SALT LAKE CITY – A federal judge appointed by George W. Bush has struck down key parts of Utah’s polygamy ban as unconstitutional, while leaving intact the state prohibition against bigamy.
As previously reported, Kody Brown of the TLC reality show Sister Wives, along with his four “wives,” Meri, Janelle, Christine and Robyn, filed suit in 2011 to challenge parts of the law that they claimed violated their privacy rights.
The five had been under investigation by state officials for violating the statute, and moved to Nevada to escape punishment. Brown is married to Meri, and considers his relationship with the other three women as being “spiritual unions.”
While all states prohibit bigamy–entering into multiple marriages–Utah also bans residents from living together in a polygamous relationship. Brown, a member of the Apostolic United Brethren Church, a fundamentalist Mormon sect, contended that such a prohibition violates his freedom of religion.
Washington, D.C.-based attorney Jonathan Turley represented Brown in court, who has fathered 17 children with the four women.
“Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults,” he told reporters. “There is no spectrum of private consensual relations—there is just a right of privacy that protects all people so long as they do not harm others.”
On Friday, Judge Clark Waddoups, nominated by then-president George W. Bush sided with Brown in determining that Utah’s prohibition on polygamist cohabitation violated the First and Fourteenth Amendments, and interfered with the right to privacy. He pointed to the 2003 decision in Lawrence v. Texas, which decriminalized sodomy in the nation, and differentiated unmarried sexual conduct from criminal bigamy.
“Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence,” he wrote. “The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the statute, ‘it is, of course, the state that has equated private sexual conduct with marriage.’”
Therefore, because Brown does not claim to be married to all of the women–nor does the state ban cohabitation in other relationships—Waddoups threw out the cohabitation section of the statute, while upholding the prohibition on bigamy.
“The court finds the cohabitation prong of the statute unconstitutional on numerous grounds and strikes it,” he concluded. “As a result, and to save the statute, the court adopts the interpretation of ‘marry’ and ‘purports to marry,’ … thus allowing the statute to remain in force as prohibiting bigamy in the literal sense…”
Brown applauded the judge’s ruling on Friday, releasing a statement that called for tolerance of his polygamous lifestyle.
“While we know that many people do not approve of plural families, it is our family and based on our beliefs,” he wrote. “Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs.”
But some have expressed concern over the continued demoralization of the American family in the courts.
“This is what happens when marriage becomes about the emotional and sexual wants of adults, divorced from the needs of children for a mother and a father committed to each other for life,” Russell Moore, president of the Southern Baptist Ethics and Religious Liberty Commission, told reporters following the decision. “Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children. Sadly, when marriage is elastic enough to mean anything, in due time it comes to mean nothing.”
Photo: Sister Wives/Facebook