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Utah federal judge strikes down key part of anti-polygamy law

Utah federal judge strikes down key part of anti-polygamy law

No polygamous marriages yet, but polygamous family relationships no longer illegal in Utah.

Yes, this all was predicted long ago, and led to charges of fear mongering and false slippery slopes.

The legalization of polygamy followed logically from the legal arguments against one man-one woman, as was predicted not just by me, but also by Professor Martha Nussbaum, one of the leading legal advocates for gay marriage, “Polygamy would have to be permitted.”

And it’s coming true in a small step, as a federal court in Utah, while not holding that polygamists were entitled to state-sanctioned civil marriage, nonetheless struck portions of Utah’s anti-polygamy laws banning polygamous “cohabitation” and polygamous “purported” marriages. The full decision is embedded at the bottom of the post.

Via Salt Lake Tribune, Federal judge declares Utah polygamy law unconstitutional (h/t Hot Air):

A U.S. District Court judge has sided with the polgyamous Brown family, ruling that key parts of Utah’s polygamy laws are unconstitutional.

Judge Clark Waddoups’ 91-page ruling, issued Friday, sets a new legal precedent in Utah, effectively decriminalizing polygamy.

It is the latest development in a lawsuit filed by the family of Kody Brown, who became famous while starring in cable TV channel TLC’s reality series “Sister Wives.” The show entered a fourth season at the end of the summer.

Waddoups’ ruling attacks the parts of Utah’s law making cohabitation illegal. In the introduction, Waddoups says the phrase “or cohabits with another person” is a violation of both the First and 14th amendments.

Waddoups later writes that while there is no “fundamental right” to practice polygamy, the issue really comes down to “religious cohabitation.” In the 1800s — when the mainstream LDS Churh still practiced polygamy — “religious cohabitation” in Utah could have actually resulted in “multiple purportedly legal marriages.” Today, however, simply living together doesn’t amount to being “married,” Waddoups writes.

“The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it,” Waddoups later writes.

In the ruling, the Court concluded as follows:

The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it. As a result, and to save the Statute, the court adopts the interpretation of “marry” and “purports to marry,” and the resulting narrowing construction of the Statute, offered by the dissent in State of Utah v. Holm, 2006 UT 31, ¶¶ 131-53, 137 P.3d 726, 758-66, thus allowing the Statute to remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.

The Court (at page 74) relied heavily on the U.S. Supreme Court’s ruling in Lawrence v. Texas (outlawing an anti-Sodomy law):

Consensual sexual privacy is the touchstone of the rational basis review analysis in this case, as in Lawrence. The court believes that Plaintiffs are correct in their argument that, in prohibiting cohabitation under the Statute, “it is, of course, the state that has equated private sexual conduct with marriage.” (Pls.’ Opp. to Def.’s Mot. Summ. J. 25 [Dkt. No. 72].) That is, in the case of people who have not even claimed to be legally married—are not making any claim to legal recognition of their unions or the network of laws surrounding the institution of marriage—“[i]t is the state that is treating the relationship as a form of marriage and prosecuting on that basis.” (Id.) As such, this, in effect, criminalizes “the private consensual relations of adults.” (Id.)

It was the ruling in Lawrence which, in his dissent, caused Justice Scalia to predict that it was a precursor to gay marriage:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

This is a significant development, since religious polygamous families do not necessarily seek civil marriage, but to live together in polygamous family relationships.

It’s not polygamous marriage yet, but a foot has been placed on the slippery slope.

Utah Sister Wives Polygamy Law Ruling


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Did they say anything about beastiality?

(Asking for a friend)

    TugboatPhil in reply to myiq2xu. | December 14, 2013 at 12:40 pm

    That will be the next move after incest is normalized. To accomplish that, the words “consenting” and “adult” will need to also have new legal definitions which are unclear and open-ended to mean anything that anyone wants them to be.

      And what is your guess as to what those “new” definitions will be. What might be the consequences of the “new” definitions. Do tell.

