Federal judge finds part of Utah’s polygamy ban unconstitutional

Posted on: 7:50 pm, December 13, 2013, by and , updated on: 09:28pm, December 13, 2013

SALT LAKE CITY – A federal court judge struck down a portion of Utah’s ban on polygamy.

In a 90-page opinion, U.S. District Court Judge Clark Waddoups found key parts of Utah’s anti-bigamy law to be unconstitutional, specifically the language that criminalized cohabitation.

“The court finds the cohabitation prong of the statute unconstitutional on numerous grounds and strikes it,” Waddoups wrote in the ruling issued late Friday.

The complete ruling is available for download as a PDF here: Brown summary judgment decision

The ruling came about after reality TV polygamist Kody Brown and his wives, Meri, Janelle, Christine and Robyn, sued the state of Utah in 2011, challenging the ban on polygamy. The family came under scrutiny from Utah County authorities after they appeared on the show “Sister Wives,” promoting their lifestyle.

The Browns argued that Utah’s anti-polygamy laws violated their right to privacy and their right to freely practice their religion.

“With this decision, families like the Brown can now be both plural and legal in the state of Utah,” Turley said in a post on his website.

Judge Waddoups’ ruling did not completely overturn Utah’s ban on polygamy. It did, however, narrow it to only the simplest definition of bigamy: multiple marriage licenses.

In his ruling, Waddoups wrote that the statute remained 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.”

Brown issued a statement through his attorney, saying:

The entire Brown family is humbled and grateful for this historical ruling from the court today. Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. 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.

The Utah Attorney General’s Office said late Friday it had not seen the ruling and could not comment on it until attorneys had a chance to analyze it. They could appeal it to the 10th U.S. Circuit Court of Appeals in Denver, which could ultimately end up before the U.S. Supreme Court — which has not considered a polygamy case since the 1800s.

The ruling was hailed by fundamentalist Mormons across the state, who sought to decriminalize their families.

“I never thought I would live to see this day,” said Willie Jessop, an ex-FLDS member who once served as a bodyguard to imprisoned polygamist leader Warren Jeffs.

Jessop, who broke from the FLDS Church after Jeffs was convicted, said it was his hope that decriminalizing the practice would open the doors for people to freely report abuses and underage marriages.

It was a sentiment echoed by former child bride Elissa Wall, who was married at 14 in a ceremony presided over by Jeffs.

“My hope is that this decision may begin to lift the veil of secrecy within polygamist communities, bringing polygamy into the light and providing opportunities to accurately address issues and abuses that are associated with this practice,” she told FOX 13.

Wall recently spoke out in favor of decriminalizing polygamy to prevent abuse.

“We are ecstatic,” Joe Darger and his wives, Vicki, Alina, and Valerie, said in a statement posted on Twitter. “We are no longer considered felons in the state of Utah.”

There are an estimated 30,000 people who subscribe to the belief system of fundamentalist Mormonism, which includes the practice of polygamy. The Church of Jesus Christ of Latter-day Saints no longer practices polygamy and excommunicates those who do.

18 comments

  • How ironic, ti was the Federal Government that required Utah to have the ban in order to become a state. LMBO

  • sandy says:

    While if we want to legalize polygamy what about polyandry also let’s not get sexist about it.

  • Ashby Boyle says:

    This result has been a sleeping fact of our constitutional law ever since the Yoder decision of the ’70s, as was pointed out then in a concurring opinion. Yoder abolished the belief/action distinction articulated by the US Supreme Court back in the anti-religion holding of Reynolds.
    Its not really about polygamy; this at first blush strikes a blow for religious autonomy. Somewhere in the Spirit World I imagine James Madison celebrating tonight.

  • Kevin Moody says:

    To say nothing of Reynolds:) The cohabitation law was unconstitutional on its face and only allowed to strike at the “horror” of Mormonism and the theocracy of Utah.

  • I don’t know how it COULD be constitutional, if it’s an arrangement between consenting adults.

    As for ripping off the welfare system: That’s the fault of the system. Government shouldn’t be involved in marriage in any way.

  • Ostur says:

    Utah was about the only state that did make mere cohabitation criminal polygamy, this just gets them in line with other states that require multiple registrations of spouses. As spousal relationship is a promise of complete mutual commitment between two adults – do it once its a marriage, do it twice its fraud.

