Reality rock star polygamist, Kody Brown and his four wives recently filed a lawsuit in Utah’s federal court. The suit challenges Utah’s anti-bigamy penal statute and requests that the court declare it unconstitutional. Their attorney, Jonathan Turly, Professor of constitutional law at George Washington University, is not seeking to legitimize polygamous marriages, but to avoid polygamy’s characterization as criminal conduct—smart move. Some would say this is a distinction without a difference; I see it differently.
The first hurdle the Browns will have to overcome is standing, the family has moved to Nevada and thus its members are no longer residents of Utah. Under the rules of civil procedure one needs to have a recognizable interest in a case before courts will address a complaint. Brown and his wives cannot challenge the constitutionality of Utah’s bigamy statute unless they can demonstrate that their family is in imminent danger of harm by that law. Therefore, unless Utah prosecutors still intend to prosecute the Browns, the family could lack standing.
Assuming the Browns overcome the standing issue, the disposition of this case could affect our constitutionally guaranteed right of privacy, a penumbral right (one that is not expressed verbatim but is found in the interstices of the U.S. Constitution—usually interpreted as being part of ‘liberty.’) This right has been recognized since the early twentieth century and was the basis for the Roe v. Wade Supreme Court decision allowing a woman’s right to abortion.
Nevertheless, Utah law has one interesting fact: in addition to its statute criminalizing bigamy, the Utah Constitution adopted in 1896, states:
ARTICLE III, Section 1: [Religious Toleration – Polygamy Forbidden].
“The following ordinance shall be irrevocable without the consent of the United States and the people of this State: First:--Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.”
[Emphasis added]
This provision was adopted, no doubt in part due to the continued prosecution of polygamy in the late nineteenth century and to give the nation assurances that Utah would not continue the practice. Ordinarily, in order to amend the constitution, the Utah voting public would have to pass a proposition with a 2/3 majority allowing polygamy. On the other hand, the Supreme Court of the United States (SCOTUS) could tell Utah that its laws (both constitutional and statutory) are unconstitutional under the Federal Constitution and then Utah’s laws could be changed by judicial activism.
In Reynolds v. United States, 1878, 98 U.S. 145,[i] SCOTUS reviewed the conviction of a Utah Territory resident, George Reynolds, for violation of the federal law against bigamy. Reynolds claimed the trial court erred because it failed to give his requested instruction that if the jury found Reynolds became a bigamist as a result of sincerely held religious beliefs, then he should be found not guilty. The Utah trial court wisely refused such an instruction, and also added that the anti-bigamy law was enacted for the protection of innocent women and children. In upholding the trial court’s denial of Reynolds’ proposed instruction and confirming the bigamy law as constitutional and not violative of the right to religious expression, SCOTUS acknowledged that in general, an individual’s beliefs are to be protected pursuant to the freedom of expression clause. However, when those beliefs become actions which adversely affect a secularly recognizable interest of the state, regulation was permissible and did not violate constitutional standards. Quoting Thomas Jefferson, the Court pointed out that in every educated western civilization, monogamy was recognized as the societal norm and that polygamous relationships are hurtful to women and children, “…it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”[ii]
The Utah Supreme Court has dealt with the polygamy issue in two relatively recent cases, State v. Green, 2004 UT 76 and State v. Holm, 2006 UT 31. In both of these decisions the Utah Supreme Court upheld Utah’s bigamy statute as being non-violative of both federal and state constitutions under Reynolds and its progeny.
However, in Lawrence v. Texas 539 U.S. 558 (2003) a 6-3 decision which struck down a Texas sodomy law, SCOTUS emphatically held that the law violated the plaintiff’s right to privacy under the due process clause of the Fourteenth Amendment. Should the Browns' case reach SCOTUS, the case could become a states’ rights fight to determine morality, something that only a minority of the justices in the Lawrence opinion felt the states should retain.
The composition of the justices serving on SCOTUS has changed since the Lawrence decision. However, with regard to constitutional leanings concerning the right of privacy, perhaps not much has changed. Chief Justice Roberts has replaced Rehnquist for the conservative and both Justices Sotamayor and Kagan would likely follow the majority, if not retired Justice O’Connor’s concurrence. There is even a possibility of a more liberal opinion, building upon the precedent set in Lawrence. Although Justices Scalia and Thomas, who dissented in the Lawrence opinion, are still with us and would probably be joined by Chief Justice Roberts, that still leaves at least 5 if not 6 justices likely to side with the Browns.
If that were the case, Utah’s parochial laws regarding sexuality and even its constitutional ban of polygamy (no doubt a reactionary provision due to the intense prosecution of Utah Mormon polygamists in the early 1890s) would be jeopardized. Interesting issue. I’m hoping that the Browns don’t get kicked with a motion to dismiss by the Utah Attorney General for lack of standing. Utah County prosecutors had commenced an investigation before the Browns moved to Nevada in January, but no charges were ever filed. If the Browns’ complaint remains viable and SCOTUS grants certiorari, the high court could decide to protect the Browns’ expanded notion of an individual’s federal constitutional right to privacy, effectively overruling Utah's laws.
[ii] Thomas Jefferson, Virginia Statute for Religious Freedom, adopted January 16, 1786 (Original preamble in draft version) 1 Jeff. Works, 45.
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