    NavyMustang in reply to myiq2xu. | December 14, 2013 at 12:41 pm

    Hey, didn’t I just see this question on HotAir? Man, your “friend” must REALLY want to know! ;-[)

    LOL I snorted when I saw that on hotair
    hot coffee through the nose HURTS

    There is no legitimate reason to exclude human-animal relationships. The work of PETA and others has established a human-animal equivalence. Thanks to the normalization of abortion, any freakish product of human-animal reproduction can be terminated, which means the fitness argument is invalidated or at least marginalized. I wonder if the issue of consent could be used to oppose this matrimony.

If our new limiting principle is “love”, then there can be no justification for any kind of polygamy restrictions. Whatever I personally feel about the practice, I don’t have any doubt these people have legitimate feelings for eachother.

Polygamy along with all the other plethora of marriage combinations (most likely very non-exclusive and non-monogamist) rise and fall on whether it is possible to justify the tradition institution on either moral or hayekian grounds. Windsor along with Perry tell us no justification will ever be acceptable.

Look forward to the time that the lie that homosexual marriage was ever about just transplanting the same exact institute but with homosexuals is as transparent of a lie as the obama “keep your plan”. For better or worse, the whole movement has been about elitist, feminist hatred of the tradition institution and nuclear family structure.

JimMtnViewCaUSA | December 14, 2013 at 11:44 am

They will reluctantly approve polygamy for Mormons but the actual motivation is to make society Muslim-friendly.

With the normalization of homosexual behavior, there are few behaviors which can be legitimately circumscribed. With the normalization of elective abortion, there are no behaviors which can be rejected. Apparently, a majority of people prefer a primitive state of existence, which is largely devoid of a rational basis. It seems that the future of humanity is determined by libertine dreams. I wonder if that majority is real or invented.

    Shane in reply to n.n. | December 14, 2013 at 2:11 pm

    Homosexual relations result in disgusting visuals for heterosexual men. Abortions result in dead fetus’ (potentially dead baby). How are those two things even remotely related?

What ever your feelings are about the underlying issues, the decision is sound and will survive a S.C. challenge.

Any comments about bestiality are no more than extreme views intended to invoke emotional responses. Bestiality is not between consenting adults, so those comments have no justification of even being an issue in this decision.

For what ever the issue, I implore you to be serious about this and really think about your comments. Comments about sliding down a slippery slope are just as self serving. Keep in mind that the order of things can just as easily go the other way and cause actions between you and your spouse to be illegal in the states eyes.

This decision is simply saying that what happens behind closed doors between CONSENTING ADULTS is not the states business and can not be criminalized by the state. The judge is not commenting on the extreme, he is talking about normal healthy relationships between people and stating that if there is no attempt to fraud the state with multiple marriage licenses. That it is not the states business how people want to live.

    Valerie in reply to starride. | December 14, 2013 at 12:27 pm

    I remember reading Roe v. Wade when it was first published, and reading also that the comments about the consequences of a grant of power to the Federal government to intervene in a decision. People said that there was no way that our government would ever compel abortion. That, of course, was before the Government of China did exactly that, and well before Obamacare, which has panels with the power to deny medical care for disapproved pregnancies.

    I remember the intense derision directed at Phyllis Schlafly for daring to suggest that the Equal Rights Amendment would eventually lead to boys in the girls’ bathrooms. There is a law, right now, in California that does exactly that, all the way down to elementary and middle school. All you have to do is say you are transgendered.

    Your expression of contempt is based on either ill will or deliberate naiveté.

      starride in reply to Valerie. | December 14, 2013 at 1:02 pm

      China is NOT the U.S.A. So that part of your comment is moot and deserves no response beyond what I have just said.

      I man against the ACA whole heartedly but no where does the ACA give the state the power to force abortions. It only forces companies to provide insurance for birth control. Having been to several countries where the government is heavily swayed by the church and seen the effects of not teaching or providing birth control and in some places outright banning birth control, I don’t disagree with the stance that birth control should be affordable and available to everyone.

