U.S. Court Ruling Supports Polyamorous Families in Utah

Heather Greene —  August 31, 2014 — 16 Comments

On August 27, a U.S. District Court Judge finalized a ruling stating that Utah’s ban on cohabitation was unconstitutional. This decision is the latest chapter in an on-going legal battle between Utah state officials and the Brown Family, stars of TLC’s reality show “Sister Wives.” 

The Brown family practices the Apostolic United Brethen faith, a type of Fundamentalist Momonism that supports plural marriage. Although polygamy was largely abandoned by the mainstream LDS Church in the 1890s, some Mormon churches have continued to allow the practice. These sects or people are typically referred to as Fundamentalist Mormons. Some are affiliated with churches and some are independents.

sister-wives-season-4Since the TLC show first aired, the Brown family has experienced a great deal of legal trouble due to their unconventional family structure. Police investigations began the day after the first show debuted in 2010.

Most states, including Utah, have laws governing aspects of marriage, sexual relations and habitation. These laws include the well-known definition of marriage as being between one man and one woman. Additionally there are limits and restrictions on cohabitation, especially when intimacy and children are involved.

In 2011, the Brown Family decided to challenge Utah’s family laws. Utah Code Title 76, Chapter 7, Section 101 states:

Bigamy: (1) 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. (2) Bigamy is a felony of the third degree. (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

After several years in the courts, Brown vs. Buhman landed in the U.S. District Court of Utah before Judge Clark Waddoups. In December 2013, Judge Waddoups ruled that the state’s ban on cohabitation was unconstitutional. He said:

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)

The ruling wasn’t finalized until this past Wednesday when Judge Waddoup added that, in the early investigations, county officials had violated the family’s first amendment rights. As a result the Judge has ordered the state to pay all attorney’s fees and other associated legal costs incurred by the family. In a blog post, the Brown family attorney, Jonathan Turley, wrote:

This [last] count sought to establish that state officials, and particularly Mr. Buhman, acted to deny protected constitutional rights ranging from free speech to free exercise to equal protection….[Judge Waddoup’s] decision in this case required a singular act of courage and principle as the first court to strike down the criminalization of polygamy. In doing so, Judge Waddoups reaffirmed the independence of our courts and stood against open prejudice and hostility toward plural families.

While some reports say that Utah has officially legalized polygamy, it actually has not. The December ruling only removed the ban on cohabitation. Bigamy, or more one legal marriage, is still prohibited by Utah code 76-7-101. In his ruling, Judge Waddoup made that distinction very clear.

Regardless, the court’s decision is still considered historic. After Wed, only three states now criminalize cohabitation of any kind. These states include: Michigan, Mississippi, Virginia and Florida. In addition, the final portion of the court’s decision affirms the constitutional right of plural families to exist guided by their own religious principles.

In recent years, there has been an increase in attention and support for non-conventional family structures. This is partly due to the marriage equality movement as well as shows like “Sister Wives.” In an essay published in 2010, Morning Glory Zell predicted, “This whole polyamorous lifestyle is the avante-garde of the 21st century. Expanded families will become a pattern with wider acceptance as the monogamous nuclear family system breaks apart under the impact of serial divorces.”

Rev. Allyson  [Courtesy of White Winds]

Rev. Allyson [Courtesy of White Winds.com]

Rev. Allyson is a Wiccan Priestess and interfaith minister who also practices polyamory. She says, “I see the ruling as good, because it reinforces that which goes on between consenting adults behind closed doors is really no one’s business.” If a spiritual community or faith practice embraces polyamory or polygamy and there are no legal restrictions on cohabitation, than a plural marriage can be recognized spiritually without fear of legal ramifications.

There is a secondary social benefit to Utah’s ruling. As Rev. Allyson points out, “[The decision] also opens up the door to more women who are in abusive poly relationships, allowing them to come forward without the concern that they will end up in jail themselves.”

Michelle Mueller

Michelle Mueller

Michelle Mueller, a doctoral student at the Graduate Theological Union who is studying polygamy and polyamory, agrees. She says:

The decriminalization of polygamy also helps women who may be in abusive relationships. Women who are consensually polygamous but in an abusive relationship are unlikely to report abuse to police because they would risk prosecution as polygamists. Basically, the de-criminalizing of consensual polygamy between adults enables law enforcement to tend to actual problems like violence.

The removal of the cohabitation laws and the court’s ruling in favor of the Brown family’s religious rights are two small showings of legal support for non-nuclear families who live peacefully according their own private, religious principles. While plural families within Fundamental Mormonism might look or act different from those within a Pagan context, the secular laws create the same barriers and reinforce the same cultural stigmas in all cases. Therefore the Utah ruling helps everyone regardless of religious affiliation.

