’ rationales was not decided on the cohabitation prong of the statute at all,

but was rather a case of traditional bigamy. In fact, from the time the Utah bigamy statute was

enacted through Judge Waddoups’ decision in Brown, it appears that only religious cohabitants

had ever been prosecuted under the cohabitation prong of the Statute.227 Therefore, giving Utah

the benefit of the doubt and assuming the main purpose of the Statute really had been to stamp

out the cohabitation of all married persons who lived as married with a third-party (independent

of whether the relationships were religiously or secularly motivated) there’s no way to evaluate

that claim. The lack of evidence of prosecution of secular adulterous cohabitants looks bad for

the State of Utah’s case that the law is operationally neutral, even if it is only because there is no

perfectly analogous, similarly situated secular counterparts to prosecute.

Further, Utah’s historical associations with the practice of polygamy also cut against a

finding that the law is operationally neutral.228 Particularly, the transition of the Mormon Church

from prisoner in the 1800s and early 1900s, to enforcer throughout the majority of the past

century is well documented and important here.229 The continued effect of this Utah and

Mormon bias against Fundamentalist Mormons is evidenced in Mormon-dominated Utah by

Justice Nehring’s stark admission in Holm about the Court’s frame of mind about polygamy, by

the fact that Utah was the only state criminalizing cohabitation in this way, and by the fact that

this unique law stayed on the books until being struck down at the end of 2013 in Brown.230 It is

certainly debatable whether the bias against Fundamentalist Mormon polygamists is deserved;

however, it is hard to debate the existence of such a bias. This historical backdrop, taken


29/56

29

together with the State’s lack of prosecutions of adulterous cohabitants, supports Judge

Waddoups’ reasonable conclusion that the law is not operationally neutral under a Hialeah

analysis. Therefore, while the case is closer, Judge Waddoups should be upheld on appeal.

It should be noted though that Judge Waddoups’ Free Exercise holding suffers from

similar limitations to his Lawrence substantive due process holding. Again, the holding here is

based mostly on the unfair application of the law rather than the substance of the law.231 In other

words, in the discriminatory manner in which the law is currently applied, it is not operationally

neutral and violates the Free Exercise Clause. However, even after Brown, if an identical

hypothetical law were enacted in another state without Utah’s historical roots in polygamy and

were enforced in a non-discriminatory manner against both secular and religious cohabitants, the

law could still be deemed operationally neutral and upheld under Smith. Ultimately, Brown’s

holding on both Free Exercise and substantive due process grounds is very context-specific,

leaving the waters muddy about what would happen if a neighboring state like Arizona (with its

own population of religious cohabitants) enacted a similar law (that was enforced against

religious and non-religious cohabitants alike) and that law were challenged.

D. The Right Decision: Social & Political Merits

The Brown decision was also right for reasons beyond its legal merits. The rising tide of

public approval for same-sex marriage is also somewhat mirrored in increasing public approval

for polygamy.232 In a 2013 Gallup poll, 14% of Americans gave their stamp of moral approval

for polygamy.233

While low, it is double Gallup’s 2003 7% polygamy moral approval rating.234

The fact that public support of the practice has doubled in 10 years is a sign of changing

perceptions of polygamists; likely due in large part to the success of Sister Wives and other


30/56

30

reality TV shows depicting the normalcy, and at times banality, of the polygamist lifestyle as

practiced by some.235

Moreover, as noted by the Brown’s counsel Jonathan Turley in an op-ed in the New York

Times, “morality laws”—laws imposing religious morality on society—are becoming disfavored

nationwide.236 Turley stated:

Across the country, the era of morality codes is coming to an inglorious end. T his year,the Supreme Court struck down part of the Defense of Marriage Act barring the federalrecognition of same-sex marriage. And this week, the New Mexico Supreme Court andanother federal judge in Utah struck down the ban on same-sex marriage in those states — bringing the number to 18 states (plus the District of Columbia) where same-sexcouples can marry. Meanwhile, Virginia recently repealed its 1877 cohabitation law and

Colorado replealed a criminal adultery law from the 1850s — both relics of a time whenstates used their criminal codes to force citizens to comply with the religious values oftheir neighbors.237

In light of society’s increasing approval of polygamous relationships and this trend away from

so-called “morality laws,” it seems America is ready to decriminalize things like the private,

consensual arrangements practiced by Kody and his wives.