      Using a California as a litmus test for Utah, is no different that using China for a litmus test for the U.S.A.

      Being that I never said you have to like the decision, only that it was the right decision based on the words in our constitution.

      Keep in mind that 90 years a go, states were passing laws about what is allowed between a husband and wife behind closed doors. Many states made it illegal to commit fellatio and cunnilingus. Many states made any form of sexual activity that could not directly end in pregnancy illegal. What side of the coin is better. The sate regulating what people can do in their bedroom behind closed doors or the state saying what you do in your bedroom is up to you and of no business of the states. Those are the issues in this decision and that is the two sides of the sword that can swing either way.

      Shane in reply to Valerie. | December 14, 2013 at 2:13 pm

      I missed the contempt part of the post could you quote it please.

    TugboatPhil in reply to starride. | December 14, 2013 at 12:44 pm

    What will be your argument when the words, “consenting” and “adult” have different definitions?

    Take your time, it will be another decade or so before we have grandparents marrying their grandchildren and Golden Labs.

    Ragspierre in reply to starride. | December 14, 2013 at 1:46 pm

    “…the decision is sound and will survive a S.C. challenge.”

    You cannot have read any part of it. It is one of the most rationally inconsistent, rambling pieces of judicial BS I’ve seen, and I’ve seen some doozies.

    “This decision is simply saying that what happens behind closed doors between CONSENTING ADULTS is not the states business and can not be criminalized by the state.”

    What a lode of simplistic intellectual pablum! So I am free to traffic in nuclear materials, torture puppies, or exchange kiddie porn behind closed doors with another CONSENTING ADULT?


    What your argument should have been is that people are free to screw each other without government interference…so long as they do not “marry”. Even that is false unless you support prostitution.

    the proggies are pushing to get legal status for some animals. you have your head in the sand if you don’t see the slippery slope.

The reason to not normalize polygamy, is that it precludes biological diversity. The reason to tolerate polygamy, is that it, like homosexual behavior, while practiced by a minority, does not pose an imminent threat to the viability of a society or humanity. However, the argument against normalization is invalidated with the introduction of sperm and egg donors.

The next ruling will be on incestuous relationships. The only reason to reject incest is that it engenders biological corruption through a reinforcement of recessive traits. However, this argument is invalidated with the normalization of abortion.

We live in interesting times.

    Exiliado in reply to n.n. | December 14, 2013 at 12:55 pm

    Scary times

      That may be, and based on the limited objective evidence available, it certainly seems to be. However, whether it is a progressive morality or technological developments, there is a need to address these issues with a consistent criteria, which will determine if behaviors are normalized, tolerated, or rejected.

    Shane in reply to n.n. | December 14, 2013 at 2:21 pm

    “The reason to not normalize polygamy, is that it precludes biological diversity.”

    LOL really? So by that logic cheating would be OK?

    “However, this argument is invalidated with the normalization of abortion.”

    How does abortion have anything to do with polygamy?

    ThomasD in reply to n.n. | December 14, 2013 at 2:59 pm

    “The reason to not normalize polygamy, is that it precludes biological diversity.”

    Not necessarily, and certainly not as practiced within the animal world (consider north American elk as but one example.)

    One also needs to consider that ‘biological diversity’ only matters to the extent that offspring reach reproductive age.

    But all of that ignores the main reason to eschew such arguments – they are wholly based in Darwinian evolutionary theory and so are morally bereft and unfit for human social consideration.

    Bruce Hayden in reply to n.n. | December 15, 2013 at 9:16 am

    I think there is more to banning incestuous relations than just genetics. Often there is also a big power differential involved. Not just parent child, but also older sibling/younger sibling.

      Ragspierre in reply to Bruce Hayden. | December 15, 2013 at 10:28 am

      That’s some pretty thin gruel your selling, if “consent” is the bellwether here.

      One can always get into gnat-straining about “power”, and feminists DO.