Rev. Allyson says, “All that said, as a minister, as a pagan, and as a polyamorous person, I feel that the world is slowly become more accepting. I don’t know that we’ll ever get to a place where poly marriage is acceptable, and I’m not overly concerned about it. What I’m most interested in seeing is acceptance of whatever intentional families people create.”

On Thursday, Utah Governor Gary Herbert told local press that he personally believes plural families are “not good policy or practice.” However, he added that the courts ruled as such because cohabitation laws are unenforceable. He advises anyone who dislikes the judge’s decision to make use of the democratic system and try to change it. To date, the Utah Attorney General has not announced whether he will appeal the case. 

[Correction: The original article stated that there are 3 states that still ban cohabitation: Michigan, Missouri and Florida. This list should have read: Michigan, Mississippi and Florida. Further research also reveals that Virginia belongs on this list.The state’s officials are currently discussing removing the ban.]

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Heather Greene

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Heather is a freelance writer and Pagan spirit living in the Deep South. She has served as Public Information Officer for Covenant of the Goddess and worked extensively with Lady Liberty League. Heather's work has been published in Circle Magazine and elsewhere. She has a masters degree in Film Theory, Criticism and History with a background in the performing and visual arts.
  • Tauri1

    FLorida’s ban on cohabitation is one of the reasons why I got married when I lived in FL. But with all the seniors down there, I’m sure there are many of them that are “cohabitating”. And really, if there are two people of the same gender, but not related to each other, living in a house, isn’t that technically cohabitating as well? What about students in college dorms? That’s technically “cohabitating” as well! Whole concept seems silly to me and just an archaic leftover from the time when it was automatically assumed everyone (except Jews of course) were Christian.

    • http://burningbrigid.com Kat O’Connor

      Yes, I was just going to point out that “cohabitation” is WAY too broad a term for it to be enforceable in anything approaching a fair or meaningful way. Anyone who lives together for financial rather than relational reasons — aka roommates — are ALSO cohabiting, which would lead to a glut of basically pointless cases clogging up the courts and police resources, at the expense of crimes where people are hurt. As an example, a few years out of college some friends of mine went in together on a house purchase — two of them were married to each other and the third was a friend who had no romantic involvement with the other two. Up until just now, under Utah law they’d be guilty of a felony, when all they were trying to do was give themselves a decent home / standard of living without breaking the bank.

      The only way around that would be to enforce the law inconsistently, which paves the way for all SORTS of abuses.

      Ultimately I think that preventing women from getting forced into coercive relationships is going to come down to a culture that doesn’t tolerate it, education of other options and women’s fundamental right to choose, along with a support system for women who are trying to get out — an improvement gained by this change in Utah’s law, as pointed out in the article. There are also laws that can be brought to bear in at least some cases of coercion — physical assault and sexual assault are already crimes. Emotional abuse is trickier, unfortunately.

      What we can’t do is force women to leave if they don’t want to, even if it’s coercive. We see that every day in non-plural relationships, too. Aside from interfering with her free will, it doesn’t work all that well. All we can do is be ready to support when they make the choice for themselves.

  • Dana Eilers

    For the reasons pointed out by Tauri1, this statute had problems. Essentially, I find it overly broad and vague on its face.

  • Don Joseph Thomas Bailey

    What happen to the division of “Church” and “State”?? Plus there are Other Culture/Religions that to this day have plural marriages. Just it does not conform to one path does not mean it is wrong.

  • Dantes

    I feel a bit confused about this issue.

    On one hand: Sure: let people do whatever they want at home as long as they are consensual.

    On the other hand, two questions:

    1) Is this issue really a Pagan issue?
    2) Where will this rulling take us?

    1) I understand that many Pagans, not least in the US develop a free-spirited lifestyle quite in touch with the Hippie subculture that got interwined with Paganism in the 60s and 70s but I ask: How many polyamorous Pagans are there? Are they a significant minority? A tiny minority? A majority? I understand many consider Paganism to be but one aspect of modern alternative lifestyles, and i also know that several modern and ancient cults are or have been centered around the concept of sexual promiscuity and/or liberation. However the ruling presented here concerns (primarily) a fundamentalist Mormon “family” and I would be inclined to think that there would be more Monotheists than Pagans to cheer is polygamy was decriminalized.

    which leads us to:

    2) Are we talking about Polyamory or Polygamy? Deep down, I can understand that individuals may wish to enter amorous relationship with more than one individual and as long as everyone is okay with it, I’m cool with it. However I do believe that those who will take advantage of the present ruling won’t only be free-spirited all-loving Deadheads. We are already seeing this with this Mormon issue which can be summed rather easily: One man using his (monotheistic) religion in order to fuck multiple women and geting away with it.