Further, the decision to strike its law criminalizing cohabitation could act as a boon for

Utah law enforcement in investigating abuses occurring in closed polygamist communities.

Even polygamy advocates acknowledge that abuse occurs in closed polygamist communities,

though they dispute that abuse is an inherent problem with polygamy—they counter that abuse is

a “people problem,” not a “polygamy problem.”238 While it’s true that abuse also occurs in

monogamous relationships, the comparative frequency of abuse in monogamous versus

polygamous marriages is hard to test due to the closed nature of most polygamist

communities.239

Even accepting that abuse is an inherent problem of religiously motivated polygamy,

advocates point out that criminalization of cohabitation fosters “an environment where abuse can


31/56

31

thrive and go unreported.”240 Prior to Brown, if a polygamist informant reported to the

authorities the abuse of another in the community, that report brought with it the risk that the

government would prosecute the informant and the informant’s family for cohabitation in

addition to charges being brought against the abuser.241 In short, criminalizing cohabitation

forces “a potential witness or victim of abuse to choose between reporting the crime and

endangering his or her family structure and way of life.”242 This dilemma creates the perverse

incentive for good people who would normally report the abuse to leave it unreported.

Utah’s general policy of not prosecuting under the cohabitation prong absent evidence of

abuse probably ameliorated some of the problems with this perverse incentive.

243

However, the

cohabitation prong’s sporadic and discriminatory enforcement likely still left the possibility of

prosecution weighing heavily in the minds of most would-be informants. On the flip side, the

law’s general non-enforcement also weighs against keeping the law on the books. If the state is

not even interested in enforcing the law, it should not remain a law, particularly given that it

could act as a disincentive to reporting abuse. Given that people have and will continue to

practice religiously motivated polygamy independent of its legality, states should make the wise,

practical decision of removing these types of barriers to the successful prosecution of child and

domestic abuse. Therefore, because Brown removes the threat of prosecution for otherwise law-

abiding polygamists, it encourages increased cooperation by polygamists with state and local

governments in their investigations of abuse in polygamist communities. For that reason, Brown

is not only good law—it is also good policy.

V. The Future of Polygamy after Brown, Windsor , and the other Same-Sex Marriage

Cases

As noted in the Introduction, Brown was not decided in a vacuum. In addition to the

polygamy-specific background (discussed in Parts I, II, and III of this Comment), Judge


32/56

32

Waddoups was, by his own admission, influenced by the changing social and legal climate

generally.244 Chief among the changing social climate is the shift towards legalization and

recognition of same-sex marriage at the state and federal level.

Certainly, there are some similarities between LGBT individuals and polygamists, and

between bans on bigamy and same-sex marriage. For example, like the LGBT community,

polygamists engage or wish to engage in marriage relationships outside of so-called “traditional

marriage.”245 Additionally, at least historically, bans on bigamy, like bans on same-sex

marriage, are largely based on moral opposition to the practices rather than on the merits of the

practice.

246

These similarities have caused some, like Santorum, to make slippery slope

arguments that same-sex marriage will inherently lead to legal recognition of polygamy.247

Some have even suggested that legal recognition of polygamy is desirable.248 On the other hand,

one critic noted that: “unlike other non-conventional unions, polygamy in its modern form has

many harmful and criminal effects that reinforce the need for effective anti-polygamy

legislation.”249 The remainder of this Comment will evaluate the merits of that slippery slope

argument in light of the victory in Brown and the victories of the same-sex marriage movement.

The seeds for successful challenges to same-sex marriage bans came in Romer v. Evans

in 1996 and Lawrence v. Texas in 2003, which both appeared to apply a more searching form of

rational basis review to distinctions drawn on the basis of sexual orientation.250 However, the

beginning of the complete transition towards favoring same-sex marriage really took flight with

United States v. Windsor ,251

which appeared to apply the more searching form of rational basis

review from Romer and Lawrence to a challenge on DOMA’s definition of marriage as a union

of one man and one woman.252 First, this section briefly reviews the tiers of scrutiny used by

courts to analyze Equal Protection and Substantive Due Process challenges. Second, it briefly


33/56

33

summarizes the Windsor case. Third, it looks at the Windsor rationale’s application to litigation

about state level same-sex marriage bans and discusses the results of those challenges. Lastly, it

looks at the upcoming DeBoer case. This information will help guide the comparison between

polygamists and the LGBTQ community.