    Bruce Hayden in reply to n.n. | December 15, 2013 at 11:27 am

    Not sure how important biological diversity is in a country with over 300 million people, on a planet with maybe eight billion. There is much more genetic mixing than ever before going on right now with our species than ever before, since the mixing is world wide, expedited by air travel.

What the heck! When everyone was pushing for gay marriage, they guaranteed that this would NOT happen! How could they have lied to me?!!!!!

    platypus in reply to NavyMustang. | December 14, 2013 at 12:58 pm

    Your first subtle clue was that the essence of homosexuality is pretending that either gender can be impersonated on all material levels. If the pretending goes that deep, why in the world would you assume integrity at the shallower levels?

    Methinks you’re naive or sarcastic. My money’s on the latter.

    if you like your culture, you can keep your culture, period.

      Shane in reply to Paul. | December 14, 2013 at 2:24 pm

      What about people that have a culture different from yours, can they keep theirs too? You don’t have to like what someone else is doing, and they don’t have to like what you are doing, we just have to get along and not kill each other over the differences that we posses as human beings.

This is great news!!

Now the only obstacle is that I have to convince my wife…

wink! wink!

Muslims will love this. They are good at this practice. Im sure the welfare system will love it too. Imagine how much money a family this size can bring in for each additional child they have. What does this say about women? Are there groups like this where a women has four husband. Who decides who’s turn it is to sleep with the husband? I guess he just go out and say tonight I want sex with you and the other three well thats why they have dildos.

    divemedic in reply to foxmuldar. | December 14, 2013 at 1:49 pm

    Ridiculous. Why would polygamy be needed for welfare queens to make more money by having kids? They have them now, and are not married at all.

Who cares? If someone else is doing something that you do not like, if it isn’t hurting you, then why care?
I get tired of religious busybodies trying to tell everyone else how to live their lives.

    are you suggesting that the breakdown of the traditional family unit over the past 40-50 years hasn’t hurt all of us?

      Shane in reply to Paul. | December 14, 2013 at 2:28 pm

      Contrary to popular belief the traditional family unit is alive and well. Amazingly for a large majority of the populace the tradition family works well, and is stable and sound. The problem always comes from the outliers i.e. the minority. Is it possible for humanity to not dump a one size fits all approach on everyone. We hate it with ObamaCare why should this be any different.

        Exiliado in reply to Shane. | December 14, 2013 at 2:50 pm

        Generalizations based on your personal reality, or your perception of it, are rarely accurate.
        According to the Census Bureau:

        – Sixty-six percent of households in 2012 were family households, down from 81 percent in 1970.

        – Between 1970 and 2012, the share of households that were married couples with children under 18 halved from 40 percent to 20 percent.

        – The proportion of one-person households increased by 10 percentage points between 1970 and 2012, from 17 percent to 27 percent.

        – Between 1970 and 2012, the average number of people per household declined from 3.1 to 2.6.

        – Black children (55 percent) and Hispanic children (31 percent) were more likely to live with one parent than non-Hispanic White children (21 percent) or Asian children (13 percent).

        But even if we assumed that traditional families are doing OK, they still feel the impact of the broken families. They are exposed to increasing crime rates and failing public schools, for example.

          Uh Huh in reply to Exiliado. | December 14, 2013 at 6:03 pm

          Shocking stats, but if one gets around average young women who are high school grads working minimum wage or low income type of jobs(or no job at all), these stats won’t surprise you. So many of them decide to get pregnant to whatever dude they are either dating or living with. No real concern with how they will take care of the baby, because they know from all their other pregnant friends that there is a long list of social welfare programs that will make sure they have medical care(medicaid), formula (WIC),heat and utility assitance, free cell phones, bus fare cards, etc. Court will attempt to get child support from the sire, however good luck on that, as he usually isn’t working or is in jail. A grandparent will dutifully pick up child, or babysit to allow young woman to work or go to school(paid for through another social program). Often that school is to get a certificate in some kind of elder/child care, etc. that will barely pay more than they are making now. They are lucky if they make it through the program before they get knocked up again by another awesome dude, so they can have two kids with two different fathers and live day to day by shopping at the Dollar store.

