A federal judge ruled late Friday that a key section of Utah law criminalizing polygamy is unconstitutional, granting multi-spouse families the right to live together without facing arrest, so long as they do not acquire multiple marriage licenses.
U.S. District Court Judge Clark Waddoups ruled Utah's criminalization of cohabitation violated the due process and First Amendment religious freedom rights of the Brown family, which includes husband Kody Brown and his four wives.
The Browns are fundamentalist Mormons and the stars of TLC show "Sister Wives." They chose to leave their home in Lehi, Utah, after local police and prosecutors launched an investigation into their lifestyle in 2010. Before moving to Las Vegas, a deputy Utah County attorney said, "The Browns have definitely made it easier for us by admitting to felonies on national TV."
The Brown family's attorney, George Washington University law professor Jonathan Turley, praised the ruling as a landmark in the legal history of individual rights.
"It took singular courage to be the first court not only in this country but any recorded decision to strike down the criminalization of polygamy," Turley wrote on his blog. "In doing so, Judge Waddoups stood against prejudice and considerable hostility toward plural families. In a single ruling, he re-affirmed the wisdom of our framers in creating a court with life tenure and independence under our constitutional system."
Turley said the Brown family "secured for plural families the promise of privacy recognized for same-sex couples in Lawrence v. Texas."
As with same-sex couples before that 2003 ruling, he said, "Plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization."
Kody Brown said his family was "humbled and grateful for this historical ruling from the court."
"While we know that many people do not approve of plural families, it is our family and based on our beliefs," Brown said in a statement released by Turley. "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."
In their television show, currently in its fourth season, the adults in the Brown family express satisfaction with the acceptance they receive in Las Vegas. Some of their 17 children, however, would like to return to Utah.
The Utah Office of the Attorney General has not decided if it will challenge the decision. "Our attorneys will review the ruling to determine whether or not to appeal," spokesman Paul Murphy said.
Polygamy was a significant tenant of the early Mormon church. Church founders Joseph Smith and Brigham Young each had scores of wives in the mid-1800s. The Church of Jesus Christ of Latter-Day Saints, however, discontinued the practice in 1890 and completely banned it in 1904. In 1894 Congress approved the Enabling Act allowing for Utah's statehood, which required the prospective state to first ban polygamist marriage.
The fundamentalist Mormon movement believes the mainstream church erred and continues to practice polygamy as part of their religion. The Browns belong to the Apostolic United Brethren church, which is relatively open compared to other groups. Members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, led by imprisoned child rapist Warren Jeffs, live in secluded communities, for example.
In his decision, Waddoups noted Utah no longer recognizes common law marriage, meaning, "As a constitutional matter, the religious cohabitation at issue becomes indistinguishable from simple adulterous cohabitation that is widespread and not prosecuted."
In a particularly strident passage, Waddoups wrote: "The court also feels compelled to identify an absurdity in the state's position against religious cohabitation in this context of trying to 'protect' the institution of marriage by criminalizing religious cohabitation. At a time of much discussion in society about problems arising from the decline in rates of people marrying or the increased age at which people decide to marry, the statute penalizes people for making a firm marriage-like commitment to each other, even though they know that their religious cohabitation does not result in state-sanctioned or recognized marriages."