Cohabitators are outlaws again, but Utah says it won’t go fishing.
US News
A three-judge federal appeals court panel on Monday handed a setback to the burgeoning polyamorous rights movement, reversing a lower court ruling that decriminalized polygamous cohabitation in Utah.
The case was brought by the five-spouse Brown family of “Sister Wives” reality TV fame after local authorities openly investigated them for violating a state law against multispouse living arrangements. The family intends to appeal the latest ruling, their attorney Jonathan Turley said in a statement.
The Browns are fundamentalist Mormons who argue the U.S. Constitution allows them to live according to the teachings of their faith. They fled Lehi, Utah, in January 2011 after a deputy Utah County attorney quipped the family “made it easier for us by admitting to felonies on national TV.”
In 2013, the family won a first-of-its-kind ruling from U.S. District Judge Clark Waddoups, who ruled the First Amendment protected the Browns from such a ban and that – in light of the 2003 Supreme Court decision shielding consensual same-sex sodomy from state laws – such a prohibition also violates the Constitution’s Due Process Clause.
The law challenged by the Browns says “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.” Waddoups ordered “or cohabits with another person” be deleted and narrowed the meaning of “purports to marry” but allowed a ban on multiple marriage licenses.
Like most other polygamists, Kody Brown only is legally married to his first wife, Meri, though he has children and lives with each of the four women. The family currently lives in Nevada.
On appeal, state officials argued the Browns had no right to sue, as the Utah County Attorney’s Office had adopted a policy mooting the case in 2012, after the lawsuit was filed but before Waddoup’s ruling. The prosecutor’s office policy allows for prosecution of bigamy only under two conditions: when someone remarries without dissolving their first marriage or when bigamous couples or unwedded cohabitators are “also engaged in some type of abuse, violence or fraud.”
Though Waddoups dismissed the policy as an attempt to avoid a ruling on the Browns’ claims, the appeals court judges found the policy did moot the case and overturned Waddoups’ ruling without consideration of the consitutional issues. …