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.
Since 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 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, 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.]