A. Review of the Tiers of Scrutiny

For questions under the 5th Amendment’s Due Process Clause, the 14th Amendment’s

Equal Protection Clause courts will apply different standards of review based on the type of

distinction a law makes.253 For example, laws that draw distinctions based on race or that

substantially interfere with a fundamental right are reviewed under what is called “strict

scrutiny.”254 These laws must be necessary to accomplish a compelling government interest in

order to survive a legal challenge.255 In practice, the application of strict scrutiny is usually

“fatal” and results in most laws being struck down.256 Laws that discriminate on the basis of

gender receive what is known as “intermediate scrutiny.”257 Under intermediate scrutiny, laws

must be substantially related to an important government interest to survive challenge.258 Most

other laws must survive what is known as “rational basis review,” meaning that the law must be

rationally related to a legitimate government purpose to survive challenge.259 Traditionally,

courts have only applied a cursory analysis under rational basis review and most laws withstood

it.260 Recently, however, courts have appeared to apply a more searching form of rational basis

review, eschewing the traditional cursory rational basis analysis in favor of a more thorough

analysis to cases that implicate sexual orientation, with some lowers court even applying

intermediate scrutiny to sexual orientation cases.261 This more searching form, sometimes

referred to by scholars as “rational basis plus,” typically looks beyond the law to see if it is

motivated by animus towards a politically unpopular group.262 If animus is the motivation, the


34/56

34

law is struck down.263

B. A More Searching Standard of Review in the Marriage Context: Windsor, its Effect onState Level Marriage Bans, and the Future Decision in DeBoer

Windsor was the first major victory for the same-sex marriage movement. In that case,

the Court struck down part of the Defense of Marriage Act (DOMA), which limited the

definition of marriage to unions between a man and a woman.264 Justice Kennedy held that

“[t]he avowed purpose and practical effect of the law here in question are to impose a

disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages

made lawful by the unquestioned authority of the States.”265 In so holding, Justice Kennedy

appears to have used the more searching form of rational basis review from Romer and Lawrence

to decide Windsor .266 Notably, the Court failed to apply suspect or quasi-suspect class status to

distinctions based on sexual orientation (as argued by the plaintiff and government in Windsor )

while simultaneously announcing that laws that “disadvantage,” create a “separate status,” or

stigmatize same-sex couples are of dubious legality.267 This mixed bag created the potential for

state-level same-sex marriage bans to either be struck down or upheld under a Windsor rationale.

Despite the Court’s ambivalence in Windsor , the majority of federal district and circuit

courts have held that Windsor’s rationale applies equally against state-level bans, which

similarly have the purpose of disadvantaging, stigmatizing, and creating a separate status for

same-sex couples.268

One outlier though is the 6th Circuit Court of Appeals, which upheld a

marriage ban in DeBoer v. Snyder .269 The Supreme Court has granted certiorari in that case and

many believe the Court has already signaled they will be deciding that case in favor of same-sex

marriage.270

The grounds the Court uses to decide DeBoer could prove very important for polygamists

in future challenges to bigamy laws in two major areas. First, the Court could decide the case on


35/56

35

Equal Protection Clause grounds and retain the current “rational basis plus” analysis instead of

finally electing to apply heightened scrutiny to distinctions drawn on sexual orientation. If the

Court does not extend heightened scrutiny to sexual orientation-based classifications,

polygamists are likely stuck with “rational basis plus” as the ceiling standard of review for Equal

Protection challenges to bigamy laws, as courts will be unlikely to extend heightened scrutiny to

polygamists if they did not for the LGBTQ community. Second, and most importantly,

polygamists should hope that the Court mentions, as part of its holding or at least in dicta, that

marriage is a fundamental right under a substantive due process analysis. The substantive due

process argument is strongest connection between polygamists and the LGBTQ community, and

would provide polygamists with the strongest argument for a challenge of their own, because it

avoids some of the thornier issues with Equal Protection and Free Exercise challenges to bigamy

laws that are discussed below.