    I personally do not condone Mormon religion, lifestyle or worldview (especially not worldview), and this extremist version is all the worse. I guess most people visiting the Wild Hunt would agree with me. So let’s think again, if Polygamy gets decriminalized, what’s going to happen? More Freedom? Yes, kinda, but also more Patriarchy, and not the kind that whistle at you in the street, but the kind that tells you it’s not only okay, but a sacred duty for a “husband” to enter assymetrical relationships.

    Think also about other religions, Islam for exemple: Would you cheer if suddently it was okay for any Iron-Age Wahhabi devout to get a dozen wives? I know, I am using stereotypes and not all Muslim countries and sect allow such “unions” and even in cush countries the practice is not that frequent. But still, who could say that, in the present situation, permitting polgamy would create more good than bad? Sure, it would be easier for a couple open-winded, free-loving people (but how much? Are there any statistics out there?) but it would only worsen the situation for women from the kind of conservative religious bakgrounds that allow or are “tolerant” of this kind of “unions”. I don’t want that to happen in Europe, and I guess not that many people would like to see that happen in the New World either.

    Let’s face it: decriminalizing Polygamy would just mean that more women would get screwed over. Literally and figuratively. Polyandry is a neat concept but when you see that, of the societies that allow Polygamy, almost all of them ban full Polygamy (where women would have the right to take more than one husband). In practice, Polygamy still is a way for men to exert control over women. And it’s just not okay.

    Also, one last point is that, while i am personally okay with people having adventurous sex-lives, I still am unsure about the idea of polyamorous famillies. I know it’s none of my buisness, but to me the idea of kids growing up in such households looks weird to me. But well, maybe i’m wrong, but I would like to have some data, or at least some kind of a public debate about this issue because, just like most people, I am really not familliar about it.

    Also,I personally support gay marriage and I think gay families should be able to raise kids, but this issue, for exemple, is still quite a contentious issue for many, both in Europe and in the US (I don’t include the erst of the world for obvious reasons…), don’t you think that fighting for polyamorous rights is maybe a bit…premature? Okay, I might sound like a fox news anchorman, but just to give you an exemple: When France legalized gay marriage, milions of people took the streets in protest. One “argument” they had, was that allowing the “destruction” of “traditonnal” familly (words I find ridiculous) would lead to a slippery slope where polygamy, pedophilia and other would become common. I know such arguments are ridiculous, but one needs to be a bit diplomatic when touching such sensible issues.

    That was my two cents, sorry if I tend to write super long comments and if I offense anyone. I just felt like reacting!

    Plus, good piece Heather, keep up the good work!

    • Baruch Dreamstalker

      Dantes, to your first point: I see more of this trope that Pagans developed sex-positivity, with attendant stuff like polyamory, only because our emergence coincided with the hippy-dippy Sixties. As a veteran of the Sixties I’d like to look deeper. Sex-positivity in general, and polyamory and gay rights in particular, are a profound rejection of some very basic One Male God patriarchy. It weaves perfectly consistently with the Goddess, polytheism, Nature-as-originally-sacred, and other rejections of patriarchal monotheism. Perhaps one man, one woman will turn out to be the preferred format for most heterosexuals, but (a) if so, let’s let it arise naturally, not enforce it doctrinally; and (b) “most” is a far cry from “all.”Your second point falls into the category of the “parade of horribles” response to something new, most currently gay marriage, like “suppose I want to marry my sister or my dog.” I say with all the gentleness I can command: You have said little of substance here. It is not persuasive of someone who is already tended to the opposite opinion.You do touch on something that I regard as very serious, and that is how children in polyamorous arrangements are cared for. But criminalizing polyamory is not going to solve that.

    • Charles Cosimano

      Looks up to see what blog I’m reading. Nope, not Rod’s. Had me confused for a bit.

      If a Wahabist is crazy enough to want a dozen wives and everyone is fat and happy, I don’t care as long as he doesn’t strap bombs to them and turn them loose on the local grocery store. It’s their life, their beliefs and if they don’t endanger me I have no say in the matter.

    • Dantes

      For Charles,

      This is a very Liberal American point of view I must say…

      In
      my opinion, the State (or states) should be responsible to limit the
      plight of the most vulnerable in our society. I would think that
      limiting harmful patriarchal structures like actual polygny would help,
      but it’s just my point of view. If someone is threatened and oppressed, I
      feel as concerned as if I was personally attacked.

      For Baruch,

      I
      am sorry if you took my second point badly. Again, I don’t feel that
      way at all, even though I can’t help it, I find that Polygamy can lead
      to dangerous excess and that many mainstream people would actually start
      using such (despicable according to me) arguments such as the “suppose I
      want to marry my sister or my dog.” you just noted.

      Still no replies regarding how feminists might think about this issue. I would like some input though!