    There are still adultery and fornication laws on the books in Utah so any worldly multiple wives or husbands situation will still make the person a criminal.

  • The state just wants license fees . So forget all that and just simply ‘shack up’

  • Jay Beswick says:

    Privacy Rights vs a legal union are side issues. Reality tells us that those who live the PRINCIPLE, abuse public and social welfare. Kody Brown does not define his use of public welfare, nor disclose the income that each TV episode paid him to exploit the practice. A guy like Warren Jeffs or Winston Blackmore both with 100 children exploit social welfare becoming a tax burden. Jack Cooke now deceased with the FLDS had 56 children. Merrell Jessop now in prison had his wives using free hospital care! One only needs to track the money which is not personal, but fraud to identify the cons of the practice. Decriminalizing will not increase reporting abuse. If you could separate religious vs cohabitation, there is more abuse under religion, as it uses a sort of hell as its intimidation to keep its members in line.

    None of these groups were invisible to activist, it was government that refused to act on reported abuses. Can you imagine what legalizing might do? A migration to Utah, followed by a state going bankrupt.

    • Ed Kociela says:

      Jay, you nailed it right on the head. This is an abomination. Now that these groups can have all the pretend marriages they wish the incidence of abuse — sexual, physical, governmental — will skyrocket.

      • fincenmib says:

        How true! Long time no hear, are you still with the local to Southern Utah newspaper? I made Warren’s hate list in his diary along with Flora Jessop. I knew Jack Cooke and heard first hand his side of the sexual abuse that sent him to prison. Winston Blackmore attended the March 2005 summit from my invitation, he and I spar’d a few years by email. I have spent the night in CC with 2 of the court appointed trustee’s you can guess which ones. I have worked with LeBaron & Allred Break-aways, even a few Kingston’s. People or critics can say what they want, but under religion nothing will change much. What they say and what they do has always been different. Nice to see your name in this mix!

  • This can only be news in Utah. I would be interested in the Judges religious affiliation. And an unbiased Doctors report of the Judges mental health. Also an investigation into his earnings… maybe under the table income obtained from uh… religiously biased groups.

  • Seems like a good ruling. And people should not freak out about it. Here a respected anthropologist explains how polygamy can be quite empowering for women in the USA today: http://www.youtube.com/watch?v=erTwhTCAAss&feature=youtu.be

  • Jay Beswick says:

    It plays havoc on insurance companies and on taxpayers. It opens the door as the Texas ruling did on marriage variations. The thinking of NAMBLA will return, you can’t discriminate! Winston Blackmore was FLDS til Warren ousted him. With Jane he had 26 wives, 5 left him. He used the Canada law to stay married to 21, while having 2 wives marry each other under same sex marriages. Are you following me??? If 21 can be married to Winston, then 2 of his wives marry each other at the same time, then why not one of his wives also marry another man? If any thing goes, where does socirty draw the line?

    Taxes pay for these disfunctional choices. Then what about spousal support when one leaves? Inheretance? Child support? Health insurance? Visitation by which spouses? I had 3 daughters and I found it difficult splitting my time with each while making a living. Winston has over 100 kids, is he more than a sperm donor? or does the $50,000 a month he gets from Canada government support his life choices? We can have 50 people in the wagon, with 5 people pulling the wagon, is that fair?

    Then because girls are better breeders, why not only adopt female children? The FLDS do! Median age was what, about 12 or use to be. One has to be brain dead, if you can’t process the math.

  • Archer Mason says:

    As a 24-year-old son of polygamy raised in an independent fundamentalist Mormon family in Southern Utah, I cannot begin to describe the weight that has been lifted off the shoulders of those I know that this ruling affects. I, admittedly, cried. We never thought we’d see this in our lifetime. It’s good for us (the happy polygs.) It’s good for those being abused, as the article states, they may not fear coming forward so much anymore. We deserve peace and freedom to love and live how we choose, so long as we are harming no one. This ruling has upheld our constitutional rights. I myself believe that as time moves forward, the criminal stigma attached to plural marriage will dissipate, and we will be able to live our lives more openly.
    What a blessing– Thank you Clark Waddoups.

  • Sandy says:

    When you breed little girls to share their men because God wants that it’s unfair for them to make a conscious choice. The God of my understanding would not expect that out of anyone. God is justice, fairness, love and peace.

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