No matter how the Court rules in DeBoer , the battle over same-sex marriage will likely

be over in the near future.271 If nothing else, the Brown decision and same-sex marriage

revolution have provided compelling arguments for polygamists to bootstrap and potentially use

in legal challenges of their own and has provided a welcoming, inclusive social climate that may

be willing to entertain the idea of legal recognition of plural marriage in the not too distant

future.272 However, bombastic claims that same-sex marriage will inherently lead the legal

recognition of plural marriage need to be taken with a grain of salt. The following Section

discusses some of the legal problems with polygamist challenges to bigamy laws even in a post-

“traditional marriage” world.

VI. Fundamental Differences: Problems with Polygamist Challenges to Bigamy Bans

Even in a Post-“Traditional Marriage” World


36/56

36

While a major victory for polygamists, decriminalization of religious cohabitation in

Utah makes up only part of Rick Santorum’s 2003 prediction that Lawrence would inevitably

lead to a “right to polygamy” and a “right to bigamy.”273 That other shoe, legal recognition of

polygamous unions or the decriminalization of bigamy, is a bridge that could still be crossed. As

Jonathan Turley pointed out in the media coverage leading up to Brown, polygamists were in the

same place that the LGBTQ community was in prior to Lawrence —merely seeking acceptance

of their lifestyle choices in the form of decriminalization.274 While polygamy does not have near

the public approval that same-sex relationships had in 2003 prior to Lawrence, in the wake of

Brown, Windsor and the other same-sex marriage cases, polygamists may soon be in a position

to argue that state bigamy bans violate their rights under not only the Free Exercise Clause, but

the Equal Protection and Due Process Clauses. One commentator summed it up this way: “[a]s

the Lawrence decision helped advance a libertarian vision of sexuality, so too does the

Waddoups ruling help further an increasingly libertarian vision of marriage.”275 This Section

analyzes each of the above Constitutional challenges in turn in light of changing societal

conditions.

A. Problems with Free Exercise Challenges to Bigamy Laws Even in a Post-“Traditional Marriage” World

One potential challenge to state bigamy bans are arguments under the Free Exercise

Clause. However, Brown’s favorable outcome for polygamists on the merits of its Free Exercise

challenge is unlikely to repeat itself in the context of a challenge against bigamy laws generally.

Two major roadblocks all but ensure this—first, the problem that Reynolds, even after Brown, is

still binding (and arguably should continue to be binding) on the question of the government’s

ability to outlaw bigamy. Second, generic bigamy laws, unlike Utah’s law that outlawed


37/56

37

religious cohabitation in addition to bigamy, are generally applicable, neutral laws that do not

target specific religious practice.

i. Reynolds Remains Binding Precedent on the Question of Bigamy

While Judge Waddoups and others have criticized the Reynolds rationale, the Supreme

Court has not explicitly overruled it. Moreover, despite the racist rhetoric in Reynolds, the

United States Supreme Court has continually cited the case as representative of the belief

action/dichotomy of modern Free Exercise jurisprudence.276 Presumably then, the case’s major

holding—that governments may outlaw bigamy—remains intact.277

Furthermore, even if the court has opportunity to overturn Reynolds, it arguably should

remain binding precedent even in light of its racist and overly moralistic rationale. Critics of the

decision are quick to point out the problems with the case’s rationale, but many of the case’s

conclusions are as compelling today as they were the day Reynolds was decided. For example,

the belief/action dichotomy in Free Exercise jurisprudence—which began with Reynolds —is still

alive and well, and is the historical lynchpin in the post- Employment Division Free Exercise

era.278 This important principle prevents a citizen from “becoming a law unto himself.”279

Assuming that Reynolds’ ultimate conclusion is correct, overturning the entire case

because the holding was arrived at through a problematic rationale (at least when viewed through

a modern lens), seems like throwing the baby out with the bathwater. Moreover, were the Court

to overturn Reynolds, the seminal belief/action case, it may cast doubt on the continued vitality

of post- Employment Division Free Exercise jurisprudence, potentially creating a hairy situation

for the Court to resolve. Ultimately, Reynolds was decided correctly by modern Free Exercise

