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Portion of anti-polygamy law struck down by federal courtcomment (0)

January 2, 2014

A federal court has struck down a vital section of Utah’s anti-polygamy law, lending credence to arguments by defenders of marriage that the reshaping of the institution would not end with legalizing same-sex “unions.”

Clark Waddoups, a judge in the U.S. District Court of Utah, invalidated a portion of the state law that prohibits bigamy, essentially decriminalizing polygamy in the process. In a 91-page opinion released Dec. 13, the federal judge ruled as unconstitutional a section prohibiting a married person from cohabiting with someone who is not his or her spouse.

In effect, Waddoups legalized polygamy as it is practiced in Utah primarily by members of fundamentalist spinoffs of the Mormon religion. Such polygamous households typically do not have multiple marriage licenses but treat all relationships between a man and the women with whom he lives as marriages. Waddoups ruled the cohabitation section of Utah’s anti-polygamy law violated the free religious exercise clause of the United States Constitution’s First Amendment and the due process clause of the 14th Amendment.

The ruling came in a lawsuit filed by Kody Brown and his four wives, who are featured in the television reality show “Sister Wives” on TLC. Brown and only one of his wives have a marriage license. They are members of the Apostolic United Brethren, which believes polygamy is “a core religious practice,” according to Waddoups’ opinion.

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, said in a statement released Dec. 14, “Sadly when marriage is elastic enough to mean anything, in due time it comes to mean nothing.

“This is what happens when marriage becomes about the emotional and sexual wants of adults,” Moore said. “Polygamy was outlawed in this country because it was demonstrated, again and again, to hurt women and children.”

The opinion also followed by less than six months the U.S. Supreme Court’s June ruling that struck down a section of a federal law defining marriage as only between a man and a woman. 

In that opinion, the justices said the 1996 Defense of Marriage Act violated “equal protection” under the Constitution by refusing to recognize gay “marriages.” 

Waddoups, in his ruling, took issue with a 1973 state law that says a “person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

In writing about what he called “religious cohabitation,” Waddoups upheld the “purports to marry another person” language while striking “cohabits with another person.” 

To save the law, Waddoups adopted a narrow interpretation of “purports to marry,” thereby allowing it “to remain in force as prohibiting bigamy in the literal sense — the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.”

Waddoups demonstrated a reliance on Lawrence v. Texas, a 2003 high court opinion that struck down state laws barring homosexual conduct. 

Waddoups quoted the Lawrence ruling, which said, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” 

Some women who have left polygamous marriages in Utah criticized the decision, however.

“I don’t think there’s any good polygamy,” Kristyn Decker told The Salt Lake Tribune in a Dec. 15 article. Decker abandoned polygamy after 50 years in the Apostolic United Brethren.

The problems with polygamy include the fostering of abuse, especially of women and children, and coercion of women in polygamous communities, Decker said. Their salvation is based on their belief in polygamy, women are taught in such communities, and they face ouster from their families if they disagree, she told The Tribune.

The text of the ruling can be accessed at www.scribd.com/doc/191414121/Sister-Wives-Ruling.


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