A federal judge finalized an earlier order striking part of Utah’s bigamy law on Wednesday. But don’t expect households of ‘sister wives’ to pop up in a neighborhood near you anytime soon.
The suit was brought by the members of a plural marriage featured on a TLC reality series.
The long legal battle over polygamy in Utah now appears headed to the appeals courts. Utah Attorney General Sean Reyes has said he would appeal the federal court ruling that found the law against polygamy was unconstitutional.
“Sister Wives” chronicles the lives of Kody, Meri, Janelle, Christine and Robyn Brown and their children. Utah County authorities began their investigation of the polygamous family after their show debuted.
Jonathan Turley, the attorney for the Brown family, encouraged Reyes to reconsider his plan to appeal.
Federal Judge Clark Waddoups in December struck the section of Utah’s bigamy statute that can be applied when someone “cohabits with another person” to whom they are not legally married. Utah law made such a union a felony punishable by up to five years in prison. Waddoups said the ban violated the First and 14th amendments to the Constitution.
Waddoups let stand the portion of the statute that prevents someone from having more than one active marriage license.
While some will no doubt be saying “I told you so” and linking this to the string of rulings allowing same-sex marriages in some states, this will probably not start a wave of polygamy lawsuits across the nation. Here’s why:
Unlike the rulings that allowed bi-racial marriages or same-sex marriages this one turns on the religious freedom of those who practice polygamy. Religious freedom has generally been used as a argument to prevent same-sex marriage and only recently has been cited in court by its proponents.
The Utah ruling speaks directly to the unique definition of cohabitation found in Utah’s law and stops there. According to this ruling bigamy remains illegal in Utah. It still impossible to get multiple marriage licenses for concurrent marriages.
Finally, the ruling says nothing about laws limiting sexual contact with minors nor does it change the legal definitions of consent. So even if the thinking of this ruling is replicated in other states, Warren Jeffs and his followers who have been jailed would still be in jail.
So, for now at least, this remains a question of how an internal battle within Mormonism will affect public policy. Utah Governor Gary Herbert said Thursday that allowing plural marriage is not good public policy.
Holly Welker wrote about this in Religion Despatches when the original ruling was made last December. She says that the ruling poses difficult challenges for Mormonism.
The situation involves a stunning role reversal. Early Latter-day Saints, including my ancestors, claimed that practicing polygamy was their religious right under the constitution. Informed otherwise by the United States, they walked over 1,200 miles after the assassination of Joseph Smith in 1844, from Nauvoo, Illinois, to Salt Lake City, Utah, to secure that and other freedoms—only to exchange them for Utah’s statehood 50 years later….
…Briefly put, the Edmunds-Tucker Act of 1887 disincorporated the church and gave the federal government the power to seize the church’s assets. To save those assets, and to aid Utah in its attempts to become a state, Wilford Woodruff, fourth president of the church, issued a Manifesto in 1890 declaring that thenceforth, Latter-day Saints would no longer enter into polygamous marriages. When Utah became a state in 1896, explicit bans on polygamy were included in its state constitution, at the behest of the same federal government that now says such bans violate citizens’ fundamental rights.
The real catch for the church is that although it renounced the practice of polygamy, it never renounced the doctrine: Section 132 of the Doctrine and Covenants, which lays out the “new and everlasting covenant,” or plural marriage, is still canonized as official LDS scripture….
…As a mainstream Mormon teen in the 1970s and 80s, I was regularly told that all Latter-day Saints would be required to practice polygamy in the hereafter, whether we liked it or not. (Most of the young women did not like the idea, but we were assured we’d learn to like it, given that it was how things worked in heaven, and heaven was perfect.) Mormon fundamentalists therefore have good reason for arguing that renouncing the practice of polygamy was a political calculation that the LDS church never would have made had it remained true to its principles.
Given the LDS church’s desire to influence the political and social mainstream, there’s little chance that it will once again sanction polygamy. It’s also unlikely that it will move very quickly to renounce the controversial doctrine, since doing so would be a tacit admission that Joseph Smith was guided by something other than divine inspiration in introducing it.