Judge finds some right to have “sister wives”

A federal judge in Salt Lake City, in a historic ruling denouncing deeply rooted hostility to a man having more than one wife as a religious duty, struck down on Friday a part of Utah’s 1973 anti-bigamy law. U.S. District Judge Clark Waddoups did not find a right for a man to marry more than one wife, but did find a constitutional right to “cohabit” with more than one woman as a religious practice. The ninety-one page ruling is here.

The ruling came in reaction to a challenge to the Utah law by Kody Brown, whose reality television show “Sister Wives” has brought new awareness of plural unions. Brown did not seek a legal right to marry more than one woman, but only the right to continue living with his several “wives” in an intimate relationship in the same household. The new ruling recognized such a right.

Because state officials in Utah have energetically fought Brown’s challenge, the issue seems sure to go on to the Tenth Circuit Court, and perhaps ultimately to the Supreme Court. The Supreme Court’s most famous ruling on plural unions was its 1879 decision in Reynolds v. U.S., declaring that a religious duty to engage in polygamy was not a defense to a federal law against bigamy.

Judge Waddoups suggested that the nearly 134-year-old decision has not survived modern development in the rights of religious minorities. Polygamy is most often associated in this country with Mormonism, although the church long ago outlawed it among its members. Brown is not a Mormon, but is an adherent of a religious sect that believes in polygamy as a religious obligation.

The right he found, Judge Waddoups declared, is a right to “religious cohabitation” — living together in an intimate relationship with multiple partners resembling a marriage, but not claiming to be married in a legal sense. It violates the Constitution’s guarantee of “substantive due process” to make such a relationship a crime, the judge declared.

Although those who practice this form of plural relationship may use the terminology of marriage and of husband and wife, the judge said that was merely a coincidence with the fact that the state uses such terms to describe legal marriage — which Utah still confines to one man and one woman.

Judge Waddoups drew some inspiration for his ruling from the Supreme Court’s 2003 decision in Lawrence v. Texas, declaring a constitutional right of adult same-sex couples to engage in private sexual conduct. But he said he could not rely directly and fully on that ruling, because the Tenth Circuit Court has given it a narrow reading.

Instead, the judge relied mainly upon a 1993 decision, Church of the Lukumi Bablu Aye v. Hialeah, a ruling that barred government interference with the religious rituals of animal sacrifice of the minority faith, Santeria. From that decision, Judge Waddoups found a requirement that the Utah law’s ban on religious cohabitation could not survive a “strict scrutiny” analysis.

While the state law’s ban on cohabitation with another person is formally neutral as written, the judge said it nevertheless is not neutral in its actual operation in banning religious cohabitation. That portion of the 1973 state law discriminates against cohabitation only when it is practiced by those who do so as a matter of religious faith, the judge said.

The state of Utah, the judge noted, does not prosecute those who engage in cohabitation as an act of adultery — that is, a married person having intimate relations with a person who is not the spouse. The state thus threatens prosecution only for those who cohabit as a religious activity, according to the judge.

The judge said the state has ample authority, under other criminal laws, to protect against crimes such as incest, sexual assault, and rape of a minor.

He thus struck down the cohabitation ban in the bigamy law, finding it intruded upon the free exercise of religion under the First Amendment. In addition, the judge also struck down that section of the law under other constitutional provisions.

Specifically, the judge struck this phrase from the law — “or cohabits with another person.”

That left in the law another phrase, also making it a crime when one ”purports to marry another person” outside of an existing marriage. To avoid constitutional problems with that phrase, Judge Waddoups interpreted that phrase to mean a reference “to an individual’s claim of entry into a legal union recognized by the state as marriage.”

So interpreted, the judge said, the phrase “does not encompass an individual’s entry into a religious union where there has been no attempt to elicit the state’s recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import.”

The decision thus left the 1973 law intact as a criminal ban on plural marriage, as such.