        LibraryGryffon in reply to Shane. | December 14, 2013 at 2:55 pm

        For that matter, the majority of black children are born out of wedlock. And the majority of children born to mothers under the age of 30, no matter their race/ethnicity.

        None of those figures suggest that the traditional family unit is “alive and well”.

        Shane in reply to Shane. | December 14, 2013 at 3:54 pm

        Wow statisics.

        If I use the chart on page 5, notice that married with children drops from 40.3% to 19.6% from 1970-2012 (and most of that drop comes from 1970-1990), but other family households only goes up by 7.2% from 5.6% to 12.3%. All this shows is that more people chose to be single than to be married, not the assault on the traditional family that you are making it out to be.

        Also the context of this thread is related to polygamy and “alternate” family structures. I would be willing to bet that most of the 7.2% rise in other family is due to single parent households not polygamist or gay households.

      divemedic in reply to Paul. | December 15, 2013 at 10:47 am

      So trampling on individual rights for the “common good” is OK, as long as the right to be trampled on is one with which you do not agree?
      How is this any different from ObamaCare or from any other form of socialism?

Is the incest crown lined up behind the pedophiles, or do I have that backwards?

love knows no boundaries

All I know is that I married my sister so I wouldn’t get in-laws and it’s worked out just fine.

What is a polygamous family relationship anyway? How is it any different from the guy that was a “baby daddy” to a dozen women last year, who was looking to get his own reality show.

The state makes things legal, however, society makes it acceptable. Keep watching shows like Sister Wives, don’t complain about it, etc. and it will simply become acceptable. Then when courts decide it is legal, we can have ourselves to blame that it is also acceptable.

It isn’t illegal anymore to have a child out of wedlock. It used to not be acceptable and with good reason. Now, as society as looked the other way, it is not only acceptable but celebrated. Has it been good for society as a whole and for children as individuals. Not in the least. But woe is the person or group who tries to cast ANY unacceptability on a woman’s right to choose to have an entire brood, including a couple of adoptions without a husband. Double woe if she is a pioneer doing Gaia’s work by having at least one gay partner, and maybe now two.

So yes, there is an assault on the traditional family. One cannot promote the traditional family as preferable because one will be labeled as a sexist homophobe right wing Christian redneck whose children should be removed by children’s services.

First, gays.
Then, multiple spouses.
Then, animals.
Finally, children.

It will happen if they are not stopped.

[…] reading Professor William Jacobson’s take on the Utah polygamy decision, I noticed that in the comments, someone had linked a Census Bureau report that included this odd […]

Laying aside all the moronic comments about beastiality and pedophilia, which aren’t worth responding to, my attitude is quite simple. I couldn’t care less what type of marriage people enter into as long at it is between consenting adults. The simple fact is that I am not in that marriage and it does not affect me or my life. As long as I don’t have to support their kids it is none of my business and it really isn’t any of yours either.

To dismiss all marriages but one’s own amounts to pretending you are not a member of society with a vested interest in maintaining an orderly productive community.

No one has ever shown how Cody Brown’s polygamous marriage contributes anything to society other than him getting plenty of sex. I honestly don’t understand why any woman would enter one. Are husbands so hard to find that someone would accept 3 other wives in order to get a 25% husband?

Personal opinion but it does move us along the denigration of marriage – just as gay marriage does.

    I honestly don’t understand why any woman would enter one. Are husbands so hard to find that someone would accept 3 other wives in order to get a 25% husband?

