SALT LAKE CITY — A federal judge appointed by George W. Bush has issued his final order striking down key parts of Utah’s ban on polygamous cohabitation 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.” He has fathered 17 children with his four lovers.
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.
“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.”
In December, 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 premarital or adulterous relationships—Waddoups threw out the cohabitation section of the statute, while upholding the prohibition on bigamy.
On Wednesday, Waddoups issued his final ruling in the matter, striking the law and ordering the state to pay Brown’s attorney’s fees surrounding the lawsuit.
“It is hereby ordered, adjudged and decreed that Utah Code Ann. § 76-7-101 (2013) is facially unconstitutional in that the phrase ‘or cohabits with another person’ is a violation of the Free Exercise Clause of the First Amendment to the United States Constitution and is without a rational basis under the Due Process Clause of the Fourteenth Amendment; to preserve the integrity of the Statute, as enacted by the Utah State Legislature, the Court hereby severs the phrase ‘or cohabits with another person’ from Utah Code § 76-7-101(1),” it read.
Brown and his wife, along with his three “spiritual wives,” issued a statement praising the determination.
“The entire Brown family is gratified and thankful for this final ruling from Judge Waddoups,” they wrote “The decision brings closure for our family and further reaffirms the right of all families to be free from government abuse. While we know that many people do not approve of plural families, it is our family and based on our religious beliefs.”
But some expressed deep concern over the slippery slope that our country is sliding down.
“Make no mistake, unless this euphemistic ‘marriage equality’ bomb is ultimately defused, the cornerstone institutions of natural marriage and the natural family will someday be unrecognizable,” stated Matt Barber, an attorney and Christian columnist. “A society that rejects the sanctity of marriage and family is a society not long for the world.”
Utah Attorney General Sean Reyes plans to file an appeal in the matter.