A Plurality Opinion: Sister Wives Wins

Let’s be clear up front: Judge Clark Waddoups of the District of Utah did not hold that anyone has a constitutional right to marry as many wives (or husbands, or cats, or chairs) as he wants.  Not even Kody Brown.  He did, however, hold in Brown v. Buhman that the Utah law criminalizing Brown’s living with a bunch of women in addition to his one lawfully wed wife was unconstitutional.

And for that Jonathan Turley, lead counsel for Brown, is rightfully proud. This was the goal from the outset.  Dave Koppel at Volokh Conspiracy provides the best synopsis of the lengthy opinion:

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “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.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

Does this change everything? Frankly, it’s unlikely that it changes much of anything outside of Utah, due to its peculiarly worded law and local inclination toward estrogen heavy households.

The opinion, weighing in at 91 pages, is sufficiently laden with discussion to make a lawprof wince.

I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23).  More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point.  It’s definitely different.

The rationale for the limited holding, however, doesn’t seem all that hard to state despite the voluminous (and, per Orin Kerr, pointless) discussion.

First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion.  It is a phrase in the statute that has been used to target religious minorities that are polygamists,  the judge reasons.  The  phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny.

One down. Judge Waddoups, using the Utah Supreme Court’s statutory interpretation of “marry” to mean both lawfully married as well as non-state sanctioned marriage, deals with the “purports to marry” prong:

In other words, as reconstructed by the court, people who are married by the state already can’t get married a second time.  But people who are already legally married are allowed to live with other people as if they are married to those other people, and to hold themselves out as being married to those other people, as long as they do not try to get married to those other people.  At least, that’s what I think the court is saying.  This isn’t an easy opinion to decipher.

While the reasoning may be fuzzy, the result isn’t. As long as Kody Brown is married, via a state-sanctioned marriage, to only one person, he can live with as many other woman as are willing to join the sisterhood without being a criminal.  Whether this is a choice anyone else would make isn’t relevant, and the decision neither legitimizes polygamous (or polyandrous) marriages, nor marriages to sheep or inanimate objects.  It just keeps Brown from being prosecuted for his choice.

The outcome of this case feeds into the fervor of those who feared, and argued vehemently, against gay marriage on the basis that it opens the door to undermine their Puritan vision of marriage, reducing the institution to a farce and starting the slide down the slippery slope to all manner of marriage evils.  Others, like me, shrug.  Live and let live, and what business does the state have in dictating the familial relationships people decide are best for them.

Gay marriage is no more likely to make me gay than the decriminalizing of polygamous marriage is likely to make me want more women in my bedroom. If it offends your religious beliefs, then don’t do it.  Nobody is forcing you to do anything you neither believe in nor desire.  That your vision of the social compact is colored by your bible (and the New Testament, I’m told, isn’t nearly as hostile toward polygamy as it is toward homosexuality), then your problem is the inability to distinguish between your religious views and secular government.  Sorry, kids, but the Ayatollah doesn’t rule this nation, not even if you really, really wish he did.

That Kody Brown, with the adult consent of the women in his life, has chosen a different path than others has no more to do with me than it does with you.  He just doesn’t want to go to prison for it, and if everybody living with him is cool with the arrangement, then it’s nobody’s business but theirs.

And the 10th Circuit’s, which hopefully won’t reverse the decision and harsh Turley’s big win.

7 thoughts on “A Plurality Opinion: Sister Wives Wins

  1. RKTlaw

    I’m sure I’m missing some complex point, but it seems a rather easy decision. When you read the statute, the prohibition on cohabitation leaps out at you as a red flag. Not sure I want to wade through 90 pages on what appears, at first blush, should have taken maybe 2 to 3 pages.

    1. SHG Post author

      It seems the controversial nature of the issue obscured what appears to be a fairly straightforward ruling. Lots of words that go nowhere, but he felt needed to be written to explain, to get to a point that seems obvious today but would have been scandalous 100 years ago.

  2. Chris Nystrom

    It may seem like a small thing to you, but if you had to worry about being persecuted with a felony because you felt it was more moral to refer to your women as wives instead of girlfriends. then this is huge. What this judgement does is de-criminalize polygamy. This is an historic change.

  3. Chris Nystrom

    BTW: Utah is not the only state that has this in their law. Texas also has an issue with cohabitation with a purported wife. I have to think this ruling will affect this.

    [Ed. Note: Link deleted per rules.]

  4. Alex Stalker

    This will put the court on the slippery slope to declaring other unconstitutional laws unconstitutional. Won’t someone please think of the children?

    1. Chris Nystrom

      What are you talking about? The Browns have wonderful children. If only others did as good a job of raising children.

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