Clause standards even though the path the Court took to get there was more than a bit

problematic by modern social standards. In light of that, and based on the Court’s continued


38/56

38

citation to Reynolds, there is no indication that the Court will (or should) do anything but stand

by the principle of stare decisis and retain Reynolds as binding Free Exercise precedent.280

ii. Generic Bigamy Laws are Neutral, Generally Applicable Laws

To review, only laws that are targeted at a specific religious group are granted strict

scrutiny review under Employment Division and Hialeah for Free Exercise purposes.281 Utah’s

cohabitation prong that was challenged in Brown is a great example of a targeted law that was

applied only against religious cohabitants.282 On the other hand, religious adherents are not

granted any exemption to neutral, generally applicable laws under the Free Exercise Clause.283

Generic bigamy laws—laws that only criminalize the act of applying for an actual second

marriage license—are facially neutral laws.284 The purpose of bigamy laws is to punish a fraud

committed on one party to the marriage, not to stamp out religious conduct.285 Moreover,

general bigamy laws are neutrally applied even in states that have a history with polygamy like

Utah, which prosecutes true bigamists independent of the offender’s religious affiliation or lack

thereof.286 Therefore, challenges to generic bigamy laws under the Free Exercise Clause are

likely to be a non-starter even after Brown and even in light of the changed social climate

brought from the same-sex marriage movement.

C. Problems with Equal Protection Challenges to Bigamy Laws

The Court in DeBoer v. Snyder could decide that the Equal Protection Clause requires

some form of heightened scrutiny for laws that discriminate on the basis of a party’s sexual

orientation, making “sexual orientation” a suspect or quasi-suspect class.287

Surely, the

increased social acceptance for marriages outside the “traditional marriage” paradigm that would

result from such a holding would bode well for a future polygamist challenge to a state’s bigamy

ban. However, there is an important legal distinction between the LGBTQ community and


39/56

39

polygamists that might make a holding in DeBoer (or some later case) on Equal Protection

grounds of limited usefulness for polygamists.

Specifically, it’s difficult to envision how granting suspect or quasi-suspect class status

for “sexual orientation” equates to suspect or quasi-suspect class status for polygamists. The

general consensus is that homosexuality is an immutable, biological trait, and as such, deserves

heightened protection.288 Polygamy, on the other hand, is very much a sexual preference,

sometimes influenced by religious belief.289 Polygamists would likely get laughed out of court if

they argued that they, like gays and lesbians, were “born that way.” Truly, we were all “born

that way,” as every human is sexually attracted to a variety of people. The immutable, biological

trait of being attracted to more than one person is no more “suspect” or “quasi-suspect” for

polygamists than it is for anyone. In the words of one commentator: “[r]estricting a same-sex

couple’s right to marry denies them the ‘the right to marry’ entirely. Restricting a polygamist’s

right to marry to just one person still provides them ‘the right to marry.’”290

Alternatively, despite that definitional problem, it’s still possible that a court would

extend some form of heightened scrutiny due to polygamist’s status as a politically unpopular

minority group. However, this would be quite the departure from past grants of heightened

scrutiny that have been reserved for statuses based on immutable, biological traits (race, gender,

and potentially, sexual orientation).291 Even if a court does not explicitly extend some form of

heightened scrutiny to polygamists, it is not necessarily a death knell to an Equal Protection

Clause challenge. With the more searching “rational basis plus” review the court has applied in

the same-sex context these days, anything could happen.

D. Problems with Substantive Due Process Challenges to Bigamy Laws


40/56

40

By far the most helpful holding for polygamists in DeBoer (or a later case) would be a

holding on substantive due process grounds. By declaring same-sex marriage a “fundamental

right,” the court would be opening the door for polygamists to claim that laws banning bigamy

impinge on a fundamental right and should be reviewed using “strict scrutiny.”292 As discussed

above, in most cases, application of the “strict scrutiny” standard of review is “fatal” and

determinative.293 This outcome would therefore be ideal for polygamists.

One small hurdle would still remain—infringement on the fundamental right to marry

must be “significant” in order to qualify for strict scrutiny review.294 Under that lens, how a

court in the post-“traditional marriage” wo

multiplying love

Documents