    On the surface as a normal person that would seem to be puzzling however, let’s consider for a moment that women do this all the time when they have consensual sex in serial dating relationships. Not all women do it but many do. Most single mothers are de facto doing it already. Look around you, of all the single mothers out there, how many of them actually have a guy living with them? From her point of view whether the guy lives with her or she has 2 or 3 suitors her desires are being taken care of ala carte. She stays single for her own reasons and choice. So for the single mother a polygamous marriage with 2 or 3 men works for her. But by the same token such a single mother might also consider that whatever deterred her from committing to one guy as too much of a chore may in a polygamous marriage diminish her commitment, i.e. chore, thus not being responsible to tending to the emotional needs of one person all the time leaving another to take up where she doesn’t want. Selfish I know, but given single motherhood is already a form of selfishness, lack of commitment, it’s not really a stretch.

    In a society where the parent’s responsibility is NOT thinking of the consequences to the child but of themselves first it doesn’t surprise me at all – sadly. This selfishness is upheld by the Family Law Courts, IMO. A single mother’s priorities are financial self interest, not societal. When 3 or 4 adults can afford a large single family home together where they separately cannot, the cohabiting is not far behind.

Forgot to add – I’ve seen the ads for this show about how important it is for them to be “not just Cody & his 4 wives but to be a family.” Funny but the ads last year were about all the effort of having individual homes built for each of the wives. Seems like if they were really ONE family they’d all want to live in ONE home.

[…] Jacobson at Legal Insurrection has up a post today on “Utah federal judge strikes down key part of anti-polygamy […]

For a limited time only:

“the Blessings of Liberty”

Some Many restrictions apply.

(The equal protection and due process clauses of our Fourteenth Amendment are subject to what some of us consider abuse, so it must be constrained by any available means.)

Looking down the road here is my now to be considered outrageous prediction flowing from this ruling and in the future the rest of you will consider it prescient if you remember it.

The IRS (The Federal Government) will be declaring people married, thus negating the role of the States in issuing marriage licenses.

Here’s how this will come about: IF ObamaCare stands and the current trajectory of HHS rulings/regulations continues, the government as a matter of public interest and policy will have to declare unmarried cohabiting people married in order to make ObamaCare financially stable. Given the dollar amount cut offs that penalize married couples and families, and given the lack of stigma attached to cohabiting, it is reasonable to assume
that financial pressures will lead to people getting divorced or never marrying to avoid the heavy tax/health insurance premiums imposed under ObamaCare. This penalty depending upon where you fall in the cut off can reach some $15,000 per year of PRE TAX income due to the denial of the subsidy.

Since it is vital to public policy that ObamaCare succeed in it’s objective to cover everyone possible and provide subsidies to certain groups of people, HHS will direct the IRS to declare unrelated people living together as “married” for the purposes of ObamaCare’s financial stability since it will be presumed that those who are unrelated living together are doing so for economic purpose in an attempt to avoid the Law’s subsidy calculation. It will be “presumed” under the law that those who are unrelated living together are having a consensual sexual relationship and therefore cohabiting. This is settled law from Family Court to confirm to the Court regarding common law marriage and that adultery has taken place in divorce cases where 2 unrelated people occupy a space like a motel room for 30 or more minutes, i.e. the means and opportunity. Since Gay Marriage is now recognized by the Federal Government, that means even IF two of the same sex are living together sharing a residence for economic benefit they under settled Law will have been deemed to have had consensual sex and therefore cohabiting.

Related to this thread-This also means in cases where more than two people are living together for economic benefit, such as 3 or 4 unrelated people, the IRS would be put in the untenable position of deciding who is and is not in a consensual relationship. It would be a loophole if 3 or 4 unrelated people lived together thus sidestepping vital public policy in the subsidy calculation. At some point a polygamous relationship is going to present a legal challenge and due to gay marriage, that union will have to be recognized as well, especially by the IRS since they have to accept the tax deductions and tax consequences of a polygamous marriage. It will then empower the IRS to declare 3 or 4 unrelated people living together as married for the purposes of ObamaCare in order to calculate the proper amount subsidy or if one is even entitled to a subsidy.

Outrageous? What did Charles Dicken’s character Mr. Bumble say in Oliver Twist? “The Law is an ass.” in regard to what it assumes.