      • Baruch Dreamstalker

        Being a feminist myself I’ll try to address your final point. I think you’d find feminists split, with some regarding any polyamorous arrangement as exploitative of women, whilst others regard the same thing as a venue for women to find their own sexual expression. This division goes back to the 1970s.

        • Dantes

          Thanks!

          Btw, would you have any links towards articles or such that discuss this issue further? In a Pagan context I mean, I would not mind hearing more voices.

      • Franklin_Evans

        Dantes, you are driving an important discussion here. My comment is meant to be constructive, with no crticisms implied or intended.

        In recent discussions of this topic, I’ve found a very large number of people incapable of rationally distinguishing between a custom of marriage (defined or informed by a belief system or other explicit morality) and the legal construct of “marriage”. Currently (and forever in the US, I hope) the law and only the law is the subject of the debate. The Utah case, for me, clarifies a law that stepped over that line and imposed a moral veneer.

        With that, I suggest a semantic distinction: polyamory is about the relationships amongst the people so involved, polygamy is about the legal construct of marriage and its consequences. I hope, at some point, that we can get away from both poly- words and use “plural” instead: plural relationships (I’m involved with people rather than one person) and plural marriages (three or more contracting to the legal construct).

        It comes down to a growing “culture of consent”. It easily answers your more negative “what if” questions and scenarios by pointing to the harm it does in specific situations. The custom (or law) itself is not to blame. There are going to be abusers and criminals no matter what. Our focus should be on the rights of their victims, supporting their self-defense or just plain escape rather than blaming a system that really does work for the vast majority of people.

        One thing: customary polygyny is not so a man can fuck two or more women and get away with it. This implies a false equivalence to “swingers” that should never be accepted in this particular topic area. It’s part of a belief system and culture. It can be abused, but is not by definition the source of the abuse. Just find some Mormon women willing to talk about it. The vast majority of them are not enslaved to their men, far from it.

  • ChristopherBlackwell

    What people don’t relayed is that you can get the other one woman with several husbands use as in little country called Bhutan north of India. Also the possibility of various bi sexual relationships and various gay relationships. I admit it would seem like a lot of possible work to me, but if others make it work no problem.

  • Jason

    There are also cohabitation statutes in Mississippi. The author failed to mention those. https://law.resource.org/pub/us/code/ms/ms.xml.2010/2010/title-97/29/97-29-1/index.html

  • ELNIGMA

    Aren’t most of these Mormon poly compounds run by fundamentalist, constrained, women oppressing creeps?
    FYI group that follows that description has nothing to do with Poly Paganism.

    How does Mueller expect to stop children being groomed by pedophiles (also to perpetuate pedophilia) in the FLDS and the like?
    http://www.foxnews.com/story/2008/04/09/court-documents-show-polygamist-sect-married-girls-at-puberty/ (article by AP)

    Rev. Allyson points out, “[The decision] also opens up the door to more women who are in abusive poly relationships, allowing them to come forward without the concern that they will end up in jail themselves.”
    I’m going to hazard many of the police might want the pedophiles and the DV abusers in jail, not their victims. I don’t know about the law aspects, but I personally don’t want to open the door for rapists and pedophiles to get away.

    • NoBodE

      First off, pedophiles already have the perfect hiding place in “conventional” (one man, one woman) marriages.Poly marriages are not going to give them a new venue.They will groom their victims from the same places they do now. As for the police wanting to see abusers locked up, you can’t prove that by me.

      • ELNIGMA

        NoBodE –

        First, I say this again – Mormon polygamist compounds or Rotherham Muslims, any group using coercion on children to be used by their adults that way – with religion as their excuse – have nothing in common with Poly Paganism.

        Second, the laws make it a little harder for underage strangers to go marry. Outside of compounds for “marriage” where parents not only grant permission, but generally they’ve permitted their children raped for years in advance of their legal ages, and do them internally of their group – there’s a barrier.

        http://www.usmarriagelaws.com/search/united_states/teen_marriage_laws/

        Where is it usually the victims arrested for DV?
        If you point out usually nothing happens, I’d agree with that, but then the worry about victims being mistakenly arrested is even weaker.
        I’m not claiming any police perfection – both the Rotherham situation and the situation with the FDLS show that local governments can be twisted to assist giving local control of powerful religions over their members or ex-members, so outside forces are required.

        http://fox13now.com/2014/03/21/flds-towns-lose-multi-million-dollar-discrimination-lawsuit/

        http://www.breitbart.com/Breitbart-London/2014/08/27/Rotherham-1400-kids-groomed-drugged-and-raped-by-multicultural-sensitivity

        But again, all this has nothing to do with Pagans. My reaction was seeing the picture above and “why are Mormon polygamists getting promoted ?”